Holiday Inn of Santa Maria

National Labor Relations Board - Board Decisions

Dec 11, 1981

259 N.L.R.B. 649 (N.L.R.B. 1981)

HOLIDAY INN OF SANTA MARIA 649
Holiday Inn of Santa Maria and Culinary Alliance ercise of rights guaranteed in Section 7 of the
and Bartenders Union, Local No. 703, Hotel & Act."
Restaurant Employees and Bartenders Interna- 2. Substitute the attached notice for that of the
tional Union, AF-CIO. Cases 31-CA-8817 Administrative Law Judge.
and 31-CA-9593
APPENDIX
December 11, 1981
NOTICE To EMPLOYEES
DECISION AND ORDER NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
BY CHAIRMAN VAN DE WATER AND NATIONAL LABOR RELATIONS BOARD
MEMBERS JENKINS AND HUNTER An Agency of the United States Government
On July 28, 1981, Administrative Law Judge
James T. Barker issued the attached Decision in WE WILL NOT, by inferring a threat to their
this proceeding. Thereafter, the General Counsel job security, instruct our employees not to
filed an exception. contact or consult with the Union, or repre-
Pursuant to the provisions of Section 3(b) of the sentatives thereof, concerning problems or
National Labor Relations Act, as amended, the Na- matters relating to ther terms and conditions
tional Labor Relations Board has delegated its au- of employment, without first consulting with
thority in this proceeding to a three-member panel. supervision or management with respect there-
The Board has considered the record and the at- to.
tached Decision in light of the exception and has WE WILL NOT constructively discharge em-
decided to affirm the rulings, findings, and conclu- ployees for contacting the Union concerning
sions t of the Administrative Law Judge and to overtime pay or any other matter relating to
adopt his recommended Order, as modified herein. 2 their wages, hours, or terms and conditions of
employment.
ORDER WE WILL NOT in any like or related manner
Pursuant to Section 10(c) of the National Labor interfere with, restrain, or coerce our employ-
Relations Act, as amended, the National Labor Re- ees in the exercise of the rights guaranteed by
lations Board adopts as its Order the recommended Section 7 of the Act.
Order of the Administrative Law Judge, as modi- WE WILL offer Paul Flores, who was con-
fied herein, and hereby orders that the Respondent, structively discharged on March 2, 1979, im-
Holiday Inn of Santa Maria, Santa Maria, Califor- mediate and full reinstatement to his former
nia, its officers, agents, successors, and assigns, position or, if such job no longer exists, to a
shall take the action set forth in the said recom- substantially equivalent position, without prej-
mended Order, as so modified: udice to his seniority or other rights and privi-
1. Substitute the following for paragraph l(c): leges.
"(c) In any like or related manner interfering WE WILL make Paul Flores whole for any
with, restraining, or coercing employees in the ex- loss of earnings, plus interest, he may have suf-
fered as a result of having been constructively
The General Counsel has excepted to the failure of the Administra- discharged.
tive Law Judge to state, in his Conclusion of Law 4, that by construc-
tively terminating Paul Flores on March 2, 1979, Respondent violated
Sec. 8(aXl) and (3) of the Act. The evidence supports the conclusion that HOLIDAY INN OF SANTA MARIA
Respondent's conduct violated said section, and the analysis of the Ad-
ministrative Law Judge clearly indicates that his omission was by inad- DECISION
vertence only. We hereby modify the Administrative Law Judge's Con-
clusions of Law accordingly. STATEMENT OF THE CASE
i In par. I(c) of his recommended Order, the Administrative Law
Judge included a broad cease-and-desist order against Respondent. We JAMES T. BARKER, Administrative Law Judge: This
find it unnecessary to impose such a broad order against Respondent. As cae w h b m a S M i ifnia
the General Counsel has not demonstrated that Respondent has a procliv- case washeard before me at anta Ma li
ity to violate the Act, or that Respondent has engaged in such wide- January 20, 21, 22, 28, and 29, 1981, pursuant to an order
spread or egregious misconduct as to demonstrate a general disregard for consolidating cases, consolidated amended complaint and
its employees' fundamental statutory rights, a broad order is not warrant- notice of hearing issued on July 22, 1980, by the Region-
ed here. Hickmott Food Inc., 242 NLRB 1357 (1979). Accordingly, we Director f the National Labor Relations Board for
will modify the Administrative Law Judge's recommended Order by sub-
r e c t o r t h e a t o n a l L a e l a t o n s o a r o r
stituting narrow cease-and-desist language for the broad language used by Region 31. The charge in Case 31-CA-8817 was filed by
the Administrative Law Judge. There is no need to similarly modify the the Culinary Alliance and Bartenders Union, Local No.
Administrative Law Judge's notice, since it already contains narrow 703, Hotel & Restaurant Employees and Bartenders In-
cease-and-desist language.
cease-and-desist language. ternational Union, AFL-CIO, hereinafter called theIn accordance with his dissent in Olympic Medical Corporation, 250 ternational nion AFL-CIO, hereinafter called the
NLRB 146 (1980), Member Jenkins would award interest on the backpay Union, on March 13, 1979, and was duly served upon
due based on the formula set forth therein. Respondent; and the charge in Case 31-CA-9593 was
259 NLRB No. 89

t i o rl L C O . a ses 3 1- C A 8 8 17
^ , ,, ,00, ~~~A PENDI
,

l , , i i tr ti WIL N b r t to r
. i jo W E W I L L N OTs i i hreatee i
t i r i . r ft r, t r l l co bntac r c n str u c t o u r l t t
fil ti . c o n t a c t o r c o n su l t wc th t he Uni o ng o rol s -
t i i ti f i
l l m a t t e r sempl e t o t h eo r te r m s a n d iti s
ti l r l ti s r s l t it - o f l t, it t fir t ulti g it
i i l rvi ion t ct
i t o .
ti W E W I L L N OT tr cti l i -
i f l l ti t i r i
' i t tt r r l ti t
i i t h e i i

W E W ILL
u d ic e t o h is
W E W IL
lo s s
'The ischarged.

,
3)
ST TE E T OF THE CASE
I . l i r r r, t i i tr ti a
i t t. . , : i
s .. „ i.-.^ -«~._ _- -» c__»- if- ~ ia- „c a se w a s h e a rd be fo re m e a t S a n ta M a r a , C l i fo rn i on

it l ' f t l t t t r ri ts, r r r is t rr t- ti f ri iss e On J l 22, 1980, by the egion-
k oan s, ( ). r i l , e ^ i of ti l bor R i B d f r a Di f N i bo R i a d f
i i t ti ' ti , i it lr t i s arr , t l st r t l ees and artenders In-
cems-and-desist language. trainlUin F-I, hriatrcle h
rpari ,
e rn at io n al U n io n A L C I O , er ein a f te r c al led t e
, i y l Ser U
i nt;
t
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed by the Union on December 4, 1979, and service on by separately instructing an employee to bypass the
Respondent was duly accomplished. The parties were Union and take complaints directly to management.
represented by counsel at the hearing and were provided Respondent denies the commission of any unfair labor
full opportunity to make opening and closing statements, practices and affirmatively contends, in substance, that
to examine and cross-examine witnesses, to introduce rel- Flores' termination was voluntary and not constructively
evant evidence, and to file briefs with me. Counsel for caused. Further, Respondent asserts that Mastriano was
the General Counsel and counsel for Respondent filed terminated because she was grossly insubordinate and, in
briefs with me. any event, the General Counsel failed in this proceeding
Upon the basis of the entire record, the briefs filed in to establish a prima facie showing that Mastriano's pro-
this matter, and my observation of the witnesses, I make tected concerted activity was a substantial or motivating
the following: factor in her termination.
FINDINGS OF FACT B. Pertinent Facts
I. THE BUSINESS OF RESPONDENT 1. Background facts
At all material times Respondent has been a corpora- Stock ownership of Respondent is vested in seven
tion duly organized under the laws of the State of Cali- stockholders, none of whom has professional training or
fornia, with an office and principal place of business lo- experience in the operation of a hotel or restaurant enter-
cated in Santa Maria, California, where it is engaged in prise. Prior to 1978 management of the Santa Maria fa-
the operation of a hotel providing food and lodging to cility was vested in a professional manager, with over-
guests. sight and ultimate operational authority residing in the
In the course and conduct of its business operations, seven-member board of directors. In November 1978 the
Respondent annually purchases and receives goods or professional manager resigned following disclosures of
services in excess of $2,000 from sellers or suppliers lo- improprieties in the operation of the hotel, including its
cated within the State of California, which sellers or sup- restaurant and bar facility. In close conjunction with this
pliers receive such goods in substantially the same form event three of the stockholders, representing a 64-percent
directly from outside the State of California. Additional- ownership of the total outstanding shares, formed an ex-
ly, in the course and conduct of its business operations, ecutive committee to assume control of the enterprise.
Respondent annually derives gross revenues in excess of Roger Ikola, a medical doctor specializing in the practice
$500,000. of pediatrics, became one of the members of the execu-
Upon the foregoing facts, which are not in dispute, I tive committee. Dr. Ikola's stock ownership was slightly
find that at all times material herein Holiday Inn of Santa in excess of 20 percent of the outstanding shares. For a
Maria has been an employer engaged in commerce transitional period of approximately 5 days, the day-to-
within the meaning of Section 2(2), (6), and (7) of the day management of the hotel was vested in an interim
Act. manager. Key personnel had left following the departure
of the prior manager and other personnel resigned in the
aftermath. Then, the interim manager resigned for rea-
Respondent concedes, and I find, that at all times ma- sons of ill health. To conduce to the orderly conduct of
terial herein the Union has been a labor organization business, Dr. Ikola identified the key personnel remaining
within the meaning of Section 2(5) of the Act. in the various phases of the hotel operation and met with
them. Deborah Mastriano was one of the individuals
III. THE ALLEGED UNFAIR LABOR PRACTICES who attended this meeting at which Dr. Ikola outlined
the problems confronting the hotel. He instructed the in-
A. The Issues dividuals present to report directly to the executive com-
The consolidated complaint gives rise to the following mittee on matters pertaining to the operation of their
basic issues: area of responsibility and to take direction from the ex-
1. Whether Respondent violated Section 8(a)(1) and ecutive committee. After the meeting, Dr. Ikola met sep-
(3) of the Act by reducing the pay of Paul Flores on or arately with Mastriano who had been identified to him as
about February 1, and by constructively discharging a senior employee assigned to the bar operation. Dr.
Flores on or about March 2. Ikola charged Mastriano with the responsibility of elimi-
2. Whether Respondent unlawfully terminated Deb- nating the theft of liquor and other impermissible prac-
orah Mastriano on or about November 28, in violation of tices in the bar which had come to Dr. Ikola's attention.
Section 8(aXl) and/or (3) of the Act. It was in this framework that Bruno Fava was employed
3. Whether Respondent violated Section 8(a)(1) of the to become manager of the Santa Maria facility.
Act by threatening to terminate Flores if he took com- At the time he was selected by the executive commit-
plaints to the Union; by instructing employees in a meet- tee to become manager of the Santa Maria hotel oper-
ing to bypass the Union and register any complaints di- ation, Fava had completed approximately 18 years of
rectly with management upon threat of termination; and professional training in all phases of hotel management.
Prior to assuming managership of Respondent's oper-
'Unless otherwise specified, all dates herein refer to the calendar year ations in December 1978, Fava had served approximately
1979. 10 years as general manager of the Vandenberg Inn, a
'

t i i
t t i f -
, it
i

.
i i l , i
. , t t
'

