Hyatt on Union Square

National Labor Relations Board - Board Decisions

Dec 3, 1982

265 N.L.R.B. 612 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hyatt on Union Square and Marc Norton. Case 20-
CA-15967
December 3, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On May 11, 1982, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the Charging Party
filed exceptions and a supporting brief; and the Re-
spondent filed cross-exceptions and a supporting
brief to rulings made by the Administrative Law
Judge at the hearing, in addition to an answering
brief to the Charging Party's exceptions. '
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
In its cross-exceptions and supporting brief, the Respondent stated
that, if the Board did not adopt the recommended Order, it wished to
except to various rulings made by the Administrative Law Judge in the
course of the proceeding. The Board has no provision for cross-excep-
tions conditioned on its disposition of the case, and, therefore, we have
treated the Respondent's "conditional" cross-exceptions merely as cross-
exceptions. After carefully examining the rulings made by the Adminis-
trative Law Judge we find no merit in the Respondent's cross-exceptions.
Spalding, Division of Questor Corporation, 225 NLRB 946, fn. 1 (1976).
* The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge:
This case was heard in San Francisco, California, on
February 2, 3, and 4, 1982. The charge and amended
charge were filed respectively on January 20 and 23,
1981, by Marc Norton, an individual. The complaint,
265 NLRB No. 90
which was issued on June 26, 1981, alleges that Hyatt on
Union Square, herein called the Hotel, violated Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended.
Issue
The Hotel suspended employee Marc Norton on Janu-
ary 19 and discharged him on January 22, 1981. The
issue is framed by the General Counsel's contention that
the Hotel's action was in reprisal for Norton's protected
activities, including those relating to his position as shop
steward, and the Hotel's contention that Norton was
fired solely for unprotected activity, including cursing at
a supervisor and threatening him with bodily harm.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witness, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, the Hotel,' and the
Charging Party.2
Upon the entire record of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE HOTEL
The Hotel, a California corporation with an office and
place of business in San Francisco, California, is engaged
in the operation of a hotel providing food and lodging
for guests. During the calendar year immediately preced-
ing issuance of the complaint, the Hotel derived gross
revenues in excess of $500,000. During the same period,
the Hotel purchased and received at its San Francisco,
California, facility goods valued in excess of $50,000 di-
rectly from points outside California. The Hotel is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Hotel and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
I In their briefs counsel for the General Counsel and the Hotel request
that the rulings on certain motions they made at the hearing be reconsid-
ered. For the reasons set forth in the record, I believe those rulings were
correct. The requests for reconsideration are therefore denied.
2 Marc Norton filed a brief on behalf of himself. By motion dated
April 15, 1982, counsel for the Hotel seeks an order dismissing the com-
plaint, or, in the alternative, striking Norton's brief in its entirety on the
ground that it constitutes an impermissible attempt to offer testimony
after the close of hearing and contains "hundreds of lies, misleading in-
nuendoes, and absurdities." Even a cursory perusal of Norton's brief does
establish that it contains a great deal of material that is not based on
record testimony or exhibits. I will therefore strike all assertions in that
brief that are not based on record testimony or exhibits. It is so ordered.
Except to that extent, the motion of counsel for the Hotel is hereby
denied.
612
HYATT ON UNION SQUARE
IlI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
1. Background
The Hotel opened for business in 1973. From the be-
ginning it had contractual relations with a number of
labor organizations, including the Union herein. Of its
approximately 500 to 550 nonmanagerial employees only
about 25 are nonunion. In general the Hotel has main-
tained good relations with the labor organizations. The
Hotel is a member of the Hotel Employers Association
of San Francisco, which deals with about 12 labor orga-
nizations, including the Union herein. On July 17, 1980,
the Union undertook a strike against the members of the
,Association. The strike ended about August 15, 1980.
