Ramada Inn

National Labor Relations Board - Board Decisions

Nov 23, 1983

268 N.L.R.B. 287 (N.L.R.B. 1983)

RAMADA INN
Rambend Realty Corporation, d/b/a Ramada Inn of
South Bend and Betty V. Colcord and Local
Union No. 103, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-
CIO. Cases 25-CA-13325, 25-CA-13325-2,
and 25-CA-13522
23 November 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 27 August 1982 Administrative Law Judge
George Norman issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering 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 briefs and has
decided to affirm the judge's rulings,' findings,2
and conclusions3 and to adopt the recommended
Order as modified. 4
' On 26 October 1981 the judge granted the Respondent's motion to
sever Cases 25-CA-10380 and 25-CA-10548 from the other three cases
involved in this proceeding. On 2 November 1981 the General Counsel
filed with the Board a special request for permission to appeal the judge's
ruling. By telegraphic order dated 9 December 1981 the Board denied
the General Counsel's request to appeal the judge's decision to sever. No
exceptions have been filed to this ruling by the judge. Therefore, Cases
25-CA-10380 and 25-CA-10548 are not before us for consideration in
this proceeding. In adopting the judge's ruling on this point, however,
we do not rely on Jackson Mfg. Co., 129 NLRB 460 (1960), which was
cited in fn. I of his decision.
2 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
In fn. 17 of his decision, the judge incorrectly stated that Rosemary
Jones testified about remarks which were made to her by Bell in January
and February 1982, rather than in January or February 1981. In the first
paragraph of the "Discussion and Conclusions" section of his decision,
the judge incorrectly stated that subpar. 5(c) of the complaint in Case 25-
CA-)3522, as ultimately amended, alleged that the Respondent promul-
gated a rule in April 1981, rather than in late February 1981. In the last
paragraph of the "Discussion and Conclusions" section of his decision,
the judge incorrectly stated that the Respondent rehired 17, instead of 18,
former employees. We therefore correct these inadvertent errors.
I The General Counsel has excepted to the judge's failure to discuss
whether or not the remarks made by Food and Beverage Director Bell
during a conversation with employees Rosemary Jones and Maxine Eag-
lebarger in late January or early February 1981 constituted unlawful
threats and solicitations as alleged by the amended complaint in Cases
25-CA-13325 and 25-CA-13325-2. We find there is no credible evidence
to warrant a conclusion that Bell made any statements during this con-
versation which violated Sec. 8(a)(), since the judge generally discredit-
ed the testimony of employee Jones and the credited testimony of em-
ployer Eaglebarger about this conversation does not support a finding of
any 8(aXl) violations. Accordingly, we shall dismiss the 8(a)(X) allega-
tions of the complaint in Cases 25-CA-13325 and 25-CA-13325-2.
In adopting the judge's conclusions that Bell's conduct in February,
March, and July 1981 violated Sec. 8(aXI), we note that no exceptions
have been filed as to these violations found by the judge. We also note
that, in the "Conclusions of Law" section of his decision, the judge failed
268 NLRB No. 39
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Rambend Realty Corporation, d/b/a
Ramada Inn of South Bend, South Bend, Indiana,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Add the following as paragraph 1(b) and relet-
ter the present paragraph l(b) as paragraph l(c).
"(b) Threatening employees with stricter en-
forcement of work rules because they have sought
the assistance of a union."
2. Substitute the attached notice for that of the
administrative law judge.
to list as an independent 8(aXI) violation the March 1981 threat to en-
force work rules more strictly because employees sought the assistance of
the Union, which he had previously found to have occurred. We there-
fore correct this inadvertent omission.
We agree with the judge's conclusion that the Respondent's refusal to
rehire eight former employees did not violate Sec. 8(aX3) and (I). In so
concluding, however, we find it unnecessary to rely on his legal analysis
and the cases cited by him in the "Discussion and Conclusions" section
of his decision regarding the standard for establishing a prima facie case
of discrimination, including his analysis of the type of knowledge neces-
sary to prove a violation. Even assuming, arguendo, that the General
Counsel has established a prima facie case in this proceeding, we find that
Respondent has met its burden of showing that it would have made the
same decision in the absence of any union or protected concerted activi-
ties. We also note that the judge failed to list David Colcord as one of
the eight alleged discriminatees in par. 5 of the "Conclusions of Law"
section of his decision, although he had previously concluded the 8(a)3)
allegations regarding all eight former employees should be dismissed. We
therefore correct this inadvertent omission.
We have modified the judge's recommended Order to follow and
remedy more accurately the actual violations found. We have also modi-
fied the judge's notice to conform to our Order.
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 ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT promulgate rules prohibiting our
employees from playing video games; sitting down
287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the back during worktime; smoking in the hall-
way behind the bar; and requiring employees to
remain at their break stations at all times because
they have exercised their rights protected by the
Act.
WE WILL NOT threaten our employees with
stricter enforcement of work rules because they
have sought the assistance of a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
RAMBEND REALTY CORPORATION,
D/B/A RAMADA INN OF SOUTH BEND
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: These
cases were tried in South Bend, Indiana, on October 26,
27, 28, and 29, 1981, and January 4, 5, 6, and 7, March 9,
10, 11, and April 27, 28, and 29, 1982.
On March 20, 1981, Betty V. Colcord, a former em-
ployee of Rambend Realty Corporation, d/b/a Ramada
Inn Hotel of South Bend, herein the Respondent, filed an
unfair labor practice charge, Case 25-CA-13325, alleging
that the Respondent had refused to rehire her because of
her prior union activities. After that Local Union No.
103, Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, herein the Union, filed a
charge in Case 25-CA-13325-2, alleging that the hotel
had refused to rehire certain other former employees be-
cause of their membership in, and activities on behalf of,
the Union.
On May 8, 1981, the Regional Director for Region 25
issued an order consolidating cases, consolidated com-
plaint and notice of hearing in Cases 25-CA-13325 and
25-CA-13325-2. The material allegations of this consoli-
dated complaint charges the Respondent with unlawful
threats and coercion and the unlawful refusal to rehire
seven named former employees. The allegations in this
consolidated complaint were limited to conduct allegedly
occurring from mid-January 1981 to mid-February 1981.
On May 12, 1981, the Union filed another charge,
Case 25-CA-13522, alleging that Karen Gobel, also a
former employee, had not been rehired because of her
membership in, and activities on behalf of, the Union.
The Regional Director on June 16, 1981, issued an order
consolidating cases, complaint and notice of hearing in
Cases 25-CA-13325, 25-CA-13325-2, and 25-CA-13522.
As in the earlier consolidated complaint issued May 8,
1981, the allegations of the new complaint were narrow-
ly drawn, charging only a single unlawful act of refusal
to rehire occurring on January 20, 1981. Thus, all the al-
legations of the conduct violative of Section 8(a)(1) and
(3) of the Act contained in the three consolidated cases
were expressly limited to events reportedly occurring be-
tween mid-January 1981 and mid-February 1981. The
Respondent in its answer denies the substantive allega-
tions and admits the jurisdictional allegations.
On October 14, 1981, the Regional Director issued an-
other order consolidating cases, consolidated complaint
and notice of hearing. By this order the Regional Direc-
tor consolidated with the three above-referenced
charges, Case 25-CA-10380, which had been deferred to
arbitration on December 18, 1978, involving the dis-
charge of three employees, and Case 25-CA-10548
which had been settled on May 31, 1979, involving alle-
gations of unlawful threats and coercion.
Thereafter on October 20, 1981, the General Counsel
amended the complaint in Case 25-CA-13522 to include
allegations of conduct violative of Section 8(a)(1) of the
Act. This conduct purportedly occurred in late February
and late July 1981.
The trial in these consolidated cases and amended
cases began on October 26, 1981. On the first day of the
trial I heard oral arguments from both the General
Counsel and the Respondent on the Respondent's motion
to sever Cases 25-CA-10380 and 25-CA-10548 from the
three original consolidated cases, Cases 25-CA-13325,
25-CA-13325-2 and 25-CA-13522. After considering
these arguments and applicable Board authority, I grant-
ed the Respondent's motion to sever Cases 25-CA-10380
and 25-CA-10548.1
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Briefs were filed on
behalf of the General Counsel and the Respondent.
Based on the entire record and the briefs filed on behalf
of the parties, and from my observation of the witnesses
and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation organized under, and
existing by virtue of, the laws of the State of Indiana. At
all times material herein, the Respondent has maintained
its principal office and place of business in South Bend,
Indiana, and is engaged at that facility in the business of
operating a motel and restaurant. During the past year
the Respondent, in the course and conduct of its business
operations, sold and distributed products valued in excess
of $500,000. During the same period, the Respondent re-
ceived goods valued in excess of $5,000 transported to its
facility directly from States other than the State of Indi-
ana. The Respondent admits, and I find, that it is an em-
IIn granting the Respondent's motion to sever, I expressly relied on
the extraordinary lapse of time between the deferral to arbitration in Case
25-CA-10380 and the settlement agreement in Case 25-CA-10548 and
the eventual consolidation on October 14, 1981, 12 days before the hear-
ing commenced. I also concluded that the 12 days' notice to the Re-
spondent, after almost 3 years of inaction by the Region, was insufficient
to allow the Respondent to prepare its case adequately. Consistent with
Board precedent, I also agreed with the Respondent that if the Regional
Director could rescind the settlement agreement reached May 31, 1979,
in Case 25-CA-10548 based on the wholly unrelated allegations con-
tained in the three original charges that the sanctity of and the reason
behind settlement agreements would be vitiated. See Jackson Mfg. Cao.,
129 NLRB 460, 475-476 (1960).
288
RAMADA INN
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
I111. THE UNFAIR LABOR PRACTICES
A. Facts
The Respondent owns and operates a Ramada Inn in
South Bend, Indiana. The hotel, which opened in early
1970, consists of two operations, the lodging portion and
the food and beverage part, which includes a restaurant,
banquet facility, and a separate bar or night club. The
daily operations of the hotel are controlled by General
Manager Dale Whipstock, who held that position from
April 1980 until his death on April 26, 1982. Whipstock
was preceded as general manager by Nancy Marvel,
who held the position for a number of years. Reporting
directly to the general manager is a food and beverage
director, who is responsible for managing the restaurant
and lounge operation. Fred Bell, who was hired for this
position in December 1980, is the current food and bev-
erage director.
The managerial staff also consists of a lounge manager,
kitchen manager, and dining room manager. Nora Clark
has been the lounge manager since September 1981. She
was preceded as lounge manager by Cindy Hocker. All
lounge employees report directly to the lounge manager,
who also assists the food and beverage director in con-
trolling liquor and labor costs in the lounge. Irma Jean
Lillvis is the dining room manager and has held this po-
sition since November 1981. Lillvis was preceded in that
position by Wanda Walinski. The dining room manager
is responsible for seating customers and directing and
scheduling the dining room waitresses and busboys.
Myrene Harris, the kitchen manager, directs the food
preparation.