, , ( ) t t t t l t i i t i
c t
ll i t t
II. THE LABOR ORGANIZATION INVOLVED
o f t h e p
i
m a n a
r
a n d o t h e r p e r s o n n e l r e s i g n e d i n t h e
l)

" t h e t h e ft o f a n d o th e r
c e s n t h e i t . I l ' tt ti .
w a s t h is
. )(l
t o .
t h e
t e e to t l

i t l t.
' ,
X
HOLIDAY INN OF SANTA MARIA 651
principal hotel operation situated in Santa Maria. For ap- During the initial days of his managership at Respond-
proximately 6 months in 1977-78, Deborah Mastriano ent's Santa Maria facility, Fava looked for departmental
had worked as a waitress at the Vandenberg Inn. leadership to the department heads and senior employees
The members of the executive committee hired Fava who remained after the transition in management. Thus,
with knowledge of his track record of successful man- Deborah Mastriano served as bar manager, Richard Cas-
agement at the Vandenberg Inn. At the outset, the board taneda as chef, and until October 1979 Constance Antoi-
of directors instructed Fava to bring the operation under gue remained as sales and catering director. 2 Antoigue
control by developing a chain of command, coordinating possessed responsibility for booking and catering of all
closely with the owners as a management team, employ- banquets, for hiring banquet personnel and scheduling
ing good personnel, and running a "tight ship" in order their work, and for overseeing their performance in serv-
to avoid the breakdown of discipline and proper supervi- ing banquets. Castaneda relinquished his responsibilities
sion, which had contributed to the thefts of supplies and as head of the kitchen operation when Frank Fava as-
other breaches leading to citations and warnings by sumed his duties as executive chef.
health authorities and the Holiday Inns of America, Inc., In the spring of 1979 Antoigue, Phyllis Slaughter, and
as well as to a substantial diminution in revenues. Union Lisa Ziemba conversed together concerning the advan-
considerations played no part in either the decision of tages or disadvantages of continued union representation
management to employ Fava as manager or in the for- of the employees. As a result of their conversation, they
mulation of instructions to him. agreed to speak with employees to determine their reac-
At pertinent times, Respondent and the Union were tion. At the time in question Slaughter was serving as the
parties to a collective-bargaining agreement effective head waitress on the night shift in the dining room and
from April 1, 1975, until March 31, 1980. The agreement Ziemba was the dining room hostess. She is the daughter
contained a union-security provision. The relationship of one of the stockholders of Respondent. Antoigue
between the Union and Respondent was a generally har- spoke with approximately 10 employees and inquired
monious one. The Vandenberg Inn was a party to the whether they were satisfied with the Union and whether
collective-bargaining agreement during the period of they desired to continue to be union members. She had
time Bruno Fava served as manager there and in that ca- received no instruction from Bruno Fava to undertake
pacity Fava had contacts with Ted Zenich, who served this endeavor but she did tell him of her activity. Fava
as secretary/treasurer of the Union. Bruno Fava assisted neither encouraged nor discouraged the process.3
in negotiating the collective-bargaining agreement which
became effective in 1975 for a term of 5 years, and he 2. The alleged proscribed conduct
became co-chairman together with Ted Zenich of the
Health and Welfare Trust Funds created and maintained a. The employee meeting
pursuant to the collective-bargaining agreement.
During the first week of December 1978, Bruno FavaFava assumed management of Respondent's hotel op- Dur the first weekof December 1978, Bruno Fava
called a meeting of employees. The meeting was held ineration with a commitment to a concept of systems man- calleda meeting of employees The meetingwas held in
agement calculated to assist management in carefully one of the banquet rooms and was attended by dining
controlling the purchase and depensing of food and bev- room, ktchen, and bar personnel Department heads
erages; the utilization of overtime or premium hours; and such as Constance Antoigue, Richard Castaneda, anderages; th tliainofoetmeo reimDeborah Mastriano attended the meeting. Prior to call-
the acquisition and disposition of physical property. In eb h t r no ded t e ee n o to -
the initial weeks of his tenure, Fava devoted his principal ing the meeting, Fava had received information indicat-
efforts to correcting the most pressing t problems consti- ing e s ntacting the investors directly
tuting a threat to the retention of the franchise. He re- concerning matters taking place in the transition, and he
cruited his uncle, Frank Fava, an experienced chef with had received information indicating a quantum of em-
approximately 50 years of experience in the restaurant in- loyee resistance to his hire as manager and a ear of
dustry, to serve as executive chef and to assume direct losing their jobs-
responsibility over the operation of the kitchen and res- At the outset of the meeting, Fava introduced himself
taurant facility. Fava had served in the capacity of ex- as the new manager of the establishment and informed
ecutive chef under Bruno Fava at the Vandenberg Inn. the employees, in substance, that the operation was in a
Soon thereafter Bruno Fava removed the timeclocks state of transition and that effort was being devoted to
which had been in use under previous management and remedying problems and conditions which had accumu-
instituted the use of daily timesheets requiring employees lated under the previous management. Fava assured the
to sign in and out and to receive independent verification employees that he was making no major changes but as-
from supervision of hours claimed as overtime. More- serted that it was necessary for the employees to work as
over, Fava instituted a system of ticket control in the a team. Fava introduced the department heads and stated
cocktail lounge and dining room. Fava had a reputation
in the community for running a "tight ship" and some of I The parties stipulated that at relevant times Antoigue was a supervi-
sor within the meaning of the Act. Prior to becoming sales and catering
the personnel at Respondent's facility had worked under director in October 1978, she had served as a waitress in the dining room.
him at previous times at the Vandenberg Inn. A quantum ' The foregoing is based on a composite of the testimony of Diane An-
of job-related apprehension concerning the future course toigue, Linda Stout, and Cheryl Barr. The thrust of Antoigue's testimony
of events existed among Respondent's employee comple- is to the effect that this undertaking was a voluntary one and not at the
directive of management. The testimony of Linda Stout provides an mind-
ment during the early days of Fava's tenure as manager, equate basis to support a finding that the activity was undertaken pursu-
and Fava was aware of this. ant to instructions from Bruno Fava.
.'
.

. t i

3
.
. . ,. ,,, , ,,_„ „pursant o th colectie-bagainng areemnt.During t first f r 1978, r
t l ^"S
e e o ebr17,BuoFv
Favaassued anagm n of espnden's otelop- called a eeting of e ployees. he eeting as held in
r ti it a it t t a c c t f syst s an- on e o f et ployes and was heldin
t l l t t assist t i r f ll of the an d p s atmed heads
tr ll i rscha Cnt an e AnPo , R c rtentdhea
erages; the utilization of overti e or premium hours; and DeborahConstane Attended thard to all
t i iti i iti f i l r rt . I ing theMasttiag, attededdthecei etdng.formato cat-
t i iti l ks f his tenure, v v t is ri ci l i t h e eetmnge v r c iv i f r ti m ic t-
ff rts to c rr cti the ost pressing proble s consti- coei t h a t employees were contacting the investors directly
tuting a threat to the retention f the franchise. e r -hconcerning atters taking place in the transition, and he
r it is cl , r , ri f it h adp ec er v e d i f r ti i i ti t f _
r i t l r f ri i t r t r t i -Ploye r i t t i ir r f r f
t r ti f i lo s ln g "eir J .
onsibility ti
A t ti i i lf
ili r cit
a s t t li t i f r
ti f r
t he l , i t , t t t r ti i
f r
st at e iti f i
i l iti i -
il i
a t ed i t. r t
i i t i i l i j r t s-
rvi i i . ry
t l a t eam . F a v
a i t t t t t
ktail l t tion----
i t it f r r i aroom. Fava ha a reputation The parties stipulated that at relevant times Antoigue was a supervi-in thecommuity fr runnng a tightship" nd soe of or
,
IThe
't'g ,
L i n d
f t i t s t's e ployee co ple- is to the effect that this undertaking was a voluntary one and not at thet. t ti in ide ina
O ti ir
uch
P ort
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was organizing the operation on a chain-of-com- c. Flores contacts the Union
mand concept which should be followed both in making t i l ll Paul Flores was employed in the capacity of a cook in
suggestions for improving the operation and for lodginge s opeaion o e util Mac
complaints. Fava admonished the employees to follow Respondent's operation from June 1977 until March 2,
the chain of command by communicating first with the 1979, with an interruption of service between Novemberthe chain of command by communicating first with the
department heads. He added that his door was open to 1977 and April 1978. Flores was compensated on an
employees for discussion and that, if they could not re- hourly basis until May 1978 when he was placed on
ceive satisfaction from their department heads, they were salary and informed by the then chef that he would earn
free to consult with him. Fava added that the employees $700 per month. In the fall of 1978, Flores' salary was
should follow the chain-of-command concept in seeking raised to $750 per month. Prior to December 1978,
to resolve their work-related problems and should con- Flores occasionally worked overtime, and he was com-
suit first with him before going to the Union. Fava stated pensated for his overtime work. Flores was a member of
that if the employees did not follow his instructions, the Union.
their job would be in jeopardy. 4 In this context he stated Incident to Frank Fava becoming executive chef,
that he had known and dealt with Ted Zenich for a Flores commenced working a longer workweek than the
number of years. Fava added that Richard McGuinness 5-day week which had previously prevailed. This intensi-
would be limited to 2 days a month in which to collect fled schedule of work lasted through December and into
dues on the premises. The employees posed questions to January and motivated Flores to approach Frank Fava
Fava during the course of the meeting, and he gave an- seeking both a reduction in his total hours and Sundays
swers. The comments made by Fava in the early portion off for religious observance. Flores also informed Frank
of the meeting followed a format he had used on previ- Fava that his paychecks had not included overtime com-
ous occasions in prior years at other facilities.5 pensation. Fava told Flores he would look into the
matter, but suggested that Flores speak directly to Bruno
b. Castaneda seeks time off Fava. Flores did not do so.
During the months of December 1978 and January On or about January 20 Flores received his paycheck
1979, Castaneda was working long hours. He communi- and approached Brenda Guisinger, one of three book-
cated his desire for time off to Frank Fava who, in keepers then employed.7 He informed Guisinger that his
effect, requested Castaneda's forebearance. Finally, in check did not contain overtime compensation which was
late January Castaneda spoke with Mrs. Roger Ikola, the due him. Guisinger said that she would look into the
wife of one of the principal stockholders, and stated his matter and she informed Bruno Fava of Flores' com-
desire to take some time off. Mrs. Ikola stated that she plaint. Fava examined Flores' personnel file, and Fava
would speak with Bruno Fava concerning the matter. noted that Flores was a salaried employee. He asserted
The following day Bruno Fava approached Castaneda that it was not the policy to pay overtime to salaried em-
and told him that he had the following day off and to ployees but instructed Guisinger to check with Frank
have a "nice day." A few days later Bruno Fava ap- Fava. Guisinger did so, and Frank Fava confirmed that
proached Castaneda and told him not to speak with Mrs. Flores had worked overtime. Guisinger transmitted this
Ikola about time off but to talk with Frank Fava. Subse- information to Bruno Fava and Fava instructed her to
quently, Castaneda observed Frank and Bruno Fava pay Flores. Guisinger went to her office and calculated
speaking together in Frank Fava's office. Thereafter, the amount which she believed was due Flores and
Frank informed Castaneda not to talk to Mrs. Ikola but spoke with Flores informing him of the amount to which
to speak with him.6 she believed he was entitled. Flores became upset and
spoke to Guisinger in a loud voioe. He claimed that the
'Fava had met earlier with department heads and had issued essential- amount was quite insufficient and that the Union was
ly the same instructions to them."going to hear about it." Guisinger responded that she
' The foregoing is based upon a composite of the testimony of Bruno "going to hear about it." G uisinger responded that she
Fava, Constance Antoigue, Richard Castaneda, Cheryl Barr, Steven had perhaps miscalculated the amount and noted that she
Oclaray, Elinor Bewlay, and Linda Stout. I have also considered the tes- was in the process of learning her job. Guisinger report-
timony of Deborah Mastriano. I credit the testimony of Fava and Antoi- ed to Bruno Fava the fact that Flores was upset and that
gue denying the testimony of Mastriano, Bewlay, and Stout to the effect
that Fava stated, in terms that employee resorand Stout he effectUnion would she had apparently miscalculated the amount due Flores.that Fava stated, in terms, that employee resort to the Union would
result in their termination. The testimony of Castaneda and Barr supports, Bruno became visibly upset and alluded to the fact that
by implication, Fava's denial of any statement so explicit in terms or salaried employees were not paid overtime. However, he
meaning, for their testimony, like that of Oclaray, reveals that Fava ap- instructed Guisinger to pay Flores. Guisinger took the
pealed to the employees to come first to him with their problems before
going to the Union. Nothing in his remarks per se foreclosed resort to theto one of the more experienced payroll bookkeep-
Union.
' The following is based upon the credited testimony of Richard Cas- ly and credibly denied his admonishing Castaneda about union contacts,
taneda. I have also considered the testimony of both Bruno and Frank and Bruno Fava impliedly denied having issued such an instruction. I am
Fava with respect to the series of conversations which they had concern- convinced upon my observation of Castaneda as he testified before me at
ing Castaneda's time off. I do not credit the testimony of Castaneda to the hearing that he rationalized that portion of his testimony relating to
the effect that in separate conversations both Frank Fava and Bruno warnings issued by the Favas against union contacts, and I do not credit
Fava instructed him not to go to the Union concerning time off. In the it.
first instance, I discern no predicate for the instruction which Castaneda Paychecks were normally received on the 5th and 20th of each
asserts was issued to him by Frank and Bruno Fava. Castaneda had not month.
sought to invoke union aid nor had the Union on the terms of the collec- ' Guisinger had previously handled accounts receivable and was in the
tive-bargaining agreement been alluded to in the conversations between process of learning payroll at the time in question. She also worked at the
Castaneda and Bruno and Frank Fava. Moreover, Frank Fava specifical- front desk.
t l
ti ti i dent's er tio fr m Jun 1977 ntil rch 2,
l i t . v ad onished the e ployees to follow 1979 with an interruption of service between November
i i ti 1 a r of sv be
r .
19 77 an d ril 7 8 F lo r es w a s t
i f l l i til l
i i ,
an d n f o r ed t h e t h en c
h ef t h at h e w o u ld ear n
lt ll . l ' l r
l i t ki
t o i ,
l i l siona ly i -
i i i t i ti . l r f
f ti ,
t h e
,
i
Fava.
'

