North Adams Inn Corp.

National Labor Relations Board - Board Decisions

Apr 8, 1976

223 N.L.R.B. 807 (N.L.R.B. 1976)

NORTH ADAMS INN CORP.
North Adams Inn Corporation and Hotel Service Em-
ployees and Bartenders Union , Local 116, AFL-
CIO. Cases 1-CA-10309 and 1-RC-13520
April 8, 1976
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On August 29, 1975, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, both the General Coun-
sel and Respondent filed exceptions and supporting
briefs.
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,2 findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We find that the Administrative Law Judge made
the same error in this case regarding the definition of
animus as he did in Boston Cab Company, Inc., 212
NLRB 560 (1974). According to the Administrative
Law Judge, the lack of hostility displayed by the Re-
spondent towards other employees who supported
the Union tended to show that it had not discrimina-
torily discharged three union adherents. He also con-
cluded that three letters Respondent mailed to its
employees did not demonstrate that the Company
was opposed to union organization. Furthermore, the
Administrative Law Judge ignored his own finding
that the Hotel had violated Section 8(a)(1) of the Act
during the critical period. For reasons set forth in
footnote 2 of Boston Cab Company, Inc., supra, the
Administrative Law Judge's failure to consider
Respondent's mailings to employees and his own
8(a)(1) findings as evidence of hostility against the
Union does not conform with our well-established
definition of animus.
However, the Board nevertheless adopts his find-
ing that the discharges were for cause. The Adminis-
trative Law Judge credited the testimony of General
Manager James BePlatt that Valerie Schneider was
discharged because she was frequently away from
her hostess stand. Regarding the discharge of Caro-
lyn Hanson, he credited Food and Beverage Manag-
er Jack Wilson's testimony that the waitress was fired
for refusing to work during Thanksgiving week. Wil-
807
son was also credited when he testified that breakfast
cook Michael Collier was dismissed for threatening
another employee and continual tardiness. Having
reviewed the entire record herein, we see no reason to
reverse the credibility findings of the Administrative
Law Judge. We therefore adopt his determination
that the discharges were not in violation of Section
8(a)(3) of the Act.
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, North Adams Inn Cor-
poration, North Adams, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election conducted
on December 19, 1974, in Case l-RC-13520 be, and
it hereby is, set aside and that Case 1-RC-13520 be,
and it hereby is, remanded to the Regional Director
for Region 1 for the purpose of conducting a new
election at such time as he deems the circumstances
permit the free choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
1 The Board notes the failure of the Administrative Law Judge to set aside
the election although he finds that Respondent violated Sec . 8(a)(1) of the
Act during the critical period before the election. We disagree and conclude
that our decision in Pure Chem Corporation, 192 NLRB 681 (1971 ), requires
that the election be set aside and a new election directed.
2 Both the General Counsel and Respondent have 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 resolu-
tions 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 revers-
ing his findings.
DECISION AND REPORT AND
RECOMMENDATIONS AS TO OBJECTIONS TO AN
ELECTION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Administrative Law Judge: These
consolidated proceedings were heard in Adams, Massachu-
setts, on June 16, 17, 18, and 19, 1975. Following the close
of the hearing briefs were received from General Counsel
and the Employer.'
1 The name of the Respondent -Employer has been corrected to reflect the
correct legal name as set forth in its answer dated April 7, 1975.
223 NLRB No. 120
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Pleadings
The complaint in Case l-CA-10309, issued on March
31, 1975, which alleges that North Adams Inn Corporation,
herein called the Inn, the Employer, or the Company, has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(axl) and (3) of the National La-
bor Relations Act, as amended, is based on a charge and
three amended charges respectively filed on December 13
and 23, 1974, January 13, and March 10, 1975, by Hotel
Service Employees and Bartenders Union, Local 116,
AFL-CIO, herein called the Union. In substance, the com-
plaint , as amended at the hearing , alleges that the Compa-
ny unlawfully discharged its employees Valerie Schneider
on October 28, 1974, Carolyn Hanson on December 2,
1974, and Michael Collier on December 6, 1974, and that
by reason thereof and by reason of the following:
(a) about October 1, 1974, Supervisor Lenore Blanchard
told employees that the Company knew who had signed
union cards, that employees did not have to be sneaky
about it, that the Company did not mind that employees
were for the Union, but employees did not have to go
about it behind the Company's back; and
(b) about November 28, 1974, the Company granted
employees a new fringe benefit in the form of holiday pay
in order to discourage union activity,
the Company has coerced, restrained, and interfered with
its employees in the exercise of the rights guaranteed them
by Section 7 of the Act. The complaint also gives notice
that General Counsel intends to request issuance of an or-
der which will require the Company to recognize and to
bargain with the Union as the exclusive representative of
its employees in a described appropriate unit.2 Respondent
duly filed an answer denying that it has engaged in the
alleged unfair labor practices.
