Sheraton Hotel Waterbury

National Labor Relations Board - Board Decisions

Sep 23, 1993

312 N.L.R.B. 304 (N.L.R.B. 1993)

304
312 NLRB No. 61
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge inadvertently omitted the representation case citation
from his decision.
2 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
3 Although we conclude that the Respondent’s action of hiring po-
lice to patrol the hotel was unlawful, we recognize that Union Agent
Traber’s conduct at the home of the Theriaults may have been un-
protected, and we further acknowledge that an employer can take
steps to protect employees from coercion. However, in the cir-
cumstances of this case, we agree with the judge that the Respondent
was not motivated by a desire to protect the Theriaults in their
home. Rather, the Respondent seized on this incident as a pretext to
disparage and undermine the Union in the eyes of the employees.
Chairman Stephens does not agree that this conduct by the Re-
spondent violates Sec. 8(a)(1) of the Act, but he agrees that all the
Respondent’s other conduct found unlawful here warrants the grant-
ing of a bargaining order for the reasons stated in sec. 1 below.
4 We adopt the administrative law judge’s recommendation that the
election held January 25, 1990, be set aside. For the reasons set forth
below, we shall modify the judge’s recommended Order to direct a
second election, and we shall order that the Respondent, on request,
bargain collectively with the Union as the exclusive bargaining rep-
resentative of all the employees in the appropriate unit.
5 Id. at 613–614.
6 Id. at 614.
7 Id. at 614–615. In considering the Respondent’s conduct, we find
it unnecessary to resolve whether the conduct falls under category
I. As discussed here, it clearly falls into at least category II and the
Union had majority status. Therefore, a bargaining order is war-
ranted.
8 There are no exceptions to the judge’s finding that cards had
been signed by a majority of the bargaining unit members.
J.L.M. Inc. d/b/a Sheraton Hotel Waterbury and
Local 217, Hotel and Restaurant Employees
and Bartenders Union, AFL–CIO. Cases 34–
CA–4535, 34–CA–4628, 34–CA–4749, 34–CA–
4800–2, and 34–RC–9361
September 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case raises the issue, inter alia, of whether a re-
medial bargaining order is warranted to remedy viola-
tions of the Act.
On May 17, 1991, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Gen-
eral Counsel and the Respondent each filed exceptions
and supporting briefs, and the Respondent filed an an-
swering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 as modified, and to adopt the recommended
Order as modified4 and set forth in full below.
1. The judge found that the Respondent committed
numerous violations of the Act but concluded that
these violations did not require that a bargaining order
be issued as, in his view, the violations were curable
by traditional remedies. The General Counsel excepts,
contending that a bargaining order is required. We
agree with the General Counsel.
In ascertaining whether a bargaining order is war-
ranted to remedy the Respondent’s misconduct we
apply the test set out in NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969). In Gissel, the Court delineated
two types of situations where bargaining orders are ap-
propriate: (1) ‘‘exceptional’’ cases marked by ‘‘out-
rageous’’ and ‘‘pervasive’’ unfair labor practices; and
(2) ‘‘less extraordinary’’ cases marked by ‘‘less perva-
sive’’ practices.5 Thus, the Court placed its approval
on the Board’s use of a bargaining order in ‘‘less ex-
traordinary’’ cases where the employer’s unlawful con-
duct has a ‘‘tendency to undermine [the union’s] ma-
jority strength and impede the election processes.’’6
The Court indicated that when unfair labor practices
are of this character and the union at one time had a
majority support among the unit employees, the Board
may enter a bargaining order. With respect to such a
remedy, the Court said:
In fashioning a remedy in the exercise of its dis-
cretion, then, the Board can properly take into
consideration the extensiveness of an employer’s
unfair practices in terms of their past effect on
election conditions and the likelihood of their re-
currence in the future. If the Board finds that the
possibility of erasing the effects of past practices
and of ensuring a fair election (or a fair rerun) by
the use of traditional remedies, though present, is
slight and that employees sentiment once ex-
pressed through cards would, on balance, be bet-
ter protected by a bargaining order, then such an
order should issue . . . .7
The Respondent operates a three star hotel located
in Waterbury, Connecticut. The Hotel has been oper-
ational since 1985, with no history of collective bar-
gaining. The Union initiated contact with the Hotel’s
employees in April 1989. On October 5, 1989, the
Union began conducting weekly organizing committee
meetings designed to educate members of the commit-
tee about the Union. It is undisputed that Respondent
had knowledge of the Union’s organizing efforts from
the outset and knew of the identities of the Union’s
primary supporters by November. By December 14,
1989, the Union had obtained a majority of signed
membership cards.8 Following the Respondent’s rejec-
tion of the Union’s December 14, 1989 demand for
recognition, the Union, on December 15, 1989, filed a
representation petition with the Board. Pursuant to a
Stipulated Election Agreement, an election was con-
305SHERATON HOTEL WATERBURY
9 The judge incorrectly gives October 29 as the date that the warn-
ing was issued.
10 We adopt the judge’s finding that employee Sauvageau’s dis-
charge was motivated by his activity on behalf of the Union, and
that the Respondent’s reasons for terminating him were pretextual.
In adopting the judge’s conclusion that the Respondent violated Sec.
8(a)(3) and (1) of the Act by discharging Sauvageau, we find it un-
necessary to rely on the judge’s findings that Sauvageau was en-
gaged in protected concerted activitity when he acted as a witness
and advocate on behalf of employee Little during Little’s discipli-
nary meeting.
11 There was no testimony or other record evidence regarding the
precise date in December when this notice was posted.
12 See Koons Ford of Annapolis, 282 NLRB 506, 508 fn. 12
(1986).
13 See, e.g., Gissel, supra at 611 fn. 31.
ducted on January 25, 1990. The Union lost the elec-
tion 104 to 62, with 21 challenged ballots.
As correctly found by the judge, both before and
after the election, the Respondent committed numerous
violations of the Act. Early in the antiunion campaign
it unlawfully discharged Roger Sauvageau. Sauvageau
was a member of the union organizing committee and
an outspoken advocate for the Union. On October 13,
1989, after Sauvageau expressed the view that the
Union stood a good chance of getting in, Respondent’s
executive housekeeper, Kathy Tavares, warned him,
‘‘You better watch out, you’re one of the ten on the
list.’’ The following day Kathy Tavares had a con-
versation with employee Eliza Svehlak in which she
told Svehlak that Sauvageau ‘‘didn’t stop running his
mouth about . . . the Union,’’ that ‘‘he already had a
blackmark against him,’’ and that ‘‘he could be fired
for it.’’ On November 2, 1989,9 General Manager
Richard Bair gave Sauvageau a written warning be-
cause the Respondent was seeking to punish
Sauvageau for his soliciting support for the Union. On
November 30, 1989, Respondent’s owner, Joseph
Calabrese, discharged Sauvageau because of his union
activities.10 Thereafter, in December 1989, after appar-
ently learning that the Regional Director was about to
issue a complaint concerning Sauvageau’s discharge,
the Respondent posted a notice in December 1989,
which, inter alia, stated that Sauvageau would never
work for the Respondent again.11 As the judge cor-
rectly finds, the Respondent in posting this notice was
reminding its employees of its unlawful action and re-
inforcing the message that it had sent by firing
Sauvageau in the first place, viz, that it will get rid of
union supporters.
Sauvageau was not the only union supporter to suf-
fer at the Respondent’s hands because of union activi-
ties. Svehlak, a high profile union supporter, was ini-
tially issued a warning designed to stop her from en-
gaging in soliciting support for the Union. On the day
of the election she was assigned to clean rooms in
order to keep her away from the bulk of union sup-
porters. Ultimately in May 1990, she was discharged
because of her union activities. In April 1990, employ-
ees Barbara Racine and Laurie Grenier, both organiz-
ing committee members and frequent challengers to
Calabrese in employee meetings held by him, had their
hours reduced and were ultimately discharged because
of their union activities. In addition, the Respondent
unlawfully reduced the hours of three other employees,
Hector Echeandia, Cesar Barrera, and Grace Kelley be-
cause of their union activities. Finally, the Respondent
unlawfully disparaged the Union by its reaction to an
alleged union threat to an employee and using the po-
lice presence to give the impression of imminent dan-
ger to employees from the Union.
As noted above, in determining whether a bargain-
ing order is appropriate, the Board examines the sever-
ity of the violations and the effects that the unfair
labor practices would have on the holding of an elec-
tion.12
It is highly significant that many of the violations
present here were serious in nature. Both the courts
and the Board have long recognized that the threat of
job loss (i.e., discharge, layoff, and plant closure) be-
cause of union activity is among the most flagrant kind
of interference with Section 7 rights and is more likely
to destroy election conditions, and to do so for a
longer period of time, than other unfair labor prac-
tices.13 Indeed, the natural and likely result of the
threats found here reinforced the employees’ fear that
they would be targeted for retaliation and lose their
jobs if they persisted in their union activity. Certainly,
the implied threat contained in the Respondent’s post-
ing of its statement regarding Sauvageau’s discharge
was a threat conveyed to all unit employees. Further,
the Sauvageau discharge was followed by the dis-
charge of three additional employees and the reduction
in hours of three other employees.
The success of the Respondent’s unlawful
preelection campaign is illustrated by the clear dissipa-
tion of union support that resulted in the Union’s de-
feat. The judge found that the Union obtained 128
valid authorization cards, some 18 more than necessary
to establish majority status on December 14, 1989.
However, a little more than 1 month later, on January
25, 1990, the Union received only 62 votes in the elec-
tion. Further, we find that the Respondent’s actions,
after the election, were motivated by union animus and
unlawful, and perpetuated the Respondent’s message
that it would rid itself of all remaining outspoken
union supporters. Thus, during the postelection period
the Respondent discriminatorily terminated Svehlak,
Racine, and Grenier.
The judge concluded that the reinstatements of
Sauvageau and Svehlak, which had not yet been done,
should strengthen the Union. That is unwarranted spec-
ulation. Further, there is no support for the judge’s
finding that the discharges of Grenier and Racine were
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 F & R Meat Co., 296 NLRB 759 (1989).
15 See Kona 60 Minute Photo, 277 NLRB 867, 871 (1985).
16 We have already stated that we are adopting the judge’s findings
that certain of these decisions were discriminatorily motivated. For
the purposes of this discussion, we assume, arguendo, that the Re-
spondent was motivated by economic considerations as to each of
the decisions.
accomplished so quietly that they would have no effect
on employees. Rather, these discharges were undoubt-
edly seen by employees as a continuation of the Re-
spondent’s previous pattern of retaliation against union
supporters.
The judge incorrectly relied on the turnover rate for
both management and employees in rejecting a bar-
gaining order. The turnover rate is not a relevant con-
sideration under existing Board law concerning factors
governing the issuance of a Gissel bargaining order.14
Further, even if we were to consider such turnover, we
cannot agree with the judge’s finding that the turnover
rate suggests that we should not grant a bargaining
order. Many of the violations here were committed by
Calabrese, the owner of the Hotel, and his top manage-
rial staff. These persons remain employed. The posi-
tions held by these persons clearly serve to strengthen
and amplify in the minds of the employees the serious-
ness of the threats conveyed and the discriminatory ac-
tion taken.15 Further, there is no evidence that the
other managers and supervisors who committed the un-
fair labor practices have since left the Respondent. As
to employee turnover, there is no evidence that this
turnover was not a result of the unlawful conduct. F
& R Meat Co., supra, Bridgeway Oldsmobile, 281
NLRB 1246 (1986).
In view of the nature of the Respondent’s violations,
we conclude that the possibility of erasing the effects
of the unfair labor practices and conducting a fair elec-
tion is slight. Under these circumstances, simply re-
quiring the Respondent to refrain from unlawful con-
duct will not eradicate the lingering effects of the hall-
mark violations it committed and will not deter their
recurrence. Further, we find that the employees’ rep-
resentational desires expressed through authorization
cards, on balance, would be better protected by a bar-
gaining order than by traditional remedies. Accord-
ingly, we shall order the Respondent to bargain with
the Union as the exclusive representative of its em-
ployees in the unit found appropriate for the purposes
of collective bargaining, effective December 14, 1989.
By that date, the Respondent had already commenced
its unlawful course of conduct, and on that date the
Union possessed authorization cards from a majority of
unit employees.
2. Having determined that the Respondent’s bargain-
ing obligation attached on December 14, 1989, and
noting that the Union had demanded recognition on
that date, we next consider the General Counsel’s con-
tentions that the Respondent had a duty to bargain with
the Union over the following changes made subsequent
to that date:
1. The implementation on December 16, 1989,
of a new restaurant policy concerning the cover-
ing of shifts;
2. The elimination of the 1 p.m. to 5 p.m. shift
in the sports complex;
3. The reduction of Grace Kelley’s hours;
4. The denial of work to the following employ-
ees: Mark Scott, Hector Echeandia, Cesar Barrera,
Kimberly Goffredo, and Jennifer Goffredo; and
5. The change of the laundry department em-
ployees’ hours in March 1990.
The General Counsel asserts that the Respondent’s
failure to bargain over each of the above-listed subjects
constituted separate violations of Section 8(a)(5) and
(1) of the Act and should be remedied by the restora-
tion of the status quo ante as to each affected em-
ployee. For the reasons stated below, we agree.16
I. RELEVANT FACTUAL FINDINGS
A. Change in Shift Coverage Policy
Prior to the Union’s organizational efforts in the fall
of 1989, the existing policy in the restaurant was that
servers were responsible for finding their own replace-
ments for scheduled shifts if they were going to miss
work for a personal reason. On December 16, 1989,
the Respondent posted the following memorandum:
Effective 12/16/89. If you cannot work your as-
signed shift for any reason, you must contact a
restaurant manager a minimum two (2) hours
prior to your shift. The manager will find a re-
placement in order to insure fair division of shifts.
Under no circumstances shall an employee cover
his/her own shift. Any deviance from this policy
will result in proper disciplinary action!
B. The Elimination of the 1 to 5 p.m. Shift in the
Sports Complex and the Resulting Denial of Work
to Kimberly and Jennifer Goffredo
The Respondent, in early January 1990, eliminated
the 1 to 5 p.m. shift in the sports complex. This re-
sulted in the denial of work to Kimberly Goffredo and
Jennifer Goffredo. As a result of the elimination of the
shift, Kimberly began working 3 days per week from
5 to 10 p.m., and Jennifer worked 2 days during the
week and on weekends. The Respondent asserts that
the shift was eliminated because of a decline in the
Hotel’s occupancy, a decline in the number of
nonguest memberships in the sports facility, and the
307SHERATON HOTEL WATERBURY
17 Sec. 8(d) provides, in pertinent part, that
to bargain collectively is the performance of the mutual obliga-
tion of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of employment
. . . .
18 Postal Service, 306 NLRB 640, 642 (1992).
19 The reduction in Kelley’s hours were due to the Respondent’s
apparent dissatisfaction with part-time employment. However, inas-
much as her hours were reduced, and since the change did not in-
volve a change in the direction or scope of the enterprise, we con-
clude that the foregoing rationale applies to her as well.
20 We amend the judge’s Conclusions of Law by inserting the fol-
lowing as paragraph 6 and renumbering the subsequent paragraphs:
6. The Respondent has committed unfair labor practices in
violation of Section 8(a)(5) of the Act by failing and refusing
to notify and bargain collectively with the Union as the exclu-
sive representative of its employees in the appropriate unit con-
cerning its decisions to cut labor costs by eliminating the 1 p.m.
to 5p.m. shift in the sports complex; reducing Grace Kelley’s
hours; and denying work to Mark Scott, Hector Echeandia,
Cesar Barrera, Kimberly Goffredo, and Jennifer Goffredo; and
by its decisions to implement a new restaurant policy on Decem-
ber 16, 1989, concerning the covering of shifts; and changing
the hours of the laundry department employees in March 1990.’’
fact that the afternoon shift was the least used of the
three shifts.
C. Reduction of Grace Kelley’s hours
The Respondent reduced Grace Kelley’s hours from
3 days to 1 day starting in the pay period ending April
29, 1990, citing the fact that she was a part-time em-
ployee. Prior to the cut, the Respondent told Kelley
that the change was being made because it was having
trouble with part-time people, that they were too er-
ratic, and it was hard to keep a schedule.
D. Respondent’s Denial of Work to Certain
Named Employees
(a) Mark Scott was a room service waiter. In August
1989, while on vacation, Scott was injured and notified
Manager Linda Boulanger that he would be out for
several weeks. Scott returned to work on October 18,
1989, and was assigned to work 2–3 shifts per week.
In early December 1989, Scott’s schedule was reduced
to one shift. When he questioned management about
the change, he was told that business was slow. The
following week, Scott was taken off the schedule com-
pletely. The Respondent’s records show that Scott was
laid off during the payroll period ending December 24,
1989. He was told the layoff was because of lack of
work.
(b) In December 1989, Hector Echeandia, a cook,
had his hours reduced. The Respondent contends that
the hours were cut because of a reduction on the level
of business.
(c) In the payroll period ending January 7, 1990,
Cesar Barrera was removed from the schedule for 1
week. The Respondent offered no specific explanation
for its actions.
E. Change in Hours of Laundry Employees
In March 1990, the Respondent changed the shift
worked by its laundry employees from a 7 a.m.–3 p.m.
shift to an 8 a.m.–4 p.m. shift. The Respondent told
the employees that it made the change in order to ac-
commodate all the hotel departments.
Regarding the foregoing decisions, we must deter-
mine whether they are mandatory subjects of bargain-
ing. See First National Maintenance Corp. v. NLRB,
452 U.S. 666 (1981).
II. THE CHANGES WERE MANDATORY SUBJECTS
OF BARGAINING
Policies—such as the restaurant shift coverage
rules—which concern how employees must go about
securing a day off or switching days off are plainly
‘‘terms and conditions of employment,’’ and, although
the Respondent argues that its change on this subject
was lawfully motivated, it makes no claim that it is
outside the ambit of mandatory subjects of bargaining.
The change in the hours of the laundry employees’
shift was also clearly a change in the terms and condi-
tions of employment that is subject to the bargaining
obligation. See Meat Cutters v. Jewel Tea Co., 381
U.S. 676, 691 (1965).
The Respondent asserts that the other changes were
cost-cutting measures adopted in response to a down-
turn in the economy and a decline on its business. The
cost cutting involved a diminution of work hours with
a resulting reduction in labor costs. Each decision,
however, was literally within the scope of an employ-
er’s obligation to bargain as defined by Section 8(d) of
the Act.17 None of the decisions involve any basic
change in the direction or scope of the Respondent’s
enterprise. Thus, we find that these decisions constitute
the type of management decisions that are ‘‘almost ex-
clusively ‘an aspect of the relationship’’’ between em-
ployer and employees.18 Therefore, we find that the
Respondent was obligated, since the Union’s Decem-
ber 14, 1989 demand, to bargain over the above-noted
decisions.19
Accordingly, we find that the Respondent’s failure
to notify and bargain with the Union regarding the
aforementioned unilateral decisions to reduce labor
costs violated Section 8(a)(5) and (1).20
AMENDED REMEDY
As noted above, we shall order the Respondent to
bargain with the Union as of December 14, 1989.
As the Respondent has violated the Act by failing
to notify and bargain with the Union over its decisions
to implement, on December 14, 1989, a new restaurant
policy concerning the covering of shifts; eliminating
the 1 to 5 p.m. shift in the sports complex; reducing
Grace Kelley’s hours; denying work to Mark Scott,
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Regarding Scott, we leave to compliance the determination of
the extent to which his hours were cut prior to the date on which
the bargaining obligation commenced, and therefore not subject to
bargaining, and the extent to which his hours were cut after that
date. It is clear that at least the layoff occurred subsequent to the
December 14, 1989 bargaining demand.
22 We have also made some modifications in the judge’s order.
Additionally, we shall substitute the broad injunctive language re-
quiring the Respondent to cease and desist from violating the Act
‘‘in any other manner,’’ for the provision recommended by the
judge. See Hickmott Foods, 242 NLRB 1357 (1979).
Hector Echeandia, Cesar Barrera, Kimberly Goffredo,
and Jennifer Goffredo; and changing the laundry de-
partment employees’ hours in March 1990, as well as
the effects of those decisions, we shall order bargain-
ing and full backpay relief in order to restore the status
quo ante.21 We note that there is no showing that such
a remedy would be unduly burdensome. Fibreboard
Corp. v. NLRB, 379 NLRB 308 (1988). Accordingly,
we shall order the Respondent to bargain with the
Union concerning the above-noted unilateral decisions
and the effect of those decisions. We have already
found that the Respondent discriminatorily denied
work to Hector Echeandia and Cesar Barrera and re-
duced the hours of work for Grace Kelley, and we
note that as to those employees, the appropriate make-
whole remedy has been ordered as set forth in the
judge’s decision. We shall also order the Respondent
to offer reinstatement to employees Mark Scott, Kim-
berly Goffredo, and Jennifer Goffredo and pay them
backpay to compensate for any loss of earnings and
other benefits they may have suffered as a result of the
unlawful actions taken against them. We shall leave
the determination of losses suffered by these employ-
ees to the compliance stage of this proceeding. Back-
pay is to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), with inter-
est to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
We shall also modify the judge’s recommended Order
to reflect these changes.22
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, J.L.M. Inc. d/b/a Sheraton Hotel Water-
bury, Waterbury, Connecticut, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Cease and desist from
(a) Discharging its employees for engaging in con-
duct protected by the Act.
(b) Reducing the hours of work for its employees in
retaliation for engaging in activities in support of the
Union.
(c) Issuing disciplinary warnings to its employees
for engaging in activities in support of the Union.
(d) Threatening employees because of their union
activities.
(e) Posting a notice concerning the unlawful dis-
charge of an employee that states that the Respondent
would never rehire him.
(f) Encouraging antiunion sentiment at employee
meetings while attempting to stifle prounion sentiment
and impliedly threaten retaliation for union support.
(g) Disparaging the Union by overreacting to an al-
leged union threat to an employee and using police
presence to give the impression of imminent danger to
employees from the Union.
(h) Refusing to recognize and bargain collectively
concerning rates of pay, wages, hours of employment,
and other terms and conditions of employment with
Local 217, Hotel and Restaurant Employees and Bar-
tenders Union, AFLCIO as the exclusive representative
of employees in the following appropriate unit:
All regular full-time and regular part-time em-
ployees including receivers, cooks, dishwashers,
night cleaners, bartenders, barbacks, banquet serv-
ers, banquet set-up, coat room attendants,
waiters/waitresses, cocktail servers, bussers,
host/hostesses, cashier, room service employees,
front desk clerks, PBX operators, night auditors,
reservationists, bellmen, maids, housemen,
floormen, laundry employees inspectresses, main-
tenance employees and sports complex attendants
employed by the Employer at its Waterbury, Con-
necticut facility, who were employed during the
payroll period ending December 24, 1989; but ex-
cluding office clerical employees, gift shop em-
ployees, sales employees and guards, professional
employees and supervisors as defined in the Act.
(i) Making unilateral changes in the terms and con-
ditions of employment including implementing a new
restaurant policy concerning covering of shifts; elimi-
nating the 1 to 5 p.m. shift in the sports complex; re-
ducing hours; denying work to Mark Scott, Hector
Echeandia, Cesar Barrera, Kimberly Goffredo, and Jen-
nifer Goffredo; and changing the laundry department
employees’ hours in March 1990, without providing
the Union with notice and an opportunity to bargain
about the decisions and the effect of those decisions.
(j) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with the Union
as the exclusive representative of all the employees in
the above-described unit concerning rates of pay,
wages, hours, and other terms and conditions of em-
309SHERATON HOTEL WATERBURY
23 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 I agree with my colleagues’ adoption of the judge’s findings that
the Respondent committed numerous violations of Sec. 8(a)(1) and
(3). I also agree with my colleagues for the reasons they set forth
that a bargaining order is warranted to remedy these unfair labor
practices
2 Regarding the decisions which did not involve a layoff or a re-
duction in hours, I agree with my colleagues regarding the result and
rationale. These decisions include the change in the procedure for
obtaining substitute shift coverage and the decision to change (not
reduce) the hours of the laundry department employees.
ployment and embody any understanding reached in a
signed agreement.
(b) On request, bargain collectively with the Union
concerning the decisions to implement a new policy in
the restaurant concerning the covering of shifts; elimi-
nating the 1 to 5 p.m. shift in the sports complex;
changing the laundry department employees’ hours in
March 1990; and the effects of those decisions.
(c) Offer immediate reinstatement to employees
Roger Sauvageau, Eliza Svehlak, Laurie Grenier, Bar-
bara Racine, Mark Scott, Hector Echeandia, Cesar
Barrera, Kimberly Goffredo, and Jennifer Goffredo to
their former positions of employment, or if such posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights or privileges previously enjoyed, and remove
from its files any references to unlawful discharges of
these employees and the unlawful warnings issued to
Roger Sauvageau, Eliza Svehlak, Laurie Grenier, and
Barbara Racine and notify them in writing that this has
been done and that the discharges and warnings will
not be used against them in any way.
(d) Remove from its records the last performance
evaluation given Grace Kelley and notify her in writ-
ing that this has been done and that the evaluation will
not be used against her in any way.
(e) Make Roger Sauvageau, Eliza Svehlak, Laurie
Grenier, and Barbara Racine whole for any loss of pay
or other benefits they may have suffered as a result of
their terminations in the manner set forth in the rem-
edy section of the judge’s decision.
(f) Make Grace Kelley whole for any loss of pay or
other benefits she may have suffered as a result of her
unlawful reduction in hours of work beginning in May
1990, in the manner set forth in the remedy section of
the judge’s decision.
(g) Make Hector Echeandia whole for any loss of
pay or other benefits he may have suffered as a result
of his unlawful reduction in hours of work beginning
in December 1989, in the manner set forth in the rem-
edy section of the judge’s decision.
(h) Make Cesar Barrera whole for any loss of pay
or other benefits he may have suffered as a result of
his being unlawfully taken off the work schedule for
1 week in January 1990, in the manner set forth in the
remedy section of the judge’s decision.
(i) Make Mark Scott, Kimberly Goffredo, and Jen-
nifer Goffredo whole for any loss of pay or other ben-
efits they may have suffered as a result of their unlaw-
ful denial of work in the manner set forth in the
amended remedy section of this decision.
(j) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary or useful in complying with the
terms of this Order.
(k) Post at its facility in Waterbury, Connecticut,
copies of the attached notice marked ‘‘Appendix.’’23
Copies of the notice, on forms provided by the Re-
gional Director for Region 34, after being signed by
the Respondent’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 the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(l) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the election conducted
in Case 34–RC–936 on January 24, 1990, be set aside,
and that the petition be dismissed.
MEMBER RAUDABAUGH, concurring.1
I agree that the decisions in this case are mandatory
subjects of bargaining. However, for most of the deci-
sions, I have a different rationale for reaching that re-
sult. Accordingly, I write this separate concurrence.
The Respondent was faced with a decline in its busi-
ness. As a consequence, it decided to lay off some em-
ployees and to reduce the hours of others. The issue
is whether these decisions are mandatory subjects.2
In analyzing whether a given management decision
is a mandatory subject of bargaining, I begin with the
three categories of management decisions described by
the Supreme Court in First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981).
As noted, the Court divided management decisions
into three categories. The first category consists of
management decisions, such as choice of advertising,
product type and design, and financing arrangements,
which ‘‘have only an indirect and attenuated impact on
the employment relationship’’; there is no obligation to
bargain over these decisions. In the second category
are management decisions, such as ‘‘the order of suc-
cession of layoffs and recalls, production quotas, and
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In Dubuque Packing Co., 303 NLRB 386 (1991), the Board an-
nounced the following balancing test for determining whether an em-
ployer’s economically motivated decision to relocate unit work is a
mandatory subject of bargaining:
Initially, the burden is on the General Counsel to establish that
the employer’s decision involved a relocation of the unit work
unaccompanied by a basic change in the nature of the employ-
er’s operation. If the General Counsel successfully carries his
burden in this regard, he will have established prima facie that
the employer’s relocation decision is a mandatory subject of bar-
gaining. At this juncture, the employer may produce evidence
rebutting the prima facie case by establishing that the work per-
formed at the . . . former plant is to be discontinued entirely
and not moved to the new location, or establishing that the em-
ployer’s decision involves a change in the scope and direction
of the enterprise. Alternatively, the employer may proffer a de-
fense to show by a preponderance of the evidence: (1) that labor
costs (direct and/or indirect) were not a factor in the decision
or (2) that even if labor costs were a factor in the decision, the
union could not have offered labor cost concessions that could
have changed the employer’s decision to relocate. Id. at 391.
4 I do not agree that the rationale of Postal Service, 306 NLRB
640 (1992), is to be applied here. In that case, the employer was
required, by legislation, to reduce operating costs by $160 million.
The employer decided that $60 million of that total would be
achieved by reducing labor costs. The employer then decided which
labor costs would be reduced in order to achieve that $60 million
reduction. The question before the Board was whether the latter de-
cision was a mandatory subject of bargaining. The Board, in answer-
ing the question affirmatively, held that the decision was within cat-
egory two of First National Maintenance, supra. Since the decision
involved which labor cost to cut, and there was no change in the
nature of the operation, I agreed that the decision fell within cat-
egory two. However, where, as here, an employer is faced with a
business decline, there are a number of ways in which it can re-
spond. Some of them involve mandatory subjects of bargaining and
some do not. For example, the employer could decide to discontinue
a line of business or the employer could decide to lay off employees
or reduce their hours. I would apply the Dubuque test to determine
whether the chosen decision involves a mandatory subject.In apply-
ing the test, I find that the General Counsel has met his burden of
establishing that the Respondent’s decisions did not involve any
basic change in the direction or scope of the Respondent’s enter-
prise. Although some employees were laid off and the hours of other
employees were reduced, the nature of the enterprise itself was not
changed in any fundamental way. Therefore, I find that the General
Counsel carried his initial burden of establishing a prima facie case,
that the decisions made by the Respondent subsequent to the attach-
ment of its bargaining obligation on December 14, 1989, are manda-
tory subjects of bargaining.
5 Although the reduction of Kelley’s hours was apparently not tied
to a business decline, I would apply Dubuque and find it to be a
mandatory subject. The decision did not involve a change in the
scope or direction of the Respondent’s business. The Respondent has
not shown that labor costs were not a factor in this decision and has
not shown that the Union could not have offered proposals that
could have changed the decision.
work rules, which are almost exclusively ‘an aspect of
the relationship between employer and employees’’’;
regarding these there is an obligation to bargain. The
third category consists of management decisions that
have a direct impact on employment, such as the
elimination of jobs, but which have as their focus only
the economic profitability of the business. For these
decisions, the Court held that bargaining would be re-
quired ‘‘only if the benefit, for labor-management rela-
tions and the collective-bargaining process, outweighs
the burden placed on the conduct of the business.’’ Id.
at 679.