e

,

4 Fava it i i i t t t t i s
l t i tr ti t t em. "going to hear about it." uisinger responded that she
I 11 1 * i icjui. ^ j ^ -i aI s L
r l l l
'
Up
t i , e la , and tout to the effect apparently miscalculated the amount due Flores.
s had a m 11 a u du Flores.
Visi Up
t t l , r l t t - i t t i i r t l r s. isi r t t e
fir t t i it t eir proble s before ^ ^ ^ ^ g experienced payroll ookkeep- m
*
t
I
IO i

fr t
b
r
f t t l r
HOLIDAY INN OF SANTA MARIA 653
ers who calculated the sum due Flores, and Guisinger Fava's decision. As Fava and Flores conversed together
learned that she had, in fact, erred in her earlier calcula- they were observed by Castaneda from across the kitch-
tions. 9en."
Subsequently, during the height of the lunch hour, be-
tween 12:15 p.m. and 1:15 p.m., Bruno Fava went into
the kitchen as part of his normal daily routine. As he en-
tered the kitchen, he observed order tickets placed at the " The foregoing is based primarily upon the credited testimony of
cook's station by waitresses awaiting Flares' attention. Bruno Fava. I have considered the testimony of Paul Flores and Richard
Castaneda only to the extent that it is consistent with the foregoing find-
At the same time, he observed Flores speaking on the ings. I have also considered the testimony of Frank Fava insofar as it
telephone and heard him ask for Ted Zenich. The phone serves to fix the time of the directive given Flores by Bruno Fava relat-
at which Flores was speaking was located proximate to ing to his use of the telephone. In this latter connection, I specifically
the kitchen entrance which Fava had used and, upon reject the testimony of Flores and of Castaneda to the effect that the di-
rective and confrontation transpired prior to the lunch period. With re-
hearing Flores speaking, Fava told Flores to put the spect to this facet of the case, Castaneda impressed me as a witness en-
phone down and go to his work station. Fava added that deavoring diligently to assist Flores and the Union in the prosecution of
the kitchen was busy, and he should make his phone the instant case. As against Flores' recollection of the time sequence, the
calls on his own time. Nothing further was said. Subse- convincing testimony of Bruno Fava finds credible and persuasive sup-
port in that of Frank Fava, and I am convinced that their testimony was
quently, at approximately 2 p.m. or soon thereafter, Fava not fabricated. With respect to the substanoe of Fava's remarks, I credit
returned to the kitchen and spoke with Flores. He apolo- his version for I am unable to conclude that a manager of his experience,
gized for shouting at him earlier and explained that he sophistication, and long-term involvement in dealing with collective-bar-
had done so because the phone call had taken place gaining representatives would have articulated the direct threat which
the testimony of Flores describes. I find that Flores embellished his testi-
during a busy period. Fava asserted that Flares should mony to serve his own pecuniary interest and that Fava's admonition to
have waited until the proper time to inform the Union of him was communicated in the terms which Fava testified it was. Con-
any problems, rather than ceiling during the peak lun- trary to the General Counsel, nothing in Fava's pretrial affidavit or his
cheon period. Fava then asked Flores if he was satisfied witness stand testimony with respect thereto lends credence to the con-
with the overtime compensation reflected in the revised tention that Favays eavesdropped on the conversation before pouncing on
Flores with malice of forethought, so to speak. Fava's testimony estab-
check. Flores stated that he was. "o At this point in the lishes that his statement to Flores was direct and brief, and Flores' testi-
conversation, Fava told Flores that he was going to have mony supports this. Moreover, nothing in Flores' testimony suggests that
to put him "back on to a contractual wage." Fava stated he first dialed information for the number of the "Culinary Union" prior
that he was doing this because it was his understanding, to placing his phone call wherein he requested to speak to Zenich. Upon
this record, I am unable to indulge the assumption which the General
in substance, that the hours of salaried employees tended Counsel requests. Nor do I indulge the General Counsel's interpretation
to offset and balance out and therefore they were not of the reference "reaffirmed" contained in Bruno Fava's pretrial affidavit.
compensated for overtime on those occasions when they The interpretation warranted by the record as a whole, and the one
worked xtra hours. Flores indicated his acquiescence in which I apply, is that the reaffirmation alluded to was of his earlier deci-
sion and instruction to Guisinger and had no reference to any earlier
comment to Flores. In sum, taking into consideration the state of mind of
The foregoing is based on a composite of the testimony of Paul both Fava and Flores at the time the telephone conversation transpired,
Flores, Frank Fava, Bruno Fava, and Brenda Guisinger. To the extent and evaluating the experience and insight into the areas of permissible
that the testimony of Flores departs from that of the other witnesses, par- dialogue which Fava undoubtedly brought to the instant occasion, I con-
ticularly Guisinger and Frank Fava, as to chronology of events surround- elude that the testimony of Bruno Fava is a more reliable gauge of the
ing his protest to Guisinger over the amount of overtime pay initially cal- content of the exchange than is that of Flores'.
culated, I reject Flores' testimony. Moreover, I specifically credit the tes- Moreover, the testimony of Castaneda attributing to Frank Fava a
timony of Frank Fava to the effect that he advised Flores to speak di- combination of adverse comments concerning Flores' call to the Union
rectly with Bruno Fava concerning his overtime claim, and I do so upon and admonitions to Castaneda not to contact the Union is rejected. Fava
my conviction that Frank Fava testified accurately and credibly that it credibly denied these attributions, and my observations of Fava's person-
was not his practice to become involved in matters of pay and compensa- ality and nature convinces me that, contrary to Castaneda, Fava did not
tion but routinely left those to front office resolution. Additionally, I allude to Flores as "a little bastard" and state that Flores had called the
credit Guisinger's testimony that, in speaking with Bruno Fava, she did Union.
not tell Fava that Flores had threatened to contact the Union over the In crediting the testimony of Bruno Fava with respect to his reap-
overtime issue. I found Guisinger to have been a credible and reliable proachment to Flores at approximately 2 o'clock on the afternoon in
witness who manifested no bias by endeavoring to shape her testimony or question, I have evaluated the evidence establishing that Flores was bona
shade the truth. I am convinced that when she reported to Bruno Fava fidely convinced that he was entitled to overtime and, in that context,
that Flores was upset over the amount of overtime pay proffered she was have weighed the acquiescence of Bruno Fava in directing the payment
concerned not with Flores threat to contact the Union but with the accu- of any proper amount due Flores. In this connection, however, the evi-
racy or inaccuracy of her own computation of the pay figure. She was dence preponderates in favor of a finding, which I make, that prior to
inexperienced in payroll work and her reaction to Flores' remarks were January 20 Bruno Fava had not theretofore been aware of Flores' status
entirely self-oriented. I conclude that, consistent with Guisinger's testimo- as a salaried employee and, as a matter of management predilection,
ny, her accounting of her discussion with Flores on the matter was as reached a conclusion before the telephone episode that Flores, as a sala-
terse and abbreviated as her testimony would suggest, and that Fava's re- ried employee, was required either to honor flexibility in the work sched-
sponse was as direct and as instructive as his testimony and that of Gui- ule without resort to overtime or, on the other hand, be treated as an
singer indicate. Contrary to the General Counsel, Bruno Fava's testimony hourly employee and be accorded overtime. In a related sense, I credit
is not devoid of any support for the finding that he instructed Guisinger Guisinger and the inferences drawn from the testimony of Bruno Fava
to place Flores on "union scale." He testified quite directly that when he that Fava spontaneously evinced surprise and dissatisfaction of the con-
learned that Flores was on salary he felt a precedent he had established cept of compensating on a salaried basis a cook in Flores' job category.
with respect to Castenada was being ignored and decided it was time to In concluding that Fava spoke to Flores in a conciliatory tone on the
put Flores on the contractual rate. While Fava's testimony was some- afternoon of the day in question and on that occasion advised Flores that
times imprecise and conceptual in nature, it is a fair inference, which I he was being placed on hourly compensation, I credit Bruno Fava. I base
have indulged, that, as Guisinger testified, he translated his reaction into this credibility resolution upon a further finding supported by the cred-
a specific directive. ited testimony of Bruno Fava and Brenda Guisinger that before the tele-1
0 I am convinced that Flores so stated because he felt disinclined to phone incident and prior to speaking with Flores in the afternoon Fava
challenge Fava on the issue at that time. had reached the decision to place Flores on hourly wages.
9 en."
t r t it , r
T h e
i i ... *» ait.. o . i. »
cook's station by waitresses awaiting Flores' attention. st l t t t t t t it
S Obs S O
t i l Sp "
t
S
St
t he
ri s