Except for the front desk employees the hotel's em-
ployees are represented by the Union and are covered by
a collective-bargaining agreement. The Union was certi-
fied as exclusive bargaining representative for the house-
keeping employees in mid-1970 shortly after the hotel
opened. This unit covered only the maids and mainte-
nance personnel employed in the lodging portion of the
hotel. On January 12, 1973, the Union won an election
among the food and beverage employees and thus
became the collective-bargaining representative of the
employees in the restaurant and bar. 2 The parties imme-
diately entered into negotiations on April 1, 1973, and
entered into a collective-bargaining agreement separate
and distinct from the housekeeping contract. In 1976, the
parties agreed to a single collective-bargaining agreement
covering both units. However, under the single contract
separate seniority lists were maintained for each of these
respective units. The parties reached an agreement in
2 This unit includes cooks, salad and pantry helpers, dishwashers, bus
boys and waitresses in the restaurant, and bartenders and cocktail wait-
resses in the bar. The unit description expressly excludes housekeeping
employees who were covered by the earlier certification.
1979 and at the time of the hearing were engaged in ne-
gotiations for a new contract.
On February 23, 1980, the hotel's restaurant and
lounge were destroyed by fire but the lodging portion of
the Respondent's operations was not affected. It contin-
ued operating uninterrupted throughout the reconstruc-
tion of the restaurant and lounge. Although there was a
single agreement covering both the housekeeping and
restaurant and lounge employees, for the purpose of re-
ductions in force, as previously noted, the seniority lists
of the two operations were separately maintained. Thus,
all the restaurant and lounge employees were laid off on
February 24, 1980. None was able to exercise his or her
seniority to "bump" any less senior employee from the
housekeeping staff.
Reconstruction of the restaurant and lounge areas was
completed in early January 1981, with the opening oc-
curring on Friday, January 23, 1981. The restaurant and
lounge opened with a bargaining unit complement of 38
employees.3 This group included 16 employees who
were employed by the hotel on February 23, 1980, the
day of the fire, and two other former employees who
had quit shortly before the fire. Offers of employment
had been made to two other persons who were working
February 23, 1980, but the offers were rejected. Twenty
other applicants who had not been previously employed
by the hotel completed the new staff.
B. Before the Fire
As previously stated the Respondent's operation con-
sisted of guest rooms, a restaurant, and a lounge. The
restaurant was used mainly for hotel guests, although it
was open to the general public. The evidence indicates
that the business in the restaurant before the fire had
been generally slow, necessitating occasional layoffs, and
in 1979 the restaurant's business started a steady decline
that lasted until the fire in February 1980.
The lounge, although opened to the general public,
relied heavily on business from hotel guests. The lounge
consisted of two different rooms, the front bar and the
back lounge. The front bar as compared to the back
lounge was small. The front bar area had a seating ca-
pacity of 98, which included individual tables and bar
stools. The bar was 10 feet long and had 8 to 10 bar
stools. Customers were served either by a waitress or di-
rectly by the bartender. Business in the front bar was
slow especially during the day. It became busy during
the few weekends when home football games were held
at the University of Notre Dame, which was nearby. On
these occasions there would be approximately 75 custom-
ers in the front bar area. Except during those weekends
3 The restaffing process began in late December 1980 and was com-
pleted just prior to the actual opening. The 42 food and beverage em-
ployees who had been laid off on February 24, 1980, because of the fire
had lost their status as employees after 6 months of inactivity in accord-
ance with the collective-bargaining agreement, art. XIII, sec. 14(d). The
Union had filed a grievance on this issue but arbitrator Malcolm House
denied the grievance, holding that all 42 employees employed in the res-
taurant and lounge on February 23, 1980, lost their seniority and employ-
ee status 6 months after their last day of employment. Thus, the 42 laid-
off employees were in the same position as any other applicant in January
1981.
289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each year the front bar would be slow, with few custom-
ers often resulting in the bar closing early. On other rare
occasions when the front bar would be busy during the
remainder of the year there might be 50 to 60 customers
in the bar. The front bar was normally staffed by one
bartender and one cocktail waitress, although there were
occasions when an extra bartender had to be assigned to
the front bar because the bartender on duty was unable
to provide adequate service to the customers.
Also, as previously indicated, the back lounge was
larger than the front bar and could be expanded further
by removing removable walls and annexing adjacent
banquet area space. The back lounge was served by a
service bar which was normally staffed by two bartend-
ers and varying numbers of cocktail waitresses depend-
ing on the crowd. Both the front bar and the back
lounge had computerized measured-pour systems regulat-
ing the mixing of drinks for cost and quantity control. In
the back lounge all customers were served by cocktail
waitresses. Customers could not order their drinks di-
rectly from bartenders. Thus, because of the absence of
tips, the bartenders earnings would have been lower but
for the large hourly wages paid to them to help make up
the difference. The back lounge attracted customers who
liked live entertainment and who often ordered specialty
drinks On those busy weekends when football games
were played, there were 300 to 400 customers in the
back lounge. On other weekend nights there might be
approximately half that number. On week nights the
service bar could, like the front bar, be very slow, often
serving less than 50 to 100 customers a night. The evi-
dence indicates the low level of business was attributable
to such factors as poor management and the absence of
"name" entertainment. In addition, during the period
prior to the fire supervisor personnel turnover was high.
In a 2-year period, four persons filled the food and bev-
erage director's position, Jack Terryia, Don Alexander,
Ron Tantun, and Chuck Myers. Several changes also oc-
curred in the lounge and dining room supervisory posi-
tions.
C. After the Fire
The Respondent began planning and working on re-
construction of the restaurant lounge immediately after
the fire. Obviously, without a restaurant and lounge, the
hotel guests had to go elsewhere for meals and cocktails,
thus causing a loss of revenue. 4
After the fire, the Respondent's management changed
completely, with new personnel occupying each of the
key supervisory positions. Dale Whipstock, who had
been the lounge manager at the time of the fire, replaced
Nancy Marvel as general manager in April 1980. In No-
vember 1980, Fred Bell was interviewed for the food
and beverage director's position. Bell was hired and
began working on December i, 1980. 5 Bell, who was
4 In May 1980 the hotel opened a small portable bar in a guest suite.
Betty Colcord, an alleged discriminatee who was the most senior bar-
tender, was called back to and did work that bar. However, because of
slow business that bar was closed after 6 or 7 weeks.
5 Bell, who left the Atlanta American Hotel to come to South Bend,
has been in the hotel restaurant bar business in managerial staff positions
given complete control over the operation of the restau-
rant and bar, began working immediately on the restaff-
ing. He promoted Cindy Hocker to the position of assist-
ant food and beverage director and lounge manager.6 In
that position Hocker was given responsibility for cost
control, purchasing liquor, maintaining records, and
hiring all employees for the lounge. Bell testified that he
delegated to her his control over the hiring decisions for
the lounge since she was to be responsible for that part
of the food and beverage operations. Bell said he did this
because Hocker had to supervise and work with these
people, and he wanted her to select a group in which she
had confidence. Hocker's prior experience with the hotel
and her past association and familiarity with the former
employees permitted her to select those she thought
were the good workers and who got along with fellow
employees and customers.
Bell and Hocker then began the restaffing in late De-
cember 1980. They had a list of persons who had been
employed on February 23, 1980, the day of the fire.
Hocker then prepared a list of the former employees
and, on December 30, 1980, she mailed a letter signed by
Bell, to those working at the time of the fire, inviting ap-
plications. 7 Many of the former employees came in to fill
out applications.8 Bell spoke with a few of the former
employees at that time while others just submitted appli-
cations and left. Hocker then phoned those who applied
and scheduled interviews. Bell interviewed separately
each of the former 27 employees who applied.9 General
Manager Whipstock was present during a few of these
interviews and Hocker was "in and out" for many of
them, but Bell conducted the interviews. Whipstock and
Hocker said very little.
During these interviews Bell asked the former employ-
ees questions related to topics listed on an interview
analysis form which he filled out for each applicant. Bell
asked Hocker about most of the applicants and a number
of called references given by the former employees.' °
for a number of years. The Respondent contends that Bell was hired in
an attempt to transform the hotel into a successful operation.
a Hocker was promoted from a desk clerk position on the lodging side
of the hotel, which she had held since April 1980. Hocker first began
working for the hotel in May 1976 until February 1978. She performed
most of the positions in the lounge, including cocktail waitress, cashier,
and fill-in bartender. During that period she was a member of the Union.
She quit in February 1978 to take a job in Arizona. She was reemployed
in April 1979, starting as a part-time cashier. She later became a bartend-
er and then assistant lounge manager to Dale Whipstock. During that
period she was again a member of the Union. (The collective-bargaining
agreement contained a union-security clause.) In October 1979 Hocker
left the employ of Respondent and returned in April 1980 to be a desk
clerk.
As previously indicated, the hotel was not contractually obligated to
hire any of the former employees.
8 Hocker phoned Jean Williamson who had quit on February 11, 1980,
2 weeks before the fire, and asked her to reapply. Hocker was told that
Williamson wanted to come back but had not received a letter.
9 Of the 42 employees working at the time of the fire who were sent
letters inviting them to apply, 15 had not applied.
'o Bell and Hocker testified that part owners Walz and Meloy and
Manager Whipstock made some recommendations on particular employ-
ees but they (Bell and Hocker) were not bound by those recommenda-
tions. Bell said that Walz, Whipstock, and Meloy had different feelings
about employees so the advice was not very helpful. Bell also testified
that he ignored their recommendations on a number of occasions, either
because of his own feelings following the interviews or because Hocker
had told him "the real" story.
290
RAMADA INN
Bell then decided which of the former employees would
be offered positions in the kitchen and dining room and
Hocker decided which would be offered positions in the
lounge. Hocker's decisions apparently were based largely
on her own knowledge of the applicant's abilities and
prior performance.' ' The interviews took approximately
2 days to complete.
Having tentatively decided on the former employees,
the Respondent advertised for applicants in the local
newspapers. In the first 2 days approximately 500 appli-
cants responded. Many who took applications did not
turn them in or wait to be interviewed because of the
great number of applicants. The Respondent received
216 completed applications in addition to those from the
38 persons who were hired. Because of the large
number, Bell shared the interviewing with Whipstock
and Hocker. As they met with the applicants briefly,
Bell and Whipstock would place a number from I to 10
in the top right corner of each application indicating a
preliminary rating. Then they reviewed and sorted
through the applications, calling back those that ap-
peared the most promising.
Those who were called back for a second interview
were interviewed by Bell during which he filled out an
interview analysis form for each. Bell and Hocker then
sorted through these applications, separating them ac-
cording to job classifications. Bell gave Hocker the bar-
tender and cocktail waitress applications, instructing her
to select those she thought promising. Hocker called
eight applicants back for a third interview. After inter-
viewing these applicants on her own she checked their
references, and made her hiring decision.1 Just before
the restaurant and lounge reopened, Hocker told Whip-
stock she needed more cocktail waitresses. Whipstock
told her to do what was necessary. Waletzko, a bartend-
er she had hired, recommended Debra Tom who was a
waitress at a bar where Waletzko had been employed.
Hocker called Tom, informed her of the opening, ex-
plained that it might be part time or temporary and
asked if she were interested. Tom came in and submitted
an application on January 19, 1981, and was hired to
start on opening night January 23, 1981.
