Quality Inn

National Labor Relations Board - Board Decisions

May 27, 1987

283 N.L.R.B. 1146 (N.L.R.B. 1987)

1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hudson Valley Hotels, Ltd. d/b/a Quality Inn
Albany and Bonita Powers. Case 3-CA-12955
27 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 2 December 1986 Administrative Law Judge
Eleanor MacDonald issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 Even assuming arguendo that the Respondent established that it dis-
charged Powers because of its good-faith belief that while engaged in
protected concerted activities she engaged in misconduct (harassment of
employees), we find an 8(a)(1) violation because the General Counsel
proved that Powers did not, in fact, engage in such misconduct NLRB v
Burnup & Sims, 379 U.S. 21 (1964); Rubin Bros Footwear, 99 NLRB 610
(1952) Thus, although Allison told Franks that Powers was harassing
other employees, this testimony does not establish that Powers' conduct
constituted harassment, and the record contains no'evidence that Powers
actually harassed any of these employees With respect to Powers' con-
duet toward Allison, we see nothing which would warrant a finding that
Powers acted in such a way that her conduct lost the protection normal-
ly afforded under the Act.
We find it unnecessary to address the hearsay nature of Powers' testi-
mony that Allison told her that a number of employees were upset over
the Respondent's treatment of Powers and wished to disassociate them-
selves from Powers' efforts to enforce her rights Whether Powers' co-
workers were upset over the Respondent's treatment of Powers is irrele-
vant to the judge's conclusion that the nature of Powers' activities was
concerted and protected
We find that under Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d
899 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB
Y. Transportation Management Corp, 462 U.S. 393 (1983), the General
Counsel sustained her burden of proving that Powers' protected concert-
ed activities were a motivating factor in Powers' discharge Powers' ac-
tions in requesting coworkers to write statements regarding whether they
reported their tips and were granted vacation leave precipitated her dis-
charge Powers testified that these statements would be used in prepara-
tion for the filing of NLRB charges and a contract grievance and Franks
admitted that he knew the purpose for these statements
Further, the General Counsel established by a preponderance of the
evidence that the reasons given by the Respondent for firing Powers
were pretextual In so doing, we agree with the judge's finding that the
evaluations and counseling slips issued to Powers were pretextual All the
counseling slips issued to Powers except the slip for the failure to report
tips were for relatively minor infractions compared to the counseling
slips issued to other employees Thus, other employees were issued coun-
seling slips for tardiness (anywhere from 50 minutes to 1-1/2 hours late),
reporting a $25 60 shortage in deposit, failing to report absence from
work, failing to give signature sheets to the accounting department, re-
sulting in a possible loss to the hotel of $80 worth of meals, and failing to
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hudson
Valley Hotels, Ltd. d/b/a Quality Inn Albany,
Albany, New York,, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
fill out a van report and to sign out the van. In addition, Powers was the
first employee issued a counseling slip for failure to report tips on her
timecard. Although three other employees were issued counseling slips,
these slips were not issued until 17, 18, and 19 September 1985, I week
after Powers received hers and began questioning employees about dis-
parate treatment Even assuming arguendo that the counseling slips and
evaluations issued to Powers were not pretextual, and that the Respond-
ent's firing of Powers was in part based on her attitude towards her job
and management, the Respondent did not prove by a preponderance of
the evidence that absent Powers' protected concerted activities, it would
have fired Powers Accordingly, we find that Powers was unlawfully ter-
minated for engaging in protected concerted activities in violation of Sec
8(a)(1), (3), and (4) of the Act
Alfred M. Norek, Esq., for the General Counsel.
Mary Helen Moses, Esq. (O'Connell & Aronowitz), of
Albany, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
This case was tried in Albany, New York, on 5 and 6
February 1986. The complaint alleges that Respondent,
in violation of Section 8(a)(1), (3), and (4), issued a warn-
ing notice to its employee Bonita Powers and discharged
Powers because she engaged in concerted activities and
because she gave an affidavit-in Cases 3-CA-12773-1, 3-
CA-12773-2, and 3-CA-12872, and was subpoenaed to
testify in the hearing in Case 3-CA-12773-2. Respondent
admits that, it issued the warning notice and terminated
Powers, but alleges that its actions were for lawful busi-
ness purposes.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties, I make the following'
FINDINGS OF FACT
1. JURISDICTION
Respondent , a New York corporation with a place of
business in Albany, New York, operates a hotel provid-
ing food and lodging for guests. The parties agree, and I
find, that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act and that Hotel , Motel and Bartenders Union, Local
471, AFL-CIO is a labor organization within the mean-
mg of Section 2(5) of the Act.
i Due to an error by the official stenographer portions of the record
for 5 February were lost The parties stipulated to certain matters to
cover the untranscribed portion of the proceedings The stipulation is re-
ceived into evidence as Jt Exh I
283 NLRB No. 165
QUALITY INN ALBANY
U. ALLEGED UNFAIR LABOR PRACTICES
This proceeding concerns certain events at the Quality
Inn in Albany, New York. Respondent purchased this
hotel on 23 May 1985 and continued its operations in
substantially the same manner as it had been operated
previously, from that date. Respondent' s managers in-
clude:
Gordon Weiss President
David Franks General Manager
Barbara Crafton Food and Beverage
Manager
Chris Riani Assistant Food and
Beverage Manager (for the
earlier part of the relevant
period)
Kevin King Assistant Food and
Beverage Manager (for the
latter part of the relevant
period)
The Union represented the employees when Respond-
ent purchased the hotel. Respondent recognized the
Union and the parties eventually entered into a collec-
tive-bargaining agreement effective retroactive to 24
May 1985.