,no c
S Wit
S
had e s eca se t Call t l i i t ti
A.,^ng ,, busy « eriod. ^^a v asserted t t » .A ««ld \A
t he t sti f l r i .
o
it .
tne
with the overtime compensation reflected in the revised tention that Fava eavesdropped on the conversation before pouncing onwith te ovetime o penation efleced inthe rvised ni
Ch St *"
St h e fir s t d ia le
t i i g, that he was doing this because it was his understanding,
S O
t Occ i
T h e
worked extra hours. Flores indicated his acquiescence in^which I apply, is that the reffirmation alluded to was of his earlier deci-worke extr hour. Flres idicatd hi acquescene in i i li

1

.
Wsl

I

10 I c i ce t t l r s t t f lt i i li t i i t
"
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. The alleged termination of Flores dibly testified that he hired a replacement for Flores
when a qualified applicant presented himself becauseThe contractual wage rates in effect in January and when a ed resented himself because
February 1979 provided for compensation of the follow- qualified help was in short supply. When Fl
o res prof-
ing classifications at the hourly rates shown: fered his resignation, he had not secured employment
elsewhere, nor had he secured another job on March 2
Dinner cook-$4.25.5 when he left Respondent's employ.
Second cook-S4.04 As found, the three paychecks received by Flores on
Broiler cook-$3.82 February 2, 20, and 28, respectively, reflected hourly
Fry cook-$3.60 wage rates of $4.25, $3.60, and $3.75. Upon learning of
these variations in hourly pay rates, Bruno Fava verbally
When the telephone incident occurred Flores was receiv chastised the staff, comprised of one experienced payroll
ing a salary of $750 per month, or $4.37 per hour based clerk and two relatively inexperienced clerks."
on a workweek of 40 hours. The paycheck which Flores
received on February 5 representing his compensation e. Mastriano terminated
for the pay period January 16 through January 31 repre-
sented compensation at $4.25 per hour. This rate was (I) Employment history
used by Guisinger in an effort to comply with Fava's in-
struction to pay Flores at union scale. In checking the Deborah Mastriano was employed by Respondent
payroll on payday Fava noted the rate and called the from May 1978 until November 28, 1979, when she was
three payroll clerks into his office and admonished them terminated. She was employed as a bartender on the day
that he had directed Flores be put on union scale. Ac- shift and, as found, Mastriano served as bar manager.
cordingly, Guisinger applied the contractual wage appli-
cable to the fry cook classification in preparing Flores' " The foregoing is based on a composite of the credited testimony of
,p r 20 Fla .res re- cFrank Fava, Paul Flores, Brenda Guisinger, and documentary evidence
next paycheck. Subsequently, on February 20 Flores re- of record. In crediting the testimony of Paul Flores regarding his motiva-
ceived his paycheck covering the 2-week period Febru- tion in giving his 2 weeks' notice, I have evaluated the suggestive nature
ary 1 through February 15, and it reflected an amount of a key question leading to Flores' specification of his rate of pay as a
representing an hourly rate of $3.60 per hour. Upon a re- force in his decision. Nonetheless, being convinced that the total context
ceipt of his paycheck on Febr y 20, he t of Flores' testimony is such as to establish his wage rate as a factor in his
ceipt of his paycheck on February 20, he protested to decision, I have reached the findings of fact above made. However, in all
Bruno Fava who instructed him to speak to Frank Fava. other respects I credit Flores' testimony only to the extent that it is con-
He did so and Frank Fava showed him the contractual sistent with the foregoing findings. Initially, I became convinced as I ob-
rate schedule. Flores protested that he was being given served Paul Flores testify at the proceeding before me that Flores was
the "bottom figure" which he characterized as ".dicu- ,lacing his testimony liberally with rationalizations and extenuations which
the "bottom figure" which h characterized as dicu- he knew to be harmful to the defenses being interposed by Respondent
lous" in light of his experience. Frank Fava agreed to and fully supportive not only of his own pecuniary interest in this matter
pay him $3.75 per hour. Flores walked away. but also of the rationale of antiunion propensities on the part of Bruno
Soon thereafter Flores, spoke with Frank Fava in Fava so foundational to the General Counsel's case. Flores' attributions
Fava's office and told him that he was giving him 2 to Bruno Fava and Frank Fava of direct, undisguised, and blatant expres-
sions of hostility toward the Union and union-based motivation for the
weeks' notice. Flores stated that he was working too removal of Flores from salary and a reduction of his equivalent hourly
hard, that too much work was expected of him, and that wage rate exemplify the excesses of Flores' testimony, and this testimony
the pay he was receiving as a result of the adjustment re- is rejected. Moreover, my separate evaluations of Frank Fava and of
suited in his "not making enough money." Fava respond- Bruno Fao as I obee them tetify before me, provides insufficientfoundation for the conclusion that either of them harbored resentment or
ed by noting, in substance, that improvements had been hostilities toward the Union, or toward the concept of collective repre-
made in the operation and staffing of the kitchen oper- sentation. Nor does this evaluation of them and their sworn testimony
ation and that an employee had been hired to make support the conclusion that either of them was so naive and lacking in
salads and cold sandwiches, thus easing the work burden judgment or self-control as to have articulated in specific terms the im-proper, union-related motivation for their wage actions, as Flores' testi-
for Flores. Fava did not endeavor further to dissuade mony suggests. Particularly is this so here where Flores has manifested
Flores but advised him that, if a qualified employee by his own actions a disposition or willingness to seek the assistance of
became available in the next 2 weeks, he would employ the Union in matters pertaining to his own employment. In crediting the
him. He added that if this occurred, he would have to testimony of Frank Fava with respect to the exchange between him and
Flores signifying Flores' severance, I do so for the reason that I consider
terminate Flores. Fava's account both of the conversation wherein Flores gave notice of
On February 27 Frank Fava hired a breakfast cook his intention to quit, and of the severance interview, to be intrinsically
whom he considered fully qualified. Fava instructed the credible. Moreover, Fava's accounts comport with the logical realities
new employee to commence work the following day, that then pertained. Fava had worked diligently to improve the operation
of the kitchen, and had made demands on himself and other kitchen per-
and he told the payroll department to prepare Flores' sonnel to achieve the objective of bringing the kitchen into compliance
checks. Flores was compensated at the rate of $3.75 per with health codes and the demands of the Holiday Inn International. Fur-
hour for his work through February 28, and anothther he, he had assisted Flores in improving his cooking techniques. More-
check was issued dated March 2, 1979, compensating over, qualified help was in short supply. I reject Flores' testimony to the
effect that, when he proffered his resignation, Frank Fava was virtually
Flores for 16 additional hours of work at the rate of unresponsive and merely acquiescent. I further reject the inferences of
$3.75 per hour. Flores' testimony that his relationship with Fava became strained due to
Flores credibly testified that he gave notice of his in- the fact that Frank Fava had learned that he, Flores, had endeavored to
tention to resign because he felt that in so doing he could contact the Union concerning his wages. Rather, I credit the testimony
of Frank Fava to the effect that Flores advised him of his intentions to
"jar" Fava into raising his wages to an hourly rate more resign, that he endeavored to dissuade him and warned him that he,
akin to that represented by his previous salary. Fava re- Fava, would hire a qualified applicant if one became available.
t l i r qu
l d applican Presented hi self because
ti t ll lifi
d l w as in sh o r t s l . h
en F l o r e s r f-
ifi ti rl
f er e d s i ti
$
-
l .
t n
1

o m 19 7 8 un t , ,

.
res'I T he
,ext paycheck. , ubsequently, „n .ebr ary ,, cores u- iFrank , t k. quentl , r r l r r r . I r iti t t ti l l r i i
fo r ce in h is l ,
.. ,,. ,f ,is T-.I-eck -w» i-bruary , h proteite o
r ^decisio , l

er v ed P au l F l e s
., ,,,.. „bottom „igure" .. , ,s . . ,lacing t ti i
the "bottom figure" t ri "ri r f l i t
. P
S F a
v a so
' i l i i i i to r r f ir t, i i , l t t

