Woodcliff Lake Hilton Inn, Inc.

National Labor Relations Board - Board Decisions

May 22, 1986

279 N.L.R.B. 1064 (N.L.R.B. 1986)

1064 WOODCLIFF LAKE HILTON INN
Woodcliff Lake Hilton Inn, Inc. and Local 69, Hotel
Employees and Restaurant Employees Interna-
tional Union, AFL-CIO and Richard Boland.
Cases 22-CA-12524 and 22-CA-12602
22 May 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND STEPHENS
On 14 December 1984 Administrative Law
Judge James F. Morton issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended Order
as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Woodcliff Lake Hilton Inn, Inc., Wood-
cliff Lake, New Jersey , its officers , agents, succes-
i The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
The Respondent also contends that the judge's conduct in this proceed-
ing involved the conscious advocacy of the General Counsel 's case and
resulted in a decision not supported by record evidence. We have care-
fully examined the record and find no basis to support this contention
a In discounting the effect of Baker 's interrogation of Craig, our col-
league overlooks the fact that an employee who has been requested by an
assistant manager to report back to him on any approaches made to her
concerning a union could reasonably fear that her own proumon ap-
proaches to other employees, were she so inclined , might be reported
back to that official by a compliant employee With respect to Maloney's
questioning of Craig, our colleague fails to take into account the fact that
the questions did not naturally come up in idle conversation, Craig was
called into Maloney's office to have the questions put to her Finally,
with respect to the treatment of employee Bodnar, the cigarette inci-
dent-in which Bodnar was subjected to a no-smoking restriction not int
posed on other employees-does not stand alone , it is only one in a series
of incidents in which the catering director singled out Bodnar for unfa-
vorable treatment , and it is that whole series that supports the provision
in the Order prohibiting the Respondent from subjecting employees to
personal harassment in order to discourage support for the Union
s We have modified the judge's recommended Order to follow and
remedy the 8(aXl) violation found concerning the June 1983 wage in-
crease Nothing in the Order is to be construed as requiring the Respond-
ent to withdraw , vary, or abandon any wage increase or benefits it may
have granted to its employees We have also modified the judge 's notice
to conform to our Order.
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 1(t) and re-
letter the subsequent paragraphs.
"(f) Granting wage increases or other benefits to
its employees in order to undermine the Union's
organizational efforts."
2. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
I disagree with my colleagues' adoption of the
judge's conclusion that on separate occasions Re-
spondent Director of Personnel Maloney and As-
sistant Manager Baker unlawfully interrogated em-
ployee Craig. Maloney merely asked Craig wheth-
er she had belonged to a union during any prior
employment with another employer. After receiv-
ing an affirmative answer, Maloney asked her if she
had benefited from that representation. The judge
cited but did not rely on A & E Stores, 272 NLRB
737 (1984). That case held that an elicitation of an
employee 's views on unionization is not violative
of the Act when unaccompanied by a threat or
promise of benefit. In my view no such threat was
either stated or implied by Maloney and I particu-
larly note that here the questions concerned not the
union then attempting to organize the Respondent's
employees but a union which had represented
Craig during her employment with a different em-
ployer. I accordingly would dismiss this complaint
allegation based on A & E Stores and Rossmore
House, 269 NLRB 1176 (1984). See also my sepa-
rate position in Association Hospital del Maestro, 272
NLRB 853 (1984). Regarding Baker's asking Craig
to let him know if she heard anybody talking about
the Union, I find that the query was made during
an informal conversation in the laundry room
where housekeeping employee Craig was working.
I note that Baker did not specifically ask for the
names of employees who talked about the Union
nor did he threaten Craig in any way to achieve
her compliance . In the absence of coercion, an em-
ployer is not precluded from attempting generally
to learn , especially in an informal setting, the
extent to which a union was becoming active in its
establishment.
Finally I would dismiss the 8(a)(l) allegation
concerning Director of Catering Gilbert's personal
harassment of employee Bodnar . As set forth in
section II, C, 5 of the judge's decision , on three oc-
casions in June 1983 Gilbert directed at her dispar-
aging remarks of a highly personal nature. On a
fourth occasion Gilbert saw Bodnar smoking in a
banquet hallway. She was with another employee.
Gilbert asked Bodnar to extinguish her cigarette.