With respect to the representation proceeding, Case I-
RC-13520: a petition requesting certification of represen-
tatives was filed by the Union on September 24, 1974.
Thereafter, the parties entered into a Stipulation for Certi-
fication Upon Consent Election which was approved by
the Acting Regional Director on October 21, 1974. The
stipulation called for an election to be held on Thursday,
December 19, at the Employer's premises during the fol-
lowing hours: 6:30 a.m. to 7:30 a.m.; 2:45 p.m. to 3:30
p.m.; and 6 p.m. to 6:30 p.m. The agreed-upon appropriate
collective-bargaining unit is:
All front desk personnel, housekeeping employees,
laundry employees, restaurant employees, bar person-
nel, kitchen employees , maintenance employees, and
banquet employees, employed by the employer at its
40 Main Street, North Adams , Massachusetts, loca-
tion, but excluding all casual and temporary employ-
ees, salesmen , office clerical employees and profes-
sional employees, guards, and supervisors as defined
in the Act.
The election was conducted as scheduled . The tally of
2 The single violation of the Act which I find below does not warrant the
issuance of such order in this case.
ballots shows that of approximately 40 eligible voters, 15
votes were cast for the Union, 17 were cast against the
Union, and 5 ballots were challenged.
Timely objections to the conduct of the election were
filed by the Union on December 23, 1974. The Regional
Director caused an investigation to be made of the chal-
lenges and the objections and issued a report thereon,
which is dated March 11, 1975. The report recommends
that the challenges to three of the challenged ballots be
sustained and makes no recommendations with respect to
the two remaining challenged ballots as they no longer are
determinative of the results of the election. The report fur-
ther states that the Union by letter dated March 6, 1975,
withdrew 12 of the 15 objections which it had filed and that
the remaining objections, which are numbered 1, 2, and 13,
"are part of the matters alleged to be unfair labor practices
in Case No. 1-CA-10,309, as amended," and recommends
that the issues with respect to Objections 1, 2, and 13 be
consolidated for the purposes of hearing with Case 1-CA-
10309. No exceptions were filed to the Regional Director's
report. The Board adopted the Regional Director's recom-
mendations and on April 2, 1975, issued an order that a
hearing be held for the purpose of receiving evidence to
resolve the issues raised by the Union's Objections 1, 2,
and 13 and that such hearing may be consolidated with the
hearing in Case 1-CA-10309. The Board further ordered
that the Administrative Law Judge conducting the hearing
shall prepare and cause to be served on the parties a report
containing resolutions of credibility of witnesses, findings
of fact, and recommendations to the Board as to the dispo-
sition of the objections 3
Upon the entire record in the cases and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer, a Massachusetts corporation , operates a
motel and restaurant in North Adams, Massachusetts. The
Employer 's annual gross volume of business is in the excess
of $500,000. In the course and conduct of its business the
Employer annually receives at its North Adams location
goods valued in excess of $5,000 which are shipped to it
through channels of interstate commerce directly from
points outside the Commonwealth of Massachusetts. The
Employer admits , and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
l The relevant objections are, as follows:
1. On or about December 6, 1974 the Employer through its represen-
tatives specifically John Wilson discharged Michael Collier.
2. On or about December 6, 1974 the Employer through its represen-
tatives specifically John Wilson discharged Carolyn Hanson.
13. The Employer since on or about December 13, 1974, as a matter
of fact John Wilson discharged two (2) employees . Management ob-
server was instructed not to challenge Managerial employees.
NORTH ADAMS INN CORP. 809
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervision
The Company operates a hotel which has 102 guest
rooms plus dining and banquet facilities. It employs be-
tween 50 and 60 persons of whom about 80 percent work
more than 20 hours per week and are considered full-time
employees.
During the times material hereto the following persons
held managerial or supervisory positions with the Compa-
ny:
Edward Gravitz-president and a coowner.
James BePlatt-general manager . He assumed this posi-
tion in September 1974.
Jack Wilson-food and beverage manager. He was ap-
pointed to this position on October 24, 1974. Prior thereto
Wilson was employed as night auditor and desk clerk.
However, for a period of time before his formal appoint-
ment as food and beverage manager Wilson was discharg-
ing the duties of the position.
Dirk Stark-executive chef. He was hired on November
1, 1973, before the Inn opened for business on January 18,
1974.
Lenore Blanchard-head dining room hostess.
Jean Main-housekeeper.
An issue in the case is whether Thomas Hawke, who was
hired as, the assistant chef 2 or 3 weeks before the Inn
opened for business , was a supervisor within the meaning
of the Act. The restaurant is open to the public 15 hours
per day every day of the week from 7 a.m. to 10 p.m.
