Marriott Corp.

National Labor Relations Board - Board Decisions

May 26, 1976

224 N.L.R.B. 128 (N.L.R.B. 1976)

128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marriott In-Flite Services , Inc, a Division of Marriott
Corporation and Local 481 , Production, Industrial,
Technical, Miscellaneous and Amalgamated Work-
ers Union Case 29-CA-4190
May 26, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On July 24, 1975, Administrative Law Judge Wal-
ter H Maloney, Jr, issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel submitted a brief in support of the Decision and a
brief in reply to Respondent'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, findings,[ and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order
In agreement with the Administrative Law Judge
and for the reasons set forth by him, we, unlike our
dissenting colleague, find that Respondent dis-
charged employees Connell Nicholson and Eaker
Collins in violation of Section 8(a)(3) and (1) of the
Act
Nicholson was a long-time employee with a virtu-
ally unblemished record As more fully detailed by
the Administrative Law Judge, Nicholson was active
in the union campaign which began at Respondent's
facility in late November or early December Re-
spondent was aware that Nicholson supported the
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board s established policy not to over-
rule 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 Products Inc 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3 1951) We have carefully
examined the record and find no basis for reversing his findings
2
Respondent has excepted to the Administrative Law Judge s conclusion
that Rardon during the course of his interrogation of Nicholson asked
Nicholson if any management representatives had seen him passing out
union cards Our review of the record indicates that there is insufficient
evidence to substantiate a conclusion that either Rardon or the other inves-
tigator , Bornoty, interrogated Nicholson about his union activities and
therefore we do not find that Respondent violated Sec 8(a)(1) of the Act by
such conduct In addition in concluding that Respondent violated Sec
8(a)(1) by its coercive interrogation of Collins we do not attach any signifi-
cance to the fact that this interrogation occurred late at night We note that
Collins was interrogated after he finished his night shift and therefore the
late hour of the interrogation was not unreasonable under the circum
stances
Union About 2 or 3 weeks before his termination,
Nicholson had a conversation with Respondent's as-
sistant manager, John Savage, during which Savage
asked Nicholson what he thought of the Union Ni-
cholson replied that he thought it was good Savage
told him that if the Union got in the employees
would lose their present profit-sharing benefits and
their credit union 3 Nicholson was constructively dis-
charged 4 on January 6, 1975, following an interview
conducted by two professional investigators, William
R Rardon and George Bornoty During that inter-
view Nicholson was questioned at length concerning
possible thefts of food and liquor He admitted that
on one occasion a driver had come into the commis-
sary with a pail containing four or five miniatures of
liquor and had asked him to take the pail and put it
in the pantry for some other employees Nicholson
did so, leaving them on a table in the back of the
room During the course of the interview, Rardon
told Nicholson that his supervisor stated he deserved
to be fired Nicholson asked why he should be fired
and pressed Rardon for an answer, "Fired for li-
quor " Rardon said, "No, not for the liquor " Rardon
left the room and when he returned he offered Ni-
cholson the choice of resigning or being fired Ni-
cholson requested, and was denied, permission to
speak to his supervisor or to make a telephone call
Nicholson decided to resign Immediately after the
resignation, when Nicholson asked the shop general
manager, John McConnell, why he was being fired,
McConnell told him he had done a "dumb thing at
the wrong time " McConnell refused to tell Nichol-
son what "dumb thing" he had done
Thus, Nicholson was a long-time employee of Re-
spondent with an excellent record He was active on
behalf of the Union and Respondent was aware of
his support of the Union Nicholson did admit to
certain facts which may indicate that he was guilty of
an indiscretion with respect to the handling of liquor
However, Respondent at the time of its discharge of
Nicholson specifically stated that he was not being
discharged for this reason 5 Yet Respondent does not
assert any other basis for the discharge, and since the
discharge was not because of any mishandling of li-
quor, we conclude that it was because of Nicholson's
union activities This conclusion is supported by the
fact that McConnell, in stating that Nicholson was
discharged for doing a "dumb thing," refused to be
more specific If the dumb thing constituted a legiti-
3 The Administrative Law Judge finds in our opinion correctly that this
threat of loss of employee benefits violated Sec 8(a)(1) of the Act and that
the questioning of Nicholson by Savage on this occasion also constituted a
violation of Sec 8 (a)(1) of the Act
4 There is no contention that Nicholson s resignation was voluntary
5 Our dissenting colleague in finding that Nicholson was discharged im
mediately following an admission that he had pilfered property completely
ignores this fact
224 NLRB No 26
MARRIOTT IN-FLITE SERVICES 129
mate basis for discharge McConnell undoubtedly
would have clearly disclosed the nature of this al-
leged misconduct It is further supported by the fact
that Respondent refused to permit Nicholson to
make a telephone call or consult with his supervisor
prior to making his decision with respect to signing
the resignation letter We conclude, in agreement
with the Administrative Law Judge, that Respondent
violated Section 8(a)(3) and (1) by constructively dis-
charging Nicholson
Collins was also a long-time employee of Respon-
dent He, like Nicholson, had made his prounion sen-
timents known to Respondent Thus, sometime in
December, Israel "Buddy" Lee, Marriott's personnel
director from its Washington, D C, headquarters,
asked Collins what he thought about the Union Col-
lins indicated that he was for it Sometime later, Col-
lins told Shop Supervisor Juan Rodriquez that he
was going to vote for the Union because "we need a
Union here " Collins also voiced the same prounion
sentiments to McConnell As early as June and July
1974 Respondent had received reports indicating
that Collins might be taking food or liquor home
with him Respondent continued to receive some re-
ports of this nature, as fully detailed by the Adminis-
trative Law Judge, throughout the period prior to
Collins' suspension on January 6, 1975, and his sub-
sequent discharge On January 6, 1975, Collins was
interviewed by investigator Rardon Collins was
asked about the theft of liquor and food, Collins did
admit that he had taken two miniatures from an in-
coming flight and drank them Rardon also asked
Collins what he thought of the Union, and Collins
replied that he thought it was a good thing for a
working man and that the employees needed a union
to get any place in a shop like Shop 375 6 Following
the interview, Collins was suspended for 2 days and
then, immediately following the suspension, dis-
charged
Thus, Collins, a long-time employee and a known
union supporter, was suspended and discharged for
activity which Respondent had tolerated for months
prior to that time That Collins' support of the Union
played at least a part in Respondent's decision to
suspend and discharge him is demonstrated by the
fact that these actions occurred immediately follow-
ing Respondent's coercive interrogation of him as to
his continued support of the Union When Collins
responded with statements of continued support for
the Union he was suspended and discharged I We
find in agreement with the Administrative Law Judge
6 We agree with the Administrative Law Judge that this interrogation
violated Sec 8(a)(1) of the Act
7 Although our dissenting colleague agrees the questioning was unlawful
he ignores the fact that the discharge occurred immediately thereafter