The contract provides that "permanent employees will
be evaluated on a quarterly basis," -an unsatisfactory
evaluation may be followed by an evaluation within 6
weeks, and "two consecutive unsatisfactory evaluations
will constitute grounds for dismissal." The contract pro-
vides for employee vacations and it contains a grievance
and arbitration mechanism.
Bonita Powers was the senior waitress on the night
crew of Respondent.2 The night crew worked from 4:30
p.m. to closing. Generally, there were three waitresses
and one bartender working at night; however, occasion-
ally Powers was called on to fill in as a bartender.3 On
some occasions, if business was slow , a waitress might be
sent home early; usually this was the waitress who had
reported earliest that day.
Barbara Crafton, the food and beverage manager of
Respondent, reports to General Manager David Franks.4
Crafton's hours are 7:45 a.m. to 5:45 p.m. weekdays; on
Saturdays, Crafton and Powers worked essentially identi-
cal hours. An assistant food and beverage manager
works during the afternoon and evening shifts. Crafton's
duties include preparation of work schedules for wait-
resses and completion of their evaluation form's.
Powers was evaluated three times after Respondent
purchased the hotel. A summary of her evaluations is set
forth for reference. The evaluation forms permit a,choice
of five ratings: excellent, good, average, needs improve-
ment (INTI), and not acceptable (NA).
z Powers had been employed by Respondent's predecessor
a The other waitresses were Julie Vecere and Eleanor Gahran The
bartender was Barbara (or Betty Ann) Bennett
4 Crafton had served in the same position with the former owner of
the hotel Franks was a member of the new management team
1147
Category 7/30 9/4 11/4
1. Job attitude ................. .... NI/NA NI NA
2. Attendance ... ...... ........... good good average
3 Ability to learn ..... ...... ....... good good average
4 Appearance and dress code... NA average average
5. Quality of work ............ :......... NI average NI
6 Quantity of work ...... ........ .. good good good
7. Initiative .................................. NI NI average
8. Cleanliness of work area. ...... average average average
9. Ability to get along with
fellow workers .................... NI NI NA
10. Total average score........... NI, average NI
A. Powers' First Termination and Reinstatement
Powers testified that before Respondent purchased the
hotel she had acted as a spokesperson for the employees.
After Respondent's purchase, some of her coworkers
asked her if Respondent was going to continue the same
insurance plan as the previous owners of the hotel had
offered to the employees. On 10 June 1985 Powers told
General Manager Franks that the employees wanted to
maintain the same insurance policy. Franks asked Powers
to give him a list of employees who wanted the insur-
ance by 10:30 a.m. the next day. Powers did this, and'
about 5 p.m. on 11 June Powers met with Franks and
Weiss. Weiss told Powers that the Union was insisting
that the employees be covered by a union insurance plan.
Powers said, "All right." Then Weiss suggested that if
the employees signed a petition "that they did not wish
to be union anymore" he would "take it under advise-
ment." Weiss continued that the employees would get a
better deal if they were nonunion. He said, "The union
had given him a list of people that they wanted fired and
he said [Powers was] second on the list."' Weiss said he
had already fired Rich Miller and that he would have to
fire Powers,5 Powers replied that she had a young son to
support and she asked for a few days to think about the
subject.
On 13 June 1985 Powers `approached Weiss in the
lobby and asked if she could discuss the, matter further.
Powers, Weiss, and Franks then went into the office;
after some discussion Powers asked for more time to
think and Weiss agreed.
On 18 June '1985 Powers had a conversation wtih
Weiss and Franks. The parties stipulated that Powers
tape recorded the conversation and that on 18 June
Weiss repeated his remarks of 11 and 13 June to Powers.
After this conversation Powers filed a charge with the
Board in Case 3-CA-12773-1 on 20 June; Miller also
filled a charge the same day in Case 3-CA-12773-2.6
5 Miller had been the banquet captain of the hotel Miller and Powers
had campaigned vigorously but unsuccessfully against the union business
agent in February 1985 Miller was not hired when Respondent pur-
chased the hotel in May 1985
6 The parties also stipulated that before Respondent terminated Powers
m',November 1985 it was aware that Powers had provided the tape to the
Board and was prepared to testify in Case 3 -CA-12773-2, and further
that Respondent was aware that the tape was damaging to its case
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Powers' charge was withdrawn, as will be seen below.
Miller's case was settled with the posting of a notice by
Respondent stating , inter alia, that it would not threaten
employees with termination or refuse to hire them be-
cause of their protected- activities and that it would not
encourage employees to decertify the Union. On 19
August when Miller's case was to be heard, Powers was
present to testify pursuant to a subpoena.