279 NLRB No. 146
WOODCLIFF LAKE HILTON INN
When she did so, he told her to pick it up from the
floor and dispose of it properly. Although smoking
was permitted in the hallway, it can hardly be con-
sidered unlawful or even harassing for an employer
to insist that an employee not litter the workplace.
Further, Gilbert's conduct, described above, oc-
curred without any reference to Bodnar's open
union activity. I therefore find that Gilbert was ex-
pressing no more than his personal dislike for
Bodnar and that his actions in late June 1983 did
not constitute a violation of the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively interrogate employees
about their membership in or support for Local 69,
Hotel Employees and Restaurant Employees Inter-
national Union, AFL-CIO or any other labor orga-
nization.
WE WILL NOT threaten to close our hotel or
physically harm any employee in order to discour-
age employees from supporting the Union.
WE WILL NOT solicit employees to inform us
about the names of employees who discuss the
Union and about the extent of support for the
Union among employees.
WE WILL NOT subject any employee to personal
harassment to discourage employees from support-
ing the Union.
WE WILL NOT suspend from our employ any em-
ployee to discourage support for the Union.
WE WILL NOT grant our employees wage in-
creases or other benefits to undermine the Union's
organizational efforts . However , we are not re-
quired to withdraw, vary, or abandon any wage in-
creases or benefits which we have granted.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed our employees
by Section 7 of the Act.
WE WILL make Richard Boland and Brigitta
Bodnar whole, with interest, for earnings they lost
as a result of our having unlawfully suspended
them from employment.
WE WILL remove from our personnel files all
references to their unlawful suspension and WE
1065
WILL notify them in writing that this has been
done.
WOODCLIFF LAKE HILTON INN, INC.
Gary A. Carlson, Esq., and C. John Cicero, Esq., for the
General Counsel.
Howard Trubman, Esq., and Julius Steiner, Esq., of Phila-
dephia, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F . MORTON , Administrative Law Judge. The
pleadings in these cases , which were consolidated for
hearing , place in issue whether Woodcliff Lake Hilton
Inn, Inc (Respondent ) had violated Section 8(a)(1) and
(3) of the National Labor Relations Act. In particular,
the matters to be decided are whether Respondent:
(a) Gave a general wage increase to its employees to
induce them not to support an organizational effort being
made by Local 69, Hotel Employees and Restaurant Em-
ployees International Union , AFL-CIO (Union).
(b) Unlawfully interrogated several employees about
their support for the Union.
(c) Engaged in surveillance of its employees ' union ac-
tivities and subjected its employees to closer supervision
to discourage them from supporting the Union.
(d) Threatened employees in various ways to dissuade
them from supporting the Union.
(e) Suspended two employees from work without pay
to discourage them from membership in the Union.
(f) Asked employees to find out about , and to inform
Respondent of, the union activities of other employees.
On the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND THE UNION'S STATUS
The pleadings establish, and I find, that Respondent is
a New Jersey corporation which owns and operates a
hotel in Woodcliff Lake , New Jersey . Its annual business
volume meets the Board 's standard for the assertion of
its jurisdiction . The pleadings further establish , and I also
find, that the Union is a labor organization as defined in
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has approximately 275 nonsupervisory em-
ployees at its Woodcliff Lake Hotel. There is no collec-
tive-bargaining history for these employees . Respondent
has stated , in its employee personnel manual and in the
course of the hearing before me, that it prefers that its
work force remain "union free."
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Testimony Relating to the Union Activities of
Richard Boland
1. General
Boland had been employed by Respondent as a guard
from August 1980 until his discharge in August 1983.
There is no allegation that his discharge was violative of
the Act.
All dates hereafter are for 1983, unless otherwise
noted.
2. Alleged unlawful interrogation by Executive
Steward Shiller Leger
In March, Boland talked with various of his coworkers
about joining a union, and in May he made contact with
the Union. He, with several other employees assisting,
then distributed union authorization cards among Re-
spondent's employees and, also in May, he attended a
union meeting with about 20 of these employees.
In the course of approaching emloyees about their in-
terest in this Union, Boland had heard that one of Re-
spondent's supervisors, Executive Steward Shiller Leger,
was in favor of having a union. Boland thus talked to
Leger about unions and was startled when Leger glared
at him and asked in return if Boland supported unions
and if Boland was passing union authorization cards
around. Boland replied in the negative.