This case does not involve decisions that have only
an ‘‘indirect and attenuated’’ impact on employment.
Rather, the decisions had a direct impact on jobs and
the number of hours to be worked. Thus, the decisions
did not fall within category one. On the other hand, the
decisions did not involve ‘‘the order of succession of
layoffs.’’ They involved layoffs themselves or reduc-
tions in hours. Thus, the decisions were not within the
second category. Rather, the decisions fell within cat-
egory three. The decisions had a direct impact on em-
ployment, and their focus was on the economic profit-
ability of the enterprise in the face of a business de-
cline.
As to this ‘‘category three’’ decision, I believe that
the burden-of-proof mechanism set forth in Dubuque is
the appropriate test to apply here.3 Both Dubuque and
the instant case involve ‘‘category three’’ decisions.
Concededly, the particular ‘‘category three’’ decision
in Dubuque involved the relocation of a plant. How-
ever, there is nothing in the language of Dubuque, or
in its reasoning or logic, which necessarily confines
the Dubuque test to relocation cases. Accordingly, I
consider it appropriate to apply that test to the ‘‘cat-
egory three’’ decisions involved herein.4
In applying the test, I find that the General Counsel
has met his burden of establishing that the Respond-
ent’s decisions did not involve any basic change in the
direction or scope of the Respondent’s enterprise. Al-
though some employees were laid off and the hours of
other employees were reduced, the nature of the enter-
prise itself was not changed in any fundamental way.
Therefore, I find that the General Counsel carried his
initial burden of establishing a prima facie case that
the decisions made by the Respondent subsequent to
the attachment of its bargaining obligation on Decem-
ber 14, 1989, are mandatory subjects of bargaining.
The Respondent has failed to rebut the prima facie
case. Nor has the Respondent shown affirmatively that
labor costs were not a factor in the decision. Indeed,
the evidence indicates that these were labor cost-cut-
ting measures adopted in response to a decline in its
business. Finally, the Respondent has failed to estab-
lish that the Union could not have offered labor cost
concessions that could have changed the unilateral de-
cisions made. Had the Respondent been willing to bar-
gain, the Union might have offered concessions that
would have resulted in savings to the Respondent.5
Accordingly, I find that the Respondent was obli-
gated to bargain with the Union over the unilateral de-
cisions and that the Respondent’s failure to do so vio-
lated Section 8(a)(5) of the Act.
311SHERATON HOTEL WATERBURY
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge our employees for engaging
in conduct protected by the Act.
WE WILL NOT reduce the hours of work for our em-
ployees in retaliation for engaging in activities in sup-
port of Local 217, Hotel and Restaurant Employees
and Bartenders Union, AFL–CIO or any other union.
WE WILL NOT issue disciplinary warnings to our em-
ployees for engaging in activities in support of the
Union.
WE WILL NOT threaten our employees with more on-
erous working conditions or discharge them because of
their support of the Union.
WE WILL NOT post notices that state that we will
never rehire unlawfully discharged employees in order
to coerce and restrain our employees from supporting
the Union.
WE WILL NOT encourage antiunion sentiment at em-
ployee meetings while attempting to stifle prounion
sentiment and impliedly threaten retaliation for union
support.
WE WILL NOT disparage the Union by overreacting
to an alleged union threat to an employee and use po-
lice presence to give the impression of imminent dan-
ger to employees from the Union.
WE WILL NOT unilaterally implement a new res-
taurant policy concerning the covering of shifts; elimi-
nate the 1 to 5 p.m. shift in the sports complex; reduce
employees’ hours; deny work to employees; change
employees’ hours without providing the Union with
notice and the opportunity to bargain about those deci-
sions; and the effects of those decisions.
WE WILL NOT refuse to recognize and bargain col-
lectively and in good faith concerning rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment with Local 217, Hotel and Res-
taurant Employees and Bartenders Union, AFL–CIO as
the exclusive representative of all employees in the fol-
lowing appropriate unit:
All regular full-time and regular part-time em-
ployees including receivers, cooks, dishwashers,
night cleaners, bartenders, barbacks, banquet serv-
ers, banquet set-up, coat room attendants,
waiters/waitresses, cocktail servers, bussers,
host/hostesses, cashier, room service employees,
front desk clerks, PBX operators, night auditors,
reservationists, bellmen, maids, housemen,
floormen, laundry employees, inspectresses, main-
tenance employees and sports complex attendants
employed by the Employer at its Waterbury, Con-
necticut facility; who were employed during the
payroll period ending December 24, 1989; but ex-
cluding office clerical employees, gift shop em-
ployees, sales employees and guards, professional
employees and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of your rights
guaranteed by Section 7 of the Act.
WE WILL, on request, recognize and bargain in good
faith with the Union as the exclusive representative of
our employees in the above-described unit concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment and if an agreement is reached,
embody such understanding in a signed agreement.
WE WILL, on request, bargain in good faith with the
Union concerning the decisions to implement a new
policy in the restaurant concerning the covering of
shifts; eliminating the 1 to 5 p.m. shift in the sports
complex; reducing Grace Kelley’s hours; denying work
to Mark Scott, Hector Echeandia, Cesar Barrera, Kim-
berly Goffredo, and Jennifer Goffredo; and changing
the laundry department employees’ hours.
WE WILL offer immediate and full reinstatement to
employees Roger Sauvageau, Eliza Svehlak, Laurie
Grenier, and Barbara Racine to their former positions
of employment, or if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights or privileges previously
enjoyed, and remove from our files any references to
the unlawful discharges of these employees and the un-
lawful warnings issued to Roger Sauvageau, Eliza
Svehlak, Laurie Grenier, and Barbara Racine and no-
tify them in writing that this has been done and that
the discharges and warnings will not be used against
them in any way.
WE WILL remove from our records the last perform-
ance evaluation given Grace Kelley and notify her in
writing that this has been done and that the evaluation
will not be used against her in any way.
WE WILL make Roger Sauvageau, Eliza Svehlak,
Laurie Grenier, and Barbara Racine whole for any loss
of pay or other benefits they may have suffered as a
result of their terminations, plus interest.
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent denied the appropriateness of this unit in its an-
swer. This is the unit found appropiate for purposes of collective
bargaining in Case 34–RC–936, and absent newly discovered or spe-
cial circumstances, an employer is not permitted to relitigate the
issue of the unit in a related unfair labor practice case. As Respond-
ent raised no newly discovered or previously unavailable evidence
and claims no special circumstances, the previous unit determination
is controlling in this case.
WE WILL make Grace Kelley whole for any loss of
pay or other benefits she may have suffered as a result
of her unlawful reduction in hours of work beginning
in May 1990, plus interest.
WE WILL make Hector Echeandia whole for any loss
of pay or other benefits he may have suffered as a re-
sult of his unlawful reduction in hours of work begin-
ning in December 1989, plus interest.
WE WILL make Cesar Berrera whole for any loss of
pay or other benefits he may have suffered as a result
of his being unlawfully taken off the work schedule for
1 week in January 1990, plus interest.
WE WILL offer Grace Kelley, Mark Scott, Hector
Echeandia, Cesar Berrera, Kimberly Goffredo, and Jen-
nifer Goffredo immediate and full reinstatement to
their former positions of employment, or if such posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and WE WILL
make Mark Scott, Kimberly Goffredo, and Jennifer
Goffredo whole for any loss of pay or other benefits
they may have suffered as a result of their being un-
lawfully denied work, plus interest.
J.L.M. INC. D/B/A SHERATON HOTEL
WATERBURY
William E. O’Connor and John S. F. Gross, Esqs., for the
General Counsel.
Edward F. O’Donnell, Jr. and Kenneth Plumb, Esqs., of
Hartford, Connecticut, for the Respondent.
Gregg Adler, Esq., of Hartford, Connecticut, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. On
December 5, 1989, Local 217, Hotel and Restaurant Employ-
ees and Bartenders Union, AFL–CIO (Union, Local 217, or
Charging Party) filed unfair labor practice charges in Case
34–CA–4535 against J.L.M. Inc. d/b/a Sheraton Hotel Water-
bury (Respondent, Hotel, or Company). The Union filed an
amended charge in Case 34–CA–4535 on January 5, 1990.
On January 19, 1990, a complaint and notice of hearing
issued in this case alleging that Respondent had committed
several unfair labor practices in connection with an organiz-
ing campaign by the Union. Specifically, the complaint al-
leged that Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act (Act) by threatening employees
with unspecified reprisals and discharge, by creating the im-
pression of surveillance, and by disciplining and discharging
its employee Roger Savageau because he engaged in pro-
tected concerted union activities. Respondent filed a timely
answer to the complaint and denied the commission of any
violation of the Act.
The Union filed a petition for an election with Region 34
of the National Labor Relations Board (Board or NLRB) on
December 15, 1989, in Case 34–RC–936. Pursuant to a Stip-
ulated Election Agreement, an election was conducted on
January 25, 1990. Those employees eligible to vote in the
election were:
All regular full-time and regular part-time employees
including receivers, cooks, dishwashers, night cleaners,
bartenders, barbacks, banquet servers, banquet set-up,
coat room attendants, waiters/waitresses, cocktail serv-
ers, bussers, host/hostesses, cashiers, room service em-
ployees, front desk clerks, PBX operators, night audi-
tors, reservationists, bellmen, maids, housemen,
floormen, laundry employees, inspectresses, mainte-
nance employees and sports complex attendants em-
ployed by the Employer at its Waterbury, Connecticut
facility, who were employed during the payroll ending
December 24, 1989; but excluding office clerical em-
ployees, gift shop employees, sales employees and
guards, professional employees and supervisors as de-
fined in the Act.1
The results of the election were 62 votes in favor of the
Union and 104 votes against the Union, with 21 of the votes
challenged by the parties. On February 1, 1990, the Union,
as Petitioner, filed objections to conduct affecting the results
of the election.
The Union subsequently filed a charge in Case 34–CA–
4628 on February 21, 1990, and filed an amended charge and
a second amended charge in Case 34–CA–4628 on April 27,
1990, and June 27, 1990, respectively. The Union filed a
charge and an amended charge in Case 34–CA–4749 on May
22, 1990, and June 27, 1990, respectively. A charge in Case
34–CA–4800–2 was filed by the Union on June 28, 1990. On
August 24, 1990, the Union filed an amended charge in Case
No. 34–CA–4800–2.
On June 29, 1990, an order consolidating cases, consoli-
dated complaint and notice of hearing issued in Cases 34–
CA–4535, 34–CA–4628, and 34–CA–4749 alleging that Re-
spondent violated Section 8(a)(1), (3), and (5) of the Act by
engaging in conduct set forth in the Union’s objections and
by terminating its employee Barbara Racine, by causing the
termination of its employee Laurie Grenier, by reducing the
hours of its employee Grace Kelley, and by reducing the
number of scheduled workdays for its part-time employees
from three to one. The consolidated complaint further alleges
that, prior to the commission of these unfair labor practices,
the Union enjoyed the support of a majority of Respondent’s
unit employees and that Respondent’s unfair labor practices
were so serious and widespread that their effects could not
be erased through traditional Board remedies. Accordingly,
the complaint alleges that Respondent is obligated to recog-
nize and bargain with the Union and that Respondent has
violated Section 8(a)(5) of the Act by failing to do so. Re-
spondent filed a timely answer to the consolidated complaint
and denied the commission of any violation of the Act.
313SHERATON HOTEL WATERBURY
2 Par. 18 of the consolidated complaint, excluding the amendment
sought by General Counsel in its notice of intent to further amend,
reads as follows:
Respondent, at its facility, denied work to the employees
named below on the dates set forth opposite their respective
names:
a) Gina Clay November 19, 1989
b) Mark Sanderson November 19, 1989
c) Laurie Grenier November 23, 1989
d) Barbara Racine November 23, 1989
e) Sigfred Echeadia December 1, 1989
f) Bella Berdan November and December 1, 1989
g) Marc Scott December 15, 1989
h) Hector Echeandia December 15, 1989
i) Cesar Berrera January 1, 1989
j) Kimberly Goffredo January 2, 1990
k) Jennifer Goffredo January 2, 1990
The amendment to the above paragraph sought by General Coun-
sel was a substitution of the introductory clause to read:
Respondent, at its facility, has denied work to the following
employees named below since on or about the dates set forth
opposite their respective names:
3 Melinda Merrill was married after the events involved herein and
her name changed to Formica. However, because virtually all testi-
mony and all documents refer to as Merrill, she will be referred to
by that name throughout this decision.
On August 2, 1990, a Report on Objections issued approv-
ing the withdrawal of over one-half of the Union’s 80 objec-
tions and consolidating the remaining objections with issues
in Cases 34–CA–4535, 34–CA–4628, and 34–CA–4749 for
hearing before and administrative law judge.
On August 24, 1990, a complaint and notice of hearing
issued in Case 34–CA–4800–2 alleging that Respondent vio-
lated Section 8(a)(1), (3), (4), and (5) of the Act by terminat-
ing its employee Eliza Svehlak because of her activities on
behalf of the Union and because she gave testimony under
the Act, and by unilaterally changing terms and conditions
of employment. Respondent filed a timely answer to the
complaint and denied the commission of any violation of the
Act. Also on August 24, 1990, by order further consolidating
cases, Case 34–CA–4800–2 was consolidated with Cases 34–
CA–4535, 34–CA–4628, and 34–CA–4749.
On September 17, 1990, Respondent filed a motion for
Bill of Particulars with the Board. General Counsel filed its
reply and opposition to this motion on September 21, 1990.
Attached to General Counsel’s reply was an amendment to
the consolidated complaint. Prior to General Counsel’s
amendment to the consolidated complaint, the Union filed on
September 20, 1990, a second amended charge in Case 34–
CA–4749. Respondent’s motion for a Bill of Particulars was
denied on October 2, 1990, and Respondent time filed its an-
swer to General Counsel’s amendment to the consolidated
complaint.
On October 11, 1990, General Counsel filed a notice of
intent to further amend the consolidated complaint. Respond-
ent filed its objections to these amendments on October 17,
1990.
A hearing was held before me in Hartford, Connecticut, on
October 22–26 and 29–31, November 15–16, and December
3–6, 1990. At the outset of the hearing, I allowed, over the
objection of Respondent, General Counsel’s request to amend
the consolidated complaint as indicated in its notice to fur-
ther amend the consolidated complaint dated October 11,
1990.2 General Counsel also sought at this time to amend the
complaint in Case 34–CA–4800–2. Respondent filed a re-
quest for special permission to appeal my rulings allowing
these amendments and also amended its answer to deny the
amendment in Case 34–CA–4800–2. The Board denied Re-
spondent’s request for a special appeal by telegram dated
November 14, 1990.
The initial brief date herein was set for January 11, 1991,
but was subsequently extended to February 22, 1991, and
then to March 8, 1991. Briefs were received on March 8,
1991, from General Counsel and Respondent. Based on the
entire record, including my observation of the demeanor of
the witnesses, and after consideration of the briefs, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent J.L.M. d/b/a Sheraton Hotel Waterbury oper-
ates a hotel in Waterbury, Connecticut. It has admitted the
jurisdictional allegations of the consolidated complaint and I
find that it is now, and has been at all times material to this
proceeding, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted and I find that the Union is now and has
been at all times material to this proceeding a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONABLE CONDUCT
A. Overview of the Dispute
The Respondent, Waterbury Sheraton Hotel, is a three-star
hotel located in Waterbury, Connecticut. The Hotel has been
operational since 1985 and has approximately 279 rooms
with significant banquet, restaurant, recreational, and con-
ference center facilities. The Hotel employs both full-time
and part-time employees with approximately 200 to 250 em-
ployees on its payroll at any given time depending on the
level of business.
The Hotel is owned by Joseph Calabrese and operationally
managed on a day-to-day basis by its general manager, Rich-
ard Bair. Certain of its subsidiary managers played a large
part in this controversy including its housekeeping manager,
called executive housekeeper, Kathy Tavares, and two of its
restaurant and/or banquet managers, Lisa Brodeur and
Melinda Merrill Formica.3
In the spring of 1989, two events began almost simulta-
neously which had significant impact on the Hotel and its
employees. First the Hotel began to experience a serious de-
cline in its business occasioned by increased local competi-
tion from new hotels and by a general turndown in the econ-
omy, which became especially severe in the New England
area of the country. It is the Hotel’s position that these two
negative economic forces caused it to take for the first time
various actions to reduce costs, including closing of certain
of its restaurant and bar facilities, reducing employee work
hours, and laying off employees. Many of these actions are
alleged in the consolidated complaint to have been taken, not
as a result of economic considerations, but because of the
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 None of these three events are alleged to be violations of the Act
although they were included in the initial charge in Case 34–CA–
4628.
second significant event of 1989, the organizing campaign
among the Hotel’s employees by Local 217.
The Hotel’s economic contentions are summarized below.
It contends that since 1987, it has suffered a continuous de-
cline in business, particularly in terms of the number of
quests staying at the Hotel and the number of meals served
by the Hotel in its restaurant. By the summer and fall of
1989 the Hotel’s business levels had decreased to the point
that some cost-cutting measures had to be taken if was to re-
main a viable operating entity. It began its more significant
measures in the summer of 1989 with the closing of Sadie
Thompson’s—the nightclub located in the Hotel. The Hotel’s
elaborate dining room, known as the ‘‘Rose Room’’ was
next to be closed. The Rose Room’s closing was followed
in November 1989 by the cancellation of the Hotel’s Sunday
buffet brunch.4
These closings represent only some of the cost-cutting
measures utilized by the Hotel in response to its declining
business levels, but they are important. Several witnesses tes-
tified that ‘‘things were slow’’ when they were working.
Second, the testimony also established that the closing of
Sadie’s and the Rose Room and the cancellation of the Sun-
day brunch did not result in the immediate layoff of employ-
ees. Thus, by December 1989, the Hotel had to finally ad-
dress the impact of the continued business loss and the clos-
ing of certain of its regular functions on its work force. Al-
though the Hotel tried to maintain all of its current work
force by reducing the hours of most of its employees, this
resolution was unacceptable to both the employees and their
managers. Almost all the employees (particularly the full-
time employees) complained about the reduction and in some
cases even the entire elimination of their hours in a particular
week, while the managers were confronted with the problem
of trying to ensure that everyone received some hours—a
scenario that made scheduling in some departments (such as
in the A La Carte restaurant) extremely difficult and ham-
pered the Hotel’s ability to provide consistently efficient
service to guests and other customers. In short, by December
1989, the Hotel, which had not had to resort to significant
layoffs and cutbacks in the past, was forced to respond to
economic and business realities of the late 1980s by reducing
its work force as it saw no other alternatives.
The General Counsel paints a different picture of the Ho-
tel’s cost-cutting measures, laying their motivation not at the
feet of economic necessity, but in furtherance of the Hotel’s
aim to defeat the organization of its work force by Local
217. The union campaign began on April 20, 1989, with the
distribution of leaflets and questionnaires at the Hotel by
Local 217’s area director, Rob Traber, and other union rep-
resentatives. The initial effort was followed by a similar one
on May 20, 1989, and a third one on July 27, 1989. During
the months of August and September, union representatives
phoned and visited employees at their homes to determine
the level of interest among them. By the end of September,
an organizing committee had been formed among the em-
ployees whose task was to talk with coworkers about the
Union and eventually solicit their support. This committee
consisted of approximately 20–25 employees who worked
within the Hotel’s various departments.
On October 5, 1989, the Union conducted the first in a se-
ries of weekly organizing committee meetings designed to
educate the members about the Union, organizing in general,
applicable labor laws, and expected responses by the Hotel
to the campaign. Over the following month and a half, the
meetings were conducted twice a day on Thursdays and were
held at the Labor Council building in Waterbury. In the mid-
dle of November l989, the meeting day was switched to
Tuesday.
On November 14 and 15, 1989, during union organizing
meetings conducted on those dates, Traber asked those in at-
tendance to sign a recognition petition which would be used
as a public showing of the Union’s support. Those in attend-
ance signed the petition and returned it to Traber.
The following week, on November 21, 1989, Traber asked
committee members to sign authorization cards, which all but
one did. He distributed copies of the petition which had been
signed on November 14 and 15 and asked members to begin
soliciting signatures from their coworkers. He also gave
blank authorization cards to each committee member to get
coworkers to sign as well, instructing the members to solicit
during nonworking time and to initial and date any card
signed.
During the ensuing weeks, the committee members ob-
tained signatures from the majority of their fellow employees
within the unit which the Union was seeking to represent.
The committee also distributed and posted at the Hotel docu-
ments protesting the termination of committee member,
Roger Sauvageau, and the Employer warning given to fellow
committee member, Eliza Svehlak. Each document either
listed the names of committee members or contained their
signatures. One of these documents was hand delivered to
Calabrese in mid-November.
On December 14, 1989, after obtaining a majority of
signed membership cards, Traber met with union supporters
in the Hotel’s parking lot and Wanda Washburne, a waitress
and committee member, was selected as spokesperson of the
group. The group then proceeded to Calabrese’s office where
they presented their authorization cards and petition to
Calabrese and demanded recognition. Calabrese refused to
recognize the Union and the group returned to the parking
lot where Traber distributed to the committee members a let-
ter he had drafted prior to the demand. This letter, which
summarized the circumstances surrounding the demand and
listed the names of the committee members and their respec-
tive positions, was posted at various locations throughout the
Hotel and distributed to employees.
On December 15, 1989, the Union filed a representation
petition with the Board, and pursuant to agreement of the
parties, an election was set for January 25, 1990. On January
9, 1990, Traber distributed to the members copies of another
petition, stating that those signing the document would be
voting ‘‘yes’’ for the Union in the election. Over the follow-
ing week and a half, the members obtained additional signa-
tures from their coworkers. The individual petitions were
then returned to Traber, who in turn cut and pasted the sig-
natures in order to create a single ‘‘Union Yes’’ petition.
Copies of this petition were then mailed to all of the Hotel’s
unit employees and distributed directly to the committee
members on January 23, 1990.
315SHERATON HOTEL WATERBURY
5 Respondent contends, I believe incorrectly, that Svehlak was a
statutory supervisor. This matter will be addressed with the matter
of her discharge by Respondent.
On January 25, 1990, an election was conducted and the
Union lost, 104 to 62, with 21 challenged ballots. After the
election, the Hotel in the spring of 1990 conducted further
layoffs in its restaurant and thereafter changed hours in the
laundry department and fired committee member Eliza
Svehlak. These postelection activities were alleged to be mo-
tivated by a desire by the Hotel to finally rid itself of certain
of the Union’s most ardent supporters.
During the campaign leading up to the election, the Hotel
was shown to have knowledge of the Union’s campaign from
its outset and of the union committee members’ identities
from at least mid-November 1989. The Hotel conducted its
own campaign against the Union, hiring legal specialists and
a labor consultant. With their advise the Hotel held meetings
with employees and distributed and posted various docu-
ments explaining the Hotel’s position and urging the in-
volved employees to reject the Union. General Counsel al-
leges that certain statements made by management during
these meetings and statements contained in material distrib-
uted or posted are in violation of the Act. General Counsel
also alleges that the reduction in hours and layoffs which oc-
curred during the campaign were unlawfully motivated and
aimed at union supporters, in violation of the Act. It is fur-
ther alleged by General Counsel that during the campaign the
Hotel unlawfully threatened its employees, unlawfully inter-
rogated them, engaged in unlawful surveillance of their ac-
tivities, unlawfully changed employees hours of work and
work duties, and unlawfully warned and discharged employ-
ees.
It is ultimately alleged by General Counsel that Respond-
ent’s unfair labor practices were so egregious that the possi-
bility of conducting a further fair election are impossible, and
as the Union represented a majority of unit employees as of
the date of the demand for recognition, that a Gissel bargain-
ing order should be issued against the Hotel. The Respondent
Hotel contends it committed no unfair labor practices and,
assuming arguendo, that it did, that they were insignificant
and should not result in the issuance of a bargaining order
or the direction of a second election. The Hotel also contends
that the Union never represented majority of its employees,
and that the authorization cards used for that purpose cannot
be counted because they were improperly obtained.
The various allegations of unfair labor practices and cor-
responding objections to the election will be discussed and
decided below under appropriate subheadings and groupings.
B. Respondent’s Alleged Unlawful Actions During
the Campaign
As noted above, the consolidated complaint alleges a num-
ber of violations of Section 8(a)(1) and (3) of the Act. Each
of these allegations will be discussed and decided below at
the point of discussion. With respect to the alleged 8(a)(3)
allegations, the Board set forth in Wright Line, 251 NLRB
1083 (1980), the causation test to be used in all cases alleg-
ing discriminatory discharges. The General Counsel must
make out a prima facie showing that protected conduct was
a motivating factor in the employer’s decision; the burden
then shifts to the employer to demonstrate the same action
would have taken place even in the absence of protected con-
duct. This causation test will be applied to each case of al-
leged discrimination because of discharge, layoff, or loss of
hours of the Hotel’s employees.
It is undisputed that Respondent had early knowledge of
the union organizing activity at its facility and knowledge by
mid-November 1989 of the identities of the Union’s primary
employee supporters. It is also undisputed that Respondent
did not want its facility organized by the Union and engaged
in a vigorous campaign to defeat the organizing effort. Re-
spondent began its campaign with a decision by its owner,
Calabrese to treat the union organizers carefully and to fol-
low the advice of its legal and labor advisors carefully.
Based on the evidence of record, I believe that in the main,
Respondent’s general manager managed to follow this
course; however, I find that Respondent’s owner, Bair’s ab-
sence, and several of its lesser managers, departed from wise
counsel and committed unfair labor practices. These matters
will be discussed in detail at the appropriate point in this de-
cision.
In any event, Respondent’s campaign began in October
1989 with Calabrese and Bair conducting employee meet-
ings. During one October meeting, Calabrese discussed
issues concerning the Union, indicating a suggestion box
would be set up, and stated that a union was needed at the
Hotel. During an October meeting, Eliza Svehlak, a laundry
employee5 and committee member, asked Calabrese several
questions including why the laundry employees and
housemen were not given a bonus for weekend work—a
bonus the housekeepers were receiving. Calabrese responded
by stating that he would look into the bonus payments. The
following day, Svehlak was informed by her supervisor,
Kathy Tavares, that she would be receiving a bonus for
weekend work.
At another October meeting waitress Barbara Racine was
outspoken. Calabrese said at that meeting that he was aware
of the Union’s activities in the parking lot, but that he was
unaware of any problems at the Hotel, that he always treated
his employees fairly, and that if there were any problems,
employees should speak directly to Bair or himself. Racine
stood up and said that if they treated everyone so fairly why
had so many employees been fired or quit. In particular, she
questioned why he had fired former Restaurant Manager
Mary Cercola as she was the best manager they had.
Calabrese said that Bair could better answer the question.
Bair then said he regretted firing Cercola, but it was a per-
sonal matter which Racine could speak to him about later.
Waitress Gina Clay was also at that same meeting and com-
plained about not getting breaks, and not being paid a meal
credit. Calabrese said that he would try to do something
about that.
These meetings are not alleged to be have been in viola-
tion of the Act. However, Respondent is alleged to begun
about the same time a course of threats, interrogation, and
surveillance which violation Section 8(a)(1) of the Act.
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I will also address one alleged incident of unlawful discrimina-
tion in this section. This incident deals with the alleged discharge
of Rita Sinclair and will be discussed at this point because of my
credibility findings with respect to Sinclair’s testimony.
7 Rovinetti, a supervisor at the time of the incident, was not called.
1. Alleged unlawful threats, interrogation, and
surveillance6
a. Alleged threat to Roger Sauvageau
Maintenance employee Roger Sauvageau testified that on
Friday October 13, 1989, he went to the Outside Inn, a bar
frequented by some Hotel employees, for the purpose of at-
tending a going away party for two waitresses. He testified
that at one point in the evening in response to a question
from another employee in attendance, Pam Robanetti, he said
that the Union stood a good chance of getting in. Sauvageau
then testified that shortly thereafter, Respondent’s executive
housekeeper, Kathy Tavares, who was sitting nearby, leaned
over and said to him: ‘‘You better watch out, you’re one of
the ten on the list.’’ Sauvageau responded: ‘‘I am glad I
made the list.’’
Sauvageau construed Tavares comment to be a threat that
he was on an Employer ‘‘hit’’ list. Tavares acknowledged
having knowledge prior to this date that Sauvageau was a
union supporter, but denied making the statement. I frankly
did not find Tavares to be a very credible witness and do
not accept her denial without some confirmation from other
sources.
Sauvageau testified that when this exchange occurred be-
tween himself and Tavares, Robanettie and another person
had just left to go to the bathroom. Another employee in at-
tendance, waitress Linda Purcaro,7 was called by Respondent
to testify about the incident. She acknowledged that at one
point Sauvageau did make some comments she could not re-
member about the Union, and was told by another employee
to be quiet. She further testified that she did not observe
Tavares say anything to Sauvageau. However, she acknowl-
edged that she was sure that she went to the bathroom that
evening. As she confirmed that Sauvageau did talk about the
Union that evening and was not present at all times there-
after, I cannot find that her testimony contradicts that of
Sauvageau and in at least one regard supports it. In conclu-
sion, based on the testimony about this incident, which is
supported ultimately by the fact that Sauvageau was dis-
charged fairly shortly thereafter, I credit Sauvageau’s version
of the incident.
Standing totally alone, and given the atmosphere in which
the statement was made, I am not certain it would be viola-
tive of the Act. However, taken as part of a pattern of action
with Sauvageau, including a subsequent warning and dis-
charge, I consider it both prophetic and coercive, and in-
tended to stifle his further activities in support of the union
campaign. As such, the statement does violate Section
8(a)(1) of the Act.
b. Alleged threats to Eliza Svehlak
The complaint alleges that on the day following the Out-
side Inn threat to Roger Sauvageau, October 14, 1989,
Tavares had a conversation with Eliza Svehlak regarding the
gathering the night before. According to Svehlak, Tavares
stated: ‘‘Roger didn’t stop running his mouth about talking
to the employees about the Union,’’ and that ‘‘he already
had a black mark against him,’’ and ‘‘he could be fired for
it.’’