Powers testified that on 24 June 1985 Franks called
her into his office. Weiss was there and he told Powers,
"You got me." Powers told Weiss that she did not feel it
to be that way and that she had not filed the charges- to
harm him. Powers said she had wanted to expose what
the business agent was up to. Weiss said, "Nevertheless,
we are gong to have to terminate you." When Powers
asked what grounds he had, Weiss replied, "Poor atti-
tude towards management ." Powers was discharged and
given a final paycheck. She filed amended charges with
the Board in Case 3-CA-12773-1 on 25 June 1985. On
28 June 1985 Powers met with Franks, Weiss, and Union
Business Agent Hammer to negotiate her return to work.
Weiss was willing to reinstate Powers if she withdrew
the charge. Weiss asked Powers what she, wanted, and
Powers replied, "I just want to be happy in my job and
be left alone and be able to do it." Powers then asked for
$200 backpay. Eventually, this sum was agreed to by the
parties; Powers was reinstated and she withdrew the
charges in Case 3-CA-12773-1. Powers testified that be-
tween 19 August and 7 September she encountered
Weiss at the hotel and said, "Good evening." Weiss re-
plied through clenched teeth "Don't talk 'to me." Weiss
did not testify in this proceeding.
B. The Evaluation of 30 July 1985
David Franks has been general manager of the hotel
since its purchase by Respondent. He resided in the facil-
ity from 23 May until 6 September 1985. During those
months there was no'night manager and Franks actively
supervised both the' day and night operations. Even after
he ceased residing in the hotel, Franks continued to
spend time at the hotel at night after eating his dinner at
home.
Franks testified that Respondent gives its employees
forms entitled "warning notice"; however, these are
really counseling forms. According to Franks, these
forms are not part of a progressive disciplinary system.
The purpose of the counseling forms is to provide the
basis for a discussion between the employees and man-
agement. The counseling forms are part of an employee's
personnel record and are retained because, "it begins to
show patterns after a year or two."
Franks performed Powers' first evaluation, although
he did not evaluate the other night waitresses. He
marked' Powers between "needs improvement" and "not
acceptable" in "job attitude" because she had asked to
leave early three or four times. Franks acknowledged
that night waitresses would be sent home early on occa-
sions when management anticipated that they would not
be needed. Franks testified that waitresses may tell him
or another managerial employee that if they were, not
needed they would like to leave early. However, he
blamed Powers for asking too often and said,this was
"indicative of an attitude." Franks rated Powers "good"
in attendance because she was punctual. He testified that
he had no particular incident in mind for this rating and
that it was a "subjective judgment." He could give no
reason for not rating her "excellent." He rated her
"good" in "ability to learn." He rated her "not accepta-
ble" in "appearance and dress code" because she wore
an inappropriate outfit to tend bar. Franks rated Powers
"needs improvement" in "quality of work" because she
worked too fast and did not spend enough time with cus-
tomers. Powers was rated "good" in "quantity of work"
because she was able to keep up with rush periods in the
dining room. Franks rated her as "needing improve-
ment" in "initiative" because she did not use slow peri-
ods to catch up on cleaning. Under "cleanliness of work
area," Powers was rated "average." Franks rated Powers
as "needing improvement" in "ability to get along with
co-workers" because she spent too much time socializing
with fellow employees. He gave her an overall rating of
"needs improvement." He'believed that Powers resisted
his decisions to change procedures when Respondent
took over the hotel and that she argued with him and
questioned his, judgment. In her testimony about this
evaluation, Powers stated that Franks told her that she
needed a "new attitude of cooperation" and that her
strong point was her "ability to keep up with, [a] large
volume of business."
C. The Evaluation of 4 September 1985
Crafton testified that she evaluated Powers on 4 Sep-
tember 1985 at Franks'- request. She filled in a blank
evaluation form and then discussed it with Franks item
by item. She completed the nine specific areas of evalua-
tion and decided that Powers deserved an "average"
overall rating. However, she did not compute the results
of the nine specific areas in order to reach the overall
"average" result;, she merely used her subjective judg-
ment.
Crafton testified that she rated Powers "needs im-
provement" in "job attitude" because she needed to stop
"going against company policy." Crafton rated Powers
"good" in "attendance." She did not check Powers' at-
tendance 'records and she had no recollection that
Powers failed to report to work during the evaluation
period. Crafton rated Powers as "good" in "ability to
learn." Powers was rated "average" in "appearance -and
dress code"; at first Crafton said this was because
Powers had been in an improper uiform when she filled
in as a bartender, or banquet waitress, but 'then she ac-
knowledged that she did not recall if this incident oc-
curred during the evaluation period. Finally, Crafton tes-
tified that whenever the incident occurred Powers was
warned about her uniform and did not repeat the infrac-
tion. Crafton rated Powers "good" under "quantity of
work" because Powers was able to handle "a great many
people." Crafton could not recall what she had rated
Powers under "initiative," but she recalled that she and
Franks eventually agreed to rate Powers "needs im-
provement" because she had failed to put away the des-
sert tray on one occasion. Crafton initially rated Powers
"average" in "ability to get along with fellow workers,"
QUALITY INN ALBANY
but Franks told her to change this to "needs improve-
ment" because Powers spent too much time in the
lounge. Crafton did not testify that she had ever ob-
served this behavior.