St
is ,
suited in his "not making enough money." Fava respond-ZBruno Fava as I observed them testify before me, provides insufficient
sultedin his"not king e ugh ney." ava repond- f ti f r t l i t t it r t r r r t t
Oper t St f
, t i t r en^judgment or self-control as to have articulated in specific terms the im-saladsand cod sandichesthus esing te workburden '

i l l
th CU nio " " mat te i i i
him. He added that if this occurred, he would have to testimony of Frank Fava with respect to the exchange between him andhim. Headded tat if tis occrred, h would ave to s'
P ,
l t co ence ork the follo ing day' that then pertained. Fava had worked diligently to improve the operation l

othe ' r,
, li i l i t l . j t l ' t ti t t
a ea ,t t, P
O
,
i l l t . , t

i rl i v r i i i t t ,
c
. s nFrank
l
^
;
We '
t ring
l
HOLIDAY INN OF SANTA MARIA 655
This position, which she held from November 1978 until Approximately 6 weeks after Fava assumed manage-
approximately November 19, 1979, required her to ment of Respondent's operation, he had occasion to corn-
schedule hours of other bartenders, order liquor for bar plete a verification of employment form on behalf of
use, and inventory liquor stocks. During her term of Mastriano. The form was submitted to Fava by a bank
service as bar manager, she had occasion to hire one bar- where Mastriano was seeking a loan. In completing the
tender without clearance from her superior. Her duties form, which Fava signed, the following remark was en-
as a bartender required her to pour drinks and wait on tered: "A very dedicated and responsible person. The
customers, to cut citrus fruits, and to maintain the clean- remark was written on the face of the form by Bruno
liness of the tables and bar. When Bruno Fava assumed Fava.
managership of the hotel facility in early December During the early part of 1979, Fava complimented
1978, he assumed responsibilites for scheduling the hours Mastriano with respect to the ease with which she had
of work of all bar personnel and rescinded the right of gained proficiency as a bartender and the good relation-
Mastriano to hire. At the outset of her employment in ships that she had established with customers. In August
1978, Mastriano was compensated at a rate of approxi- 1979 Mastriano verbally informed Fava of her intention
mately $4.78 per hour and was increased in her hourly to leave her job and to move from the Santa Maria area.
pay when she assumed her responsibilities as bar man- Fava attempted to dissuade her from this course of
ager. When Fava became manager of the motel facility, action, advising her that it would be a mistake for her to
he reduced Mastriano's rate of pay to that provided for leave her friends. Fava added that she was doing a very
bartenders in the collective-bargaining agreement. Mas- good job as a bartender and there were many opportuni-
triano learned of this reduction in her hourly rate on De- ties available to her in Santa Maria. Fava advised her to
cember 20, the first payday following Fava's assumption stay on. Mastriano took some time off commencing
of management of the hotel facility. Fava explained that August 10 and went to San Diego for approximately 4
her previous compensation had been above union scale days during which time she looked for a job. She re-
and that she had been relieved of her responsibilities to turned to Santa Maria on August 14 to attend the funeral
schedule work. Fava added that he would wait and see of a very close male friend. Following the funeral, she
how she performed her duties as a bartender. Mastriano's went to the Holiday Inn and spoke with Fava who ad-
hourly rate of pay was raised in May 1979 pursuant to vised her to stay in her current position and to report to
her request when she learned that the night bartender work the following day. Mastriano followed Fava's
was being paid at a rate above her wage rate. 3 advise
During the period of her employment at the Vanden-
berg Inn in 1977 and 1978, as found, Mastriano worked (2) The prelude events
first on the night shift as a waitress and then transferred
to the day shift in the same capacity. Marlene Perez was In the summer of 1979 Bruno Fava presented to the
serving in the capacity of coffeeshop manager, and executive committee a plan to expend S60,000 in refur-
Bruno Fava maintained overall supervision of the coffee- bishing the bar and cocktail lounge with the essential ob-
shop and restaurant operation. In the spring of 1978, at a jective of improving its ambiance and seating capacity.
time when Mastriano was working on the day shift in In addition, Fava recommended that a stage and dance
the coffeeshop, Perez was made supervisor of the coffee- floor be constructed so that entertainment could be fea-
shop and this distressed Mastriano. Moreover, Perez and tured. The executive committee approved Fava's recom-
Mastriano carried on a dialog for a period of days con- mendation, and construction activities incident to remod-
cerning the timely completion of side work prior to the eling and refurbishing the existing area commenced in
end of the scheduled shift. For her part, Mastriano com- early August. Incident to this a decision was also
municated her opposition to the installation of Perez as reached to install a computer bar system which metered
supervisor of the day shift. Perez had worked at the the pour of liquor and beverages and conduced to the
Vandenberg Inn for a longer period than Mastriano. careful control of drink content and ratio of liquor costs
On an occasion in May 1978, just prior to the com- to revenues. This concept was adopted by the executive
mencement of the lunch shift, Mastriano, Perez, and committee and the remodeling effort continued until the
Bruno Fava sat together at a table in the dining area to end of October. In the interim, a banquet room adjacent
discuss the matter. During the discussion, Mastriano to the dining room was set up as a temporary lounge.
became suddenly excited and exclaimed that she wanted The grand opening of the new bar and cocktail lounge
to quit. Bruno Fava invited her to do so and she arose occurred on November 2, at which time all construction
and threw a set of keys across the table. Her termination activity had ceased and only the installation of those
was effectuated that day, and other personnel, including connections and fittings to the computer bar remained to
Fava, handled the luncheon shift." be accomplished. This involved work in a backroom sep-
arated from the bar by a common wall.
" The foregoing is based on the credited and undisputed testimony of
Deborah Mestriano. tude and directives were the precursor to her own emotional outburst
" The foregoing is based on a combination of the testimony of Marlene and severance of employment, I reject it.
Perez and Deborah Mastriano. In those instances wherein the testimony " The foregoing is based on the credited and undisputed testimony of
of Mastriano differs from that of Perez, I have credited Perez. In this Deborah Mastriano. While I am convinced that Mastriano overstated the
aspect of her testimony, as in others, Mastriano impressed me as tending effusiveness with which Fava complimented her in her capacity as a bar-
to embellish and extend her account in a manner which would redound tender, Fava did not testify in contradiction of Mastriano and I am con-
strongly to her advantage and to portray Bruno Fava in an unfavorable vinced that the essential thrusts of Mastriano's testimony in this regard is
light. To the extent that Mastriano's testimony suggests that Fava's atti- accurate.
m

ed l
. l,
. '
l t t t i t rt r r t e follo ing a . astriano follo ed Fava's
r r t . "Iadvise."
t
I n t h u m m e r t t t
$
t h e b a r
it i ti it .
I n P
o o r b e t t t t i t l f -
i

T h e
b e
t

l
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the meantime, and in keeping with the decision of ter, informing Fava that Mastriano had spoken to him
management to modify the character and focus of the and had objected to the uniform as too revealing. Lavoie
bar and cocktail lounge operation, a decision was made asked Fava if the uniform were a standard one, and Fava
to purchase uniforms to be worn by the cocktail wait- said that it was standard, but had been modified by the
resses and by Mastriano as a bartender. Dr. Ikola, as a ruffles. He further told Lavoie that the issue was essen-
member of the executive committee, made the decision tially moot because he had given Mastriano permission
because he considered the wearing of diverse types and to place ruffles on the uniform."
style of street clothing by bar and cocktail lounge per- During the next week on a daily basis, Mastriano com-
sonnel detracted from the quality image management de- municated to Fava her objection to wearing the uniform.
sired to establish.16 In this connection, Dr. Ikola, accom- Her objections would be lodged in the form of com-
panied by his wife and daughter, traveled to Los Ange- ments relating to her embarrassment over having to wear
les and visited a uniform supply s e shop. Ikola had hi th iform, the unfavorable reactions of her friends and
daughter model the uniforms and he took pictures of the customers, and the fact that the male night bartender did
four that he considered the most appropriate. He re- not have to wear a uniform. As a result of these conver-
turned to Santa Maria with a sample uniform and the sations, on or about November 15, Fava instructed Mas-
photographs which he had taken. At least three of the triano that she could wear her slacks and blouse, as she
female employees of the bar operation, including Mas- had requested. Prior to taking this action, Fava had com-
tnano, participated in trying on and perusing the sample municated to Dr. Ikola the complaints of Mastriano and
uniform. This was hurriedly done but resulted in the ap- others concerning the uniforms and Dr. Ikola had in-
proval of the participants of the uniform modeled. From structed Fava to make the decision he considered appro-
the photographs submitted to the executive committee a prte a ta he ld p r he uniforms to be
uniform was selected and ordered. In excess of $1,000 worn if possible.
worn, if possible. ~was expended in purchasing the uniforms. w i
The uniforms arrived just prior to the November 2 In the month of October, Fava received reports that
opening of the refurbished bar and cocktail lounge. Mas- Mastriano was rolling dice with customers and that sig-
triano tried on her uniform at home on November 2 nificant amounts of money were changing hands. It had
prior to reporting to work and found the uniform too ab- been acceptable practice in the bar and during the lun-
breviated and revealing to suit her. She took her uniform cheon period for customers to roll dice with the cocktail
to work and in a conversation with Fava and other per- waitress for the tip The reports which Fava received in-
sonnel she lodged her objections. In substance, Mastriano dicated that Mastriano's dice-rolling activities went
informed Fava that the uniform was too revealing at the beyond this practice. In late October he encountered
top and so abbreviated in length that it inhibited her Mastriano in the bar area rolling dice for substantial
from stooping or bending over and performing the inci- amount of money. Later he spoke with Mastriano and in-
dental bar duties required of her. One of the participants structed her that this was an impermissible practice and
in the conversation suggested that a ruffle be sewn to the directed her to cease. Despite his directive to Mastriano,
uniform and Fava acquiesced, believing that the addi- Fava had the impression that Mastriano continued her
tional ruffle would be applied only at the neckline. In the practice.20
meantime, the cocktail waitresses wore their uniforms on
duty. Linda Low and Jan Kuhule manifested their dis- The findings with respect to the conversation between Lavoie and
Mastriano are based on a composite of their credited testimony, but I
tress at having to wear them, and did so both to Mas- have principally relied on the testimony of Lavoie. In addition, the find-
triano and to Antoigue. ings with respect to the conversation between Lavoie and Fava are based
In due course, Mastriano wore her uniform, as modi- upon a composite of their testimony. I am convinced that Fava was inac-
fied by a ruffle at the neckline and a fringe ruffle applied curate in his recollection that his conversation with Lavoie did not take
place until on or about November 15 and subsequent to the time when he
to the lower portion of the uniform. When Fava ob- had ucted Mastr ano tht N she 15 acod subsequent to the time when hehad instructed Mastriano that she could cease wearing the uniform. Be-
served this, he stated, in effect, that Mastriano had modi- cause Lavoie was a frequent visitor to Respondent's facility, I am con-
fled the entire appearance of the uniform and that he had vinced that the conversation between Mastriano and Lavoie would have
given his approval to modifying only the top portion transpired at a time earlier than the time fixed by Fava for their ex-
thereof. Albert Lavoie, who at that time was serving as a change. mpicit in this finding is the further consi vethataonspoke to Fava on the matter immediately subsequent to his conversation
business agent of the Union and who visited Respond- with Mastriano.
ent's facilities frequently in furtherance of his duties, '1 The foregoing findings are based on the credited testimony of Bruno
spoke with Mastriano who was wearing her uniform as Fava, as augmented by that of Dr. Ikola. Specifically, I credit the testi-
modified by the ruffles. She took the initiative in inform- ony of Fava to the effect that his directive to Mstriano tha s conuldcease wearing the uniform transpired in mid-November. In this connec-
ing Lavoie that she objected to the uniform as too re- tion I have considered and credited the testimony of Lisa Ziemba, Kelly
vealing. Lavoie suggested that Mastriano speak with Connell, and Brenda Guisinger to the effect that during the final week of
Fava concerning the matter, and he stated that he would her employment while on duty Mastriano wore street clothes and not her
,,so talk with Fava. Lavoie did so immediately thereaf- uniform. I credit the testimony of Debbie Mastriano only to the extent
also talk with Fava. Lavoie did so immediately thereaf- that it is consistent with the above findings. Moreover, I reject the testi-
mony of Richard McGuinness and Ted Zenich to the extent that it infers
" Dr. Ikola credibly testified that cocktail waitresses and bar personnel that Mastriano was still wearing her uniform on duty on or about No-
were wearing clothing of their own choice and, in his opinion, this por- vember 27 when they had conversations with her.
trayed a "no class" operation. 'o The credited testimony of Bruno Fava supports the foregoing. I
" The foregoing is based upon a composite of testimony, including that have considered the testimony of Deborah Mastriano, Richard McGuin-
of Dr. Ikola and that of Deborah Mastriano. The essential aspects of the ness, and Ted Zenich and conclude that their testimony supports the
above findings are not in dispute. Continued
t il il i , i
l li i j ti i t if .
i tablish."' cti ,
r t i
i l i uni , t f l ti f r fri
l l i i
i t t r ri t . r - t a e t r a unifor . s a result of these conver-
i
i l i o l l l
ti i ti
riano, i i i i i l
if . i i l lt i r i
l t i i t i l i
t t itt t t ti i t riate. He dded hat wou refe t
, if ... .., .„ ,,~~~~~worn, '
as expended in rc asi t e if r s. IOe
if r rri j t i t t r MI n t h e m o n t h df t , i
opening of the refurbished bar and cocktail lounge. Mas- nMastcnano was rolling dice with customers and that sig-
i n ecan t am o u nt s o f m o n e w ere i t
i t if t - b een t l r ti i t ar a n the l -
li i i i f t r t r ll i it t t il
ti
t r ess f o r t h e . T h e ts w h i r i i -
l . i t t tri ' i -r lli ti iti t
i li t h s i I l t t r t r
i i lli i f t ti l
i i i . t it tri i -
l i i
ti t . it i i ti t tri ,
i , l i i i
l l l l
t t il tres i
i ife "
T he f d i s wi h t o the ti
tres, o* k».ing ;„<, »^ ar , , And A.A so bol, *o Masn tri r i i i ti
t i t , i SO t ,have i i ll r li t t ti f i . I iti , t fi -
i
Co s i o ,