Tavares denied this conversation ever took place and on
brief, Respondent contends that it is not consistent with what
took place at the Outside Inn and it is not possible to charac-
terize Sauvageau’s comments as ‘‘running his mouth off and
talking to employees about the Union.’’ I disagree. Not only
was Sauvageau talking to employees about the Union at the
Outside Inn, but according to Respondent’s witness, was told
to be quiet about it by another employee. Moreover, Tavares
testified that prior to the Outside Inn incident, ‘‘Roger didn’t
hide the fact that he was in the union,’’ and that all the em-
ployees were talking about how they wanted a union’’ and
Savageau ‘‘was saying it so loud. You could overhear him.’’
Because I do find this alleged statement by Tavares con-
sistent with both the Outside Inn incident and with her other
observations about Sauvageau, and as I consider Svehlak a
more credible witness that Tavares, I credit Svehlak’s testi-
mony about the conversation. The statements made by
Tavares are clearly coercive tying, as they do, union advo-
cacy with the possibility of termination. I, accordingly find
that this statement by Executive Housekeeper Tavares in vio-
lation of Section 8(a)(1) of the Act.
Svehlak also testified that at the beginning of October, she
had a conversation with Tavares in the laundry room. She re-
called Tavares commenting about how hard a time her hus-
band was having with his union and said why would any-
body want a union. Svehlak said that she thought it would
be a good idea to have a union, to which Tavares replied,
‘‘she wouldn’t be able to come down to help or send any-
body else down to help.’’ Svehlak then said: ‘‘Well, you
shouldn’t have to, if we had enough people down here we
would—we wouldn’t have to ask for help.’’ Tavares then
said that Svehlak ‘‘wouldn’t be able to leave at 2:30 if the
union got in, otherwise I could be fired.’’
To understand the reference to hours, one must know that
Svehlak left work at 2:30 p.m so that she could be home
when here children arrived from school. This was about a
half hour earlier than the end of the work shift and in order
to accommodate Svehlak, Tavares would occasionally send
someone down to help the laundry employee after Svehlak
left.
Respondent has three defenses to this conversation. First,
Tavares denies that it took place. I do not credit the denial.
Svehlak was not a devious witness and did not appear to be
making this story up out of whole cloth, as Tavares’ denial
would suggest. Respondent contends, with merit, that as of
the beginning of October the Hotel would not have known
Svehlak was a union supporter. On the other hand, the Re-
spondent did know as of this date that a union campaign was
underway. With that knowledge, it did not make any dif-
ference whether Svehlak was a known adherent or not. A
threat of loss of privileges or loss of employment if the
Union is selected is obviously coercive and has as its clear
goal the desire to restrain the employee in the exercise of
free choice.
The Employer’s third defense is that Svehlak was a statu-
tory supervisor and, thus, all allegations based on actions al-
legedly taken against her, except 8(a)(4) allegations, cannot
violate the Act. To the contrary, I cannot find that Svehlak
possessed any of the significant indicia of supervisory status.
317SHERATON HOTEL WATERBURY
8 This call was made from a neighbor’s telephone as Little did not
have one.
She did not hire, fire, discipline, transfer, suspend, layoff, re-
call, promote, or reward other employees or adjust griev-
ances at any time during her employment with Respondent.
She wore a name tag that read, ‘‘Eliza Svehlak—Laundry
Supervisor.’’ She was paid 55 cents per hour more than the
three other employees in the laundry, which was housed in
a room in the Hotel’s basement. Svehlak considered herself
a working supervisor, differentiating this position from that
of an actual supervisor. She performed the same tasks as the
other laundry room employees.
Her duties were described by her supervisor, Tavares,
thusly: ‘‘She watched the girls down there. She signed the
chemical slips when they came in. She was to keep in touch
with the managers of the other departments on a regular
basis, how they were doing with their linen, and she would
help me evaluate how the girls were doing down there.’’
Svehlak never gave a written evaluation, however, and there
is not showing she could discipline or recommend discipline
for another laundry room employee. If a laundry employee
was going to be late, that person called in to Tavares, not
Svehlak.
Respondent makes the contention on brief that Svehlak
had the independent authority to allow employees to leave
early and Svehlak apparently believed she he had this limited
authority. However, this contention is totally belied by the
situation which gave rise to Svehlak’s termination. This pur-
ported authority was either taken away or its exercise was
punished in May 1990.
To be found to be a statutory supervisor, one must ulti-
mately be shown to be able to independently exercise the in-
dicia of supervision. Except to the extremely limited extent
that Svehlak could decide perhaps the order in which laundry
would be handled and perhaps which of the laundry employ-
ees would do some function in the laundry process, I do not
believe she either exercised independently or had the power
to exercise any significant indicia of employment. She be-
lieved that she was properly in the bargaining unit and I
agree. At most, I believe she could be called a leadperson.
As I credit Svehlak’s testimony over that of Tavares, and
as I find that Svehlak was not a supervisor within the mean-
ing of the Act, I find that Tavares’ threat herein discussed
was a violation of Section 8(a)(1) of the Act.
c. Alleged interrogation of Victor Little and impression
of surveillance
Victor Little is employed by the Hotel as a houseman. He
testified that in October 1989 he had a conversation with As-
sistant Housekeeper Todd Tavares and then sports complex
attendant David Baldrush in the Hotel’s sports complex.
Baldrush subsequently became supervisor of the complex.
Little testified that T. Tavares asked him who attended the
union meeting held the night before. Little did not respond,
and T. Tavares then said, ‘‘they needed a union.’’ Little did
not respond to this comment either. Little then changed his
testimony to say that he did state he had attended the meet-
ing and Eliza Svehlak had attended the meeting as well. T.
Tavares then said, ‘‘they already knew who was there any-
way.’’
I do not credit this testimony. Little gave an affidavit to
the Board dated March 16, 1989. In this affidavit, he stated
that the alleged conversation took place in late November or
early December 1989, not October as he testified. General
Counsel attempted to clarify this inconsistency by asking Lit-
tle why he thought the meeting took place in October. Little
answered: ‘‘Well, the best I could say is from the—when the
first union meeting was, the meeting with Todd Tavares and
Dave Baltrush had to be very close to that because they
asked me about who was at the first union meeting. So com-
mon sense. It’s very close to that very first meeting.’’ Gen-
eral Counsel then asked if Little remembered that at the time
Little gave his affidavit. Little said he did not. If the affidavit
is incorrect, having been given almost 8 months before
Little’s testimony and far closer in time to the alleged occur-
rence, and to make sense of the conversation Little now as-
sumes as a matter of common sense that it must have taken
place in October, then Little’s memory with respect to this
alleged conversation is placed in serious doubt. T. Tavares
denied having engaged in the conversation and I credit his
denial.
d. Alleged threats, interrogation, impression of
surveillance, and termination of Rita Sinclair
Rita Sinclair, a housekeeper at the Hotel, is involved in a
number of the allegations in the complaint, including one
that she was unlawfully discharged by the Hotel. All of these
allegations will be discussed together as their resolution turns
in large part on Sinclair’s credibility.
The first allegation arises from the testimony of Sinclair
that she called her supervisor, Kathy Tavares, in November
1989 asking to return to work early from maternity leave.8
Her maternity leave was scheduled to end on December 31,
1989, but she testified she wanted to go back earlier as her
unemployment compensation payments had stopped because
someone at the Hotel had informed the State that there was
work available for her. In any event, when she asked Tavares
about returning, Tavares allegedly said: ‘‘Are you going to
join the union, because there’s a lot of bullshit going down
about the union?’’ Tavares then told her that: ‘‘if I am going
to join the union that she wouldn’t put me back on sched-
ule.’’ Sinclair said she was not going to join and Tavares in-
dicated she could start work the next day. Tavares admitted
that Sinclair called in November and requested to return to
work early and that she granted the request. She denies the
remainder of this alleged conversation.
Sinclair also testified that in January 1990, she and
Tavares had a conversation wherein Tavares said she had
heard that Sinclair was talking with other employees about
the Union. Sinclair denied this. Tavares then said she had
heard that Sinclair had joined the Union, and Sinclair denied
this. Tavares then allegedly said, ‘‘that she didn’t need the
bullshit, because she didn’t need to be hassled by her bosses,
and that it ain’t going to do nothing but start trouble for
me.’’ Sinclair’s affidavit given to the Board relates part of
this alleged conversation, but does not state that anything
was said about ‘‘starting trouble for me.’’ Tavares denies
having this conversation.
Sinclair claims she was discharged by the Respondent in
January 1990. Sinclair testified that her dismissal arose out
of an incident when she called Tavares in January to tell her
that she would miss work for a few days because her child
was ill. She testified that Tavares said that was okay because
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
business was slow. Four days later, Sinclair called back in
to request to be placed back on the schedule and was in-
formed that she had been discharged for being off work for
more than 3 days. Little responded that Tavares had known
she would be off for several days, and Tavares indicated that
she just had to let her go. Contrary to her testimony,
Sinclair’s affidavit given to the Board states that she called
in every day she was absent.
Sinclair also testified that in May 1989 she missed a day
of work and was asked by Tavares on her return why she
did not call in. She pointed out that she did not have a phone
and that if she did not report for work within 10 or 15 min-
utes of starting time she would not be coming. Tavares said
this was okay because Sinclair did not have a telephone.
After this occasion, Sinclair failed to show up for work with-
out calling six different times. She testified that she was not
disciplined on any of these occasions, nor was she dis-
ciplined in December 1989 or January 1990, except for her
discharge.
Sinclair’s personnel file contained a warning dated Decem-
ber 22, 1989, for failing to report for work on that date. Lit-
tle testified she did not remember receiving this warning
though her signature appears thereon. Her file contained two
other similar warnings for the days of January 9 and 10,
1990.
She also testified that without calling in she missed 2 days
of work in June and 3 in July 1989 for planned hospital
stays. Although she did not call in about these absences, she
did give the Hotel advance notice of the hospital stays. She
also testified that she applied for a jobs at other employers
beginning in the second or third week of December 1989. As
a result of these applications she testified she was offered
new employment at a higher rate of pay a couple of days
after she was discharged, with a report date for work begin-
ning in the middle of January 1990.
Sinclair’s personnel file contains a document dated Janu-
ary 11, 1990, noting that Sinclair resigned that date because
she had another job. Tavares testified that on January 11,
Little’s brother came to the Hotel, returned Sinclair’s uni-
forms, and informed Tavares that Sinclair would not be re-
turning as she had another job. Bruce Bieler, comptroller of
the Greenshire School in Cheshire, Connecticut, testified that
Sinclair began to work at the Greenshire School on January
9, 1990. Sinclair’s timecard for that employer indicated that
she worked on January 9 and 10, 1990. School records also
note that Sinclair was terminated effective February 20,
1990, and that she left without giving notice.
I find that Sinclair’s testimony is not credible. She did not
tell the truth about the reason for her absence from work at
the Hotel on January 9 and 10. She was absent because she
had taken other employment, not because her child was ill.
She did not tell the truth about when her new employment
was offered to her and about when she started this employ-
ment. Respondent’s records indicated Sinclair was not dis-
charged, but instead resigned on January 11 because she had
another job. These records are entirely consistent with the
facts whereas Sinclair’s testimony is almost entirely incon-
sistent with the credible facts about her employment. As I
have found that she did not tell the truth about her employ-
ment, and as there is no independent corroboration about the
other incidents about which she testified, I do not credit her
testimony in these regards either. For the reasons stated with
respect to Sinclair’s testimony, I credit Respondent’s denials
and find that it did not violate Section 8(a)(1) or (3) in its
dealings with Sinclair, as alleged in the complaint.
2. The alleged acts of discrimination
a. Warning to Roger Sauvageau
Sauvageau was issued a written warning by General Man-
ager Richard Bair on October 29, 1989. The warning states:
‘‘Roger was on property while off the clock and not on the
schedule. He was in unauthorized areas of the Hotel convers-
ing with employees who were on company time.’’ The Ho-
tel’s written policy on this subject is that ‘‘Employees not
scheduled to work are not to be on the property unless to
confer with the personnel department, their supervisor, de-
partment head or to pick up their paycheck.’’ General Man-
ager Bair testified that an off-duty employee can come to the
Hotel restaurant or employee cafeteria with prior permission
of a manager. Bair testified that unless an employee is work-
ing, and has a specific reason for being there, employees are
prohibited from entering the guest room area of the Hotel.
This was the first discipline ever issued to Sauvageau, who
had been employed by the Hotel since its opening in 1985
and was issued shortly after his warning by Kathy Tavares
that he was on a management list at the Outside Inn on Oc-
tober 13.
Interestingly, the written warning issued October 29 also
originated with Kathy Tavares, who claimed to have seen
Sauvageau both in the Hotel’s maintenance room and on the
fourth floor guest room area on October 29, a day he was
not scheduled for work. She testified that on the fourth floor,
he was talking with one of the Hotel’s maids, Cheryl Arroyo,
who later told her that Sauvageau was soliciting and asked
that he be stopped from doing this. However, in her inter-
view with a Board agent about this matter, Tavares only said
she had seen Sauvageau in the maintenance room or in main-
tenance. The matter of soliciting union support from maids
on the fourth floor was not mentioned.
I did not believe the testimony of Tavares about seeing
Sauvageau on the fourth floor when I heard it and given the
fact that this alleged fact was not pointed out to the Board
agent, I do not credit this testimony. Neither Arroyo nor any
other maid who was mentioned as being present on the
fourth floor on the October 29 was called to testify.
As noted earlier, Sauvageau was a member of the union
organizing committee and an outspoken advocate of the
Union. Although he was aware of the Hotel’s rule about vis-
iting the property while off duty, Sauvageau testified he had
gone to the Hotel on his day off about twice a month on a
regular basis. On these occasions, he would go to the em-
ployee cafeteria and talk with other employees there. He tes-
tified that he had been seen doing this by Bair, his imme-
diate supervisor, Joe Mercier, and Kathy Tavares. Although
on one occasion Bair had inquired about his presence in the
cafeteria, he did not take any action or tell Savageau to cease
the activity.
Sauvageau testified that on October 29 he went to the
Hotel though it was his day off. He first went to the em-
ployee cafeteria and finding none of his coworkers, went up-
stairs to the maintenance room. He was seen entering the
maintenance room by Kathy Tavares, who asked what he
was doing there. He told her that he was going to see the
319SHERATON HOTEL WATERBURY
‘‘guys.’’ Sauvageau testified that he met with coworker Rich
Luddy, who was taking a coffeebreak, and urged Luddy to
join the Union. After speaking with Luddy, he left the Hotel
and went home.
Sauvageau testified that on the next day he was reporting
to work when he met the Hotel’s owner, Calabrese in the
Hotel parking lot. According to Sauvageau, Calabrese said:
‘‘I was going to have Mr. Bair talk with you but I’ll talk
to you myself.’’ Calabrese started saying that Sauvageau had
been on the property on his day off, signing up people for
the Union, and Sauvageau denied signing up people.
Calabrese replied that a manager had informed him that
Sauvageau had been so engaged and offered to bring the
manager out. Sauvageau replied, ‘‘Well, you bring the man-
ager out and I’ll call him a liar.’’ Calabrese then said that
he could not afford to have a union, that he was having a
hard time and he could not understand why people could not
understand this. Calabrese then indicated he was going to
give a speech to employees and Sauvageau said he already
knew what was in it. Calabrese then indicated that he knew
what his rights were, and Sauvageau said he had been in a
union for 33 years and knew what was going on as well.
Calabrese acknowledged that at least some of this con-
versation occurred as related by Sauvageau, but because of
the passage of time, he could not remember everything that
was said. He did admit discussing the Union with Sauvageau
on one or more occasions. He was also consulted about this
matter by Bair, although Calabrese does not normally get in-
volved in such situations.
Sauvageau admitted that October 29, 1989, was the first
time he had ever gone to the maintenance room or any other
part of the Hotel in its guest room area. To get from the caf-
eteria to the maintenance room, he had to go down a second
floor hallway which evidently passed some guest rooms. It
is clear from the testimony of Respondent’s witnesses that
Sauvageau’s warning was issued on the basis of Sauvageau
being on the Hotel’s fourth floor guest room area and not be-
cause he was in the second floor maintenance room.
After careful consideration, I agree with General Counsel
that Sauvageau was given a warning because Respondent’s
management, and particularly Calabrese, believed he was so-
liciting support for the Union. That he was on Hotel property
on his day off in violation of a Hotel rule was an excuse for
punishing him for this activity, and not the actual basis for
the issuance of the warning. Even though it is clear that
Sauvageau went to the maintenance room and talked with
Rich Luddy on October 29, clearly a violation of the Hotel’s
rules, this was not even mentioned as a reason for giving
Sauvageau the involved warning. I believe this is because the
Hotel had not previously enforced its rule so long as
Sauvageau met with his own department coworkers in a log-
ical place, such as the employee cafeteria or his normal
workplace, the maintenance room, while he was off duty.
The matter of the fourth floor solicitation which originated
with Kathy Tavares was not mentioned by her as a reason
for the warning before her testimony in this proceeding,
though she gave an earlier affidavit which noted only
Sauvageau’s presence in the maintenance room. No on-duty
employee to whom Sauvageau allegedly spoke was called as
a witness. Sauvageau’s immediate supervisor, Mercier, was
not called as a witness though he would normally have been
the one to issue a warning.
As I have found that Respondent issued a warning to
Sauvageau for engaging in activities in support of the Union,
and not for the reasons advanced by it, I find that it has vio-
lated the Act in this regard as alleged in the complaint.
b. Warning to Eliza Svehlak
On November 15 and 17, Svehlak was given warnings for
harassing and threatening another employee, Anthony
Flammia. The warnings are alleged to have been unlawfully
motivated by General Counsel whereas Respondent asserts
that they were necessary to maintain order among employees.
Difficulty arises in making this determination because of the
people involved. Flammia was described in the record by
Calabrese as ‘‘having a little problem’’ and is evidently emo-
tional and easily upset. It was apparent from both her de-
meanor on the record, and in an off-the-record discussion
with all parties present, that Svehlak has a great deal of em-
pathy with Flammia and would purposely do nothing to
upset him. Flammia, perhaps understandably, was not called
to testify in this proceeding and Svehlak herself had dif-
ficulty in addressing this particular matter.
Svehlak has a learning disability and had been in special
classes all her life. She was very sensitive to the situation
of Flammia, who also had a learning disorder, and broke
down on the stand while testifying about these incidents.
As I will discuss below, the first warning was given for
activity that under usual circumstances would probably never
come to the attention of management, much less result in the
issuance of a warning. The second involves a purported
threat to slash automobile tires by Svehlak to Flammia. I do
not believe her ‘‘threat’’ was directed at Flammia, but rather
at Todd Tavares. However, again, under usual circumstances,
even assuming the ‘‘threat’’ was made to Tavares, Respond-
ent would have been justified in issuing a warning. However,
because of Svehlak’s personality and other factors relating to
her personality which cannot be conveyed to one not at the
hearing, I cannot believe that Tavares or anyone else in-
volved in Respondent’s management took the ‘‘threat’’ seri-
ously. Significantly, when the November 17 event occurred,
Bair was away from the Hotel on other business.
On November 15, 1989, Svehlak had a conversation with
Flammia, a houseman, during which she asked him how he
felt about the Union. He asked Svehlak whether he would be
required to attend the union meetings should he choose to
join. Svehlak said that she would speak to union representa-
tive Rob Traber and get back to him.
Tavares testified that on this date Flammia had come to
her upset and told her that Svehlak was needling him about
not signing something, calling him stupid, and ‘‘flapping her
wings’’ and calling him a chicken. Based on my observation
of the entire testimony of both Svehlak and Tavares, I cannot
conceive of Svehlak calling Flammia stupid or in any other
way demeaning him. On the other hand, I can conceive of
Tavares spicing up what Flammia may have told her.
Tavares told Flammia to just ignore Svehlak and go about
his duties. Tavares was Svehlak’s immediate supervisor. If
Flammia had been harassed by Svehlak as indicated by
Tavares testimony, why did she not confront Svehlak and put
an end to it herself. I believe the reason is that Svehlak was
not harassing Flammia.
Tavares further testified that shortly thereafter, she re-
ceived a call from Maintenance Supervisor Mercier, who ad-
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Svehlak had known Todd Tavares, the son of Kathy Tavares, for
about 7 years, dating back to a time when she and K. Tavares
worked together as maids at another hotel. She said she and T.
Tavares got along good and that he would come to the laundry room
and engage in horseplay with her.
10 On this point, Respondent was not so upset about the threat
made by employee Steve Barone who cursed and threatened to
‘‘kick the ass’’ of waitress Laurie Grenier for her union sentiments.
Rather, he was not disciplined at all and was made the Hotel’s ob-
server at the election.
vised her that Flammia was sitting in a corner on the fourth
floor of the Hotel, crying and shaking. She went to Flammia
who said Svehlak was bothering him. Again, Tavares took no
direct action as Svehlak’s supervisor, but instead, called
Petra Ortiz, the Hotel’s room division manager at the time,
and Ortiz said she would take care of the situation. Ortiz and
Tavares later met with Svehlak and gave her an oral warning
for this incident, with Tavares telling her that she would get
a warning if she did not stop soliciting. Svehlak was upset
by this and in the company of three other employees went
to the ladies room so she could calm down. Ortiz came in
asked Svehlak if there was anything she could do for her.
Svehlak replied she wanted nothing from her and that, ‘‘you
made me determined and I’m going to do anything I can [to
help get the union in].’’
On November 17, Svehlak saw Flammia before she began
work and she said she was sorry if he thought she was
harassing him. Flammia replied, ‘‘Well, you didn’t really
harass me, its just the talk.’’ He was also upset on the Octo-
ber 15 by two maids who were giving him a hard time be-
cause he did not get their towels to them on time.
About 10 a.m. on October 17, Svehlak was taking a break,
sitting in the employees’ entranceway with some other em-
ployees talking about the Union. About this time, Todd
Tavares and Flammia left the building and went into the
parking lot. On their return, Svehlak said to Tavares, ‘‘Oh,
you’re showing off your new car. Well, maybe, I’ll go out
and slash your tires.’’ She testified that she was kidding and
Tavares confirmed that she was laughing. She testified that
he laughed and said, ‘‘yeah.’’
About 45 minutes later, T. Tavares came to the laundry
room and told Svehlak that Ortiz wanted to see her. She
called Ortiz and asked if she could bring a witness and was
told yes. She and her witness, fellow employee Wanda
Washburne, then went to Ortiz’ office. In the office were
Ortiz behind her desk, K. Tavares beside the desk, Svehlak
and Washburne in front of the desk, and Todd Tavares stand-
ing behind them.9 Ortiz informed Svehlak that she had a
written complaint from Flammia and that she was receiving
a written warning for threatening to do damage to Flammia’s
truck. The warning threatened termination for the next inci-
dent.
Svehlak said she had not threatened Flammia, but had just
been fooling around with Todd Tavares. Ortiz said that is not
what she had heard and that she had witnesses, though not
naming them.
T. Tavares testified that both he and Flammia had new
trucks. He said that the tire-slashing statement was directed
at Flammia and was overheard by other employees, naming
Heidi Elbert, Celinda Foote, and Cheryl Arroyo. These em-
ployees were not called to testify. Nor was the written com-
plaint from Flammia put into evidence.
I credit Svehlak’s version of the above events over the
version given by Kathy and Todd Tavares. I do not believe
that Svehlak would threaten Flammia, even jokingly. I fully
believe that she would jokingly threaten T. Tavares with
whom she had a playful relationship. Respondent on brief ar-
gues the remark about slashing tires must have been directed
to Flammia as Svehlak apologized to him. The apology oc-
curred before the ‘‘threat’’ and involved the events of No-
vember 15. I agree with Respondent that no employee should
be permitted to threaten to slash another employees tires.
However, she was not disciplined for threatening to slash
Todd Tavares tires, but Anthony Flammia’s tires.10 As in my
opinion Respondent has chosen to tamper with the facts of
the incident to both strengthen its position and to hit Svehlak
where she is known to be most vulnerable, I believe its rea-
son for issuing the warnings was pretextual and had as its
true purpose, the unlawful desire to stop Svehlak from en-
gaging in her union solicitations. Accordingly, I find that Re-
spondent has violated the Act as alleged in the complaint.
c. Warning to Victor Little
On November 30, 1989, Kathy Tavares gave Victor Little,
a houseman, a warning for not completing his job the pre-
vious day. The Hotel was performing inventory on Novem-
ber 29, 1989, and in order to perform the inventory accu-
rately, all linen must be counted at the end of the day. There-
fore, all dirty linen must be taken off the floors by the
housemen and brought to the laundry to be cleaned and
counted. At the end of Little’s shift there was a cart of dirty
linen left on the floor for which he had responsibility. This
was reported to K. Tavares by Inspectress Sarah
Frankenfield, who said that Little had left without completing
his duties.
Tavares took the linen to the laundry herself. The follow-
ing day, Tavares and Inspectresses Frankenfield and Yong
Morelli met with Little who admitted leaving the linen, but
said he had been instructed by another inspectress, Flo Cor-
don, to leave it and she would take care of it. In response
to Tavares’ remark that it was not Corden’s linen, Little said
that another maid, Margaret Saunders had been present at the
time and could straighten the matter out. Little at this point
left the office to get Saunders. Along the way he encounterd
Roger Sauvageau and, after a discussion, Little proceeded to
the employee cafeteria to find Saunders. As will be discussed
below in detail, Sauvageau and several other employees went
to Tavares office to witness Little’s warning and plead his
case. A confrontation erupted which resulted in Sauvageau’s
discharge.
After the confrontation, Little and Saunders offered an ex-
planation about the dirty linen supposedly left by Little.
Tavares testified that she was too upset by the earlier con-
frontation to pay attention to what was said by the two and
told Little to be careful next time. Little testified that he
never knew he was given a warning on November 30 as he
did not recieve a copy of the warning. He did testify though
that he knew he was going to be given a warning that day
and Tavares testified that employees are not given copies of
their warnings unless requested.
I find nothing unlawful about this warning. I can find no
no signs of antiunion motivation in its issuance and Little did
leave the dirty linen as stated in the warning. Although Little
321SHERATON HOTEL WATERBURY
11 When Bair returned from vacation, he learned about this inci-
dent and issued a warning to Tavares for cursing at at employee.
Bair at least recognized there may be two sides to this story.
12 To put the matter of Savageau’s threat in some context a reader
may understand, Savageau is not a young man and not physically
imposing. At one point, Tavares must have considered him a friend
as she accepted a ride to Florida with him in September 1989. Given
these circumstances, I find that even accepting Respondent’s wit-
nesses version of the confrontation, Savageau was insubordinate, but
certainly not physically threatening.
was a known union supporter, there was no showing of dis-
parate treatment and, to the contrary, Respondent dem-
onstrated that it had given a similar warning to another
houseman in the summer of 1989. Lacking proof of improper
motivation, and lacking proof that the warning was incor-
rectly issued, I will recommend dismissal of this complaint
allegation.
d. The discharge of Roger Sauvageau
As noted above, Little encountered Sauvageau on his way
to find a witness to bolster his explanation of the situation
which caused him to receive a warning. In his meeting with
Sauvageau, Little explained what was happening to him.
Savageau determined that Little needed support and together
with Eliza Svehlak went with Little and Saunders to Tavares
office. There ensued a confrontation which, as noted above,
resulted in Sauvageau’s discharge. There are as many vari-
ations of what transpired during the confrontation as there
were witnesses to the event. However, in the end, I believe
that the end result, the termination of Sauvageau, occurred
because Calabrese had grown weary of Sauvageau’s almost
continuous, noticable activity in the Hotel on behalf of the
Union. As was the case when other dramatic action against
union supporters took place, Bair was away from the Hotel
and Calabrese alone decided on a response to a situation.
A brief description of the confrontation from the various
witnesses to it follows. Sauvageau testified that he and the
other employees entered Tavares’ office and Tavares imme-
diately told them to get out of her office, that they had no
business there. She began screaming for them to get out and
that Little needed no witnesses. Sauvageau testified that he
told her that they were there to see what the problem was
because Little was on the organizing committee. Tavares
continued to tell the group to leave and they did.
Little’s and Svehlak’s versions of the incident are essen-
tially the same as Sauvageau’s though Svehlak added that
Tavares said, ‘‘I don’t have to let anybody into this office
if I don’t want to.’’ ‘‘That is by law.’’ The three employee
witnesses all testified that Sauvageau did not threaten
Tavares either by words or gestures.
Tavares testified that Sauvageau entered her office with
the other employees behind him and she asked him what he
wanted. He said, ‘‘These are my people and I have to stay.’’
Tavares then said, ‘‘I don’t know what you’re talking about,
Roger, but please leave my office.’’ Sauvageau then said: ‘‘I
will not leave this office. I have a right to be here.’’ She tes-
tified that he was sticking his finger in her face and threaten-
ing her.
She then got up from her desk and began backing up, tell-
ing him to leave. Sauvageau came over to her pointing and
sticking his finger in her face. She testified that he kept say-
ing, ‘‘I’ll fix you.’’ At some point Tavares told him to ‘‘get
the fuck out of my office,’’ and he did.
Inspectress Sarah Frankenfield, who was present, testified
that when Sauvageau entered the office, Tavares asked him
why he was there, and he responded that she was harassing
his people. She testified that he pointed his finger at her and
said you are harassing my people. According to this witness,
Sauvageau kept saying ‘‘you’re going to get yours; you’re
going to get yours,’’ while pointing his finger at Tavares and
getting closer. Tavares said, ‘‘fuck you,’’ and he left.
The entire confrontation lasted between 2 and 5 minutes.
Though generally one must accept one version or the other
of a description of an incident, I am not sure that is possible
here. Given my observation of the personalities involved, I
believe the employee witnesses who said that Tavares re-
acted in a hostile manner to the entrance into her office of
Sauvageau and Svehlak. I believe it would take provocation
for Sauvageau to raise his voice and accuse Tavares of
harassing union supporters. I believe he must have raised his
voice or in some manner further angered Tavares, causing
her to curse at him.11 On the other hand, I do not believe
the testimony about Sauvageau saying, ‘‘I’ll fix you’’ or
‘‘you are going to get yours.’’ These are entirely different
things for one thing and for another, what was Sauvageau
going to do. After the confrontation, he merely went back to
work. After Sauvageau and Svehlak left, Little and Saunders
remained for a few minutes with Saunders saying something
that Tavares does not remember. Tavares then contacted the
Hotel’s assistant manager, Tom Fallon, about the incident.
Bair was on vacation at the time.
Fallon then went to maintenance and confronted
Sauvageau, telling him he had no business in housekeeping,
that he should not have been there and how would
Sauvageau like it if he ‘‘rang his card out.’’ Sauvageau re-
plied that he did not think he would and Fallon left the area.