After Crafton changed the evaluation to comport with
Franks ' instructions, she discussed the items with Powers
in her office. Crafton told Powers that a major area for
improvement for Powers was "to realize that company
policy is aimed at everyone working toward the same
goal."
Powers' account of this evaluation was consistent with
Crafton's testimony . Powers testified that Crafton said
she was happy with Powers' performance because it had
improved since the last evaluation . Powers' "total aver-
age score" was now up to "average.!'
Crafton testified that so long as Powers continued to
work for Respondent after the September evaluation she
believed that Powers remained an average employee.
Powers had excellent attendance , she had the ability , to
sell products, and she got along well with fellow em-
ployees.7 However, Powers did not "have -much use, for
company policy." She disobeyed ' rules if she thought
they were "dumb." Other waitresses did not do this.
Crafton told Powers to abide by Respondent 's employee
meals policy, but she never issued a written warning to
Powers for eating improper food. Other employees were
also warned orally by Crafton; none were discharged, for
infractions of the food policy.
Crafton evaluated 10 other employees at the same time
she evaluated Powers. They were all rated "Good," with
the exception of Fran Di Trapano. On I1 August 1,985
Di Trapano was rated overall as "Needs Improvement"
and on 5 ' September 1985 she was rated "Not Accepta-
ble." At that time she was discharged at Crafton's sug-
gestion and with the concurrence of Franks. Di Tra-
pano 's evaluations show that when Crafton rated her
overall evaluation as "needs improvement " she wrote on
the evaluation that "Fran has to improve on the follow-
ing items within 30 days-attendance, appearance of
guest checks , attitude toward co-workers, tardiness, ob-
serve 4 hour, calling time for illness ." On 5 September
Crafton rated Di Trapano "not acceptable" and specific
comments from Crafton on the evaluation sheet show
that the employee continued to make the same errors
that she had been warned about before.
D. The Warning Slips
On 10 August 1985 Christopher Riani, the assistant
food and beverage manager, gave Powers a warning slip
for failing to replace the dessert tray in the -refrigerator.
In June or July 1985 a new dessert tray procedure had
been instituted by Respondent, According to Franks,
many employees were counseled about the policy orally,
but only Powers was issued a written counseling form.
On 25 August 1985 Riani gave Powers a warning slip
for eating food that was not on the approved employee
' Indeed, in mid-October 1985, Crafton furnished Powers with a letter
of recommendation that stated "whether it is as a banquet waitress,' hos-
tess, bartending or clerical position , Bonnie is a professional with a natu-
ral ability to sell She has an excellent attendance record and works'well
with her fellow employees "
1149
meal plan for the day. Powers explained that she was un-
willing to eat pasta 3 days in a row as specified on the
meal plan; instead she took a piece of broccoli and ate
that.
On 26 August 1985 Franks wrote a warning slip to
Powers for "parking car in non-employee parking area."
Although the slip bears Franks' notation that it was "dis-
cussed with employee and refused to sign," Powers - testi-
fied that Franks had_ never discussed the warning with
her nor attempted to give her the slip. Powers recalled
an incident when she and Franks drove into the parking
lot at the same time . Powers parked in her usual place
and Franks asked her to move saying there was a memo-
randum describing permitted employee parking areas.
Powers and Franks discussed their differing interpreta-
tion of the memo for a moment and Powers moved her
car to the area indicated by Franks.
On 11 September 1985 Franks gave Powers a warning
slip for "not accurately reporting tips according to
law."8 Franks told Powers she had not reported tips on
eight separate timecards . Powers asked `Franks if any
other staff members had failed to report their tips and he
said none of them had. The record shows thal at least
three ' other employees were issued counseling slips for
failing to report their tips. They are" still employed by
Respondent.
On 18 September 1985, Weiss gave Powers a warning
slip, for "parking inguest area second warning for same
offense." Powers had attended an employee fire educa-
tion program at the hotel during the day . Because she
was not on her regular working- time she had parked in
an impermissible zone.
E. Powers' Third Evaluation and Second Discharge
On 11 September Powers asked some of her cowork-
ers if they had failed to report tips on occasion. Some
employees said they had not reported tips and had not
received a counseling slip for the omission.
That evening, a bit after 9 p.m., Powers telephoned
day waitress Pat Allison at home. According to Powers,
Allison was the spokesperson for the day waitresses and
bartenders . In the past, Powers and Allison had dis-
cussed problems relating to management and the Union
that were of concern to both shifts. Powers had called
Allison at home two or three times and Allison had also
called Powers at home ' on occasion. In response to
Powers' questions on 11 September, Allison said she had
not been warned for failing to report tips . Allison asked
Powers what she could do to help; Powers', asked her to
put in writing "the fact that you were told that some of
your tips were missing and that you were `not ' asked to
'make them up and that you have not received a counsel
form." Allison agreed to do this;
On 12,September 1985 Powers filed a charge in Case
3-CA-12872 alleging that Respondent warned and- har-
assed her because of her concerted activities and because
she filed charges under the Act. On 2 October 1985 the
8 For tax purposes , waitresses were required to report their tips to Re-
spondent once a week by entering the total on the back of their timecard.
