Princeton Inn

National Labor Relations Board - Board Decisions

Mar 17, 1969

174 N.L.R.B. 1193 (N.L.R.B. 1969)

PRINCETON INN
The Princeton Inn Company d/b/a Princeton Inn
and Hotel , Motel , Bar, Restaurant and Cafeteria
Employees Union , Local 741, Hotel and
Restaurant Employees and Bartenders
International Union , AFL-CIO. Case 22-CA-3501
March 17, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On December 11, 1968, Trial Examiner A
Norman Somers issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions and a supporting
brief, and the General Counsel filed with the Board
a copy of his brief to the Trial Examiner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The Board has
considered the Trial Examiner's Decision, the
exceptions and briefs, and the entire record in this
case, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner
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 Trial Examiner, and
hereby orders that the Respondent, The Princeton
Inn Company d/b/a Princeton Inn, Princeton, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order
in adopting the Trial Examiner ' s finding that the Respondent's
operations meet the Board 's sip idards for asserting jurisdiction, we note
the complaint alleged, and the answer admitted , that less than 75 percent
of the Respondent ' s guests resided at the hotel for "a month or more"
during the preceding year The pleadings thus satisfy the test set forth in
Floridan Hotel of Tampa , 124 NLRB 261, 264 The Trial Examiner
inadvertently described the pleaded period as "3 months or more "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A NORMAN SOMERS, Trial Examiner This proceeding
was heard in Trenton, New Jersey, on September 25 and
1193
26, 1968, on complaint of the General Counsel issued July
25 on charges filed by the Union June 17, 1968, alleging
(apart from other conduct claimed to be in violation of
Section 8(a)(1)) that Respondent, on April 19, 1968,
discharged Alfred Visintini because of his activity in
support of the Union, thereby violating Section 8(a)(3)
and (1) of the Act. The parties waived oral argument and
the General Counsel and Respondent have filed briefs,
which have been duly considered. On the whole record and
my observation of the witnesses, I make the following
Findings of Fact
i. THE BUSINESS OF THE EMPLOYER ; THE LABOR
ORGANIZATION INVOLVED
Respondent, The Princeton Inn Company, is a New
Jersey corporation which owns and operates in Princeton
a hotel called The Princeton Inn. It has a gross annual
revenue of at least $1,000,000 a year, it receives at least
$75,000 worth of foodstuffs and materials from out of the
State annually; and the guests that stay 3 months or more
comprise less than 75 percent of the patronage. It is not
disputed and I find that Respondent is engaged in
commerce within the meaning of the Act, and it meets the
Board's standards for asserting jurisdiction over hotels
Floridan Hotel of Tampa, 124 NLRB 261
The Charging Party (the Union) is a labor organization
within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A Issue
On April 10, 1968,' Alfred Visintim was discharged
with a letter saying that the reason for his dismissal was
that that morning he used foul and abusive language to a
female employee (Marge Kennedy, the switchboard
operator), despite repeated warnings to him in the past
against it On April 9, the day before the discharge,
Respondent had received a demand for recognition from
the Union, which came after a 2 or 3 weeks card-signing
campaign, where the proselytizing and the procurement of
the cards were almost exclusively the work of Visintini
Respondent claims the dismissal letter told the reason like
it was. The General Counsel claims the letter told it like it
was not that when Samuel Stewart, vice president and
general manager, who discharged Visintini, handed him
the dismissal letter, Visintini, protesting that Stewart had
not even asked him his side of the story and was not even
letting him tell it now, said to Stewart he was discharging
him because of the Union, - and that the General
Counsel contends, was telling the reason like it was
This is the point of conflict Another issue is whether
Joseph Pirone, the chef, and Edward Chesnavage, steward
of the Inn (both supervisors subordinate to General
Manager Stewart), made statements to employees
invading their rights under the Act
B. Background
1. Employment record
Vismtini, at the time of his discharge on April 10, had
been employed as a cook for nearly 10 years He began at
The year in all instances is 1968 , except where otherwise indicated
174 NLRB No. 181
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$325 a month, and when discharged his wage was $120 a
week Though Visintini thought of himself as not readily
given to anger, his temperament was hardly on the placid
side, and he reacted with choler when under pressure or
provocation. This was apparently accepted as in the
nature of the man Pirone, the chef, who was Visintini's
supervisor, testified he was aware of that trait, and while
he would from time to time speak to Visintini about it, he
had never either orally or in writing warned Visintini
against it Visintini testified that there had been no
complaints whatsoever with the sole exception of an
occurrence some 2 or 3 months before his discharge with
-a waitress in which he reacted to her insistence on her
filling an order out of regular turn Pirone, who saw what
happened, testified he did not mention it to Vismtini, and
regarded the matter too trivial to mention it to Manager
Stewart Stewart raised it with Visintini in a conversation
between the two concerning which only Visintini testified 2
As Visintini described it, Stewart mentioned the
waitress incident casually to him at the end of a
conversation concerned with other matters Visintini
explained to Stewart that the waitress had been shouting
to have her order filled when there were other orders
ahead of hers, and he then slammed a "dupe box" (in
which order slips are placed) to call attention to the need
for awaiting her turn. The incident involved no use of
language Stewart told Visintini to be "more kind and
thoughtful," and the waitress (Marge Welch, as
distinguished from Marge Kennedy, the switchboard
operator), according to Vismtini's undenied testimony,
"did apologize later in the day for upsetting me."