It should be noted that the housekeeping and maintenance
areas are side by side in the Hotel. Todd Tavares then en-
tered the area and said, ‘‘You upset my mother and nobody
upsets my mother and I don’t care how big they are.’’ Kathy
Tavares then showed up and said to Todd Tavares, ‘‘Don’t
bother with him, Todd, he’s not worth it.’’ Both Tavareses
then left.12
Fallon informed Calabrese about the incident and though
he had before been involved in only one disciplinary matter,
and that involving a relative, he went to the Hotel and called
a meeting in Bair’s office of K. Tavares, Fallon, Petra Ortiz,
Bair’s secretary, Kathy Craig, and his wife, who is also part
owner of the Hotel. After gathering these people together he
asked Tavares what happened and as best as he could re-
member, Tavares said Sauvageau came into her area, shook
his hand at her, and said we are going to get you or take
care of you. He considered Sauvageau to have threatened
Tavares, embarrased her, and abused her based on her state-
ment. Other than Tavares, none of the people brought to-
gether for this meeting had any first-hand knowledge of the
events in question. Calabrese was aware that other employees
had been present during the confrontation, but none of these
persons was interviewed. Calabrese indicated that it was un-
necessary because the person involved, Sauvageau, gave him
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 I do think this is an inadvertent admission that Calabrese was
looking for a reason to terminate Savageau. However, as a factual
matter, I do not find that Savageau was asked anything about his
version of the incident until he had been informed he was being
fired.
14 After Eliza Svehlak received her warning of November 17,
1989, a letter protesting the action was prepared and signed by the
members of the organizing committee. This letter was presented by
Sauvageau to Calabrese in the Hotel’s Garden Cafe while Calabrese
was having lunch. Savageau was on the clock at the time and had
no duties in the restaurant. He was not disciplined for this activity
nor was he ordered back to work by Calabrese. Therefore, being out
of one’s work area while on duty to engage in protected activity was
allowed by Respondent on this occasion.
the answer he was ‘‘looking for.’’13 However, before
Savageau became involved in the meeting, Calabrese called
his attorney to find out if firing Sauvageau was proper.
Sauvageau was then summoned and as he entered the
meeting Calabrese began stating that he had attacked a man-
ager. Sauvageau asked for a minute to get a witness and
started out of the office. Calbrese told him if he did not re-
turn immediately, he was fired. Thus he returned to the of-
fice where Calabrese said he had attacked his manager, he
had no right to do that, and Calabrese was going to fire him.
Calabrese indicated in his testimony that he first explained
to Sauvageau what Tavares had told him and Sauvageau ad-
mitted doing what he said. However, in his affidavit given
shortly after the incident actually took place, Calabrese stat-
ed, ‘‘when Sauvageau arrived, I told him he screwed up and
that he was dismissed.’’ I credit the affidavit version of the
events as it is far closer in time to the meeting that the hear-
ing and more closely corresponds to the other witnesses’ tes-
timony.
Calabrese then referred to the employee handbook and said
the Hotel went by the rules. Sauvageau said the handbook
allowed the rules to be changed anytime the Hotel wanted,
and Calabrese said he could change them. Tavares started to
say something and Calabrese stopped her. Sauvageau was
then told to pick up his tools and leave, which he did.
On brief, Respondent urges that Sauvageau was discharged
for threatening Tavares. For the reasons set forth above, I do
not find that Sauvageau threatened Tavares, though it could
be said that he was insubordinate to a degree. However, I do
not believe that Respondent can even rightfully contend that
a threat was the reason Sauvageau was dismissed. Witness
the Hotel’s documented reasons for terminating him.
On December 14, 1989, Fallon, at Bair’s request, attended
Savageau’s unemployment hearing and executed a statement
of the Hotel’s position regarding his termination. According
to the statement, ‘‘Mr. Sauvageau was discharged by the
owner of the Sheraton, Joseph Calabrese, on 11/30/89 be-
cause he had left his authorized work area and entered an un-
authorized work area.’’ The statement made no mention of
a threat made by Sauvageau to a manager or, more specifi-
cally, to Tavares.
In a similar statement executed by Ramin Hakim, the Ho-
tel’s controller, on December 11, 1989, in anticipation of
Sauvageau’s unemployment hearing, Hakim stated that,
‘‘Roger was terminated because he left his work area without
authorization, went to the Housekeeping Department where
he caused a confrontation with a manager and was insubordi-
nate when told to leave the area.’’ Again there is not men-
tion of a threat. This is the same language which appears on
Sauvageau’s termination papers.
I believe it is clear that Sauvageau was engaged in pro-
tected concerted activity when he accompanied Little to
Tavares’ office. He was acting as a witness and advocate for
Little in Little’s disciplinary meeting. Other employees had
been allowed to have witnesses, for example, Svehlak was
allowed to bring a witness to her disciplinary meeting with
Petra Ortiz, discussed earlier herein. Thus, leaving his au-
thorized work area and going to the housekeeping depart-
ment was protected. Indeed, neither Svehlak nor Saunders,
two other employees who came as witnesses while on duty,
was not disciplined for this activity.14
Therefore, we are down to causing a confrontation and
being insubordinate when told to leave the area. I find as a
factual matter that Tavares caused the confrontation by tak-
ing a belligerent stance when Sauvageau entered her office.
Was Sauvageau’s behavior thereafter such to remove it from
the protection of the Act and, if so, did the Hotel react in
a manner consistent with past practice and its own rules? I
do not believe that Sauvageau’s conduct removed the protec-
tion of the Act from his actions in Tavares’ office because
of Tavares’ provocation of him. However, even if it did, I
believe that Calabrese’s actions following the incident and a
reveiw of past practice indicate that Respondent simply
seized on the incident as an excuse to rid itself of one of
its most ardent and visible union supporters.
As noted above, the decision to terminate Savageau was
made by Calabrese without any investigation other that talk-
ing with Tavares and without asking Sauvageau for his side
of the story. This is true even though there were numerous
witnesses to the incident. The practice of the Hotel is to in-
vestigate before disciplining. Of course, it has also been the
practice of the Hotel before Sauvageau for Calabrese to stay
of the disciplinary process. Calabrese made no attempt to de-
termine whether his discipline of Sauvageau was consistent
with past practice.
With regard to issue of insubordination, Bair testified that
employees are not necesarily terminated for insubordination
as it depends on the severity of the situation and all the fac-
tors involved. This statement is borne out by Respondent’s
documents.
On June 6, 1989, Mahumet Redzep was given a warning
for disobedience, and counseled without further discipline
for: ‘‘Mahumet was told to leave the premises. He had been
off the clock for an hour, left and returned to Hotel. He ig-
nored my orders to leave premises 3 times; then he lied and
said he was leaving but minutes later was seen by men’s
room talking to Ed Appicela.’’ This was Redzep’s second
warning.
On June 27, 1989, employee Ann Marie Cretella was
given an oral warning for engaging in insubordination by
using an improper tone of voice with her immediate super-
visor. No punishment was administered.
On May 19, 1990, employee Paula Zelanin was given a
written warning for yelling and scolding Lisa Brodeur, the
restaurant manager. The warning states: ‘‘Regardless of right
or wrong, there is absolutely no place in this organization for
conduct such as this. It will not be tolerated toward any em-
ployee, manager or other.’’ Zelanin was forced to apologize
to Brodeur and warned she would be terminated if she en-
gaged in future similar conduct.
323SHERATON HOTEL WATERBURY
15 Par. 20 of the initial consolidated complaint dated June 29,
1990, stated as follows: ‘‘[O]n or about December 5, 1989, Re-
spondent changed the hours of its employees.’’ In response to Re-
spondent’s motion for Bill of Particulars, General Counsel filed its
amendment to consolidated complaint dated September 21, 1990.
This document amended par. 20 to read: ‘‘[O]n or about December
5, 1990, Respondent changed the hours of Eliza Svehlak.’’
No further motion to amend this paragraph was made. Respondent
contends that it should be dismissed. If the matter was one of sub-
stance, I would agree. However, the 1990 date is clearly a ministe-
rial error and did not in any fashion mislead the Respondent as it
replied fully in its testimony to this complaint allegation. It would
serve no purpose whatsoever to dismiss this allegation without full
discussion, other than to serve form over substance. It certainly
would not further any legitimate purpose of the Act. Accordingly,
I will address this allegation. Respondent makes several similar con-
tentions with regard to other allegations and my ruling is the same
with respect to them, whether specifically mentioned or not.
16 General Counsel on brief indicated that he found no evidence
that Svehlak was not working during this half hour. At p. 413 of
the transcript, Svehlak testified in response to a question of what she
did when she arrived at work on November 30, ‘‘I sat down and
had coffee, tea, whatever, and had a cigarette. I usually read my
book until 7:00.’’
On October 30, 1989, employee Sandra Leo was warned
for being disrespectful to a manager, talking back in a loud
tone of voice in the Hotel dining room. She recieved only
a warning that she would be terminated if she did this again.
On December 5, 1989, employee Scott Biondi was given
a warning for shoving his manager and suspended for 1
week. Biondi stated on the warning form that he was wrong,
was pushed to the limit, and acted irrationally. He was not
fired. Bair investigated this incident at the time of its occur-
rence and decided the manager in question had overreacted.
No such investigation was made in the case of Sauvageau.
In conclusion, Respondent’s past unlawful warning to
Sauvageau, its changing reasons for his discharge from the
documented reasons to the testimony herein, the inconsist-
ency between Calabrese’s testimony and his affidavit, its dis-
parate treatment of other employees accused of insubordina-
tion, its virtual lack of any investigation before termination
contrary to normal practice and the timing of the discharge
all lead me to conclude that the discharge was unlawfully
motivated and find that no credible legitimate reason for
Sauvageau’s discharge has been advanced. Accordingly, I
find that Respondent’s discharge of Roger Sauvageau was in
violation of Section 8(a)(1) and (3) of the Act.
e. Change in Eliza Svehlak’s hours
At the end of November or the beginning of December
1989, Tavares informed Svehlak that her hours were being
changed from 6:30 a.m. to 2:30 p.m. to 7 a.m. to 3 p.m.15
Svehlak replied that when she was hired by the Hotel, she
was told that she could leave at 2:30 p.m., because she had
to be home to get her children off a bus. She told Tavares
that she would hold her and Calabrese responsible if some-
thing happened to her children. Tavares replied, ‘‘That’s the
way it is. The times are changing.’’
Svehlak testified that she was given no explanation for the
change. Tavares testified that she told Svehlak that all the
other laundry employees come in at 7 a.m. and work until
3 p.m. She wanted Svehlak to work the same hours as the
other employees and needed her more in the afternoon than
in the morning. In response to Svehlak’s note of her problem
with her children, she said, ‘‘Your children are not my re-
sponsibility.’’ Tavares testified and Svehlak confirmed that at
the time of the change, Svehlak did not actually begin work
until 7 a.m., although she arrived at 6:30 a.m.
On brief, Respondent offers a variety of reasons why the
changes in Svehlak’s hours were changed. However, none of
these reasons except the desire to have Svehlak work the
same hours as the other laundry employees was articulated
by Respondent’s witnesses. Attorneys on brief cannot sub-
stitute their reasoning, however logical, for the reasoning of
their clients. I agree that the timing of the change, especially
the closeness in time to the threat by Tavares that if the
Union got in, Svehlak would no longer be able to leave at
2:30 p.m., supports the General Counsel’s position that the
purpose of the change was to harass or punish Svehlak for
her union support. The suddenness of the change, as well as
the cursory explanation for the change given to Svehlak by
Tavares, does reflect an attitude of mean spiritedness on the
part of management toward Svehlak that does not appear
warranted by her performance appraisals.
On the other hand, Svehlak agreed that she was not work-
ing during the half hour between 6:30 and 7 a.m. and man-
agement certainly has a legitimate interest in having its em-
ployees work while they are being paid.16 As Respondent
has demonstrated a legitimate business reason for the change
in Svehlak’s hours, I will recommend that this complaint al-
legation be dismissed.
f. Layoffs and loss of hours in the restaurant prior
to the election
One of the most important elements of this dispute in-
volves layoffs, loss of hours, and changes in policies in the
Hotel’s restaurant during November and December 1989. As
opposed to the unfair labor practice allegations discussed
above which involved a limited number of individuals, these
changes affected many employees in a department that was
likely the most intensely organized of any in the Hotel.
Therefore, the allegations involving the restaurant would bear
significantly on the ultimate remedy sought by General
Counsel, a bargaining order. Because of the importance of
these allegations, certain evidence offered by General Coun-
sel, though not directly related to specific allegations of un-
lawful activity, will be set forth as it bears on the question
of motivation for the Respondent’s actions.
Prior to the union organizational effort in the fall of 1989,
there was an informality to the way the restaurant service
staff operated. Servers were responsible for finding their own
replacements for scheduled shifts if they were going to miss
work for some personal reason. Respondent made a red book
containing all the servers’ and managers’ phone numbers
available to employees so that they could find replacements
for their shifts.
The Hotel had not history of laying employees off or cut-
ting hours for lack of work. When business was slow in the
restaurant, the waitstaff would first try to decide among
themselves who would go home early. If no agreement was
reached, then managers would send the employees home who
came in earliest. This policy was introduced around 1988.
Prior to that, the policy had been that a server had to call
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in at least 4 hours before their shift and the managers would
find a replacement.
Waitresses also routinely gathered together in groups of
four or five employees during slow periods to fold napkins
in the restaurant. It was common for waitstaff to arrive early
and wait for the start of their shift either in the pantry or caf-
eteria. Similarly, when employees finished their shift, they
would wait in various areas, such as the kitchen or cafeteria,
for fellow employees to finish, or for rides. Sometimes they
waited for rides in the office of the security guard at the end
of the night, and were also escorted to their cars late at night.
Things changed in the restaurant after the card gathering
began. The restaurant was a prime area for union activities.
Six members of the waitstaff were on the union organizing
committee which began seeking signatures on authorization
cards on November 21, 1989. These six were: Barbara
Racine, Laurie Grenier, Mark Sanderson, Gina Clay, Lisa
Chilcoat, and Wanda Washburne. Between them they gath-
ered, or themselves signed, about 65 cards, almost half of the
all cards gathered. Much of the card gathering was done at
work, including in the Garden Cafe, the pantry, the bar, the
cafeteria, the restrooms, and the kitchen.
Barbara Racine and Laurie Grenier, two of the most active
and outspoken union supporters who accounted for 41 cards
by themselves, testified that they were watched and followed
by managers as they performed their tasks. In late November,
Grenier and waitress Grace Kelly were waiting in the bar at
the end of the night for Restaurant Manager Brad Larson to
sign them out. The bar was closed and the lights were out.
There were no customers present. Grenier leaned against a
bar stool. Larson told her to get her ‘‘butt’’ off the stool.
Grenier told him that ‘‘because of the way you treat us, and
the way things are,’’ was the reason that ‘‘we want a Union
in here.’’ Larson told her to get her stuff and go. The next
day, Larson informed Grenier that he had written her up and
wanted her to sign the writeup. She refused, and said that he
was only writing her up because she had mentioned the
Union to him. Grenier complained about the incident to
Calabrese and Bair that night, and asserted to them that it
had ‘‘to do with what was going on in the Hotel at the
time.’’ Calabrese said he would look into it. The following
week, Larson apologized to Grenier and said the warning had
been taken away.
In early December, Night Manager Doug Piel asked
Grenier to speak with him in the Rose Room. She brought
waitress Debbie Wilroy to be her witness. Restaurant Man-
ager Lisa Brodeur was present as well. Piel told Grenier that
there had been complaints that she had been harassing some-
body, and that this person had received a warning because
of her, and that she was to stop doing it. Grenier asked to
whom he was referring, and what was it that she had pur-
portedly said. Piel declined to answer her, and advised her
to stop whatever it was. Grenier told him, ‘‘you’re sitting
here giving me a warning about somebody for doing some-
thing I don’t know anything about, and you won’t tell me,
you know. You and I both know what this is about.’’ Piel
simply again advised her to stop doing it.
Later, employee Mark Davis informed Grenier that Piel
had given him a warning for being in the cafeteria out of his
workplace and had asked him who had given him the card
(evidently and authorization card). She asked Davis if he felt
that she had harassed him, but he said no, that if anybody
harassed him, it was Doug Piel.
Piel also summoned Barbara Racine in December to his
office where he vaguely advised her that there were some
problems, that people were saying things about her, and did
she have any idea what it could be. She asked Piel if he had
any problem with her work. He said no. She then said that
they both knew what it was about, the Union. Piel admitted
to Racine that he did not have a problem with her. She asked
him who had said something about her, but he refused to
say.
In early December, the Union drew up a petition protest-
ing the discharge of Roger Sauvageau. Grenier, Racine,
Cesar Barrerra (a kitchen utility worker), and other employ-
ees brought the petition to work and requested to speak to
Calabrese or Bair, neither of whom was available. Assistant
Manager Tom Fallon came out instead. Grenier spoke on be-
half of the employees, and wanted to know if the hotel
planned to recall Sauvageau. Fallon said no. Grenier said that
it would not stop them and would only make them fight
more, and they would keep going to the Union because of
their unfair treatment of Roger Sauvageau. She told Fallon
to tell Calabrese they had been there. The employees then
left the Hotel. Grenier then reported to work as scheduled at
4 p.m. Racine, who was not scheduled until 5 p.m., accom-
panied her to the garden pantry. Restaurant Melinda Merrill
came up to her and asked what she was doing ther, and said
she was not scheduled to work until 5 p.m. Racine said she
intended to pick up the ‘‘due back’’ money owed her. Mer-
rill told her to pick it up and leave and come back when her
shif started. Prior to this incident, Racine had never been told
to leave the premises before, despite the fact that she, as did
others, had commonly reproted to work early and waited for
her shift.
A couple of weeks later in December, Racine, who had
finished her shift, wanted to wait for Kelley to finish her
work. She returned to the restaurant to inform Kelley that
she would be waiting for her, but Merrill stopped her and
told her to leave the building. Racine then told Kelley she
would wait for outside or in the security office. The night
was cold and Racine asked the security guard if she could
wait. He said that she could not, because ‘‘it’s like a fucking
war in here.’’ Racine left for the parking lot, where she saw
a friend waiting in his van, which she got into. Doug Piel
approached the van in his shirtsleeves, knocked on it, and
asked if everything was alright. She said it was and left.
Racine recalled another specific incident occurring shortly
after this in which Merrill told her to stop talking to an em-
ployee at the end of her shift, walked her all the way through
the restaurant and pantry, and watched as Racine gathered
her things and punched out. Merrill acted in December to
limit the conversations of the waitstaff by informing them
that they could no longer fold napkins in groups of more
than two. She testified that if employees were standing in
back of the restaurant having a talk session with the pretense
of folding napkins, when there was more important side
work to be done, then she would have them do other things.
Grenier experienced a serious problem with an antiunion
banquet server Steve Barone. Towards the end of December,
Grenier was speaking to employee Munier Odeh in the kitch-
en about his conversation with Bair. Barone yelled at
Grenier, ‘‘Don’t listen to that bitch.’’ He returned and yelled
325SHERATON HOTEL WATERBURY
17 Except when needed for banquets, the Rose Room is still not
used by the Hotel. Similarly, the Hotel does not serve a Sunday
brunch.
18 Again, Respondent points out that the last amendment to the
complaint uses 1990 instead of 1989, as was set out in the complaint
before amendment. Again, I view this as a ministerial error which
in no way misled Respondent who fully responded to the allegations,
and will not dismiss them out of hand as requested.
again, ‘‘Don’t listen to that bitch, she doesn’t know what
she’s talking about. Don’t listen to her.’’ Grenier ignored
him.
The night before the election the problem repeated, but in
a more virulent manner. Grenier was in the kitchen preparing
some salads, and speaking to Munir. Barone started yelling
who the hell was she to talk to Munir about the Union, and
that Grenier did not know what she was talking about. He
told her that she was ‘‘nothing but a union bitch,’’ and that
he was going to ‘‘kick her ass’’ outside the cafe that night.
He followed her around the kitchen repeatedly yelling
‘‘union bitch’’ at Grenier. She asked him to leave her alone,
but he continued his attack until she left the kitchen.
She saw the night manager, Doug Piel, in the restaurant
and told him what had happened to her. Piel said he would
take care of it and left the restaurant. He returned about a
half hour later and told her that he had taken care of the
problem, and not to worry about Barone, that he would not
bother her any more. Grenier asked what he did, and did
Barone get into trouble. Piel would not answer her question,
and just said not to worry, that he had taken care of it. Not
only was Barone not disciplined for this incident, but was
chosen by the Hotel to be its observer at the election the fol-
lowing day.
It is against this background that General Counsel con-
tends that restaruant hours were cut, restaurant employees
were laid off, and restaurant policies were changed as part
of an attempt to discourage union support. On the other
hand, as noted in the overview section of this decision, due
to a general decline in business and occupancy rates, the
Hotel contends that it was forced to curtail its operations in
an effort to remain profitable. The closing of the Rose Room
in September 1989 and the Sunday brunch in late November
1989 resulted in the elimination of a number of shifts for the
P.M. restaurant server.17 Approximately 10–12 shifts were
needed to cover the Rose Room during a given week. The
Sunday brunch required approximately 8–12 shifts involving
both A.M. and P.M. restaurant servers. Despite the elimi-
nation of these shifts, no employees were immediately laid
off. Rather, in late November and early December, the Hotel
attempted to distribute the remaining P.M. shifts among all
the P.M. restaurant servers. Accordingly, by the end of No-
vember, most, if not all, of the P.M. restaurant servers had
suffered a reduction in their weekly hours.
This resulted in complaints from servers. The full-time
P.M. restaurant servers wee complaining because they were
no longer receiving the four weekly shifts associated with
full-time positions. In an initial effort to try and give every-
one some hours, the managers often scheduled more employ-
ees than were actually needed. Consequently, employees
scheduled to work were called and told not to report to work,
further upsetting employees. By the second or third week in
December it was apparent that the Hotel had many more
P.M. restaurant servers than it needed so some employees
were let go.
The Hotel’s decision as to who would be let go was based
on a variety of factors. The Hotel chose to terminate those
employees with the poorest performance record. In addition,
it chose to lay off those part-time employees who had sig-
nificant restrictions on the nights which they could work, to
allow flexibility in scheduling. The more full-time employees
who are working in the Hotel, the easier it is to complete
a weekly schedule since there are fewer individuals to juggle
into the schedule. In contrast, part-time employees with re-
strictive schedules make scheduling more difficult. Another
reason for the preference for full-time people was consist-
ency of service.
Pursuant to this criterion, the Hotel decided in late Decem-
ber 1989 to discharge one P.M. restaurant server and three
A.M. restaurant servers: Tammara Craig (P.M.); July Irwin
(A.M.); Sandra Leo (A.M.); and Monica DeMagistris (A.M.).
In addition, the Hotel laid off four part-time P.M. restaurant
serves, Patricia Monytko, Edward Apicella, Mark Sanderson,
and Gina Clay. Even with the elimination of these restaurant
servers, however, many of the P.M. restaurant servers contin-
ued to work less hours than they had in October 1989 as a
result of the continued decline in business as compared to the
same months for prior years.
Discussed below are the specific allegations regarding lay-
offs, reduced hours and changed policies. Although I have
heretofore found that Respondent committed certain unfair
labor practices and clearly harbored union animus, I believe
its economic defense to these allegations is legitimate and
will not find that it violated the Act with respect to its ac-
tions regarding its restaurant in November and December
1989. My reasons for dismissing each separate allegation will
be given with respect to the particular allegation. However,
as an overall observation, I do not see what Respondent had
to gain from the standpoint of reducing union support by re-
ducing the hours and laying off certain of its restaurant em-
ployees. Known union supporters were laid off and had their
hours reduced. However, so did employees whose sentiments
were not shown to be known to management. Respondent’s
action in this regard upset and angered its employees, and
would seem to have the ultimate effect of making the Union
seem more attractive as an agent to aid in protecting their
jobs.
g. Loss of hours of Barbara Racine and Laurie Grenier
The complaint alleges that both Racine and Grenier, P.M.
restaurant servers and acknowleged activists in the campaign,
experienced loss of hours beginning in late November
1989.18 In this section of this decision, inquiry will be lim-
ited to pre-election activity. Alleged loss of hours and termi-
nation of these two employees in the postelection period will
be discussed later. Both employees complained to manage-
ment about their loss of hours in December and were each
told that business was slow.
Respondent offered as its Exhibit 14 an analysis of the
payroll records in evidence as General Counsel’s Exhibit
165, which indicates to me that the two were not discrimi-
nated against during the preelection period from the stand-
point of loss of hours when compared with all P.M. res-
taurant servers. This analysis reflects with respect to Grenier
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for the weekly payroll posting periods ending October 4,
1989–November 22, 1989, Grenier worked from 17.50 to
25.40 hours per week. The exhibit also reveals that for the
payroll posting period of November 29, 1989, which would
include the alleged beginning of her denial of work, she
worked 24.90 hours. For the next 3 weeks, she worked
22.20, 29.00, and 25.20 hours, respectively. December 27
was the only week during 1989 when her hours were signifi-
cantly lower (13.60 hours). Even working 13.60 hours, she
had the second highest number of hours among the P.M. res-
taurant servers for the week. The total number of hours for
the entire department that week was only 99.30, a substantial
reduction from the 135.70 hours worked by the P.M. servers
the prior week.
Grenier was ranked first in total number of hours for four
of the weeks and second for the last week of the period
Novermber 29–December 27 among all P.M. restaurant serv-
ers. For the five payroll posting periods in January 1990,
Grenier ranked second, first (tied), fourth, first and first, re-
spectively.
Respondent’s Exhibit 14 demonstrates that for the payroll
posting periods October 4, 1989–November 22, 1989, Racine
worked from a low of 16.70 hours a week (October 11,
1989) to a high of 24 hours a week (October 25, 1989). For
the payroll posting periods from November 29, 1989–Decem-
ber 27, 1989, Racine worked 24.60 hours, 17.20 hours, 24.40
hours, 18.60 hours, and 12.10 hours, respectively. Racine
was either second or third in number of hours worked for the
department for this period. For the five January 1990 posting
periods, she worked 11.20 hours, 15.40 hours, 15.30 hours,
12.20 hours, and 17.40 hours, respectively. For the five pay-
roll periods in January 1990, Racine worked 71.5 hours. The
other P.M. servers shown to have worked that month and the
number of hours they worked are: Grenier (91.2 hours),
Pultinas (81.1 hours), Sidorick (69.4 hours), Wilroy (66.2
hours), Kelley (77 hours), and Vaughn (28.2 hours). Exclud-
ing Vaughn who appears to have been working only part of
the period, Racine got approximately 16 percent of the hours
available to all P.M. servers in January. The only P.M. server
shown to have received significantly more hours during this
period was Racine’s fellow union activist, Grenier.
I believe the hours worked by Grenier and Racine during
the involved preelection period do not reflect any discrimina-
tion toward them in terms of number of hours they were
scheduled during the period. Respondent has also analysed
the A.M. server hours for the period November 29, 1989–
January 31, 1990, and the analysis reveals that the union or-
ganizing committee members on that shift received the bulk
of the hours available.
Although it is not alleged as a violation of the Act, both
Grenier and Racine testified that in or about January 1990
they experienced being called shortly before their shifts were
to begin and told they would not be needed. Grenier com-
plained to Manager Lisa Brodeur about this after one such
incident. She told Brodeur that it was ‘‘a bunch of crap’’ to
call her right before the scheduled shift and tell her not to
come in. She told Brodeur ‘‘that’s why we want a union, be-
cause of the way you people treat us and just do whatever
you want to do to us.’’ Brodeur responded, ‘‘Face it, Laurie,
there’s never going to be a union in here. And, if there was,
nothing is going to change, so accept it.’’
One occasion when Racine was called shortly before her
shift and told not to report was on an evening when
Calabrese was to give an employee speech. She went to the
meeting anyway and when arrived at the Hotel, she discov-
ered that Merrill was waiting on tables herself. Racine com-
plained about this to Calabrese and Bair. Bair testified that
he implemented a new policy to prevent such a thing from
recurring. General Counsel contends that this policy was not
communicated to the employees; however, based on the evi-
dence in this record, there does not seem to have been a
reoccurence of the short notice cancellations.
h. Loss of hours and layoff of Gina Clay and
Mark Sanderson
Although I believe that it has been shown that Grenier and
Racine were not discriminated against in terms of lost hours
before the election, the matter of the treatment of part-time
P.M. servers Gina Clay and Mark Sanderson is less clearcut.
Clay was a P.M. restaurant server and a member of the union
organizing committee. She was the most senior of the P.M.
staff, having been hired by the Hotel in October 1987 as a
full-time P.M. server to work in the Rose Room. She also
occasionally worked the Sunday brunch prior to its elimi-
nation. In September 1989 she reqested that her status be
changed from full-time to part-time because she had enrolled
as a full-time student. She was unavailable to work on 2
nights during the week when she regularly had classes. Pur-
suant to her request, Clay was reduced to three shifts per
week. Subsequently, she was reduced to one or two shifts per
week until she was finally laid off by the Hotel on December
23, 1989.
On November 5, 1989, Clay spoke to her manager, Mer-
rill, about the upcoming holidays. Merrill had posted a notice
which stated that holiday assignments would be done on the
basis of seniority. Clay informed Merrill of her choices and
asked if it would be a problem as she had the most seniority.
Merrill indicated it would not be a problem. Merrill then
took the opportunity to give Clay a performance evaluation
and noted to Clay that she talked too much. Clay testified
that the remarks section of the evaluation was not filled in
at this time, but was filled in without her knowledge at a
later date. No explanation for this action was offered by Re-
spondent.
Clay then asked Manager Merrill why her days had gone
from three to two. Merrill said she was trying to give full-
time employees their hours first, and things would be slow
until March 1990. Clay complained that she had the most se-
niority, and why was another part-time employee with less
seniority keeping her 3 days. Merrill responded that the par-
ticular waitress was thinking about becoming a full-time
waitress.
Clay’s hours went to one shift in late November, and was
taken off the schedule in early December. She spoke with
Restaurant Manager Lisa Brodeur about being taken off
schedule and was again told that full-timers had to get their
hours first, and that things would be slow until March. Clay
thereafter worked only on December 15 and 16, filling in for
other servers. She received an unemployment notice in Janu-
ary 1990, informing her she was unemployed for lack of
work. In her file is also a termination review dated Decem-
ber 23, 1989, which is less positive than the performance
evaluation she received in November. However the same
327SHERATON HOTEL WATERBURY
negative traits perceived by Merrill in Clay appear in both.
The termination review indicates that Clay was ‘‘perma-
nently laid off—position eliminated closing of Rose Room.’’