Bell testified that, after reviewing his notes on the ap-
plicants who had responded to the newspaper advertise-
ment, he called back the most promising kitchen and
dining room applicants for a third interview. He said the
kitchen and dining room were much more difficult to
staff than the lounge, therefore the interviews were
longer and more intensive, especially with regard to the
applicants for cook positions. The training for bartender
" Of the 27 former employees that reapplied, Hocker made the final
decision on 8. She rejected Betty Colcord, Edith Cantrell, and Karen
Gobel and offered jobs to Rhonda Breda, Nora Clark, Kaye Zurawski,
Adrienne Hogan, and Sandy Stickler, all of whom applied for lounge po-
sitions. Bell made the final decision on the other 19 former employees.
He rejected of the other five discriminatees Madelyn Bogart, Cindy Bor-
kowski, Bernice Rankel, Virginia Rose Forsberg, and David Colcord.
i" New hires included Terry Waletzko, a bartender, and seven cocktail
waitresses, June Stanley, Kris Coughlin, Jennifer Harness, Carolyn Bar-
rick, Rebecca Dibble, and Elizabeth Kulwicki. Hocker also hired Debra
Paulson, who had worked for the hotel and with Hocker from 1976 to
1979. Jennifer Harness, who was initially listed as a dishwasher because
she was not yet 21 years old, worked in the kitchen for a few days and
then was transferred to the lounge on her birthday.
or cocktail waitresses was much shorter and easier than
that for cooks and other kitchen employees. Bell hired
12 former restaurant and kitchen employees, 13 and 12
who had responded to the newspaper advertisement. ' 4
The number of interviews for the applicants varied
from one for some former employees to as many as four
for those responding to the newspaper ad, depending on
the positions to be filled and which group was being
interviewed.
After all the hiring decisions had been made the pro-
spective employees were invited to an orientation meet-
ing, at which Bell discussed what he required from his
employees, the applicable work rules, and the union shop
obligations of all bargaining unit employees. He also an-
swered questions and required the employees to fill out
W-2 forms and union dues-checkoff forms. This meeting
was the culmination of the interviewing and hiring proc-
ess. The restaurant and bar opened the following Friday,
January 23, 1981.
As previously stated, the restaurant and bar reopened
on Friday, January 23, 1981, with a complement of 38
bargaining unit employees. During the first few months
of operation a number of the employees quit or were dis-
charged, particularly in the lounge. Employee turnover
is common in the restaurant and bar business. And in
some aspects of the food service industry the employee
turnover approaches 400 percent per year. s
D. Physical Layout of the Restaurant and Lounge
after the Reconstruction
When the restaurant and lounge had reopened substan-
tial changes had been made in the hotel's physical layout
and method of operation. The lounge, before reconstruc-
tion, consisted of a relatively small and quiet front bar,
known as The Brass Nail and a somewhat larger back
area that was served by a small service bar. The front
bar was normally staffed by one bartender and one wait-
ress, while the service bar had one or two bartenders and
a few waitresses. In contrast, the new lounge consisted
of one large room capable of being expanded by moving
the portable partition that separated the restaurant. There
is one large bar approximately twice as large as the old
front bar. In addition, there is a small ports-bar in the
rear of the lounge, and a third bar known as Ziggy's by
the adjoining pool.
"' They were Melissa Phillips, Jan Davenport, and Jean Lillvis, dining
room waitresses; Rosemary Jones and Paul Jones, cooks; Maxine Eagle-
barger and Jean Williamson, pantry cooks; Tom Banney and Jim Gerbin,
dishwashers; Rob Johnstone, Bob Jordan, and Jena Troyer, bus help.
'4 The new hires were Myrene Harris and Dell King, cooks; Francis
Colen, Jeannie Lopez, Judy Borowink, Ann Marie Klawiter, Pat Gross-
nickle, Phyllis Miller, Karen Horvath, Cathy Hiatt, and Teresa Harpole,
dining room waitresses; and Jim Lesichi, bus help.
"' In the 9 months following the reopening, approximately 19 employ-
ees, who were working on January 23, 1981, quit and did not return or
were fired. These included Adrienne Hogan, Sandy Stickler, Rosemary
Jones, Paul Jones, Tom Banney, and Robert Johnston, all of whom were
former employees, and 13 others including Terry Waletzko, Kris Cough-
lin, Debra Paulson, Carolyn Barrick, Rebecca Dibble, Elizabeth Kul-
wicki, Judy Borowiak, Ann Marie Klawiter, Pat Groasnickle, Phyllis
Miller, Teresa Harpole, Dell King, and Jim Lesichi. Two other employ-
ees, June Stanley and Cathy Hiatt, quit and then were rehired.
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Wednesday, Friday, and Saturday nights, the
lounge is staffed by a total of six bartenders-four at the.
main bar and one each at the porta-bar in Ziggy's. At the
main bar, the four bartenders are assigned stations, one
fixed station at each end of the bar where the cash regis-
ters are and two roving bartenders who handle all the
business in between, These stations are rotated among
the bartenders so that they all work the different areas.
For speed, efficiency, and cost control the main bar has
a computerized drink dispensing system which interlocks
with the cash register.
The new lounge operations attracted a much younger
clientele and attracted large crowds. The crowds became
so large that bartenders and cocktail waitresses referred
to certain nights as "animal nights." On a typical evening
there were 400 to 600 customers on those nights and oc-
casionally 800 to 900. Bartender Frank Mancuso testified
that customers "would be four deep the entire length of
the 20 foot long main bar."' 6 On those nights the bar-
tenders and cocktail waitresses were constantly busy.
Rhonda Breda and Nora Clark, who worked both bars
before the fire and who were rehired, explained that the
pace was much faster and harder after the reopening.
Speed became absolutely essential for all bartenders.
On Monday, Tuesday, and Thursday, three bartenders
are on duty, two at the main bar and one at Ziggy's. On
these nights there are at least 150 to 200 customers in the
bar at any one time. On Sundays, only Ziggy's is open
with one bartender handling that bar.
Under Hocker's management the lounge had become
more of a night club, featuring name rock'n'roll bands
Monday through Saturday. Rhonda Breda testified that
the bartenders had to rely on one another and that team
work was more essential after than before the fire.
Even considering the testimony of the three union
stewards, there is no testimony in this case that Bell and
Hocker ever discussed or considered the prior union ac-
tivity, union support, or union sympathies of any of the
applicants. On the contrary, there is evidence that they
did not discuss or consider the union activities or sympa-
thies and that Bell, personally, did not look at the per-
sonnel file of the former employees or discuss their con-
tents with Hocker. Every applicant who testified on the
point, including the alleged discriminatees and current
union stewards, was consistent in stating that union ac-
tivity, support, or sympathies including the filing of
grievances were not discussed during the employment
interviews.
'6 The crowds were so large that in early 1982 the local fire marshal
limited the number of customers at any one time to the posted capacity
of 450.
" Rosemary Jones, a cook rehired by the Respondent but not in the
employ of the Respondent at the time that she testified, testified on direct
examination that Bell made remarks to her during January and February
1982 after the opening of these proceedings to the effect that he did not
like the Union because when he was a boy a bomb had been thrown into
his house. Bell told her that if it were left up to him there would not be a
union in there (Bell did not deny or admit these remarks in his testimo-
ny).
She testified also that when the arbitrator's decision was issued Bell
was "jumping up and down" and was glad the Union had lost and that
he did not have to worry about hiring back the other employees. She
said that Bell had told her that they had "went through a list and picked
out the ones they wanted to come back to work and he knew who he
E. The Alleged Discriminatees
1. The bartenders
Edith Cantrell, an alleged discriminatee, was hired as a
cocktail waitress in June 1972 and became a bartender in
1976. She worked as a bartender in the front bar until
she was laid off as a result of the fire. She received a
letter to reapply and did in January 1981 and was inter-
viewed by Fred Bell.
Before and after interviewing Cantrell, Bell consulted
Hocker. Hocker was surprised that Cantrell had applied
because she knew Cantrell had gone into business for
herself. Hocker testified that she told Bell that she had
worked with Cantrell before and because she was so
slow Hocker did not think Cantrell could keep up with
the pace expected in the new lounge.' 8 Hocker also tes-
tified that Cantrell did not get along well with other em-
ployees.' 9 Hocker told of a dispute that occurred be-
was going to hire before he hired them . he already knew who was
coming back to work." Her recollection was then refreshed with her pre-
trial affidavit. She adopted the following as a comment Bell had made to
her: "Mr. Bell said that the owners had went through the applications
and had picked the best workers to be hired back and did not hire back
the ones that caused trouble with the union." She also testified that Bell
said "he didn't want anybody there that would cause trouble with the
union-troublemakers have caused trouble with the union." She also tes-
tified that Bell remarked he did not want Cindy Borkowski, Betty Col-
cord, and Madelyn Bogart. He said they had caused trouble, and did not
do their work and they stood around and smoked cigarettes and did not
treat their customers right. However, when Jones' testimony is compared
with other statements made by her and the testimony of Bell and Maxine
Eaglebarger, who was present, it appears that Jones distorted the facts.
On cross-examination Jones admitted that a number of former employees
who she considered active in the Union, including herself, had been re-
hired and that Bell was not bothered by union activism. She went on to
say that Borkowski was not a troublemaker and did not file grievances,
and that Bell told her that Borkowski, Colcord, and Bogart were not
hired because they sat around, smoked cigarettes, and did not treat cus-
tomers right and the owners had instructed them to select the best work-
ers. Eaglebarger testified that Bell said the troublemakers did not get re-
hired but stated that Bell never mentioned the Union or filing grievances
and she did not equate Bell's use of the word troublemaker with griev-
ance filers or union activists because she knew of employees who filed a
lot of grievances and were rehired. In addition, Jones admitted that Bell
never said he would not hire someone because of his or her union sup-
port or activity and that she was not afraid to file grievances. Jones de-
scribed herself along with Bogart, Colcord, Borkowski, Eaglebarger,
Jean Williamson, Jim Derbin, and Millie Phillips as active employees in
the Union prior to the fire. Jones also described a troublemaker as some-
one who would have the Union in there constantly or having grievances
filed with the shop stewards, and then stated since she had filed a griev-
ance she must have been a troublemaker. In view of the many inconsist-
encies in her testimony, I credit Bell and Eaglebarger and I do not credit
Jones.
"a That Cantrell was slow was supported by the testimony of Rolley
Busco, a former bartender who had not reapplied. He said Cantrell
always looked slow and could not keep up when it got busy and that he
would not qualify Cantrell as a speed bartender. Rhonda Breda, who
tended bar before and after the fire, testified that Cantrell could not have
kept up with the pace required after the opening. Other employees in-
cluding Kaye Zurawski, a union steward, agreed that Cantrell was very
slow. When Cantrell got behind and management asked that someone
help her out, to avoid working with her, Nora Clark and Zurawski exer-
cised their seniority rights. Thus Rhonda Breda with least seniority had
to work with Cantrell. Fellow discriminatee Karen Gobel also com-
plained about how slow Cantrell was.
19 Kaye Zurawski, a union steward, said she "could not think of one
nice thing to say about Cantrell."
292
RAMADA INN
tween Betty Colcord, another alleged discriminatee, and
Cantrell over dividing certain tips. Hocker said that Can-
trell had a reputation for dishonesty. 20
Bell testified that when he interviewed Cantrell he
asked her whether she considered herself a speed bar-
tender. Cantrell replied that she was slow but efficient.
When Bell asked her how she got along with other em-
ployees Cantrell responded, "if there were some that
didn't get along with me, that was their problem."