2. The union activity
Visintini had been vocal on behalf of the Union for
some years. This was particularly so in 1965, the year of
the last election preceding the one of 1968 (The 1968
election was held after Visintini's discharge ) In the 1965
election (which the Union lost) General Manager Stewart
and Pirone, the chef, importuned Visintini to abandon the
Union (Stewart asking that he "stop kicking the ball
around"), but Vismtini continued his advocacy.
The Union renewed its campaign in March 1968 This
took the form of a surge of activity begun by Visintini the
latter part of March, in which he handed out leaflets to
and solicited nearly all of the 120 employees in the Inn
(This included his own kitchen contingent, which consisted
of about 32 employees, and the remainder of the
employees throughout the Inn, including bellboys, waiters,
busboys, maids, etc.) By April 8, when the Union wrote
Respondent demanding recognition Vismtini had signed
up all but 6 of the 80 signed authorization cards (After
Visintini was discharged on April 10, a representation
proceeding ensued in which the Union this time won the
election, and this was followed by a contract. The issue
'Stewart did not testify in the case On the second day of the hearing
after all parties rested, Respondent ' s counsel stated Stewart had an
incipient heart condition On the first day, when the General Counsel
completed his case-in-chief , Respondent ' s counsel asked for a recess to the
next day because his "principal witness" ( Stewart ) was ill but he expected
to put him on the next day The next day, after Respondent completed its
case and all parties rested , counsel for Respondent mentioned Stewart's
illness as the reason for his not appearing or putting him on The Trial
Examiner asked whether Respondent was applying for an adjournment in
order to have Stewart testify later Counsel replied he was not, that he was
merely explaining Stewart ' s absence
here, as stated, is Respondent's motivation in discharging
Visintini on April 10 )
In this activity in 1968, Visintini had sought to keep his
activity under cover of management However, his
campaign galvanized the employees into discussion
whenever a group of employees met and more particularly
in the cafeteria, - a place where Ed Chesnavage, the Inn
steward, had his lunch Eugene Crookston, a room waiter,
testified that about 2 days before Vismtini was discharged,
Chesnavage encountered him at the dormitory (where half
the employees had their sleeping quarters) and said, "I
hear Al's passing out cards again." Crookston feigned
ignorance, and Chesnavage replied, "Are you kidding)
Who are you kidding9" Four or five days before his
discharge, Pirone, the chef, took him aside and told him
to stop his activities on behalf of the Union in the Inn
property The property, in addition to the kitchen and the
Inn itself, encompasses also the 2-story dormitory which,
as stated, houses about half of the employees.'
