Warren Chateau Hall, Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1974

214 N.L.R.B. 351 (N.L.R.B. 1974)

WARREN CHATEAU HALL, INC.
Warren Chateau Hall , Inc. and Michael Maggard and
Dominic Zombo . Case 7-CA-10684 (1) and (2)
October 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On March 29, 1974, Administrative Law Judge
Thomas F. Maher issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National. Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found- that the
General Counsel failed to establish that Respondent
discriminatorily discharged employees Maggard and
Zombo in violation of Section 8(a)(3) and (1) of the
Act. We disagree.
The facts, as more fully set forth in the Adminis-
trative Law Judge's Decision, are as follows: Michael
Maggard was - hired by Respondent in September
1970 and has worked steadily, part time, in its main-
tenance department. At the time of his discharge, on
September 5, 1973, Maggard was the second most
senior employee in-the maintenance department. In
March 1973, he was appointed assistant to Joseph
Gargalino, the supervisor of maintenance, and given
a salary increase, making him the highest paid em-
ployee in the department.
Dominic Zombo was hired in July 1970. At the
time of his discharge, also on September 5, he was
the most senior-employee in the maintenance depart-
ment and received the next highest rate of pay. Like
Maggard, Zombo was a part-time employee. Zombo
twice resigned for personal reasons and was prompt-
ly reinstated upon his own request, most recently in
June 1973, 2 months before his discharge.
Prior to their discharges, the only reported discipli-
nary action taken against Maggard and Zombo oc-
curred in February 1973. At that time, Respondent
discovered that. Maggard, Zombo, and three other
employees had been punching one another's time-
cards, thereby enhancing their pay by claiming addi-
351
tional hours not worked. The men were verbally rep-
rimanded by Respondent's president, -Hawk, and
docked 2 days' pay each. Despite- the seriousness of
the offenses, neither man -was discharged. Indeed,
shortly thereafter Maggard was promoted and given
two pay raises, and President Hawk personally ap-
proved Zombo's reinstatement following his June ,
1973 resignation. - -
In July 1973, employees in Respondent's mainte-
nance department became interested in organizing
for union representation. This interest was first
aroused when John Lipski, a personal friend of Gar-
galino, appeared at Respondent's premises to discuss
personal matters with Gargalino. Upon learning that
Lipski was a representative of Local 614 of the
Teamsters, a group of employees, including Mag-
gard, Zombo, Spytman, and others, discussed with
Lipski the possibility of organizing Respondent's
manintenance department and inquired into the ben-
efits of unionization. Gargalino testified that he was
present and participated in some of these discussions
between Lipski and the employees. Gargalino's testi-
mony in this regard is uncontradicted, and corrobo-
rated by Maggard and Zombo.
The events which immediately preceded the dis-
charge of Maggard and Zombo occurred on August
28, 1973. On that day, Gargalino, on instructions
from President Hawk, told part-time employees
Maggard, Zombo, and Spytman that due to a slack
period they were not to report to work on the follow-
ing day. When Spytman went to the hall to pick up
his paycheck on August 29, he found at least three
other men working. He reported this fact to Maggard
and Zombo, who thereupon joined him at the hall.
The three then prevailed upon Supervisor Gargalino
to permit them to work. The next day, when Hawk
discovered that the men had worked the preceding
day contrary to his instructions, he removed - their
timecards from the rack. On September 5, when
Maggard, Zombo, and Spytman next reported for
work, Hawk fired all three of them. Maggard made
independent inquiries into the cause of his discharge,
but Hawk refused to give him a reason. Maggard
then sought out Gargalino, who said he knew noth-
ing about it. On September 8, Zombo asked Hawk
the reason for his discharge and was told that he
could consider himself fired or quit, but that Hawk
did not want any more part-timers. Spytman, who
also was.a part-time employee, was subsequently re-
hired, without explanation.
