Posadas De Puerto Rico Associates

National Labor Relations Board - Board Decisions

Feb 27, 1980

247 N.L.R.B. 1421 (N.L.R.B. 1980)

POSADAS DE PUERTO RICO ASSOCIATES
Posadas de Puerto Rico Associates and Juan L.
Sanabria. Case 24-CA-4003
February 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEIlO., AND
TRUESDALE
On January 8, 1979, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
' The Charging Party has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolulions 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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was heard before me in Hato Rey, Puerto Rico, on October
16 and 18, 1978, upon the General Counsel's complaint
which alleged generally that on or about February 20, 1978,
Respondent discharged Juan L. Sanabria in violation of
Section 8(a)(3) of the National Labor Relations Act, as
amended, 29 U.S.C. § 151, e seq. It is also alleged that
Respondent engaged in certain activity violative of Section
8(a)(1 ) of the Act.
' The connection, if any, between the hotel and the casino is not set forth in
the record.
Respondent generally denied the substantive allegations of
the complaint and contends that the discharge of Sanabria
was for cause.
Upon the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
Respondent is a partnership engaged in the operation of a
gambling casino at the Condado Holiday Inn Hotel in San
Juan, Puerto Rico. In the course and conduct of this
operation, Respondent annually derives gross revenues in
excess of $500,000. Respondent annually purchases directly
from points outside the Commonwealth of Puerto Rico
goods, products, and materials valued in excess of $50,000.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Associacion de Empleados de Casino de Puerto Rico
(herein the Union) is admitted to be, and I find is, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGEI) UNFAIR LABOR PRACTICES
A. The Background Facts
Though unclear from the record, it appears that some
time in 1975 the hotel was closed for a period of 7 or 8
months and then reopened under its present management as
a Holiday Inn. Similarly, the casino was closed and then
reopened on September 1, 1975, under the management of
Respondent.'
The Union had represented the employees of Respon-
dent's predecessor with whom it had a series of collective-
bargaining agreements covering a bargaining unit of casino
employees, including croupiers and doormen. When the
casino reopened under the management of Respondent, the
employees who had worked for Respondent's predecessor
were hired, and a collective-bargaining agreement between
the Union and Respondent was executed. Because many of
the croupiers personally did not like one doorman, at their
request, when this contract was negotiated, doormen were
excluded from the bargaining unit.
Juan Sanabria came to work for Respondent as a doorman
sometime in the late summer or fall of 1976. He worked the
8 p.m. to 4 a.m. shift. His primary function was to stand at
the door of the casino and, among other things, enforce the
Puerto Rican regulation which requires all males entering
the casino after 8 p.m. to wear a coat. If a potential customer
is not wearing a coat, a coat owned by Respondent is
247 NLRB No. 192
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DECISIONS ()OF NATIONAL LABOR RELATIONS BOARD
available which the doorman fetches and loans the customer.
This is a gratis service.'
On or about October 25, 1977, Sanabria typed a petition,
the effect of which was that the two regular doormen and the
security officer, who is licensed as a doorman and functions
as such on breaks and vacations, wished to join the Union.
Sanabria and the other two executed this document which
Sanabria then submitted to the Union via its secretary, Jose
Antonio Aponte.
Aponte in turn submitted this petition to the president of
the Union; however, no action was taken on it at that time
inasmuch as there was more pressing business, namely, the
election of officers. This election was held on November 14,
1977.
Indeed, there is no indication that the petition was ever
acted on by the Union. However, in the summer of 1978,
during negotiations for the new collective-bargaining agree-
ment, the Union and Respondent agreed to include doormen
in the bargaining unit.
The General Counsel contends that Sanabria's activity in
typing the petition and signing it was the motivating cause of
his discharge on February 20, 1978; or, in the alternative,
that Respondent was motivated to discharge Sanabria
because he was friendly with Aponte, known to Respondent
to be one of the members opposed to a slate of officers
backed by Respondent in the union elections.'