Thereafter, the Association and the Union entered into a
collective-bargaining agreement that was effective from
July 1, 1980, to August 14, 1983. Prior to that contract
there was no provision for the Hotel to deal with shop
stewards. In the negotiations for the contract the Union
requested almost unrestricted activity for shop stewards
during working hours. The agreement that was finally
reached stated that stewards were to discharge their re-
sponsibilities "during working hours provided that there
is no disruption in work and that prior arrangements are
made with the immediate supervisor of the steward and
the employee contacting the shop steward." An under-
standing was reached between the parties that the shop
stewards would attend a training course given by the In-
stitute of Industrial Relations at University of California
Berkeley. In that training course stewards were told that
they were not to leave their work stations in the per-
formance of their duties as shop steward without getting
the permission of their supervisors. They were also told
that a supervisor had the right to refuse to discuss a
grievance at a particular time and that if a supervisor did
so they were to call a business agent. The contract pro-
vided that the number of shop stewards at each hotel
was to be determined by that hotel and the Union. The
Union and the Hotel agreed that there would be 22 shop
stewards. One of those shop stewards was Marc Norton,
the alleged discriminatee.
Norton worked for the Hotel as a dishwasher from
September 1979 until his suspension on January 19, 1981.
During that time he received favorable job evaluations
and he was considered by the Hotel to be a good
worker.
Near the end of December 1979 Lisa Puliafico, who at
that time was an executive steward and a supervisor for
the Hotel, 3 told one of the chefs, Charles Shockley, that
he was to keep an eye on Norton, that Norton was not
going to hang around to win his case,4 and that if
Norton was not performing his duties he should be writ-
ten up.5 Puliafico was three levels removed from the
I The executive steward was a management position in the stewards'
department of the Hotel.
4 From the statements of counsel, it appears that an incident occurred
involving Norton at a Christmas party in 1979 that was resolved by a
settlement agreement.
5 This finding is based on the testimony of Shockley. Puliafico, in her
testimony, denied making those remarks. I credit Shockley.
general manager and she left the Hotel's employ in April
1980, which was before the strike. Norton was given
formal written evaluations on January 30 and December
5, 1980. He received high ratings in both of those evalua-
tions. Taking those evaluations into consideration, there
is no reason to doubt Puliafico's testimony that no one
from the Hotel ever told her to get Norton or to treat
him differently.
Norton was an active union member. In March 1980
he was elected by the employees in the stewards' depart-
ments6 at the Association hotels to the union negotiating
committee. He actively campaigned for that position on
a platform that called for hard-line negotiations and
active preparation for a strike. Beginning May 1, 1980,
he attended 30 or 40 negotiating sessions, some of which
were also attended by John Dixon, the Hotel's general
manager, who was on the Association's committee. At
one meeting Dixon asked who Norton was and at an-
other meeting Dixon accused Norton of spreading lies
concerning the Hotel's contracting out of work. When
the strike began on July 17, 1980, Norton was very
active on the picket line and he was considered by some
to be informal head picket captain. During the strike the
Hotel's food and beverage manager, Elmiger, in a con-
versation with a striker named Tomas Bell, referred to
Norton as a revolutionary.
When the strike ended on or about August 14, 1980,
Norton vocally opposed ratification of the strike settle-
ment agreement. He made his opposition known to both
employees and management by openly speaking about
his position.
After the strike ended Norton was elected shop stew-
ard for the Hotel's stewards' department. In that capac-
ity he processed a number of grievances. He was also a
member of the Union's safety committees He attended
his first safety committee meeting with company officials
on December 29, 1980. At that time he raised a number
of issues.
2. The events of January 18, 1981
On January 18, 1981, Norton worked in the Hotel's
plaza kitchen from 4 p.m. to midnight. His supervisor
was Tomas Rodas. At or about 10:45 p.m. that evening
another employee, Eugene Fletcher, came into the kitch-
en and spoke to Norton. Fletcher worked in the stew-
ards' department of the Hotel and Norton was shop
steward for that department. That evening Fletcher had
been working upstairs in the Hotel in Hugo's One-Up
Restaurant. He told Norton that the manager of the res-
taurant, Michael Minassian, had instructed him to empty
some garbage from behind the bar, that he told the man-
ager that it was not his job, that the manager ordered
him to do it anyway, that he refused to empty the gar-
' The stewards' departments of the hotels consisted of employees who
cleaned the kitchen, washed dishes, and performed like duties.