cu ra t e '" his
.o .1. iower _..tion rf t1. T 11,1m .When oava ib-
t t l ti f t if r . e Ob- had instructed astria t t s l i t .
St '
i

theref. Alert voiewho t tha ti e as srvingas a change. Implicit in this finding is the further conclusion that Lavoiet r of. l rt i , t t t ti s s rvi as a s e t t tt r i i t l ti
i
"1
i F av a, as l . cifica ly, i ti
i m astria that she comodifed b the uf ls. S too the nititive n inor - iove r.
S Obj i , ll
S S Wi
r i
her
also talk with Fava. Lavoie did so immediately thereaf- uniform. I credit the testimony of Debbie Mastriano only to the extentalso tlk wit Fava.Lavoiedid im tely ere . testi-
M t i .
. i

i i
ti
ts
i t il i -
b fe
e g un
l il
t t i
-r l ti s e
.
t ti l

a e a er ing

i l . 19
orn, i l .'
i l l i l ll ti ti
. ,1m - til t
of i l ri i
t ili
f i ti
i i l i l i rl i
HOLIDAY INN OF SANTA MARIA 657
Incident to the installation of the new computer bar, that there appeared to be something disturbing and up-
Mastriano expressed her opinion to Fava that the cus- setting Mastriano which he did not reveal to him.21
tomers would not respond favorably to this method of On Saturday, November 17, Fava called Mastriano at
dispensing drinks. Mastriano expressed the feeling that her home and requested her to come to the bar to assist
her customers would prefer to see the bartender phys- in the installation of the dispensing system of the com-
ically pour the drink. Fava stated his disagreement. puter bar. Mastriano countered that the installer was
In mid-November McGuinness visited Respondent's scheduled to come in the following evening. Fava con-
facility in one of his routine visits. He was approached tradicted her and stated that installation was to take
by Fava who showed him a list of bartender duties place that evening. Mastriano communicated her reluc-
which he had posted and which he had called to the at- tance to come in as requested, and Fava responded that
tention of the bar personnel. McGuinness took no excep- he and the maintenance man would handle the matter
tion to the content of the posting. In the course of this themselves. On Monday, November 19, Mastriano re-
conversation, Fava told McGuinness that Mastriano was ported for duty and spoke with Fava. She told Fava that
failing to cut citrus fruits, prepare juices, stock and rotate she wished no longer to be bar manager and to be ex-
liquor, and to maintain the general cleanliness of the area pected to report for work on weekends when she was
in baok of the bar. Fava also noted that Mastriano had not scheduled for duty. She stated her desire to be re-
complained about her uniform. He emphasized that Mas- l e ve d o f responsibility for ordering supplies and schedul-
triano's rolling of the dice was too constant and consist- ng hours of work. Fava stated he would comply with
Mastriano's wishes and would handle these matters.
ent and that he was going to have to change this. He
ent and McGut he as goinga rep ntatve to che Uhis. Ho Thereafter, Fava took responsibility for these duties. The
asked McGuinness as a representative of the Union t schedule which he prepared for November 26 changed
speak with Mastriano. McGuinness noted that he felt theMastriano's reporting time from 10 a.m. to 11 am. andMastriano's reporting time from 10 a.m. to 11 a.m. and
construction which was then taking place incident to the she was later told that there was no need to open the bar
installation of the computer bar system rendered it very at the 10 a.m. hour.22
difficult to maintain the cleanliness of the back bar area.
In the week that followed, Mastriano noted a cooling
McGuinness agreed, however, to speak withMastriano of Fava's attitude toward her. For his part, Bruno Fava
and he did so on the same day or the day following. In formed the impression that, following his directive to
effect, he summarized the nature and substance of Fava's Mastriano to cease wagering on the roll of the dice, she
complaints. Mastriano denied the accuracy of Fava's had became reticent and cool in her attitude, and the fre-
evaluation concerning the condition of the back bar area quency of her complaints about work-related matters had
and her performance of her bartending duties. Addition- increased
ally, Mastriano asserted that she had ceased rolling dice On November 20 Mastriano complained to Fava that
a week earlier, and she reiterated to McGuinness her ob- she had not been compensated for 3 hours of overtime
jections to the uniform and requested his evaluation of its work. (Mastriano had received her paycheck the previ-
propriety. McGuinness stated that he felt the uniform ous day.) Fava explained that he had offset the 3 hours
was "very attractive" but agreed that without the lace it of overtime which Mastriano had worked against a like
"would be just a little bit too revealing." McGuinness amount of time off which she had taken. Mastriano was
added that he wished to maintain harmony between man- not satisfied with this explanation and Fava offered to
agement and the Union and its membership. He coun- pay the overtime.
seled Mastriano to do all she could to fulfill her duties. The following day Zenich appeared at Fava's office.
During the conversation, McGuinness formulated the im- He stated that he wished to talk to Fava. Zenich rarely
pression that Mastriano was upset and very disturbed came in person to the facility. At the outset of the con-
about something extraneous to the content of their con- versation, Zenich broached the subject of Mastriano's
versation. Mastriano declined to explicate her feelings in uniform. Fava responded that that was no longer an issue
this regard. because Mastriano had been authorized to wear street
Following his conversation with Mastriano, McGuin- clothes. Fava was irritated and raised his voice a bit. He
ness returned to his office and communicated Fava's asked Zenich the real nature of his business, and Zenich
complaints and Mastriano's responses to Ted Zenich. He inquired about the 3 hours' overtime. Fava offered his
told Zenich that he had studied the list of bartender's explanation for withholding the 3 hours of overtime pay.
duties which Fava had posted and which Fava had re-
quested the bartenders to sign. McGuinness stated that T The foregoing is based primarily on the credited testimony of Rich-
he considered the list satisfactory. He also told Zenich ard McGuinness, as supported by the testimony of Deborah Mastriano.
The testimony of Bruno Fava supports in essential aspects the nature and
tenor of McOuinness' testimony. In finding that the conversation tran-
finding that Fava spoke to Mastriano concerning her rolling of dice. To spired in mid-November, and not on or about November 27 as the testi-
the extent that the testimony of the latter three individuals suggests that mony of McGuinness, Zenich, and Mastriano suggests, I do so on the
Fava's chastisement of Mastriano pertained solely to her practice of roll- conviction that the incident transpired in the 2-week period when Mas-
ing dice for tips, I reject it. The General Counsel introduced no evidence triano was wearing her uniform, as well as the further finding that Mas-
to counter the credited testimony of Bruno Fava to the effect that Mas- triano ceased wearing her uniform at least I week prior to her November
triano was gambling for significant amounts of money in the bar area of 28 termination.
the facility. In his pretrial affidavit Fava did not single Mastriano out as " The foregoing is based on the credited testimony of Deborah Ms-
the offender among employees in this regard, but notwithstanding, the to- triano which is not contradicted. The testimony of Bruno Fava supports
tality of (he evidence establishes that she did gamble on the roll of the the finding that the computer bar installation transpired on the approxi-
dice and Fava admonished her. mate date testified to by Mastriano.
.21
i l i
ili l ti
i .
l n c e
l i - i t l l t tt r
ti l , tri r -
ti , i
f o r d ut and w i t h av a h e l
i ,
sh e w sh ed l r t r r t -
i i r l l
i
n o t l i
i i t t li
v ed o f r onsibilit f r r ri supplies and schedul-
i i f . t t l l it
ent and that he was going to have to change this. He astanos wishes and would handle these matters.
asket ca nnes w g a represnto tof thge n on t fter, onsibilit ii nt ti o ^ ^ ^ ebr2 ne
. i e as hepprepared fr Nove . 26 chand
construction which was then taking place incident to the astriano's reporting time from 10 a.m. to 11 a.m. and
ionstallation of chwa theomputer br system redered it ver she was later told that there was no need to open the bar
installation f the co puter bar system rendered it very , th 10 a m. hour "2
i l i i a t 1 a hour. 22
Mc~unnes agredhoweer, o spak ith astrano I t t t f ll , tri t li
i r, k t f tri r. P
i so the sa e day or the day follo ing. In formed the impression that, following his directive to
v s t i t ri t r ll f t ic , she
l i . i r y l
l ti r i t iti t l i t t l t tt
rt i ti . iti - increased.
ll , t i