Rhonda Breda testified that she, Nora Clark, and Kaye
Zurawski all disliked Cantrell. Based on that interview
and Hocker's comments, Bell recommended to Hocker
that Cantrell not be rehired. Hocker however made the
final decision not to rehire Cantrell. Hocker stated that
she personally had many bad experiences with Cantrell
in the past and that including the numerous negative re-
marks from other employees concerning Cantrell per-
suaded her not to rehire Cantrell.
Betty Colcord, an alleged discriminatee, was hired in
1970 as a dining room waitress. Shortly thereafter she
became a cocktail waitress and held that position for 3
years until she became a bartender. Colcord worked as a
day bartender in the front bar until the fire. In January
1981, she received a letter to apply and did. She was
interviewed by Fred Bell who had already heard of Col-
cord before the interview. Bell testified that after he was
hired by the Respondent on December 1, 1980, he ate
most of his meals at other hotels in South Bend so that
he could see how other area operations were run and to
learn about his new Employer's reputation in the com-
munity. On one of Bell's visits to the Quality Inn he
asked the bartender and waitress about the Ramada Inn
Lounge. They told Bell that there was a bartender there
who kept a messy bar, watched soap operas all day, and
ignored customers. Upon returning to the hotel he asked
Hocker, who was still working as a desk clerk, if the
hotel had a bartender that kept an untidy bar and
watched soap operas all day. Hocker immediately replied
that it was Betty Colcord.
Bell and Hocker also discussed Colcord after she had
submitted an application. Hocker informed Bell that Col-
cord was slow, often ignored customers and waitresses,
and that cocktail waitresses would often have to make
their own drinks rather than wait for Colcord. 2 ' Col-
cord also had a reputation for keeping a messy bar and
not cleaning up the bar for the night crew. She would
leave unwashed glasses in the dishwasher, dirty shelves,
and spilled juice on the countertops.2 2
0o Nora Clark testified that Cantrell would "steal a dime from her own
mother "
ai Many employees agreed that Colcord ignored waitresses and cus-
tomers and was slow, although not quite as slow as Cantrell. Rhonda
Breda testified that Helen Lelonde, who preceded Whipstock as lounge
manager, would often tell her to go help at the bar because Colcord had
fallen behind even though it was not busy. Breda also testified that Col-
cord could not have kept up with the new bar because she was just not
fast enough.
2' Zurawski, a union steward, among other employees, testified to that
effect. Jean Lillvis testified that on Tuesday, Colcord's day off, she
would have to "tear down" the bar and clean it because Colcord had let
it get so bad. In fact, Colcord admitted that she left the bar messy. An-
other common complaint was that Colcord would not stock the front bar
for the night crew.
Colcord testified that she had a loyal following of 20
to 30 customers and was on a first-name basis with them.
Sandy Stickler, however, testified that Colcord had only
five or six regular customers. June Stanley, 'who knew
Colcord since she was a child and called her, "Aunt
Betty" testified that Colcord attempted to convince Stan-
ley to perjure herself at the hearing by testifying that
Bell made coercive and unlawful comments. On the basis
of Stanley's testimony which was frank and candid, her
relationship to Colcord, and her demeanor while testify-
ing, convinces me that she was telling the truth. Bell was
not impressed by Colcord in the interview and recom-
mended that she, along with Cantrell and other lounge
employees, be rejected. However, the final decision was
left to Hocker. Hocker had worked with Colcord for
years and because of her knowledge of Colcord's past
performance Hocker decided not to hire her.
Three former employees were hired as bartenders,
Nora Clark, Kaye Zurawski, and Rhonda Breda. Nora
Clark was hired as waitress November 1978. A few
months later she became a bartender, a position she held
until the fire. As a bartender Clark worked mainly at the
back service bar but would occasionally work the front
bar when Colcord was not on duty. Bell interviewed
Clark but made no recommendations concerning her.
Hocker, who knew Clark and had worked with her, con-
sidered Clark a hard worker and a fast bartender.
Hocker also thought Clark had a good personality and
was good with customers. Hocker hired Clark.
Kaye Zurawski began as a bartender shortly after she
was hired as a waitress in 1976. Zurawski worked in the
service bar until the fire. She was interviewed by Bell.
Bell made no recommendation with respect to her. Zur-
awski was known by Hocker as one who got along well
with other employees and was there to "pitch in," even
on her days off. Hocker considered Zurawski fast and
able to handle the expected volume in the new bar.
Hocker hired Zurawski. In addition, other witnesses
agreed with Hocker that Zurawski was a good, fast bar-
tender who was efficient and got along with the custom-
ers.
Rhonda Breda was hired as cocktail waitress in 1975.
Nine months after that she became a bartender and re-
mained in that position until she was laid off after the
fire. Breda worked nights in the service bar bat would
fill in for Colcord on her days off in the front bar and
assisted Cantrell when she fell behind. Bell interviewed
Breda and checked her references. The manager at the
Quality Inn told Bell that Breda was good but had a tar-
diness problem. Brenda Buck, a bartender at the Quality
Inn, told Bell that Breda did not get along well with the
manager and to take what he said with a grain of salt.
Buck told Bell that Breda was a good speed bartender.2 3
Bell said he was impressed with Breda in her interview
and said that both Whipstock and Hocker spoke highly
of Breda as a bartender.
Hocker testified that she liked Breda because she was
good, fast, and personable. Other employees testified that
Breda was a good, reliable, fast bartender. Clark said
2s Jan Davenport testified that Buck told her that she had spoken with
Bell and told Bell about Breda.
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Breda was excellent and the best bartender in the
lounge. Even Cantrell, Colcord, and Karen Gobel, al-
leged discriminatees, agreed that Clark, Zurawski, and
Breda were the fast bartenders. Cantrell admitted that all
three would always appear to be working faster than
she. Colcord said she had no doubts about their abilities
and considered them friends.
Terry Waletzko was hired as a bartender by Hocker.
She was not a former employee of the Respondent. Wa-
letzko was interviewed by Bell twice and then by
Hocker. Bell rated her "8" on the I to 10 scale. Wa-
letzko impressed Bell favorably because of her personali-
ty and experience. Hocker had checked Waletzko's refer-
ences and was told by her then employer that Waletzko
was very qualified. However, Waletzko did not turn out
to be what Bell or Hocker had expected. She has since
been fired for tardiness.
2. The dining room waitresses
Madelyn Bogart, an alleged discriminatee, was hired as
dining room waitress in 1974 and, except for two sepa-
rate medical leaves of absence for back injuries suffered
on the job, she worked until the fire resulted in her
layoff. Bogart received a letter to reapply and did so in
January 1981. She was interviewed by Bell who was im-
pressed with her experience. He considered hiring her,
even though Bogart explained that she had had a lot of
"hassles" when she worked at the hotel before, for
which she blamed management. She commented that
"bus boys and dishwashers are never doing their jobs."
Bell testified that he was willing to overlook those state-
ments because from his prior investigation he had con-
cluded that past management was poor and certainly
may have contributed to difficulties experienced by em-
ployees. Bogart had also mentioned in the interview that
she had fallen and hurt her back. Bell testified that at the
time he did not consider that important.
Following that interview Bell told Whipstock that he
was thinking of hiring Bogart. Whipstock told him, "You
better be careful. You better check on that one." Bell
then asked Hocker about Bogart. Hocker told Bell that
she had not worked with Bogart, that Bogart had a repu-
tation for not getting along with other employees, that
she constantly gossiped about other employees, and that
she was a very nervous person. 24 Hocker also told Bell
that Bogart had a reputation for filing frequent and ques-
tionable workers' compensation claims. Hocker said that
Bogart had filed one claim against the hotel because of a
fall, and a second against another employer, the "Come-
N-Dine Restaurant," also over a fall. In both cases
Bogart received workers' compensation benefits as a
result of filing these claims.
a4 Other employees concurred with those views about Bogart. Some
employees thought Bogart was a good waitress but she had a "big
mouth" and complained a lot about everything. Bogart had a reputation
for telling other employees what they could and could not do, including
employees in the kitchen. On one occasion, while Bogart was a union
steward, she complained to management about a coworker, urging man-
agement to give the employee a warning slip. That coworker, Jan Dav-
enport, a current union steward, testified that Bogart attempted to con-
vince management to give her, Davenport, a warning slip for not taking
Bogart's assigned shift.
,Bell testified that he called the "Come-N-Dine" and
spoke with Ruth Ann Schrock, the manager. Bell asked
Schrock about Bogart, but Schrock was unwilling to talk
to Bell over the phone. Bell went to the "Come-N-Dine"
where Schrock told him that Bogart had worked for her
and was a good waitress but had left. Schrock then said
although Bogart later reapplied, Schrock had not rehired
her. When Bell asked if she would hire her now,
Schrock replied, "She isn't here, is she?" 2 5 Based on his
conversation with Schrock and the advice of Whipstock
and Hocker, Bell decided not to rehire Bogart.
Cindy Borkowski, an alleged discriminatee, was hired
as a dining room waitress in 1974 and worked until she
was laid off because of the fire. Bell interviewed Bor-
kowski and called her then employer, a medical clinic,
where she worked as a receptionist. Bell received a good
reference and was favorably impressed with Borkowski.
However, Bell testified that he did observe Borkowski's
nervousness during the interview and her constant fid-
geting and her indecisiveness to what she wanted to do.
After the interview Hocker told Bell that Borkowski was
very sensitive and often became upset very easily and
those traits affected her performance in the dining room.
Hocker also told Bell that Borkowski was a very close
friend of Mr. and Mrs. Sid Moore, former owners, and
that Borkowski had a habit of reporting to Moore what
occurred at the hotel. Bell had also heard that Bor-
kowski liked her job at the clinic and had little interest in
returning to the hotel. Borkowski had started working at
the clinic in March 1980 and was still working there 2
years later. She had been offered a job at Bob Evans
Restaurant and rejected it. Bell did not hire Borkowski.
Bernice Rankel, an alleged discriminatee, began work-
ing as a waitress in 1971. She was discharged on Novem-
ber 20, 1978, for gross insubordination and leaving her
work station. Arbitrator Epstein later reinstated Rankel
without backpay, reducing the discharge to a 10-month
disciplinary suspension. Rankel returned to work on Sep-
tember 9, 1979, and worked until the fire. Bell inter-
viewed Rankel after she applied. Based on the interview,
he gave her low marks on willingness to help others and
general attitude. Rankel was apparently considered by
some to be a good waitress and was recommended for a
position on reopening after the fire by Walz, an owner.
Bell did not hire her.
25 Schrock testified that Bell did not come to her restaurant but that
she told Bell on the phone that Bogart was a good worker. Schrock also
testified that she never told Bell that Bogart had sued the "Come-N-
Dine" and that she did not take a position on whether she would hire
Bogart. Schrock, however, had written a letter to her insurance carrier
concerning Bogart's claim against the "Come-N-Dine" in which she
stated that the General Counsel "wanted me to say that Madelyn
[Bogart] is a good worker . . . but this is one time when everything else
around that record should also be told." Schrock also stated in the letter,
"I sincerely pity her next employer" referring to Bogart as dishonest and
charging her with trying to "rip off" someone else. She said Bell had
called her and that he did not "want her [Bogart] because she seems to
be either accident prone or a con-artist." During her testimony, Schrock
admitted having talked to Bell and indeed Bell's version of Schrock's
statements about rehiring Bogart are consistent with Schrock's own state-
ments in her letter to her insurance carrier. Evidently Schrock did not
want to testify concerning her true feelings about Bogart. but the state-
ments in her letter convince me that Bell's testimony is truthful.