The Administrative Law Judge, in concluding that
General Counsel failed to establish that the dis-
charges of Maggard and Zombo violated the Act,
relied principally on his finding that Hawk lacked
knowledge of the employees' union activities. We
214 NLRB No. 55
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find, however, that Respondent had such knowledge
through Supervisor Gargalino, who admittedly was
present when the employees discussed the subject of
organizing the maintenance department with
Gargalino's friend, Lipski. Since no exceptions were
taken to the Administrative Law Judge's finding that
Gargalino is a supervisor, we find that his knowledge
of the employees' union activities suffices to clothe
Respondent'with such knowledge.'
We further find that Maggard and Zombo 'were
discriminatorily discharged because of their union
activities in violation of Section 8(a)(3) of the Act.
The explanation offered for the discharges by Re-
spondent at the hearing do not withstand scrutiny.
At the hearing, Respondent's president, Hawk, stated
that his reason for discharging Maggard and Zombo
was their failure to obey orders. However, Supervisor
Gargalino not , only authorized Maggard, Zombo,
and Spytman to work on August 29, but signed their
timecards as well. Furthermore, the discipline im-
posed by Hawk in this instance where the men had
actually worked, albeit against his orders, was far
more severe than the punishment he deemed neces-
sary in February when the men had falsified their
timecards with added hours. On that occasion, the
men's behavior was not only totally unauthorized but
amounted to a form of theft. Yet Hawk merely repri-
manded the men and docked 2 days of their wages.
We also note Hawk's evasion and lack of responsive-
ness when Maggard and Zombo solicited explana-
tions for their discharges. When Zomba inquired as
to the reason for his discharge, Hawk told him "[you
are] quit, fired, laid off, any way [you] want it. ... "
Hawk further `remarked that "he didn't want any
more part-time help." Yet, Hawk's actions are not
consistent with -this explanation. Shortly after the dis-
charge, Hawk rehired Spytman, a part-time employ-
ee who had engaged in precisely the same conduct as
Maggard and Zombo. Hawk offered no explanation
for this disparate treatment. It is on the basis of these
established facts that we find that Maggard and
Zombo were discriminatorily discharged. Maggard
and Zombo took part in the organizational activity
and Respondent had knowledge of their activities.
Respondent's knowledge of their union involvement,
coupled with the timing and circumstances of the dis-
charge, as well as the inadequacy of Respondent's
explanation thereof, justifies an inference, which we
make, that Respondent discharged Maggard and
Zombo in reprisal for their union activities and in
violation of Section 8(a)(3) of the Act.
1 Red Line Transfer & Storage Company, Inc., 204 NLRB 116 (1973); Une-
ca, Inc, 175 NLRB 567, 570-571 (1969), enfd. 433 F.2d 974 (C A. 8, 1970).
Remedy
Having found that Respondent discriminated
against Michael Maggard and Dominic Zombo by
discharging them because of their union activities, we
shall order that Respondent cease and desist there-
from and take certain actions intended to effectuate
the policies of the Act.
Affirmatively, Respondent is ordered to offer Mi-
chael Maggard and Dominic Zombo immediate and
full reinstatement to their respective former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority and other rights and privileges, and to make
them whole for any-loss of earnings .and other bene-
fits suffered because of Respondent's discrimination
against them,. Their loss of earnings shall be comput-
ed as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and F. W. Woolworth Company,
90 NLRB 289 (1950).
CONCLUSIONS OF LAW,
1. Respondent Warren Chateau Hall, Inc., at all
times material has been and is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local 614, is a labor organization within the meaning
of Section 2(5) of the Act. -
3. By discharging Michael Maggard and Dominic
Zombo because of, their union activities, Respondent
has discriminated and is discriminating against them
in regard to their hire and tenure of employment,
thereby discouraging membership in a labor organi-
zation within the meaning of Section 8(a)(3) of the
Act.