Insofar as it bears on Respondent's view regarding the
Union, after Visintini's discharge and during the
representation proceeding, General Manager Stewart,
prior to the election, sent letters to the employees urging
them to reject the Union this time as they had done in
1965 Among the advantages the employees presently
enjoyed, Stewart's letters to the employees mentioned the
free lodging, which referred to the dormitory. Michael
Hennessey, a relief cook, testified that shortly before the
election Pirone, speaking to a "group of Spanish guys
over by the pantry." told them "that if the union got in
they would tear down the dormitories " He further
testified that about a week after the election, and before
negotiations had started, Chesnavage, overhearing
Hennessey and another employee saying between
themselves that "the union was now in," countered with
the statement that "you people [are] in for a surprise
because the dormitory is going to be torn down "°
C. The Discharge of April 10
I The argument
The encounter between Visintini and Marge Kennedy
occurred at about 6 45 in the morning. Visintini was then
in the kitchen preparing breakfast for the people in the
Inn, and Marge Kennedy, as she usually did before her
'Chesnavage and Pirone denied the respective testimonies of Crookston
and Vismtini Numerous infirmities in the testimony of Chesnavage and
Pirone cast the weight in favor of Crookston and Visintini concerning the
matter stated in the text above I have not credited Visintini 's further
testimony that Pirone in that conversation said that if Vismtini campaigned
on inn property "he won ' t have another chance," whatever that meant
However, Chesnavage and Pirone overplayed their claims of ignorance that
union activity was then going on Also, each claimed he had been as silent
about the Union in 1968 as he had concededly been vocal about it in 1965,
with no explanation for the difference or that they were under new
instructions from Stewart this time
'Pirone denied Hennessey ' s testimony regarding his conversation with
the "Spanish guys " Chesnavage ' s version of the dormitory discussion was
that Hennessey, in the company of the other employee said , " I see the
dormitory is still standing ," but that the place of residence of Chesnavage
(which is also owned by the Inn) would come down, to which Chesnavage,
as he testified , retorted , he "couldn ' t care less" because he could afford to
live outside the Inn while the employees in this conversation could not
That version has a strained quality However, it does unwittingly indicate
that before the election employees were apprehensive about the risk of
losing the dormitory if the Union won, and this tends to support
Hennessey's testimony regarding Pirone's statement to these "Spanish
guys " Hennessey ' s testimony is credited
PRINCETON INN 1195
shift started at 7 a.m., went to the kitchen for a glass of
"orange juice, coffee, or what have you." Visintini
testified the interchange started when Kennedy upbraided
him for not having told her he was organizing and
denounced him as unfit to "lead" or to "organize "
Kennedy testified it started with his accusing her of
maligning him to others and her insisting his version of
what she said to others was wrong These two were at
opposite ends of the spectrum on union sentiment Since
he knew Marge Kennedy's views, Visintini steered clear of
the Union subject with her, and their relationship, as both
testified, had been rather amicable In the 1965 election,
Marge Kennedy had been an observer for management In
that election, she was not part of the voting unit.
However, as an occupant in the dormitory and as "one of
the girls," she urged the female employees to vote against
the Union The Union lost. Visintint indicated in on
another context, that in 1965 the pro-union group did not
have the support of the female employees, but he felt that
in this, the 1968 campaign, the female employees were
with the Union. As mentioned before, during his 2 or 3
weeks campaign of 1968, Visintini approached just about
all the 120 employees However, he did not approach
Marge Kennedy, and this was not because he thought she
was ineligible to vote (the matter was still open then and
not resolved until sometime after the start of the
representation proceeding, which was after Visintini's
discharge) but because she had "campaign[ed]" against
the Union and he knew her attitude'
On April 9, as earlier stated, Respondent received the
Union's letter demanding recognition That day happened
also to be Marge Kennedy's birthday. She testified that at
a party the girls gave her that day, they spoke about the
revival of the union campaign and, so she testified, this
was the first she knew of it. This takes us to the morning
of April 10
As breakfast cook, Visintini's shift started at 6, which
was about an hour or more before the chef's starting time
Miss Kennedy's shift, as earlier mentioned, began at 7 At
about 6 45, while Visintini was getting the breakfasts
ready, Kennedy entered the kitchen to obtain her orange
juice and sundries. As mentioned, Visintini testified she
upbraided him for not having notified her that he was
again organizing, said he was "too sick because [he had]
cancer" (he had been hospitalized for it a year or two
earlier) and that he was "not fit to be a leader because
[he] lost last time " This, Visintini continued, angered him
and he asked her to "get the hell out of the kitchen." She
retorted that only the chef had the authority to order her
out He replied the chef had put him in charge for the
time until his arrival in the morning, she continued the