General Counsel points out that she had been working in the
Garden Cafe for some time before the Rose Room closed.
Mark Sanderson, another union committee member, was
taken off schedule in late November. He started working in
August 1988 and was one of the most senior members of the
P.M. waitstaff at the time of his layoff. He had been full-
time, but had asked Merrill that he go to two shifts in No-
vember 1989 because of upcoming exams. Merrill told him
that would not be a problem. The week after Thanksgiving,
however, he found that he had been taken off the schedule
completely. He spoke to Merrill in the restaurant and asked
her why he had been taken off. She said he was not available
enough days to be put on the schedule. He told her that he
was willing to change back to his old schedule, which in-
cluded every day but Thursday, when he had a night class.
Merrill said she would do her best to put him back on sched-
ule now that he was available for more hours.
He, in fact, was scheduled to work on December 8. P.M.
server Grace Kelley called him and asked him to switch De-
cember 6 with her because it was her son’s birthday. He
agreed. Sanderson had not informed Manager Boulanger on
November 27 that he had switched days with Kelley. Bou-
langer called Sanderson and told him that he was no longer
needed on December 8. Boulanger called Kelley on Decem-
ber 5 and asked her to work on Friday, December 8. Kelley
then informed Manager Boulanger that she had already
switched with Sanderson, and was already going to work on
December 8. Kelley called Sanderson and informed him that
Boulanger had called her about working on December 8 and
that she told Boulanger that Sanderson and her had already
switched days.
On December 6, Merrill called Sanderson and informed
him he was not needed for either December 6 or 8.
Sanderson went to the Hotel on December 8 and confronted
Boulanger at the front desk. He told her that he was des-
perate for work, and would be willing to work any hours
after school. He told her he did not think it was fair that em-
ployees who were hired after him would be put on schedule
if he was not.
Both Sanderson and Clay worked on December 15, despite
not being scheduled. At an earlier union meeting, Racine and
Grenier had spoken with Clay and Sanderson about possibly
giving them shifts to work since they were taken off sched-
ule. Racine gave her Friday shift to Sanderson. Clay called
Kelley, who also agreed to let her work her Friday shift as
well. When Clay reported to work on Friday, December 16,
Manager Lisa Brodeur came to her and said that nobody had
told her that Clay was coming in. Clay said she thought
Kelley was going to call her, and suggested taht she call
Kelley. Brodeur left without saying more.
Kelley had not called in. Racine had called in shortly be-
fore the start of the shift and informed management that
Sanderson was covering her shift. No supervisor said any-
thing to Sanderson about working that day. On the following
day, December 16, Clay again worked, taking the shift of an-
other P.M. server, Judy Sidorick. Sidorick called in in ad-
vance and informed management that Clay was taking her
shift, which Clay did, without incident.
Sanderson never worked for the Hotel again after Decem-
ber 15. He went to the Hotel in mid-January 1990, to pick
up his unemployment notice which gave ‘‘lack of work’’ as
the reason for unemployment. Respondent placed an em-
ployee termination review dated December 23 in his person-
nel file which as reason for permanent layoff states: ‘‘Perma-
nent—position eliminated closing of Rose Room.’’ General
Counsel characterizes the review as negative; however, it
rates Sanderson as ‘‘good’’ except for dependability. It com-
ments that Sanderson ‘‘limited his availibility to work, but
expected hours. He tended to goof off and speak excessively
with co-workers. He was very demanding as to why manage-
ment acted as it did.’’
General Counsel contends that Clay and Sanderson were
permanently laid off because of their membership in the
union organizing committee. In support of this contention, he
cites the fact that the two servers had more seniority than
some part-time servers not laid off as well as Respondent’s
general antiunion attitude. I do not believe the evidence is
sufficient to establish that these employees’ layoffs were
discriminatorily motivated. First two other part-time employ-
ees were laid off at the same time and four others were ter-
minated, employees who were not on the committee. Second,
neither Clay nor Sanderson was shown to be a union activist
other than being on the committee. Each only secured one
other employee’s signature on an authorization card. Far
more visible union supporters such as Grenier and Racine
were not laid off and as I have found above, not cut back
in their hours in a discriminatory manner. On brief General
Counsel points to the adverse reaction of Manager Lisa
Brodeur when Clay reported for work unannounced on De-
cember 15. However, on the same night, Sanderson, whose
role as a replacement had been relayed to management prior
to his arrival, worked without incident. Similarly, Clay
worked the next day without incident, her fill-in status have
been noted to management prior to her arrival. Given the
scheduling difficulties the Hotel experienced in December in
trying to cut back hours, I do not find that a desire by man-
agement to have control over scheduling to be unusual.
The Hotel was suffering an economic downturn and had
closed one of its restaurants and eliminated a brunch which
reduced the need for servers. The complaint does not allege
these activities violated the Act, thus acknowledging at least
in part the Respondent’s economic argument. It has rationally
made the case that it desired to keep full-time employees but
experienced complaints from them when it cut their hours
because of lessening demand for their services. Thus it logi-
cally decided to eliminate some part-time positions. It picked
those to be laid off based on flexibility in scheduling and job
performance. Based on those criteria, Clay and Sanderson
were likely candidates for layoff as both had restricted avail-
ability because of their status a students, and likely would
continue to have restricted availability because of that status.
In conclusion, I do not believe that General Counsel has
made a case that Clay and Sanderson were unlawfully dis-
criminated against, and the Respondent has offered logical
and rational business reasons for its actions.
i. The change in policy concerning replacements and
the warning given to Grace Kelley
Following the December 15, 1989 incident where Clay and
Sanderson showed up for work without being scheduled,
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Managers Merrill and Brodeur discussed the matter and de-
cided that is was not acceptable. Merrill told Brodeur to tell
Bair about the matter. On Saturday, December 16, after con-
sulting Bair, Merrill prepared and posted a memo that reads:
Effective 12/16/89. If you cannot work your assigned
shift for any reason, you must contact a restaurant man-
ager a minimum two (2) hours prior to your shift. The
manager will find a replacement in order to insure fair
division of shifts. Under no circumstances shall an em-
ployee cover his/her own shift. Any deviance from this
policy will result in proper disciplinary action!
On the following Monday, a revised version of this policy
was issued by Bair and posted. Merrill testified that before
the issuance of the above-cited memorandum, restaurant
servers were supposed to call their manager if they could not
work their assigned shift. It is part of the Hotel’s policy
manual. She further testified that it had been the policy of
the Hotel to write up employees who did not call in. Re-
spondent did prove it disciplined employees who did not call
in and missed work. However, its policy in the restaurant as
of April 1989, under a different manager than Merrill, was
apparently that an employee who could not make his/her
shift was responsible for finding a replacement. Thus, it ap-
pears that the memorandum changed the existing restaurant
policy in two respects. It shifted the burden of finding a re-
placement for a worker who call in from the worker to a
manager, and it required call-ins to be made at least 2 hours
prior to the beginning of the shift.
Grace Kelley, the server who did not call in on December
15 and who Gina Clay replaced on that date received a warn-
ing on December 20, which refers to December 15 and
states: ‘‘Grace did not speak with management before miss-
ing a scheduled shift.’’ Kelley testified that Manager Brodeur
gave her the warning for not telling management that she
was changing her schedule with Gina Clay.
I do not find that management violated the Act by giving
Kelley this warning. The warning was given for not calling
in and was not given for finding her own replacement. Bar-
bara Racine was not given a warning for finding Sanderson
to replace her on December 15 and Judy Sidorick was not
given a warning for having Gina Clay replace her on Decem-
ber 16. Both Racine and Sidorick called in as the Hotel rules
mandated. Contrary to General Counsel’s contentions, I can-
not find that it was the existing policy in the restaurant for
employees who were going to be absent to simply find a re-
placement and not announce they were intending to be ab-
sent. As the Hotel demonstrated that it had routinely given
warnings for failure call in in advance of an absence, I find
that Kelley’s warning was not discriminatory and was not
based on the policy change of December 16. The policy
change itself does not seem discriminatory as it states on its
face that its purpose is to ensure shifts are fairly distributed
among employees, an important goal when layoffs and cut-
back hours are being imposed. The 2-hour requirement also
seems reasonable as management is taking on the burden of
finding replacements and would be expected to need ample
time to do so.
j. Loss of hours and layoff of Mark Scott
Mark Scott was a room service waiter. He first began
working for the Hotel in November 1987 as a busser. He
went to room service in the summer of 1988. He used to
work 3–4 shifts per week, but in the summer of 1989, he re-
quested, and was allowed, to go to twice a week. He was
injured while on vacation in August 1989, and notified Man-
ager Linda Boulanger that he would be out for several
weeks. He testified that she told him to call when he was
ready. He testified that when he did call her back, 3 to 4
weeks later, she said she had been wondering what had hap-
pened to him. She told him to call Brad Larson, the manager.
He called Larson and told him he was ready to go back on
schedule. Larson said it would take a while to fit him into
the schedule. When he finally went back to work on October
18, 1989, he worked 2–3 shifts per week on his old schedule.
After returning to work, Scott joined the union organizing
committee, and started attending the weekly meetings. He
was the only room service employee on the organizing com-
mittee. In early December, Scott’s schedule was reduced to
on shift. He questioned Merrill about this change and she
told him it was because business was slow, and he should
talk to the other manager because she did not make his
schedule. The following week, he was taken of the schedule
completely. He again spoke to Merrill who said he would be
receiving a pink slip indicating he was laid off. The records
show that Scott last worked during the payroll period ending
December 24, 1989.
After Scott received his pink slip, he called Linda Boulan-
ger and asked why he was laid off. She told him it was be-
cause of lack of work. Scott said that he had more seniority
than any room service waiter besides one named Ken, who
only worked once a week. Boulanger replied that he did not
have seniority because he had been terminated in August and
was newly hired in October. Scott said this was ‘‘bullshit’’
because he had not been told he was terminated in August
and had not filled out a new application form when he re-
turned to work. He inquired if his layoff had to do with the
Union and Bolanger said, ‘‘Why would it have to do with
that.’’ Scott said they would win the election and she replied
the Hotel would still run with or without the Union.
General Counsel contends Scott was laid off because he
was on the Union’s organizing committee. The Respondent
contends that Scott’s layoff was made necessary by a drop
in room occupancy from October 1989 to January 1990, and
in fact the Hotel’s occupancy did drop. General Counsel
points out that the occupancy in December 1989 was roughly
the same as in December 1988. However, there was a signifi-
cant drop in October and November occupancy in 1989 com-
pared with 1988. There is also no showing as to the room
service staffing in 1988 as compared with 1989, which
would make a comparison more meaningful.
Beginning with the week that Scott first appears on the
payroll after his return, Respondent’s records reflect the fol-
lowing weekly total hours for the room service department:
Week Hours
10/25 193.6
11/01 179.8
11/08 182.6
11/15 164.0
11/22 167.1
329SHERATON HOTEL WATERBURY
19 I seriously question this testimony as high hotel occupancy over
the Christmas holiday period in a nonresort area like Waterbury,
Connecticut, seems extremely unlikely.
11/29 108.9
12/06 144.6
12/13 146.7
12/20 113.4
12/27 102.8
1/3 106.3
1/10 124.6
1/17 124.3
1/24 123.5
1/31 118.3
2/07 106.4
2/14 113.4
2/21 110.7
2/28 128.6
I believe the hours do reflect a steady downward trend and
support the Respondent’s position that its need for room
service personnel was declining. Scott’s hours were reduced,
but the other part-time waiters also showed reductions in
their hours. In the first week Scott suffered a reduction in
hours, all but one other part-time waiter also suffered a re-
duction from their previous weeks’ hours, and significant re-
ductions as well. In the second week of reductions, all but
two were reduced from their prereduction levels. In the third
week, three show reductions and three returned to the pre-
vious level. Scott did not work that week. In the fourth week
of reductions, five showed reductions and one remained at
the earlier level of hours. The fifth week was the same as
the fourth. All part-time waiters suffered some overall reduc-
tion in hours for the period.
Respondent’s records also reveal that at the time of Scott’s
rehiring, the Hotel had one full-time room service waiter and
that continued throughout the period covered by the records.
The full-time waiter employed in October transferred to an-
other department in December and replaced by another per-
son. One part-time waiter named Klimkewicz quit or was
dismissed at the end of November, another named Kelly quit
or was dismissed at the first of November, and another
named Amodeo quit or was dismissed after the first week of
January. No new waiters were hired for room service until
midsummer 1990.
Bair testified that Scott and another room service waiter,
Ken Lussier, were laid off in December because the Hotel
had too many room service employees for the amount of de-
mand the Hotel was experiencing. The selection process for
lay off was to pick the employees with the least amount of
hours, which were Lussier, who hardly worked at all, and
Scott, who appears from the records to have worked signifi-
cantly less hours than any of the other room service waiters.
Thus the selection process for layoff is consistent with that
used for restaurant waiters and waitresses. General Counsel
contends that seniority would dictate that some other room
service employee should have been laid off, but Respondent
did not use seniority, but other stated criteria. Although the
question is closer with Scott, I do not believe General Coun-
sel has established that unlawful motivation caused Scott’s
reduction in hours or layoff. Respondent’s not hiring new
room service employees until several months later is also in
its favor. That it did not recall Scott at that time is not con-
clusive either absent a showing that it had a practice of re-
calling previously laid-off employees to fill new positions.
k. The layoff of Carrie Baril
Carrie Baril was hired by the Hotel on August 28, 1989,
as a full-time guest service agent at the front desk. In early
October, she informed Petra Ortiz, then room division man-
ager, that she was looking for a part-time job in the airline
industry, and her hours would change in early November.
Ortiz told her that it was no problem. Baril also told Ortiz
that her schedule at the airline changed every 3 months, and
when she could arrange it, she would go back to a full-time
schedule. When Baril’s schedule changed at the Hotel, she
went to 3 to 4 days per week, 5 to 6 hours a day.
Ortiz gave Baril her 90-day evaluation on November 12,
1989. She received an excellent evaluation. In early Decem-
ber, Baril spoke with Ortiz, who asked her if she would be
able to work 5 days a week during the weeks of Christmas
and New Year’s, due to the fact that she was expecting 100-
percent occupancy, and the Hotel would be very busy. Baril
said that would not be a problem, and that she would be able
to work around her schedule at the airline for which she also
worked. Baril then asked Ortiz if she would be getting one
of the holidays off. Ortiz said that would not be a problem,
due to the fact that there were at least four other people hired
after Baril who had become part-time. Ortiz then penciled
Baril’s name in on the schedule, and pointed out the employ-
ees who would be working the holidays.
Baril signed a union card on November 22, 1989. She did
not, however, become a member of the union organizing
committee until the last week of November, and did not at-
tend union meetings until the second week of December. She
was first publicly identified as a committee member on a De-
cember 5 letter protesting Sauvageau’s discharge, which she
distributed at the front desk. On December 14, she partici-
pated in the Union’s demand for recognition at Calabrese’s
office.
On December 16, Baril injured her hand while working for
the airline. She called Ortiz and informed her that she would
be out of work for at least 2 weeks. Ortiz said they would
find a replacement for her. On December 21, Baril went to
pick up her paycheck, and spoke with Ortiz. Ortiz then in-
formed her that she was going to be laid off because of lack
of work, and that she would be on call during the time she
was laid off. Baril asked when she would go back to work,
and Ortiz said February was the earliest. Baril asked why
Ortiz had previously asked her to work all the extra hours
during the holidays, but now are laying her off for lack of
work. Ortiz responded that she had expected full occupancy,
but looking at the computer bookings, she no longer ex-
pected that and just did not have the hours for her.19 Baril
asked if it had anything to do with her injury and Ortiz said
no.
They then went to Bair’s secretary’s office where the sec-
retary, Craig, asked her to sign a form saying the she could
not receive her check unless she returned all her uniforms.
Baril said she did not understand because if she were return-
ing in February, and was to be on call, why turn in her uni-
forms. Craig said that Baril had been fired, and Ortiz argued
that she had only been laid off. Accounting was called and
it was decided that Baril only had to return one uniform.
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Sigfredo was ill for one full scheduled shift during the period.
Feliciano was on vacation for part of this period.
Baril called in February to see about returning. Ortiz told
her things were still slow, but they would call her. In March,
after seeing ads in the paper for employment at the Hotel,
but not having been called herself, Baril went to the Hotel.
On arrival, she saw a new employee behind the front desk.
She asked her if she were a new employee, and she said yes.
Baril asked if she were part-time or full time. The woman
responded that she was full time, but had been part-time dur-
ing school. Baril then spoke with Jason Urban who had left
to go to school in Boston in late December. She asked him
what he was doing, she thought he was in college. Urban
told her it was too expensive in Boston, so the Hotel hired
him back to work.
Baril asked to speak to a supervisor. Melissa Marksbury
spoke to her. Baril asked about the newspaper ads, and why
she wasn’t called. Marksbury said she did not know that
Baril had been laid off, she thought she had been fired. Baril
said there was a mistake, and asked to speak to Bair or
Calabrese. Marksbury said no, she would speak to Bair. Baril
pointed out the new person at the front desk and the return
of a Tony Janetto to the front desk, when he was less senior
than she, and requested Bair address this.
When Marksbury returned, she said that she had spoken
to Bair who explained Janetto had retained seniority because
he had transferred to another hotel owned by Calabrese. The
new front desk employee was there because of an internship,
and she was given part-time hours because of her schooling.
Marksbury then told Baril that when she was called back,
they would not work around her hours at the airline as be-
fore, and she would have to work a full 8-hour shift, three
or four times a week. Baril asked if she would keep her se-
niority, but was told no, that she would only get credit for
the 3-1/2 months she had worked.
Although in most respects, Respondent’s records support
its contention that cutbacks and layoffs were necessary in its
operations because of a drop in business over the fall and
into the winter of 1989–1990, the one relating to the front
desk operation, Respondent’s Exhibit 21, does not. As noted
by Respondent on brief, it does reflect that total hours for
the front desk personnel dropped from 285 for the week end-
ing 11/22/89 to 159 for the week ending 12/27. However, for
the 12 payroll periods preceding the Christmas–New Year’s
period, the average weekly total hours were 239. For the 8
payroll periods shown after the holiday period, the average
total hours on a weekly basis are 210. This is a reduction,
but not so significant as in other areas of the hotel. Simply
reducing the hours of the full-time agent, John Irwin, who
was fired in early December would account for the dif-
ference.
If one can get over the hurdle of agreeing that a layof of
front desk personnel was necessary, then I agree that Baril
was the logical employee to layoff. She was on a restricted
schedule dictated by her primary employer, USAir, and
would remain on such a schedule as she planned to make air-
line work her career. She was injured and unable to work for
a period of time in any event. Laying off Baril was consist-
ent with Respondent’s stated desire to keep full-time employ-
ees, and those employees with the most flexible schedules.
It demonstrated that each of the employees it retained or
thereafter hired, all either worked full-time at all times or for
some periods of time. None were shown to be restricted to
part-time work. This is also consistent with what Baril was
told by Marksbury in March. The newspaper ads which
brought Baril back to the Hotel do not mention part-time
work.
Although I consider Baril’s treatment by management on
her return in February to be unusually hostile, and thus ques-
tionable, I find that the act of laying her off was consistent
with the lawful layoffs and reductions in hours taking place
on a Hotel-wide basis in December 19, 1989, and I cannot
find conclusive evidence that she was singled out for dis-
criminatory treatment. I therefore do not find that she was
unlawfully discriminated against as alleged in the consoli-
dated complaint.
l. Warnings given to Sigfredo Echeandia and loss of
hours among the kitchen employees
Sigfredo Echeandia, Hector Echeandia, and Cesar Berrera
were three kitchen employees who were on the Union’s orga-
nizing committee. Sigfredo was the most senior employee on
his shift and is employed as a dishwasher. His brother Hector
is a line cook. Both men gathered authorization cards, went
to union meetings, and went to Calabrese’s office with other
union supporters to demand recognition.
The complaint alleges that Sigfredo’s hours were
discriminatorily cut beginning in December 1989. During the
period of December 1989 through February 1990, Sigfredo
worked as a full-time employee with three other full-time
and one part-time employees on his shift. With the exception
of one of the other full-time dishwashers, Feliciano, all of the
other dishwashers were his brothers. Respondent’s Exhibit 16
allows a comparison of hours worked by all of these employ-
ees to be made. Having accepted as I have Respondent’s
contention that business was declining in the December
1989–January 1990 period, the loss of hours by the entire
shift is not discriminatory. I do not believe a comparison of
Sigfredo’s hours during this period vis-a-vis the other em-
ployees reflects discrimination either.
During this 2-month period, one of Sigfredo’s brother
worked approximately 275 hours, another worked approxi-
mately 50 hours, Feliciano worked approximately 222 hours
and Sigfrdo worked approximately 240 hours.20 For the
month of November, before the cut in hours, Sigfredo’s two
full-time employee brothers worked about 195 hours each.
Feliciano worked about 183 hours and Sigfredo worked 217
hours. If there was discrimination in the distribution of
hours, the only real beneficiary would appear to be one of
Sigfredo’s bothers, Cecilio, who was the second most senior
employee on the shift. There is no showing that for any pe-
riod covered by Exhibit 16, October 1989 through February
1990, management consistently favored one shift employee
over the others in distribution of hours. For any given week,
the hours are often roughly the same for all, and in any
given week any one of the four full-time employees might
work more hours than any one of the other three. There is
no given pattern of distribution of hours which reflects a no-
ticeable change beginning in December 1989.
The contention that Hector Echeandia’s hours as a line
cook were discriminatorily cut beginning in December 1989
appears to have some merit. As with all cuts in hours among
similarly situated employees, the Respondent contends that it
331SHERATON HOTEL WATERBURY
21 Fitzgerald started work in late November 1989. He evidently re-
placed another cook. In November, Zelanin worked about 175 hours
and Hector worked about 225 hours. In December, Fitzgerald’s
hours were 166, Zelanin’s were 150 and Hector’s were 151. In Janu-
ary, Fitzgerald’s hours were 152, Zelanin’s hours were 157 and Hec-
tor’s hours were 129. In February, Fitzgerald’s hours were 143,
Zelanin’s hours were 138 and Hector’s hours were 134.
tried to give equal hours to all such employees or cut their
hours proportionately. In the months of October and Novem-
ber 1989 Hector worked more hours per month that any
other cook on his shift. Beginning in December, a new cook,
Fitzgerald, began working more hours than Hector and an-
other cook on the shift, Zelanin, either worked more hours
than Hector or about the same number of hours, a clear de-
parture from past practice. This pattern continued for the
months of January and February 1990.21 Respondent con-
tends legitimately that all line cooks lost hours beginning in
December because of business conditions. However, there is
no cogent explanation for Hector’s significant loss of hours
relative to the other cooks. Respondent argues that Hector
could not work Sundays or on the first shift of the day be-
cause of transportation problems. However, he apparently
had the same transportation problems prior to December
when he was working the lion’s share of the cooks’ hours.
I also do not believe it can be credibly argued that Hector’s
hours were made equal with the other cooks or that they
were cut proportionately. Accordingly, since no credible
business reason has been given for Hector Echeandia’s cut
in hours beginning in December, I find that such a cut was
unlawfully motivated as alleged in the complaint.
On or about December 22, 1989, Ron Pascoe, Sigfredo
Echeandia’s supervisor, wrote a warning to Echeandia for
failing to call in to report his failure to appear for his shift
that day. Echeandia testified that he was ill and asked his
brother Martin to tell Pascoe of this fact when he got to
work. He testified that he had tried to call the Hotel, but the
front desk would not transfer the call to the kitchen. He did
not leave a message with the front desk or the manager on
duty. Martin informed Pascoe of the illness shortly after the
shift started after being asked by Pascoe of Sigfredo’s where-
abouts. On the following day, when Pascoe gave Sigfredo the
warning, he refused to sign it. Sigfredo said he had been sick
and sent his brother with an excuse. Pascoe replied that he
was supposed to call in himself. Sigfredo asked how he
could call in when the kitchen would not accept phone calls.
Pascoe told him that if he had asked for the chef his call
would have gone through, to which Sigfredo replied he had
not been told that previously.
Respondent followed established policy in giving this
warning and it is similar to other warnings given employees
before the union campaign began. The purpose behind the
call-in rule is to allow the Hotel to obtain a replacement
worker if necessary By not leaving a message with the Hotel
when he called, Sigfredo denied the Hotel the possibility of
obtaining a replacement until his shift had started. Given the
fact that Respondent’s rule has a legitimate purpose and
Sigfredo violated the rule, I do not find the warning given
him to be unlawful.
In late December, Cesar Berrera, a part-time dishwasher
and union committee member, was called at home by Ron
Pascoe who asked him to come to work. Barrera said no and
told Pascoe that he was going to attend a union meeting.
Pascoe asked him which was more important, the Union or
his work. Barrera reiterated that he was going to the meeting.
In the payroll period ending January 7, 1990, Barrera was
taken off the schedule for 1 week. Respondent offered no
specific reason for the this action in testimony, but on brief
points to the declining business for that week reflected on
Exhibit 16 as its reason. I just cannot accept this reference
to the exhibit given the timing of the 1-week layoff. The ex-
hibit does reflect that most of Berrera’s fellow kitchen work-
ers suffered a significant cut in hours for the week ending
January 7, and the hours Berrea could have expected to work
that week would have been minimal, probably only 2 or 3
hours based on the hours worked that week by coworkers.
However, one employee who worked less hours than Berrera
for the week ending January 3, actually had his hours tripled
for the week ending January 7. I agree with General Counsel
that in the absence of some specific reason for laying off
Barrera for the 1-week period, the clear implication of Re-
spondent’s actions was to punish Barrera for going to a
union meeting rather than filling in on an unscheduled shift
as requested by Respondent. I find that Respondent violated
Section 8(a)(1) and (3) of the Act in this regard.
m. Loss of work for Bella Berdan
In November 1989, Respondent took bedspread repair
work away from Bella Berdan, the Hotel’s only full-time
lobby maid and a member of the Union’s organizing commit-
tee. Berdan had been repairing bedspreads at home for the
previous 2 or 3 years at the request of Tavares. She testified
that she was told by Candy Cimino, an inspectress, that she
would no longer be given bedspreads to repair. Inspectress
Sarah Frankenfield testified that Tavares gave the work to
her and the other inspectresses because business was slow
and they did not have enough to do to keep them occupied
during their shifts. Tavares testified similarly. I find
Frankenfield’s testimony in this regard to be credible and it
establishes a legitimate reason for transferring the repair
work from Berdan to the inspectresses. Consequently, I will
dismiss this complaint allegation.
The complaint also alleges that Berdan lost hours begin-
ning in December 1990 and continuing to date because of
her union activities. As noted earlier, hours were being cut
in all departments of the Hotel. Reference to Respondent’s
Exhibit 8 reflects that no cuts in Berdan’s hours occurred
until the pay period ending December 27. Every maid on the
staff suffered a reduction in hours in that pay period. The
loss in hours for all maids continued into and through Janu-
ary, and Berdan’s public area partner, Angiollio, did not
work at all during the pay periods ending January 24 through
February 14. Reference to Respondent’s Exhibit 18 and the
underlying General Counsel’s Exhibit 165 reflects that
Berdan was not singled out for any disparate treatment in the
reduction of hours among all maids during the January–Feb-
ruary 1990 period. For example, the night maids as a group
averaged 53.8 weekly hours in December, but dropped to 7.6
hours weekly in January and to 27.8 hours weekly in Feb-
ruary. During the January–February period, Berdan worked
almost twice as many hours as any other maids employed by
the Hotel.
On brief, General Counsel contends that during the spring
and summer of 1990, Berdan experienced a significant de-
crease in the percentage of total hours worked among the
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
public area maids when Respondent hired a third such maid
in May 1990. The new maid left in August and was not re-
placed. Berdan’s average weekly hours for the months March
1990 through September 1990 are as follows: March, 32.6;
April, 34.6; May, 32.6; June, 30.3; July, 28.7; August, 28.0;
and September, 35.4. Although Berdan’s share of the total
hours available for maids decreased during the time of the
third maid’s employment, her average hours per week did
not significantly drop. Berdan missed 2 weeks of work in
June and 1 week in August. General Counsel argues that no
attempt was made by Respondent to explain why a third
maid was hired in May 1990. A very plausible reason is that
the matter never came up at the hearing and Berdan did not
herself complain about the loss of hours in June and July.
As Berdan evidently did not feel aggrieved by this matter,
and as I do not find she was discriminated against in the
matters actually raised at the hearing, I will recommend dis-
missal of the complaint allegations regarding Berdan.
n. Loss of hours in the sports complex
In the beginning of January 1989, Kimberly Goffredo, a
part-time sports complex employee and committee member,
had a conversation with Fallon in the sports complex during
which Fallon informed her that the shift was being elimi-
nated because business was slow. Goffredo told Fallon that
the action was being taken because of her work with the
Union. Fallon denied the allegation.
Later that day, Fallon again approached Kimberly
Goffredo in the sports complex. Present at the time was Jen-
nifer Goffredo, Kimberly’s sister and a part-time sports com-
plex employee. Fallon told the sisters that they had a deci-
sion to make about what hours each wanted to work in light
of the elimination of the 1 to 5 p.m. shift. In response, Kim-
berly asked Fallon whether her shift was being eliminated
because of her work with the Union. Fallon replied that Re-
spondent’s decision had nothing to do with it.
As a result of the elimination of the shift, Kimberly
Goffredo began working 3 days during the week from 5 to
10 p.m. and Jennifer Goffredo began working 2 days during
the week and on the weekends. In addition to the sports
complex manager, Baltrush, there was one other part-time at-
tendant employed at the time the afternoon shift was elimi-
nated. This attendant worked in the evening. No other shift
was eliminated. Baltrush lost 1 hour per day of work as a
result of the shift elimination.
It is contended by General Counsel that Respondent elimi-
nated the shift to get rid of Kimberly Goffredo because of
her union activities. At the time of the shift elimination, the
union sympathies of Jennifer Goffredo and the other part-
time attendant were unknown. In defense of its actions, the
Hotel points to three factors which caused the elimination.
First was declining hotel occupancy, which was established
in the record. Second was a declining number of nonguest
memberships in the sports facility. Although this number sig-
nificantly declined after November 1989, the degree of de-
cline was apparently not known by management until after
the decision to eliminate the shift was made. The third factor
was Bair’s belief that the afternoon shift was the least used
of the three shifts. General Counsel attacks Bair’s knowledge
of the sports complex on brief; however, it appeared to me
that Bair had an indepth knowledge about every facet of the
Hotel’s operation.