that Respondent' s actions resulted, at least in part,
from Collins' support of the Union Therefore, we
find that the suspension and discharge violated Sec-
tion 8(a)(3) and (1)
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 Respondent, Marriott In-Fhte Serv-
ices, Inc, a Division of Marriott Corporation,
Queens, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order
MEMBER JENKINS, concurring in part and dissenting
in part
Although I agree with my colleagues that Respon-
dent engaged in independent violations of Section
8(a)(1) of the Act, in the manner and to the extent
indicated in the majority opinion, I do not agree with
their findings that the discharges of Collins and Ni-
cholson violated Section 8(a)(3) of the Act In my
judgment, the record supports Respondent's conten-
tion that these two employees were fired because it
believed they were pilfering property of its customers
for which Respondent was the responsible custodian
The fact that union activity is in progress when an
employer has reasonable ground to believe that its
employees are involved in theft of company property
should not obscure the fact that the employer has a
right to take appropriate disciplinary actions against
the suspected offenders In the past, the Board has
not denied an employer this right to protect its busi-
ness by discharging employees who have misappro-
priated company property 8
The record indicates, and the Administrative Law
Judge so found, that the Respondent had experi-
enced "a longstanding and continuing problem of
theft of food and liquor " Both Respondent and its
customers took various measures in hopes of secur-
ing the food, beverages, and liquor entrusted to
Respondent's care When John McConnell became
general manager of Shop 375 in June 1974, his para-
mount concern was to do something about the prob-
lem of pilferage at this location At that time, several
rigorous security measures were adopted But reports
of thefts of both food and liquor continued In fact,
as early as June or July 1974, several rank-and-file
employees reported to McConnell that Collins was
taking food and liquor home with him Because
8 See for example Allstate Insurance Company 209 NLRB 565 (1974)
F W Woolworth 204 NLRB 396 (1973) and Saxon Paint Stores Inc et
al 160 NLRB 1757 (1966)
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thefts of company property persisted, McConnell, in
August 1974, arranged for an undercover agent to be
placed in the shop The agent's reports of October
and November identified Collins as an offender and
in December the agent reported an incident where
Nicholson appeared to have misappropriated proper-
ty Throughout this time, McConnell was in contact
with his superiors about the problem of pilferage
In early January 1975, Respondent engaged the
services of two trained polygraph examiners to con-
duct investigations of the thefts Approximately 12 or
13 employees were interviewed and as a result of this
investigation, 7 employees were terminated, includ-
ing Collins and Nicholson Out of seven employees,
three were fired and four resigned in lieu of being
discharged Only Collins and Nicholson are alleged
to have been discharged for discriminatory reasons
After the polygraph interviews were completed,
Respondent had what it considered to be sufficient
evidence of Collins' and Nicholson's offenses The
credited testimony shows that, during their inter-
views with the polygraph examiners, Collins admit-
ted appropriating liquor for his own use and Nichol-
son admitted providing liquor to other employees on
at least one occasion I do not find, as did the Ad-
ministrative Law Judge, that the mere fact that Ni-
cholson apparently does not drink liquor himself ex-
cuses his actions Respondent's obvious concern was
not with the eventual use of the pilfered property, but
the fact that employees entrusted to use food and
liquor in the service of Respondent's customers mis-
appropriated this property for illicit purposes
It is evident that as soon as Respondent learned
that Collins and Nicholson admitted their participa-
tion in the pilferage, which admissions corroborated
earlier reports of their improper activities from other
employees as well as the undercover agent, Respon-
dent disciplined them immediately Respondent's ac-
tions were taken after a long and extensive investi-
gation This investigation also resulted in the
terminations of five other employees The record in-
dicates that the polygraph interviews which culmi-
nated the investigation occurred at least a month af-
ter the Union's organizational efforts began and not,
as the Administrative Law Judge found, at the mem-
bership drive's inauguration Although it is not de-
nied that Respondent knew generally that such an
organizational campaign was in progress, such
knowledge alone is not sufficient to impute an un-
lawful motivation to Respondent's actions On the
basis of the credited evidence, I find it far more plau-
sible that Collins' and Nicholson's terminations were
a direct result of Respondent's serious concern with
thefts of property for which it was responsible and its
knowledge that Collins and Nicholson were among
those employees who were believed to be responsible
for the problem
Accordingly, I would dismiss the complaint inso-
far as it alleges that the discharges of Collins and
Nicholson violated Section 8(a)(3) of the Act
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H MALONEY, JR, Administrative Law Judge
This case came on for hearing at Brooklyn, New York,
upon a complaint I issued by the Regional Director for
Region 29, alleging that the Respondent Marriott In-Flite
Services , Inc, a Division of Marriott Corporation ,2 violat-
ed Section 8(a)(1) and (3) of the Act More particularly, the
complaint alleges that the Respondent interrogated em-
ployees with respect to their sympathies and activities in
support of Local 481, 3 threatened employees with loss of
benefits if they supported Local 481, and, on January 6
and 9, 1975, discharged Connell Nicholson and Eaker Col-
lins, respectively , because of their union sympathies and
activities The Respondent denies the commission of the
independent violations of Section 8(a)(1) which are alleged,
and asserts that both Nicholson and Collins were dis-
charged for theft, although in the case of Nicholson the
Respondent is imprecise about which incident or incidents
of theft was the precipitating cause of Nicholson's dis-
charge 4
A The Events in Question
Respondent caters in-flight meals and related services to
i The principal docket entries in this case are as follows charges filed by
Local 481, Production , Industrial , Technical , Miscellaneous and Amalga
mated Workers Union (herein called Local 481 or the Union ) on January
16 1975 complaint issued on March 20 , 1975, Respondents answer filed
on April 2, 1975, hearing held in Brooklyn, New York, on April 30 and May
I and 2 1975 , briefs filed by the General Counsel and the Respondent on
June 16 1975
z Respondent is a Delaware corporation which operates a commissary for
the preparation of meals and for related services for airlines at 49th Street
and Astoria Boulevard in Queens New York and at various other points
and places in the United States Its Astoria , Queens, commissary services
airline flights to and from LaGuardia Field During the preceding year
Respondent purchased and caused to be shipped to its Astoria , Queens,
location , from points and places outside the State of New York, goods
valued in excess of $50,000 Respondent is an employer engaged in com-
merce within the meaning of Sec 2 (2), (6) and (7) of the Act and the Board
has so held in earlier cases relating to this same location See 192 NLRB 379
(1971) 209 NLRB 478 (1974)
' At the hearing the Respondent challenged the status of the Union as a
labor organization within the meaning of the Act but later abandoned this
challenge The uncontradicted record evidence in this case shows that Local
481 represents employees in collective bargaining with various employers
with respect to wages, hours , and terms and conditions of employment that
it has contracts with employers covering various employees and relating to
these subjects, and that it processes grievances in bargaining units where it