294
RAMADA INN
Billie Akins and Sherry Martin, former supervisors,
however testified that Rankel would use obscenities lib-
erally and that she tried to run the dining room, telling
others what to do. Bell testified that despite Waltz' rec-
ommendation, which was not binding on him, he re-
mained unimpressed with Rankel. In addition Bell decid-
ed that Rankel's difficult personality and the other em-
ployees' dislike of her outweighed any job skill she
might have as a waitress. Thus, he followed Hocker's
advice and did not rehire her.
Virginia Rose Forsberg, an alleged discriminatee, was
hired in 1970 as a dining room waitress and worked until
November 20, 1978, when she was discharged along
with Rankel. As in the case of Rankel the arbitrator re-
duced her discharge to a 10-month disciplinary suspen-
sion. After her return she worked until the fire. Forsberg
was set up for an interview with Bell and on arriving she
said to Bell that she did not know why she was going
through the interview knowing she was not going to be
hired. Bell testified that based on that interview he did
not believe Forsberg merited an offer of employment.
Melissa Phillips was hired in 1977 as a dining room
waitress and worked until the fire. She applied and was
interviewed by Bell. Before that interview Phillips had
spoken with Bell during several visits to the hotel in De-
cember 1980. Bell testified that it was evident to him as a
result of the interview that Phillips liked being a waitress
and got along well with other employees. He said he
was also impressed with her general attitude and outlook
on life and thought she would be an asset. He hired her.
Jan Davenport originally was hired by the hotel as a
dining room waitress in January 1974. She was laid off in
March 1975 until October 1975, then worked until the
fire. She had 12 years' experience as a waitress, a factor
which impressed Bell. Hocker told Bell that Davenport
was always willing to work as many hours as she could
and that she often substituted as a cocktail waitress in the
lounge to obtain additional work. Hocker described Dav-
enport as a good worker based on her job performance
in the lounge. Melissa Phillips testified that Davenport
performed well as a dining room waitress. Phillips at the
time of her testimony was a union steward. Davenport
has been a union steward since February 1981.
Erma Jean Lillvis was hired as a dining room waitress
in 1971. She became a bartender in 1972 but quit shortly
thereafter. She returned almost immediately and, in 1975,
was transferred to the position of assistant lounge manag-
er, a bargaining unit job. She left again in 1977 after
serving in the Union's negotiating team because of, ac-
cording to her, intraunion disputes and her dissatifaction
with her rate of pay. She returned in 1979 as a dining
room waitress. Bell rated her high on the interview anal-
ysis form and Hocker recommended Lillvis highly be-
cause of her experience, ability to fill in other positions,
and the fact that she was a hard worker. Bell hired Lill-
vis as dining room waitress.
Bell completed his dining room waitress staff by hiring
nine applicants from the large pool of applicants that re-
sponded to the newspaper advertisement. He made those
hiring decisions entirely on his own. He testified con-
cerning each of these revealing that, except for the lack
of input from others, he followed the same procedures in
making his hiring decisions.
3. The cocktail waitresses
Karen Gobel, an alleged discriminatee, was hired as a
cocktail waitress in August 1974 and continued in that
position until she was laid off in February 1980 because
of the fire. Hocker had talked with Bell about Gobel and
had told him that Gobel would not reapply even though
she was sent a letter inviting reapplication. Hocker and
Gobel were friends. Gobel told Hocker in the summer of
1980 that she then was working at the University Club
and liked it because she could work when she wanted.
She told Hocker that she did not think the lounge would
be like it was and did not want to come back. Hocker
also talked to Gobel the day she applied. On this occa-
sion, according to Hocker, Hocker asked Gobel why she
reapplied and Gobel told her that someone from the
Union told her to reapply to see if she would get re-
hired. Although she admitted talking to Hocker the day
she applied, Gobel denied ever having told anyone that
she did not want to come back or that the Union told
her to reapply. 2 6
Gobel did not get along with the other employees and
did not want to work Saturday nights. Gobel was receiv-
ing Aid to Dependent Children and had told Hocker a
number of times that if ADC did not force her to work
she would not. In fact Gobel had trained as a bartender
but then went back to being a waitress because she made
too much money as a bartender to continue receiving the
ADC benefits on behalf of her children.
Because Gobel was a constant complainer other em-
ployees disliked working with her. Moreover, because
Gobel would not work on Saturday nights other employ-
ees felt that she was uncooperative and selfish. On the
few occasions that Gobel did work on Saturday her atti-
tude and her complaints made it so difficult for the other
employees that the Respondent decided to stop calling
her and it worked the shift shorthanded.2 7
During the interview with Bell, Gobel confirmed a lot
of what others testified about her. Gobel told Bell that
she had had many bad experiences at the hotel and had
fights with other employees. Gobel said she did not
know what she wanted to do and when Bell asked her
why she was in the business, Gobel responded, "I got
stuck with it."
Hocker decided not to hire Gobel although Gobel was
a friend of hers because she did not believe Gobel had a
genuine interest in returning to her former job. At the
time of her application Gobel was working as a bartend-
er at a private club and Hocker did not believe Gobel
26 Kaye Zurawski, a union steward, testified that she and Sandy Stick-
ler had talked with Gobel in early January 1981 after they received let-
ters to reapply. When Zurawski told Gobel they were going to reapply,
Gobel remarked that the hotel could not pay her enough to reapply and
that she was not going to put up with that "crap" anymore.
2' Gobel did not deny these observations and in fact admitted that she
complained a lot and got into a fight with Stickler in December 1979.
Gobel attributed her conduct to her taking diet pills which adversely af-
fected her. However, there was absolutely no evidence that either
Hocker or Stickler was told that the diet pills had affected Gobel's per-
sonality.
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted to return to the position as cocktail waitress in
the lounge which would be featuring rock 'n' roll bands
and catering to a young "singles" crowd. Hocker testi-
fied that she also considered Gobel's inability to get
along with her coworkers and decided that Gobel would
not be a suitable employee for the hotel.
Sandy Stickler, a former lounge employee, told
Hocker that, before the letters to reapply were sent out,
Stickler would not come back to work at the hotel if
Gobel came back. During her interview with Bell, Stick-
ler told Bell the same thing. When Hocker called Stick-
ler to tell her that she had been rehired and to come in
for orientation, Stickler asked Hocker if Gobel had been
hired. When Hocker said no, Stickler accepted the job.
Sandy Stickler started as a cocktail waitress in 1974
and worked until the fire. The interview analysis form
showed that Bell was impressed by Stickler, especially
her initiative. Bell noted on the form that Stickler had
some management experience (Stickler was the night
manager at a sandwich shop, and had quit that job to
come back to the hotel). Hocker had previously told Bell
that Stickler was a good cocktail waitress and that she
got along with other employees. Stickler was also will-
ing to come in on her nights off. 28 For all those reasons
Hocker hired Stickler.
Adrienne Hogan had been a cocktail waitress on
nights in the front lounge working with Cantrell. Hogan
impressed Bell in her interview. Bell considered her
"sharp," "self-satisfied," and "articulate." Hocker told
Bell she had not worked with Hogan very often because
Hogan was assigned to the front lounge, but Hocker
knew that Hogan would work the front lounge alone
when it was busy, and never fell behind. Hocker testified
that she had not ever heard anything bad about Hogan
and therefore decided to hire her.
Hocker also hired eight cocktail waitresses from
among the applicants who responded to the newspaper
advertisement. It appears that Hocker followed the same
pattern of hiring for all the hirees. She looked for capa-
ble cocktail waitresses who got along with fellow em-
ployees and customers and would be able to take the fast
pace and loud "music" of the new lounge.
4. The cooks
Rosemary Jones had started as a cook with the hotel
in 1978 and worked until the fire. Bell interviewed her
and described her as an "old pro" who wanted to learn
as much as she could. Bell liked her approach and hired
her.
Paul Jones had worked at the hotel as a cook until the
fire. Jones impressed Bell very much during his inter-
view, as revealed by the interview analysis form. Hocker
recommended Jones very highly to Bell as a very quali-
fied cook; he accepted responsibility well and could
handle the kitchen by himself. Rosemary Jones con-
curred testifying that Paul Jones was well qualified as a
cook.
Myrene Harris was initially recommended to Bell by
several food suppliers. During her interviews she im-
*8 Other employees testified that Stickler was a competent, dependable
waitress who got along very well with the customers.
pressed Bell by her wide experience and ability to dis-
cuss food preparation and related techniques. He was
convinced that she was very capable. Bell hired her and
at the time of the trial she was kitchen manager.
Dell King had not worked at the hotel before the fire
but was hired by Bell because Bell considered him to be
an excellent cook. However, King had an alcohol prob-
lem which caused his discharge in August 1981.
Maxine Eaglebarger had worked as a pantry and salad
cook in 1976 until the fire. She reapplied for the position
in January and was interviewed by Bell and hired by
him. Rosemary Jones testified that Eaglebarger was well
qualified, and Shirley Rist, a former cook, testified that
Eaglebarger was a good worker. Jean Williamson had
worked as a pantry cook for the hotel but had quit short-
ly before the fire. Hocker had heard that Williamson
wanted to return, so she invited Williamson to apply.
Bell was impressed with Williamson's attitude during the
interview. Williamson was described as a qualified cook
by Rosemary Jones and Shirley Rist.
5. The dishwashers
Tom Banney had worked as a dishwasher before the
fire. Bell interviewed him but before that interview Bell
observed Banney at work at the Holiday Inn where
Banney had been working as a dishwasher. Hocker told
Bell that Banney was a dependable and cooperative
worker and on the basis of the foregoing Bell hired
Banney.
Jim Derbin had also worked as a dishwasher prior to
the fire. He was known as a hard worker and was re-
spected by his fellow employees. He was recommended
to Bell by Hocker and Bell hired him.
6. The bus help
David Colcord, an alleged discriminatee, and the son
of Betty Colcord, had worked at the hotel as a busboy
from October 1978 until the fire. He applied for any
available job in January 1981 and was interviewed by
Bell. During the interview Colcord expressed a desire to
be a cook but had no experience as such. Rosemary
Jones, who knew Colcord, testified that Colcord was not
qualified to be a cook. Although Colcord appeared
somewhat indecisive, Bell rated him very highly as a
result of his interview. However, on the basis of Hock-
er's description of Colcord's work habits, Bell did not
hire Colcord. Hocker told Bell that although Colcord
could have been a good worker he was continually
"goofing off" and spending time in the cocktail lounge
where he was not supposed to be annoying cocktail wait-
resses by his physical advances. In addition, he was
under 21 years of age. Hocker's testimony was corrobo-
rated by Rhonda Breda, a bartender. Breda testified that
Colcord was always getting in trouble for being where
he was not supposed to be. Hocker told Bell that she
considered Colcord grossly irresponsible. Because of
those comments and the availability of better applicants,
Bell decided not to offer Colcord a job.
Robert Johnston had worked as a busboy prior to the
fire. Based on the favorable comments from dining room
waitresses and other employees, Bell hired Johnston.