argument even though he had meanwhile left her to obtain
some supplies, he called attention to the fact that he had
some 70 employees to feed by 7 o'clock and another 180
or 190 guests to feed by 7 30, she continued the discussion
and he asked her to leave in words of one syllable
including "the" four letter word
Kennedy testified that she opened with "good
morning," and he asked her not to "good morning" him
and in profane language, said she had been maligning him
to others, that she asked him to tell how, and he replied
again with profanity but still with no particulars; she
continued to ask what it was she said that maligned him,
and he said she was telling others he was not "fit to be a
'Miss Kennedy testified that "Al has never approached me with a card,
has never asked me to a meeting In fact, he kept the meetings , the last
time, secret from me because he didn't want me to go to them "
leader" and to "organize " Kennedy testified that she then
told him, "Al, I said that two years ago or three years
ago that everytime you opened your mouth you lost a vote
for the union," whereupon he retorted with "get the hell
out of here you [scatalogical expression to denote currying
favor] you are nothing but management." Present during
a good part of the occurrence were Elvin Velez, the
pantryman, and Chesnavage, the steward. The versions of
all the witnesses - Visintini on the one hand and
Kennedy, Velez and Chesnavage on the other - are in
accord at least as to this* that during the interchange no
one remarked that Visintini was overstepping bounds in
the language he was using in the kitchen Miss Kennedy
testified at the hearing that she is "not above listening to
cursing or anything else, but I mean the language was
really atrocious." Yet her own version indicates that in
the encounter in the kitchen she took Visintmt's language
in stride, expressing no offense about his language but
reverting each time to whether she had said behind his
back what she would not say to his face. Chesnavage, the
only supervisor then on the premises, left the kitchen to
go to his own office, while the two were still at it He did
not suggest to Visintini that he was out of bounds because
of the language or to Marge Kennedy that this was no
place for her to be in with that kind of language used to
her Further, Chesnavage, in testifying concerning the
language used by Visintini kept saying to Marge Kennedy
"Mind your own business," which rather suggests where
the initiative in that interchange and the subject was
coming from But whoever started the subject, it was
rather clear that in the interchange between the cook and
the switchboard operator, the matter involved the subject
and not the nature of the language After Pirone, the chef,
arrived and came down to change clothes, Chesnavage
mentioned these two had argued, with no reference to the
quality of the language being a factor And Velez, who
was there when it started, testified that he left for his own
area (the pantry), because "over in the Princeton Inn
[kitchen], I mean it's so much arguing and so much
fighting all the time that might just as well walk off " He
testified that when he came back they were still arguing
"the reasons why he (Visintini) wasn't fit to be or I guess
the shop steward in the union." According to Marge
Kennedy, it was Velez who finally persuaded her to leave
the kitchen
2 Comments to and by management preceding
Stewart's discharge of Visintmi
Pirone, the chef, arrived that morning between 7 30 and
7:45. He was still in his car when "a couple of guys"
(whom he otherwise did not remember, except that they
were not Chesnavage or Velez or any part of his kitchen
crew) informed him that there had been "trouble" in the
kitchen When he entered the kitchen, Visintini
volunteered to tell him what happened. Pirone testified he
cut Visintini short with, "I don't care what you doing (sic)
but I don't want no trouble up in the kitchen." As
previously stated, when Pirone came to Chesnavage's area
to change clothes, Chesnavage told Pirone the two had
argued with no indication that the nature of the language
entered into it
At 9.30 Stewart called Pirone. Speaking to him alone,
Stewart told Pirone he was informed there had been
trouble, and asked Pirone what he knew about it Pirone,
as he testified, told Stewart "I heard that there was some
trouble between Al and Marge, and that was all " Stewart
told Pirone to come to his office with Visintini when the
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter completed his work for the day. Pirone did so at
2:30
So far as appears the only one Stewart had spoken to
about the matter was Marge Kennedy. She testified that
when Stewart came in at 9 she told him what happened
and Stewart said, "I will talk to him (Vismtini) and I will
take care of it" and "Don't worry about it." Other than
the inquiry to Pirone, to which Pirone testified as above,
Stewart inquired of no one else
3 Stewart's discharge interview with Visintini
As stated, Pirone, as instructed by Stewart that
morning, entered Stewart's office with Visintini at about
2:30 that afternoon. Stewart handed Visintini a letter and
told him he was dismissed. Visintini asked why and
Stewart referred him to the letter It read,
With this letter you are hereby dismissed from the
employ of the Princeton Inn. The reason is specifically
the ugly, abusive and foul language you uttered on
Wednesday morning in the kitchen of the Princeton Inn
to one of the female employees of the Inn
You have been repeatedly and specifically warned to
avoid this type of conduct The abusive language you