serves as a bargaining agent on behalf of persons employed in such units
Accordingly I find that Local 481 Production Industrial Technical Mis-
cellaneous and Amalgamated Workers Union is a labor organization within
the meaning of Sec 2(5) of the Act
4 Errors in the transcript have been noted and corrected
MARRIOTT IN-FLITE SERVICES 131
various airlines at a number of major airports located
throughout the United States it operates a kitchen or com-
missary, called Shop 375, at 49th Street and Astoria Boule-
vard in Queens, New York, a short distance from LaGuar-
dia Airport At this location, it employs about 300 people
to service air flights by two of its clientele, Eastern Air
Lines and Delta Air Lines At this location, food is re-
ceived, stored, cooked, and transported along with alcohol-
ic beverages, to departing flights Marriott stores at this
location various kinds of liquor, principally hard liquor
bottled in miniature bottles, which is the property of East-
ern Air Lines and which is loaded aboard Eastern flights in
metal sleeves, or containers, which are designed for this
purpose Marriott also stores at Shop 375 a supply of beer,
wine, and champagne for both Eastern and Delta Like the
liquor miniatures, these are supplies belonging to the air-
line clients for which Marriott is accountable Part of the
responsibility of the Marriott employees assigned to Shop
375 is to unload both garbage and unused food and bever-
ages from Eastern and Delta flights which land at LaGuar-
dia
Late in November or early December 1974, Local 481
began an organizing drive to enlist membership among the
drivers, helpers, and various classes of cooks employed at
Shop 375 This is the third organizing effort to be conduct-
ed involving this shop in the past 4 years, although it is the
first drive by Local 481 5 The Union evidenced its intention
by leafleting employees from time to time in front of the
commissary, giving cards to employees both for their own
signatures and for distribution to other employees, and by
speaking to arriving and departing employees from in front
of the plant with the use of a bullhorn It has maintained
this effort from time to time from late in the fall of 1974 up
to the hearing in the instant case
At Shop 375, Respondent has experienced a longstand-
ing and continuing problem of theft of food and liquor
Inventories of liquor kept on Marriott premises frequently
have not tallied properly when periodic counts were made
by its airline clientele Airline food services representatives
testified that, upon making periodic inspections of
Marriott's trucks and its premises, they frequently noticed
both full and empty bottles and cans of various kinds of
alcoholic beverages lying about in various places, and have
often brought these matters to the attention of
Respondent's management To reduce the pilferage of al-
coholic beverages, both Marriott management and the air-
lines took various measures designed to improve security in
the handling of both alcoholic beverages and other items
Beer, wine, and champagne to be taken aboard Delta
flights from the Marriott commissary are now inventoried
before being removed from the cooling boxes which are
used to transport them from the commissary to the planes
Locks were changed on the refrigerators where steaks are
stored prior to cooking, as well as on the refrigerator where
beer and wine are stored Shortly after John P McConnell,
the present general manager of the shop, took over in June
1974, he instituted a practice of making unannounced visits
to portions of the building, instituted a single entrance for
employees to improve security, and distributed a letter,
signed by Regional Vice President Robert Tozzi, pointing
out to all employees the difficulties which the Respondent
was experiencing because of theft and asking the coopera-
tion of employees in reporting any pilferage of company
property which they observed Despite these efforts, the
handling of alcoholic beverages at the commissary prem-
ises was still loosely done
Marriott Corporation owns Marriott Security Systems,
Inc, a large detective agency which provides security serv-
ices not only to the Marriott chain but to a large number of
outside customers In August, Respondent engaged Mar-
riott Security Systems to plant an undercover agent in
Shop 375 to seek out and report evidence of theft or misuse
of company property by company employees, as well as
drinking or use of narcotics on the job by Marriott employ-
ees Marriott Security Systems, Inc, placed Jose Machado
in Shop 375 as a night-shift employee for the purpose of
ascertaining the identity of persons responsible for the con-
tinuing theft of food and alcoholic beverages He normally
worked from 1 30 a in until 9 a in each day As discussed
later in detail, Machado made daily written reports to Mar-
riott Security headquarters in Miami, Florida, which were
then forwarded from Miami to Regional Vice President
Tozzi Machado regularly engaged in this activity from late
August 1974 until January 1975, when seven employees at
Shop 375, including the two discriminatees named in the
complaint, were terminated
Eaker Collins, one of the two discriminatees, was em-
ployed by the Respondent as a truckdriver for a period of
about 4 years It was his responsibility to drive one of
Marriott's specially equipped trucks from Shop 375 about
a quarter of a mile to the LaGuardia terminal and then,
with his helper, to place prepared meals and containers of
liquor aboard outgoing flights He and his helper were also
responsible for unloading dirty dishes, unused food, and
alcoholic beverages from incoming flights So-called in-
bound milk and pastry was and is discarded as garbage,
even though it might not have been touched by airline pas-
sengers Alcoholic beverages were supposed to be returned
to the storage room at the commissary, although occasion-
ally bottles were left in the pantry or elsewhere before re-
turn to the storage room At the conclusion of a workday,
Collins left his truck either in the parking compound at the
commissary of on the street dust outside the entrance to the
premises He normally worked from 2 30 until 10 30, al-
though his workday varied slightly from these hours, and
he occasionally worked overtime, depending on the sched-
ule of incoming flights 6
From the time McConnell assumed his present responsi-
bility as general manager of the shop in 1974, Collins was
under suspicion of minor theft of food and liquor As early
as June and July 1974, several rank-and-file employees re-
ported to McConnell that they had personally seen Collins
take food or liquor home with him Various daily reports
forwarded to the Respondent by Machado also mentioned
Collins by name Machado's report of October 21 stated
that he observed Collins remove a large paper bag from the
'See Marriott In F&te Services 192 NLRB 379 (1971) and 209 NLRB
478 cited supra
6 Despite Collins protestations to the contrary it seems clear beyond
peradventure that he frequently worked as late as 2 a in
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck Collins was driving and put it into his parked car
Machado noted that he caught a glimpse of five or six cans
of Budweiser beer on top of the bag The following week,
Machado reported in his written report of November 7 that
he saw Collins, who was in the process of unloading his
truck at the commissary, load a paper bag containing prop-
erty of the airlines , including a bottle of wine and a bottle
of champagne Machado reported that he observed Collins
on earlier occasions park his truck near his parked car, go
to the car, and then return to the truck and park it in the
parking area He reported that he was unable to see what
Collins did at his car on these occasions In a third report,
dated November 15, Machado reported that he had heard
from other employees that Collins regularly took large
numbers of liquor miniatures and wine home with him
Collins stated that he does not drink alcohol, and never
took anything home with him other than inbound milk,'
and on occasion, the evening meal which is prepared and
served at the cafeteria in an aluminum casserole to all Mar-
riott employees,8 but which on occasion he was too busy to