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Robert Jordan had worked as a dishwasher before the
fire. Bell spoke with Jordan a number of times in De-
cember 1980. Other employees recommended Jordan
highly. Based on those recommendations and Bell's inter-
view with Jordan, Bell hired him.
Bell also hired Jena Troyer as a busgirl. Bell received
no adverse comments about Troyer's work among other
employees. Based on his interview with her he hired her.
Bell also offered bus help jobs to Jim Camren and Mark
Szmanda, 29 former employees. Camren failed to report
to work and Szmanda rejected the offer, preferring to
remain on the job he had.
The only busboy who was hired after the fire who
was not previously employed by the Respondent was Joe
Lesicki, who had previous experience in the position.
F. The Alleged 8(a)(l) Activity
On February 25, 1981, Dale Hudson, the Union's busi-
ness representative, came to the hotel to discuss a mini-
mum wage issue with the employees. Hudson met with
Millie Phillips (before she had been designated a union
steward), Ann Klawiter, and Karen Horvath in a vacant
banquet room to discuss this problem. Hudson had seen
Bell on the premises shortly before he spoke with the
three employees in the banquet room and had told Bell
that he was going to be in the back of the house (ban-
quet area) for a few minutes. Soon after Hudson entered
the banquet room and was introduced by Phillips to the
other two employees (who had not been employed prior
to the fire), Bell appeared and inquired as to whether the
girls were on breaktime. According to Phillips, Bell said,
"what are you doing in here with my waitresses?" Bell
then left and returned later with a warning notice which
he handed to Phillips for taking an unauthorized break.
Phillips told Bell that the employees had behaved simi-
larly in the past and that he had not said anything to
them then. Bell then put up "No Smoking" signs. Bell
issued warning notices to them and required the wait-
resses to sign in and out for their breaks for a short time
after this incident. Phillips told Bell that he could not do
that (issuing warning notices to her, Klawiter, and Karen
Horvath). Bell eventually withdrew the warning no-
tices. 3 0
G. The March 1981 Incident
On March 16, 1981, Hudson sent a letter to Whipstock
informing him of the minimum wage problem and that
Millie Phillips and Jan Davenport had been designated as
union stewards. Upon receiving that letter Bell became
upset because of the accusation in it that he was respon-
sible for a violation of the Federal minimum wage law
and asked Phillips what the letter was all about. Phillips
said she did not know. Bell protested that if employees
had complaints or problems they should come to him
first. Bell said that if the employees were not going to
talk problems over with him first, as suggested in article
a9 Szmanda, who received a job offer. listed Bernice Rankel, an al-
leged discriminatee, as a reference on his application.
0o Art. Xi, sees. 4 and 7 of the collective-bargaining agreement provid-
ed for the issuance of the warnings under the circumstances. In with-
drawing the warning notices, Bell concluded after his discussion with
Phillips that a misunderstanding had taken place.
XII of the contract, then he would insist on strict en-
forcement of all work rules. Phillips testified that Bell
told her they had a letter claiming that the waitresses
were not being paid right and directed her to find out
who had made this complaint. Phillips then went back to
the dining room followed by Bell who was screaming at
her, shaking his finger, and using obscenities. He told
her, "If that is the way you're going to be Millie and the
Union's going to be, I'm going to start following the
contract to the rule and there will be no more smoking."
Bell then put up "No Smoking" signs for a day or two.
H. The July 1981 Incident
In late July or early August 1981, Rhonda Breda and
Frank Mancuso were assigned to work as bartenders
during a banquet, for which they each received a S25
gratuity. They later concluded that the tip should have
been calculated as a percentage of the total liquor charge
paid by the sponsor of the banquet (which would have
resulted in their being paid a higher sum). Accordingly,
they filed a grievance and gave it to their union steward,
Davenport, who in turn gave the grievance to Bell. Bell
became upset because Breda and Mancuso had not come
to him first. Bell told Davenport that the employees
were correct regarding the way the gratuity should have
been calculated and that he, in fact, had discovered the
error on his own and had made arrangements for the ad-
ditional payments. However, he was upset because they
failed to discuss the problem with him as required under
the collective-bargaining agreement before resorting to a
written grievance. The Respondent paid Breda and Man-
cuso an additional $52 each in settlement of the griev-
ance.
Beginning on the evening the grievance was submitted
Bell remained in the lounge until midnight, whereas his
practice before the grievance was submitted was to stay
no later than 8 p.m. According to Mancuso, Bell would
watch all the employees very closely. Mancuso said he
overheard Bell tell someone, "well, if that's the way the
bartenders want to be, we'll just do everything by the
book." Mancuso also said that Bell, on one occasion, re-
ferred to Breda as a "floozy." Mancuso further testified
that Bell's conduct (remaining until late in the bar, cor-
recting employees, not permitting them to smoke in the
hallway, and staring at Mancuso) lasted about a week.3'
I. The New Year's Eve Incident
On December 31, 1981, after a New Year's Eve party,
Jean Lillvis figured out what the employees' gratuity for
that evening would be. She advised Nora Clark, the
3' Former cocktail waitress Judy Spitller corroborated Mancuso's testi-
mony. Spiller described Bell as walking around the lounge with an angry
demeanor, nit-picking, and staring at employees and enforcing minor in-
fractions of rules with meanness. Spitler testified that on that first evening
Cindy Hocker told her that they were no longer allowed to smoke in the
back hallway, play video games, sit in the back hallway when they were
not busy, or leave their stations at any time. Spitler said that Bell scolded
her for sitting in the back hallway She said Bell also required cocktail
waitress Jankowski to go out on the floor despite the fact that Jankowski
told him her customers were taken care of and the area was clean. Spitler
further testified that Jankowski put in her notice to quit that evening be-
cause of the abuse that Bell was heaping on the employees.
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lounge manager, so that the employees could be paid.
Clark thought the tip should have been more, but ad-
vised Zurawski, the union steward on duty, of Lillvis'
figure. Later, several employees approached Clark com-
plaining about the amount of the gratuity. Zurawski told
Bell about this confrontation and Bell became upset be-
cause Clark had borne the brunt of someone else's error.
A meeting was arranged with Bell, Walz, Whipstock,
Lillvis, and Clark for the hotel and Hudson and Zur-
awski for the Union. Bell decided that the employees
should be paid an additional gratuity. Apparently the
hotel had overestimated the number of expected custom-
ers and advised the employees beforehand how much
they could expect to earn based on the inflated estimate.
Bell concluded the Company and not the employees
should pay for the error.
Mancuso and Davenport testified that they thought
Bill reinstituted a "No Smoking" rule. However, neither
was on the premises for several days after the New
Year's Eve party, or had observed any change them-
selves. Mancuso testified that he heard about it from
other employees' discussions. On the other hand, other
witnesses including Zurawski, the union steward, testi-
fied that no rule changes or more strict enforcement of
existing rules occurred. In addition, Stanley testified that
she smoked during this period of time without any reper-
cussions.
Discussion and Conclusions
On October 20, 1981, the General Counsel issued the
General Counsel's notice of intent to amend complaint in
Case 25-CA-13522, and to amend the consolidated com-
plaint in Cases 25-CA-10380 and 25-CA-10548. The
complaint in Case 25-CA-13522 was amended in the fol-
lowing manner. It added new subparagraph 5(c) as fol-
lows:
"(c) The Respondent, in April 1981, promulgated
a rule prohibiting its employees from smoking in
the hallway behind the bar."
Add new sub-paragraph 5(d) as follows:
"(d) The Respondent in late July 1981, promul-
gated a rule prohibiting employees from playing
video games; sitting down in the back during
work time; smoking in the hallway behind the
bar; and requiring employees to remain at their
work stations at all times."
Add new sub-paragraph 5(e) as follows:
"(e) The Respondent engaged in the conduct de-
scribed above in subparagraphs 5(c) and (d) be-
cause its employees had joined, supported, or as-
sisted the Union, and engaged in concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, including the
filing of or threat to file grievances."
At the hearing the General Counsel moved to further
amend the complaint in Case 25-CA-13522 which
motion was granted and the amendment is as follows:
Add new subparagraph 5(f) as follows:
"(f) On or about March 17, 1981, the Respond-
ent, acting through Fred Bell, threatened stricter
enforcement of work rules because its employees
had sought the assistance of the Union."
Contrary to the contentions of the Respondent, I find
that the facts support the allegations and that Bell's con-
duct was not so minor and isolated that a finding of un-
lawful retaliation is unwarranted. See General Motors
Corp., 232 NLRB 335 (1977); Interlake. Inc., 218 NLRB
1043 (1975). The Respondent admits that Fred Bell
became irritated because the employees had filed griev-
ances through their steward before coming to him as re-
quired by the contract. However, the action of the em-
ployees in these instances was protected concerted activ-
ity even though the failure to discuss the grievances
before reducing them to writing may have been a viola-
tion of the collective-bargaining agreement. It was un-
lawful for Bell to make threats and to institute stricter
work rules or to enforce rules that had not heretofore
been enforced because he had been presented with
former grievances prior to oral consultation. I find that
the above-referred-to allegations in the complaint have
been proved by a preponderance of the evidence.
With respect to the New Year's Eve incident previous-
ly discussed, Mancuso and Davenport both testified that
they thought Bell reinstituted a "No Smoking" rule, but
acknowledged that they either were not on the premises
for several days after the New Year's Eve party, or had
not personally observed any changes. Other witnesses in-
cluding Zurawski, the union steward, testified that no
rule changes restricting the enforcement of existing rules
occurred. And, in addition, Stanley testified she smoked
during this period of time without repercussions. I find
that with respect to the New Year's Eve incident that
the clear preponderance of credible competent evidence
established that no changes of rules or their enforcement
were implemented.
The next question that is presented is whether the
Company violated Section 8(a)(3) and (1) of the Act by
refusing to hire the eight alleged discriminatees. In
agreement with the Respondent, in order to establish a
prima facie case a violation of Section 8(a)(3) of the Act,
the General Counsel must prove both that the employer
had actual knowledge of the adversely affected employee
protected activity and that the employee's protected ac-
tivity was the motivating factor behind the discriminato-
ry employment decision. Wright Line, 251 NLRB 1083
(1980). The prima facie case must be based on competent
direct evidence, and not on speculation, conjecture, or
surmise. Complas Industries, 255 NLRB 1416 (1981);
WMUR-TV, 253 NLRB 697 (1980); Wheeling-Pittsburgh
Steel Corp., 244 NLRB 1015 (1979). The General Coun-
sel must prove that the management official who actually
made the employment decision had knowledge of the al-
leged discriminatees' protected activity and that this
knowledge caused that authorized official to make that
employment decision. It is not enough merely to show
that some management official had knowledge when that
information was not communicated to the actual decision
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RAMADA INN
maker. R & S Transport. Inc., 255 NLRB 346 (1981);
Dinner Bell Foods, 239 NLRB 1115 (1978). Furthermore,
general knowledge that protected activity had been en-
gaged in by members of a particular group of employees
is insufficient. The decision maker must have had knowl-
edge of the protected activity by a particular employee
before unlawful motive can be attached to the employ-
ment decision affecting that employee. K & B Mounting,
Inc., 248 NLRB 570 (1980); Florida Steel Corp., 223
NLRB 174 (1976).
