Travelers Hotel, Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1961

129 N.L.R.B. 1133 (N.L.R.B. 1961)

TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1133
CONCLUSIONS OF LAW
1. Castle Hotel, Ltd., is an employer within the meaning of Section 2(2) of the Act.
2. Bartenders, Hotel and Restaurant Employees, Local No. 264, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Ethel
Selders as to discourage membership iin the above-named Union, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By the foregoing conduct and by granting employees wage increases and vacation
benefits to discourage membership in, or support of, the above-named Union, the
Respondent has interfered with, restrained, and coerced employees in the exercise
of their statutory rights within the meaning of Section 8(a)( I) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
6. The Respondent did not violate Section 8(a)( I) of the Act by reason of the
other conduct alleged in the complaint.
Case No. 17-RC-2953
I have found above no merit in the Union's objection to conduct affecting the re-
sults of the election or other basis for setting aside the election. Accordingly, I shall
recommend to the Board that it overrule the Union's objection and certify that no
collective bargaining representative has been selected by the Respondent 's employees
in the Board-conducted election.
[Recommendations omitted from publication. ]
Travelers Hotel , Inc. and Harold L. Fromkin and Hotel and
Club Employees Union , Local 6, Hotel and Restaurant Em-
ployees and Bartenders International Union , AFL-CIO. Case
No. 2-CA-7034. January 4, 1961
DECISION AND ORDER
On August 5, 1960, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, Respondents I filed
exceptions to the Intermediate Report and a brief in support thereof.
The Board' has reviewed the ruling of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
I Respondents' request for oral argument is hereby denied as the record, exceptions, and
brief, In our opinion, adequately present the issues and positions of the parties.
2Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three- member panel
[Chairman Leedom and Members Rodgers and Jenkins].
129 NLRB No. 139.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Travelers Hotel,
Inc. and Harold L. Fromkin, New York, New York, their respective
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Hotel and Club Employees
Union, Local 6, Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, or any other labor organization of
their employees, by discharging or otherwise discriminating against
any employee in regard to his hire, tenure of employment, or any
term or condition of employment, except as authorized in Section
8 (a) (3) of the Act, as amended.
(b) Threatening employees with reprisal if they engage in activity
on behalf of the aforesaid Union or any other labor organization;
preventing employees from attending meetings called by the Union,
or any other labor organization, by requiring employees who other-
wise would be free to do so to attend instead meetings deliberately and
for that purpose called by the Respondents for the same time; prom-
ising or granting economic benefits to employees at the time of any
union-organizing campaign where the purpose thereof is to induce
employees to refrain from, or to abandon, union membership ; and/or
interrogating employees concerning their union views membership
and activities in a manner constituting interference, restraint, and
coercion in violation of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form, join, or assist the aforesaid labor organization, or any other
labor organization, to bargain collectively through representatives of
their own choosing and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer to Steven Lizaso, Stanley Korman, and Rene Giro im-
mediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights
and privileges, and make each of them whole for any loss of pay
suffered as a result of the discrimination against them, by payment to
each of them of a sum of money equal to the amount he would have
TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1135
earned from the date of his discriminatory discharge to the date of the
offer of reinstatement, less his net earnings during said period, said
backpay to be computed on a quarterly basis in the manner established
by the Board in F.W. Wookvorth Company, 90 NLRB 289.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due under
the terms of this Decision and Order.
(c) Post at their hotel and restaurant at Queens, New York, copies
of the notice attached to the Intermediate Report marked "Ap-
pendix," s Copies of said notice, to be furnished by the Regional Di-
rector for the Second Region, shall, after being duly signed by both
Respondents, be posted immediately upon receipt thereof, and be main-
tained by them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
8 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by Hotel and Club Employees Union , Local 6 , Hotel and
Restaurant Employees and Bartenders International Union AFL-CIO , herein
called the Union , against Travelers Hotel , Inc. and Harold L. Fromkin , -herein called
the Respondents , the General Counsel issued a complaint alleging that the Respond-
ents had engaged in unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and ( 3) and Section 2(6) and ( 7) of the National Labor Re-
lations Act, 61 Stat . 136, herein called the Act. The Respondents filed •an answer,
denying the commission of the alleged unfair labor practices and denying also the
complaint's allegation that they are engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. A hearing, at which all parties were represented
by counsel, was held before the duly designated Trial Examiner at New York City
on May 16, 17 , and 18 , 1960 . The General Counsel and the Respondents filed
briefs on July 11, 1960.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Travelers Hotel , Inc., a New York corporation , is engaged in the operation of a
113-room hotel at 9400 Ditmars Boulevard, Queens, New York, which is within
one-quarter mile from LaGuardia Airport. The capital stock of the corporation is
owned in equal parts by the Respondent , Harold Fromkin , and his wife , Edith.
The hotel is operated under the general management and supervision of the Re-
spondent Fromkin, the president of the corporation . Edith Fromkin is inactive in
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the business. The hotel caters almost entirely to a transient trade, to a substantial
extent made up of airline passengers. During 1959, only about 1 percent of the
guests remained at the hotel for any extended period. Travelers' annual gross in-
come from its business operations is in excess of $500,000.
The hotel houses on its physical premises a restaurant which is located in a wing
of the hotel with entrances from both the hotel lobby and the street. The restaurant
caters both to guests of the hotel and to the outside public. The restaurant is owned
by Harold Fromkin individually, and, along with the hotel, is operated under his
general management and supervision. Fromkin, as an individual proprietor, has a
leasing arrangement with the hotel corporation under which he pays the corporation
a rental for the use of restaurant space and related hotel facilities. Separate books
of account and payrolls are maintained for the hotel and the restaurant. Employees
of the hotel and of the restaurant perform work confined to their separate trades
and there is no interchange between employees in the two groups. In general,
separate lines of supervisory authority are maintained below the top manage-
ment level at the hotel and at the restaurant. But the record -reflects that at
times there is some crossing over. Thus, a supervisor on the hotel payroll is called
upon during busy periods to assist the restaurant manager, and, as will appear below,
the same supervisor effectively discharged one of the restaurant employees found
below to have been unlawfully discriminated against . Thus, too, the banquet man-
ager who arranges and is in charge of banquets at the restaurant is on the hotel
payroll.
Although separate business entities , the hotel and the restaurant are not separately
identified as such. On the contrary they are held out to the public as parts of a
single enterprise .' Functionally, the hotel operations and restaurant operations are
closely integrated. Thus the restaurant provides room service to guests of the hotel,
and hotel guests are billed for their room and restaurant charges on a common
statement, with the hotel thereafter accounting to the restaurant for its share of the
charges.
Respondent Fromkin's annual gross income from the restaurant operations at the
Travelers Hotel is in excess of $400,000, but less than $500,000.
Respondent Travelers has arrangements with various airlines operating out of
LaGuardia Airport, including Eastern Airlines and American Airlines, under which
Travelers undertakes to provide lodging and food for airline passengers in emergency
situations when scheduled flights are unduly delayed because of weather, mechanical
failures, or the like. Guests referred by the airlines to the Travelers Hotel are
provided with vouchers to cover the cost of their lodging and food. During 1959,
the hotel's direct billing to the airlines for accommodations and food furnished pur-
suant to such arrangements was in an amount in excess of $60,000.
On the basis of the record facts establishing their common family ownership and
operation, their functional and physical integration of business activities, and their
centralized management control at the top level by the same person, I find that the
hotel business of the corporate Respondent and the restaurant business of the indi-
vidual Respondent constitute a single integrated enterprise engaged in the business
of furnishing hotel and restaurant services. For that reason-as well as on the
basis of the evidence to be reported infra reflecting joint participation by managerial
and supervisory employees of both Respondents in unfair labor practices herein
involved-I further find that Respondent Travelers and Respondent Fromkin, al-
though separate legal entities for other purposes, must under the Act, and in order
to effectuate the policies of the Act, be regarded as together constituting a single em-
ployer engaged in the aforesaid integrated enterprise.2
In light of the foregoing findings, the operations of the hotel and the restaurant
are to be considered as a unit for the purposes of considering the Board's jurisdiction,
and it is of no moment that the operations of the restaurant, if considered alone,
I Thus, for example, during the period material herein, hotel guests were furnished with
questionnaires in their rooms inviting comments both as to hotel and dining room serv-
ice. ("Did you eat in our dining room) Was the food Excellent__ Good- Fair, ")
Similarly, dining room patrons were given "tent" cards on which they were asked for
their comments both as to hotel and dining room service, the restaurant being held out as
a hotel-operated facility.