4. By the foregoing conduct Respondent has inter-
fered with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the ex-
ercise of rights guaranteed in Section 7 of the Act in
violation of Section 8(a)(1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, we issue the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Warren Chateau Hall, Inc., Warren, Michigan, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from: -
(a) Discouraging membership in a labor organiza-
WARREN CHATEAU HALL, INC.
tion by discharging or otherwise discriminating in re-
gard to the hire and tenure of employment of any
employee or applicant for employment.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 614, or any other labor organiza-
tion, to bargain collectively with representatives of
their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or
other mutual aid or protection or to refrain from any
or all such activities, except to the extent that such
rights 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.
2. Take the following affirmative action:
(a) Offer to Michael Maggard and Dominic Zom-
ba immediate and full reinstatement to their re-
spective former positions or, if those positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of
earnings and other benefits suffered by them because
of the discrimination against them, in the manner set
forth above in the section entitled "Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records - necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its place of business at the Warren Cha-
teau Hall, Inc., Warren, Michigan, copies of the at-
tached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director
for Region 7, after being duly signed by
Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
2 In the event that 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" shaft read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
353
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose'
To refrain from any and all such activities.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT discharge, or otherwise discrimi-
nate against, our employees because of their ac-
tivities on behalf of International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 614, or any other la-
bor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL offer to Michael Maggard and Do-
minic Zombo immediate and full reinstatement
to their respective former positions or, if those
positions no longer exist, to substantially equiva-
lent positions, without prejudice to their senior-
ity and other rights and privileges, and make
them whole for any loss of earnings and other
benefits suffered because of the discrimination
against them.
WARREN CHATEAU HALL,
INC.
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Administrative Law Judge: Upon
charges filed on October 23, 1973, by Michael Maggard
and Dominic Zombo, individuals, against Warren Chateau
Hall, Inc., Respondent herein, the Regional Director for
Region 7 of the National Labor Relations Board, herein
called the Board, issued a complaint on behalf of the Gen-
eral Counsel of the Board on November 30, 1973, against
the Respondent, alleging violations of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended (29
USC §151, et seq.), herein called the Act. In its duly filed
answer the Respondent, while admitting certain allegations
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the complaint , denied the commission of any unfair la-
bor practice.
Pursuant to notice a trial was held before me in Detroit,
Michigan, whereat all parties were present, represented
and provided full opportunity to call and cross -examine
witnesses , to,make oral argument and to file briefs. Briefs
were filed with me by both Respondent and counsel for the
General Counsel on February 7, 1973.
Included with the briefs submitted by the counsel for the
General Counsel was a motion to correct the official tran-
script of the hearing of this matter in which counsel alleges
numerous and substantial errors of transcription . In this
respect counsel sets forth 43 specific instances of error, to-
gether with his version of the correction to be made. I have
studied the record , particularly in light of the errors al-
leged, and find merit in counsel's motion . Accordingly,
upon my independent study, the motion is granted and the
record is corrected , as requested, the physical corrections
on the original copy of the transcript of the record being
initialed by me.
In addition to counsel's unfavorable comment upon the
accuracy of the transcript of the record -Respondent's
counsel has likewise voiced similar objection , stating that
"the official transcript contains an excessive and substan-
tial number of errors and that such excessive and substan-
tial number militate against correction of the transcript
either by proposed correction , by stipulation or by mo-
tion."