Bell was hired as food and beverage director in De-
cember 1980, and given complete control over the ad-
ministration and operation of the restaurant and lounge.
He was given authority to make all the employment and
labor relations decisions regarding that aspect of the
hotel's operation. Bell delegated his hiring authority with
respect to the lounge to Cindy Hocker, his newly desig-
nated assistant food and beverage director.
Accordingly, Bell interviewed and hired applicants to
fill the restaurant positions which included cooks, dining
room waitresses, dishwashers, and bus persons, while
Hocker hired the bartenders and cocktail waitresses for
the lounge. Bell made the decisions with respect to Ma-
delyn Bogart, Cindy Borkowski, Bernice Rankel, and
Virginia Rose Forsberg, all of whom applied for dining
room waitress positions, and David Colcord, an appli-
cant for the position of busboy. Hocker made the deci-
sion with respect to Edith Cantrell and Betty Colcord as
bartenders and Karen Gobel as a cocktail waitress.
Bell personally interviewed each of the former em-
ployees, including the five alleged discriminatees. Based
on his interviews with the five discriminatees, Hocker's
comments about their prior work performance and in
Madelyn Bogart's case, the filing of questionable work-
ers' compensation claims, Bell decided not to hire them.
There is no evidence in the record that Bell had knowl-
edge of any protected activities of these applicants or
that Bell based his decision to reject these employees on
unlawful criteria. Bell and Hocker both testified that
they did not discuss or consider the prior protected ac-
tivity of these applicants. Moreover, Bell did not even
review the personnel files of these applicants. The wit-
nesses, including the alleged discriminatees and current
union stewards, testified that during the interviews Bell
had not discussed, directly or indirectly, union activity,
support, or sympathy. Even though there is evidence of
union activities including the filing of grievances of each
of the discriminatees, there is such evidence regarding
Sandy Stickler, Millie Phillips, and Jan Davenport, all
former employees hired by Hocker and Bell. Each filed
more grievances than five of the eight alleged discrimin-
atees.
With respect to the testimony of Rosemary Jones, a
former employee previously discussed, she was hired by
Bell as a cook in January 1981. In the middle of Febru-
ary 1981, Bell had discussed with Jones the arbitrator's
decision that the former employees lost their seniority
rights when their layoff extended beyond 6 months. Ac-
cording to Jones' first version of Bell's comments, Bell
said he was glad the hotel won the arbitration because he
would not have to hire back any former employees who
were not hired or did not reapply. Bell then said that he
picked the employees that he wanted and he did not
want the previously rejected former employees because
he hired who he wanted to hire. According to Jones,
Bell said further that the owners picked the best workers
and that. he did not want any of the troublemakers that
caused trouble with the Union.
Jones testified that Bell then told her he did not hire
Borkowski, Colcord, and Bogart because they caused
trouble, did not do their work, did not treat customers
right, and stood around smoking cigarettes. However,
Jones admitted that Bell did not mention the word
"Union" or discuss union activities when he made the
"troublemaker" statement. She said that she could only
"guess" when Bell said troublemaker he was referring to
union activities. She also said that under her definition of
what she thought Bell meant by "troublemaker" that
term would describe a number of the former employees,
including herself, who were hired by Bell.
I do not put any weight on Jones' testimony with re-
spect to her "guess" as to what Bell meant by "trouble-
maker." The general definition of "troublemaker," not
getting along with others, is what Bell meant inasmuch
as Jones included herself in that category, yet she was
hired by Bell and not a definition that equates that term
with union activity.
Another former employee rehired by Bell, Maxine
Eaglebarger, someone whom Jones described as having
been very active in the Union, disputed Jones' version of
what Bell said. Eaglebarger was present when Bell was
talking to Jones. Eaglebarger heard Bell make comments
about the arbitration decision. She said that Bell said,
"At least the troublemakers did not get hired back."
Eaglebarger testified that she did not know what Bell
meant by this and did not believe it had anything to do
with employees having filed grievances. She added that
she did not think that filing grievances would label her
as a "troublemaker."
Inasmuch as the record evidence does not establish
that Bell had knowledge of the prior protected activity
of Bogart, Borkowski, Rankel, Forsberg, and David Col-
cord when he made the decision to reject them, Bell
made his decision based on interviews and advice re-
ceived by individuals, including Hocker who had person-
al knowledge of the past work performance of those per-
sons. Even though there was no duty on the part of the
Respondent to rehire any of the former employees, the
Respondent sent out invitations to reapply to all the
former employees. Bell and Hocker made their decisions
based on the reputations that the alleged discriminatees
had made for themselves and rejected them for sound
business reasons, and not because of their prior union ac-
tivity including the filing of grievances. I find that the
General Counsel has failed to establish a prima facie case
with regard to Bell's rejection of those five restaurant
applicants. I shall recommend that the complaint be dis-
missed in its entirety with regard to those individuals. R
& S Transport, and Dinner Bell Foods, supra.
As previously stated, Cindy Hocker made the decision
to reject Edith Cantrell, Betty Colcord, and Karen
Gobel. The burden of proof is on the General Counsel
that not only did Hocker know of the protected activity
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the alleged discriminatees but also that she considered
those activities in reaching the ultimate employment de-
cision. Wright Line and Dinner Bell Foods, supra. The
General Counsel did not sustain its burden with regard
to the rejection of Cantrell, Betty Colcord, and Gobel.
Even though Bell interviewed those three alleged dis-
criminatees, Hocker made the decision not to hire them.
Among other factors, Hocker made her decision based
on her personal knowledge of these employees from her
prior employment association with them before the fire.
Hocker decided not to hire them because of their poor
work habits and their inability to get along with other
employees. The General Counsel failed to produce any
evidence on which a conclusion can be based that
Hocker relied on any unlawful criteria in making those
determinations. A review of the record does not reveal
to what extent, if at all, Hocker knew of the protected
activities of these alleged discriminatees. Hocker had
been employed by the Respondent during certain periods
between 1976 and through 1979, and had worked closely
with Cantrell, Betty Colcord, and Gobel. But there was
no showing that Hocker was aware of the protected ac-
tivities. Rhonda Breda, a former employee who was re-
hired, testified that she did not know if Colcord had ever
filed a grievance. In that respect she testified as follows:
You know, it's not like when someone had a griev-
ance, they went running around the whole place
saying, you know, I'm going to file a grievance.
Usually, when you have a problem, you take care
of it with your steward, or maybe you discuss it
with someone you work with, if there's been an in-
justice.
But you don't-you know, you understand what
I'm trying to say? You don't go running around the
kitchen, and in the lounge saying I'm going to file a
grievance.
There is no evidence in the record that Hocker had
any knowledge whatsoever of Gobel's protected activity.
With respect to Betty Colcord, Hocker testified that she
did not discuss Colcord's protected activity with Bell
and does not remember Colcord ever having filed any
grievances. She did, however, testify that she had heard
that Colcord filed some grievances but had no personal
knowledge as to the truth of the matter. Hocker was not
even aware that Colcord had been a union steward until
she was so informed during the hearing. Colcord filed
five grievances during her 10 years of employment, but
all of them were filed in 1978 when Hocker was in Ari-
zona. Gobel filed I I grievances but only 6 were filed
during the time Hocker was employed by the Respond-
ent. Cantrell filed 21 grievances in her 8 years of em-
ployment, but only 8 were filed while Hocker was em-
ployed. Again, the burden was on the General Counsel
to produce evidence to show that Hocker knew of the
protected activities of Cantrell, Betty Colcord, and
Gobel, and that burden was not met. Pioneer Natural Gas
Co. v. NLRB, 662 F.2d 408 (5th Cir. 1981).
Assuming arguendo that Hocker had knowledge by in-
ference of the union activities of the three alleged discri-
minatees, there is no evidence that Hocker had relied on
this knowledge in reaching her employment decisions
with respect to them.
Hocker had been a member of the Union when she
was employed prior to the fire, and had filed a grievance
against the hotel and complained on occasion about
working conditions. She said that she had remained neu-
tral toward the Union both while she was in the Union
and when she was a manager for the hotel. There is no
evidence of any union animus on the part of Hocker or
that her employment decisions were motivated by her
union background. The evidence establishes beyond a
doubt that Hocker was interested in employing the best
possible people for the lounge inasmuch as she was re-
sponsible and was expected by her superiors to run a
good shop. She refused to hire anyone whom she knew
to be lazy, untrustworthy, unable to get along with
others, or who did not really want to work at the hotel.
The Respondent had no obligation to hire those individ-
uals. They had no greater rights than other applicants as
far as seniority was concerned. Hocker did not want to
saddle herself with individuals she did not think would
or could do a good job when she had qualified appli-
cants to select from, including former employees Zur-
awski, Clark, Breda, Stickler, Hogan, and Paulson. I find
that Hocker's rejection of Cantrell, Betty Colcord, and
Gobel was lawful.
I find that the General Counsel has failed to establish
by a preponderance of evidence that these three individ-
uals were rejected because of filing of grievances or
other union activities. I shall therefore recommend that
dismissal of the complaint in its entirety with respect to
allegations concerning them. I find that the eight alleged
discriminatees would not have been rehired absent any
prior exercise or protected rights. Wright Line, supra.
See also St. Joseph Hospital, 260 NLRB 691 (1982). The
hiring decisions were based on legitimate business con-
siderations and would have been the same had the appli-
cants not engaged in protected activity.
Cantrell was very slow and would not have been able
to keep up with the other bartenders in the new bar and
she had a reputation as a thief. (That was established not
only by the testimony of Hocker but by other employ-
ees.) In addition, Cantrell was unable to get along with
other employees.
Betty Colcord was slow, kept a messy bar, watched
soap operas all day, and ignored customers. That was at-
tested to by several witnesses who had personal knowl-
edge of her work habits. By contrast, all the former em-
ployees who were hired were good workers and got
along with customers and their fellow employees.
Karen Gobel was a chronic complainer who engen-
dered a considerable amount of tension among other
lounge employees. There is testimony that many employ-
ees did not want to work with her. Gobel insisted on a
limited work schedule which contributed to other em-
ployees' dislike for her. She refused to work Saturday
nights except in emergency situations. Her inflexibility
caused her coworkers to view her as selfish and self-cen-
tered. In fact, one employee, Sandy Stickler, conditioned
her return to the employment of the Respondent on the
nonemployment of Gobel. When Hocker was asked by
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Stickler if Gobel was coming back and Hocker replied in
the negative, Stickler accepted the job. Even though
Gobel may have had good mechanical skills as a cocktail
waitress, Hocker knew the new bar would demand more
than just good skills. She said she needed an employee
who was flexible, personable, and willing to pitch in.
Gobel was not that employee. In addition, Hocker testi-
fied that as a result of her friendship with Gobel that
Gobel did not really want to come back, that she was
tired of the abuse that a cocktail waitress had to take in a
popular public bar and would rather remain a bartender
in a private club where she was employed at the time.
Gobel had worked for the hotel for 6 years. During that
period she never held a union position but she did file 11
grievances during her tenure. Sandy Stickler, whom
Hocker hired as a cocktail waitress, had also worked for
the hotel for about 6 years. Like Gobel, she never served
in an official capacity for the Union but she did file
grievances.