have used could be tolerated in no type of establishment
that had any respect for decency
We realize that you are sick and we have, because of
your condition, been tolerant by warning you on the
last such occasion which was within the past two
months We cannot, however, permit a repetition of the
verbal explosion of this morning, regardless of your
physical condition, and hence the need to take this
action
Vismtini testified he read the letter, and then
I said, don't you want to hear my side of the story? He
said, no, I heard enough I said, you are firing me
specifically because I have union activities, taking part
in the union And I said, I believe we are going to win
this time. Think whatever you want to think, he said,
I'm firing you for using abusive language
Pirone described Stewart as saying "I don't want that
kind of language to be used up in the kitchen "6
4 The language used in the kitchen
The evidence indicates that arguments in the kitchen
were frequent. There is no question but that profanity was
commonly used, and though Pirone, the chef, said it only
occurs when the kitchen help is joking and never when
they are serious, the evidence is to the contrary. The
evidence shows that those in the kitchen used profanity
between themselves and also to the female employees, and
the chef himself, his testimony to the contrary
notwithstanding, is no exception
As to whether obscenity is also used, Chesnavage
testified that in his 18 years at the Inn, he had heard "on
occasion hell or damn" but never before the
Vistntint-Kennedy argument had he heard, the foul
language, but, he added, "I'm not always in the kitchen "
The waitresses who testified at the hearing indicated that
when they were in the kitchen obscenities were uttered but
they were not directed against them, as distinguished from
the profanity by which they were frequently addressed.
Velez, the pantryman, as the final witness in the case,
drew a distinction between the utterance of "dirty
'Several employees later walked out in protest over the discharge
language" and its use as "an insult " Referring to the
"dirty word," he testified he has heard it used in the
kitchen, for "that's a popular word " He continued-
Q And you've heard it used where girls were in
there9
A Because . well, over there in that place I think
women no (sic) more about them things than men does
in that place
*
Q You've heard women using that word in the
kitchen , haven't you?
A Yes
D Discussion and Conclusion
The issue is one of motivation. Visintini was active on
behalf of the Union, but that does not vouchsafe an
employee his right to retain his job where because of his
conduct, apart from the Union, the employer genuinely
concludes he no longer wants him. On the other hand an
employer is not immune in discharging an employee where
the conduct is not the real reason for the discharge but is
the excuse for discharging an employee because of his
union activity.
This states the standard in its stark essence The real
reason in each instance is the conclusion derived from the
totality of the facts Issues concerned with motivation
involve us in a complex area where the evidence is seldom
direct and where the determination hinges on where the
balance of two opposing inferences are to be drawn '
The burden rests on the General Counsel to establish
that the inference that union activity was the reason or
was a contributory reason preponderates over the
opposing inference
Needless to say, there are weaknesses and strengths in
the inferences urged by both sides The Respondent indeed
opposed the Union in the sense that it preferred the
employees reject the Union. This was so in 1965 and was
also such in 1968 However, the invasions of the
employees' rights were rather limited ones, and imputable
only to the two supervisors These violations of employees'
rights before Visintini's discharge consisted of Pirone's
warning to Vismtini that he limit his solicitation of the
Union outside the Inn's property without distinguishing
between working and nonworking areas,' and the
interrogation of Chesnavage of Crookston regarding
whether Visintini was "at it again" in signing up
employees The invasion of employee rights after the
discharge and before the election consisted of the warning
by Pirone that if the Union won, the dormitory would be
torn down As a threat of deprivation of the accustomed
use of employees' living quarters if they supported the
Union, this was an act of interference and restraint in
violation of Section 8(a)(1) ' Also, taken in connection
with Manager Stewart's fervent appeals that they reject
'As stated in N L R B v L C Ferguson, 257 F 2d 88, 90 " seldom
can such intent be established directly and almost always must it be
inferred from the total sum of the evidence "
IS & H Grossinger's Inc , 156 NLRB 233, 261, enfd as modified 372
F 2d 26 (C A 2), Stoddard- Quirk Manufacturing Co, 138 NLRB 615,
Walton Manufacturing Company, 126 NLRB 697-699, enfd 289 F 2d 26
(C A 5)
'Art Metalcraft Plating Co , Inc, 133 NLRB 706, enfd 303 F 2d 476
(C A 3), Orkin Exterminating Company of South Florida , Inc, 136
NLRB 399, Sunbeam Plastics Corporation , 144 NLRB 1010
PRINCETON INN 1197
the Union and the gloating by Chesnavage after the
Union won that the employees were "in for a surprise" in
that the dormitory will be torn down the conduct
indicated an aversion by management to the Union, and
in that sense these matters are relevant on the issue of the
motivation for the discharge of Vismtmi.10 However, they
are hardly indicative in themselves of an intention to
discharge an employee for supporting a union.