As previously noted I have carefully studied the record,
particularly with the view to determine its sufficiency for
the purposes herein. It must be said that the considerable
errors to which counsel for the General Counsel invited my
attention for correction far from exhaust the totality of
inaccuracies in the record . Many of these additional ones,
most of them obvious and grammatical or syntactical in
form; I have corrected myself and made appropriate nota-
tion on the original transcript. Others remain uncorrected,
no attempt having been made to launder the entire 128
pages. In the course of my several readings of the record,
however, and by reference to my notes , my personal recol-
lections, the exhibits in evidence , the substance of counsel
for the General Counsel's motion and brief, and finally the
brief of the Respondent based upon what he properly
terms an uncorrected transcript , I am satisfied that I have
adequately digested the contents of this transcript of the
record for the purposes for which it is intended , namely the
making of findings of fact. Accordingly, upon consider-
ation of this transcript , together with the digest which I
routinely make of transcripts in all cases tried before me,
and together with all the other materials submitted by way
of exhibit , motion, or brief, as described above, I am satis-
fied that the -record herein is adequate to support such find-
ings of fact as I make herein . I accordingly reject any sug-
gestion that further action be taken to supplant or amplify
the record herein.
Upon consideration of all the foregoing , and particularly
upon my observation of the witnesses,' I make the follow-
ing:
11 have carefully considered the testimony of all witnesses , including
those whose testimony I neither accept nor refer to. To the extent that I do
not rely upon or I reject in part or entirely the testimony of any given
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
1. THE NATURE OF RESPONDENT' S BUSINESS
Warren Chateau Hall, Inc., Respondent herein, is a
Michigan corporation maintaining an office and place of
business at Warren, Michigan, where it is engaged in the
business of providing retail food catering and banquet hall
rental service to the public.
During the year ending December 31, 1972, a represen-
tative operating period, Respondent, in the course and con-
duct of its business operations, derived gross revenues in
excess of $500,000. During 'the same period it purchased
natural gas from Consumers Power Company valued in
excess of $2,000, said natural gas being shipped directly to
Consumers Power Company within the State of Michigan,
from sources located outside-the State of Michigan.
Upon the foregoing, stipulated at the hearing, I conclude
and find Respondent to be an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 614, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, here-
in called the Union, alleged to have been represented by an
individual referred to in the record, is admittedly a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Maintenance Operations
The maintenance crew at Respondent's establishment is
principally occupied with preparing the several banquet
halls for parties and with cleaning them up after parties
have been held. Ten or eleven employees are so engaged
under the direction of Joseph Gargalino, whom I find to be
a supervisor within the meaning of Section 2(11) of the
Act.2 Gargalino has been so employed since he was hired
in June 1973. Theretofore the position was occupied by
Edward Slommsky who left Respondent for other employ-
ment.
witness it is my intent thereby to indicate that such part or whole of the
testimony, as the case may be, is discredited by me. Jackson Maintenance
Corporation, 126 NLRB 115, 117, fn. 1 (1960), enfd 283 F.2d 569 (C.A 2,
1960). To the extent that I credit any witness only in part I 'do so upon the
evidentiary rule that it is not uncommon "to believe some and not all" of a
witness' testimony. N.L. R.B. v. Universal Camera Corporation, 179 F.2d 749,
754 (C.A. 2)
In evaluating the testimony of each witness I have relied specifically upon
his demeanor-and have made my findings accordingly, and while apart from
considerations of demeanor I have taken into account inconsistencies and
conflicting evidence, my failure to detail each of these is not to be deemed
a failure on my part to have fully considered it Bishop and Malco, Inc,
d/b/a Walker's, 159 NLRB 1159, 1161 (1966).
2 The record is clear that Gargalmo was hired to direct the maintenance
work, that he responsibly does so, that he is empowered to grant time off,
that he has -effectively recommended the hiring of individuals and is author-
ized to reprimand those under his charge for derelictions in the performance
of the duties he assigns them.
WARREN CHATEAU HALL, INC. 355
In addition to Gargalino Respondent's supervisory com-
plement included Joseph Kaurich, Sr., and Mrs. Ruth
Hawk, wife of Respondent's president. As to Kaurich, em-
ployee Michael Maggard testified without contradiction
that there was a sign posted in Respondent's office which
stated that Kaurich "was now the assistant manager and
his orders were to be followed." Similarly, employee- Mi-
chael Maggard testified that he has seen Kaurich give in-
structions and orders to bartenders and waitresses and that
to his knowledge Kaurich was in charge of personnel at
night, presumably during functions held in halls. Upon the
failure of any of Respondent's witnesses to deny this testi=
mony I accept it and upon it conclude and find that Joseph
Kaurich is a supervisor within the meaning of Section 2(11)
of the Act.