3 Under the particular circumstances of this case, the validity of the findings made
above are not affected by the separate payrolls, the separate books of account, and the
separate lines of supervision below the top management level. See, e g , Florida General
Linen Supply Company, 124 NLRB 1300; Musgrave Manufacturing Company, at at.,
124 NLRB 258; Canton Carp's, Inc ., 125 NLRB 483.
TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1137
would fall short of satisfying the Board's jurisdictional standards. The combined
operations of the two-or, for that matter, the operations of the hotel alone-quite
clearly meet the Board's standards for the assertion of jurisdiction over employers
in the hotel industry.3 Moreover, a finding of statutory jurisdiction is warranted
from the factual showing that the Respondents perform services valued at over
$50,000 directly for the airlines which are engaged in interstate transportation 4 It
is therefore found, contrary to the position of the Respondents, that both Respond-
ents are engaged in business affecting commerce, and that it will effectuate the
policies of the Act to assert jurisdiction over them.
II. THE LABOR ORGANIZATION INVOLVED
Hotel and Club Employees Union, Local 6, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The complaint alleges, and the answer denies, that the Respondents on and after
September 22, 1959, discriminatorily discharged three restaurant employees and also
engaged in various independent acts of interference, restraint, and coercion.
The employees on the hotel payroll have been represented since the opening of
the hotel several years ago by a labor organization which is not involved in this pro-
ceeding-Local 355, Allied Industrial Workers Union. The restaurant employees
have never been organized.5 There are about 25 employees on the restaurant payroll.
The unfair labor practices alleged in the complaint occurred during the course
of an organizational campaign by the Charging Union which began sometime in
September 1959. There is evidence reflecting that some months prior to the start
of that campaign, Fromkin for a time gave consideration to a suggestion that he
himself organize the restaurant employees from the top on behalf of the Union. It
appears that in June 1959, Joseph Kelly, who was then the restaurant manager,6
arranged a meeting between Fromkin and President Charles Martin of the Charging
Union. The testimony of the Respondents' witnesses is not consistent as to why the
meeting was arranged. Kelly testified that he suggested the meeting after Fromkin
informed him that some other union to which Fromkin was opposed wanted to take
over the restaurant employees. Fromkin, on the other hand. testified that he agreed
to meet with Martin because Kelly had complained to him about the difficulty of
getting experienced help and had expressed the thought that the restaurant's man-
power problems might be solved by bringing the Union in. Whatever the reason,
it appears that the meeting was held, and that, following it, the Union delivered to
Fromkin a batch of union designation cards. Two supervisory employees John
Kekllas, the kitchen steward, and Caroline Oelkers, then the restaurant hostess and
now also the dining room manager, testified that at Fromkin's request they tried
one day in the early summer of 1959 to distribute the cards to some of the employees
under their supervision, but that the cards were shunned by the employees. But
the testimony of Kekllas and Oelkers was contradictory, vague, and indefinite as to
details. Thus, their testimony vacillated as to whether their attempted distribution
was to only a few of the employees or to many, and they were unable to recall the
names of any to whom they offered the cards. Fromkin testified that after Kekllas
and Oelkers reported to him that same day their total lack of success, he personally
solicited each individual restaurant employee, but was met with complete rejection.
According to Fromkin, all employees whom he solicited advised him that they were
already members of other locals and did not want to lose their benefits in such other
locals by joining a new one. But Fromkin's testimony as well as that of Kekllas
and Oelkers is to be compared with that of Kelly. Although a witness for the Re-
spondents Kelly was no longer in the Respondents' employ at the time of the hear-
ing. Kelly testified that when the employees heard that Fromkin was going to sign
3Florudan Hotel of Tampa, Inc, 124 NLRB 261
4 Trailway Travel Bureau Corp, Case No 2-RC-10082 (not published in NLRB
volumes) ; H P 0 Service, Inc, 122 NLRB 394; Siemons Hailing Service, 122 NLRB 81.
'At the time Travelers entered into contractual regulations with Lacal 355, the
restaurant operations at the hotel were conducted by an independent company. Fromkin
took over the ownership and operation of the restaurant in November 1958
G Kelly continued as the restaurant manager until September 1959
586439-61-vol. 129-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up with the Union they were "thrilled." When the cards arrived from the Union,
testified Kelly, he volunteered to personally distribute them to the employees.
Fromkin flatly declined Kelly's offer, stating that he would give them out himself.
But so far as Kelly knows, the cards were never actually distributed.
On all the testimony, I am less than convinced that Fromkin made, as he now
claims, a genuine effort in the summer of 1959 to organize employees on behalf
of the Union. In any event, on the basis of evidence to be reported below-evidence
which I consider credible even if the testimony adverted to above is viewed in a light
most favorable to the Respondent-I am satisfied that, whatever the Respondents'
attitude toward the Union may have been before, it was converted, after the Union
began its direct organizational activities in the fall of 1959, to one of hostility and
opposition.
In dealing with the alleged unfair labor practices, I shall consider them substan-
tially in the order of their chronological sequence as tied to the following central
allegations of the complaint:
(1) The alleged discriminatory discharge of Steven Lizaso on September 22, 1959.
(2) The allegations that the Respondent violated Section 8(a)(1), by deliberately
scheduling an employee meeting on October 28, 1959, to coincide with a union
meeting scheduled for the same time, and by announcing at the employee meeting
the inauguration of an employee health insurance benefit plan in order to induce
employees to refrain from joining the Union.
(3) The alleged discriminatory discharge of Stanley Korman on November
7, 1959.
(4) The alleged discriminatory discharge of Rene Giro, also on November 7, 1959.
The foregoing do not exhaust the allegations of the complaint. The complaint
also alleges that the Respondents engaged in various additional violations of Section
8(a)(1). But the alleged additional violations are contextually tied to one or
another of the central allegations outlined above, and will be considered along with
such allegations in their appropriate context.
B. The discriminatory discharge of Steven Lizaso?
Steven Lizaso was hired in May or June 1959 as a busboy and room service waiter.
He was discharged on September 22, 1959. There is a sharp conflict in the testimony
as to the events surrounding his discharge.
Lizaso's account is as follows: Lizaso's workday began at 4 p.m. On September
22, 1959, he arrived at the hotel about 3:50 p.m., dressed in his working apparel and
ready for work. He had with him a number of union designation cards, similar to
the one he hmself had signed about 2 weeks before. Before entering the hotel, he
paused at the parking lot near the rear entrance of the hotel to solicit employee sig-
natures He gave out cards to four employees, two of whom, a maintenance man
and a bellboy, were on the hotel payroll. One of the employees-Willie Torres,
the maintenance man-promised to sign a card, and proceeded to fill one out using
the hood of a parked car as a writing table. Before Torres completed the card, the
time came for Lizaso to go to work. As Lizaso entered the hotel, he noticed Cyrus
Fromkin standing on the other side of the entrance looking toward the parking
lot through a glass door. (Cyrus Fromkin, a brother of the Respondent, Harold
Fromkin, is employed in a managerial position at the hotel where he shares an office
with Harold-his title is sales manager.)