We now turn to the other side of the picture. The
motivation for the discharge came solely from Stewart
Regrettably, we do not have his testimony (supra, fn 3),
and so we can only evaluate his motivation in the light of
the evidence without benefit of his own testimony and
presence on the stand In that connection, one considers
the reason in his letter in the light of the totality Stewart
in his letter stated that he dismissed Visintini as the
culmination of foul and abusive language to female
employees, against which Visintmt had previously been
warned. The evidence refutes the statement there had been
such warning Visintini had not been warned against such
language to fellow employees, male or female indeed,
there had been no complaint against Visintini on that
subject As previously stated, the incident involving
waitress Welch 2 months earlier , where he reacted to the
pressures exerted by her insistence on his completing her
order out of turn concerned no use of language. As stated,
it was regarded by his own supervisor, the chef, who
observed the incident, as too trivial to mention to Visintini
or Stewart, and the waitress later apologized to Visintini
for her action
The matter thus comes down to the encounter with
Marge Kennedy the morning of the day he was
discharged. Visintini's language included obscenity, and he
does not deny it. This raises the question of whether taken
in connection with the circumstances as a whole, the
occurrence would have impelled Stewart to dismiss an
employee of nearly 10 years tenure. It depends on the
context Had the interchange taken place, for example, in
the lobby, one need hardly speculate on the spontaneity
with which an employer would reasonably be expected to
act in such a situation But the realities being what they
are, language is condemned or tolerated depending on the
total context and surrounding Much hinges on the
personnel's customary mode of expression in the setting
involved and the tolerance with which it is accepted
Illustrative is the profanity (the hells and the damns)
alone, which the evidence shows is commonly used in the
kitchen with no one taking it amiss Yet that same
language if used in the lobby of an inn or in an office in
the presence of clients or patients would hardly be
tolerated. As to whether in the kitchen foul language also
got into the picture, the waitresses testified that it is used
when they are present, and Velez, as the final witness in
the case, gave the matter a touch of anticlimax by
observing that the bad word is "popular" in the kitchen,
and as he put it in his own way, has an even greater vogue
among the women. Allowing for a bit of chauvinism on
Velez' part, the sense of what he conveyed is that
employees male and female vented these expletives in the
kitchen
This pinpoints the dispute to the fact that in this
instance the language used was by a man to a woman If
that made the difference, one would have expected that
"Statements or pronouncement made after a discharge are still relevant
on the issue of the motive for the discharge E G Angwell Curtain Co v
N L R B , 192 F 2d 899, 902 (C A 7), citing Joy Silk Mills, Inc v
NLRB , 185 F 2d 732, 742 (C A D C )
Chesnavage, the only supervisor present during the
interchange, would have interposed to warn the cook
against saying any more or to admonish the switchboard
operator against listening to any more He did neither,
and he left the two in full flight to their own devices
Further, if Visintini was thought to have overstepped the
mores of the kitchen in the language he used, one would
have expected Chesnavage to have said something about it
to Pirone Yet all Chesnavage said after Pirone arrived
was that the two had had an argument When Stewart
called in Pirone alone after he heard from Marge
Kennedy, Pirone likewise told him that while he was not
there when it happened, all he knew was that there had
been trouble between the two The very fact that there was
no reference to the language would itself have indicated
that to those who saw it, the nature of the language was
not the matter in dispute but the depth of the disputants'
feeling over the subject This would at least have called
for Stewart to delve into what was the nature of the
provocation The times in which Chesnavage in his
testimony quoted Visintini as saying to Marge Kennedy,
"Mind your own business" would indicate, as previously
stated, that the initiative was coming to Kennedy, and at a
time when Visintini was preparing breakfast for over 200
people Miss Kennedy's own description of what happened
in itself indicates that this was a personal dispute between
them. On that score, Miss Kennedy related that in an
argument between them 2 or 3 years earlier, he threatened
to throw me out of the window," but she did not
complain because "I had seen Al in temper tantrums
before . . . and I just took it with a grain of salt actually,
because it was a personal thing really over using a
telephone " As to why she should have complained in this
instance, the claim that it was his language that made the
difference is evaluated against the fact that not only did
Chesnavage say nothing about the use of Visintini's
language when he saw the argument, but neither did
Marge Kennedy. Her account of the dialogue indicates
that in its every phase she reverted only to the subject of