it t t l it f rti i stri a r a ai st a like
t ti i t . tri s
'
P
" T he
i r t list s tisf t r . e als t l e ic ard cuinness, as supported by the testimony of Deborah Mastriano.t nti l
I
s
t as
t
P
i
t i . t t t f lt t shdl hc epeae o oebr2 ne
c str cti hit h aano. t enting plaed i ciet eet t tri ' r rti ti fr . . t 11 . .
c str cti hich as then taking place incidentre i vr she s l t r t l t t t
M s fl ano
ni
G
"
t ingtlae ndt
l o
did s on th sam ay r he dayfollowng. I
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zenich said that Fava would have to pay it. Fava said she had informed him, Zenich, of Fava's sexual harass-
that it was his word against Mastriano's but that he ment of her."2
would pay the overtime. At this point in the conversa-
tion, Zenich alluded to Fava's criticism of Mastriano for (3) The events of November 28
rolling dice and failing to properly perform all her bar- On November 28 Mastriano worked as a bartender on
tender duties. Fava responded to these comments and her normal 11 a.m. to 6 p.m. shift. She was dressed in
Zenich stated that it appeared to him that Fava was har- slacks and a blouse. Brenda Riley came on duty at 3 p.m.
assing Mastriano. Fava also commented that if Mastriano on the afternoon of November 28. Her shift overlapped
was going to get upset "about every little problem" that that of Mastriano and continued on into the night shift of
perhaps Zenich should find her a job somewhere else. Kelly Connell, who relieved Mastriano as bartender at 6
Following some small talk, the meeting ended.23 p.m. Riley had had no previous experience as a cocktail
After his conversation with Fava, Zenich instructed waitress when she entered Respondent's employ at the
Mastriano to meet with him in his office the following end of September 1979. Riley testified that she experi-
morning. Mastriano met with Zenich at approximately 9 enced criticism and disharmony when working with
a.m. on November 22. Mastriano which she did not experience under other bar-
At the outset of the conversation, Mastriano expressed tenders.
the conviction that she was "going to get it" because she On the afternoon of November 28 when Riley report-
had come to the Union's office. Mastriano told Zenich ed to work, she went to the back area of the bar and put
that after he, Zenich, had left the Holiday Inn after her coat away and quickly surveyed the bar area. She
speaking with Fava, Linda Guisinger and Lisa Ziemba observed only a few customers and she then proceeded
had come to her and told her that following Zenich's de- to the restroom. She was gone approximately 3 or 4 min-
parture from the Union Bnuno had gone into the dining utes. As she returned she was informed by a male
room and remarked, "This big-titted broad, all she member of the band that Mastriano was upset with her.
knows how to do is wiggle her ass and roll dice." Mas- Riley approached Mastriano to explain her absence. Mas-
triano stated that in her absence she had had to servetriano produced for Zenich's benefit a napkin on which trano stated thatn her absence she had had to serve
she had entered some abbreviations to assist her in recall- some customers. Riley apologized At approximately 5
p.m., Joaquin (Zorro) Razo and Edith Souza entered theing the contents of Fava's alleged statement.24 In context b a r and oupied a table pro d ith ouza entered t e
bar and occupied a table proximate to the waitress sta-
of this, Mastriano then described in some detail incidents tion located ear oe edo and Souza ar-tion located near one end of the bar. Razo and Souza ar-
of alleged sexual harassment of her by Fava. She further rived at a time when Riley had left the bar area for the
told Zenich that she had resisted these advances, and she purpose of obtaining fresh coffee. It was Riley's normal
expressed the opinion that her rejection of Fava in this routine to obtain a fresh pot of coffee preparatory to the
respect had led to Fava's criticism of her work-related influx of evening customers. At this point in time, ap-
activities and conduct. s Zenich asked Mastriano why proximately 10 or 15 customers were in the bar and
she did not bring these matters to his attention earlier, cocktail lounge. Razo and Souza sat for a time at the
and Mastriano answered that she was afraid of losing her table without being waited upon. Finally, Mastriano
job if she came to the Union. She expressed her convic- went from behind the bar to the table and served a
tion that Fava would find a way to terminate her be- round of drinks to Razo and Souza. She remained at the
cause she had put a hem on her uniform. Zenich instruct- table talking and rolling dice with Razo and Souza. She
ed Mastriano to go to work. He also advised her that if sipped on a glass of wine as she did so. When Riley re-
Fava did terminate her that she should advise Fava that turned with the pot of coffee, she was again told by a
member of the band who was seated in the cocktail
" The foregoing is based upon the credited testimony of Bruno Fava, lounge that Mastriano was upset with her. Thereupon,
as supported in substantive aspects by that of Ted Zenich. As the testi- Riley approached Mastriano and asserted that she had in-
mony of Zenich confirms in essential aspects the testimony of Fava re-
garding the context of their conversation, I find the portion of Fav formed Mastriano that she was going to get coffee. At
pretrial affidavit suggesting that the conversation related solely to the 5:30 p.m., Connell reported to the bar preparatory to
question of uniforms insufficient to warrant a rejection of Fava's testimo- commencing his bartending duties at 6 p.m. Upon enter-
ny concerning this meeting. I specifically credit Fava's testimony that the ing the bar area, Connell walked directly to the waitress
conversation transpired on or about November 21. I have considered the
testimony of Ted Zenich concerning this conversation, and I reject it to station at the bar. As he reached the station, Mastriano
the extent that it is inconsistent with the above findings. I also specifical- approached him from the table area situated in the cock-
ly reject the testimony of Deborah Mastriano to the effect that incident tail lounge proximate to the waitress station. Referring to
to this conversation between Fava and Zenich, Lisa Ziemba came run- Riley, Mastriano called Riley a "bitch" and stated that
ning into the bar and said that Fava was "all upset" at Mastriano because
she had gone to the Union. Not only does this accounting have no other she had been sitting on her ass." Mastrano appeared to
evidentiary foundation but in its recorded context is pure hearsay for the be "upset" or "agitated." Connell detected the odor of
purpose of establishing Fava's asserted resentment against Mastriano for liquor on her breath. Riley overheard Mastriano's com-
having consulted with the Union. ments and he thereafter gave her explanation to Connell
" Mastriano testified that Guisinger and Ziemba had reported Fava's
alleged statement to her soon after it purportedly occurred. Both Gui- regardig her absence from the bar area Connell left the
singer and Ziemba credibly deny this.
" The incidents of sexual harassment alluded to by Mastriano were the " The testimony of Ted Zenich and Deborah Mastriano forms the
subject of her independent testimony. Bruno Fava denies the conduct at- basis for the findings with respect to the substantive content of the meet-
tributed to him. If it occurred, the conduct would have been substantial ing. I do not credit the testimony of Zenich and Mastriano to the effect
and not insignificant in character. that this meeting transpired on November 28.
ll r r- r 28 astria orked as a bartender on
.

,
2
1
e d t o
t o
u t e s A s s h e l
t it .
. -
t t t t i e r
so m e c u s t o m e r s. il l i . t r i t l
l t nt.2 p-m., u in ( r az
o d it t r e t
-. ., , ... .- , . , ., . .bar i trri t il bar a o a t p t t w sta . , -
ll

t
' .
' i
i
P

P
W Up
as s rt i s st tiv aspects by that f Ted enich. s the testi- il y approached astriano and asserted that she had in-
t t t sti f a a re-
t t t t i ars f o r m e d W
c cer i t is eeti . I specifically credit ava's testi ony that the ing the bar area, onnell alked directly to the aitress
st a t o n a t St
Waitr St
t t i rs ti et ee a a and enich, isa ie ba ca e run- iley, astriano called iley a "bitch" and Stated that
" tri
U
Over
i i t t r ft r r l ti t ll
i r rt 's
ardin .
'
.
3 )
ne e oxmte o he a
e
i
HOLIDAY INN OF SANTA MARIA 659
bar and went to the office area to obtain his bank of Fava entered the bar area without prior knowledge of
money for the night shift. This accorded to his normal Mastriano's whereabouts or presence there. He knew
routine. Connell's departure for the office occurred at that she had worked that afternoon and that her shift ter-
approximately 5:40 p.m. In the ensuing several minutes minated at 6 p.m. Fava entered the bar area at approxi-
Mastriano intermittently returned to her work station mately 7:05 p.m. He walked directly to the waitress sta-
behind the bar and mixed drinks. She would then return tion where Connell and Riley were speaking together.
to the table occupied by Razo and Souza. On one occa- Fava did not observe Mastriano's presence in the bar. He
sion, she left that table, went behind the bar, mixed spoke briefly to Connell and Riley and inquired how the
drinks, and handed them across the bar to Razo as he cocktail hour was proceeding. Connell responded and
stood across the bar near his table. Prior to completing then continued his discussion with Riley concerning the
her shift at 6 p.m., Mastriano had taken the proceeds and A and P tab. Fava, who was present, noted that the tab
checks constituting her "bank" from the cash register had a notation indicating that the charges on the check
and had placed the bank on the surface of the working had been made to his A and P account. He commented,
area of the bar near the cash register. Normal routinerically, that he had just come in and Connell an-rhetorically, that he had just come in and Connell an-
would have required Mastriano to take the bank directly
to the office and deposit it there. When he assumed his that he d not ko anythig abot . e sa
bartending duties at 6 p.m., Connell observed Mastriano's that t was not hs and moton tohetable where Mas-
bank resting on the work surface where he normally triano was seated Fava turned and observed Mastrano
placed his liquor bottles. Mastriano remained in the bar seated at a table near the waitress station. He then took
and sat with Razo and Souza at the table they had been the ticket and walked in the direction of the bandstand.
occupying. In the interim, however, she received a tele- Mastriano approached him and asked to speak with him.
phone call from Zenich who asked Mastriano how her Fava listened and Mastriano stated that Riley had let
workday had gone. Mastriano said that the day had been some customers wait unattended for 10 minutes and she
"hectic" and stated that she "did not know what [was] had purchased some drinks for them. Mastriano told
going to happen" when she turned her bank into the Fava, in substance, that Riley had sat and conversed
office. After he assumed his bartending duties, Connell with a member of the band instead of attending to her
observed Mastriano rolling dice. Above the other sounds tables. She referred to Riley as a "broad" and a "bitch."
in the bar, Connell could hear Mastriano's voice and Fava then went to the far end of the bar. He motioned
could also hear laughter coming from the table. A round for Connell to join him there. Connell did so, and Fava
of drinks for Raza and Souza were ordered by Mastriano asked Connell again for a further explanation. Connell
through Riley with instructions to charge the drinks to started to comment but was interrupted by Mastriano
Fava's A and P account.27 Connell was aware that Mas- who walked quickly the full length of the bar from her
triano was off duty, and in his own mind questioned the table to where Fava and Connell were conversing. As
propriety of an off-duty bartender seeking to charge a she approached she addressed Connell and instructed
customer drink to Fava's A and P account. Accordingly, him to tell Fava what she had told Connell earlier. Con-
he questioned Riley, asking her if the charge was intend- nell started to recount for Fava's benefit the statement
ed to go on "Bruno's A and P account." Riley answered which Mastriano had earlier made concerning Riley.
in the affirmative. Connell rang up the order on the However, Mastriano interrupted him, and she spoke in a
ticket. Later, Riley placed another order of drinks for still louder tone of voice. Mastriano repeated the phrase,
the same customers and, in the process of ringing up the "Tell Bruno what I told you," several times in progres-
order, Connell detected an error in the key annotation
specifying the waitress ordering the drinks. Connell Deborah Mastriano and Joaquin Razo and credit it only to the extent that
placed the ticket beside the cash register awaiting an ap- it is consistent with the foregoing findings. I am convinced that Mas-
propriate time to discuss the matter with Riley. This trino engaged in liberal rationalization and exaggeration in testifying
transpired at approximately 6:45 p.m. Mastriano re- concerning this event, and I conclude upon my observation of him as he
transpired at approximately 6:45 p.m. Mastano re testified that Razo, despite his testimony to the contrary, had only a
mained at the table in the bar and her bank remained vague recollection of the precise details of the incidents concerning
behind the bar where she had placed it. Subsequently, at which he testified. Moreover, I am convinced that, contrary to his testi-
approximately 7:05 p.m., Connell had occasion to discuss mony, he was fully aware of Mastriano's interest in the proceeding and
that he testified in a manner designed to assist Mastriano. I reject his tes-the ticket with Riley and in the course of that discussion timony On the other hand, I m convinced upon my observation of Con-
he observed Bruno Fava enter the cocktail lounge nell as he testified concerning salient events that he endeavored to re-
through the main entrance. Fava approached the wait- count the incidents in which he was a participant accurately and without
ress station as Riley and Connell discussed the ticket in bis to the interest of any party. I found him a fully credible and con-
uestion 25 vincing witness. Further, despite his association with Bruno Fava, I am
.~q.5 ~~~~ues...ii~~~on. convinced as I observed him testify that Ray Biggs gave an accurate and
credible description of the activities of Mastriano and Razo which he
" For the purpose of maintaining good customer relations and to serve witnessed in the time period described above. I credit Biggs. Finally, I
the business interest of management, an advertising and promotions ac- conclude that Riley endeavored accurately to recall and describe the
count was maintained. This account, known as "Bruno's tab," or "the events involving her on the evening of November 28. From a composi-
house tab," or the "A and P account," was used for the purpose of ex- tive testimony, I conclude that her accounting is essentially accurate, al-
pressing gratitude to a good customer, or for the purpose of soothing an though I infer that her absence from the bar area during the time period
irate customer with a valid complaint against the quality of service ren- approximating 5 p.m. was longer than she recalled. Finally, I have con-
dered. Some discretion in this regard resides with the bartender. Off duty sidered the testimony of Bruno Fava with respect to the time of his arriv-
bartenders have no authority to charge drinks to the A and P account. al and ingress into the bar area, and as it further relates to the degree of
" The foregoing is based on the credited testimony of John Kelly Con- latitude granted bartenders in the use of A and P tabs. I credit him in this
nell, Brenda Riley, and Ray Biggs. I have considered the testimony of regard.
.
l tine retorically, ll
l i i tl s r t h d
t t ffi it it t r . i t it was n hi a mtoe t tw
t a n o w a s se a te d . F a v a t u rn e d a n d tn
s e at e d a t a t it t ti . t t
.