Upon entering the hotel-continuing with Lizaso's account-Lizaso proceeded
at once to his work station in the dining room. Harold Fromkin was at a table in
the dining room at the time. Cyrus Fromkin came in, seemingly in a hurry, went
to Harold's table, leaned over, and spoke to his brother. Lizaso, quite a distance
away, could not hear what was said. Harold immediately arose and walked toward
the back entrance. Cyrus approached Lizaso. Cyrus interrogated Lizaso in an
effort to determine what he and the other employees were up to on the parking lot,
what they were signing, etc. Lizaso pretended inability to understand what Cyrus
was asking, although Cyrus repeated the questions several times, until Cyrus, evi-
dently angered, demanded to know whether Lizaso understood English. At that
point, Harold Fromkin, who in the meantime had reentered the dining room, ap-
proached Lizaso and Cyrus. Harold, without saying anything, tried to put his hand
in Lizaso's shirt pocket. Lizaso pushed Harold Fromkin's hand away, declaring,
"You have no right to go into my pocket " Harold said, "I am your boss " Lizaso
said, "That does not give you any reason to go into my shirt pocket." Harold, re-
7 Lizaso's first name was stated in the complaint as Esteban, but was corrected by
amendment at the hearing to read as above set forth.
TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1139
ferring to a pencil protruding from Lizaso's pocket said, "That pencil belongs to
us." Harold Fromkin then told Lizaso he was fired. Lizaso asked why. "Because
you pushed my hand away," answered Harold. Lizaso's response was that he knew
the real reason and was going to do something about it.
Thereupon-still from Lizaso's account-Lizaso went to the bookkeeper's office
to draw his pay. As he entered the office, Fromkin rushed over and told him to get
out. Lizaso asked when he could get paid, and Harold Fromkin told him he would
have to turn in his uniform first. Lizaso had no other clothes with him at the time,
and it was necessary for him to go home to change. As Lizaso was leaving the
office, Willie Torres entered the hotel and approached Lizaso with his arm extended
toward Lizaso, holding in his hand the union designation card Lizaso had earlier
given him. Before Torres reached Lizaso, Max Cohen came up and removed the-
card from Torres' hand. (Max Cohen is employed at the hotel as chief engineer in
charge of the maintenance and care of the buildings, and also has supervision over
all chauffeurs, bellhops, chambermaids, and housemen. During busy periods he is
also called upon to assist the manager of the dining room.) Cohen then came td=
ward Lizaso, and soon the two were joined by Harold and Cyrus Fromkin and by
a "Mr. Michael." 8 Cohen grasped Lizaso by the arm, pulled Lizaso toward him,
and, referring to the card he had taken from Torres, demanded, "What's the mean-
ing of this? What do you mean by this? If you have anything like this, why didn't
you come over and tell the boss?" Cohen later tore up the card. Harold and Cyrus
Fromkin began peppering Lizaso with questions such as "Are you a representative
of the union?" and "Who put you up to this?" Concealing from the Fromkins the
identity of the person who had in fact asked him to engage in solicitation activities
Lizaso answered only that he was doing it of his own free will. Finally, Cohen, com-
menting that there was no use talking to Lizaso, told Lizaso that if he ever saw him
around there again he would "smash [his] brains in." At a later date, Lizaso re-
turned to the hotel, turned his uniform in, and, after obtaining Cyrus Fromkin's
authorization to do so, drew his pay.
Lizaso was the only witness called by the General Counsel to testify on the specific
issue here involved. To a limited extent, his account finds corroboration in testimony
adduced through the Respondents' witnesses. Thus, Karel Dhersigny, a former
employee whom the Respondent called to give testimony on an entirely separate
issue, recalled on cross-examination that on the last day of Lizaso's employment at
the restaurant, Lizaso had handed him a union designation card at the hotel's rear
parking lot. Thus, too, Max Cohen recalled that there was an incident involving
Torres and another employee, whom, he testified, he did not know at the time, but
now knows to have been Steve Lizaso. According to Cohen's version, different from
Lizaso's, the following occurred: Cohen happened to walk by as Torres was talking
to "someone" (Lizaso) in a corridor of the hotel, and inquired of Tones why he
was not doing the repair job he had been ordered to do. Torres replied, "Steve
gave me some kind of paper-something in reference to a union." Cohen inquired
of Torres whether he was not already in a union. When Torres affirmed that he
was, Cohen asked why he was then "bothering with this," and when Torres said
he did not know, Cohen suggested to Lizaso that he leave the building and not
bother the help. That is all there was to the incident, testified Cohen at first Later
on cross-examination however, Cohen conceded that .the paper was a union designa-
tion card; that be had torn up the card; and that he might have told Lizaso in
forceful language to "get out."
The Respondents agree that Lizaso's employment was terminated that day as a
result of a "pencil incident," although they suggest he quit before he was discharged.
But their account of what occurred, presented through their witnesses, Harold
Fromkin and Louis Michael lannacone ("Mr. Michael"), varied in critical respects
from the version given by Lizaso. This is Fromkin's testimony: Fromkin was sitting
quietly in the restaurant having coffee with Michael when he noticed Lizaso standing
near the entrance to the kitchen, with his jacket open, and a pencil protruding
from his pocket, two-thirds of its length out, and at an odd angle. Ever since
childhood, Fromkin had had a deeply rooted aversion to the sight of pencils
protruding from pockets, and an obsessive compulsion to do something about it.
For that reason, and also because he wanted to make sure that Lizaso's pencil would
not fall out, Fromkin arose from his chair and went toward Lizaso with but one
8 Actually, Louis Michael Iannacone, but known about the hotel as Mr Michael Al-
though a frequent guest at the dining room at that time, Michael was not then an em-
ployee. Not long thereafter, however-on October 5, 1959, to be exact-Michael joined
the hotel staff as assistant banquet manager , and was still so employed at the time of
the hearing.
1140 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
thought in mind, to secure ,the pencil firmly in Lizaso's pocket. As Fromkin reached
toward Lizaso's pocket Lizaso slapped his hand with a closed fist and said, "Keep
your dirty hands off me you " (an extremely offensive epithet). In
almost the same breath, Lizaso added, "I quit." But Fromkin, apparently not
content to have Lizaso quit, declared, "Go get your money. You're fired." Where-
upon Lizaso, removing his badge, ran out of the dining room. "And that," Fromkin's
testimony concluded, "was the end of Steve." According to Fromkin he never saw
Lizaso again until he saw him at the hearing. Iannacone's version of the incident
varies in certain details from that of Fromkin-for example it does not refer to any
quitting declaration by Lizaso-but in general purport it is the same.
Except as otherwise noted above, the Respondents' witnesses flatly denied every-
thing averred by Lizaso. Thus, Cyrus Fromkin testified that, until questioned by a
Board investigator in December 1959, he was wholly unaware that an attempt was
being made to organize the restaurant workers; 9 that he had no knowledge "what-
soever" of any incident involving Lizaso; that he had never observed any group of
employees in the parking lot; that he had never had occasion to lean over to speak
to his brother in the dining room (he was sure of this because if he had anything
to say to his brother he would "show him the respect to sit down and talk to him");
and that he had never been present in a group with others when Lizaso had been
questioned about union activities.10 Cohen testified that he had no recollection of
ever being in a group with the Fromkins, Michael, and Lizaso, as testified to by
Lizaso, and, except as qualified by his testimony adverted to above, specifically
denied all statements and conduct attributed to him personally. As already noted,
Harold Fromkin and Iannacone denied that they saw Lizaso at any time after the
"pencil incident."
Where does the truth lie? As indicated above, there is substantially no concur-
rence between Lizaso's testimony and that of the Respondents' witnesses, except that
both sides are agreed that Lizaso pushed Harold Fromkin's hand away when the
latter attempted to reach into his shirt pocket and that Lizaso's termination followed
immediately upon the heels of that incident. But even as to that, there is a sub-
stantial disparity as to critical detail, principally on the question of whether Lizaso
accompanied his gesture with the abusive and offensive language the Respondents'
witnesses attribute to him. There is testimony in the record to the effect that Lizaso
had an excitable temperament. His quick reaction in brushing Fromkin's hand
away, I think was a manifestation of that. But even so, Lizaso did not impress me
as a person so lacking in self-control as to give vent while addressing his employer
to the highly abusive and offensive language with which he is charged. Fromkin's
testimony on other issues in the case plainly reveals him as a witness not wanting
in imagination, though often in accuracy. And there is reason to believe that he
embellished his testimony on the point in question. Had Lizaso used the highly
offensive language attributed to him, Fromkin could not have easily forgotten it.