B. Analysis and Concluding Findings
It is fundamental that the General Counsel has the burden
of proving all allegations in the complaint. It is also
fundamental that an employer may discharge an employee
for any reason or no reason except where motivated by that
employee's union or other protected activity. Thus, the
principal issue in this matter involves Respondent's motive
for discharging Sanabria, and on this the General Counsel
has the burden of proof by a preponderance of the credible
evidence. This burden may be met by circumstantial
evidence and inferences, particularly of discriminatory mo-
tive, are permitted. Shattuck Denn Mining Iron King Branch
v. N.L.R.B.. 362 F.2d 466 (9th Cir. 1966).
However, simply because one event follows another
chronologically does not imply causal connection between
them. Thus union activity of an employee followed by his
discharge does not itself prove that the discharge was the
result of a motive proscribed by Section 8(a)(3). E.g., Deven
Lithographers. Inc., and Cavalier Multicolor Corp., 224
NLRB 648 (1976), where an observer for the union in an
election was discharged for having another employee punch
his timecard after he left work.
In substance, the General Counsel contends that an
unlawful motive in this matter may be infered because the
reasons advanced for Sanabria's discharge are not reason-
able. From this I am to infer that the true motive lies
elsewhere, namely, Sanabria's activity in seeking representa-
tion by the Union of the doormen.
Again. while unclear from the record, there is some indication that when
the casino reopened in 1975 the diormen, rather than Responldent. owned the
coats and the) would charge ptllenlial customers $1. practice which
Respl\ldent stopped.
Apparcentl on the petition of Aponte, tile results of the November election
While the circumstances of Sanabria's discharge have an
element of suspicion, such falls far short of the required
quantum of proof to support an inference of unlawful
activity.
Respondent contends that it discharged Sanabria in part
because he had been drinking at a Christmas party in
December 1977, had solicited tips from customers, and had
on occasion fallen asleep on the job (Sanabria works a full-
time second job). Inasmuch as none of these events occured
on or about February 20 and since Causa was unable to
testify to any particular event which might have precipitated
the discharge, a doubt is cast on the reasons advanced by
Respondent. However, such does not establish the unlawful
motive sought to be proved by the General Counsel.
Cutting the other direction is that Sanabria engaged in no
union or other protected activity near or about February 20.
His minimal union activity last occured some 3 months prior
to his discharge, which tends to render unlikely a causal
connection between these events. The timing of the dis-
charge does not relate to any union or other protected
activity-a point which tends to show that there was no
causal connection.
But beyond that, there is absolutely no basis to believe
that Causa, or Respondent, cared whether Sanabria and the
other two doormen were represented by the Union in the
bargaining unit.
As far as I am able to determine from this record, Causa
had an amicable relationship with the Union, both as
manager for Respondent and as manager for Respondent's
predecessor. Causa credibly testified that it made no differ-
ence to him whether the Union represented 92 employees or
90. And this is plausible.
On the other hand, the General Counsel offered no
evidence, other than a vague assertion that Respondent
might have been called upon to make higher fringe benefit
payments, to support his contention that Respondent would
reasonably be motivated to thwart the doormen in their
attempt to be represented by the Union.
And finally, during negotiations in the summer of 1978,
Respondent agreed, apparently without difficulty, to inclu-
sion of doormen in the bargaining unit.
As direct evidence of motive, the General Counsel relies
on two conversations allegedly occurring between Sanabria
and Causa. The first was in early November 1977, shortly
before the Union election and shortly after Sanabria had
submitted the petition to the Union. Sanabria testified that
Causa told him he had learned about the petition and "it was
not agreeable that I become a member of the union and to
forget completely that petition as well as my other co-
workers . . . that he was not going to permit any union
people at that door."
The second conversation took place, according to Sanab-
ria, toward the end of January 1978 within minutes after
Causa saw Sanabria talking to Aponte. Causa called Sanab-
ria into his office, "[a]nd he told me that I had kept on doing
all the things that he had warned me about because I kept
insisting in trying to become a member of the union. And he
were set aside by the Department of Labor. In the re run elecion. awcording
to Apontle. his slate of candidatec won. with him being elected secretary. his
incumbent pxsitioin. although at the firstl election he had rutn or president.