I When Norton originally asked to be on the safety committee, the
Hotel took the position that he was not eligible. After a discussion be-
tween the Hotel and the Union, Norton and another person were placed
on the safety committee and two people who had been on the committee
were removed from it.
613
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bage, and that the manager called security, suspended
him, and sent him home.8
Norton told Fletcher to wait with the security people
and he then left his work station and went upstairs to
talk to Minassian. His supervisor was not present in the
plaza kitchen at that time and Norton left his work sta-
tion without seeking permission.9
Norton had occasionally in the past left his work sta-
tion without permission to process grievances but there
was no evidence that the Hotel was aware that he had
done so on those occasions.
Norton took the elevator upstairs to Hugo's One-Up
Restaurant and as he was leaving the elevator he met Su-
pervisor Tomas Rodas, who was waiting to enter the ele-
vator. Norton asked Rodas where the manager was and
Rodas responded by saying that he did not know but
that the manager was around. Norton then walked
away. I 0
Michael Minassian was the manager of the Hotel's
Hugo's One-Up Restaurant and as such he supervised
about 25 to 30 employees. He began working at the
Hotel in mid-September 1980, about a month after the
strike ended.
When Norton arrived in the kitchen of the restaurant,
he asked to see the manager. Minassian, who at the time
was having his dinner in the restaurant, was informed
that somebody wanted to see him in the kitchen. He
came out and met Norton. Prior to that time Norton and
Minassian had never seen each other. Minassian had not
even heard Norton's name before that time and they
were complete strangers. Minassian introduced himself as
the manager and Norton introduced himself as Fletcher's
shop steward. In the conversation that followed Norton
kept insisting that Minassian discuss the Fletcher incident
with him and Minassian kept saying that he did not want
to talk about it. Minassian told Norton there would be a
meeting in the personnel office the following day at 3
p.m. concerning the matter and that Norton was more
than welcome to be there but that he did not want to
discuss the matter with Norton then and there. Norton
was intransigent in insisting that they discuss it immedi-
ately but Minassian refused to do so. What happened
after that is a subject of sharp dispute. Five witnesses tes-
tified concerning the incident.
Norton testified that he told Minassian: "I'll see you at
3 o'clock tomorrow and it probably won't be the last
time I'll see you on this if that's going to be your atti-
tude." He denied that he used any profanity or directed
any threats toward Minassian. Norton further testified as
follows. As he was walking away from Minassian, Kath-
erine Carvalho," a cashier who overheard the entire
' Norton testified that he had the impression from what Flecther told
him that Fletcher had asked Minsasian to have a shop steward present. In
fact Fletcher had not made that request to Minassian.
' Norton's supervisor. Rodas, was in the Hotel at the time and he car-
tied a beeper so that he could have been contacted by Norton if Norton
had sought to do so.
10 This finding is baed on the testimony of Rodas. Norton testified
that he told Rodas he wanted to talk to the manager and that Rods
shrugged and said, "Okay." As is indicated below I do not think that
Norton was a reliable witness and I credit Rodas.
" Sometimes referred to by her married name, Katherine LaFranc.
conversation, shouted, "Marc, Marc, now you're doing
it, now you're being insubordinate." At that point Minas-
sian said, "Yeah, yeah, that's right. You were being in-
subordinate. You were threatening me-Now I am going
to get you fired, too. We're finally going to get you."
Minassian's version of the incident was as follows.
Near the end of the conversation Norton started yelling.
Minassian did not raise his voice. Norton came within a
foot of Minassian and said, "Fuck you." Minassian
thought that Norton was going to hit him and he stepped
back. Norton then said, "I'll get even with you later. I'll
get you outside." 1 2
Katherine Carvalho is presently head food and bever-
age cashier and as such she is a management employee.
She was promoted to that position on March 20, 1981.