consume during his shift
Sometime in December, Israel "Buddy" Lee, Marriott's
personnel manager from its Washington, D C, headquar-
ters, was present at Shop 375 in one of his periodic visits
Collins was acquainted with Lee from previous visits which
Lee had made to the premises Lee asked Collins what he
thought about the Union and Collins indicated that he was
for it Lee told Collins not to let anyone fool him, suggest-
ed that Collins stay away from the Union, and character-
ized it as nothing but trouble He asked Collins how he was
being treated, and Collins told him that, while he was being
treated all right, things could be better if employees had
someone to represent them Lee told Collins that he was
around in the Company to "represent" employees, to
which Collins stated that he did not see him very often Lee
then gave Collins his card and told him to phone him in
Washington collect if he had any problems Lee noted that
a union was not needed in the shop, and that it would take
$10 or $12 a month from employees for nothing, to which
Collins replied that Lee did not have to worry since he did
not think that a union would come into the shop anyhow
The conversation ended and Collins left for his driving as-
signment Lee did not testify at the hearing, so I credit
Collins' version of this conversation
Sometime later, Collins had a conversation with Shop
Supervisor Juan Rodriguez concerning unionization Rod-
riguez told Collins that the employees would be stupid to
have a union because they would have no one to represent
them He noted that someone would have to be selected as
shop steward or delegate, and said there was no one in the
shop capable of fulfilling this function because most of the
shop consisted of Spanish-speaking employees He asked
Collins what good he thought he could do, since there were
7 Cartons of milk which are removed from incoming flights are dumped
unless an employee elects to take a carton home with him It is clear from
the record that employees, including management employees, were in the
habit of taking cartons of "inbound" milk home and that this practice was
condoned, if not specifically authorized
8
One meal each day is regularly prepared for Marriott employees at Shop
375 and a charge representing the cost of the meal is deducted from the
employee s pay, regardless of whether or not he eats the meal
only six black employees in the shop, and suggested that he
"forget it " Collins replied that "here's one black boy going
to vote for the union" because "we need a union here " He
told Rodriguez that, when organizing drives came around,
the Company provided employees with better meals, but as
soon as the Union would lose the representation election,
"you get slop again " 9 Collins also voiced prounion senti-
ments to General Manager McConnell On January 5,
1975, Collins signed a Local 481 designation card and gave
it to one of the union organizers in front of the shop
Discriminatee Connell Nicholson had been employed at
Shop 375 about 6-1/2 years at the time of his termination
on January 6, 1975 He began as a dishwasher and was
successively promoted on four occasions to various posi-
tions, serving as a lead cook at the time he left the
Respondent's employment During this period of time, Ni-
cholson had only one minor cautionary warning on his
record Shortly after the union organizing drive began, Ni-
cholson had occasion to talk with one of the organizers
while standing in front of company premises On a second
occasion, he spoke to Roman in front of the company
premises On another occasion, a week or two before his
termination, Nicholson was taking a break about 1 a in on
the loading dock outside the building when Roman drove
his car into the company driveway between the plant gates,
blew his horn, and summoned Nicholson to come over to
speak to him The areaway in which they spoke was flood-
lighted, and I find as a fact that the two spoke in plain view
of Assistant Manager John Savage who was seated in the
dispatcher's office behind a large plate glass window some
50-75 feet away Roman gave Nicholson a union card to
sign and also gave him additional cards to distribute
among employees in the plant 10 Nicholson personally
signed a union card at another point in time and mailed it
in He also distributed union cards to other employees both
at the shop and away from the shop Nicholson voiced the
opinion that management representatives did not actually
see him give union cards to other employees, although he
told company interrogators immediately before his termi-
nation that he thought that a fellow employee, one Mer-
cedes Cuculon, had reported his union activity to manage-
ment About 2 or 3 weeks before his termination,
Nicholson had a conversation with Savage concerning the
Union Savage asked Nicholson what he thought of the
Union, and Nicholson replied that he thought it was good
Savage told him that, if the Union got in, employees would
lose their present profit-sharing benefits and their credit
union Nicholson replied that, at least with a union, people
would have someone to talk to Savage countered that Ni-
cholson could always talk to him or to some other supervi-
sor Nicholson's reply was that, so far, employees had not
gotten very far when they talk to supervisors and that su-
pervisors can't do employees any good It
During the first week in January 1975, Marriott Security
Rodriguez did not testify, so I credit the uncontradicted version of this
conversation recited by Collins
10 Management witnesses admit seeing union cards and union literature
lying about the shop at or about this same period of time
it
Savage admits talking to Nicholson on the subject of unionization the
contents of which are at variance with the conversation related by Nichol-
son Savage places the conversation early in the fall, when no organizational
effort was in progress I credit Nicholson's version
MARRIOTT IN-FLITE SERVICES 133
Systems, Inc, dispatched polygraph examiners William R
Rardon and George Bornoty from Miami to New York to
conduct an investigation among the employees at Shop
375 Rardon is a former policeman and criminal investiga-
tor with long experience in conducting polygraph examina-
tions Bornoty, a former Marine Corps criminal investiga-
tor, is also a professional polygraph examiner Rardon,
who was in charge of the investigative team, was supplied
with information taken from the reports which had been
rendered to the Miami office by Jose Machado In New
York, they met with Tozzi, McConnell, Machado, and
others before initiating a series of interviews with employ-
ees at Shop 375 who were under suspicion of theft These
interviews were conducted on company premises during
the evening of January 6 and during the day on January 7
Bornoty interviewed employees who spoke Spanish, and
then assisted Rardon with employees who spoke English A
total of 12 or 13 interviews were conducted In holding
these interviews, Rardon or Bornoty met alone with the
interviewee either in McConnell's office or in a secretary's
office adjacent to McConnell's office While the interviews
were in progress, McConnell and Tozzi waited outside,
either in the hallway or in another secretary's office As a
result of these interviews, seven employees were terminat-
ed Three were fired and four resigned in lieu of discharge
At or about 10 30 p in Collins, who was in the process
of unloading his truck, was directed to go upstairs to the
company office by his supervisor He saw Tozzi, McCon-
nell, and Rardon in the company office Rardon began to
question Collins alone in the secretary's office which he
was using He told Collins that he was going to "pick out
the good apples from the bad apples," 12 and was going to
get rid of the bad apples He also told Collins that he had
received prior information to the effect that Collins had
been stealing wine and champagne from incoming flights
and putting shopping bags containing beer into his car
Collins denied the accusations, saying that he did not know
who had been taking things but that he had not When
Rardon pressed him about having been seen with wine and
champagne in his possession, he replied that he was sup-
posed to have these items in his possession when he "strip-