Yet, in describing the discharge incident in a sworn statement he gave to a Board
agent, Fromkin made no reference at all to the offensive epithet he now says Lizaso
hurled at him. Fromkin's only explanation for the omission was that he "didn't
feel like saying them words." But Fromkin did not strike me as a person in the
least degree squeamish about such things. I do not suggest that he himself would
normally use the epithet in question. But I have no doubt that if in fact Lizaso
had said what Fromkin now says he said, Fromkin would have reported it to the
Board agent, if not in haec verba, at least by some other form of reference. It is true
that Fromkin's present assertion is supported by lannacone who preceded Fromkin
on the stand. But lannacone was not impressive as a witness. His own testimony
shows he had no clear memory of the discharge incident, and his positive assertion
while testifying that Lizaso uttered the precise epithet in question, and none other,
is at variance with his prehearing affidavit in which he had expressed uncertainty
on that very point.
As to the other factual points in dispute-whether Cyrus Fromkin observed Lizaso
on the parking lot, whether Cyrus spoke to his brother shortly thereafter, whether
Cyrus interrogated Lizaso immediately before the discharge incident, and whether
the post discharge events occurred as related by Lizaso-a choice must be made
9In his prehearing affidavit, Cyrus Fromkin had also stated that he was not even aware
that the hotel employees were represented by a union : but at the hearing he testified,
inconsistently with his affidavit, that he had known of such union representation ever
since the hotel was opened
10 Cyrus Fromkin did not specifically deny that he had ouestioned Lizaso alone immedi-
ately prior to the discharge incident, but I believe a denial to that effect is fairly to be
inferred from the other testimony he gave.
TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1141
between Lizaso's affirmative testimony and the flat denials of the Respondents
witnesses. If the denials are credited one would have to conclude, as stated in the
Respondents ' brief, that Lizaso's "entire testimony" was the "figment of an abnor-
mally vivid imagination stimulated by an interested party." But on the basis of my
evaluation of all the testimony and of the witnesses giving it, I do not believe that
to be so. Lizaso impressed me while testifying as a forthright witness. A careful
reading of the transcript confirms that impression . Lizaso's account of what occurred
is inherently plausible; it is supported throughout by clear and convincing detail;
it has the ring of truth. To some extent his story finds support in testimony adduced
through the Respondents' witnesses . The Respondents were represented by ex-
ceptionally able counsel, and I am convinced that if the incidents related by Lizaso
were imagined, as the Respondents suggest, cross -examination would have brought
this out. Yet the Respondents did not even attempt at the hearing to break down
Lizaso's account, but limited cross-examination to points that were of a peripheral
and wholly inconsequential character.
To the extent that Lizaso's testimony is in conflict with that of the Respondents'
witnesses, I credit Lizaso, and find that the events referred to in his testimony oc-
curred substantially as related by him.
On the evidence I credit, I am persuaded, and I find, that Lizaso's discharge was
directly related to the union solicitation activities in which he engaged shortly before
his discharge, and would not have occurred but for such activities. From Cyrus
Fromkin's interrogation of Lizaso immediately before the discharge incident, it is
quite clear that Cyrus Fromkin suspected Lizaso of being engaged in union organi-
zation. And it is reasonably to be inferred from Cyrus' visit to his brother's table,
before embarking on his interrogation of Lizaso, that Cyrus communicated that
suspicion to his brother, Harold. The surrounding circumstances leave no room for
doubt that the Respondents were concerned about Lizaso's organizational activity
and resented it. This is evident from Cyrus Fromkin's action in interrogating Lizaso,
and even more so from the post-discharge events related above, particularly Cohen's
violent reaction when hotel employee Torres sought to return a union designation
card to Lizaso and the renewed interrogation of Lizaso immediately thereafter, this
time by both Fromkins. The discharge occurred while the Respondents were en-
gaged, through Cyrus Fromkin's interrogation of Lizaso, in unlawful interference
with Lizaso's statutory rights, and was a direct outgrowth of such interference.
Harold Fromkin's explanation as to his reasons for reaching toward Lizaso's pocket
is not convincing. The surrounding circumstances suggest that Harold Fromkin was
moved, not by an obsessive impulse, but by a desire to discover for himself whether
Lizaso was carrying union designation cards on his person . Certainly, Lizaso had
a reasonable basis for believing so, considering the nature of the interrogation to which
he was being subjected at the time. Under the circumstances, Lizaso's reaction in
resisting an invasion of his privacy was a normal and understandable one, and not
a flouting of managerial authority. But the result I reach would be the same even if
I were to accept as a fact that Fromkin's subjective purpose was only to adjust Lizaso's
pencil. I am firmly convinced that were it not for the antagonism Fromkin harbored
against Lizaso at that moment because of Lizaso's reported activities on the parking
lot, Fromkin would at least have made an attempt to clear up Lizaso's misunder-
standing of what he (Fromkin) was seeking to do. As it was, however, Fromkin
was quick to seize upon Lizaso's reaction as e pretext for discharge. It is immaterial
that Fromkin may not have planned in advance to discharge Lizaso, or even to pro-
voke the particular incident on which the discharge was allegedly based. For though,
as stated by the Respondents' counsel at the opening of the hearing, the decision to
discharge Lizaso "was one of those spark things" induced by momentary anger, I
am satisfied from all the evidence that Lizaso's activities on the parking lot, minutes
before, was a major contributing source of Fromkin's anger, providing the heat that
generated the spark.
On the basis of all the evidence I find credible, I conclude and find that Lizaso's
discharge was violative of Section 8(a) (1) and (3) of the Act. I further find that the
Respondents independently violated Section 8 (a) (1), by (1) Cyrus Fromkin's inter-
rogation of Lizaso prior to his discharge; (2) Cohen's destruction of the union card
Torres was tendering Lizaso; (3) the further interrogation of Lizaso by the brothers
Fromkin suhseouent to Lizaso's discharge; and (4) Cohen's implied threat to punish
Lizaso physically if Lizaso engaged in further union activities about the hotel.
C. Events related to the October 28 meeting
Beginning on October 22, 1959, the Union distributed to employees at the Travelers
Hotel leaflets announcing a meeting at a nearby place on Wednesday, October 28,
1959, at 4 p.m. for the purpose of completing the Union's organizational drive at
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Travelers. Copies of the leaflets were placed in the vents of employee lockers and
were also distributed in person by employees Stanley Korman and Juventino Delgado.
Although Harold Fromkin denied that he knew anything of the announced meeting, I
ado not accept his denial. There is credible evidence to the contrary.
Thus, Rene Giro, a waiter, testified, and it is found, that on October 24 or 25-
`the day the notices were placed in the lockers-Fromkin questioned him as to whether
he had had anything to do with their distribution. When Giro denied that he had,
Fromkin questioned him further in an unsuccessful effort to determine who had
effected the distribution."
Juventino Delgado, a waiter known as "Gino," testified, and it is found, that on
October 25, 1959, about 2 days after he had distributed notices of the meeting to a
number of the restaurant employees, Fromkm, at breakfast, inquired of him whether
he had been responsible for passing out the notice. Gino did not reply directly.
Fromkin then asked Gino if he belonged to a union. Gino told Fromkin he belonged
to a Local 164. Fromkin asked whether Gino also belonged to Local 6, the Charging
Union in this case. Gino said he did not, but that he had in the past. Fromkin
asked, "Is this place going to be union?" Gino said he did not know. Fromkin
then said, "You know you will never succeed with a union in this place. Most of the
people that come to this place are high type executives. They cross picket lines. We
will make another issue like the Stork Club of this place. I have more money than
the Union." 12
About 10 minutes after Gino's conversation with Froinkin reported just above,
Fromkin again spoke to Gino, and, as appears from the latter's credited testimony,
said, "You will have a meeting of the Union on Wednesday, I am also going to have
a meeting at this place."