If the Hotel desired to rid itself of Kimberly Goffredo, it
certainly did not go about it in a direct manner. It offered
her hours on all other shifts and asked the other attendants
to share hours with her. She was precluded from working
weekday mornings because she was a student at an area col-
lege. She managed to work only about 6 hours less in Janu-
ary than she had in December before the shift elimination.
As far as the record is concerned, the shift remains elimi-
nated as of this date, though Kimberly Goffredo quit her em-
ployment in March 1990. There is no contention that
Goffredo was constructively discharged.
General Counsel contends that the Goffredo’s were the
only employees of the sports complex to have their hours af-
fected by the shift elimination. I disagree. Reference to Gen-
eral Counsel’s Exhibit 195 reflects that three part-time at-
tendants shared hours as their respective hours varied widely
from week to week. He also contends that the Hotel hired
four new attendants from December to February. This is mis-
leading. The Hotel had three part-time attendants when the
shift was eliminated. It never had more than three attendants
during any week after January, and replaced Kimberly
Goffredo when she quit. Jennifer Goffredo did not testify and
her feelings about the situation are unknown.
I believe that Respondent’s business reason for the elimi-
nation of the shift, the fact that Kimberly Goffredo was not
laid off, the continued elimination of the shift, and the fact
that Goffredo was replaced when she quit taken together sat-
isfies Respondent’s burden of proof under Wright Line,
supra, and find that its action in this regard was not unlaw-
ful.
o. Reassignment of duties and schedules in the
housekeeping department
(1) Changes in schedules
The complaint alleges that in November 1989 certain em-
ployees were taken off the schedule on Wednesdays. This is
alleged to be unlawful because union meetings were
switched in November from Thursdays to Tuesdays and thus
those union committee members attending a Tuesday night
meeting would be unable to attend work the next day and
carry out plans made the night before. For the reasons set
forth below, I do not believe this action by the Hotel rises
to the level of an unfair labor practice.
General Counsel asserts on brief that three housekeeping
employees were rescheduled durinig the campaign so that
Wednesday became their day off. He lists these employees
as Eleanora Williams, Victor Little, and Bella Berdan. First,
I do not believe that Berdan was actually rescheduled. The
only testimony to this effect is from Little. Berdan testified
and not only did not mention that she had been rescheduled,
did testify that she had authorization cards signed at work by
fellow employees on a Wednesday in late November. On the
other hand, Eliza Svehlak did testify that her days were
changed at some point in the campaign.
Before looking at the testimony surrounding this allega-
tion, I would point out that there seems little purpose for
management to reschedule only three members of the orga-
nizing committee which was composed of approximately 25
employees, including three other housekeeping employees.
At the time of the campaign the Hotel had approximately 40
employees in the housekeeping department.
333SHERATON HOTEL WATERBURY
Eleanora Williams, a housekeeping employee, testified that
prior to November 1989, she worked 7 days a week. In No-
vember, her days were cut back to 5, and one of the days
cut from her schedule was Wednesday. This continued until
some time after the election. She was unaware of any other
employee who had their schedules changed to make Wednes-
day their day off.
Victor Little, another housekeeping employee, testified that
prior to the campaign, his regular days off were Tuesdays
and Sundays. In late November, his Tuesday off was
changed to Wednesday. As he liked having Wednesday off
better than Tuesday, he accepted the change without asking
anyone why it was made.
Eliza Svehlak testified that during the campaign her sched-
ule was changed to have Wednesday as a set day off whereas
before the day off changed from week to week. This situa-
tion remained the same until after the election when she re-
turned to a changing day off.
Supervisor Kathy Tavares testified that she was unaware
of the day of the week of the union meetings until some time
in December, after the scheduling changes complained of had
been made. As Respondent has in its records timecards for
these employees which would reflect their day off and did
not produce them, I assume that they did have their sched-
ules changed as they testified, including Svehlak and Wil-
liams having their schedules changed back after the election.
The timing of the changes, as well as the return to pre-
vious scheduling of two of the employees affected after the
election, certainly points to some sort of discriminatory moti-
vation. On the other hand, by only rescheduling 3 of some
25 committee members, Respondent accomplished nothing.
The scheduling changes did not inconvenience any of the
three employees and actually appealed to Little. It did not
prevent attendance at union meetings, nor did it prevent the
employees from engaging in union activities when they re-
turned to work on Thursdays. Because of the extremely
slight effect this activity could have had on the rights of the
employees involved, I do not find that it constitutes an unfair
labor practice.
(2) Elimination of training responsibilities
The consolidated complaint alleges that Respondent un-
lawfully denied employees training opportunities since on or
about October 16, 1989. The employees involved are house-
keeping employees Eleanora Williams and Victor Little.
Williams testified that she was given the responsibility for
training new housekeeping employees in October 1989 and
received 40 cents an hour in additional pay. She replaced
employee Celinda Foote who was promoted to inspectress at
the same time, but according to Williams, continued to train
as well. Williams testified that she started training four or
five new employees, four of whom quit almost immediately.
One new employee she trained stayed. She was identified by
William as Johanna. Williams testified that she had conversa-
tions about the Union with this employee who appeared in-
terested. She further testified that she was subsequently told
by an inspectress, Flo Cordon, that Johanna was telling
Kathy Tavares about the conversations and warned her not
to talk to Johanna about the Union again. Although no one
said anything more to her, she believes her training duties
were taken away at this point until after the election. Wil-
liams was not sure when her training duties stopped, but be-
lieved it was sometime in November or December 1989. She
continued to receive her 40 cents per hour however. She also
testified that the hotel did not hire new housekeepers for a
while before the election.
In the period that she believes her training duties were sus-
pended, she testified that Foote trained about seven or eight
new female employees. She identified them as Norma Hall,
Cheryl, Pat, and Elaine. She could recall no other names. Her
belief that Foote was training these employees was based on
her observation of Foote and these employees having lunch
together. Three of these employees were hired by the Hotel
in September 1989 while Foote was still the trainer. Tavares
testified that the other employee, Norma Hall, was hired in
November and was trained by Williams. She denied that
Williams’ training duties were ever suspended.
Victor Little began training new housemen approximately
6 months before the union campaign began, a period during
which he trained six or seven new housemen. Little testified
that after the campaign began, he trained only one new em-
ployee named Rosado. After his training was completed,
Rosado was given Little’s training responsibilities, although
he had been employed only 2-1/2 weeks. Little testified that
following the election, his training duties were restored. The
payroll records in evidence reflect that Rosado was hired on
October 13, 1989, and the Hotel admits Little trained him.
However, the payroll records also show that no new
housemen were hired from October 13 to the date of the
election.
I believe that General Counsel has failed to make a prima
facie case with respect to this complaint allegation. Little
could not have been denied the opportunity to train new
housemen as he testified because there were no new
housemen hired. Of the new housekeeping employees, Wil-
liams claims she was denied the opportunity to train, three
were hired and trained before her promotion to trainer.
Tavares testified that Williams trained the other employee
identified by Williams, Norma Hall. In this regard, I credit
Tavares’ testimony. Williams’ memory of the alleged timing
of the suspension of her training duties was very sketchy,
and her memory of employees trained by Foote after this al-
leged suspension was just wrong. Additionally, her training
bonus was never stopped and she was never told her training
duties were suspended. As the late November–January period
was one when the Hotel was cutting back on employees and
hours, it is likely there were no new housekeepers to train.
I will recommend this complaint allegation be dismissed as
I do not believe it was proven.
There is also a complaint allegation that Respondent vio-
lated the Act by assigning new employees to work only on
the third and fourth floors of the Hotel. Although this point
is argued on brief, I can find no credible evidence to support
the allegation. Accordingly, it will be dismissed.
(3) Assignment of Eliza Svehlak to clean rooms
on election day
On January 25, 1990, the date of the election, Svehlak ar-
rived at work at approximately 6:30 a.m. and began working
in the laundry department at 7 a.m. Before punching in, how-
ever, Svehlak was informed by her supervisor, Kathy
Tavares, that she did not have enough maids for the day and
needed Svehlak to clean rooms. At approximately 8 a.m.,
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 The reader should remember that Respondent vigorously con-
tends that Svehlak was a statutory supervisor at this time.
Svehlak began cleaning the first of 13 rooms she had been
assigned to clean.
Prior to this time, Svehlak had been called on to clean
rooms approximately three to four times per year and on
those occasions normally cleaned a total of nine rooms.
Svehlak would be asked to clean rooms, if, for example, a
housekeeper called in sick and no other housekeepers were
available to cover the shift. She would often work with
Tavares on such occasions.
Respondent’s normal practice when a housekeeper is un-
able to work her shift, is to contact housekeepers who are
off to find out if they are willing to work. If a housekeeper
cannot be found Respondent then calls on the inspectresses
to clean rooms, or Tavares cleans them herself.
Tavares testified that on election day one of her maids
called in sick. Rather than call an off-duty housekeeper to fill
in, she testified that ‘‘I knew Eiza knew how to do rooms,
so I had an extra fellow on, so I asked the fellow would he
go downstairs and do laundry, which is just putting through
the ironer, and I had her come upstairs to do the rooms.’’22
She had Svehlak clean 10 or 12 rooms and did not receive
a protest from Svehlak.
I agree with General Counsel that Svehlak was assigned
room duties on election day to keep her away from the bulk
of other employees during the course of the election. Svehlak
had cleaned rooms on occasion, although it was certainly not
common experience. Tavares did not follow normal proce-
dures by attempting to find a replacement maid by calling
off-duty maids or using an inspectress. There was no sense
of emergency that called for Svehlak to be taken away from
her normal duties. Given Svehlak’s relatively high profile as
a union supporter, the timing of the incident, and the failure
to follow normal procedures, I find that the assignment of
Svehlak to clean rooms on election day was unlawfully moti-
vated and violated Section 8(a)(1) and (3) of the Act.
p. The discharge of Mary Crabb
The consolidated complaint alleges that restaurant server
Mary Crabb was unlawfully terminated on or about January
15, 1990. Crabb was a server on the morning shift in the Ho-
tel’s restaurant. Although she signed a union card in Novem-
ber, she did not attend a union meeting until January 9,
1990, and was not a member of the organizing commitee.
She went on vacation after December 19, 1989, and did not
return until January 1, 1990. Shortly before she went on va-
cation her supervisor, Melinda Merrill, gave her an evalua-
tion. Merrill told her that she was a very hard worker, had
very good attendance, never called in sick, and had never
been late. Merrill, indicated, however, that she had an atti-
tude problem that needed work. The evaluation indicated that
she ‘‘sometimes lets customers affect attitude,’’ and that she
‘‘gets angry and everyone knows it.’’ Merrill also indicated
that she needed to keep her voice down because she had a
very loud voice. The evaluation indicated that in all qualities
but ‘‘attitude’’ her grades ranged from satisfactory to excel-
lent. Her attitude was judged ‘‘fair.’’
At the January 9 meeting, Crabb was given a copy of a
union petition to get other employees to sign. She testified
that she brought it to work the following day and solicited
signatures. In this regard, she testified that she was not ob-
served by any supervisors. On January 11, Crabb attended a
meeting held by Calabrese. She testified that after the meet-
ing, Merrill spoke to her in the pantry and asked her what
she thought of the meeting. Crabb replied that there were
‘‘some good points made, there were some bad points
made.’’ According to Crabb, Merrill said, ‘‘So that means
you’re for the Union?’’ Crabb shrugged her shoulders and
walked away. Merrill denied having this conversation with
Crabb and Crabb’s affidavit given to the Board evidently
does not mention it. Crabb also believes that Merrill over-
heard a conversation she had with a fellow employee about
the Union. I just do not believe these conversations occurred
and credit Merrill’s denial.
On January 13, Crabb, though feeling ill, reported to work
at about 6 a.m. and noticed that the chef was not in. Merrill
arrived shortly thereafter and Crabb informed her about the
chef’s absence. Merrill told her she was more concerned
about the buffet not being set up. About 8 a.m., Merrill told
Crabb that the restaurant would be offering customers both
a buffet and service from the ala carte menu. Crabb replied
that she did not see the point and that there was no way that
they would be making any money off it and it was more
work for the wait staff. The two parted and sometime later
Merrill approached Crabb and told her again that they were
going to have the buffet and ala carte service. Crabb said it
was just too much work. Merrill said that if she did no like
it, Crabb could go home, adding that Crabb had an attitude
problem. Crabb testified that she then just walked away.
A short while later in the restaurant pantry, Merrill asked
her if she still had an attitude problem and Crabb pointed out
that the Hotel got rid of the Sunday brunch because it was
not making money. Merrill agreed. Crabb testified that she
then said, ‘‘Well, then what the hell’s the point?’’ Merrill re-
plied, ‘‘If you don’t like the way things are going to be run
you can just go home.’’ Crabb said she might do that and
concluded the conversation with, ‘‘This is fucking ridicu-
lous.’’ Crabb then went into the kitchen, and shortly after-
wards, Merrill followed her and asked if she were going to
stay or go home. Crabb said she was going home. In her
cross-examination, Crabb admitted being angry during this
morning, and having been rude to customers and to Merrill.
Crabb testified that she cashed out and while doing that
asked to see her schedule. She testified that Merrill refused,
‘‘but I had already known when I was working. I had gone
out into the Garden Cafe and got a couple of waitresses to
cover my Tuesday and Wednesday shifts for me. I could not
find a waitress to cover my Monday shift for me so when
I came back in I told Melinda, ‘You know, so and so’s going
to work Tuesday for me, so and so’s going to work Wednes-
day for me, I can’t find anybody to work Monday so I will
see you Monday.’’’
Crabb testified that she reported to work on Monday and
noticed her name had been completely taken off the work
schedule. She went to find Eliza Svehlak to get Union Rep-
resentative Rob Traber’s phone number, but Svehlak was not
yet in. A little later she spoke with another waitress coming
in for work who asked what she was doing there. She said
she was coming to work and the other waitress just said,
‘‘Oh.’’ She then saw Svehlak and explained that she had
been taken off schedule and Svehlak suggested she wait and
335SHERATON HOTEL WATERBURY
23 This meeting with Svehlak is not mentioned in Crabb’s affidavit
and was not mentioned by Svehlak in her testimony.
talk to someone about it, but Crabb left.23 Later that day, she
called the Hotel and talked with Food and Beverage Director
Linda Boulanger and told her that she had not quit and want-
ed to know if she had been fired. Boulanger told her that
Bair wanted to speak with her.
She came in on the following Thursday when Bair and
Calabrese were having an employee meeting. She testified
that she asked to attend, but was not allowed to do so. After
the meeting, she met with Bair who told her she was termi-
nated for using abusive language.
Merrill’s version is very similar to that of Crabb up to a
point. She testified that about midmorning, after having tried
to avoid Crabb when possible because of her attitude that
day, she was stopped by a customer who complained to her
of Crabb’s treatment of him and his son. He told her that
Crabb had slammed plates in front of him and told him she
was glad she was going home. Merrill apologized to the cus-
tomer and went to find Crabb. She found her in the pantry
and told her about the complaint and that her attitude was
unacceptable. Merrill testified that Crabb lost her temper at
this point and said:
This fucking restaurant fucking sucked. And she
thinks the buffet sucks, that she has her own fucking
opinion, and that she will tell me what her fucking
opinion is. And while she was pointing her finger at me
at this point, and Mary is taller than I am. And I was
more and more, very intimidated. She was screaming at
me. She said she had her fucking opinion and that she
would tell Mr. Calabrese.
Merrill told her she could tell Calabrese, but that she
would have to straighten up or go home. Crabb then went
to the restroom and returned in about 10 minutes. Merrill
told her that she was going home and Crabb agreed. After
Crabb had checked in her money, Merrill gave her a written
warning for acting in an abusive manner with abusive lan-
guage. Crabb signed the warning, without comment. Before
she left, Crabb attempted to cover her shifts for the rest of
the week, saying she could not work for the rest of the week.
Merrill then escorted Crabb out of the building.
Bair and Calabrese had lunch in the restaurant that day
and Merrill reported what had happened. Merrill testified that
she broke down and cried while telling them about it. Later
in the day, Bair called her into his office and they discussed
the incident. Bair testified that he decided to terminate Crabb
because she had been grossly insubordinate and abusive to
a manager, both in words and action.
Although the General Counsel did demonstrate that other
employees had been insubordinate to a supervisor and not
fired for it, discussed more fully with the matter of Roger
Sauvageau’s termination, and though he demonstrated that
off-color language was used in the Hotel, though not the
word ‘‘fuck,’’ I do not believe Respondent violated the Act
by terminating Crabb. Unlike Sauvageau, Crabb was neither
engaging in protected activity nor was it shown she was
known to be a union supporter by credible evidence. Having
heard the testimony of both witnesses, I credit that of Merrill
with respect to the incident. Crabb’s problem with anger had
been noted in her performance review which predated the al-
leged conversation with Merrill on January 11. She admits
she was both angry and rude on the day of the incident and
admits using abusive language toward Merrill, though not to
the degree noted by Merrill. Crabb’s testimony about the in-
cident was less than candid in my opinion. She testified that
she did not read the warning given her that day, though she
signed it. She testified that Merrill accused her of being for
the Union and that she met with Eliza Svehlak on the Mon-
day following the incident, two incidents which are not sup-
ported by her affidavit or other testimony.
Lastly, the General Counsel points out that Crabb’s em-
ployee termination review states she resigned when in fact
she was terminated and has a less favorable review of
Crabb’s performance than her performance review of about
a month earlier. The termination review was prepared on
January 15, the Monday following the Saturday incident
when Crabb did not report to work. At that time Respondent
could easily have thought that Crabb had quit. The comment
section of this report is less than complimentary as it reflects
the Saturday incident.
In conclusion, I do not believe that the General Counsel
established that unlawful motivation played any part in the
discharge of Crabb and that Crabb’s behavior with customers
and Merrill on January 13 provided ample justification for
her termination.
3. Employee meetings in January and
Employer’s postings
Respondent held a number of employee meetings during
the course of the union campaign to give employees its posi-
tion with respect to the Union, which was clearly against it.
The Hotel has the right to express its position in this regard
so long as it does not make promises or threats to the em-
ployees. There is no allegation that the bulk of what was
communicated by Respondent to its employees was unlawful.
Calabrese generally conducted these meetings and read from
a prepared text. The prepared speeches were available as evi-
dence but not entered into the record, evidently because the
General Counsel did not find them to contain unlawful state-
ments. However, several witnesses testified that Calabrese on
occasion departed from the prepared speeches and engaged
in question-and-answer debates with the assembled employ-
ees. On these occasions, it is alleged that he made statements
which did violate the Act. Additionally, it is alleged that the
Respondent posted various documents which are violative of
the Act and used an incident where an employee felt threat-
ened by the Union to unlawfully disparage the Union.
a. Statements made at employee meetings
Grace Kelley testified about a meeting she attended in Jan-
uary together with Barbara Racine and Laurie Grenier. She
recalled that Calabrese spoke about how much money the
Union would make if it was voted in, and how much the
Union would cost the employees, mentioning an initiation
fee. Kelley asked him a question about the Hotel’s managers,
mentioning that she had had a problem with one. Calabrese
said that if she had problems she could see him later.
With respect to what Lauri Grenier and Barbara Racine
said at this meeting, Kelley testified she could not recall
much because she had her children with her and they re-
quired much of her attention. She did remember both women
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Calabrese denied vigorously using the word ‘‘firebomb’’ in his
presentation. I credit his denial. Reference to the text from which he
was reading shows a word blacked out where this word would have
been used. Counting the spaces contained in the blacked out portion
indicates a 10-letter word was used. I believe the word used was
‘‘threatened’’ as it is a 10-letter word and is consistent with the rest
tried to speak and ask questions, prompting Calabrese to say
that they were taught by the Union to interrupt him so that
he would lose his train of thought, look stupid, and not know
what he was saying.
At the close of the meeting, she and five or six other em-
ployees met with Calabrese and Bair at the podium. She re-
calls again raising the problem of managers and asked if the
employees could meet with the managers to talk about prob-
lems. Calabrese said he would not put his managers through
this process. She remembered nothing of what any other em-
ployee said at the podium.
She attended another meeting with coemployee Debbie
Wilroy. At this meeting, Calabrese talked about hotels going
on strikes when they are unionized. The transcript is garbled
at this point, it reads:
He said that all hotels on strike when they’re union-
ized. He said that all hotels on strike and that if we
went to have a union, he said we—I’m not saying that
we would be negotiated, and if we didn’t negotiate,
we’d have a strike, and then your jobs would not be
guaranteed when you came back, when the strike as
over.
He also said that he could get temporary employees to
take the strikers place, and your job may not be guaranteed
when you come back. She asked him if he had a list of ho-
tels that went on strike, and he said no, but there is a whole
bunch. He indicated he would get her a list later.
I fully credit Kelley’s testimony with respect to the meet-
ings she attended and can find nothing in her testimony
which establishes an unlawful statement by Calabrese.
Laurie Grenier attended two employee meetings addressed
by Calabrese. The first was in January with Kelley and
Racine. She testified that Calabrese made a speech and gave
a slide presentation dealing with union fees and the closing
of the Hartford Hilton. After the set presentation, Calabrese
opened the meeting up for questions. Grenier testified that
she stood and introduced herself as a member of the union
organizing committee and told him his presentation about
union initiation fees was incorrect, pointing out the correct
information and arguing with his questioning how much
union officials made.
She testified that someone next to her yelled that if she
was not happy at the Hotel, why didn’t she go to work else-
where. She replied she worked at the Hotel out of choice and
was trying to make things better at the Hotel. She testified
that Calabrese chimed in saying, ‘‘That’s right you do have
a choice. You have a choice. You could leave.’’ Another em-
ployee stood and made a speech against the Union. Calabrese
then said, ‘‘I want everybody to just listen to what she said,
that’s what we should listen to, and not Ms. Grenier.’’
Grenier then testified that she said how unfair this was, that
‘‘you’re talking about running a fair election. We don’t have
a fair election. I can’t even hang a paper up that isn’t taken
down a half hour later. You hang yours under glass, and you
think that’s a fair election? You can have your person speak
and tell everybody to listen to her, that’s not fair. That’s not
a fair election. I don’t think you’re being fair to us.’’ Having
heard this testimony and that of Calabrese, I generally credit
Grenier’s testimony as set out above. Calabrese testified that
he cut off the employee suggesting that Grenier could leave
the employ of the Hotel. Having heard him testify, I find it
far more credible that he supported the suggestion that she
leave.
Calabrese said that she had his permission to hang papers
wherever she was hanging them at the time.
She also recalled saying to Calabrese and the assembled
employees that all the employees wanted was to be fair, to
have a place to work that was nice and good. ‘‘We just want
to get to a point where we can negotiate with you, to sit
down.’’ Calabrese replied, ‘‘I’ll never negotiate with the
Union.’’ Grenier then said, ‘‘But Mr. Calabrese, if it’s voted
in you have no choice but to negotiate.’’ Calabrese said, ‘‘I
can prove that this hotel doesn’t make any money, and I
don’t have to give you anything.’’ I do not credit this testi-
mony. No other witness to the meeting remembered anything
like this happening. This statement by Calabrese would have
had a shocking effect if uttered in the meeting, and yet only
Grenier testified that she remembered it. I find her memory
faulty in this regard.
Grenier remembered Grace Kelley saying that she went
out of her way to get somebody to replace her when she was
sick and got in trouble for it. ‘‘And you don’t care, Mr.
Calabrese, that I got somebody to replace me, all you cared
about was who I got to replace me, that’s not fair.’’
Although she remembered Racine speaking, she did not re-
member what she said. She went to the podium at the end
of the meeting and her testimony indicated she asked the
same question about managers as Grace Kelley indicated she
had asked. She recalled Kelley, Racine, Svehlak, and Munier
Odeh, a dishwasher, were also present. Grenier could not re-
call what Kelley or Racine said at the podium. Grenier said
she looked at Munier Odeh, and asked if he wanted a Union.
He said yes, and Calabrese said, ‘‘I won’t let a union in this
hotel. I’ll sell the hotel before I let a union in here.’’ This
statement is not in Grenier’s affidavit given to the Board
about this meeting. I do not credit this alleged threat by
Calabrese, which is also mentioned in the testimony of
Racine. It was denied by Calabrese and Bair, and was not
confirmed by Svehlak or Kelley, both of whom were at the
podium and testified. Again, a statement this shocking would
not go unremembered if uttered.
Grenier recalled nothing else about the meeting. After the
meeting, she posted a paper saying there was no union initi-
ation fee, what the dues were, and everything else in the
meeting. She testified this was taken down almost imme-
diately by a member of Respondent’s management, Doug
Piel. She told him that Calabrese had given permission and
he left. He returned shortly, apologized to her and reposted
the paper.
She attended another meeting shortly before the election.
She testified that Calabrese, opened the meeting saying he
had intended to make a speech but tragic events caused him
to change everything. She testified that he said the tragic
event was the fact that an employee was threatened by the
Union that his house would be ‘‘firebombed’’ for not signing
an authorization card.24 He continued to state that in re-
337SHERATON HOTEL WATERBURY
of the text, which used some form of the word ‘‘threat’’ again and
again.
25 As was the case with Sauvageau, I feel it necessary to comment
on the appearance of Traber. He is a slight person with a friendly
demeanor and I find it difficult to believe he could be physically or
otherwise intimidating.
sponse he had hired police to patrol the outside and inside
of the Hotel for the employees’ protection against the Union.
He shut the meeting down at this point and would take no
questions. This meeting and the Respondent’s actions regard-
ing the alleged threat will be discussed separately.
Barbara Racine testified about the January meeting she at-
tended with Grenier and Kelley. She remembered the presen-
tation about initiation fees and union salaries and Grenier
challenging those statements. She testified that Grenier said
that some things at the hotel should be changed, to which
Calabrese replied that if she was not happy at the Hotel, she
could leave.
Racine testified that she spoke at the meeting, identifying
herself as an organizing committee member. She said there
were problems at the Hotel and the employees needed a
voice. She testified that Calabrese interrupted her and said
that the Hotel gives her the opportunity to work there and
she should be happy with that. Another employee spoke up
against the Union and Calabrese did not interrupt this person.
Racine went to the podium after the meeting and remem-
bers Eliza Svehlak speaking to Calabrese, and then getting
upset and crying. Laurie Grenier was saying ‘‘come on,
come on, it’s not worth it.’’ Grenier then said that they want-
ed Roger (Sauvageau) to come back to work, and Calabrese
said that Roger will never work at the Hotel again. She testi-
fied that Grace Kelley then brought up the manager problem
and requested that the employees meet with the managers.
Calabrese said he would never put his managers through that.
Racine testified that she then said that is why the employees
need a union, because when you come to Calabrese with a
problem, the answer is no right away. She stated that
Calabrese then said there would ‘‘not be a union in this
Hotel,’’ it’s my Hotel, that he would sell the Hotel first. This
is all she remembers about the meeting. As noted with the
testimony of Grenier, I do not credit the assertion that
Calabrese threatened to sell the Hotel if the Union was voted
in.
At another meeting, the matter of Roger Sauvageau was
brought up and Calabrese said he was right in firing him.
Racine said that if he was right, why was Sauvageau award-
ed unemployment compensation. She testified that Calabrese
flew off the handle and ran over to her, going on and on
about how he was right. Bair came over and quieted
Calabrese.
Eliza Svehlak testified about the meeting that Grenier,
Kelley, and Racine attended together, but did not mention
any of the critical things they testified happened.
In all the testimony discussed above, the matter of the
Union’s alleged threat to an employee aside, I find only the
seconding of the antiunion suggestion made by Calabrese to
Grenier that she could leave the employ of the Hotel if she
were not happy to be in violation of Section 8(a)(1) of the
Act. At best, the comment leaves the impression that union
supporters are not welcome at the Hotel and appears to me
to be an implied threat that union support could result in re-
taliation, including loss of employment. Grove Truck &
Trailer, 281 NLRB 1194, 1195 (1986).
b. The alleged union threat and Respondent’s response
As noted above, Respondent just before the election ac-
cused the Union at an employee meeting of threatening the
person and property of employees and engaged police to pa-
trol the Hotel as ‘‘protection’’ from the Union of the em-
ployees and their property. I seriously agree with the General
Counsel that this was done not in a reasonable response to
the underlying incident, but as a calculated tactic to under-
mine support for the Union. In discussing this matter, I will
set out only the testimony most in support of Respondent’s
position, as this would have been the evidence on which it
relied. Traber gave his version of the incident, but it would
not have been known to the Hotel at the time it acted.
Louise Theriault and her husband, Ernest, are both em-
ployees of the Hotel. In January 1990, their home was visited
by Union Representative Rob Traber.25 L. Theriault testified
that Traber arrived at their home with her mother-in-law,
whom Traber had picked up. Traber had previously asked to
talk with the Theriaults in a phone conversation but had been
informed that it would be useless as they did not want to
sign authorization cards. On the day in question, however,
Traber was allowed into their home.
L. Theriault testified that Traber said they had a nice
home, nice car, nice grandchildren, and a comfortable way
of life. As he talked, he asked on several occasions that they
sign an authorization card. The Theriaullts continued refusing
to sign. After about 2 hours, L. Theriault told him there was
no point in him staying longer because they were not going
to sign. She said that Traber then said, ‘‘Well, you wouldn’t
want anything to happen to your grandchildren,’’ referring to
their picture and mentioning again their comfortable lifestyle.
She testified this gave her fear and she was afraid to go to
work the next day.
She mentioned this incident to other employees at the
Hotel, wondering if they had also been visited by Traber.
She was subsequently summoned to Calabrese’s office where
he asked her what happened and if she would feel better if
there was police protection at the Hotel when she came to
work. She indicated to Calabrese she was thinking of taking
time off out of fear. Calabrese then called the police and a
detective arrived who took a statement from L. Theriault.
This statement reads:
On Saturday Jan. 20, 1990 the writer Det. O’Leary
received a complaint from a Mr. Joseph Calabrese who
is the owner of the Sheraton Hotel in Waterbury. Mr.
Calabrese stated that his hotel is in the middle of a pos-
sible union take-over, and several of his employees
have complained to him that they are being threatened
and harassed by associates of the Restaurant and Hotel
Local 217 which is based out of New Haven.