Mrs. Ruth Hawk's duties were likewise described by
Maggard. Thus he testified that it was- she who -booked
orders for the use of the hall and gave the employees in-
structions for setting them up. In this respect Maggard tes-
tified that Mrs. Hawk had so instructed him. He also testi-
fied that it was she who accepted his application for his
initial employment and then informed him that he was
hired. Mrs. Hawk was present during this testimony and
testified in Respondent's behalf thereafter. She was neither
questioned as to her duties nor did she deny the testimony
of Maggard- respecting them. Accordingly, I accept
Maggard's'undenied version and conclude and find that
Mrs. Hawk has authority to and does hire employees and
that she responsibly directs them in the performance of
their work and is thereby constituted a supervisor within
the meaning of Section 2(11) of the Act.
The maintenance work force consists principally of male
students working on a part-time basis, albeit their individu-
al total weekly accumulation of hours frequently exceeds
40. Included among these employees are Michael Mag-
gard, Dominic Zombo, the charging parties herein, and
Duane Spytman, all of whom were discharged, allegedly
for cause, on September 5, 1973. Spytman was reinstated
thereafter under circumstances not disclosed in the record.
The discharge and failure to reinstate Maggard and Zombo
form the subject matter of this proceeding.
B. Sequence of Events
Michael Maggard was hired by Respondent in Septem-
ber 1970 and has worked part-time steadily since that time,
while attending college. He is the second oldest employee
in seniority. In March 1973 Maggard was assigned- the du-
ties of assistant to the then supervisor of maintenance, Ed-
ward Slominsky, and was paid at the rate of $3 per hour,
the highest rate paid to any of the employees. This pay he
continued to receive until his discharge.
Dominic Zombo was hired in July 1970 and is the senior
employee in the maintenance group. Fle, like Maggard, is a
part-time employee attending school'full time. His final
rate of pay was $2.50. Twice during his tenure he resigned
his job for personal reasons and each time thereafter was
reinstated upon request.
The background of the occasion on which Maggard and
Zombo were discharged on September 5, 1973, begins
sometime previously. For Zombo it began in mid-1972
when, at the close of a, party for the bartenders at
Respondent's establishment, he and several other employ-
ees came upon a cache of liquor in a basket. By the flip of
a coin Zombo became the beneficiary of this find. After he
had taken it home he had second thoughts on the righ-
teousness of his action and discussed it over the telephone
with Joseph Kaurich, Jr., the son of the assistant manager,
and Zombo's good friend. Thereafter Mrs. Kaurich, the
boy's mother and an -employee with Respondent, called
Zombo back and told him that the liquor belonged to
someone at a party who had won it as a prize and that she
would have someone pick it up from 'Zombo. Although
Zombo heard nothing further of this incident and does not
know if President Hawk knew of it I- would reasonably
assume that it was within the knowledge of Assistant Man-
ager Joseph Kaurich.
Both Maggard and Zombo were involved in a more seri-
ous incident in February 1973, together with three other
employees. A synthesis of the testimony of Zombo and
Maggard discloses that it came to President Hawk's atten-
tion that the five employees involved were punching in one
another's timecards for periods during which the owner of
the card was not at work, thus enchanting their pay by that
many additional hours. The employees involved were se-
verely reprimanded by Hawk and each was docked 2 days'
pay. The timeclock was moved into Hawk's office. -
Interest in self-organization among the employees com-
menced sometime in July 1973. It coincided with a visit of
John Lipski to his friend, Supervisor Joseph Gargalino, at
Respondent's hall. The visit and a subsequent one, accord-
ing to Gargalino, was prompted first by an effort by Lipski
to enlist Gargalmo's interest in construction work, his for-
mer occupation, in another part -of the state. Then, again
according to Gargalino Lipski, an erstwhile used-car dealer
as well as a minor construction enterpreneur, learned of
Gargalino's son's interest in purchasing a sports car and
returned to visit with this in mind. Meanwhile it was
learned by the employees that Lipski was also a representa-
tive of Local 416 of the Teamsters, herein referred to as the
Union.