At the time of the incident in question she was a cashier,
a member of the Union, and a shop steward for the
Union. She overheard the entire conversation between
Norton and Minassian. She testified that Norton used the
"F' word and said to Minassian, "I'll get you outside.
You haven't seen the last of me yet." She also testified
that from her observation of the scene she thought there
was going to be a fight. 13
Richard Esparza was a waiter in the restaurant who
walked into the kitchen from the dining room and heard
at least part of the discussion between Norton and Min-
assian. He was a member of the Union. He averred that
their faces were about a foot and a half apart and he
heard Norton say in what could be a threatening tone of
voice "I'll see you outside, buddy."' 4
Aquiles Aranda was a bus person who was present
during the incident. He testified that Norton became ag-
gressive and looked as if he were going to hit Minassian;
that Norton said "Fuck" and told Minassian that he was
going to take care of him. He averred that he did not see
Norton get closer than 2 feet to Minassian.
'2 Minassian testified that he recalled Norton saying "Fuck you" and
"I'll get you outside" but that he did not have a clear present recollection
of whether Norton said that he would get even. After reviewing a state-
ment he gave shortly after the incident he testified that the statement was
true and that he remembered the incident more precisely at the time the
statement was given. The statement was read into the record as a past
recollection recorded. In that statement Minassian quoted Norton as
saying "Fuck you. I'll get even with you later. I'll get you outside."
n3 A few days later Norton approached Carvalho in the union hall and
accused her of lying. (Before that time she had given a statement to the
Hotel which quoted Norton as saying "Fuck you. I'l fix you later. I'll
get you outside.") She replied, "Marc, knock it off. You know what you
did and you went into a rage and directed filthy language at her in front
of about 24 business agents. She also credibly averred that Bob Jacobs,
the director of he business agents, took Norton by the arm and shoved
him out of the door saying ". .. we won't tolerate such language to any
woman or to anybody here in the union hall." Not long thereafter, Car-
valho allegedly made some derogatory remarks about Norton to Tomas
Bell. However, even if those remarks were made, there is no basis for
concluding that Carvalho's testimony at the hearing was based on a biss
against Norton. If there was a bias it can easily be attributable to Nor-
ton's outburst at the union hall and before that happened she had given a
written statement that was substantially the same as her testimony at the
hearing. At the time she gave that statement she shared a substantial
community of interest with Norton. They were both rank-nd-file em-
ployees, they were both union memben, and they were both shop stew-
ards.
14 Esparz gave a statement shortly after the incident in which he
stated that Norton cursed at Minasan. That part of the statement was
read into the record as a past recollection recorded.
614
HYATT ON UNION SQUARE
I have little hesitation in crediting Minassian's version
of the incident over Norton's. Norton's assertion that
Minasaian, after being prompted by shop steward Car-
valho, said, "Yeah, yeah, that's right. You were being in-
subordinate. You were threatening me-Now I am going
to get you fired, too. We're finally going to get you,"
was not believable. Minassian had never met Norton
before and did not even know his name. I believe that
Norton put words in Minassian's mouth that were never
said or implied by Minassian and that as a result Norton
has destroyed his credibility. Minassian was a convincing
witness when he testified and three witnesses who over-
heard the conversation substantiated the basic tenor of
his testimony. The General Counsel and the Charging
Party argue that disparities in the testimony of those
three witnesses undermined their credibility. However,
those disparities were more easily attributable to differ-
ences in individual perceptions rather than to any basic
variations that would undermine Minassian's credibility.
In sum, I find that Norton left his work station without
the permission of his supervisor, that he insisted on dis-
cussing a grievance with Minassian right there and then
when Minassian said that the matter would be discussed
in personnel at 3 o'clock the next day, and that, when
Minassian continued with his refusal to discuss the griev-
ance, Norton lost his temper, acted in such a way that
Minassian thought that he was going to hit him, and said,
"Fuck you," "I'll get even with you later," and "I'll get
you outside." That action constituted not only gross in-
subordination but a threat of physical violence to Minas-
sian.