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regional Director dismissed the charge; the General
Counsel denied the appeal on 30 October 1985.
On 11 October 1985 Union Agent Pete Jenson told
Powers that they were going to meet with Franks in the
latter's office.9 At this meeting, Franks said he was coun-
seling Powers for "harassing - the employees." When
Powers. denied that she harassed employees, Franks said,
"I have . a waitress that says you are harassing her."
Franks- refused to tell Powers who the waitress was de-
spite Powers' repeated requests that he reveal her name.
He repeated, "I have a witness that will come in and tes-
tify to the fact that she told me this." When Jenson said
that ,Powers had a right to the information, Franks, re-
vealed that the waitress was Allison. Franks added that
Powers had "gotten a bunch. of statments from employ-
ees . . . to take this to the NLRB." Powers denied that
she had done that.
Patricia Allison testified that she has been employed as
a waitress by Respondent since 1979. She works from
5:30 a.m. to 2 p.m. In her testimony, Allison said, "I
speak to everyone. . . . Everyone comes to me if they
have a problem. I'm not afraid to open my mouth and
speak -up." She stated that she "kept up with what's
going on" in union affairs. The other employees view
her as -a spokesperson and as a person who keeps them
informed-about what is going on between the Union and
the Employer. In September 1985, at Powers' request,
Allison helped pass around a petition to" protest the
Union's change in the method of choosing the shop
steward. Allison thought the change was not fair. Allison
testified that she has called Powers at home about "union
business" and the sale of the hotel.
Allison testified that one night she received a phone
call from Powers after she had gotten into bed. Allison
told Powers she would see what she could do about
giving Powers a statement concerning counseling slips.
Powers did not call Allison at home again but she called
her once at, work and spoke to her once at a meeting at
the hotel; on that occasion, Allison said she had no time
to prepare a statement . Powers also asked a group of
waitresses for a statement about., vacations.' 0 When
Powers asked Allison if the other waitresses -would give
her statements, Allison said, she "had no idea.- You
know, that's none of my business." Allison.told Franks 3
days later that, "if ,I weren't left alone I was going to
quit. I don't want to be bothered with problems that do
not pertain to my shift or anything that doesn't pertain to
me." She told, Franks that Powers wanted a letter about
employee vacations. By this time, according to Allison,
she had heard other people tell Powers they did not
want to be involved and she felt "let everybody start
speaking for themselves." Allison testified that the first
time she told Powers she did not want to be bothered
with her problems was at a ' grievance meeting attended
by Powers, Jenson , Franks,, and employee Barbara
Thornton. ' This meeting took place on 15 October 1985.
Before the meeting began , Allison told Powers, "I have
9 At some point, Powers had asked that a union representative be
present whenever she was counseled by management -
10 Powers believed that Franks has discriminatorily refused to grant
her vacation time after she was reinstated in June 1985.
been approached by several- employees that because they
see the way that you are being treated they do not want
to be involved with the matter."
At the 15 October grievance meeting Allison said
Powers had called her at home. -Powers asked Allison,
"Do you feel that I am personally harassing you?" Alli-
son replied, "No, but I am tired of other people coming
to me -because of your problems." In reply to Powers'
question concerning what constituted harassment, Franks
said, "Asking someone to do something more than
once." Powers then stated that she had not asked any
employees to do something more than once. She had
asked several employees if, they would provide her with
statements about disparate treatment relating to nonre-
ported tips and the refusal to grant her vacation after she
was reinstated. Powers wanted the letters so, she could
file a grievance under the - contract. Franks mentioned
that, Powers had gotten some letters to take to the
NLRB. At the close of the meeting Jenson asked that
the counseling be withdrawn and when Franks refused,
Jenson told him the Union would file a grievance.
On 5 November 1985 Powers and Union Representa-
tive Wolfgang Hammer met with Franks in the latter's
office. Franks destroyed the counseling form he had pre-
viously prepared concerning, Powers' alleged harassment
of other employees. He showed Powers and Hammer a
new warning notice. The notice read:
Bonnie is requested not to bother other employee
[sic] by calling them late at night, after other em-
ployees haved [sic] asked not to be bothered.
Powers said she did not agree with it and wanted to file
a grievance but Hammer said the Union would drop the
grievance.
Franks then handed Hammer Powers' third evaluation
and said that Powers was terminated. Franks said, "We
tried to be fair. The contract with the Union calls for
two bad evaluations as grounds for dismissal."
Franks testified that about 27 September 1985 Allison
came to see him in his office. She told him that she was
being harassed or bothered and she was upset about a
call she had received about 10 p.m. one night. Allison
said Powers wanted to get "things together against man-
agement ." Allison told Franks that if he did not fix this
problem she would quit. Franks acknowledge that Alli-
son mentioned that Powers was collecting letters for the
NLRB. He wrote a counseling form about Powers' con-
duct in "harassing other employees." After the meeting
with Powers and Jenson on 15 October, he destroyed
that form and` issued a new one that referred to a late-
night phone call. Before he gave this counseling form to
Powers, he prepared her third evaluation dated 4 No-
vember and he decided to discharge her.