Employees are on duty in the kitchen prior to 7 a.m. and
after 10 p.m. Thus , the kitchen is in operation in excess of
105 hours per week. Stark is in charge of all kitchen func-
tions , including preparation of meals , purchase of provi-
sions and supplies , cleanliness of premises , and supervision
of personnel. Stark considered Assistant Chef Hawke "to
be my right hand." New employees were informed by Stark
that Hawke was in charge during his absences . Stark con-
sulted with Hawke about menu planning, scheduling per-
sonnel , the performance of personnel , and similar subjects.
Hawke substituted for Stark whenever Stark was absent
from the kitchen, which included Stark's days off, vaca-
tions , and absences because of illness. Stark testified that
"[w]hen I left at 5 p.m. [Hawke] was in complete charge of
the kitchen, the same responsibilities that I have when I
was there." Also, Stark testified that on his days off Hawke
"took over for me completely . It was the same responsibili-
ties that I had when I would normally be there." In addi-
tion, Hawke attended the weekly department head meet-
ings whenever Stark was unavailable.
Hawke was paid a fixed salary regardless of the number
of hours he worked and was the next highest paid kitchen
employee after Stark.' Hawke testified that when on duty
he was responsible to insure that the kitchen employees
performed their assigned tasks. From time to time after
consultation with Stark, he spoke with employees about
improving their performance. In Stark's absence he inter-
viewed applicants for employment and also sought substi-
tutes for employees who failed to appear for work on
schedule. Hawke had authority to request employees to
work more hours than they were scheduled and had au-
thority to permit employees to leave their work early.5
Hawke initialed corrections on timecards. Further, both
Hawke and Stark testified that Stark consulted with
Hawke before Stark discharged kitchen employees. This
occurred three times.
I find that during the times that he worked as a full-time
employee Thomas Hawke was a supervisor within the
meaning of the Act.
On November 5, 1974, Hawke accepted a full-time posi-
tion with the North Adams Fire Department and volun-
tarily quit his position as assistant chef for the Employer.
However, he made arrangements with the Company to
work part time thereafter and since November 5, 1974, has
been working for the Company regularly on an as-needed
and when-available basis.
B. The Organizational Activities
It would appear, although it is not altogether clear in the
record, that the organizational activities began in the sum-
mer of 1974. Dirk Stark, the executive chef and an admit-
ted supervisor, testified that "after making [a] phone call"
he turned over the Union's telephone number to Hawke
and Hawke "took it from there." Hawke thereafter con-
tacted the Union and actively promoted the Union among
the Inn's employees. Hawke personally solicited about 90
percent of the more than 30 union authorization cards
signed by the Company's employees. As is apparent from
his own involvement, Stark was aware of the union activity
among the Company's employees from the very onset of
the organizational drive and knew that Hawke was passing
out union cards. Moreover, Hawke was not secretive about
his union activities. He asked Jack Wilson to sign an au-
thorization card 6 and initiated a discussion with Company
President Gravitz about the Union. Despite the fact that
Hawke's union leadership was well known to company
management and despite the fact that because Hawke was
a supervisor the Company could have discharged him with
impunity, no reprisals were taken against him; but to the
contrary, when Hawke voluntarily resigned his position on
November 5 to join the North Adams Fire Department,
the Company made arrangements for Hawke to continue
working on a part-time basis. The Company's treatment of
Hawke suggests that, although the Company hoped to
avoid having to deal with the Union, it bore no hostility
towards employees who favored the Union and were active
In September or October 1974 Hawke assumed the additional duties of
night chef and for these added responsibilities his salary was increased from
$160 to $200 per week.
5 This occurred only once when an employee complained that he was ill.
6 Wilson testified that Hawke probably asked him to sign an authoriza-
tion card early in.October 1974 when Wilson was performing the functions
of food and beverage manager but had not yet been given the title formally.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on behalf of the Union.
On September 23, 1974, the Union wrote the Company
advising that the Union represented a majority of the em-
ployees in certain named classifications (substantially the
same classifications which in the Stipulation for Certifica-
tion Upon Consent Election the parties agreed composed
an appropriate collective -bargaining unit) and requesting
immediate recognition . As of the payroll period ending
September 25 there were 52 employees in the agreed-upon
unit ,' 30 of whom between September 17 and 22 had exe-
cuted and had delivered to the Union cards designating the
Union as their representative for the purposes of collective
bargaining.
The Company conducted a very limited campaign in op-
position to the Union 's drive . No meetings with employees
were held . On December 8, 10, and 12 letters were mailed
to the employees urging them to vote against union repre-
sentation in the election scheduled for December 19. While
the letters argue that the employees would fare better with-
out a union than with a union they do not reflect any hos-
tility towards the Union or an aversion to dealing with the
Union.