Mr. Calabrese then introduced me to a Louise
Theriault who lives at [address omitted], with her hus-
band Ernest. Both Louise and Ernest work at the Shera-
ton. Ms. Theriault stated that on Friday Jan. 19, 1990
she was at home and at approx. 3:00 pm Ernest came
home from work and pulling into the driveway right be-
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Although it is really not necessary to this discussion because
Respondent did not explore the matter further, I do not find that
Traber threatened the Theriaults and do find that they misinterpreted
some of his statements.
hind Ernest was a Rob Traber who is a union represent-
ative. Ms. Theriault stated that Traber came into their
home and asked what their intentions were concerning
the upcoming union vote. Both Louise and Ernest stated
that they were not interested in the union at which time
Traber stated to them they they [sic] had a nice house
and car and that it would be a shame if something hap-
pened to the house and car. Traber then looked at pic-
tures of their grandchildren which were on the wall and
Traber stated they were very nice looking children.
Traber then left.
Mr. Calabrese then introduced me to another em-
ployee named John Rolandi who stated that he received
an anonymous call at home on 1/18/90 and the caller
stated that if he voted against the union his car would
be damaged. Mr. Calabrese asked that a record be made
of these incidents and Ms. Theriault was advised to
contact this writer if she or her husband received any
more threats.26
Calabrese testified that he was at the Hotel on January 20
and heard about the incident through the Hotel ‘‘grapevine.’’
He called in L. Theriault and subsequently called the police
who took her statement. The next day, Sunday January 21,
1990, Calabrese hired Waterbury police to patrol the hotel
parking lot on a 24-hour-a-day basis. On Monday, January
22, 1990, Calabrese had a meeting with about 50 employees,
which is noted above in Grenier’s testimony. The speech he
gave at this meeting, some 2 days prior to the election states
in part:
I didn’t say anything when the Union attacked me
personally, but when they start threatening our employ-
ees, I draw the line. By now most of you have heard
about how this union and Mr. Traber have threatened
to harm and [sic] employee’s family and threatened
their property. (Repeat) I understand that Mr. Traber is
denying this, why would any employee make a state-
ment like this and be so upset, if it were not true.
Also over the past few weeks other employees have
told of threats and intimidation by the union. Next time,
it could be you they threaten, what kind of people are
they?
It makes me very angry that these people are intimi-
dating our employees and using threats of violence and
scare tactics to get votes. This is not legal and I have
informed my lawyer of the incident and we are discuss-
ing the filing of a charge of unfair labor practice
against Local 217 with the National Labor Relations
Board.
Also starting yesterday, we have 2 policemen patrol-
ling the parking lot all day and night in response to the
Union’s threat of what will happen at the hotel. I guar-
antee that we will protect our employees anyway that
is necessary. I can’t believe that in this country such
threats and coercion can be used to force a decision on
someone against his will. This is not Russia or China,
this is the United States. All people still have the free-
dom of choice—not only the Union people.
By all their latest actions this union has shown what
it is really all about. Verbally abusing people and
threats of intimidation they are trying to gain access to
this hotel by any means. Just think what they would do
to a member that disagreed with them, if they are
threatening employees just to get a vote.
These tactics have so angered and upset people that
a majority of you have voluntarily told me you want no
part of the Union.
Calabrese also testified that when the Theriault incident
took place, he learned that ‘‘many employees—some em-
ployees that were for the union at that point changed their
minds.’’ He contends that this was learned from employees
coming forward and volunteering this information. Though
he contends that all such messages were given to him prior
to his speech, I question his memory on this point as he was
shown to be very poor at remembering dates of events.
Moreover, even prior to the speech, he lent total credibility
to the alleged Theriault threat by hiring police to patrol the
Hotel.
The only ‘‘threats’’ that Calabrese could recall were those
set out in the Theriault statement to the police and the tire
slashing ‘‘threat’’ some time earlier attributed to Svehlak.
Contrary to his statement in his speech, I cannot find that
there was any documented threat to the Hotel. The police
were not hired to protect Theriault’s home or to escort her
and her husband to and from work. They were in instead
placed at the Hotel on a 24-hour basis where they would
have maximum visibility and serve as a constant reminder
just prior to the election that Traber and the Union were a
threat to their persons and property.
I do not believe the Theriault ‘‘threat’’ in any way justi-
fied the extreme and instant response taken by the Hotel. I
fully believe that it just provided the opportunity for the
Hotel to make a dramatic, inflammatory, and largely un-
founded attack on the Union’s credibility. I find that the
statements made by Calabrese in this regard, together with
his hiring of the police just before the election, were made
with the intent of disparaging the Union and undermining
support for it, in violation of Section 8(a)(1) of the Act.
Kawasaki Motor Corp., 257 NLRB 502 (1981); Taylor Chair
Co., 292 NLRB 658 (1989); F.W.I.L. Lundy Bros. Res-
taurant, 248 NLRB 415, 422–423 (1980); Lehigh Lumber
Co., 230 NLRB 1122, 1125 (1977).
c. Alleged unlawful postings
In December 1989, the Hotel posted the following state-
ment about Roger Sauvageau:
The Company has learned that the local office of the
National Labor Relations Board will be issuing a com-
plaint against the Company regarding Roger Sauvageau.
The primary allegation of the complaint will be that the
Company discharged Mr. Sauvageau because of his
union activities.
The Company denies each and every one of these al-
legations. It is important for you to note that there has
been no finding by a judge that the Company is guilty
of violating the law. Rather, all that exists at this point
339SHERATON HOTEL WATERBURY
27 The matter of majority support is discussed in detail at a later
point in this decision in relation to the matter of issuing a bargaining
order.
is a set of allegations against the Company. Allegations
which the Company will prove are false at a trial to be
scheduled in approximately four months.
We remain convinced that the only reason this com-
plaint was issued is because Mr. Sauvageau and the
Union lied about the circumstances of his discharge.
Our lawyers have told us that these lies will be exposed
at trial when we will have the opportunity to cross-ex-
amine Mr. Sauvageau and his supporters and present
our side of the story before an independent judge in a
court of law.
Mr. Sauvageau was discharged on November 30,
1989. He has not worked at this Hotel since that time
and we know we will prevail and that he will never
work here again. If you have any additional questions
regarding this matter, please do not hesitate to contact
us.
We feel it is important for you to know the Hotel
is in the process of taking legal action against the Res-
taurant Worker’s Union. The Restaurant Worker’s
Union has threatened, intimidated and coerced Hotel
employees in an effort to force them to join the union
so they can replace the dues paying members they lost
when the Hilton Hotel closed this month in Hartford.
An independent judge has now found that the Hotel did
fire Sauvageau for engaging in activities on behalf of the
Union and thereby the Hotel has threatened, intimidated, and
coerced its employees to dissuade them from joining the
Union. By posting this letter to employees, I find that Re-
spondent was reminding its employees of its unlawful action
and reinforcing the message it sent by firing Sauvageau in
the first place, that it can get rid of union supporters. Ac-
cordingly, I find that the posting is at least an implied threat
of reprisal for union support and violates Section 8(a)(1) of
the Act.
In January 1990, Respondent distributed flyers throughout
the Hotel and posted large versions entitled ‘‘IS THIS
UNION JOB SECURITY?’’ and had two newspaper clip-
pings about the Parkview Hilton and Summit Hotel closing
in Hartford. Underneath it said ‘‘DON’T LET THIS HAP-
PEN HERE! VOTE NO!’’
One clipping states ‘‘Summit Plans Layoffs, Closing of
hotel bar, restaurant to affect food service staff.’’ The other
has a headline which reads: ‘‘Hartford Hotel Closes Doors.’’
The article, which follows, reads:
The Parkview Hilton, one of Hartford’s most ac-
claimed modern buildings when it opened 35 years ago,
has quietly closed its doors, perhaps for the final time.
The 16-story, 382 room metal-and-glass hotel closed
Sunday. Its current owner, Chase Enterprises, had an-
nounced in the fall that it would either sell or close the
unprofitable hotel by New Year’s Eve. The develop-
ment firm later said several buyers were interested in
the site—overlooking Hartford’s Bushnell Park—but no
one came forward to buy the hotel itself. The hotel,
which opened as The Statler in 1954, has been through
several changes of name and ownership and was even
closed briefly in 1981 and 1982 for renovations. The
Parkview boasted the biggest ballroom in the state, with
seating for up to 1,200 diners. Newly elected Connecti-
cut governors often ate breakfast at the hotel before
walking across Bushnell Park to be inaugurated at the
Capitol. But the Parkview suffered in competition with
two newer downtown hotels, the 400-room Sheraton
and the 287-room Hotel America, now known as the
Summit. The opening of the J. P. Morgan Hotel in De-
cember further weakened the Parkview’s position. At
the time of its closing, the hotel had about 200 employ-
ees.
Nothing in the headlines or the text suggests that unioniza-
tion played a part in the two hotels’ problems. Although the
bold print on the flyers taken together with the headlines of
the clippings might imply a connection between the two, the
article itself makes no such connection. I do not believe this
flyer represents such a degree of misinformation that it con-
stitutes an unfair labor practice. EDP Medical Computer Sys-
tems, 284 NLRB 1232, 1264 (1987).
C. Conclusions with Respect to Respondent’s
Preelection Conduct and Direction of Second Election
I have found that in the prepetition period Respondent en-
gaged in unfair labor practices and objectionable conduct by
issuing written warnings to and discharging Roger
Sauvageau, and issuing warnings to Eliza Svehlak. In the pe-
tition period, I have found that Respondent has engaged in
unfair labor practices and objectionable conduct by posting
an unlawful notice rebroadcasting its discharge of Sauvageau
and its intent never to rehire him, by discriminatorily reduc-
ing the hours of Hector Echeandia, by discriminatorily taking
Cesar Berrera off the work schedule for 1 week, by assigning
Svehlak to clean rooms on election day, by impliedly threat-
ening an employee with retaliation for supporting the Union
in an employee meeting, and by disparaging the Union just
before the election by overreacting to the alleged union threat
to the Theriaults and using police patrols to give the impres-
sion that the Union posed an immediate danger to the em-
ployees and their property. Given the fact that the Union en-
joyed majority support among the Hotel’s employees27 as of
December 14, 1989, yet lost the election, I believe the Re-
spondent’s unfair labor practices and objectionable conduct
played a significant role in the election process. As that proc-
ess was significantly tainted by the Respondent’s unlawful
activity, I will recommend that a second election be directed.
D. Postelection Conduct
It is alleged that even after the election which was won
by the Hotel, it continued in its desire to rid itself of known
union activists. The complaint alleges that Barbara Racine,
Laurie Grenier, Grace Kelley, and Eliza Svehlak were all tar-
gets of Respondent’s continuing unlawful motivation. These
allegations will be discussed below. For the reasons given
hereinafter, I believe that the Hotel waited for a few months
after the election and then took steps to rid itself of some
of the most outspoken union activists still on its payroll. Al-
though I am persuaded that its hotelwide layoffs, cutbacks,
and reductions in November, December, and January appear
legitimately motivated by economic factors, I am equally
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Regardless of any antiunion sentiments harbored by Merrill and
their effect on her relationship with Racine, there is ample evidence
in the record that the two women had a serious personality conflict
which predated the union campaign. Racine especially did not like
or respect Merrill and their dealings with one another were strained.
persuaded that its actions in the spring of 1990 were moti-
vated solely by union animus and were unlawful.
1. Layoffs and loss of hours in the restaurant
The complaint alleges that Respondent unlawfully termi-
nated Barbara Racine in or about April 1990; unlawfully re-
duced Grace Kelley’s hours in or about April 1990; reduced
the number of scheduled workdays on its part-time waiters
and waitresses from three to one on or about April 1990; and
terminated Laurie Grenier in or about April 1990. Respond-
ent contends that each of the three involved waitresses actu-
ally quit their employment and that it did not reduce the
hours or scheduled days as alleged. Its explanation for
changes in schedules follows.
As discussed above, Respondent determined in mid- to
late-December 1989, that in allocating the hours to its PM
restaurant servers, full-time restaurant servers would receive
their hours first and then the remaining hours would be di-
vided among the part-time restaurant servers. The Hotel gave
three reasons for this decision: (1) consistency of service; (2)
maintaining of an established work force sufficient to cover
most of the shifts; and (3) ease of scheduling. The applica-
tion of this decision resulted in the layoff and/or termination
of a number of part-time restaurant servers in December
1989.
By mid to late March 1990, the Hotel contends it was
again faced with a problem concerning the scheduling of its
PM restaurant servers. Two of its experienced full-time res-
taurant servers, Ray Putinas and Deborah Wilroy, had quit in
February. In addition, one of the other full-time servers, Judy
Sidorick, was having recurring problems due to a car acci-
dent and could not work for several weeks in March and
then worked primarily part time. Grenier and Racine had re-
quested to switch from full-time to part-time status in early
March. By mid-March, the Hotel had no regular full-time
restaurant server. Patrick Lien was hired in early March on
a part-time basis with the expectation that he would go to
full time in the summer. Morgan Morris, another full-time
restaurant server, was not hired until late March. In addition,
by the end of March, the Hotel’s business was beginning to
increase slightly over the previous months so that there was
a need for more PM servers at the Hotel.
The PM restaurant manager, Melinda Merrill, was faced
with a scheduling problem. She had no full-time staff on
which she could rely to work most of the shifts and she had
to juggle the hours among a variety of part-time employees.
Thus, Merrill indicated to her supervisor, hotel food and bev-
erage director Linda Boulanger, in late March, that steps had
to be taken to remedy the situation.
After discussing the situation, Boulanger and Bair decided
that the best approach was to maintain a preference for full-
time employees. Since it made more sense to ask some of
its current employees to go full time instead of hiring addi-
tion outside people, the decision was made to ask two of its
existing part-time employees, Stacy Boutot and Susan
Vaughn, to work full time. Both were asked and agreed to
go full time.
By the end of April, the Hotel had returned to full strength
in terms of its full-time staff. Sidorick had returned from her
accident and worked close to full-time hours for several
weeks before she eventually left the Hotel. Boutot and
Vaughn had committed to go full time in the weeks ahead.
Similarly, Lien had committed to go full time for the sum-
mer. Finally, Morgan Morris and Johanna Lia had been hired
to work on a full-time basis. The Hotel contends that consist-
ent with its practice, these full-time employees were given
the bulk of the hours and whatever hours were left were
given to the part-time employees. With a complete full-time
work force, there were only so many hours available for the
part-time employees and the number of shifts available to the
part-time employees varied anywhere from one to three dur-
ing this time.
The Hotel denies it reduced the number of scheduled shifts
for its part-time restaurant servers from three to one. The
Hotel contends it continued its practice of scheduling the
hours for its full-time employees first and its part-time em-
ployees second. It denies that there was a deliberate attempt
to reduce the shifts for part-time employees from three to
one solely because Grenier, Racine, and Kelley were part-
time employees. It contends that Racine and Grenier simply
complained the first time that they were scheduled for only
one shift and requested to be let go at that time.
Respondent’s reasoning as set out above sounds plausible
on its face; however, there are a number of significant ques-
tions left unanswered as will be shown below in the discus-
sion of the evidence relating to the three discriminatees.
Foremost among these questions is why they were never of-
fered the option of going to full-time status when they were
the most senior of the part-time servers. Why were they
never offered this option before new employees were hired,
a practice that the Hotel itself argues does not make good
sense. Why were their termination papers dated far beyond
the dates they actually left, and finally, why did not Linda
Boulanger, who actually made the decisions respecting the
PM restaurant servers, fail to testify. I am convinced that the
answer to each of these questions is simply that the reasons
advanced by Respondent are pretextual and the sole aim of
the scheduling changes was to eliminate the discriminatees,
an aim which Respondent accomplished.
a. The terminations of Laurie Grenier and
Barbara Racine
The circumstances surrounding each of the discriminatees
varies somewhat, so evidence related to each will be given
in some detail. First to be discussed are Laurie Grenier and
Barbara Racine, as noted earlier, organizing committee mem-
bers and frequent debaters of Calabrese in the employee
meetings held by him. After the election, Laurie Grenier re-
turned to her full-time schedule of four shifts. Barbara Ra-
cine’s hours increased only to three nights, less than the four
normal to a full-time employee.
Both Racine and Grenier were given evaluations in March
1990. Lisa Brodeur and Merrill, who together were the A La
Carte restaurant managers, gave one to Racine on March 7.
It was dated, however, November 14, 1989. Merrill testified
that, in fact, she had filled out the evaluation, but had avoid-
ed giving it to her in November because it was going to be
an unpleasant experience.28 The time when it was supposed
341SHERATON HOTEL WATERBURY
I have taken this fact into consideration when determining whether
Respondent’s actions with respect to Racine were lawfully moti-
vated. Respondent urges that similar ill will existed between Kelley
and Grenier on the one hand and Merrill on the other. I do not find
that the facts support this. Any problems they were shown to have
with Merrill were directly related to their union activity. In any
event, Merrill had nothing to do with the events which resulted in
the terminations of the three restaurant servers. That was all the
doing of Food and Beverage Director Boulanger, Hotel Manager
Bair, and Restaurant Manager Brodeur.
to be given, her anniversary date of November 14, was in
the midst of the union organizational effort.
Brodeur went over the evaluation with Racine. She told
her that the quality of her work was excellent, she was a
very strong waitress, that she was there all the time, they had
no problems with her on the floor, and she worked a lot of
extra shifts when she was needed. The only problem was her
poor attitude, that she questioned management. Racine
laughed and said that was what the whole thing with the
Union was about. Brodeur just smiled in response. The eval-
uation noted that Racine received many excellent comments
from the guests. It noted, however, that she complained con-
sistently about management to her fellow employees which,
in turn, made many of them feel uncomfortable.
In the past, Respondent had posted positive comment cards
about Racine in the pantry. Bair spoke to her at least twice
and told her that she was doing a good job, and he received
the most and nicest comment cards about her from cus-
tomers, and encouraged her to keep up the good work. She
was twice nominated to be Employee-of-the-Month.
Laurie Grenier received two evaluations in March 1990.
First, Restaurant Manager Sam Preston gave her one that
graded her ‘‘excellent.’’ He noted that she had been ‘‘valu-
able to the PM staff,’’ both as a server and a trainer. He
noted that she helped wherever needed and comes in when
asked to. He noted that sometimes her ‘‘attitude’’ needed
‘‘adjusting,’’ but that is to be expected. He noted that she
sometimes gets upset by others and this can affect her work.
‘‘Overall, Laurie is a solid and valuable employee.’’ Preston
indicated to her that he was happy with her work, but that
her attitude needed work.
Within a few days, Grenier was called to Linda
Boulanger’s office, where Boulanger informed her that the
first evaluation was no longer any good, that she felt Preston
could not give her an evaluation because he did not know
her like she did, and that she was going to give Grenier a
different evaluation. Grenier objected that she did not feel it
was right, that Preston was her boss, and she had to approve
it. Boulanger said that she was better qualified than Preston
because she knew her longer. She then told Grenier that she
was a good worker and never had any problems, but she had
a ‘‘poor attitude,’’ which needed to be changed. Grenier said
it was pretty obvious why she had a poor attitude, with ev-
erything that had gone on in the last 6 months, that it was
pretty hard not to feel pressure with everything that was
going on. Boulanger said that ‘‘regardless,’’ this was the way
she felt, and it had to be said.
The evaluation noted that she had ‘‘excellent skills’’ and
‘‘continually gets favorable comments from customers.’’ The
classifications were all graded ‘‘excellent,’’ except for ‘‘atti-
tude’’ and ‘‘involvement,’’ which were deemed ‘‘poor.’’ It
also said she had problems with other employees. Grenier
had received an evaluation previously, which noted that she
‘‘is always positive,’’ and wanted her to be ‘‘actively in-
volved with the development of new personnel.’’ In fact, she
was made shift leader in July 1989, and was responsible for
training new waitstaff. She had won several awards for sales
among the waitstaff. Bair and Calabrese had both praised her
work when she waited on their tables in the restaurant.
In early March, Grenier asked Merrill if she could go to
part-time status. Merrill said fine, and Grenier went down to
3 days on the schedule. She made the request because she
no longer needed the benefits associated with full-time status,
and she wanted to try to expand her own insurance business
at home.
In mid-March, Racine spoke to Merrill. She told her that
because her nights had been cut, and because of the incidents
where they had called up and taken away her shift, that she
had lost a lot of money and was forced to go out and get
a daytime job. Therefore, she was requesting that she go to
2 nights on the schedule. She told Merrill that she was al-
ways willing to come in for an extra night if they needed
her. Merrill said there would be no problem with that.
Around the time when Grenier and Racine made
theserequests, the Hotel hired new servers for the PM
waitstaff, who were each working part time. Stacy Boutot
was hired on February 21, 1990. Patrick Lien was hired on
March 7, 1990, and worked part time until June when he be-
came full time. Bair testified that Lien was hired with the
understanding that he would go full time after he had passed
his exams.
The record shows that the week ending March 11, an em-
ployee named Sharon was tried out as a waitress on the
evening shift, but preferred working as a cocktail waitress.
Respondent continued hiring waitstaff for the evening shift in
the restaurant. Morgan Morris was hired on March 19. Adri-
enne D’Amato was hired on March 26, and worked only one
shift.
In April, Linda Boulanger instructed Merrill to offer full-
time employment to Sue Vaughn and Stacy Boutot, both of
whom were working part time. Bair explained that he and
Boulanger had decided to ask some part-timers to go full
time, and to hire new full-time employees for the PM
waitstaff. He testified that they felt ‘‘some’’ part-time em-
ployees had ‘‘potential of going full-time,’’ and ‘‘it would be
easier for us to do that than hire all new people and train
them.’’ Bair testified that he and Boulanger considered
‘‘availability and flexibility with their overall ability.’’ He
admitted that he had no firsthand knowledge as to the avail-
ability and flexibility of the employees, and said he relied on
his manager’s information.
Boulanger was not called to testify though she is still em-
ployed by Respondent. There was no testimony, therefore,
from the manager who apparently made the determination as
to why two relatively recent hires, Sue Vaughn (September
1989) and Stacy Boutot (February 1990) were considered
more ‘‘flexible’’ or ‘‘available’’ than Barbara Racine, Laurie
Grenier, or Grace Kelley; or why these latter three were not
considered being offered full-time work rather than hire new
full-timers. Although on brief, some disparaging comments
are made about the skills and attitudes of Grenier, Racine,
and Kelley, there is nothing in their performance reviews
given prior to their terminations which would support these
comments. Respondent also calls into question the credibility
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of Grenier and Racine. I credit their testimony about their
postelection treatment as it appeared credible and most of the
testimony, even that harmful to Respondent, was not in any
fashion rebutted. I also draw an unfavorable inference from
Respondent’s failure to call Boulanger, the person with the
most knowledge about Respondent’s postelection actions
with respect to the three discriminatees here involved.
Racine discovered in April that she had been dropped
down to one shift on the schedule. She went and questioned
Merrill about it, and said she thought they had agreed that
she would get two nights. Merrill said it was a slow period,
and walked away. The following week, Racine discovered
that she was completely off the schedule. She called Lisa
Brodeur and asked why she was not on the schedule for the
following week. Brodeur said it was slow, but she should
call about the following week’s schedule. Racine said she
wanted to speak with Bair, that they had taken her off sched-
ule because of the Union, and she would be filing charges.
She requested an appointment with Bair, and Brodeur said,
‘‘Fine.’’
Racine went to speak with Bair on April 26. When she ar-
rived, she met Morgan Morris, another p.m. server, who in-
formed her that they had asked him to be manager, and that
he ‘‘desperately needed’’ somebody to take his nights that
week. When Racine tried to speak to Bair, she was told that
he was in a meeting. While waiting for him, she walked
through the Garden Cafe and met Linda Boulanger at the en-
trance. She asked Boulanger what was going on with the
schedule, and why was she not on it. She told Boulanger she
wanted her two nights. Boulanger said it was slow, but that
next week’s schedule was not yet done, that she should call
in first. Racine said that others like Sue Vaughn and Judy
Sidorick still had their nights, why was she taken off? Bou-
langer responded that they were full-timers. Racine said they
had never offered Grace Kelley, Laurie Grenier, or herself
full-time positions. Boulanger did not respond to this. Racine
said that if that is what they are going to do, she wanted a
layoff slip. They proceeded up to accounting, and Boulanger
spoke to Ramin Hakim, the controller. They did not know
what to do and told her to wait outside. They returned and
gave her a layoff slip for just 1 week. Racine told Boulanger
that she was going to file more charges. Boulanger told her
to go ahead. As she left, she ran into Morgan Morris again,
who informed her that the schedule for the following week
had in fact already been prepared.
At the hearing, Respondent produced two documents relat-
ed to Racine’s termination. There was an unemployment no-
tice drafted bearing the date April 30, 1990, which stated that
the reason for leaving was voluntary departure. It came in an
envelope which said on the outside, ‘‘Dick Bair and Joe
Calabrese have not decided what they want to do.’’ Racine
had neve been shown the unemployment notice, and she did
not voluntarily leave.
Respondent also produced an employee termination review
which was signed on June 26, 1990, which stated, ‘‘re-
quested permanent layoff left.’’ It described her as a ‘‘con-
stant complainer,’’ and that she would not be rehired. Bou-
langer and Bair initialed it. It listed her as ‘‘poor’’ with re-
gard to four different job performance categories. Bair said
the effective date of the termination was April 19, 1990.
Racine had ever been shown this document.
Grenier saw in mid-April that she had been scheduled for
only one shift. She spoke to Lisa Brodeur and asked her why
she had been put from three shifts to one. Brodeur told her
she was out because they wanted to hire full-time employees.
Grenier told her that she wanted a partial unemployment slip
if they were only going to give her 1 day. Brodeur said he
would talk to Bair and get it on Monday.
Grenier spoke with Sue Vaughn and Stacy Boutot that
evening and asked if they had their hours cut. She learned
that Merrill had given them the choice of either going full-
time or being cut to one shift. They told her they were upset
because they did not really want to be full-time, but had no
choice.
Grenier called on Monday for Bair, but could not reach
him. She then spoke to Linda Boulanger instead on the
phone. Grenier was angry and asked why she had been cut.
Boulanger told her that they wanted to hire more full-time
employees. Grenier said, ‘‘I work three nights, full-time is
four. If you asked me if I had to work one more night to
keep my job, I would have worked it. You never asked me.’’
Boulanger repeated that they were looking for full-time em-
ployees, and ‘‘since you cut one night, we figured you’re
part-time.’’ Grenier said, ‘‘Yes, but you asked other part-
time people to go full-time. It doesn’t make any sense.’’
Boulanger didn’t respond to this point. Grenier told her that
she was going to file for unemployment.
On Tuesday, Grenier went to unemployment and filed for
benefits. Afterwards, she called the hotel and spoke with Yo-
landa, a payroll employee, and asked if she could come and
get her partial unemployment paper signed. Yolanda said she
was confused. She said that the Controller had said that
Grenier was looking for a voluntary quit slip, but Bair had
said she wanted a partial layoff. She said she could not do
anything until she found out what the story was. Grenier
asked her to call back, but she did not. Grenier called her
back to find out what was happening. Yolanda simply trans-
ferred her to Bair, who told Grenier that she thought she had
quit. Grenier said she never said she quit. She said she could
not live ‘‘if you were going to give me one day a week,’’
that she would collect partial unemployment. She said why
else would she be going through unemployment. Bair said
Brodeur had said she quit. Grenier said, ‘‘That’s so untrue.
It’s a misunderstanding. I don’t know how that happened,
that’s not true. The truth is I want a partial. You cut me. I
don’t understand why you cut me?’’ She explained to Bair
that she had been cut when she would have been willing and
able to work one more night. Bair said that because she had
been cut down to 1 day, he figured she was part time.
Grenier told him that other part-timers had gone full time,
they had had a choice, but he had never offered it to her,
and that meanwhile he was running an ad in the newspapers
for more waitresses. She said it was ‘‘very, very unfair.’’
Bair said he would get back to her in the morning.
Bair did not return her call. She called him and he said
that he had decided that she had quit, that he had reviewed
all the circumstances and that is what he felt. She told him
that she figured he would say that, that she had spoken to
unemployment and she would be filing charges there, and
with the Labor Board as well. Bair said, ‘‘Wait a minute.
You didn’t let me finish. You can have an option here. You
could be on an on-call basis, and collect unemployment.’’
Grenier responded, ‘‘That’s awfully funny. Five minutes ago
343SHERATON HOTEL WATERBURY
you said quit, and now you are offering me on-call with a
layoff.’’ Bair said yes. Grenier said fine. Respondent gave
Grenier her unemployment papers and never called her back
to work.
Bair testified at the hearing that Grenier has asked for a
permanent layoff, and that was why she was taken off the
schedule. He said that after he reviewed what had happened,
he felt that she had requested a permanent layoff and then
regretted it. He admitted that he really did not expect to call
her when he offered to put her on-call. There was no expla-
nation why she was not put back on schedule once she made
it clear that was what she wanted.
The record shows that Grenier last worked in the payroll
period ending April 29, 1990. Respondent placed in her per-
sonnel file an employee termination report dated July 17,
1990, which indicated ‘‘permanent layoff’’ due to ‘‘decrease
in business levels.’’ The scores in the categories of her job
performance were lower on this form than they had been on
her last evaluation.
Respondent hired Melissa Gibran the following week. She
only lasted 2 weeks. When asked why Grenier was not con-
tacted after Gibran quit, Bair explained, ‘‘Apparently there
was no need.’’ In fact, the record shows that a full-time bar-
tender, Todd LaMedeleine, filled in the following week for
one shift while Thomas O’Donnell was hired on May 16,
1990.
The record shows that Respondent continued to hire p.m.
waitstaff without ever contacting Grenier or Racine. Both
Bair and Merrill admitted that there was a lot of turnover in
the waitstaff. For the p.m. waitstaff, Angela Dihlman was
hired on July 28, 1990, and Cheryl Russell and Carol Geno-
vese were hired on August 20, 1990. In fact, among the var-
ious ads placed by Respondent for waitstaff over a number
of months was an advertisement run in August 1990 request-
ing ‘‘Servers and Table Bussers for the Garden Cafe, full or
part-time, experience preferred.’’ Moreover, reviewing the
weekly payroll records reveals that the so-called full-time
servers did not consistently work full time as claimed. For
example, while Sue Vaughn began working over 23 hours
per week in the payroll period ending April 29, 1990, by the
first week of June that pattern had already changed and she
dropped to 14.8 hours.
The record shows that beginning in June, Vaughn worked
over 20 hours only 6 times out of the next 20 pay periods,
while she worked less than 15 hours 6 out of those 20 pay
periods. Otherwise, she either did not work at all (twice) or
between 12 and 15 hours (six times). Similarly, beginning in
June, Judy Sidorick worked less than 15 hours 7 out of the
next 20 pay periods; between 15–20 hours 6 times; and did
not work at all twice. Only five times did she work more
than 20 hours. Another example is Stacy Boutot, who during
pay periods in September and October worked less than 20
hours every pay period but one, when she worked only 20.1.