The General Counsel, citing Rossmore House, 269
NLRB 1176 (1984), contends that Leger's interrogation
of Boland was especially coercive and, citing Peninsula
Assn. of Retarded Children & Adults, 238 NLRB 1099
(1978), enf. denied on other grounds 627 F.2d 202 (9th
Cir. 1980), contends further that it is immaterial that
Boland had started the conversation with Leger respect-
ing union activities. Respondent also cites the holding in
Rossmore House, supra, in support of its view that the
overall circumstances relating to Leger's questions estab-
lish that they were noncoercive. Both parties are in
accord that the circumstances of the questioning are to
be taken into consideration and that the issue should not
be decided "mechanically." In that regard, it is of signifi-
cance that Boland was startled by Leger's reaction. Bo-
land's surprise at Leger's responses was obviously due to
his having been misled by a coworker regarding Leger's
sympathies. Boland should otherwise not have been sur-
prised about Leger's views inasmuch as Leger was a su-
pervisor and as Respondent has openly advocated a
"union free" enterprise. If anyone was entitled to be star-
tled, it was Leger as it was his loyalty that was unex-
pectedly brought into issue by the questions Boland
asked of him concerning his views about unions. To
charge Leger now, and Respondent too, with having
participated in an unfair labor practice by his immediate
reaction to Boland's questions would require that his re-
sponse be isolated from its overall context and be
weighed against a standard basically unfair. I therefore
find that Respondent, by the questions Leger put to
Boland on hearing Boland's inquiries concerning union
sympathies, did not engage in conduct coercive of em-
ployee rights under Section 7 of the Act. See Herb Kohn
Electric Co., 272 NLRB 875 (1984).
3 Alleged interrogation by Director of Security
Lloyd Elliott
Boland's supervisor was Lloyd Elliott, Respondent's
director of security. Boland testified that in May Elliott
told him that he heard from Shiller Leger and a waiter
that Boland had talked to them about unions. Boland tes-
tified that Elliot then asked if he had any knowledge of
any union trying to come in and, when Boland replied
that he did not know what Elliott was referring to, El-
liott said that Boland has 24 hours to tell him of any as-
sociation he has with a union and that, after the "24
hours [are] up, it is out of [his] hands."
Elliott testified that he had heard rumors that Boland
was soliciting names on union cards and that he wanted
to advise Boland that he had heard this. Elliott testified
that when Boland denied soliciting for any union, he in-
formed Boland START that if Boland was soliciting sig-
natures, he had no objection as long as Boland did it on
his own time. Elliott denied that he had told Boland that
he had 24 hours to admit his union involvement.
I credit Boland's version as Elliott's explanation that
he wanted only to advise Boland to solicit on his own
time does not appear to be related to any complaint
made to Elliott than that Boland was not performing his
own duties or that Boland was interfering with the abili-
ty of other employees to work. Respondent would have
me discredit Boland's testimony that he was given 24
hours to confess his union involvement. Respondent
argues that there is no reason such a time limit would be
given and as Boland's own account is that Elliott had
acted on information furnished by executive steward
Leger of Boland's involvement with the Union. I am not
persuaded on that point. Veiled threats are, by their very
nature, imprecise and often purposely so. Elliott's ac-
count does not nng true whereas Boland's does. I credit
Boland.
In view of the circumstances of the interrogation and
as there was no other reason or justifiable basis for the
act, I find that Elliott's questioning of Boland was done
to coerce him. Cf. Brigadier Industries Corp., 271 NLRB
656 (1984). Further, Elliott's not so subtle warning to
Boland underlined the coercive nature of the interroga-
tion.
4. Alleged subjection of Boland to surveillance of
union activities and to closer supervision
Boland's testimony respecting these complaint allega-
tions is as follows. Right after Elliott's questioning of
him, as recounted above, Elliott "started following [him]
around, no matter where [he] went . . . to see where
[he] was going and who [he] was talking to." In particu-
lar, Elliott began to appear "like clockwork" at 7:30 a.m.
at the timecard rack outside the guard office from which
Boland had handed timecards to employees as they re-
ported for work. Until then, Boland had never seen El-
liott on the premises until 8 a.m. at the earliest and some-
times for "weeks." Boland had previously chatted with
employees about the progress of the Union 's organiza-
tional effort while he handed timecards to them. Elliott
thereafter took over the function of handing out the
timecards to those employees and stationed himself be-
WOODCLIFF LAKE HILTON INN
tween the employees and Boland so that Boland could
no longer converse with them. On one occasion, after
Boland picked up his paycheck and left the hotel, he at-
tempted to return to talk to someone. Elliott intercepted
him and told him he could not go back into the hotel.