C. The Discharges
1. Valerie Schneider
Valerie Schneider was hired as a dining room hostess on
September 3, 1974, and was terminated within 2 months on
October 28,8 As his first witness General Counsel called
General Manager James BePlatt who convincingly testified
that he was dissatisfied with Schneider from the first day of
her employment and that Schneider was discharged be-
cause she was "goofing off." Upon further questioning by
General Counsel, BePlatt described with particularity the
reasons for his displeasure with Schneider's performance.
When she first reported to work she wore a " plunging
neckline dress where you could practically see her navel."
The next day BePlatt spoke to Head Hostess Blanchard
about Schneider's attire and instructed Blanchard "either
to straighten that girl out or she doesn 't stay anywhere
around ." 9 BePlatt further testified that he frequently ob-
served Schneider away from her work station without rea-
son. On one particular occasion , about a week or 10 days
before her termination, BePlatt observed Schneider stand-
ing at her station talking to two young men for about 20
minutes . He finally telephoned Schneider and directed her
to get rid of the men. She, nevertheless , continued to talk
with them for another 10 or 15 minutes .10 According to
7 The Employer would include but General Counsel would exclude three
additional employees from the unit and General Counsel would include but
Respondent would exclude Thomas Hawke from the unit.
$ Schneider was not specifically notified that she was discharged. Her
termination was effected by omitting her name from the work schedule.
This was the practice which Head Hostess Blanchard followed whenever
she wished to terminate a waitress or a hostess.
9 Schneider testified that she was reprimanded by Blanchard for the gar-
ment she wore on her first night of work.
10 Schneider testified that she spoke with the men only 3 or 4 minutes
before BePlatt telephoned her and that they left I or 2 minutes after the call.
What is significant about the incident is not how long Schneider talked with
the young men but that she behaved in a fashion that impelled BePlatt to
BePlatt, Schneider "was one of the poorest hostesses that
we've had the misfortune to hire." He explained: "She had
no responsiveness to people. She doesn't greet them. She
doesn't smile at them. She doesn't talk to them. She doesn't
say, `We're glad to see you.' The duties she performs, such
as she did perform, could have been performed by a wood-
en robot."
BePlatt further testified that he spoke to Blanchard four
or six times concerning his dissatisfaction with Schneider.
Schneider finally was terminated when a suitable replace-
ment was found. BePlatt left the decision to Blanchard and
Wilson as to when Schneider should be terminated.
Lenore Blanchard, who was called as a witness by Re-
spondent, in general, corroborated BePlatt regarding
Schneider's work deficiencies and in several respects am-
plified them. The testimony of BePlatt and Blanchard re-
garding Schneider's poor performance was in no way im-
peached or contradicted.
Schneider, who was called as a witness by General
Counsel, testified that she filled out a union authorization
card and had discussions with three waitresses, Kathy Koc-
sis, Mary Kiley, and Jane Shapiro, about the Union. She
did not attend any union meetings and was not otherwise
active in its behalf. Schneider further testified that in early
October, in the presence of Jane Shapiro and Kathy Koc-
sis, Blanchard said, "We know who's for the union, we
know who signed those cards, we don't mind that you're
for the union but you don't have to be so sneaky about it."
Neither Shapiro nor Kocsis were called as corroborating
witnesses. Blanchard denied making the remark attributed
to her by Schneider. I credit Blanchard's denial.I I Accord-
ingly, I shall recommend dismissal of the allegation of the
complaint which is based upon the alleged quoted remark.
In view of the minimal union activity on the part of
Schneider, the absence of evidence that Respondent knew
that Schneider had signed a union card or was interested in
the Union, the lack of animus on the part of the Company
towards its employees who supported the Union, and the
uncontradicted evidence that Schneider was an unsatisfac-
tory employee, I find that Schneider was discharged for
cause and not for her union activities.
2. Carolyn Hanson
Carolyn Hanson was hired as a waitress in January 1974
before the Inn opened for business. She was one of the first
employees hired and was considered by management to
have been a competent waitress. Hanson was an active
supporter of the Union, which was known to Food and
Beverage Manager Wilson. Furthermore, company man-
agement received copies of the Union's communication
dated November 27, 1974, which, among other things, des-
reprove her by telephoning her at her work station.
11 Of the two , Blanchard impressed me as being the more credible witness.
Furthermore, Nancy Farrell , a witness for General Counsel, testified that at
the end of September she and another waitress . Rita Dugal, overheard
Housekeeper Main say to Blanchard that Main knew that certain girls had
signed cards for the Union and Blanchard replied that none of her . girls had
signed union cards . This tends to support Blanchard 's testimony that she
had no knowledge of any union interest on the part of Schneider or that she
had any discussion about the Union with Schneider or in Schneider's pres-
ence.
NORTH ADAMS INN CORP. 811
ignated Hanson as one of the union observers at the elec-
tion scheduled for December 19. Hanson was terminated
as of December 2, 1974.