There is no record esidence concerning the basis upon which the November
14 electionl was set asidc.
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POSADAS DE PUERTO RICO ASSOCIATES
told me that I had kept on getting together with the other
members of the union and that he was not in agreement with
that and with much less with Mr. Jose Antonio Aponte."
Causa then went on to tell Sanabria that if he valued his
"beans" (a Puerto Rican colloquialism meaning livelihood)
he had better stop doing these things.
Causa denied the substance of these conversations testified
to by Sanabria.
I am constrained to credit Causa over Sanabria. I
conclude, considering both their relative demeanor and the
inherent probabilities in this matter, that the conversations
did not take place in the substance testified to by Sanabria.
In this critical matter I found Causa to be a more reliable
witness than Sanabria.
Beyond demeanor, there is no corroborative evidence
which would indicate that Causa would make the statements
attributed to him. There is simply no evidence in this matter
tending to show that Causa cared whether Sanabria was a
member of the Union or not. Nor is there any suggestion of
how Causa was suppose to have found out that Sanabria had
initiated the petition and had given it to the Union. There is
nothing from which I can infer that Causa knew that the
petition had been written and signed by Sanabria; or if he
knew, that it was a matter of sufficient concern that he
would discuss it with Sanabria.
There is no basis upon which I could conclude that
Respondent or Causa had any motive for keeping the
doormen out of the bargaining unit, noting that Respondent
excluded them at the insistence of the Union in the first
instance and then in 1978 agreed to include them again. In
any event, the two doormen would be only two in a unit of
more than 90.4
Given these facts, the November conversation alleged by
Sanabria makes no sense. There is just no showing that
Causa knew about the petition at that time or if he did
whether he cared or not.
Since Sanabria's version of the January conversation
relates back to the November one, finding that the Novem-
ber encounter did not take place requires finding that neither
did the one in January. I do not believe that Sanabria was
' There is a question, which need not he resolved here. whether the ecurity
guard/substitute doorman would he properly included. See Sec. 9(hX3) of the
Act.
' In the event no exceptions are filed a% provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings.
again warned about his union activity, as I do not believe he
was warned in November.
It may well be, as Causa admitted, that he cautioned
Sanabria against talking to a croupier while on duty. and it
may well be that Causa does not like Aponte. But, I cannot.
from these facts, infer an unlawful impression of surveillance
in Causa's comments or the threats alleged by the General
Counsel.
In short, the General Counsel's proof of unlawful motive
is predicated on the substance of two conversations which I
conclude did not happen.
The General Counsel contends that Aponte is not liked by
Respondent because he ran for office against its favored
candidate. Thus, when Sanabria was seen talking to Aponte
by Causa in late January. such was a sufficient tie-in to
conclude that the later discharge of Sanabria was violative of
the Act. But there is no proof that Aponte was out of favor
with Respondent because of his intraunion activity.
The General Counsel relies solely on the testimony of the
Charging Party to establish the allegations of threats in
paragraph 5(a), surveillance in paragraph 5(b), and the
unlawful motive for his discharge. As I discredit the
Charging Party's testimony concernling the substance of
these events, I must conclude that a proscribed motive has
not been proved. For this reason, an analysis of Respon-
dent's asserted reasons for discharging Sanabria is unneces-
sary because, at best, finding the reasons advanced unreason-
able is merely one element tending to support the finding of
an unlawful motive. I therefore conclude that the General
Counsel has not sustained his burden of proving the
substantive allegations in the complaint, and I will recom-
mend that it be dismissed in its entirety.
Upon the foregoing findings of fact, conclusions of law,
the entire record in this matter, and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER'
The complaint is hereby dismissed in its entirety.
conclusions and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusiorns. and Order, and all objections thereto shall hbe deemed
waived for all purposes.
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