ped" incoming planes Rardon also asked him personal
matters, including whether he was married, whether his
wife worked, and what kind of car he had He also asked
Collins if he were fired how much unemployment compen-
sation he could draw Collins said he never drew unem-
ployment compensation but he imagined it would run
about $90 or $95 Rardon asked Collins if he would take a
lie detector test, and Collins replied that he would take any
kind of test to prove that he did not steal anything 13 Col-
lins inquired who the investigator was that reported these
matters and insisted upon being confronted by him, but
Rardon gave no answer Collins admitted to Rardon that,
from time to time, he would take a meal or meals home
with him, but averred that he was authorized to do so
Collins also admitted taking two miniatures from an in-
coming "10-11" Eastern flight and drinking them at the
shop near the compactor 14 Neither of these matters were
known to Rardon prior to the interview Collins asserts,
and Rardon denies, that Rardon questioned him concern-
ing union activities According to Collins, Rardon asked
him what he thought of the Union and Collins replied he
thought that it was a good thing for a working man, and
that the employees needed a union to get any place in a
shop like Shop 375 Rardon told Collins that he would let
him resign in lieu of discharge, to which Collins replied, "I
don't steal I ain't never been in any trouble You just
want to get rid of me or maybe somebody in the Company
want to get rid of me for some reason, but not shit, because
I don't know about none of this " He declined the
offer
Rardon asked Collins to step out of the room at the end
of the interview, whereupon Rardon reported the results of
his interview to McConnell and Tozzi who were standing
by Shortly after this conference, McConnell emerged from
the room, went to his office, got a tablet of paper, and told
Collins that he would have to give him a 2-day suspension
Collins asked McConnell why he was being given the sus-
pension, and McConnell replied that they had a lot of
charges wrapped up there He denies being told specifically
why he was being suspended McConnell asked Collins to
sign a piece of paper, which Collins did The paper was a
company personnel evaluation form containing several
lines for "remarks" which, either before or after Collins
signed it, was filled in with a legend to the effect that Col-
lins was being suspended until Thursday pending an inves-
tigation, noting an admission on Collins part that he had
taken two miniatures and had drunk them on company
property, and stating that he should return to see McCon-
nell on Thursday morning at 9 a in When Collins came in
on Thursday to see McConnell, McConnell discharged
him, saying that he hated to do so but that they had too
much on him and he (McConnell) was in a position where
he could do nothing about it Collins said that he would
fight the discharge, to which McConnell and Assistant
Manager Hines, who was also present, replied that they did
not blame him for doing so Collins denies putting any
items taken from the shop in his car, other than inbound
milk and the meal to which he was entitled He specifically
denied taking any liquor home with him
Nicholson was interviewed by Rardon and Bornoty on
the same evening that Collins was questioned He was told
by John Savage to report to the company office for that
purpose The record is unclear whether Bornoty or Rardon
spoke to Nicholson first, but, in the course of the evening,
both of them questioned him As with Collins, Rardon in-
terviewed Nicholson alone in a small company office He
identified himself, said he was an investigator from Wash-
ington, and was in New York to investigate a lot of stealing
that was going on Nicholson asked, "What has this got to
do with me?" Rardon said that he thought Nicholson could
give them some information Nicholson said that he did
not know anything about stealing, and specifically an-
12 Rardon denies using this phrase I credit Collins 14 I credit this aspect of Rardon s testimony over Collins denial with
13 Rardon states that Collins refused to take a polygraph test I credit respect to the liquor miniatures Collins vehemently denied making any
Collins Rardon had his polygraph machine with him but did not make any admission that he had taken home more than one authorized meal per
polygraph examinations during this New York visit evening I credit this denial
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
swered Rardon's question that he did not know anything
about the theft of steaks or liquor He did admit taking
home inbound milk from time to time Rardon then asked
him if he knew about thefts on the part of other employees,
and Nicholson said he did not Nicholson asked Rardon
why he was asking him all these questions, to which Rar-
don replied that he thought that Nicholson knew what was
going on around there, adding that the Company had fired
one employee that evening for stealing who said that Ni-
cholson had given him some liquor Rardon also told Ni-
cholson that someone had said that Nicholson was stealing
company property and selling it Nicholson also denied
that accusation Rardon told him that if he did not inform
him about who was stealing, the Company would fire Ni-
cholson He continued his interrogation, asking Nicholson
about the theft of sleeves of liquor, and about the theft of
liquor on a holiday, but Nicholson provided him with no
information Finally, after a barrage of questioning, Ni-
cholson told Rardon that, on one occasion, a driver had
come into the commissary with a white pail containing four
or five miniatures of liquor and had asked Nicholson to
take the pail and put it in the pantry for some other em-
ployees Nicholson did so, leaving them on a table in the
back of the room Rardon asserts, and Nicholson denies,
that he also admitted in the course of the interview, that on
another occasion, he took 15 or 20 miniatures and gave
them out to other employees Nicholson impressed me as a
thoroughly honest and scrupulous person I credit his deni-
al of this supposed admission relating to 15 or 20 minia-
tures and his denial that he took liquor home with him, and
I credit his assertion that he personally did not, and does
not, imbibe alcoholic beverages
Bornoty continued the interrogation of Nicholson, re-
peating to him the same line of questions that Rardon had
pursued As noted above, either Rardon or Bornoty asked
Nicholson if he thought that any management representa-
tives had seen him passing out union cards Nicholson's
reply was that he thought that Mercedes Cuculon had in-
formed on him but that he was not sure Rardon returned
to the room sometime after Bornoty had finished, resumed
questioning, and then told Nicholson that his supervisor
stated that he deserved to be fired Nicholson asked why he
should be fired, and pressed Rardon for an answer, "Fired
for liquor2" Rardon said, "No, not for the liquor," left the
room again, and then returned At this point, he said that
he had talked the matter over with Nicholson's supervisor
and that the Company would give Nicholson the option of
resigning He told Nicholson that if he did not resign, he
would be fired and added that if the Company fired Ni-
cholson, he would not be able to get a job anywhere in
New York State because of his bad record Nicholson
thought for a while and asked to speak to his supervisor
and to make a telephone call Rardon denied him permis-
sion to do either and directed that he decide before he left
the room whether or not he was going to resign in lieu of
discharge Nicholson voiced the objection that, if he re-
signed, he would not draw unemployment compensation
Rardon replied that they would fix it so he could do so i5
Nicholson sat there for an additional span of time, and
then told Rardon that he would consent to resign His res-
ignation, written by Rardon, stated that he resigned for
"personal reasons " Thereafter, McConnell accompanied
Nicholson while he cleaned out his locker and escorted him
out of the building Nicholson asked McConnell to give
him a letter of recommendation At first, McConnell re-
fused, later, he furnished Nicholson with the following let-