Thereafter, the restaurant employees were notified orally by their supervisors that
a meeting of employees would be held at the Travelers Hotel on Wednesday, October
28, 1959-the precise time set for the union meeting earlier announced. Employees
who were not scheduled to work on October 28-for example, Rene Giro-were
included among those specifically asked to be present at the October 28 restaurant
employees meeting. Those whose work shifts ended prior to the scheduled meeting-
for example, Gino, whose shift ended at 3 p.m.-were also requested to remain at
the restaurant for the meeting.
At the employee meeting at the restaurant on October 28, 1959, following a gen-
eral discussion concerning restaurant operations and methods of obtaining more effi-
cient operations, it was announced by management that Fromkin was that day in-
augurating for the benefit of his employees, free of cost to them, Blue Cross and Blue
Shield hospitalization and medical benefits.
Notwithstanding testimony to the contrary presented by the Respondents, I am
fully satisfied that the timing of the employee meeting to coincide with the union
meeting was not fortuitous, but that it was deliberately planned that way to interfere
with employee attendance at the union meeting. In light of the widespread circula-
tion of the notices of the union meetings, I am unable to credit the testimony of the
Respondents' management and supervisory personnel that they first learned of the
union meeting months later when the charges in this case were being investigated.
Moreover, their testimony in that regard is in direct conflict with the credited testi-
mony of Delgado and Giro, reported above, showing that Fromkin was not only
aware of the union meeting, but set the employee meeting for the same time with that
specifically in mind.
Similarly, I am satisfied, notwithstanding Fromkin's denial, that the decision to
inaugurate a health insurance plan at that time was directly related to the Union's
organizational drive. Fromkin would have it believed that arrangements for the
Blue Cross-Blue Shield benefits were actually completed by him about 3 or 4 weeks
before the announcement to the employees was made, and that the announcement
was withheld only because the Blue Cross-Blue Shield service organization was slow
in sending the application forms employees were required to fill out. I find Fromkin's
testimony in that respect difficult to accept. For one thing, I do not believe that if
contractual arrangements were actually completed 3 weeks before, the Blue Cross-
Blue Shield service organization would have waited so long to send the required
forms For another, if the contractual arrangements were made when Fromkin says
they were I believe that the Respondents would have supported Fromkin's assertion
ll Giro's testimony referred to above was not specifically denied by Fromkin.
12 Fromkin denied that he ever spoke to Gino about the Union. His denial is not
credited. Gino, who impressed me as a credible witness, had no personal interest in the
outcome of this case Although Gino was laid off or discharged about 2 weeks later, the
complaint does not allege that his termination was discriminatory.
TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1143
with the documentary evidence that would then have been available. Moreover,
Fromkin's assertion fails to find support in the testimony of John Kekllas, the steward,
and Caroline Oelkers, the dining room manager, who, according to Fromkin, were
alone responsible for calling the meeting. Oelkers testified that Fromkin first told
her about the Blue Cross-Blue Shield arrangements several days before the October
-28 meeting was held. This would make it just about the time Fromkin learned of
the union meeting.
Fromkin also would have it believed that in granting the health insurance benefits
he was guided simply by a generous nature ("God gave me money to distribute") and
by a desire to bring his restaurant employees on a par with his organized hotel em-
ployees who for some years had enjoyed such Blue Cross-Blue Shield benefits by
virtue of their collective-bargaining agreement. This, too, I find difficult to accept,
bearing in mind that Fromkin, who had acquired the restaurant almost a year before,
withheld inauguration of the health insurance plan for restaurant employees until
the Union's organizational drive was at its crest. I think it more reasonable to be-
lieve, and I infer and find, that Fromkin's true purpose was to attempt to ward off
organization by the Union of the restaurant employees, by concretely demonstrating
to such employees that they did not need a union to gain benefits enjoyed by organized
employees.
I conclude and find that, by deliberately timing the employee meeting to coincide
with the previously scheduled union meeting and requiring the attendance at the em-
ployee meeting of employees who otherwise would have been free to attend the union
meeting, as well as by announcing and inaugurating the health insurance plan for the
purpose of inducing restaurant employees to refrain from joining, or to abandon the
Union, Fromkin engaged in conduct violative of Section 8(a)(1) of the Act. I
further find that Fromkin's interrogation of employees Giro and Delgado on matters
relating to union activities and membership, when considered in the context of the
Respondent's other conduct in this case, was likewise violative of Section 8(a)(1).
D. The discriminatory discharge of Stanley Korman
Stanley Korman, a waiter, was employed at the Travelers Hotel restaurant in
July or August 1959. He continued to work until Saturday, November 7, 1959.
The General Counsel claims that on the latter date Korman was discriminatorily
discharged. The Respondents deny that Korman was discharged, and asserts that
he quit his employment of his own free will.
The following appears from the credited, and, except as otherwise noted, the
uncontradicted testimony of Korman:
Starting in September 1959, Korman engaged in organizational activities on behalf
of the Union, but endeavored to keep his activities concealed. Prior to the union
meeting of October 28, 1959, Korman, at the request of the Union's outside or-
ganizer, distributed to a number of employees the Union's circular announcing the
meeting. Korman worked on the late shift, and was not scheduled to report for
work on October 28, until 5 p.m. He did not attend the employee meeting at the
restaurant that afternoon. Instead, he attended the union meeting, which, like the
restaurant meeting, was scheduled for 4 p m. The union meeting broke up shortly
before 5 p m., in time for Korman to reach the restaurant before the beginning of
his shift.
Immediately after Korman punched in at the restaurant, Fromkin approached
him and asked him why he had not come to the employee meeting that afternoon.
Korman answered that he had not known of the meeting because the 2 preceding
days had been his days off. Fromkin then asked Korman where he had just come
from. Korman said he had come from home. Nothing further was said at that time.
Later in the evening, Fromkin again approached Korman and asked, "Why didn't
you come to the meeting?" Korman reiterated what he had told Fromkin before.
Obviously skeptical, Fromkin commented, "You are going to be sorry if you don't
tell me where you actually came from," and with that parting note Fromkin walked
away.
Late the next Saturday evening-actually about l a.m. Sunday morning-Korman
was approached at work by Leonard Flam, generally known as "Mr. Lee," the night
captain of waiters, who, it is found, was a supervisory employee.13 Flam asked
is Flam's supervisory status, which was contested, is clearly established by the weight
of credible evidence in the record Thus, it appears that during the late hours, except on
those occasions when Fromkin himself was present, Flam was the highest ranking in-
dividual in the dining room, and, as such, was responsible for directing the work of the
waiters and busboys, receiving complaints, and determining how late the employees must
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Korman whether he had gone to the union meeting the Wednesday before. Korman
admitted to Flam that he had. Flam thereupon confided in Korman that he had
orders from Fromkin to let Korman go the following day, the end of Korman's
workweek. Korman asked why. Flam answered that as far as he knew it was
because Korman had gone to a union meeting the preceding Wednesday.
As it turned out, Korman was not discharged on Sunday, November 1 1959.
Flam who was supposed to have discharged him, did not himself turn up for work
that day nor at anytime during the following week. (Testimony adduced by the
Respondent shows that Flam had absented himself from work that Sunday without
permission or just cause and, as a result, was discharged by the Respondent on
Monday, November 2, 1959.)