Wilson was called to testify as a witness for General
Counsel. He gave his testimony in a straightforward man-
ner without equivocation or evasion. He appeared to be a
sincere and truthful witness and I credit the testimony giv-
en by Wilson, particularly as he was questioned as an ad-
verse witness by General Counsel before he had an oppor-
tunity to hear Hanson's testimony.
Wilson testifed that Hanson was terminated because she
refused to work during the Thanksgiving holiday week al-
though she was scheduled to work that week and in con-
nection with her refusal "[s]he issued an ultimatum to me
that either she was going to have the Thanksgiving holi-
days off because her husband was on vacation at that time
or she was going to quit and she didn't care if we had to
replace her." According to Wilson, the Company accepted
the second alternative. Wilson explained that Hanson had
taken an extended leave of absence in July to visit her
father in Spokane, Washington, and two waitresses who
worked on the same shift as Hanson, Rita Dugal and Nan-
cy Farrell, complained to him that it was not fair that Han-
son should be given two vacations in the same year.12 Wil-
son placated the waitresses by telling them that Hanson
was going to work Thanksgiving week.13 Wilson further
testified that the day after Thanksgiving, when Hanson did
not work as scheduled, he and Head Hostess Blanchard
reached a decision not to schedule Hanson anymore, which
in effect constituted her termination.14
Hanson was next called as a witness by General Coun-
sel. She testified that she had asked for 2 weeks off begin-
ning on July 12 to visit her father who was infirm. When
she returned to Massachusetts she discovered that she was
ill with a respiratory infection. As a result she did not re-
turn to work until August 16.
On Tuesday, November 19, according to Hanson, she
asked Blanchard for the Thanksgiving week off because
her husband was going to be on vacation during that week.
Blanchard said, "Yes." 15 Later the same day Hanson made
the same request to Wilson who also approved. Upon re-
turning from her week's vacation, on December 1, Hanson
telephoned the Inn to ascertain when she was scheduled
for work and was told that her name was not on the sched-
ule. The next morning she went to the Inn but was unable
12 The waitresses are not compensated for vacation time or other times
that they do not work. Accordingly, the Thanksgiving holiday week which
Hanson wished to take off would have been time off without pay.
13 According to Wilson, Hanson told him that "she didn't care if we re-
placed her but she absolutely refused to work [Thanksgiving week]." De-
spite her forceful assertion and Wilson 's response to her that "we would
have to replace her ," Wilson testified that he believed nevertheless that
Hanson would work Thanksgiving week.
14 A form which the Employer filed with the Commonwealth of Massa-
chusetts Division of Employment Security indicates that Hanson was sepa-
rated for lack of work . In that connection Wilson testified without contra-
diction that "Hanson informed me that she couldn't collect unemployment
because she was broke and so forth and so on . She was crying and making
a considerable scene ." (Hanson testified after Wilson so that there was
ready opportunity for General Counsel to have questioned Hanson regard-
ingsthis testimony on the part of Wilson.)
Hanson testified that another waitress , Nancy Farrell, overheard the
conversation . Farrell denied that she overheard the conversation.
to speak to any supervisor.16 On December 3 she was able
to speak with Blanchard and inquired why her name was
not on the schedule and Blanchard replied that she had
nothing to do with the matter and that Hanson should talk
to Jack Wilson. Hanson then went to Wilson and asked
why her name was not on the schedule. She testified, "He
told me that I put him in a hell of a bind, that I left without
permission and the girls were bitching because I had taken
a second vacation and I brought up the subject of our
agreement that I would work Christmas and New Year's
Eve parties for having Thanksgiving off." 17 Shortly there-
after Hanson again spoke with Wilson. "I asked him if he
would give me the reason that I was no longer on the
schedule, was because of the Union and he said yes."
Blanchard was called as a witness for Respondent. Ac-
cording to Blanchard, in the morning on November 20,
before she had begun to prepare the waitress schedule for
Thanksgiving week, Hanson asked for the week off.
Blanchard replied that they were short of help and she
didn't think it was possible but she would see what she
could do. When Blanchard made out the schedule that
morning she scheduled Hanson for work during
Thanksgiving week. Later the same morning after Hanson
had observed that her name was listed to work Thanksgiv-
ing week she said to Blanchard, "I'm just not working
Thanksgiving .... My husband is on vacation and I am
not working. I don't care if you even replace me." Accord-
ing to Blanchard, this conversation was overheard by Rita
Dugal, another waitress. Blanchard received complaints
from three waitresses, Shelia Bouley, Rita Dugal, and Nan-
cy Farrell, that they didn't think it would be fair for Han-
son to have Thanksgiving week off after she had had a long
vacation earlier that year.