In the course of his visits with Gargalino Lipski was
sought out by the employees, including Zombo and Mag-
gard, and he engaged them in discussions relating to the
benefits to be derived from joining the Union and the ad-
visability of organizing the group. It was the alleged obser-
vation of what transpired at these several meetings, includ-
ing what was overheard, that forms the basis of General
Counsel's claim that Respondent had knowledge of the
union activities of its employees. Respondent disclaims any
knowledge whatever of such union interest. This will be
explored in further detail hereafter.
From this point in the sequence of events testimony of
the several witnesses for the General Counsel becomes cru-
cial. At the outset it is to be noted that I find employee
Maggard's testimony to be unreliable. As will appear in
some detail hereafter his account is fraught with so much
that is inconsistent and contradictory that I am con-
strained to reject it.
On Tuesday, August 28 Supervisor Gargalino, on in-
structions from President Jerry Hawk, told employees
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maggard, Zombo, and Spytman, and presumably other
employees, that due to a slack period -in the work there
would be no work for them on the following day, the work
staff being confined to three employees who had special
jobs to perform.3
Employee Spytman, according to Maggard, called him
at his home at 9:30 a.m. and told him that when he (Spyt-
man) went to the hall that morning for his check he found
"everyone" at work.4 Maggard immediately called Zombo
who testified that Maggard announced that the whole crew
was at work. The two of them felt they should have been
called and decided to appear for work, despite instructions
to the contrary. When they appeared at the hall at approxi-
mately 10:30 a.m. Gargalino was away on an errand so
they awaited his return, engaging in work on the stage in
the meantime. When Gargalino returned Maggard, Zom-
bo, and Spytman began a continuous harangue with him
seeking to persuade him to let them go to work. By 11:30
Gargalino succumbed to their persuasion and told them to
get to work. At that time he noted on the timecard of each
that they commenced work at 11 a.m., none of them having
actually punched in themselves. Thereafter the three em-
ployees performed tasks assigned them until they punched
out at 3 p.m.
Upon his return from out of town on the following
morning President Hawk reviewed the timecards of those
who had worked on the previous day and noted the three
unauthorized appearances. Hawk testified that he dis-
cussed this matter with Gargalino thereafter. Gargalino
testified that he did not. I do not find a resolution of this
testimonial dispute to be critical to any issue herein but I
do deem it a noteworthy illustration of the vague and con-
tradictory nature of evidence adduced generally.
When employees Maggard, Zombo, and Spytman next
appeared for work on September 5, they noted that their
timecards were missing from the rack. Each went to Mrs.
Hawk to inquire the reason and she informed them that
they were to see Mr. Hawk before they went to work.
Hawk finally appeared at 10 a.m. and Maggard asked him
why his card was pulled. Hawk replied that he had been
fired, but refused to give him a reason . Maggard then
sought out Gargalino who told him he knew nothing about
it. Maggard returned to see Hawk later in the day, again
seeking to learn why he had been terminated. This time he
asked Hawk if the incident of the previous week (described
above) had anything to do with his discharge. Hawk con-
tinued his refusal to discuss the matter.
After employee Zombo was referred to Hawk by Mrs.