I am convinced that Hocker hired the best employees
available who not only had good skills but who would
also fit in with the other employees and with whom she
could work. Hocker did not hire Gobel because she
could not meet those qualifications. And I am convinced
that Hocker's decision would not have been different if
Gobel had not engaged in any protected activity. Cer-
tainly her hiring Stickler compelled that conclusion.
Similarly Bell's employment decisions were not discri-
minatorily motivated and would have been the same in
the absence of any protected activity. Bell hired 12
dining room waitresses in preparation for opening day.
Of these three, Millie Phillips, Jan Davenport, and Jean
Lillvis had previously worked for the hotel. Four of the
alleged discriminatees applied for dining room waitress
positions, Madelyn Bogart, Cindy Borkowski, Bernice
Rankel, and Virginia Rose Forsberg.
Bogart had worked as a dining room waitress for the
hotel from 1974 through February 1980. However her
employment was not continuous inasmuch she missed
considerable periods of work during two medical leaves
of absences for back injuries she received while on the
job. Whipstock told Bell that he "better be careful" and
that Bell had "better check on that one." Bell asked
Hocker about Bogart. Hocker told Bell that she had not
worked with Bogart before but that Bogart had a reputa-
tion for not getting along with other employees. Hocker
also informed Bell that Bogart slipped and fell down a
lot on the job when no one was around. Hocker also
told Bell that she had fallen at her previous employer's
premises, the Come-N-Dine restaurant. In spite of those
comments, Bell was favorably impressed with Bogart as
a result of the interview he had with her.
Bell called the Come-N-Dine restaurant and spoke
with the manager after which he was convinced that
Bogart would not be a good employee inasmuch as he
suspected that she filed false workmen's compensation
claims. In addition, she did not get along with other
people; she tried to "run" the restaurant by giving orders
to other employees telling them what they could or
could not do. Other witnesses corroborated Hocker's tes-
timony concerning Bogart's inability to get along with
others and her inclination to tell other empjloyees what
to do even though she had no authority to do so. There
is no evidence that Bell considered Bogart's prior union
activity. Considering Hocker's testimony that she may
have told Bell that Bogart had been a union steward, I
am still convinced that having been a steward did not
enter into Bell's decision not to hire Bogart.32
Millie Phillips, who was rehired by Bell as a dining
room waitress, had worked for the hotel for 3 years
prior to the fire. During her past employment with the
Respondent, Phillips filed five grievances, three of which
she filed with Bogart. Phillips was selected as a steward
by Dale Hudson, the Union's business agent, in February
1981. Hudson described Phillips and Jan Davenport, the
other steward, as clearly the best choices for this union
position. Jan Davenport, also hired by Bell, had worked
6 years before the fire. Davenport filed six grievances
during this time frame. Thus, Bell hired former employ-
ees who had engaged in protected activity and he reject-
ed employees who had engaged in protected activity. I
do not believe Bogart's rejection has been proven to be
discriminatory.
Cindy Borkowski was hired as a dining room waitress
in 1974 and worked until she was laid off because of the
fire. After interviewing Borkowski, Bell called her cur-
rent employer, a medical clinic, where she worked as a
receptionist. Bell received a good reference, and he was
leaning favorably toward hiring her. He hesitated be-
cause of some undesirable traits that she exhibited during
her interview. These included excessive nervousness, fid-
geting, and an expressed lack of a goal in life. After the
interview Bell talked to Hocker about Borkowski.
Hocker confirmed Bell's initial fears explaining that Bor-
kowski was very sensitive and got upset very easily.
Brenda Maddox, a former hostess, testified that Bor-
kowski was a pretty good waitress but that she panicked
very easily. Bell also heard that Borkowski enjoyed her
job at the clinic and really did not want to come back to
the hotel.
Again, there is no evidence in the record to suggest
that Bell rejected Borkowski because of her prior pro-
tected activities or that she was even considered a union
activist. The Union's representative, Dale Hudson, testi-
fied that Borkowski was not a union leader or a vocal
supporter of the Union. Rosemary Jones said that Bor-
kowski was never known as an employee who would file
a grievance. In her 6 years of employment Borkowski
filed four grievances. By comparison, Phillips and Dav-
enport filed more grievances in less time, and were both
rehired and appointed as union stewards. All four of the
grievances signed by Borkowski were joint grievances
that had also been signed by Phillips. I am convinced
that Bell would not have rehired Borkowski even if she
had not engaged in minor protected activities in which
she joined others.
Bernice Rankel began working as a waitress for the
hotel in 1971. As previously indicated, she was fired on
November 20, 1978, and was later reinstated without
32 Bogart worked for the hotel for 6 years, the last year as a steward.
During those 6 years Bogart signed 10 grievances. Several former em-
ployees testified that Bogart did not have a reputation for filing griev-
ances.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay after a 10-month disciplinary suspension. Rankel
did poorly in her interview with Bell who gave her low
marks on her willingness to help others and her general
attitude. Bell was not impressed by Rankel and Hocker
did not say anything to change his mind.
Forsberg was hired in 1970 as a dining room waitress
and, like Rankel, worked until November 20, 1978, when
she was fired. She also was reinstated without backpay
after a 10-month disciplinary suspension. Forsberg
worked until the fire. Forsberg also had a bad interview
with Bell telling him in the beginning that she did not
know why she was going through with the interview be-
cause she knew she was not going to be hired. He felt
that Forsberg had a chip on her shoulder and inasmuch
as he had no obligation to rehire any of the former em-
ployees, evidently he decided to hire only those he con-
sidered the best.
Forsberg had been a union steward for I month,
during which time she did not submit any grievances.
Rankel served as a steward for a short time in 1974.
Forsberg had signed four grievances in almost 10 years
of employment while Rankel joined in just three griev-
ances in her 9 years of employment. Forsberg testified
that she never spoke to the prior management about
working conditions. Clearly Rankel and Forsberg were
much less active and filed fewer grievances than Phillips
and Davenport, the two former employees hired by Bell.
David Colcord, the eighth alleged discriminatee, had
worked as a bus helper for approximately 17 months
prior to the fire. As previously stated, Colcord applied
for any available job in January 1981 with a particular
desire to be a cook. However, Colcord testified that he
told Bell in the interview that he did not want to be a
dishwasher and that he would not have accepted the job
as a cocktail waiter. He also said that he really did not
mean he was applying for any opening. He was not
qualified to be a cook. Also, as previously stated, Col-
cord had a reputation for bothering the cocktail waitress-
es and being where he was not supposed to be during
working hours. However, it appears Bell was influenced
in making a decision not to hire David Colcord by
Hocker's extreme dislike for him. Hocker thought Col-
cord could be a good busboy when he was in the dining
room but that it was hard to keep him there. She said
that he was constantly "goofing off"' in the cocktail
lounge which not only violated work rules but also vio-
lated the law because he was not then 21 years old. She
said Colcord would "hang out" in the cocktail lounge
where he thought he had license to make physical ad-
vances towards the cocktail waitresses. Hocker told Bell
that he did not like Colcord and did not want him
around. Apart from being alleged discriminatee Betty
Colcord's son, Colcord never filed a grievance, never
had a position in the Union, and never engaged in any
union activity.
The General Counsel contends that Colcord was not
hired because of his relationship to Betty Colcord. The
facts do not support that contention. June Stanley, whom
Hocker hired as a cocktail waitress, used Betty Colcord
as a reference on her application and told both Bell and
Hocker that Colcord was like family to her. She even
called Colcord, "Aunty Betty." Hocker hired Stanley in
January 1981, and after she quit in August Bell hired her
again in December. Furthermore, Bell offered a bus
helper position to Marc Szmanda, which Szmanda reject-
ed, even though Szmanda had listed Bernice Rankel as a
reference. The relationship of a union official or activist
is not, without more, the basis of a finding of unlawful
purposes or motivation. R & S Transport, Inc., 255
NLRB 346 (1981). I find that Colcord's rejection was
not based on improper criteria and would have occurred
had David Colcord not been related to Betty Colcord.
Of the 264 applicants who were interviewed, 38 were
hired. Seventeen of the 38 were former employees and,
of the 27 former employees who applied, 19 were made
offers of employment. The eight who did not receive
offers are the alleged discriminatees. Because of the
Union's security clause in the hotel's collective-bargain-
ing agreement, the 17 former employees who were re-
hired necessarily had been members of the Union. A
number of the off-the-street applicants also had union
backgrounds. In addition, reviewing only the former em-
ployees, it is clear that numerous former employees were
hired that engaged in a considerable amount of protected
activity. Conversely, five of the eight alleged discrimina-
tees engaged in virtually no protected activity. That
comparison reveals that prior activity was not a factor in
Bell's or Hocker's hiring decisions. In agreement with
the Respondent the alleged discriminatees were simply 8
of 226 applicants who were not offered jobs. They were
not treated any differently from anyone else. It is evident
that everyone was judged on his or her merits. The al-
leged discriminatees apparently did not measure up. In
sum, I find that although there is evidence of union or
concerted activity or grievance filing by most of the al-
leged discriminatees, except for David Colcord who filed
no grievances and took no part in union activities, there
is no evidence that the Respondent knew of any of these
protected activities or that the Respondent treated the
applicants differently because they may have engaged in
such activities. To the contrary, the Respondent rehired
many former employees who had filed more grievances
than several of the alleged discriminatees, as indicated
above. Accordingly, I conclude that the Respondent did
not violate the Act when it rejected the eight alleged
discriminatees.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By promulgating a rule in early April 1981, prohib-
iting its employees from smoking in the hallway behind
the bar because such employees engaged in activity pro-
tected under Section 7 of the Act, the Respondent vio-
lated Section 8(a)(1) of the Act.
4. By promulgating a rule in July 1981, prohibiting
employees from playing video games, sitting down in the
back during worktime, smoking in the hallway behind
the bar, requiring employees to remain at their work sta-
tions at all times because said employees engaged in ac-
302
RAMADA INN
tivity protected under Section 7 of the Act, the Re-
spondent violated Section 8(a)(1) of the Act.
5. By refusing to rehire Madelyn Bogart, Cindy Bor-
kowski, Bernice Rankel, Virginia Rose Forsberg, Edith
Cantrell, Betty Colcord, and Karen Gobel, the Respond-
ent has not violated Section 8(a)(1) and (3) of the Act.
The aforesaid unfair labor practices tend to lead to
labor disputes hindering and obstructing commerce and
the free flow of commerce and constitute unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices I shall recommend that the
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate
the policies of the Act.
I shall also recommend that the Respondent post ap-
propriate notices at its place of business in South Bend,
Indiana.
Upon the foregoing findings of fact and conclusions of
law in the entire record and pursuant to Section 10(c) of
the Act, I issue the following recommended
ORDER3 3
The Respondent, Rambend Realty Corporation, d/b/a
Ramada Inn of South Bend, South Bend, Indiana, its of-
ficers, agents, successors, and assigns, shall
sa 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.
I. Cease and desist from
(a) Promulgating rules prohibiting employees from
playing video games; sitting down in the back during
worktime, smoking in the hallway behind the bar, and
requiring employees to remain at their work stations at
all times because said employees have exercised their
rights under Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its place of business in South Bend, Indiana,
copies of the attached notice marked "Appendix."34
Copies of the notice, on forms provided by the Regional
Director for Region 25, after being signed by Respond-
ent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint is dismissed in-
sofar as it alleges violations of the Act not specifically
found herein.
a4 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
303