Although Hanson was emphatic when she told Blanch-
ard that she would not work Thanksgiving week, Blanch-
ard did not remove her name from the schedule until Sat-
urday or Sunday, November 23 or 24, the last day that
Hanson actually worked.'s As a result of Hanson 's refusal
to work, according to Blanchard, the shift that she was
scheduled to work during the Thanksgiving week had to
operate with one waitress short. About 3 or 4 days after
Thanksgiving she and Wilson discussed the subject of
16 Hanson testified, "I got a cold shoulder from Rita Dugal." Hanson's
testimony indicates that she believes that she was not liked by the other
waitresses with whom she worked.
17 According to Hanson, on November 19 when she asked Wilson for the
Thanksgiving week off he inquired whether she would be willing to work on
Christmas and also on New Year's Eve and she told him that she would.
This testimony is inconsistent with an affidavit which Hanson furnished a
representative of the National Labor Relations Board on January 7, 1975.
In her affidavit Hanson makes no mention of any discussion with Wilson
about working on Christmas or New Year's Eve during their conversation
on November 19. However , with respect to her conversation with Wilson on
December 3, the affidavit states, "I then asked him if he was laying me off
because of the other girls' bitching and he said yes. To make up for this I
then offered to work Christmas day but he said that he didn't know if they
were going to be open then but then he asked if I would work New Year's
Eve for the big party. I thought for a moment but then said that I would and
he offered to let me change downstairs and spend the rest of the night with
my husband having dinner in the place. I accepted this but asked what I was
suppose to do for work on a permanent basis. He suggested that I sign up
for unemployment, that it was kind of dead right then in the hotel."
Is Unlike Wilson, Blanchard testified that there was no question in her
mind that Hanson was not going to work Thanksgiving week.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanson and Wilson instructed her not to schedule Hanson
any longer , which in effect constituted Hanson 's termina-
tion.
The first issue to resolve in connection with Hanson's
discharge is whether, as she testified, she was given permis-
sion to take the Thanksgiving week off or whether that
permission was denied her. I am of the opinion and find
that the testimony of Wilson and Blanchard is more credi-
ble than the testimony of Hanson and that she was denied
permission to take off Thanksgiving week." This finding
does not necessarily dispose of the allegation in the com-
plaint regarding Hanson if Respondent 's decision to termi-
nate Hanson was, in part , motivated by Hanson 's union
activities . There are factors which make Respondent's ex-
planation for Hanson 's termination suspect. Hanson was
one of the longest service employees at the time of her
discharge, she was a competent waitress , and her offense
was not serious . She insisted upon taking I week 's unpaid
vacation under sympathetic circumstances ; namely, to ac-
company her husband on his vacation. On the other hand,
it is not illogical that an employer would discharge an em-
ployee , even a competent employee, who was as defiant as
Hanson was when her request for the time off was denied.
Furthermore, there is no evidence that the Company bore
any animus towards employees who favored the Union. If
the Company was not disposed to engage in reprisals
against Hawke , who it knew was responsible for the orga-
nization of its employees, it does not seem likely that it was
disposed to discharge Hanson whose union activities were
less significant 20 While there are suspicious circumstances
suggesting the possibility that Respondent was not com-
pletely innocent in the action it took against Hanson, nev-
ertheless, I find that the General Counsel has not proved
by a preponderance of the evidence that Hanson's union
activities in any manner contributed to Respondent 's deci-
sion to terminate her employment . Accordingly, I shall rec-
ommend that the complaint be dismissed insofar as it alleg-
es that Hanson was unlawfully terminated.
3. Michael Collier
Michael Collier was hired in the early summer of 1974 as
a breakfast cook. He was peremptorily discharged on De-
cember 6, 1974, by Food and Beverage Manager Jack Wil-
son.
Collier signed a union authorization card at the request
of Tom Hawke. He attended union meetings and about the
19 In various respects Hanson overemphasized and elaborated upon mat-
ters which she conceived favorable to her position in this case ; and in other
respects , particularly in connection with her testimony about Michael
Colliers performance , she tried to minimize any adverse effect her testimo-
ny might have upon the Union's cause . I am of the opinion that Hanson did
not give her testimony strictly in accordance with her recollection of the
events but sought to shape her testimony to lend support to her position and
to the Union 's position in this case.
m "[T]he General Counsel had the burden of proving . . . union animus
as the motivation for the discharge . The General Counsel failed to meet this
burden . Indeed, the Administrative Law Judge found , a finding which we
adopt, that evidence of union animus on the part of the Respondent was
'totally lacking.' Having made this finding , a violation could not be found
under the theory of the complaint without further inquiry into the matter.
[ Fn. omitted.]" Sifter Corporation, 217 NLRB No. 51 (1975).
time that Hawke quit his full-time employment with the
Company Collier was informed by Union Representative
Edward Wall that he was voted "an unofficial job steward,
sort of like the union representative in the kitchen." Also,
Collier was listed in the Union's communication of No-
vember 27 as a member of the negotiating committee and
as the individual who would appoint an election observer.