Boland told him to leave him alone and to stop follow-
ing him "like a little puppy dog." Boland told Elliott
then that he was for the Union and had a constitutional
right which Elliott was "invading." Elliott responded
with an expletive and by saying further that he "knew it
was [Boland]" and that from then on, the game would be
played by the rules with "no more guitar playing "
Elliott testified that , several days after he had his first
conversation with Boland concerning the Union, Boland
said to him that, despite his previous denials, he now
wanted Elliott to know that he was involved in working
for the Union. Elliott testified that he responded that he
did not object as long as Boland did it on his own time.
Elliott was asked by Respondent's counsel if he ever had
refused to admit Boland to the hotel and Elliott respond-
ed, "No." Elliott denied too that he at any time began to
watch Boland more carefully than before.
I credit Boland's account. Elliott's version is improb-
able as there is no apparent reason Boland would have
volunteered a retraction of earlier denials of union in-
volvement. Boland's version is set in a plausible context
and is consistent with Boland's demeanor.
Respondent asserts in its brief that, in any event, El-
liott had the right to supervise Boland as he did and that
Respondent did not unlawfully coerce employees by
reason of Elliott's conduct. The unrelieved discriminato-
ry harassment of an employee by following him closely
and constantly during working hours until he vents his
anger, coupled with a warning that he will be disciplined
for what had been acceptable before, is not to be privi-
leged by any incidental economic benefit Respondent
may derive from such close supervision. See Sound
Design Corp., 232 NLRB 993, 997 (1977). I therefore find
that Respondent, by its director of security, Elliott, sub-
jected Boland to much closer supervision to discourage
him and other employees from joining or supporting the
Union. 1
Although the openly harassing tactics used by Elliott
were obviously designed to impede the Union's organiza-
tional effort, they could only defeat any attempt by Re-
spondent to learn the full extent of the Union's effort or
of the activities of employees on behalf of the Union. In
that regard, I concur with Respondent's observation that
"the surveillance claim is preposterous [as surveillance] is
keeping watch on employees to detect evidence of Union
activity, especially at union meetings." Accordingly, I
find that Elliott's closer supervision of Boland did not
constitute unlawful surveillance. Cf. Consolidated Casinos
Corp., 266 NLRB 988, 995 (1983)
' In his brief, counsel for the General Counsel states that Respondent
engaged in other instances of harassment not alleged as unfair labor prac-
tices One of those, which I would find on the basis of crediting Boland's
account thereof, consists of Elliott's barring Boland from Respondent's
premises while off duty as it appears that but for Boland's union activi-
ties, he would have been allowed to enter
1067
5. Alleged discriminatory suspension of Boland
Boland was given an "Employee Incident Notice"
dated June 10 which informed him that he was being
suspended from work without pay for 1 day Attached
to that notice was a sheet, signed by Elliott, which set
forth the grounds on which Respondent asserts it gave
the notice to Boland. The General Counsel contends that
Boland's activities for the Union were the real reason he
was suspended and disciplined and that the grounds on
which Respondent relies are pretextual.
The notice, together with the sheet attached to it,
states that Respondent's manual for its employees pro-
vides for a progressive disciplinary system for the work
rule violations which Boland is alleged to have commit-
ted and that, pursuant to that system, Boland was sus-
pended. The manual calls for an oral warning to be
issued to an employee for a first offense, a written warn-
ing for a second offense, a 1-day suspension without pay
for the third offense, and termination from employment
for the fourth offense. There is no evidence that Boland
received a written warning prior to the time he was
given the June 10 incident notice.
Respondent offered evidence that on June 2 and 3 El-
liott orally warned Boland concerning rules infractions,
as discussed below, and that on June 10 Boland absented
himself without permission for 13 minutes from the sta-
tion he was assigned to guard and during which time the
station was unguarded. The General Counsel offered
countervailing evidence concerning the matters of the
two oral warnings and Boland's leaving his duty station
on June 10. These matters are discussed next.