Franks testified that there was only a limited discus-
sion with Powers of her final evaluation on 5 November
1985. Franks told Powers and Hammer that Powers'
"biggest single problem was the attitude and the fact that
she just consistently . . . broke rules, when she's a- very
bright girl and she knows better and I felt we were being
flaunted [sic] and there was just no way .. we could
work it out." Franks marked Powers, "not acceptable"
QUALITY INN ALBANY
under "attitude partly because of the number of coun-
seling slips she had received. Powers received six slips
during her employment. He marked "attendance" "aver-
age," but he did not review her timecards and he did not
know if her attendance had changed from the time of the
last evaluation. He marked her "average" on "ability to
learn" based on his intuition. He marked "average" for
"appearance and dress code"; this was a "subjective
score" and not based on any occasion when she was in
improper attire. On "initiative," Franks graded Powers
"average" based on his "subjective observations." He
stated that her initiative had not changed from other
evaluations."' Franks graded her "average" on "cleanli-
ness of work area." He stated that Powers needed to be
reminded to clean her work station more than the other
waitresses. He rated Powers "not acceptable" in "ability
to get along with fellow workers. Overall, Franks' rated
Powers as "needs' improvement." Franks based his deci-
sion to discharge Powers on her three evaluations. He
stated that he was required to show a "series of at least
two evaluations that we're'having a problem before we
can terminate." 12 Franks testified that a major problem
was reflected in the "not acceptable" rating under "abili-
ty to get along with fellow workers." This was due to
Powers' penchant for chatting with other employees off
her work station.
Franks did not consult Food and Beverage Director
Crafton in deciding to discharge Powers, nor did Franks
consult Crafton about the two evaluations he performed
of Powers', work. Crafton testified that she could not
recall any other instances ' when she was not consulted
about the discipline or discharge of an employee under
her jurisdiction. The parties stipulated that in response to
a subpoena duces tecum issued by the General Counsel
for all evaluations performed by Franks from 23 May-to
5 November 1985, Respondent produced records that
showed that Crafton evaluated all the food and beverage
employees. The only exceptions were Franks' two eval-
uations of Powers dated 30 July and 4 November 1985.
Kevin King became assistant director of food and bev-
erage on,30 September 1'985. His duties are performed
primarily on the night shift. Crafton is his superior. King
testified that he came on duty at, l p.m., 6 days per week.
King "pretty much ran things" at night and when none
of his superiors was' on the premises. He stated that
Franks usually went home for dinner between 6 and 7
p.m. and then returned briefly to observe the operation
and see that everything was running smoothly. Franks
and King touched base during that time. About i week
after he began working' for Respondent, King talked to
Franks about the employees on the nightshift. He asked
Franks if there was'a- problem with Powers,' and Franks
replied that Respondent had issued several counseling
forms to her. King said that Powers did not seem happy
but he testified that he could not relate any specific inci-
dents. 'There was never a problem with any disrespect
to a guest or anything like that, but it was just' very
i i In fact, Franks had seen to it that Powers was graded "needs im-
provement" for "initiative' on the two prior evaluations.
12 In fact, the contract provides that "two consecutive unsatisfactory
evaluations will constitute grounds for dismissal "
1151
workman like, not smiling." He believed that 'Powers felt
disdain for management.
King never evaluated Powers nor did he issue her any
counseling slips although he issued counseling slips to
other employees before Powers was discharged. King ac-
knowledged that if something was done wrong it was his
'practice to talk to the employee and issue a counseling
slip. King testified that Powers "was a very competent
waitress."
King testified that he saw Franks' final evaluation of
Powers before it was given to Powers and that he
agreed with it "completely." He thought the decision to
discharge Powers was a "good one," but stated that his
reason "was kind of hard to explain." All he could say
was that Powers "brought down the attitude' of the
staff." On cross-examination, when King was asked to
give `an example of how Powers affected the attitude of
other employees, King said that while Powers was there
the night-shift waitress who had worked the longest shift
would go home earlier than the others. King said this
was not against company policy. He repeated that he
could not give any examples of Powers' attitude because
there were "really no specific instances," but he thought
that Powers was not happy working for Respondent.
F. Discussion and Conclusions
I find that, with one exception, the witnesses testified
truthfully. Certain minor inconsistencies are present in
the testimony, doubtless due to the passage of time. I
credit the testimony of Powers, Crafton, King, and Alli-
son. I find that Franks was not a candid or forthright
witnesses. I shall not credit Franks where his testimony
is inconsistent with that of other witnesses.
By the time of Franks' first evaluation of Powers,
Weiss had suggested to Powers that the employees
would be better off without a union; Weiss had told
Powers he would fire her at the Union's behest, Weiss
had found out that Powers had taped his remarks and
provided them to the Board;, and Weiss fired Powers and
then reinstated her in exchange for the, withdrawal of the
charges she had filed. Clearly, Respondent had identified
Powers as a spokesperson for employees and one who
asserted her rights under the Act by filing charges.
Franks performed Powers' first evaluation even
though he evaluated none of the other night waitresses;
these were evaluated by Crafton, their immediate super-
visor. Franks' rating of Powers was not good; he con-
cluded she `.`needs improvement."