Collier was discharged about noon on December 6,
1974, immediately following an incident involving himself
and Head Hostess Lenore Blanchard. According to
Blanchard, before noon on that day Collier, who was at the
kitchen window which opens into the dining room, called
to her saying he wished to speak with her. When Blanchard
came to the window Collier wanted to know why Carolyn
Hanson had been taken off the schedule. At first Blanch-
ard said she did not know but then gave him the explana-
tion that she had been under pressure from the other wait-
resses because Hanson had taken two vacations. Collier
proceeded to tell her that she was not to bring anyone into
the dining room, hire anyone from the outside, or transfer
anyone from the banquet room, and threatened that if she
did, "or else." Collier then complained that Blanchard had
let another girl go. Blanchard denied that and said that it
was the girl's day off to which Collier replied, "You are a
liar." Collier spoke to Blanchard in a very loud voice and
alternated between shaking his finger at her and hitting his
fist on the wooden counter in the opening between the
kitchen and dining room. Blanchard further testified that
there were quite a few people in the dining room either
having coffee or finishing their breakfast. She was embar-
rassed as she walked away; she felt nervous and began to
cry.21 Jack Wilson observed her crying in the lobby and she
told him what had happened. Wilson said that he would
talk to Collier.
General Counsel's first witness with respect to Collier's
discharge was Jack Wilson. Wilson testified that he dis-
charged Collier because of the incident which was reported
to him by Blanchard. According to Wilson's further testi-
mony, Collier generally was an unsatisfactory employee.
He was chronically late reporting to work which delayed
breakfast and inconvenienced other employees, particular-
ly the waitresses. There were frequent customer complaints
about Collier's cooking. And had the Company not been
lenient towards Collier he would have been discharged
much sooner.
Regarding Collier's unsatisfactory performance on the
job, Wilson was corroborated by witnesses called by both
General Counsel and Respondent. Even Collier testified
that during the months of November and December he
had a feeling that management was dissatisfied with his
work because of "the numerous complaints that I was get-
ting about my home fries [cold potatoes]."
Carolyn Hanson, who in her testimony sought to mini-
mize Collier's derelictions, testified that she received occa-
sional customer complaints about the food prepared by
Collier.
Thomas Hawke, another witness for General Counsel,
testified that he was aware of complaints that Collier regu-
21 1 do not credit Collier's version of the encounter between himself and
Lenore Blanchard.
NORTH ADAMS INN CORP. 813
larly served cold potatoes. He also testified that on at least
one occasion he substituted as breakfast cook because Col-
lier had reported to work late,22 and that Blanchard in-
formed him on two occasions that customers had com-
plained about having to wait unduly long for their
breakfasts. Hawke further testified that he observed Collier
reading a newspaper from time to time during Collier's
working hours. Finally, Hawke testified that prior to the
date that Collier was terminated "I actually had a feeling
that he was getting close to being terminated and I wanted
to talk to him and let him know what was happening so it
wouldn't come as such a great surprise to him." Hawke
explained that the problem with Collier concerned the
quality of Collier's work, Collier's personality, and the gen-
eral feeling towards him.
Blanchard, a witness for Respondent, testified that she
received numerous complaints from the waitresses that
they had to look for Collier or had to wait too long for the
orders they had placed with him. She also testified that she
observed Collier reading in the kitchen many times. When
she spoke to him about the matter Collier told her to go
away and not to bother him.
Chef Dirk Stark testified that about a month before Col-
lier was discharged he spoke to Collier about the com-
plaints he had heard concerning Collier's performance and
about Collier's chronic tardiness. Further, according to
Stark, during Collier's last 2 months of work Stark received
almost daily complaints about Collier's poor performance.
Not long before Collier was discharged Stark spoke with
Hawke about replacing Collier.
The evidence is overwhelming that Collier was generally
an unsatisfactory employee. It was not unnatural that Wil-
son peremptorily discharged Collier after he had been abu-
sive towards Head Hostess Lenore Blanchard and had up-
set her to the point of causing her to cry. I find, therefore,
that Collier was discharged for cause and not because of
his union activities.
subtle reminder to them that their employer, who volun-
tarily provided them with this bounty, might be the source
of other generosities in the future if they voted in the pend-
ing election in a manner that would please the Company.