On Saturday, November 7, 1959, Korman reported for work at 5 p.m. After
changing clothes, he went at once to the captain's desk, in accordance with the
customary procedure, to determine where his work station was to be that day. As
he was examining the work schedule, Max Cohen, the hotel's chief engineer, came
over-14 Caroline Oelkers, the during room hostess and manager, to whom Cohen
had been talking, was standing nearby. Without preliminary explanation, Cohen
stated to Korman abruptly, "You are very nosey, pack your things. You are
through." Korman demanded to know what Cohen meant, what the underlying
reason was for Cohen's action. Cohen said, "Well, what can I tell you? I can't give
you a reason. It is not my job to tell you reasons. All I know is I was told to let
you go." Korman persisted, "No reason?" Cohen stood firm. "We don't need a
reason to let you go," he said. Cohen told Korman to see John Kekllas, the steward,
who would give him his pay. Korman did as he was directed, was paid off, and left
the hotel, never to return.
Korman's testimony, in its critical aspect relating to his conversation with Flam,
was corroborated by Flam, a witness called by the General Counsel. Flam further
testified as follows: About October 28, 1959, Fromkin called him into the office.
Fromkin told him that there had been a union meeting that afternoon and that he
was going to keep the Union out at all costs. Employing words and gestures perhaps
more ribald than obscene, but in any event no more suitable for explicit repetition
in any Intermediate Report than in a family newspaper, Fromkin indicated that he
considered himself more powerful than the Union. He then said, "I want Stanley
Korman fired." When Flam, expressing surprise , asked why, Fromkin replied, "Give
him any reason you want." Fromkin told Flam to wait until Korman 's workweek
was up on Sunday night and to fire him after he had clocked out. Flam's testimony
as above set forth, although denied by Fromkin, is credited 15
As stated above, the Respondents claim that Korman was never discharged; that
he simply failed to show up for work one day and thereby quit. In an effort to
meet Korman's specific testimony concerning the circumstances of his termination,
the Respondents rely solely upon the testimony of Max Cohen. Cohen testified on
direct examination, but in a manner that appeared to me to lack conviction, that he
could not recall the specific incident testified to by Korman.16 Later, he testified
work. This much is supported not only by the testimony of Korman and Flam, witnesses
for the General Counsel, but also by the testimony of Karel Dherslgny, a witness called
by the Respondent. Flam testified that while employed at the restaurant he hired bus-
boys and on two occasions fired restaurant employees. The principal conflict centered
about the question of whether Plain was in fact authorized to hire and fire. Flam's testi-
mony that he actually did hire was not contradicted, and although the Respondent
attempted to contradict his testimony that be had actually fired employees, the evidence
as it finally developed served only to corroborate Flam. In any event, even if Flam did
not possess authority to hire and fire, it is clear that his other delegated powers and
responsibilities were such as to make him a supervisor within the meaning of the Act.
14 Cohen's supervisory status has been referred to above in the discussion of Lizaso's
case
15 Flam, not a member of the Union and having no interest in the outcome of this case,
by his overall testimony and demeanor left the impression of a highly credible witness.
The Respondents at the hearing went to great lengths in an effort to impeach his testi-
mony on a collateral point, his insistence that he had fired two employees . But, as noted
above, the testimony of the Respondents' own witnesses, when all of it was in, served
only to corroborate Flam's testimony.
1° The only thing he could recall, testified Cohen at that point, was that there had been
an occasion when someone was hanging around while he was trying to do a repair job in
the checkroom and that, in a bad frame of mind, he had told that person that he was
nosy and should get away.
TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1145
that he had never fired any restaurant worker. However, in a sworn statement given
a Board agent prior to the hearing, Cohen had inconsistently stated:
The only time I ever fired anybody or was party to a conversation involving
discharge of anybody other than hotel employees occurred about a month ago
when I fired a restaurant employee. He had been eavesdropping on a conversa-
tion between myself and a guest.
Cohen's sworn statement was dated December 8, 1959. This would place the date
of the discharge to which he referred at just about the time of Korman's discharge.
Confronted with that statement, Cohen altered his testimony and agreed that he had
indeed fired a restaurant worker. But he was vague as to the details. What was
the name of the restaurant worker? He could not remember. What had happened?
A little chap had been hanging around while he was talking to one of the guests, and
he had told him, "Will you get out of here? You're fired. Get out of my way," and
that was all there was to the incident. Did he remember the name of the guest to
whom he was talking? He did not. Did he remember the nature of the conversation
with the guest? It was of a personal nature, something he did not care to talk about
now. Was the guest a close friend of his? No, he had only seen him at the hotel
once, perhaps twice. Did he nevertheless still claim that the conversation was a
personal one? Yes.
Cohen's testimony would appear, if anything, to confirm Korman's assertion that
Korman's severance of employment was the result of a discharge, not a quit.
Cohen's vague and evasive explanation as to the reason for the discharge is, how-
ever, patently incredible. On all the evidence, I credit Korman and accept his ac-
count of what occurred. In view of the Respondent's inability to explain Korman's
discharge on a plausible basis, the true motivation underlying the discharge action
must be inferred. Under all the circumstances of this case, I am persuaded that the
only reasonable inference to be drawn is that Cohen discharged Korman on orders
from Fromkin, and that Fromkin was led to issue such orders because of resentment
against Korman arising from his suspicion that Korman had attended the Union's
meeting on October 28 and was otherwise interested in the Union's organizational
drive to which Fromkin was opposed. That inference I regard as solidly supported
by the following combination of circumstances: (1) Fromkin's interrogation of
Korman on October 28, and his declaration to Korman that Korman would be sorry
for not revealing to him where he had been; (2) Fromkin's instruction to Flam that
same day in the context of antiunion remarks to fire Korman on any pretext; (3)
Cohen's declaration to Korman at the time of the discharge that he had been told
to let Korman go; (4) Cohen's refusal to give Korman any reason for his discharge
other than an obviously pretextuous one; and (5) the Respondents' inability at the
hearing to account for Korman's discharge on any plausible or lawful basis.
On all the evidence, I conclude and find that the General Counsel has sustained the
Section 8(a)(1) and (3) allegations of the complaint relating to the discharge of
Stanley Korman. I further find that the Respondents independently violated Sec-
tion 8(a)(1) by Fromkin's interrogation of Korman on October 28, 1959, and by
Flam's interrogation of him on October 31 concerning matters relating to Korman's
union activities.
E. The discharge of Rene Giro
Rene Giro, a close friend of Steve Lizaso, was hired at the Travelers Hotel res-
taurant as a busboy on July 13, 1959, after having been introduced by Lizaso to the
then manager of the restaurant. After serving 2 months as a busboy, Giro was
promoted to a waiter's job and continued in that capacity until he was discharged on
November 7, 1959. His discharge occurred on the same day as Korman's.
Giro signed a union designation while employed at the restaurant. So far as
appears, he was never active in the Union's organizational efforts. There is evidence,
however, reflecting that Harold Fromkin suspected him of being so active. Thus, as
earlier found, Fromkin, on or about October 24, 1959, questioned Giro as to whether
he had been handing out notices of the union meeting scheduled for October 28.
Again on November 1, 1959, less than a week before Giro's discharge, Fromkin told
Giro, as appears from the latter's credited testimony, that he did not want Giro to
hand out union pamphlets any more.17
Giro's last day of work was Saturday, November 7, 1959. When he arrived at
work early that morning, he sought out Willie Torres, the maintenance man, and gave
him a note containing Steve Lizaso's telephone number. Giro asked Torres to get in
touch with Lizaso, on whose behalf an unfair labor practice charge alleging unlawful
17 Fromkin did not specifically deny Giro's testimony in that respect.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination had theretofore been filed against the Respondent. No one else was
present at the time. About 5:30 that afternoon, after Giro had quit work and while
he was waiting for his car ride home, Giro again spoke to Torres, this time about
nothing in particular. Max Cohen passed by, and observed Giro and Torres engaged
in conversation, but said nothing. Giro had never had any conversation with Torres
at the hotel prior to that day.
Giro's normal quitting time was about 3 p.m., but on November 7 there was a
late afternoon banquet at the hotel, and Giro was kept late. When he left at 5 p.m. that
day, Caroline Oelkers, the restaurant manager, thanked him for having worked that
day. She gave him no indication at that time that his discharge might be under
consideration.