Elliott wrote, in connection with the June 10 incident
notice, that, "on June 2, 1983 Mr. Boland was repri-
manded verbally for playing his guitar in the timekeep-
er's office while on duty" an asserted "violation of de-
partment policy." Elliott testified that on June 2 he had
walked into the timekeeper's office and observed Boland
"playing his guitar .. . practicing scales . .. and . . .
reading sheet music." Elliott did not testify about his
having said anything to Boland then. Presumably, and in
the absence of such testimony, I am asked to infer from
the statement he signed and annexed to the incident
notice that Elliott had verbally reprimanded Boland
then.
As discussed above, Elliott had told Boland in early
June (when Boland had accused Elliott of harassing him
because Boland supported the Union) that he was going
"to write up" Boland for playing his guitar. Boland testi-
fied respecting other aspects of his guitar playing while
on duty. His account thereon is as follows. He had been
playing the guitar on weekends while at work between 3
and 5 a.m. when everything was quiet. Elliot saw him
playing it many times. Other supervisors, including Re-
spondent's director of catering, Robert Gilbert, also saw
him playing his guitar at work and they used to come in
and listen.
Elliott testified for Respondent that prior to June 2 he
never had seen Boland playing a guitar at work or had
known that he had done so. Elliott stated that although
he had often seen a guitar in the timekeeper's office, he
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assumed simply that someone had left it there with
Boland for safekeeping.
Respondent 's catering director, Gilbert, testified at
length respecting matters pertaining to another employ-
ee, Brigitta Bodnar , as discussed separately below. Gil-
bert did not controvert Boland's testimony that Gilbert,
with other supervisors , had often seen Boland playing his
guitar at work.
I credit Boland's testimony that he had for a long time
openly played his guitar while on duty and that Elliott,
Gilbert, and other supervisors of Respondent were well
aware of that fact. Elliott's testimony that he saw a
guitar at Boland 's work station and assumed that it was
left there by someone for safekeeping did not strike me
as convincing . The uncontroverted evidence is that Su-
pervisor Gilbert had listened to Boland 's guitar playing. I
find it difficult to accept Elliott's testimony that he was
not aware of the fact that Boland had played the guitar
openly during worktime , especially as Elliott is the direc-
tor of security.
The incident notice of the 1-day suspension given
Boland also refers to an event which purportedly took
place on June 9. Thus, Elliott stated in the attachment to
the notice that on June 9 he observed Boland in the ban-
quet service corridor while the timekeeper's office was
unattended and ^ that Elliott then ordered Boland to
return to his post immediately and not to leave it unat-
tended. Elliott's testimony before me is substantially con-
sistent with that written account . Boland's testimony,
materially at variance with Elliott's, is as follows. In the
first or second week of June, Elliott came to him and,
referring to the Union, asked why he, Boland, was
"doing this to him , really putting him on a big spot."
Boland told him that he would not understand his rea-
sons. Later that morning, Elliott, in a mellower tone,
told him that he understood Boland's personal problems,
especially Boland 's father "dying of cancer" and his
"family being in a really bad financial spot." Elliott
asked him why he did not go to see Respondent's presi-
dent , William Maloney , before he went to see a union.
The incident notice prepared by Elliott states that on
June 10 Boland had absented himself from his work sta-
tion for a 13-minute period about 6 a.m., during which
time Elliott observed four employees entering the build-
ing and during which the TV monitors were not being
observed. Elliott testified that he happened to be in the
vicinity of the timekeeper's office on the morning of
June 10 and noticed that no one was in the timekeeper's
office. Elliott said that Boland was gone 13 minutes and,
when he returned , he said he had gone to the bathroom.
Boland's testimony about his absences from his work sta-
tion is that there were "a lot of times" when he had to
leave his guard station , especially in the morning, to
open doors so that banquet or kitchen employees could
go on with their work. Boland related also that he left
his station whenever he could not reach the floor guard
who normally handled the request and that he, Boland,
would be away from the timekeeper's desk for only a
few minutes on those occasions. The General Counsel
called Brigitta Bodnar , another alleged discnminatee,
who corroborated Boland's testimony. She related that,
as a banquet employee, she has had occasion to have the
guard on duty in the timekeeper 's office open the door
to the banquet room and that she has observed the guard
station unattended at times.
Boland refused to sign the June 10 incident notice on
the ground that it was untrue . Elliott had a coworker
sign it as a witness to Boland 's refusal to sign it.