the dispute with no indication that she was taking offense
to the language She testified that she is not fazed by the
use of profanity but that she drew the line at Vismtint's
other language Yet, as stated, nothing in the description
of the interchange during her testimony indicated that she
took offense to his language, as distinguished from the
matter to which she constantly reverted - whether she
had been maligning him to others as he claimed. Further,
during her testimony in which she herself mouthed the
specific language of Vismtint, she gave the impression of
wordly tolerance in which content and substance
superseded expression
As to whether Stewart himself was overcome by the
language as his letter indicated, since his own testimony
on the point is lacking, we must reasonably evaluate it in
the light of how those in authority immediately beneath
him took it As stated, Chesnavage made no point of it
when he heard the argument, nor did he do so when he
told Pirone about it Further, since Stewart had already
heard from Miss Kennedy when he called in Pirone the
first time alone and asked what he knew about it, Pirone's
response that there was some "trouble" between the two
"and that was all," places Stewart in this dilemma If
Pirone knew no more than that they had been in an
argument, his informants could not have thought that the
language used entered into the dispute. On the other hand,
if Pirone knew of the language and did not mention it to
Stewart when asked what he knew, then it indicated to
Stewart that his immediate supervisor knew no more
1 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the limits of language required in the kitchen than
the one for which Stewart was discharging Visintini
The result is that Stewart's statement of the reason for
the discharge is vulnerable on both scores, -- the assertion
that the language used by Visintini in the kitchen
overstepped existing bounds or if it did, that Visintini had
been warned against its use in the past That being so, one
must look further into the evidence to account for the
reason.
The fact is that the subject of the complaint Marge
Kennedy broached to Stewart was a personal one, in
which Stewart was hardly without an interest of his own
Its essence concerned the very subject which came to his
particular attention the day before when he received from
the Union the letter demanding recognition. To be sure, in
the election proceeding that followed after Visintini's
discharge, the Union won and Respondent negotiated and
signed a contract with the Union. However, viewing the
situation as of the time the Union made its demands,
Stewart wanted the Union defeated as his own letters to
the employees during the election made rather explicit
Visintini spearheaded the movement - a matter which
Stewart would assume from Visintini's prominence in the
1965 election and which would naturally have been
conveyed to him by Marge Kennedy in her account of the
argument she had with Visintini that morning We may
assume that Stewart had not been looking for a reason to
discharge Visintini, but the fact is that the interchange
furnished an occasion which could plausibly be asserted as
the reason for discharging Visintini and at the same time
dispose of the Union's pivotal figure and thereby aid
Respondent in its objective of seeing the Union defeated
now as it had been in the preceding election
We may assume also that Stewart was not altogether
indifferent to offensive language used in the kitchen
However, knowing what he had every reason to know
about the employees' use of such language in the kitchen,
with the complete tolerance of his subordinate who was in
charge of the kitchen, it is difficult to believe that he
would have visited the kind of penalty he did upon this
employee of nearly a decade of service, unless he was also
motivated by its utility in helping achieve a result in a
forthcoming election that he preferred
The doctrine that where union activity is a contributory
cause of the discharge, the Act has been violated even if
there was also another cause, applies also where the other
cause includes the use by the employees of vulgar
language See, e g , Thor Power Tool Company, 148
NLRB 1379, 1387-88, enfd 351 F 2d 584, 587 (C A. 7),
Samuel B Gass, et al 154 NLRB 728, 741, enfd 377
F 2d 438 (C A 1)
The conclusion is that but for Visintini's role in the
Union, Stewart would not have discharged him, and since
this was a contributing cause of the discharge, Respondent
thereby violated Section 8(a)(3) and (1) of the Act 11
"The General Counsel relies also on the fact that in Visintini's
employment record, the final entry reads as follows "4-8-68 Term Vol
quit"
The General Counsel claims that this entry, to the effect that Vtsmtini s
termination was voluntary, undermines the reasons which Respondent has
asserted in support of the discharge The entry indeed has an equivocal
character However , the General Counsel at the hearing made no reference
to that entry , and so Respondent ventured no explanation of it, which
Respondent might have done if at the hearing the General Counsel had
made some point regarding it I have therefore given no effect to this entry
in the evaluation of the evidence
111. THE REMEDY
The usual cease and desist requirement will issue, here