Thus, reviewing the payroll sheets reveals there was no con-
sistency in the designation ‘‘full-time’’ by Respondent, and
waitresses continued in a pattern of fluctuating shifts.
In conclusion with respect to Grenier and Racine, I find
that they were terminated by Respondent for engaging in
protected union activity in violation of Section 8(a)(1) and
(3) of the Act. Even if one accepts Respondent’s contentions
about wanting to shift to more full-time restaurant servers in
March 15, 1990, there was absolutely no rational reason of-
fered for why such positions were never offered to Grenier
or Racine, the two most senior part-time waitresses. I do not
credit any contention by Respondent that they did not ask for
the full-time positions and credit their testimony that they did
request to made full-time when their schedules were cut to
the point they could not make a living. No rational reason
is advanced for the Hotel to continue to advertise for new
waitstaff without asking these two experienced waitresses to
return. The poor comments in their after-the-fact termination
reports appear to me to be wholly a concoction to justify the
failure to ask them be full-time waitresses. No credible evi-
dence was offered to explain how two of the best waitresses
in the Hotel suddenly became two of the poorest. The only
evidence of any change in them was their aggressive support
of the Union. I fully believe the reason Boulanger was not
called to testify was because she could give no reason for
failing to offer the two waitresses full-time employment
other than the obvious one, the Hotel was attempting to get
rid of these employees because of their union activity.
b. The reduction in Grace Kelley’s hours
Grace Kelley’s schedule was cut from 3 days to 1 day in
the payroll period ending April 29, 1990. Prior to this, she
had spoken with Lisa Brodeur. Kelley had seen that new em-
ployees had been hired. She asked Brodeur who the new girl
was. Brodeur said she was a new full-time person, that they
were having trouble with part-time people, that they were too
erratic, and it was hard to keep the schedule. Brodeur said
they would be cutting part-timers to 1 day, and the rest
would be offered full-time employment, otherwise they
would hire new full-timers. Kelley asked if she was going
to be cut down to 1 day. Brodeur said she did not know, she
would have to talk with Merrill, who was supposed to call
Kelley.
Merrill never called her, and she was not asked to go full
time. Kelley spoke with Sue Vaughn, who told her that she
had been given the choice of going full time or go down to
1 day. Kelley worked one shift for 2 weeks, and then
stopped going to work. She felt that work was just too un-
comfortable, and she was getting so tense that her husband
wanted her to quit. She called in sick twice, and said she
would be out on medical leave for several weeks. No one
ever called her.
Respondent’s employee termination review shows that she
was terminated on June 26, 1990. On it her job performance
was judged poor in almost every category. It said she would
not be rehired. Kelley had never been shown the review, and
no one had told her about the negative evaluation of her job
performance. Kelley had received two previous evaluations
in which she was judged ‘‘good’’ or ‘‘excellent’’ in all cat-
egories. The one she was given in July 1989 described her
as a ‘‘very hard worker, good attitude, willing to listen and
learn, very dependable.’’
For the same reasons that I have found that Respondent
unlawfully cut the hours of and/or reduced the schedules of
Racine and Grenier, I find that they did the same to Kelley
and incorporate that reasoning and the related findings herein
by reference. Respondent argues that Kelley was not a union
activist as were Racine and Grenier as she was not on the
organizing committee. However, she did attend one of the
January employee meetings held by Calabrese with the other
two and questioned him together with them about Hotel poli-
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cies. After that meeting she was certainly fixed in
Calabrese’s mind with her fellow questioners, Racine,
Grenier, and Svehlak. As with the other two waitress
discriminatees, no rational reason was advanced for Respond-
ent’s action in reducing her schedule. Had she not voluntarily
quit her employment because of stress, I am certain she
would have joined Racine and Grenier in the ranks of unlaw-
fully terminated employees.
2. Change in laundry department hours and termination
of Eliza Svehlak
In March 1990, Respondent changed the hours of its laun-
dry employees from 7 a.m.—3 p.m. to 8 a.m.—4 p.m.
Housekeeping Department Manager Kathy Tavares notified
the employees of the change, stating it was necessary in
order to accommodate all the departments in the Hotel, and
particularly, the banquet and Garden Cafe departments.
On May 3, 1990, at approximately 8:30 a.m., Tavares met
with laundry employees Rosemarie Fortier, Lucy Castellanos,
Candida Cimino, and Eliza Svehlak in the laundry depart-
ment. Tavares explained to the employees that if there was
work to be done they would be required to stay beyond 4
p.m., the scheduled end of their shift. Tavares then left the
department. Shortly thereafter, Tavares returned and in-
formed the employees that she wanted them to sign a docu-
ment stating that she had explained everything (concerning
working past 4 p.m.) to them. She did not tell them it was
a warning. Svehlak and the other laundry employees then
signed the document. This document was later alleged by
Respondent to be an oral warning issued to those who signed
the document. Tavares claimed that the warnings were issued
in response to an allegation that the laundry department em-
ployees were leaving work early. Prior to soliciting the sig-
natures of the laundry employees, Tavares consulted with
Bair, asking him if she could just ‘‘write this out and have
them read it, and explain to them why I wanted them to
stay.’’
On May 8, 1990, Svehlak was working in the laundry de-
partment with Cimino and Castellanos. At noon, Svehlak
telephoned both the banquet and Garden Cafe departments to
find out if their respective linen needs for the evening were
met. Employees from both departments indicated to her that
no linen was needed. Approximately 2 hours later, Svehlak
informed the other two laundry employees present that they
would leave work at 3 p.m. She then turned off the heater
on the iron, which takes approximately 1 hour to cool down.
Also around 2 p.m., Svehlak received a phone call from
a chemical company representative who was looking for ei-
ther Kathy or Todd Tavares. Svehlak informed the caller that
Tavares was not scheduled to work that day and that Todd
was either in his office or on one of the floors. The caller
then indicated that Todd had been paged but had not an-
swered. At that point, Svehlak told the caller that she would
leave a message for them.
After speaking with the caller, Svehlak proceeded to the
housekeeping department to deliver the message and to ask
for permission to leave early. In the past she made the deci-
sion to leave early on her own. However, after being in-
formed by Kathy Tavares that no one could leave early with-
out permission, Svehlak sought permission to leave early on
May 8, 1990. On arriving at the housekeeping office,
Svehlak noticed that the lights to the office had been turned
off and the door was locked. She then taped the message to
the door and returned to work.
At approximately 2 p.m., a small load of tablecloths and
napkins were delivered to the laundry department. Svehlak,
Cimino and Castellanos then separated the linen, washed the
napkins, and placed the tablecloths in the washing machine
for the following morning. The laundry employees were un-
able to iron the linen at that point because the iron had been
cooling down since 2 p.m. At 3 p.m., believing that neither
Kathy nor Todd Tavares were present at the Hotel, the laun-
dry employees left the premises.
That evening, Tavares was called in to work by Linda
Boulanger, who informed Tavares that the Garden Cafe
needed napkins. Tavares then left her residence and went to
the Hotel to iron napkins.
The following morning, Tavares, who was ‘‘running late’’
at the time, telephoned Todd Tavares and asked him to pre-
pare a warning for her because she previously told the laun-
dry employees not to leave work early. Later that day, at ap-
proximately 8:30 a.m., Todd Tavares approached Svehlak,
Cimino, and Castellanos in the laundry department and in-
formed them that Tavares wanted to see them in her office,
individually, at 4 p.m. Following lunch, however, Castellanos
telephoned Tavares to find out what was going on.
Castellanos told Tavares that they could not wait until the
afternoon. Tavares then instructed Castellanos and the others
to come up to her office to discuss the situation.
On arriving at Tavares’ office, the laundry employees were
informed by her that they had left the previous day without
permission. Svehlak then stated, ‘‘Well, there was no on to
ask permission to leave because there was nobody here’’ and
proceeded to leave the office. In response to Tavares’ asser-
tion that ‘‘employees just don’t walk out,’’ Svehlak walked
back towards Tavares and stated, ‘‘You think you’re miss
perfect, miss almighty, you got everything.’’ Tavares then
said despite everything she had done for Svehlak, Svehla had
turned around and told ‘‘all those lies and stories’’ about her.
Svehlak believed that Tavares was referring the National
Labor Relations Board charges. Svehlak and the other em-
ployees left the office at this point.
The termination report prepared by the Respondent’s con-
troller, Hakim, stated that ‘‘Eliza was spoken to for the third
time in reference to allowing the department to leave before
the scheduled time, and leaving work early from the day to
be done for the next day.’’ It also indicated three oral warn-
ings had been given, but no written warnings. It was signed
by Kathy Tavares. It was initialed by Bair on May 11, 1990.
Hakim also instructed Tavares to go back and add to the
warning that Todd Tavares had filled out. He wanted her to
add the dates showing when Svehlak had purportedly been
warned previously. Tavares testified that she consulted some
warning documents which she kept and filled in new warning
dates. She claimed, however, that she threw out the pur-
ported warnings because ‘‘once people are gone, why should
I keep all those files?’’ The warning indicated that three
written warnings had been given, as well as several oral
warnings.
The reason for discipline in the original Todd Tavares’
prepared warning was also Svehlak’s leaving work early. At
the hearing, Tavares gave a very different reason for the ter-
mination of Svehlak, one that was not expressed in either of
345SHERATON HOTEL WATERBURY
29 As the record indicates, despite unrebutted testimony by Svehlak
that Tavares, on May 9, 1990, was unaware of the fact that other
laundry employees had left work early on May 7, 1990, a warning
document, dated May 7, 1990, was produced at the hearing. This
document indicates that Cimino, Fortier, and Castellanos left work
early on that date and that each employee was receiving their first
oral warning. There is no indication on the document that the three
employees in question had been orally warned on May 3, 1990,
which would have represented their first warning. The record also
reveals that Cimino was issued an oral warning on May 9, 1990, for
leaving early on May 8, 1990. This particular document indicates
that Cimino received a previous warning on May 3, 1990, but makes
no reference to the alleged warning issued May 7, 1990.
30 Svehlak testified credibly that in response to Tavares telling her
that if she did not like her job she could quit, she replied that
Tavares would have to fire her. I credit Svehlak’s version of the
foregoing events in any respect that conflicts with Tavares’ version.
I did not find Tavares to be a credible witness from the standpoint
of demeanor nor was her testimony in any significant way supported
by documentation or corroboration of other witnesses.
the two prepared warnings. She claimed that Svehlak was
fired for insubordination. Apparently the Respondent in pre-
paring for hearing became concerned about the lack of docu-
mentation regarding Svehlak and the unusual back dating of
others. On brief it attempts to whitewash the documentation
problem by saying it is not perfect. I do not believe it. This
Respondent was guided through the union campaign at every
step by experienced labor counsel. It already was facing
Labor Board charges with respect to Svehlak and I find it
incomprehensible that with respect to something as signifi-
cant as her termination, Respondent would not document ev-
erything it could think of as reason for her termination. In
fact, I believe it did. The adding of the dates of the purported
oral or written warnings to the Todd Tavares’ prepared warn-
ing was in my opinion nothing more than an attempt to shore
up a clearly discriminatory termination, and one that reeked
of disparate treatment.29
At some unknown point between the date of the prepara-
tion of the documentation for Svehlak’s termination and the
hearing, someone evidently decided that the reason given
Svehlak for her termination was not sufficient to make it
stick. Hence, for the first time, insubordination, not leaving
early without permission, becomes the reason for her termi-
nation. On brief, Respondent practically abandons the matter
of leaving early and concentrates on the purported confronta-
tion between Svehlak and Tavares.
Tavares testified about the confrontation thusly:
I said: ‘‘Eliza, why did you shut the ironer off?’’
‘‘Just four days previous to this I told you that you
can’t do that.’’ And she [Eliza] said: ‘‘Why can’t I do
it?’’ I [Tavares] said: ‘‘Eliz, you have to leave that
ironer on. We’re running a business here.’’ And she
[Eliza] said: ‘‘I don’t have to do anything.’’ I [Tavares]
said: ‘‘You girls, why did you leave?’’ They said:
‘‘Well, Eliza told us to leave.’’ I [Tavares] said:
‘‘Eliza, why did you tell them to leave?’’ Candy an-
swered: ‘‘Well, she says she is the boss and we’re not
supposed to come up here and tell you that she tells us
to leave like that.’’
I [Tavares] said: ‘‘Eliza, you’re nobody. You don’t
have any right to tell these girls to leave when the work
isn’t completed like that.’’ She [Eliza] said: ‘‘‘You
think you’re Miss Prima Donna, you don’t want to dirty
your hands for nothing. You’re nothing but’ . . . I
[Tavares] don’t remember if she called me a bitch or
whatever she called me. And she [Eliza] said: ‘You
don’t like me because I’m on the union committee.’ I
[Tavares] said: ‘Eliza, give me a break. You voted on
that in January.’ And she [Eliza] said: ‘You’re going to
have to fire me, because I’m not going to change my
ways.’30 I [Tavares] said: ‘That’s fine.’’’
Tavares then called Calabrese because Bair was not in the
Hotel and he referred her to Ramin Hakim. She testified that
she told Hakim that: ‘‘I have told her about this previous,
but she’s just being insubordinate, and she just told me she
wasn’t going to listen to what I was telling her and it was
was simple as that.’’ Later that day, Tavares and Hakim met
with Eliza and Hakim advised her she was terminated. Noth-
ing whatsoever was said at this meeting about any ‘‘insubor-
dination.’’
On brief at 164 Respondent asserts: ‘‘Eliza Svehlak was
not discharged as a result of a progressive disciplinary proce-
dure culminating in three warnings. Although her previous
disciplinary record was taken into consideration, she was
fired for being insubordinate to her supervisor. This was con-
sistent with Hotel rules which provide for the discharge of
an employee for insubordination without any prior warning.
To argue that unclear disciplinary records imply a pretext for
Svehlak’s discharge is a smoke screen designed to obscure
the reason for her discharge—you do not ‘go berserk’ on
your supervisor calling her Miss Perfect—Miss God Al-
mighty—or bitch and expect to be able to report to work the
next day.’’
As I have already indicated by my finding that the firing
of Mary Crabb was lawful, I do agree that an employer does
not have to tolerate abuse and insubordination of a supervisor
by an employee. However, in the case of Crabb, her super-
visor documented the insubordination and Crabb was in-
formed at the time of her termination that she was being dis-
charged for being abusive to her supervisor. In the case of
Svehlak, no documentation was prepared indicating insubor-
dination was the reason for her termination nor was she told
this was the reason at the time of her termination. Tavares,
whom I have heretofore found to be less than credible, again
does not appear to me to be telling the truth. She testified
that she told Hakim that Svehlak was to be terminated for
insubordination. Then she claims that she signed a blank ter-
mination form and Hakim filled in the wrong information,
which she never corrected. She was present when Svehlak
was terminated and never said a word to correct Hakim when
he told Svehlak that she was being terminated for leaving
early the day before.
It appears to me that it is Respondent, not General Coun-
sel, who is building a ‘‘smoke screen’’ to hide the reason for
Svehlak’s termination. Hakim did not testify though he was
still in the employ of Respondent and I draw an adverse in-
ference from his absence about the reason for Svehlak’s ter-
mination. As Respondent has abandoned its leaving work
early without permission reason for her termination, and as
I do not believe the testimony of Tavares with respect to the
insubordination reason, I find that both reasons are pretextual
and the actual reason is Respondent’s continuing animus to-
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 The complaint also alleges that Svehlak was terminated in viola-
tion Sec. 8(a)(4) of the Act. I cannot find sufficient evidence to
make that finding.
32 General Counsel contends that unit was composed of 219 em-
ployees and Respondent believes it is 222 employees. The list relied
on is Jt. Exh. 6, which I find contains the names of some 225 em-
ployees. The parties later stipulated to the exclusion of six named
employees and left in dispute the status of Eliza Svehlak. I find that
she was properly included in the unit. The list does not have the
name of Roger Sauvagea who I find should be included.
ward Svehlak for her union activities. I find that General
Counsel has satisfied his burden under Wright Line, supra,
and that Respondent has not offered any legitimate, credible
defense in response. Accordingly, I find that Respondent has
violated Section 8(a)(1) and (3) by its termination of Eliza
Svehlak.31
E. Is a Bargaining Order the Proper Remedy?
The consolidated complaint alleges that a bargaining order
should issue in this case because the Respondent’s unfair
labor practices both before and after the election preclude the
possibility of a fair election being held. For reasons detailed
hereinafter, I disagree. However, in the event that the Board
or the courts ultimately find otherwise, I will make requisite
findings regarding majority status as of the date of demand
for recognition.
1. Did the Union enjoy majority status on December
14, 1989?
I have heretofore found the unit described supra appro-
priate for the purposes of collective bargaining. As of the
date of the Union’s demand for recognition, December 14,
1989, the unit was composed of 220 employees.32 General
Counsel introduced into evidence some 140 authorization or
membership cards on which he relies to establish majority
status. Seven of these cards contain the signatures of employ-
ees who quit or were terminated prior to December 1, and
one card was signed by an employee after that date. Thus,
the maximum number of properly authenticated cards is 132.
Respondent contends that a significant number of the other
cards were not properly authenticated and should not be
counted.
Respondent objects to the card signed by Norma Hall as
he date on the front was not filled in by the solicitor,
Eleanora Williams. However, Williams testified to the cir-
cumstances of the solicitation and the date of signing, which
appears on the reverse side of the card together with Wil-
liams’ initial. Respondent also objects to the card signed by
Rita Koval, as the social security number was not filled in
at the time of signing, but was added later by someone other
that the solicitor or the employee. No other part of the card,
including the signature and the date of signing is questioned
and I do not believe the adding of a social security number
affects the card’s authenticity. Both of these cards should be
counted.
The Union gave instructions to the card solicitors to initial
and date the reverse side of the cards at the time they were
signed by employees. Respondent objects to the authenticity
of six employees’ cards because they did not contain the so-
licitor’s initials or the initials were added some time after the
card was signed. These were the cards of Roseanne Couture,
Harold Braman, Mike McKenna, Rita Caron, Thomas Ander-
son, and Arlene Lepore. The matter of putting initials on
cards is not a prerequisite to authenticating them and there
as credible evidence adduced from the involved solicitors
about each of these cards to prove their authenticity.
The cards of Paul Quint, Edna Thompson, Steve Angus,
and Tarif Sharif are challenged because they were not dated
by the card signer. However, each of the cards had the date
of signing verified by the solicitor and were initialed and
dated by the solicitor. I find they have been properly authen-
ticated as the date of signing is established by credible evi-
dence.
The Respondent challenges the cards obtained by solicitor
Lisa Chilcoat because it alleges she represented to the signers
that the sole purpose of the cards was to secure an election.
Respondent relies on the following testimony in support of
its position:
Q. Did he tell you that part of it—one way of doing
it (secure an election) was to have people sign author-
ization cards?
A. That wasn’t taking union votes that was finding
out how many agreed with the committee on wanting
the Union.
Q. Did you explain to anyone how the vote worked
when you asked them to sign cards?
A. No, I explained there would be an election?
Q. By signing the card you got an election?
A. Yeah, by getting over half of the employees to
sign cards, we would be able to get an election.
Q. That’s why they should sign the card. Correct?
A. Yeah, more or less, so if they agreed with want-
ing the Union.
Q. Sign this card and get an election.
A. That’s not exactly what I said.
Q. . . . You discussed the fact that—you discussed
union election with them; is that correct?
A. No, we didn’t really discuss the election, we dis-
cussed what having a union would do.
A. We discussed that, you know, we wanted the
union, why we wanted the union, and that we would
get an election where we could vote for the union or
against the union if we had a majority or a good part
of the workers show that they were interested in the
union by signing cards.
I do not find that the foregoing limits the explained pur-
pose of the cards to solely securing an election. It is one of
the explained purposes but the other was wanting the union.
The cards on their face designate the Union as the bargaining
representative for the signer and is entitled ‘‘Application for
Membership in Local 217.’’ The reverse side of the card in
bold letters states: ‘‘Don’t Gamble, Join the Union!’’ There
is nothing in the testimony of Chilcoat about what she told
prospective signers that would obviate the clear language of
the card itself, which was to join the Union. I find the cards
solicited by Chilcoat are not defective because of anything
she said while soliciting them.
The Respondent objects to the card of Scott Matthews be-
cause it was solicited by Hector Echeandia, but returned to
Sigfred Echeandia. Both Echeandia brothers testified and no
valid reason was shown to question the authenticity or date
of Matthews’ card. The card of Kimberly McMullin was
347SHERATON HOTEL WATERBURY
similarly challenged as two solicitors, Wanda Washburne and
Lisa Chilcoat, were involved in securing the card. As was the
case with the previously discussed card, both solicitors testi-
fied and no valid reason to doubt the card’s authenticity or
date was developed.
The Respondent objects to the card of Vito Lepore as he
was given a card by his wife, who had gotten the card from
Theresa Romano. After allegedly filling out and signing the
card, he gave it back to his wife, who gave it to the solicitor.
I will sustain Respondent’s challenge to this card on the
grounds that person signing the card did not give it to a so-
licitor and thus nothing of the circumstances of the signing
can be tested. Moreover, the card was undated when received
by the solicitor.
The card of Charles Innis was obtained by solicitor Bar-
bara Racine, who testified that Innis signed the card in the
presence while both were working at the Hotel on November
21, 1989. Respondent’s timecards reflect that Racine was not
working on that date. Although the place where the card was
signed is brought into question, the signature on the card is
not. The card is properly dated and Racine’s initials and a
corroborating date appear on the reverse side. I find the card
has been properly authenticated. Not remembering the exact
location of where a particular card was signed a year after
the event, especially when the solicitor in question secured
signatures on approximately 20 cards, does not strike me as
unusual or fatal to the card’s authenticity.
The Respondent objects to the card of Joseph Gentile be-
cause on the face of the card the date ‘‘11–9–89’’ has been
changed to ‘‘12–9–89.’’ The card was solicited by Racine
who testified that she gave Gentile the card in the Hotel’s
bar, he went behind the bar and filled out the card and
signed it and then returned it to her. She could not observe
him writing on the card. Her testimony is that the card was
signed on ‘‘12–9,’’ her initials and that date appear on the
reverse side of the card, and the change in date on the card
appears to me to have been made by the person signing the
card. I find the card has been properly authenticated.
No solicitor supported the introduction of the cards of Joe
Ouimet, Karyl Maschi, and Jeffery Beneitis and Respondent
objects to them being counted toward proving majority sta-
tus. I agree. Though the signatures could be compared to the
signer’s W-4 form, there was no way to be sure of the date
of signing or the circumstances of signing.
I have found four of the Respondent’s objections to have
merit, so I find that General Counsel submitted 128 properly
authenticated cards, some 18 more than necessary to estab-
lish majority status on December 14.
2. Is the issuance of a bargaining order warranted?
The Supreme Court held in NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), that a bargaining order is appropriate
where a union has demonstrated that at one point it enjoyed
majority support, and the employer has engaged in unfair
labor practices which are sufficiently widespread, serious,
and pervasive to warrant a finding that ‘‘the possibility of
erasing the effects of past practices and of ensuring a fair
election (or fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed through cards would, on balance, be better pro-
tected by a bargaining order . . . .’’ 395 U.S. at 614.
As I have found above, the Union enjoyed majority sup-
port based on authorization cards on December 14, 1989.
General Counsel, relying on his belief that unlawful motiva-
tion promoted the substantial layoffs, terminations, and re-
ductions in work hours during the period preceding the elec-
tion, together with the alleged interrogations, warnings, and
other alleged unfair labor practices rightly contends that a
bargaining order is appropriate under the Gissel criteria.
However, as I have found that the most profound of the al-
leged unfair labor practices, the Hotel-wide layoffs, termi-
nations, and reduction in work hours were motivated by le-
gitimate business demands and not union animus, there re-
main no widespread and pervasive unfair labor practices
which would justify the extraordinary remedy sought.
Though I have found that the unfair labor practices commit-
ted by Respondent prior to the election sufficiently disrupted
the election process to require the direction of a second elec-
tion, these unfair labor practices, as well as those which oc-
curred subsequent to the election, are of a type which may
be cured by traditional remedies.
The unfair labor practices involving discriminatory con-
duct found to have been committed prior to the election were
confined to only four employees, Roger Sauvageau, Eliza
Svehlak, Hector Echeandia, and Cesar Berrera. There were
no proven acts of widespread discrimination among the rel-
atively large (approximately 200–250 employee) bargaining
unit. After the election, Respondent’s unlawful discrimination
was directed again at Shevlak and three restaurant servers,
Laurie Grenier, Barbara Racine, and Grace Kelley. Returning
Svehlak, Grenier, and Racine to the Hotel and ordering back-
pay for the four should sufficiently remedy the ill effects
their terminations and reduction in hours had on the other
employees. Significantly, the terminations of Grenier and
Racine were accomplished so quietly that they may have had
no effect on other employees. The return of Sauvageau, who
the Union made a rallying cause, should strengthen the
Union in the eyes of those who want the Union to represent
them. The same is true in the case of Svehlak. The Hotel’s
unlawful use of the so-called threat to the Theriaults and its
encouragement of antiunion sentiment in its meetings with
employees should be capable of being remedied by posting
of an appropriate notice and a cease-and-desist order.
This is especially true as the Hotel experiences a dem-
onstrated high degree of turnover in both its employee and
management complement. Based on personnel records placed
in evidence, the turnover rate for both management and em-
ployee is in the 40- to 50-percent range over a period of a
year. Thus there should be no lingering effects of the Re-
spondent’s past practices. Additionally, because of the high
employee turnover, I am reluctant to recommend the imposi-
tion of a bargaining order as it would, in my opinion, remove
unnecessarily the right of free choice regarding representa-
tion from the current Hotel employees, a large number of
whom were not employed at the time of the campaign or the
election.
In conclusion, I will recommend that that those employees
discriminated against be offered reinstatement and backpay,
that Respondent be ordered to cease and desist from its un-
lawful conduct, and that a second election be directed to af-
ford the affected employees an untainted choice of whether
they do or do not want the Union to represent them.
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 The exact dates on which the hours of Grenier, Racine, and
Kelley were reduced and the dates of discharge of Grenier and
Racine may best be determined in a backpay proceeding after a close
examination of Respondent’s payroll records.
34 The last evaluation report of Kelley, prepared after her quitting
work appears to me a fabrication representing only Respondent’s
antiunion animus. It is in no way borne out by earlier evaluations
or any events which are described in the record. I would recommend
to the Board that Respondent, be required to expunge this document
from its records and not be allowed to use it against Kelley either
directly or as an adverse reference for future employment.
CONCLUSIONS OF LAW
1. Respondent J.L.M., Inc. d/b/a Sheraton Hotel Waterbury
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union, Local 217, Hotel and Restaurant Employee
and 40 Bartenders Union, AFL–CIO is a labor organiation
within the meaning of Section 2(5) of the Act.
3. The following described unit constitutes a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All regular full-time and regular part-time employees
including receivers, cooks, dishwashers, night cleaners
bartenders, barbacks, banquet servers, banquet set-up,
coat room attendants, waiters/waitresses, cocktail serv-
ers, bussers, host/hostesses, cashiers, room servic em-
ployees, front desk clerks, PBX operators, night audi-
tors, reservationists, bellmen, maids, housemen,
floormen, laundry employees, inspectresses, mainte-
nance employees and sports complex attendants em-
ployed by the Employer at its Waterbury, Connecticut
facility; but excluding office clerical employees, gift
shop employee sales employees and guards, profes-
sional employees and supervisors as defined in the Act.
4. Respondent has committed unfair labor practices in vio-
lation of Section 8(a)(1) and (3) of the Act by:
a. Giving Roger Sauvageau a written warning on or about
October 29, 1989.
b. Giving warnings to Eliza Svehlak on Novemher 15 and
17, 1989, and assigning her work duties other than her nor-
mal ones on January 25, 1990.
c. Discharging Roger Sauvageau on November 30, 1989.
d. Reducing the hours of work of Hector Echeandia begin-
ning in December 1989.
e. Taking Cesar Berrera off the work schedule for 1 week
in January 1990.
f. Reducing the hours of work and discharging Laurie
Grenier in or about April 1990.33
g. Reducing the hours of work and discharging Barbara
Racine in or about April 1990.
h. Reducing the hours of work of Grace Kelley in or about
May 1990.
i. Discharging Eliza Svehlak on May 11, 1990.
5. The Respondent has committed unfair labor practices
violation of Section 8(a)(1) of the Act by:
a. Threatening Roger Sauvageau that he was on an em-
ployer’s hit list because of his union activities.
b. Threatening Eliza Svehlak with more onerous work du-
ties and possible termination becaus e of union activities.
c. Posting a notice concerning the discharge of Roger
Sauvageau.
d. Encouraging antiunion sentiment at employee meetin
while attempting to stifle prounion sentiment and implying
retaliation for union support.
e. Disparaging the Union by overreacting to an alleged
union threat to an employee and using police presence to
give the impression of imminent danger t o employees from
the Union.
6. The unfair labor practices committed by Respondent re
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act .
7. The conduct found to constitute unfair labor practices
in paragraphs 4 (a, b, and c) and paragraphs 5 (a through d)
above is also conduct objectionable to the conduct of the
election an Objections 2, 47, 55, 61, 62, 71, and 75 are sus-
tained.
8. The Respondent engaged in no other unfair labor
pratices as alleged in the consolidated complaint, as amend-
ed.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices and conduct objectionable to the con-
duct of the election, it is ordered to cease and desist there-
from an take certain affirmative action designed to effectuate
the policies of the Act.
Respondent unlawfully discharged Roger Sauvageau on
November 30, 1989, discharged Eliza Svehlak on May 11,
1990, reduced the hours of work of Hector Echeand ia in
December 1989, took Cesar Berrera off the work schedule
for 1 week in January 1990, reduced the hours of work and
discharged Laurie Grenier and Barbara Racine in or about
April 1, 1990, and reduced the hours of work of Grace
Kelley in or about May 1990. I shall recommend that Re-
spondent be ordered to offer full and immediate reinstate-
ment to Sauvageau, Svehlak, Grenier, and Racine, with full
backpay and interest thereon to them as well to as Kelley,
Echeandia, and Berrera, to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and
New Horizons for the Retarded, 283 NLRB 1173 (1987).
I will further recommend that any reference to these un-
lawful discharges and the unlawful warnings issued to
Sauvageau, Svehlak, Grenier, and Racine be removed from
the records of Respondent, that it provide the discriminatees
with written notice of such removal and inform them that the
unlawful discharges and warnings will not be used as a basis
for future personnel actions concerning them.34
[Recommended Order omitted from publication.]