Crafton's evaluation of Powers on 4 September was
unstructured and not based on, any set of criteria. As
Powers' immediate supervisor, she rated Powers "aver-
age" and she thought the evaluation was an improve-
ment over the previous one carried out by Franks.
Before this evaluation was given to Powers, Franks told
Crafton to downgrade Powers for talking with other em-
ployees even though Crafton had never observed Powers
doing this. Respondent urges that, Crafton's- evaluation of
Powers on 4 September 1985 was unsatisfactory. Howev-
er, I do not find that this is the fact. Crafton told Powers
that she was pleased with the evaluation; because it was
an improvement over the last one. Powers' total rating
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was "average" and there is no evidence in the record
before me to support the proposition that the word "av-
erage" bears any other than its common meaning. I do
not find that the evaluation of 4 September was unsatis-
factory.
Franks' testimony about Powers ' evaluation dated 4
November shows that this evaluation was performed
with a lack of standards and structure . Franks downgrad-
ed Powers' rating for "attendance" from "good" to "av-
erage" without consulting Powers' attendance records;
he admitted that he did not know if her attendance had
declined from the time of the last evaluation . He marked
Powers in several categories based on "intuition" and
"subjective judgment ." There was no attempt on his part
to compare Powers to other employees or even to her
own past performance . Franks admitted that he marked
Powers "not acceptable" under "attitude" because of the
number of counseling slips she had received. This includ-
ed the counseling slip issued on 5 November to replace
the slip he had attempted to give her in October for
asking , her fellow employees to give her written state-
ments.
The facts surrounding the last warning slip are highly
significant . It is clear that Allison told Franks that
Powers had been asking employees for statements con-
cerning disparate issuance of counseling slips for unre-
ported tips and for statements about the disparate grant-
ing of vacations . 'Franks understood the statements were
going to be given to the NLRB. The evidence I shows
that until Franks called a meeting with Powers and
asked Allison to attend no employee had told Powers to
stop asking for written statements . Further, from Alli-
son's comment to Powers before the meeting of 15 Octo-
ber began, the record is clear that a number of employ-
ees were upset over Respondent's treatment of Powers
and they wished to disassociate themselves from Powers'
efforts to enforce her rights under the collective-bargain-
ing agreement and under the Act. But instead of inform-
ing Powers of this,- they informed Franks. Then Franks
used this information as a pretext to charge Powers with
harassing employees after they had asked her not to.
Franks had no proof that Powers had done anything im-
proper. Certainly, after the meeting of 15 October, he
knew that Allison had never before asked Powers not to
call her, yet he issued a warning slip for this on 5 No-
vember when he discharged Powers. Franks also knew
that Allison was a spokesperson for the staff and that she
had been active in employee affairs. Under these circum-
stances, he had no basis for reprimanding Powers forcall-
ing to discuss working conditions with Allison. The
warning slip of 5 November was issued because Franks
found out that Powers was collecting statements{ to en-
force her rights under the contract and the Act and "get-
ting things together against management ." It was, there-
fore, unlawful.'
With respect to the warning or counseling slips issued
to Powers, I find that Powers was singled out for harsh
treatment . Beginning with Powers' exercise of her rights
in June 1985, Respondent was trying to build ^a case
13 NLIIB v City Disposal Systems, 465 U S 822 (1984), Meyers Indus-
tries, 281 NLRB 882 (1986)
against her and it issued counseling slips to her in_ cir-
cumstances in which other employees would not have
received them . Crafton testified that she had warned em-
ployees orally about eating food not authorized for em-
ployee meals but that she had never issued a written
warning for this conduct . Powers testified credibly that
Franks had never given her the warning . slip dated 26
August 1985 for improper parking . Finally , the last
warning slip for calling employees at home after they
have asked not to be called was undeserved . The record
shows that Allison did not ask Powers not to call her at
home until Franks told Allison to attend the grievance
meeting.
Significantly, Franks did not consult Crafton, Powers'
immediate supervisor , about the decision to fire Powers.
He did consult King, Crafton 's newly hired assistant.
Both Crafton and King testified that Powers was a very
competent waitress and neither could give an example of
behavior engaged in by Powers for which Powers
should have been discharged . Neither Crafton nor King
testified that they saw Powers engage in the acts cited
by Franks in his evaluations of Powers : Neither of them
saw her spending too much time talking to other em-
ployees, nor failing to use free time to clean the work-
place, nor failing to spend enough time with patrons.
Franks testified that Powers did not show "initiative" in
cleaning her work area, yet Powers ' supervisors did not
find that this was the case . Indeed , Powers was consist-
ently rated "average" by Franks on "cleanliness of work
area."
In view of the fact that Franks singled , out Powers for
evaluation although he evaluated none of the other food
and beverage employees , and in view of the fact that
Powers ' direct supervisors did not see any of the failings
Franks cited , I do not believe that Franks in fact ob-
served Powers engage in the acts for which Franks gave
her a bad evaluation on 5 November 1985 . It is-clear that
Franks singled out Powers for harsher 'evaluation than
the other employees in order to develop a pretext for
discharging her. After Franks' unfavorable evaluation of
Powers on 30 July , Crafton had given Powers an im-
proved evaluation ; subsequently , Franks again took over
the task of evaluating Powers so that Respondent would
have a pretext for discharging her:14
Although both Crafton and King testified that they
agreed with Franks' decision to discharge Powers, 'it is
obvious that they tailored their testimony with respect to
their opinions as a courtesy to Franks ; they could give
no specific reasons to support the discharge and both of
them expressed the conviction that Powers was a good
employee who did her job well.