3. The suspension and the discharge
On the evening of January 18, 1981, Minassian called
Henry Diaz, the Hotel's personnel director, at Diaz'
home. He reported to Diaz the details of his encounter
with Norton. Diaz told Minassian to write everything
down and leave the report in his mailbox. Minassian
wrote out the details in longhand and in that memoran-
dum stated that Norton had told him "Fuck you. I'll get
you outside." The memorandum goes on to state,
"Henry, please note: This type of humiliation I will not
tolerate from an employee or anyone else. I expect some
type of action taken, and I will help you to do so ... ."
At I p.m. on January 19, 1981, which was the follow-
ing day, Diaz took a more detailed statement from Min-
assian. In that statement Minassian quoted Norton as
saying "Fuck you. I'll get even with you later. I'll get
you outside." Minassian also gave the names of various
witnesses.
Norton went into Diaz' office about 3 p.m. on January
19, 1981. Diaz gave him a letter stating that he was sus-
pended until further notice pending investigation of "a
charge of misconduct, including use of vulgar, abusive,
and threatening language, to management personnel."
The letter requested Norton's attendance at a meeting
scheduled for January 20, 1981, to discuss the charges
and to determine any possible discipline or discharge.'
"5 In that January 19 meeting Diaz slso gave Norton a warning notice
relating to an allegedly unauthorized leaflet that had been put on the
Hotel's bulletin board. That leaflet said, "Hi, my name is Marc Norton,"
but Norton denied to Diaz that he had posted it even though he admitted
Diaz secured a number of statements from employees
who had witnessed the January 18 incident. On January
19 Diaz spoke to union shop steward Carvalho who
signed a statement saying that Norton had told Minassian
"Fuck you. I'll fix you later. I'll get you outside." On
January 20 Diaz spoke to bus person Aquiles Aranda
who signed a statement saying that: "I was scared; I was
ready for anything, for trouble. Mike [Minassian] was
trying to be nice; he tried to keep the conversation nice."
The statement also quotes Norton as saying "What the
fuck do you think you are .... Fuck . . . (pointing at
Mike [Minassian]) you're going to see what's going to
happen to you from all this." On January 19 Diaz also
spoke to Norton's supervisor, Rodas, who told him that
he had not given Norton permission to leave his work
station the previous evening.
The meeting between Diaz and Norton was postponed
and took place on January 22, 1981. Union business
agent Colin Piper also attended as did Assistant Person-
nel Director Edie Robinson. Diaz said that Minassian
had reported that Norton had said, "Fuck you. I'll get
even with you. I'll get you outside," and he asked
Norton for his version of the incident. Norton denied
making any of those remarks to Minassian. At the end of
the meeting Diaz asked Norton to come back at 3 p.m.1 6
Later that day Diaz discharged Norton. Norton was
given a written statement which indicated he was dis-
charged for violation of house rules relating to "(1)
threatening a manager (2) disrespectful conduct, using
vulgarity to a manager (3) leaving your work area with-
out permission (4) failure to make prior arrangements
before discharging your duties as shop steward." The
discharge memorandum also indicated that Norton had
told Minassian "Fuck you. I'll get even with you later.
I'll get you outside."
After Norton was discharged a request was made that
he be reinstated. Pursuant to that request Diaz made a
further inquiry concerning the January 18, 1981, inci-
dent. On January 24 he spoke to Esparza, the waiter
who had witnessed the incident. Esparza signed a state-
ment which said: "Marc [NortonJ really started yelling at
Mike [Minassian], standing very close to him. I heard
Marc say to Mike 'I'll see you outside, buddy.' He
cursed Mike. I don't recall what the word was, but he
definitely cursed at Mike." Diaz decided not to reinstate
Norton.