About 6:30 that evening, Oelkers telephone Giro at his home. She told Giro that
he need not report for work on Monday morning; that he had been fired. When Giro
asked for an explanation, her only reply was, "I am sorry. I don't know anything. If
you want an explanation, Mr. Fromkin will give it to you."
On the following Monday, Giro called on Harold Fromkin. Cyrus Fromkin was
with Harold Fromkin in the latter's office at the time. Harold Fromkin told Giro he
had been fired because of a complaint received against him. When Giro asked for
details, Fromkin held up a guest questionnaire form, but did not show the paper to
Giro. He said a written complaint had been received from one of the rooms that
Giro had spilled a bottle of cream on a guest's head. Giro disclaimed knowledge of
any such incident, and added that he did not know how the complaint could possibly
refer to him as he was a dining room waiter and was not engaged in performing room
service. He asked whether the complaint mentioned his name. Harold Fromkin
conceded it did not. Giro asked how Fromkin then knew that the complaint referred
to him. At that point Cyrus Fromkin broke in. He stated in substance that the
discharge action did not have to be based on the exact complaint, that a few
other complaints had been received about him. Neither Harold nor Cyrus Fromkin
showed Giro any of the complaints they claimed to have. Harold Fromkin said he
would send Giro photostatic copies of them. But he never did.18
The Respondents' position with respect to Giro is that Giro was discharged because
of an accumulation of complaints that had been made against him. According to the
Respondents' witnesses, Fromkin had nothing whatever to do with the decision to
discharge Giro; the determination was made solely by the two restaurant managers-
Kekllas, the steward, who was in charge of the kitchen, and Oelkers, the hostess, who
supervised the waiters and busboys in the dining room. Kekllas and Oelkers testified
in substance that Giro had been a capable busboy and room service waiter, but that
18 The findings here are based upon Giro's credited testimony. Fromkin conceded that
Giro called on him that morning to inquire about the discharge, but his account differs
as to details from that given by Giro The principal differences are that Fromkin claims
he actually exhibited three complaint forms to Giro and later that day, as it favor to
Giro who had asked for them, mailed the written complaints to Giro. Fromkin's testi-
mony, however, was marked by contradictions and implausible assertions. Though there
are more, two illustrations should suffice Item* Fromkin's original testimony was
that he told Giro the discharge resulted specifically from the written complaints in his
possession Those complaints, he testified, had been received directly by him. Fromkin
also asserted that he personally had had nothing to do with the discharge decision ;
that the discharge decision was made and effected by Oelkers To buttress the latter
assertion, he testified that the written complaints in his possession had not been shown
by him to Oelkers or discussed with her Asked how, then such complaints could have
possibly influenced the discharge decision, Fromkln shifted position and said there might
have been earlier complaints that lie had told his secretary to give to Oelkers And in-
consistently with his original testimony, Fromkin then further stated that he did not tell
Giro that the discharge was induced by the specific complaints in his possession, but
that lie told him, "Here is part of why I would fire you if Carol [Oelkers] didn't let
you go" Item.: Fronikin, as noted, testified that he sent the original written com-
plaints to Giro as it favor to him, because Giro had asked for them at their meeting
This, if true, would of course explain the Respondents' failure to produce the written
complaints at the hearing But Fromkin was unable to give any plausible reason as to
why he should have mailed them instead of handing them directly to Giro while Giro
was there His only explanation : "I didn't feel like giving it to him at the time. I felt
like mailing them to him "
Giro's overall testimony, unlike that of Fromkin's, was supported by convincing and
consistent detail ; it disclosed no inclination toward inventiveness or exaggeration ; and
his demeanor while testifying was such as to invite credence. To the extent that Giro's
testimony is in conflict with that of Fromkin , I accept Giro's version.
TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1147
sometime after Giro was promoted to a dining room waiter job his attitude changed
and the quality of his work deteriorated sharply, with the result that the restaurant
received some three or four complaints about him on the customer comment forms
that were placed on tables, as well as perhaps a half dozen oral complaints.
The testimony of Kekllas and Oelkers concerning Giro 's alleged deficiencies as a
waiter was couched in the broadest form of conclusory statements-"sloppy service,"
"sloppy uniform ," "slow service," "all around service ." With one exception , no effort
was made to support the generalized characterizations by specific detail as to time or
circumstances.'9
The testimony of Kekllas and Oelkers left me with the overall impression that they
were deliberately seeking to paint a grossly exaggerated picture of Giro's short-
comings as a waiter. Under cross-examination the witnesses conceded that written
complaints on the comment forms were not unusual and that complaints of the
same kind were received about other waiters; in fact it was finally brought out that
not long after Giro's discharge management discontinued its earlier practice of
placing ,the comment forms on tables because too many complaints were being
received. None of the written customer complaints assertedly received with refer-
ence to Giro was produced. The only explanation given for the failure to produce
them was that management followed the practice of destroying all complaints within
a day or so after they were received. The witnesses could not recall .the specific
contents of any of the written complaints. For example, Oelkers, could not even
remember the contents of the last complaint which, according to her testimony at
one point-though even on this her testimony was variable-she received on the
last day of Giro's employment. As to the general content of the complaints, the
witnesses could only state vaguely that they referred in some manner to poor service.
The witnesses had no better memory as to the oral complaints they said they re-
ceived. Although they claim they informed Giro of the complaints, or at least of
some of them, their testimony as to such communications on direct examination
was lacking in specificity, and on cross, was vacillating and evasive.
In a number of respects, the testimony concerning Giro given by Kekllas and
Oelkers, and by Fromkin, too, for that matter, was self-contradictory and contra-
dictory to that of each other. It is unnecessary to cite all the examples of such
contradictions, for they are evident from even a quick reading of the transcript.
The following may however be pointed up because they bear importantly on the
credence to be attached to the testimony of .the Respondents' witnesses that the dis-
charge decision was made entirely by Kekllas and Oelkers, without Fromkin's inter-
vention, participation, prompting, or even advance knowledge.
Kekllas testified that he and Oelkers jointly reached a final decision to discharge
Giro about 2 or 3 days before his actual discharge date, but delayed execution of
that decision only because they wanted first to find a replacement for Giro. Kekllas
further testified that a replacement for Giro was found prior to his discharge. Of
this he was "quite sure." He could not, however, remember the name of the re-
placement When asked if the name of the replacement would appear on the pay-
roll record, Kekllas indicated uncertainty, stating he did not know, adding that that
information would have to come from Oelkers who kept the records. At that time
it was indicated that the question would be reserved for Oelkers who was to appear
as a witness later. Oelkers took the witness stand the following day. In a pre-
hearing affidavit to a Board agent, which is in evidence, Oelkers had stated, "I
already had a replacement for Rene [Giro] when I discharged him." But at the
hearing, Oelkers, possibly anticipating that she might otherwise be called on for
documentation, testified, at direct variance not only with Kekllas' earlier testimony
but with her own sworn statement, that she did not have a replacement for Giro
when she discharged him. Contradicting Kekllas' testimony further, Oelkers testi-
fied that, although she had been "toying" with the idea of discharging Giro for a
week, she arrived at no definite decision to discharge him until after he had left work
on November 7 What precipitated the discharge decision at that time? After Giro
left work that night she had received, she said, a verbal complaint about Giro from
a chef, something about Giro's attitude when he came into the kitchen for an order.
Was it .the same chef who had testified for the Respondents the day before and who
"'The one exception • Oelkers testified that Giro once spilled a pitcher of cream on a
customer This, she stated, occurred about 2 weeks after Giro became a waiter, which
would fix the time at a date about 6 weeks before Giro's discharge It is noted that a
"spilled cream" incident was also the only complaint to which Fromkin specifically re-
ferred at the time of Giro's discharge interview with him Fromkin, however, stated
that the incident had occurred in a hotel room, and it is undisputed that Giro performed
no room service work after be became a dining room waiter.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been questioned about any such incident? She did not remember. Inter-
jecting the Respondents' counsel expressed doubt that she was referring to a chef,
for there was only one chef . Oelkers quickly corrected herself. She had meant
one of the cooks. Which one? She could not recall. Just what did the cook
actually tell her about Giro. She did not actually remember the details, because
she "couldn't spend much time in the kitchen," but it was the "annoying complaint"
from one of the cooks-unidentified and not produced as a, witness-that crystallized
her decision to fire Giro, so she testified.