Hawk he went home, and did not reappear until 7:30 that
evening. Meanwhile, Maggard had telephoned Zombo and
given him an account of his visit with Hawk and the conse-
quences. It was not until September 8, however, that Zom-
bo was able to meet with Hawk himself. On that day he
visited Gargalino who brought him to Hawk. When Zom-
3 In relying for this finding upon the testimony of Gargahno and employ-
ee Zombo I reject Maggard's testimony that Gargalmo had told him on
Tuesday evening that he would call him the next day (which he did not do)
to tell him whether or not there would be work for him. Similarly, I reject
Maggard's testimony that "almost everyone was at work." Instead I accept
the figure of three supplied by Gargalmo and "only a few of us" by Zombo.
4 Spytman was not called as a witness
bo asked Hawk the reason for the discharge Hawk replied
that he could consider himself as fired or quit, but in any
event he did not want any more part-time employees. Zom-
bo then asked why Spytman had been rehired and Hawk,
according to Zombo, "then started to beat around the
bush, he wouldn't give . . . a straight answer." As noted,
Spytman was returned to his job, with no reason for the
action assigned in the record. Neither Maggard nor Zombo
has been reinstated. Testifying at the trial of 'the matter
Hawk stated that after learning'of the appearance of the
employees for work after being instructed not to appear
and learning from Mrs. Kaurich, Respondent's cook, of
their insistence upon going to work he then decided to fire
them. He offered no explanation for Spytman's return to
work.
C. Respondent's Alleged Knowledge of Union Activity
There is a sharp conflict as to whether Respondent was
aware of the union activity being generated by Union Rep-
resentative John Lipski's visits with Gargalino. I have care-
fully reviewed the several versions of what transpired at
these meetings and find them to be contradictory in some
respects and obscure in others, Three witnesses called by
the General Counsel describe the events.
Employee Maggard testified to Lipski, the unionman,
having coffee at the bar with his friend Supervisor Gargali-
no in July or August. Mrs. Hawk came into the hall, ap-
proached Gargalino and asked him if Lipski was a union-
man. Maggard did not hear the response. This, he testified,
was all he ever heard Mrs. Hawk say about the Union. On
cross-examination, however, Maggard testified that several
times prior to this he heard Mrs. Hawk say, in her office,
that they would close down if a union came in.
Gargalino likewise testified concerning the incident in-
volving Mrs. Hawk and a second incident to be considered
hereafter. But unlike Maggard, he places the dates of both
conversations as very close to the discharges of Maggard
and Zombo on September 5.
Mrs. Hawk featured in what appears from Gargalino's
testimony to be a second conversation. Gargalino was
again entertaining Lipski at the bar, discussing autos for
the most part, in the presence of three or four employees.
According to Gargalino Maggard and Zombo "might have
been in there." Maggard and Zombo testified that they
were there. Gargalino continued; when the employees
learned Lipski was a union representative they began to
discuss their problems with him, and Mrs. Hawk appeared
and asked if there was a unionman in the hall. Gargalino
avoided the question by telling her that he would talk to
her in the office. When he did so Mrs. Hawk asked if Lip-
ski was trying to get something started for a union. Only
Gargalino was present for this conversation, and he is a
supervisor.
A review of the findings respecting this meeting between
Gargalino and Mrs. Hawk discloses that first only one inci-
dent is referred to, and thereafter there arises the distinct
impression there were two incidents involved. Similarly, it
is not at all certain whether or not employees were present
when Mrs. Hawk appeared. And finally, it is not clear from
all the testimony whether she asked if (1) Lipski was a
WARREN CHATEAU HALL, INC.
unionman or (2) if there was a unionman in the hall. The
only certain testimony is Mrs. Hawk's question about the
Union which she put to -Supervisor Gargalino in the priva-
cy of her office-whether there was in fact any union activ-
ity going on. All else is contradiction , one witness contra-
dicting the other, the testimony of each itself self-contra-
dictory. Under such circumstances I credit neither of the
witnesses , I find that Zombo places Mrs. Hawk in an en-
tirely different incident (involving Assistant Manager Kau-
rich), and I conclude and find that the testimony cannot be
used to establish the knowledge of either Maggard's or
Zombo's union activity.