t. 21
.
,
i t t ti
S Ord
t ri e i n liber l
.-.,.,„ ;.i i „.„„.„ ;„ . :A . M o - *concerning I l r ti f i s transpired at approximately : . . astnian - t ti i
h e w o fth at h e l
. a r ti
Obs r
W
i" t of found h m c redible nd con-
q . 8gvincing ,

i

r
,

o o t e
t
ate
l

v
b i "
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sively louder tones each time. She appeared highly agi- closing it. Through the partially opened door, Mastriano
tated. Connell was unable to complete his statement to said, "I have now got you." In so stating she laughed.
Fava. Connell continued his effort to give an accounting Fava responded, "Get out. Please get out." He was able
to Fava. Mastriano persisted in her loud interruptions to close the door.31
and Fava interjected with the instruction to Mastriano to Soon thereafter, Fava placed a telephone call to the
quiet down and permit Connell to explain. Fava stated Coachman Bar to determine if Ted Zenich was there. He
that he could only listen to one person at a time. Finally, knew that Zenich frequently patronized the Coachman
Connell addressed Mastriano and stated that if she would Bar. He learned that Zenich was at the bar, and he went
"shut up" he would be able to comply with her request. directly to the Coachman and spoke with Zenich. He
Customers where in the bar, and Mastriano's voice had gave his version of the events which had transpired earli-
reached a very high pitch. Finally, Fava raised his voice er that evening resulting in the termination of Mastriano.
and addressed Mastriano. He stated, in substance, that Zenich expressed skepticism that Fava's explanation rep-
she should keep her voice down and speak when she was resented the true reason for terminating Mastriano.
spoken to. He added that he wanted to complete his dis- Zenich told Fava that Mastriano had spoken to him
cussion with Connell. At this point, Mastriano repeated about Fava's harassment of her and proceeded to recount
several times in a very agitated manner the question, several incidents of sexual harassment of Mastriano in-
"What are you going to do, fire me?" In the process she volving Fava. Fava told Zenich that these claims were
touched Fava once or twice on the arm as she spoke. Fi- preposterous. Zenich interjected, ". . . you've been a
nally, Fava responded, "Sweetheart, if that is the way thorn in my side all these years." The dialogue continued
you want it, you're fired. Go." Throughout this interlude with Zenich and Fava exchanging recriminations.32
Riley was standing nearby.2 9 Mastriano responded, "I'll Thereafter, Fava returned to his office and spoke with
get you for this." She repeated this statement and added, Biggs who had come with his wife to the bar for a drink.
"I'll have your ass for this." Fava walked away and as In substance, Fava told Biggs that he felt that he was
he did so Mastriano shouted that she was going to the being "setup" in connection with the termination of Mas-
Union. Fava responded, "Fine. Go ahead." Fava pro- triano. Biggs was a friend both of Fava and of Zenich.
ceeded directly to his office.30 He took it upon himself to contact Zenich and went to
Mastriano walked back to her table and spoke briefly the Coachman to converse with Zenich. iggs communi-
the Coachman to converse with Zenich. Biggs communi-
with Razo and Souza. She informed them that she hadwith Razo and Souza. She informed them that she had cated to Zenich that he had spoken with Fava concern-been terminated. She then went to Fava's office and ing the conversation which Fava had had with Zenich.knockeated oing the conversation which Fava had had with Zenich.knocked on the door. Fava was inside the office seated He asked what could be done to resolve the matter. In
at his desk. He had locked the door. He was upset and
. Upon hearing * substance, Zenich expressed resentment over the fact
was endeavoring to gain his composure. Upon hearing leisure
the knock at the door, Fava walked over to the door, that Biggs would approach him in a bar, during leisure
unlocked it, and opened it. He observerd Mstrno whoo hours, concerning the matter in question. Zenich statedunlocked it, and opened it. He observed Mastriano who that charges had already been filed, and there was noth-
put her foot in the door in order to prevent Fava fromthat charges had already been filed, and there was noth-
ing he could do about it. He expressed his opinion that
the best thing Fava could do was to pay Mastriano off.
" The foregoing findings are based on a composite of the credited tes- He est thing a fc ould do was to pay Matriano off.
timony of Bruno Fava, John Kelly Connell, and Brenda Riley. I have He mentioned a figure of $3,000. Zenich recounted to
carefully considered the testimony of Deborah Mastriano and of Joaquin Biggs the information which Mastriano had imparted to
Razo as that testimony relates to the above incident. I reject that testimo- him concerning the various instances when Fava had al-
ny. Razo was not a credible witness, and Mastriano's recounting of the legedly sexually harassed Mastriano. 3 3
episode impressed me as grossly inaccurate and carefully tailored to omit
details which would redound adversely to her interest. At the same time,
Mastriano's testimony contained embellishments which would place her IV. CONCLUSIONS
actions in the best possible light and distort the conduct of Fava. I spe-
cifically reject Mastriano's testimony on direct examination to the effect A. Prefatory findings
that in the presence of Connell and Fava at the end of the bar she en-
deavored in a totally dispassionate and rational manner to acquaint Fava This cases arises in context of an effort on the part of
with the background of the charges made to his A and P account and Respondent's executive committee and of Bruno Fava,
that he precluded any explanation. Moreover, I specifically reject Mas- th
triano's testimony to the effect that in terminating her Fava said, "Yes, I
know you have already been to the union. You're through." To credit
this testimony would require a conclusion that Fava, Connell, and Riley L The foregoing is based on the credited testimony of Bruno Fava. I
joined in a conspiracy to perjure themselves and concoct a tale destruc- have considered the testimony of Deborah Mastriano to the effect that
tive of Mastriano's interests and supportive of that of Fava. I reject this she actually entered Fava's office, conversed with him, and heard and
notion. Nothing in my observation of these three witnesses supports the observed him place a telephone call to his attorney. I interpret this testi-
thesis and much in the category of evidence and the observations of this mony as a further example of embellishment calculated to place the con-
factfinder is consistent with the conclusion, which I reach, that Mastriano duct of Bruno Fava in the most unfavorable light while strengthening the
conducted herself in the aberrant, agitated, and angry manner found thrust of the case being presented on her behalf.
above. Manifestly, as I observed Mastriano as she testified before me at " I credit that portion of the testimony of Bruno Fava and Ted
the hearing, she is a person easily moved to emotion and the verge of Zenich, which is consistent with the above findings. I specifically reject
tears. If there is present in this proceeding an intentional falsification of the testimony of Zenich to the effect that Fava told him in specific terms
testimony to support vested interest, the tendency, if not propensity, re- that he had terminated Mastriano because she had charged drinks to his
sided with Mastriano. A and P tab. I credit Fava's testimony to the effect that he summarized
3" The foregoing is based on the credited testimony of John Kelly Con- for Zenich's benefit the events leading to Mastriano's termination.
nell and Bruno Fava. I specifically credit the testimony of Connell with " The foregoing is based primarily on the credited testimony of Ray
respect to the remarks which Mastriano made to Fava in response to his Biggs. I have also considered the testimony of Ted Zenich and credit it
statement signifying her termination, to the extent that it is consistent with the above findings.
"1

.
'
.
l t f tri i -
.

32
i r 2 I'111 f
i
'll t i . l
i i ti ti
F , i . G o a h ead ." F av a i i
tl tti t it i lf t t t i t t
t i l t t l n r w . B u... n . „ „. . , ... * , . . um c t Z t h had s w F conce.,
,ee * * > te.1 oi- thi. n to T7a' > c w n i cated to Zenich that he had spoken with Fava concern-
cked on the door. Fava was inside the office seated ing
knocke on' the r. a a as inside the office st .1. e as e at c l be e t res l e t e atter. I
t is s . l t r. t s Z e r o t f, * .* r TT i. * ~~~~substance
. i t Big u aproc h in br i
r r r
t h at B w o ul d 11 h lm l n a b ar ni
the noc at he o rFav waked verto te dor, o rs, co cer i g t e tter i esti . i st t
, . r concesnhag h Z stateh
that l fil , t r t -
l . i
I Th forgoin fiding areba---ona-coposie-ofthecredted es- t st t i l s t tri ff.
" f i fi i it f t r it tc - „ ,*_ mn ioe f u re