ter, dated February 10, 1975
To Whom it May Concern
Re Connell Nicholson
We would like to advise you that Connell Nicholson
was an employee of Marriott In-Flite Services located
at the address above from July 20, 1968, to Jan 7,
1975
He held the position of cook and earned a wage of
$5 03 per hour
Mr Nicholson left his position for personnal (sic) rea-
sons His work was satisfactory
/s/ John McConnell
General Manager
B Analysis and Conclusions
I Threats of loss of benefits and coercive interrogation
As found above, Assistant Manager John Savage, in the
course of his conversation with employee Connell Nichol-
son, told Nicholson that, in the event the Union came into
the shop, the employees would lose their profit-sharing
benefits and their credit union The threat of a loss of em-
ployee benefits is a violation of Section 8(a)(1) of the Act
for which no citation of authority is necessary According-
ly, I conclude that, by Savage's statement to Nicholson, the
Respondent herein violated Section 8(a)(1) of the Act In
the course of the same conversation, Savage inquired of
Nicholson how he felt about the Union Since this question
was coupled with, and was part of, a conversation involv-
ing a threat to Nicholson of a loss of benefits if the Union
were successful in its efforts, the remarks cannot be passed
off as a casual inquiry made in the course of a noncoercive
discussion Accordingly, I find that the questioning of Ni-
cholson by Savage on this occasion also constituted a vio-
lation of Section 8(a)(1) of the Act
2 Additional coercive interrogation
Respondent employed two professional investigators
with lengthy law enforcement experience to conduct a sys-
tematic interrogation of several of its employees on the
subject of suspected thefts of company property The evi-
dence herein respecting Nicholson and Collins is quite
clear that the manner in which at least Rardon went about
his duties left something to be desired from the standpoint
of respecting free employee choice in the selection or rejec-
that Nicholson had resigned without good cause This position was ulti-
matel denied b a referee of the New York State De art t f L by my p en o a or
15 After leaving the Company, Nicholson filed for unemployment com who found that Nicholson was forced to resign and that his termination
pensation The application was contested by the Respondent on the basis was a discharge without conditions disqualifying him for compensation
MARRIOTT IN-FLITE SERVICES 135
tion of a bargaining agent Both Nicholson and Collins
were subjected to lengthy interrogations alone, late at
night, in company offices, and were in effect kept incom-
municado during the course of their respective interroga-
tions Nicholson requested, and was refused, the opportu-
nity to discuss his pending removal with his supervisor or
to make a telephone call prior to making a decision as to
whether he should resign from a job which he held for a
period of 6-1/2 years or incur the obloquy of being fired
Both Nicholson and Collins were repeatedly peppered with
hostile questions over a lengthy period of time and made
the subject of accusations of misconduct by unknown ac-
cusers In the course of the questioning, Collins inquired of
Rardon who had accused him of manifold acts of miscon-
duct and requested a confrontation with his accuser but
this information was denied him Nicholson was told to
provide Rardon with information implicating other em-
ployees in thefts of company property or he himself would
be discharged Both were asked if they would be willing to
take a lie detector test concerning accusations made
against them Bornoty participated, albeit in a limited way,
in this treatment of Nicholson Neither made any pretense
of complying with the Board's requirements laid down in
Struksnes Construction Co, Inc, 165 NLRB 1062 (1967)
The questioning of suspects in the manner utilized by
former policeman Rardon and former CID investigator
Bornoty is the type of activity which the Supreme Court
has taken great pains over a long period of time to elimi-
nate from the enforcement of criminal statutes in this
country 16 When such questioning occurs in a labor rela-
tions context-and the questioning of both these "sus-
pects" contained just such an aspect-it should also be
condemned in the enforcement of the Act As found from
credited evidence above, Rardon asked Collins what he
thought of the Union and asked Nicholson if any manage-
ment representatives had seen him passing out union cards
Such interrogation, conducted in the manner and in the
setting in which it took place, constitutes a violation of
Section 8(a)(1) of the Act, and I so find and conclude
3 The discharge of Eaker Collins
The claim by the Respondent that it discharged Eaker
Collins for misconduct lacks both logic and consistency
Respondent was understandably exercised, and under
pressure from its clientele, to eliminate or at least substan-
tially reduce the amount of pilferae of food and liquor
which was occurring at Shop 375 If Physical evidence of
both pilferage and the drinking of stolen liquor continually
littered company trucks and the company building The
problem was of longstanding concern and was one which
prompted a number of actions taken over a period of many
months, including the employment of an undercover agent
charged with the responsibility of identifying the offending
16 See, for example, Miranda v State of Arizona 384 U S 436 (1966)
Brown v Walker, 161 U S 591 (1896), Brown N Mississippi, 297 U S 278
(1936), Silverthorne Lumber Co v US 251 US 385 (1920) Escobedo v
Illinois 378 U S 478 (1964)
17 On one of its personnel forms Respondent refers to theft of comestible
items as "peculations "
parties However, in nearly a year which has elapsed from
the time General Manager McConnell took over the opera-
tion until the time of the hearing, the only terminations of
known or suspected wrongdoers occurred in the course of
the Rardon-Bornoty visit of January 6 and 7 This visit
coincided with the inauguration by Local 481 of an orga-
nizing drive, which manifested itself to Respondent's man-
agement everytime leafleting occurred in front of company
premises and whenever employees entering and leaving the
building were addressed from the sidewalk by union organ-
izers speaking over a bullhorn The coordinate purpose of
attacking a longstanding company problem in this manner
provided the Respondent with an adequate cover for cur-
tailing an incipient union drive, the third to have taken
place at Shop 375 in a period of 4 years
In attempting to ascertain the precipitating cause of Col-
lins' discharge, I inquired of Respondent's counsel the rea-
son therefor, and was told by counsel that Collins was dis-
charged because he admitted taking liquor and drinking it
on the loading dock, because he reportedly admitted steal-
ing employees meals and taking them home, and was seen
taking a large shopping bag out of his truck when he re-
turned from the field to the commissary The admission
that Collins was drinking on company property and that he
took food assertedly sealed his fate For many months,
Collins was a known pilferer of company food and liquor
Not long after McConnell's arrival in June 1974, employ-
ees reported to McConnell eyewitness accounts of Collins
removing food or beverages from company premises, but
McConnell took no action of any kind directed at Collins
He did not even question or speak to Collins about these
reports His excuse was a thin one-rank-and-file employ-
ees did not wish to become involved in a contretemps with
Collins because of reports they had rendered, and no man-
agement employees had ever actually caught Collins in the
act This excuse vanished entirely late in October and early
in November, just before the organizing drive commenced,
when Respondent's undercover agent, Machado, reported
in writing several instances he had personally observed in
which Collins removed or clearly appeared to be removing
food or beverages from company premises These reports
were forwarded to Marriott's Regional Vice President Toz-
zi Thus, early in November, Respondent had an ample
basis on which to discharge or otherwise discipline Collins
for pilferage, if indeed it felt that such matters warranted