4. The treatment of other discharged employees
The Hotel has an employee manual which it distrib-
utes to all its employees. That manual lists 14 actions by
employees that are considered just cause for immediate
suspension, and, pending review, dismissal. Included in
such actions are ". . . threats of any kind against guests,
supervisors or fellow employees," and "disrespectful
at the hearing that he had posted it. (Norton testified that he simply re-
fused to say whether he posted it while Diaz testified that Norton denied
posting it. As between Diaz and Norton, I credit Diaz.) As a result of
that denial the warning notice was withdrawn. There is no allegation that
the warning notice constituted a violation of the Act.
I" Norton testified that Diaz told him that the executive committee
would make a decision. Diaz testified that the decision was his and that
executive committee did not meet that day. I credit Diaz.
615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct; using vulgarity or failing to give a high degree
of service and courtesy to any guest or supervisor." In
another section of the manual there is a list of acts which
are considered just cause for remedial actions which
could involve reprimand, suspension, or dismissal.
Among those actions are "leaving your department or
work area without permission from your supervisor;
being in other than your assigned work area without au-
thorization."
There was extensive testimony concerning all of the
employees terminated in the 2 years preceding the hear-
ing. There were 26 such terminations. There were dis-
charges for making unsolicited advances to a guest, for
insubordination and cursing at a supervisor, for leaving
work early and returning to the hotel as an uninvited
guest at a guest's party, for being tardy less than 10
times, for stealing a box of mints valued at less than $5,
for returning late from a scheduled vacation, and for a
wide variety of other reasons. Most of the discharges
were for misconduct far less serious than that of Nor-
ton's. A review of the details of those discharges makes
it quite clear that Norton was not singled out for unusu-
ally harsh treatment. Diaz credibly testified that after ex-
amining the Hotel's records he was unaware of any situa-
tion where an employee threatened a supervisor in front
of employees except for the case of Norton and another
employee named Ramadan. Ramadan was discharged for
that offense in 1978.
In sum, the General Counsel has not shown that
Norton was subjected to disparate treatment because of
any protected activity on his part.
B. Analysis and Conclusions
Norton was active in internal union affairs, was one of
a number of employees on the Union's negotiation com-
mittee, was active in the July 17 through August 15,
1980, strike, was one of the union representatives on the
safety committee, and was one of 22 shop stewards.
However, the General Counsel has not established that
the Hotel was hostile toward employees who engaged in
such activities. The evidence in the record establishes
that the Hotel had a good working relationship with
labor organizations, including the Union herein. There is
also little to establish that the Hotel harbored the type of
animus against Norton that would give it motivation to
discharge him because he engaged in such activities.
Indeed, the formal written job evaluation of December 5,
1980, just a month and a half before his discharge, indi-
cated that the Hotel thought Norton was a very desir-
able employee. If the Hotel were trying to set Norton up
for discharge it is most unlikely that the evaluation
would have been so favorable. Personnel Director Diaz,
who made the decision to discharge Norton, testified
that the sole reason for the discharge was Norton's con-
duct on January 18, 1981. I believe that testimony.
On January 18, 1981, Norton left his work station
without permission in order to confront a supervisor
with a grievance. That was done even though the collec-
tive-bargaining agreement provided that a steward could
discharge his responsibility during working hours only
when there was no disruption of work and where prior
arrangements had been made with a supervisor. Norton
insisted on discussing the grievance with Supervisor
Minassian even after Minassian refused to discuss it at
that time and place and after Minassian invited Norton to
attend a meeting about the grievance at 3 p.m. the fol-
lowing day in the personnel office. When Minassian con-
tinued with the refusal to discuss the grievance Norton
acted in such a way that Minassian thought that he was
going to hit him and Norton said, "Fuck you," "I'll get
even with you later," and "I'll get you outside." That
constituted gross insubordination and a threat of vio-
lence.
A shop steward engages in protected activity when he
processes a grievance. There is some question as to
whether a shop steward's insistence that a grievance be
discussed at a particular time and place chosen by that
shop steward is also protected. However, even if we
assume that such an insistence is part of the protected ac-
tivity, I do not believe that the General Counsel has es-
tablished his case.