of a broad character, since a discharge for union activity
goes to the heart of the Act (N L R B v Entwistle Mfg
Co , 120 F 2d 532, 336 (C.A 4)): as well as the standard
remedial requirement for reinstatement of Visintini to his
former or substantially equivalent position (The Chase
National Bank, etc , 65 NLRB 827, 829), without
prejudice to seniority and other rights and privileges, and
for making him whole for any losses by reason of the
discrimination within the principles enunciated in F W
Woolworth Company, 90 NLRB 289, and N L R B v
Seven-Up Bottling Company of Miami, Inc, 344 U S
344, with interest (Isis Plumbing & Heating Co , 138
NLRB 716), and posting of appropriate notices 12
Under the foregoing findings of facts and the entire
record, I hereby state the following
CONCLUSIONS OF LAW
I By discharging Visintini either in whole or in part
because of his activity on behalf of the Union, Respondent
discouraged membership in or support of the Union,
thereby engaging in an unfair labor practice within the
meaning of Section 8(a)(3) of the Act
2 By the above and by interrogation concerning
activity in the Union, by forbidding employees to solicit
for the Union on employer premises without distinction as
to whether it was in or outside the working area involved,
and threatening to deprive employees of their customary
lodging at employer's premises if they voted in favor of
the Union, Respondent interfered with, restrained and
coerced employees in the exercise of their rights under the
Act, thereby engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act
3 Said unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
ORDER
Accordingly, on the foregoing findings of fact and
conclusions of law and on the entire record, I recommend,
pursuant to Section 10(c) of the Act, that Respondent,
The Princeton Inn Company d/b/a Princeton Inn, its
officers, agents, successors, and assigns, shall
I Cease and desist from
(a) Discharging or otherwise discriminating against an
employee for the purpose, in whole or in contributing
part, of discouraging membership in or support of Hotel,
Motel, Bar, Restaurant and Cafeteria Employees Union,
Local 741, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, or any other
labor organization
(b) Interrogating employees concerning union activity,
forbidding employees to solicit for the Union on employer
premises without distinction as to whether this is done in
or outside the working area, threatening to deprive
employees of their accustomed lodging if they designate or
retain their designation of the Union as their bargaining
representative, or otherwise interfering with, restraining or
coercing employees in the exercise of the rights guaranteed
them by the Act
"The nature of Visintmi's illness as shown by the record makes the
prospects of his serving in the Armed Forces too remote to need spelling
out the rights under the Selective Service Act Should that contingency
nevertheless occur that law would protect him by its very terms
PRINCETON INN 1199
2 Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to reinstate Alfred Visintini to his former or
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole in the manner described in the Remedy portion of
this Decision for any loss of earnings by reason of the
discrimination against him
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records, and reports necessary to
analyze the amount of backpay due under the terms
hereof
(c) Post at its premises copies of the attached notice
marked "Appendix "" Copies of such notice, on forms
provided by the Regional Director of Region 22, shall,
after being duly signed by an authorized representative of
the Respondent, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by the
Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director of Region 22, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith "
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order be enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
" in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 22 , in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that.
WE WILL NOT discharge or otherwise discriminate
against any employee for the purpose , in whole or in
contributing part, of discouraging membership in or
support of Hotel , Motel , Bar, Restaurant and Cafeteria
Employees Union, Local 741, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, or any other labor organization
WE WILL NOT ask employees about their or other
employees' activity in support of the Union, forbid
them to solicit on behalf of the Union in the employer's
premises in places outside the working area, threaten to
do away with employees' customary places of lodging
in the event that they designate or continue their
designation of the Union as their bargaining agent, or
otherwise interfere with, restrain or coerce employees in
the exercise of the rights guaranteed them under the
National Labor Relations Act
WE WILL offer Alfred Visintini his former job back
and pay him for wages he lost since his discharge on
April 10, 1968, with interest.
Dated By
THE PRINCETON INN
COMPANY D/B/A
PRINCETON INN
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board' s Regional Office, Federal
Building, 16th Floor, 940 Broad Street, Newark, New
Jersey 07102, Telephone 201-645-3088.