discharge Its failure to do so promptly upon discovery of
such facts, coupled with its reliance upon the same events
months later as an ancillary basis for discharge, leads ines-
capably to the conclusion that pilferage was not the cause
of Collins' discharge and that a modest level of consump-
tion of food and beverages by employees was tolerated at
Shop 375 by the Respondent as an undesirable but un-
avoidable aspect of being in the catering business
I credit the assertion of Rardon that Collins admitted
drinking two miniatures of liquor near the compactor Col-
lins made the same admission to Bornoty This information
was unknown to company investigators at the outset of
their interrogation and was the product of their repeated
questioning I am inclined to believe Collins when he states
that he admitted occasionally taking home his own uneat-
en meal, but that he did not in fact take home meals to
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he was not entitled and did not admit doing so I
note in this connection that, on the personnel evaluation
form which was prepared as a part of the 2-day suspension
of Collins, no mention is made of purloined meals In any
event, on the basis of this record it would be speculative to
assume that any meals taken home by Collins were other
than meals he came by properly, and, as such, they could
hardly form the basis of a discharge for theft
There is evidence in the record that, on occasion, the
Respondent tolerated occasional drinking on the premises
For example, its management personnel admitted partici-
pating in drinking champagne, the ownership of which is
unclear, with kitchen employees on company premises on
New Year's Eve and knowing of such drinking by employ-
ees on Christmas Eve No disciplinary action resulted
therefrom From the occasional honoring of a rule in the
breach by the Respondent, any employee could easily be
led to believe that, here again, any prohibition against
drinking on company premises was not a hard and fast
rule This fact is also suggested by the timidity of the Re-
spondent in disciplining Collins for consuming two minia-
tures When Respondent decided to invoke sanctions
against Collins for this offense, it first suspended him for a
period of 2 days before taking any action to remove him
permanently Only after the lapse of 2 days, but upon no
new evidence or considerations, did McConnell and Hines
take the final action, and then they did so apologetically,
attempting to eschew personal responsibility for their ac-
tion in the eyes of an employee of 4 years' service who was
also incredulous that this was the real reason for his dis-
charge
The essence of a pretextual discharge is that one or more
facts underlying the Respondent's asserted reason for ter-
minating an employee are true but they have no bearing on
the efficient clause of his removal, and are asserted to
cloak the real motive behind the discharge It is motivation,
not justification, which determines whether a discharge vi-
olates the Act In the case of Collins, we are confronted
with the situation of a known union adherent, who had
proclaimed to several supervisors his desire for unioniza-
tion in the emphatic, open, and slightly exaggerated tone
which is his manner and who was fired 1 day after he
signed a union card, for the kind of conduct on his part
which was both known and tolerated by this Respondent
for many months, if not years Such dilatory treatment is
wholly inconsistent with a desire to suppress the theft of
company property through the removal of wrongdoers Re-
spondent did not previously have in its possession an ad-
mission by Collins that he had drunk two miniatures of
company (or airline) liquor on company premises This in-
formation was elicited from him in the course of a coercive
fishing expedition which its agents pursued on the evening
of January 6 However, the Company was long possessed
of substantial information of similar conduct on Collins
part for quite a period of time, during which it did not even
bother to request Collins to cease and desist from his prac-
tices, much less take any disciplinary action to rectify an
offensive situation Indeed, Collins had received no disci-
plinary warnings for any reason during his 4 years of em-
ployment The proverbial straw that broke the camel's
back fell into place when a union organizing drive began to
take shape in front of the Respondent 's premises , an effort
about which Respondent had considerable curiosity and
more than a little apprehension , if the statements of its
supervisors are any gauge of its attitude In light of these
factors , I am constrained to find that the Respondent here-
in discharged Eaker Collins because of his interest in and
sympathy for Local 481, and that , in so doing , it violated
Section 8(a)(3) of the Act
4 The discharge of Connell Nicholson
During his terminal interview by an investigator em-
ployed by the Respondent, Nicholson was offered the
choice of resigning or being fired In presenting Nicholson
with this choice, Rardon told him that if he were fired, he
would never be able to get anotherjob in New York State
As further inducement in securing Nicholson's resignation,
Rardon told Nicholson, who was worried about his right to
receive unemployment compensation, that the Company
would fix it up so that he would not forfeit eligibility by
resigning Apparently, the Respondent thereafter contested
his eligibility for these benefits before the New York State
Department of Labor In any event, Nicholson's resigna-
tion was not the product of a free and untrammelled choice
on his part, but was the result of both the "carrot and the
stick" being applied in rapid succession to an employee
against whom the Respondent had a thin case, by an agent
who was an old hand at dealing with criminal suspects
Respondent does not seriously contest the forced aspect of
Nicholson's departure Accordingly, I find and conclude
that Nicholson was constructively discharged, and that he
did not voluntarily quit his job
Nicholson was a 6-year employee of the Respondent
with a nearly blameless record of service The first and
only indication of possible misconduct which Respondent
had relating to Nicholson was a report, rendered to the
Respondent and dated December 26, 1974, by undercover
agent Machado, to the effect that Machado noticed Ni-
cholson remove a sleeve, or metal container, of liquor from
the liquor room and take it back to the kitchen Neither
then nor in his testimony at the hearing was Machado able
to say what, if anything, Nicholson did with the liquor
Machado did not follow Nicholson or keep him under sur-
veillance to determine if Nicholson had converted the li-
quor to his own use or had assisted others in doing so
Nicholson denied to Rardon taking any sleeve of liquor on
this or any other occasion 18 In the course of grilling Ni-
cholson, Rardon obtained from him an admission that, on
one occasion, he accommodated a company driver by tak-
ing a white pail containing four or five liquor miniatures
and placing it on a table in the back of the pantry There is
no evidence that on this occasion, Nicholson took these
miniatures for his own personal use Nicholson denied on
the stand an assertion that, in the course of his interview,
he admitted taking 15 or 20 miniatures on or about New
Year's Eve or on any other occasion There is no mdepen-
18 Interestingly enough Rardon states that in questioning Nicholson he
does not recall asking him about the removal of liquor from the liquor cage
as reported by Machado although this alleged event is the only lead he had
which suggested misconduct on Nicholson s part
MARRIOTT IN-FLITE SERVICES
dent evidence that he did The only reference to Nicholson
in the context of taking 15 or 20 miniatures is a statement
by company investigators that, in the course of being inter-
rogated on January 6, he made such an admission I credit
Nicholson
Nicholson was in fact active on behalf of the Union in
soliciting cards He acknowledged his interest in the Union
to his supervisor, Savage, and admitted to company inter-
rogators during the January 6 interviews that he was soli-
citing memberships from employees, although he felt man-
agement was unaware of his activity This statement itself