Giro, testifying as a rebuttal witness, conceded that, while learning the trade as a
waiter, his work at various times had been criticized by Oelkers and Kekllas and that
as a waiter he had been told by them on various occasions to do things differently.
But he categorically denied that he had ever been told that complaints had been
made against him by others, except on the occasion of his post-discharge interview
with Fromkin.
On the basis of my evaluation of all the testimony and of the witnesses giving it,
I credit Giro's testimony and reject the testimony of the Respondents' witnesses in
conflict therewith. In the light of the vague, contradictory, and often implausible
character of the testimony adduced through the Respondents' witnesses, I do not be-
lieve that the discharge decision was made by Oelker and Kekllas, or either of them,
or for the reasons they state. The fact that Oelkers gave Giro no reason for his dis-
charge, but instead referred him to Fromkin for an explanation, is alone enough to
persuade me that it was Fromkin who made the discharge determination and that
Oelkers merely acted on his orders. Nor do I believe that Fromkin's decision to
discharge Giro was in truth motivated by the reason declared by Fromkm to Giro
in the post-discharge interview. It as clear that the specific complaint to which
Fromkin referred could not have involved Giro, unless it was an ancient one dating
back to the time when Giro was a room service waiter. And if in fact Fromkin had
other written complaints in his possession at the time, I do not think he would have
hesitated to show them to Giro. In sum , I am satisfied from all the evidence I find
credible that Giro was discharged for some reason other than that declared to Giro
or now asserted by the Respondents.
Rejection of the Respondents' defense is of course not alone enough to support a
finding of discrimination, for the burden is on the General Counsel to establish
affirmatively that the discharge was in fact bottomed on considerations the Act
makes unlawful. The General Counsel suggests that the Respondents must have
learned after Giro left work on his last day of employment that Giro had contacted
Torres to seek Torres' aid on Lizaso's pending discrimination claim, and discharged
him for that reason. But that is speculative. From the evidence as presented, there
is no basis for a valid inference that Torres reported to management what Giro had
asked of him. Wholly apart from the General Counsel's suggested theory, however,
other circumstances in this case persuade me that the Respondents' discharge action
was unlawfully motivated. The evidence shows that Fromkin suspected Giro of
being engaged in union activities to which he was opposed. Giro's discharge occurred
on the same day and almost the same hour as the discriminatory discharge of
Korman who also was suspected by Fromkin of being engaged in union activities.
Although requested, no reason was given Giro for his discharge by the supervisor
who advised him of it, and the reason later given him by Fromkin was patently a
false one. An employer does not ordinarily assign a false reason for a discharge
except as a cover for an unlawful one. In view of the Respondent's inability
plausibly to explain Giro's discharge on any lawful basis, the only reasonable in-
ference to be drawn from the combination of the aforementioned considerations is
that Giro, like Korman, was discharged because of his suspected union activities 20
I so find.
20 In reaching that conclusion, I have taken into account record testimony reflecting
that about the time of Giro's discharge the Respondents found it necessary to effect a
reduction in force because of a falling off of restaurant business. Included among those
laid off was Juventino ("Giro") Delgado, who was also believed by Fromkin to have been
active in the Union, but who is not claimed in this proceeding to have been unlawfully
discriminated against. No claim is made by the Respondents, however, that Giro was
terminated as part of that reduction in force Moreover, it appears from Kekllas' testi-
mony that those selected for layoff on the reduction in force, including Delgado, were
chosen because they were lowest in order of seniority. The Respondents do not contend
that Giro's seniority was such as to have subjected him under normal circumstances to
the reduction in force at that time. Further, they agree that Giro was discharged, not
laid off. It may be-although the Respondents make no such specific claim-that the
Respondents' decision to discharge Giro at that particular time was influenced in part by
TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1149
On all the evidence , I conclude and find that the General Counsel has sustained the
Section 8 (a)(1) and ( 3) allegations of the complaint relating to the discharge of
Rene Giro.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connection
with the operations of Respondents set forth in section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondents engaged in unfair labor practices, I shall
recommend that they be ordered to cease and desist therefrom, and take certain
affirmative action in order to effectuate the policies of the Act.
Having found that the Respondents discriminated with regard to the hire and
tenure of employment of Steven Lizaso, Stanley Korman, and Rene Giro, I shall
recommend that the Respondents offer them immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for any loss of pay suffered as
a result of the discrimination against them, by payment to each of them of a sum of
money equal to the amount he would have earned from the date of his discriminatory
discharge to the date of the offer of reinstatement, less net earnings to be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, 291-294. Earnings in any one particular quarter shall have no,
effect upon the backpay liability for any other such period. It will also be recom-
mended that the Respondents preserve and make available to the Board upon request,
payroll and other records to facilitate the checking of backpay due.
As the unfair labor practices committed by the Respondents are of a character
striking at the roots of employee rights safeguarded by the Act, it will also be
recommended that the Respondents cease and desist from infringing in any manner
upon the employee rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents, Travelers' Hotel, Inc. and Harold L. Fromkin together consti-
tute a single employer within the meaning of Section 2(2) of the Act, and as such an
employer, they are engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Hotel and Club Employees Union, Local 6, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Steven
Lizaso, Stanley Korman, and Rene Giro, thereby discouraging membership in the
Union, the Respondents have engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing their employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondents have engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
the consideration that someone else would have to be let go, if not Giro. But that would
not make the Respondents' action any the less unlawfully discriminatory, if, as would
nevertheless appear the Respondents' selection of Giro for release, rather than some other,
was motivated by discriminatory considerations.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the Labor Management Rela-
tions Act, we hereby notify our employees that:
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Hotel and Club Employees Union,
Local 6, Hotel and Restaurant Employees and Bartenders International Union,
AFL-CIO, or any other labor organization of our employees, by discharging or
otherwise discriminating against any employee in regard to his hire, tenure of
employment, or any term or condition of employment, except as authorized in
Section 8(a) (3) of the Act, as amended.
WE WILL NOT threaten employees with reprisal if they engage in activity on
behalf of the aforesaid Union, or any other labor organization.
WE WILL NOT prevent employees from attending union meetings by requiring
employees who otherwise would be free to do so to attend, instead, meetings
deliberately and for that purpose called by us for the same time.
WE WILL NOT promise or grant economic benefits to our employees at the
time of any union-organizing campaign where the purpose thereof is to induce
employees to refrain from, or abandon, union membership.
WE WILL NOT interrogate employees concerning their union views, member-
ship, or activities, in a manner constituting interference, restraint, or coercion
within the meaning of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor organi-
zations, to join the aforesaid labor organization, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer Steven Lizaso, Stanley Korman, and Rene Giro immediate and
full reinstatement to their former or substantially similar positions without
prejudice to their seniority and other rights and privileges and make them whole
for any loss of pay suffered as a result of the discrimination against them.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of any labor organization, except as that right may be affected by
an agreement requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act. We will not discriminate in
regard to the hire or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf of any labor
organization.
TRAVELERS HOTEL, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Represent.itive) (Title)
Dated------------------- -------------------------------------------
(HAROLD L. FROMKIN)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Midstate Hauling Co., Inc. and William F. Howell and Harold
R. Holderbaum . Cases Nos. 12-CA-900 and 12-CA-905. Janu-
ary 5, 1961
DECISION AND ORDER
On May 20, 1960, Trial Examiner Phil Saunders issued his Inter-
mediate Report in the above-entitled proceeding, finding that Midstate
Hauling Co., Inc., hereinafter called Respondent, had engaged in
and was engaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
129 NLRB No. 140.