A second meeting between Lipski and Gargalino was
described with an equal degree of contradictory testimony.
This one occurred, according to Maggard , in late August.
On this occasion Lipski and Gargalino were having coffee
in the bar and were joined by a number of employees,
including Maggard and Zombo. As they were discussing
union benefits and organization Maggard observed Assis=
tant Manager Kaurich at the doorway to the hall, 30 feet
away. Maggard was talking and as he observed Kaurich
approach he stopped talking and signaled to the others to
do likewise . Kaurich walked to within 15 or 20 feet of the
group, - who at that time were talking in conversational
tones. Kaurich gave no indication that he knew what was
going on and Maggard testified that he did not know if
Kaurich had heard him or not, but he did state that Kau-
rich "could have" overheard him. Zombo 's account of the
incident substantially agrees with Maggard's but he further
testified that thereafter he observed Mrs. Hawk coming
down the hall to meet with Gargalino, and asked him if
there was a umonman in the hall, to which Gargalino re-
plied "no," and that Lipski was his personal friend . Where-
upon Zombo heard Mrs. Hawk say that "if there is ever a
union in this place we are going to close down ." Gargalino
made no response but walked away.5
Gargalino's testimony suggests that he does not seem to
be able to distinguish the two separate conversations with
Lipski, the first interrupted by Mrs. Hawk, and the second
one interrupted by Kaurich. I have carefully studied his
testimony and am frank to admit that he has so confused
the two incidents that I deem his testimony on the subject
matter to be completely unreliable.
5 This incident involving Mrs Hawk is not to be confused with her earlier
conversation when she approached Gargalino and Lipski and asked if the
latter was a union representative , nor with the incident described by Gargal-
inn when Mrs Hawk supposedly approached the group and asked if there
was a unionnran in the hall.
357
Any effort to reconstruct the events in which Mrs. Hawk
and Assistant Manager Kaurich supposedly observed em-
ployees talking with the union representative results in a
shamble of contradictions , assumptions , and obscurities
not reasonably susceptible of interpretations to support ac-
curate findings . Such being the case I have no alternative
-but to conclude and find that it has not been established by
a preponderance of the testimony that any of Respondent's
officers or agents had knowledge of the union activity in
progress on the several occasions in the hall or had knowl-
edge of Maggard 's and Zombo 's involvement with it.
D. Analysis and Conclusion
I find no direct proof in the record that union activity
was the motivation for Respondent's discharge of employ-
ees Maggard and Zombo. On the contrary , I have their
own description of misconduct: appearing for work con-
trary to instructions, which President Hawk included in his
testimony as one of,the reasons for their termination. True,
I also have before me the unexplained return of employee
Spytman to work, and the variously described actions and
remarks of Mrs. Hawk and Assistant Manager Kaurich
that are susceptible of various interpretations , including
the suspicion that they were directed at the budding union
movement among the employees . But, however lively may
be-my suspicions in this area or in regard to the discharge
of Maggard and Zombo, I cannot substitute them for the
reasonable inferences I am permitted to, draw from the tes-
timony in the record . For me to equate Respondent's
knowledge of union activities with the jumbled and contra-
dicting accounts of Mrs. Hawk and Assistant Manager
Kaurich darting in and out of the banquet halls would
amount to nothing more than speculations as proof of an
unfair labor practice.
Absent such proof, and in the face of the self-described
misconduct of the two employees 5 days previously as well
as the plausible reasons for the discharges given at the trial
I have no alternative but to conclude and find that General
Counsel has failed to establish by a preponderance of the
testimony that Respondent either threatened to close its
establishment if the Union came in or that it discharged
employees Maggard or Zombo for their union activities. I
shall accordingly recommend that the complaint he dis-
missed in its entirety.
[Recommended Order omitted from publication.]