This potential was emphasized by Wilson's December 10,
1974, letter to the employees wherein he stated, "The fact is
that a union can obtain for you only what your Company
is willing to give. Now you must ask yourself whether your
management is willing to give more to a union than they
are directly to you." I find that by granting Thanksgiving
Day holiday pay to the employees under the circumstances
found here the Company has interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act and thereby has violated
Section 8(a)(1).13
The Union's objections to the conduct of the election do
not directly nor indirectly refer to the Thanksgiving Day
holiday pay granted the employees by the Company. The
Regional Director's report with respect to the Union's ob-
jections to the conduct of the election also makes no refer-
ence to the subject. The Board's Order of April 2, 1975,
directs that "a hearing be held for the purpose of receiving
evidence to resolve the issues raised by Petitioner's Objec-
tions Nos. 1, 2 and 13 and that such hearing may be con-
solidated with any hearing in Case 1-CA-10309, and held
before an Administrative Law Judge to be designated by
the Chief Administrative Law Judge." It is noted that the
hearing directed by the Board is limited in scope; namely,
to the issues raised by the Union's objections. In the cir-
cumstances, while I find that by giving holiday pay to its
employees for Thanksgiving Day 1974, the Company un-
lawfully interfered with its employees' statutory rights, I
further find that such conduct does not constitute a basis
for setting aside the election held on December 19, 1974, as
no valid objections were filed with respect thereto.24
D. Holiday Pay
The employees in the voting unit were given holiday pay
for Thanksgiving Day, November 27, 1974, although no
employees in these classifications were paid for any prior
holidays such as Memorial Day, Fourth of July, and Labor
Day. Respondent's explanation is that,.as the Inn did not
open for business until January 1974, its policies were cha-
otic and disorganized and management had not prior to
Thanksgiving given any considered thought to holiday pay
for the employees. This, of course, does not excuse an infr-
ingement upon employees' statutory rights. Giving the em-
ployees pay for the Thanksgiving Day holiday when there
was no prior practice calling for such benefit and the ac-
tion was so close to the December 19 election would tend
to influence the employees' vote in the election. It was a
22 In a pretrial affidavit which Hawke furnished to an agent of the Board
he stated: "There were maybe two or three times that I had been called in to
fill in for Mike in the morning shift and I believe that I probably did talk to
Jack [Wilson] about this saying that 'I was tired of this bullshit, coming in
for someone when someone didn't make it.' This conversation must have
been two months before Mike got fired. I don't recall filling in for Mike in
the last two months before he got fired."
E. The Representation Proceeding
One of the objections to the election, as amplified by
General Counsel, is that the names of supervisory employ-
ees, Jack Wilson and Lenore Blanchard, were included on
the "Excelsior list" and they were permitted to vote without
challenge . General Counsel argues that the presence of
Wilson and Blanchard at the polls, even for the relatively
short period involved in casting their ballots, exerted an
undue and unfair influence upon the other voters. General
Counsel cites no authority for this proposition. I know of
none. 25
As I have found no evidentiary support for the other
objections to the conduct of the election I shall recommend
that the objections be overruled and that the results of the
election be certified.
23 N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964); Newport Division
of Wintex Knitting Mills, Inc., 216 NLRB 1058 (1975).
24 A lbuquerque Publishing Company, 219 NLRB 631 (1975); Hecla Mining
Company, 218 NLRB 1860 (1975).
25 Compare: Helfrich Vending, Inc., 209 NLRB 596 (1974): Colonial Lin-
coln Mercury Sales, Inc., 197 NLRB 54 (1972), enfd. 485 F.2d 455 (C.A. 5,
1973).
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Company has engaged in unfair
labor practices I shall recommend that it cease and desist
therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By granting to its employees holiday pay for
Thanksgiving Day 1974, at a time when the Union was
seeking to organize its employees and during the pendency
of a representation proceeding before the Board, the Com-
pany has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, in violation of Section 8(a)(1).
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
3. The Company has not engaged in any of the other
unfair labor practices alleged in the complaint.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER26
Respondent, North Adams Inn Corporation, North Ad-
ams, Massachusetts, its officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Interfering with , restraining, or coercing its employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act by granting them economic benefits or by chang-
ing the terms or conditions of their employment; provided,
however, that nothing in this recommended Order shall be
construed as requiring the Respondent to vary or abandon
any economic benefit or any term or condition of employ-
ment which it has heretofore established.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its place of business in North Adams, Massa-
chusetts, copies of the attached notice marked "Appen-
dix." 27 Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations in the
complaint of violations of Section 8(a)(1) and (3) be dis-
missed except insofar as a specific finding of violation of
Section 8(a)(1) has been made above.
IT IS ALSO FURTHER RECOMMENDED that the objections to
the conduct of the election in Case 1-RC-13520 be dis-
missed and that a certification of results of the election in
said case shall issue.
26 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.
27 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in
Section 7 of the Act by granting them economic bene-
fits, or by changing the terms or conditions of their
employment, provided, however, that nothing in this
Decision and Order requires us to vary or abandon
any economic benefit or any term or condition of em-
ployment which has heretofore been established.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage
in any other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
NORTH ADAMS INN CORPORATION