There are some situations where conduct which is not
ordinarily protected by the Act is so intertwined with
protected activity that discipline for the unprotected ac-
tivity will have such a chilling effect on the protected
activity that even the unprotected activity cannot be
used as a basis for discipline. In such situations, the pro-
tected and the unprotected activity are in effect merged
together under a "res gestae" or "animal exuberance"
theory. Thus, a shop steward cannot be disciplined for
questioning the credibility of a management official if
that questioning takes place in the context of a debate
over a grievance. Crown Central Petroleum Corporation,
177 NLRB 322 (1969); Bettcher Manufacturing Corpora-
tion, 76 NLRB 526 (1948). In a similar vein, in some cir-
cumstances the use of obscene language in the course of
the processing of a grievance cannot be used as a basis
for discipline. Illinois Bell Telephone Company, 259
NLRB 1240 (1982); United States Postal Service, 250
NLRB 4 (1980); Firch Baking Company, 232 NLRB 772
(1977); Webster Clothes, Inc., d/b/a Webster Men's Wear,
a subsidiary of Beck Industries, Inc., 222 NLRB 1262
(1976). However, Norton's conduct in the instant case
was much more serious than the conduct of the employ-
ees in the cases cited above. His conduct involved un-
provoked, gross insubordination and a threat of violence
that was so disruptive of the Employer's right to main-
tain order and discipline that it could not be justified in
any legitimate balance between that right and an employ-
ee's right to engage in impulsive behavior related to pro-
tected activity. Nor can it be said that proscription of
that type of conduct by an employer will have an unduly
chilling effect on the processing of grievances. The
Board has refused to find a violation where discipline has
been imposed on shop stewards who engaged in far less
serious conduct than that of Norton. In New Process
Gear, Division of Chrysler Corporation, 249 NLRB 1102,
1108 (1980), the Board affirmed the Decision of Adminis-
trative Law Judge George Norman who held that an
employer did not violate the Act by disciplining a stew-
ard who made personal attacks on foremen, resorted to
obnoxious obscenities, and refused to follow established
procedures in an orderly manner to the point of insubor-
616
HYATT ON UNION SQUARE
dination. Similar findings have been made where an em-
ployee disobeyed an order to stop shouting about a
grievance. Calmos Combining Co., 184 NLRB 914 (1970);
Charles Meyers & Company, 190 NLRB 448 (1971).
In Fibracan Corp., 259 NLRB 161 (1981), the Board
held:
[W]e adopt the Administrative Law Judge's finding
that employee Van Nostrand was lawfully dis-
charged for her use of profane language on March
16 and 21, and that absent her use of profanity there
was no reason for Plant Manager Minton to single
her out from the other nine employees who also
walked out on March 16 and whose employment
Minton continued. As more fully described by the
Administrative Law Judge, Van Nostrand directed
profanity against the plant manager at the meeting
preceding the March 16 walkout and again at the
March 21 interview to discuss her continued em-
ployment, when after being specifically informed by
Minton that he found her earlier use of abusive lan-
guage objectionable, she replied by repeating the
prior profanity. We find this repeated and blatant
use of profanity in reply to a supervisor's statement
of its objectionability amounted to insubordination.
Consequently, the Respondent's response was a
lawful exercise of its rights to maintain order and
respect. See N.L.R.B. v. Thor Power Tool Company,
351 F.2d 584 (7th Cir. 1965), enfg. 148 NLRB 1379
(1964). Thus, even taking into full consideration the
context in which these remarks were made, we find
that this intentional insubordination is sufficiently
egregious to remove Van Nostrand's activities from
any protection they might have otherwise enjoyed.
See New Process Gear, Division of Chrysler Corpora-
tion, 249 NLRB 1102, 1108-09 (1980); Calmos Com-
bining Co., 184 NLRB 914, 914-915 (1970).
If there was no violation in those cases, a fortiori, there
was no violation in the instant case. I therefore recom-
mend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
I. The Hotel is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has not established by a pre-
ponderance of the credible evidence that the Hotel vio-
lated the Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '17
The complaint is dismissed in its entirety.
17 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
617