made management aware of his activity The timing of his
removal and the events surrounding the Rardon-Bornoty
visit raise the same suspicious circumstances suggested
above in the discussion relating to Collins At the end of
the interview with Nicholson, which involved both threats
and repeated pumping for information, Rardon came up
dry as far as unearthing a basis for premising the removal
of Nicholson was concerned When Nicholson asked Rar-
don whether he was being discharged for stealing liquor,
Rardon told him that he was not and promptly left the
room for a conference with Tozzi and McConnell After he
returned, he offered Nicholson the option of resigning and
literally browbeat him into accepting it When Nicholson
asked McConnell why he was being fired, all that McCon-
nell could tell him was that he had done a "dumb thing at
the wrong time " McConnell refused to tell Nicholson what
the dumb thing was that he did Nicholson pleaded with
McConnell that, if he was going to fire him, he should
simply discharge him and not attempt to attach the stigma
of theft to his removal If the December 26 incident report-
ed by Machado was the precipitating cause of discharge,
did this incident amount to theft or was it nothing" Not
even Machado's testimony warrants a conclusion that Ni-
cholson stole anything If some form of serious misappro-
priation was involved, why did not Respondent remove
Nicholson Immediately As to what may be called the
"white pail" incident, similar questions arise If Respon-
dent failed to discharge Collins over a period of many
months when he was known to be taking property for his
own use, why would it discharge Nicholson under these
circumstances when there is no evidence now or at the time
of the discharge that he ever took anything for his own use,
other than inbound milk which was headed for the garbage
can? If Nicholson's misbehavior was misconduct of such a
nature that it warranted the removal of a 6-year veteran
employee with a good employment record, why did it
thereafter give him a reference stating that his work was
satisfactory As with Collins, the Respondent temporized
after receiving information of the kind or character it later
relied upon as a basis for discharge, leaving the clear impli-
cation that such activities were not truly dischargeable of-
fenses in its catalogue of causes for removal The questions
posed above lead inescapably to the answer that the Re-
spondent discharged Nicholson for his known sentiments
and activities on behalf of Local 481, and, in so doing,
violated Section 8(a)(3) of the Act I so find and conclude
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following
CONCLUSIONS OF LAW
137
1 Respondent Marriott In-Fhte Services, Inc, a Divi-
sion of Marriott Corporation, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act
2 Local 481, Production, Industrial, Technical, Miscel-
laneous and Amalgamated Workers Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act
3 By discharging Eaker Collins and Connell Nicholson
for their support of Local 481, Production, Industrial,
Technical, Miscellaneous and Amalgamated Workers
Union, the Respondent herein violated Section 8(a)(3) of
the Act
4 By the acts and conduct described above in Conclu-
sion of Law 3, by threatening employees with loss of ben-
efits if they supported the Union, and by coercively inter-
rogating employees concerning their union sympathies and
activities, the Respondent herein violated Section 8(a)(1) of
the Act
5 The unfair labor practices recited above in Conclu-
sions of Law 3 and 4, have a close, intimate, and substan-
tial effect on the free flow of commerce, within the mean-
ing of Section 2(6) and (7) of the Act
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take other
actions which will effectuate the purposes and policies of
the Act As a discharge in violation of Section 8(a)(3) goes
to the very heart of the Act, I will recommend that the
Board issue a so-called broad 8(a)(1) order which is de-
signed to suppress any and all violations of Section 8(a)(1)
of the Act J C Penney Co, Inc, 172 NLRB 1279, fn 1
(1968) The recommended Order will provide that the Re-
spondent be required to offer to Eaker Collins and Connell
Nicholson reinstatement to their former or substantially
equivalent employment, and that the Respondent make
them whole for any loss of earnings which they have suf-
fered by reason of the discrimination practiced against
them, in accordance with the Woolworth formula,19 with
interest thereon computed at 6 percent per annum I will
also recommend that the Respondent be required to post a
notice, advising its employees of their rights and of the
remedy in this case
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act, I make the fol-
lowing recommended
19 F W Woolworth Company 90 NLRB 289 (1950)
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 20
Respondent Marriott In-Flite Services, Inc, a Division
of Marriott Corporation, and its officers, supervisors,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees concerning their
union activities and sentiments
(b) Threatening to discontinue benefits if the Union
should become the bargaining agent of its employees
(c) Discouraging membership in Local 481, Production,
Industrial, Technical, Miscellaneous and Amalgamated
Workers Union or any other labor organization, by dis-
charging employees or otherwise discriminating against
them in regard to their hire or tenure of employment or
any term or condition of employment
(d) By any means or in any manner interfering with,
coercing, or restraining employees in the exercise of rights
guaranteed to them by Section 7 of the Act
2 Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act
(a) Offer to Eaker Collins and to Connell Nicholson full
and immediate reinstatement to their former positions or,
in the event that their former positions no longer exist, to
substantially equivalent employment, without prejudice to
their seniority or to other rights which they formerly en-
joyed
(b) Make whole Eaker Collins and Connell Nicholson
for any loss of pay suffered by them by reason of the dis-
crimination found herein, in the manner described in the
section entitled "Remedy "
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of back-
pay due under the terms of this recommended Order
(d) Post at the Respondent's place of business in Asto-
ria, Queens, New York, copies written in English and in
Spanish of the attached notice marked "Appendix " 21
20 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
21 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board' shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board '
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by
Respondent's representative, shall be posted immediately
upon receipt thereof, and shall be maintained by the Re-
spondent for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered over by any other material
(e) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concerning their
union activities and union sentiments
WE WILL NOT threaten to discontinue employee bene-
fits in the event the shop is unionized
WE WILL NOT discharge or otherwise discriminate
against employees in the hire and tenure of their em-
ployment because they have engaged in union activi-
ties All of our employees are free to become or re-
main members of Local 481, Production, Industrial,
Technical, Miscellaneous and Amalgamated Workers
Union, or any other labor organization
WE WILL NOT, in any manner or by any means, inter-
fere with, restrain, or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the Act
These rights include the right of self-organization, the
right to bargain collectively through representatives of
their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other
mutual aid and protection
WE WILL offer to Eaker Collins and to Connell Ni-
cholson full and immediate reinstatement to their for-
mer or substantially equivalent employment, and WE
WILL make them whole for any loss of pay which they
have suffered by reason of the discrimination which
was found in this case, with interest thereon at 6 per-
cent per annum
MARRIOTT IN-FLITE SERVICES, INC, A DIVISION OF
MARRIOTT CORPORATION