Respondent urges that Powers', discharge is compara-
ble to that of Di Trapano, but the facts belie this asser-
tion . Di Trapano received two evaluations from Crafton:
14 Respondent 's actions were based on pretexts I do not find any evi-
dence to support a dual motivation such as was discussed in NLRB v.
Transportation Management Corp, 462 U.S. 393 ( 1983) Even if a dual-
motive analysis were performed , however, discharge would be unlawful.
Respondent has not shown that any other employees were discharged,
nor that Powers would have been discharged, for failing to report tips,
parking in the wrong space, eating one piece of broccoli, or failing to
replace the dessert tray
QUALITY INN 'ALBANY
"needs improvement" and "not acceptable." The first
evaluation clearly informed Di Trapano that she had 30
days to improve specific areas.'s Powers did not have
two consecutive unsatisfactory evaluations . Thus, Re-
spondent 's reliance on the collective -bargaining agree-
ment is a pretext.
I note further that Franks testified inconsistently about
the purpose of the counseling slips. He stated that they
were not warnings and were meant only to provide a
basis for discussion between management and the em-
ployee. He stated that the slips were not part of a system
of progressive discipline. But he also stated that Powers'
bad evaluation was based in part on the number of coun-
seling slips she had received.
I find that Respondent pursued a course of conduct
with respect to Powers 'o that it could discharge her in
retaliation for her actions in providing evidence to the
Board and seeking to enforce her rights under the collec-
tive-bargaining agreement and under the Act. In further-
ance of Respondent 's aims, ' I find that Respondent dis-
parately issued counseling slips to Powers and disparate-
ly evaluated her. It is clear that a major factor in Re-
spondent's final discharge of Powers was the warning
notice issued to Powers on 5 November 1985. That
notice was based on Powers' actions in seeking to collect
statements from other employees to enforce her rights
under the Act and under the contract. The warning
notice was pretextual in that Powers had not engaged in
the conduct cited therein , namely , calling employees late
at night after they had asked not to be called. Although
Respondent urges that Powers was fired because of bad
evaluations , I find that those evaluations were also unfair
in that they were based on pretextual misdeeds and on
disparate and arbitrary standards . Respondent has thus
violated Section 8(a)(1), (3), and (4) of the Act. NLRB I.
City Disposal Systems, supra; NLRB x Scrivener, 405 U.S.
117 (1972).
CONCLUSION OF LAw
By warning and discharging its employee Bonita
Powers because she engaged in concerted activities and
because she gave an affidavit and other evidence to the
Board, Respondent violated Section 8(a)(1), (3), and (4)
of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent, having discriminatorily discharged Bonita
Powers, must offer her reinstatement and make her
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of discharge to date
of proper offer of 'reinstatement, less any net interim
earnings , as prescribed in F W. Woolworth Co., 90
15 Di Trapano had problems with attendance, tardiness, appearance of
guest checks , and conflicts with coworkers She was warned ' about this
She wa, fired because she continued to come in late, she continued to
write illegible guest checks, and she continued conflicts with her fellow
workers.
1153
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).16
Respondent must remove from its records any mention
of Powers' discharge on 5 November 1985. In addition,
Respondent must remove from its files the evaluation of
4 November 1985 on which the discharge was based and
the warning notice of 5 November 1985 that was unlaw-
fully issued to Powers.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed17
ORDER
The Respondent, Hudson Valley Hotels, Ltd. d/b/a
Quality Inn Albany, Albany, New York, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Warning and discharging its employees because
they engage in concerted activities and provide affidavits
and evidence to the Board.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Bonita Powers immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position , without prejudice to
her seniority or any other rights or privileges previously
enjoyed, and make her whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the remedy
section of the decision.
(b) Remove from its files any reference to the unlawful
discharge of 5 November 1985, the evaluation of 4 No-
vember 1985, and the warning notice of 5 November
1985 , and notify Bonita Powers in writing that this has
been done and that the discharge will not be used against
her in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Albany facility copies of the attached
notice marked "Appendix."' 8 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
16 The General Counsel's request for a visitatonal order is denied.
17 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order, shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
1154, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date ,of ,this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together fox other mutual aid or protec-
tion
To choose not to engage in any of.these protect-
ed concerted activities.
WE WILL NOT warn or discharge our employees for
engaging in concerted activities.
WE WILL NOT warn or discharge our employees for
giving affidavits and other evidence to the Board.
WE WILL_ NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Bonita Powers immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or any other rights or privileges
previously enjoyed and WE WILL make her whole for
any loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.
WE WILL remove from our records any mention of the
unlawful warning, evaluation, and discharge of Bonita
Powers.
HUDSON VALLEY HOTELS, LTD. D/B/A
QUALITY INN ALBANY