I find that Boland was given the incident notice to dis-
courage him from pursuing his union activities and that
the reasons offered by Respondent to justify its notice
were pretextual. In that regard , I note that the incident
notice does not comport with the progressive discipli-
nary system Respondent contends it followed inasmuch
as no prior written warning had issued . I note , too, the
clearly pretextual assertion that Elliott had orally warned
Boland on June 2 against playing his guitar while on
duty and the credited testimony that Elliott , instead, had
told Boland that he was going to write him up for play-
ing the guitar when Boland angrily had asserted to El-
liott that he had a constitutional right to support the
Union . In making the foregoing determination, I find
that Respondent did allow for some occasional laxity in
its security and later sought to seize on its very tolerance
as a basis to discipline Boland and to use that basis as a
pretext to conceal its discriminatory motivations . To that
end, I credit Boland's testimony that Elliott told him he
should have talked to Respondent 's president before get-
ting involved with the Union . The evidence is strong
that Boland was the most active employee supporting
the Union, that Respondent knew this , that Respondent
sought to dissuade him from that activity , and that its
reason for disciplining him is a pretext . Thus, I find that
the General Counsel has made out a strong prima facie
case which has not been rebutted.
6. Alleged threats by Mazzo
Boland testified as follows respecting the complaint al-
legation that Respondent bistro manager , Greg Mazzo,
threatened physical harm and thereby coerced employees
concerning their right to support the Union. He, Boland,
had two conversations with Mazzo respecting the Union.
In June, Mazzo told him that when the Union gets in,
Mazzo would not "be able to hire and fire people," but
will "have to go through [the Union] and ask them."
Boland replied that he, Mazzo, then cannot "fire for any
reason." In the second conversation, Mazzo told him
that he did not want Boland to go near "any of [his]
girls" with "this union stuff" unless Boland wanted "the
crap [beat] out of [him]." Boland in essence responded
that he was surprised that Mazzo would say that as they
were "work buddies."
Mazzo testified for Respondent and responded "No"
each time when asked by Respondent's counsel (1) if he
ever threatened Boland with physical harm, (2) or with
physical violence, or (3) if he ever said to Boland that he
knows Boland is behind the Union and that he did not
want Boland to go near his girls or he would beat the
crap out of Boland. On cross-examination, he summarily
denied ever having any discussions with Boland about
his union activities.
I credit Boland's version as the uncontroverted evi-
dence is that Boland and Mazzo had been friendly, as
WOODCLIFF LAKE HILTON INN
Boland stuck to his detailed account during cross- exami-
nation and as it seems unlikely that Boland would con-
coct so vivid an account, especially one which would
enmesh a "work buddy." Those factors outweigh the
bare denials put forth by Mazzo.
C. Testimony re Union Activities of Brigitta Bodnar
1. In general
Bngitta Bodnar began working for Respondent as a
banquet waitress in September 1980. As of the date of
the hearing, she was no longer in its employ. The com-
plaint alleges that while she was in its employ, Respond-
ent had discnminatonly suspended her from employment
for a week That alleged unlawful suspension and related
alleged unlawful acts of interference are considered in
this section.
Bodnar testified that she signed an authorization card
for the Union on May 5 and that she attended union
meetings and solicited support for the Union among her
coworkers by handing out cards and literature to them
and by going to their homes to speak to them about the
Union. As discussed separately herein, Respondent was
well aware that Bodnar supported the Union and Re-
spondent made no secret that it did not want a union
representing its employees.
2. Alleged surveillance and closer supervision by
Respondent's banquet manager and its maitre d'
Bodnar testified that on one evening after the Union
had begun its campaign, Respondent's banquet manager,
Arthur Sands, followed her almost everywhere she went
while at work Sands testified for Respondent and denied
harassing her or following her about while at work. I am
not persuaded by the conclusional and general testimony
given by Bodnar to demonstrate that her union activities
were kept under surveillance or that Sands more closely
supervised her because of her support for the Union. I
therefore credit Sands' denials.
Bodnar testified also that on June 12 when she came in
to work, dust after having distributed union literature
outside the hotel grounds, Respondent's banquet maitre
d', Jeff Cogen, instructed her that she was no longer to
use the locker room to change clothes, but must report
to work fully dressed in her uniform. (Bodnar did not
testify whether or not she complied with the instruction;
she did testify that she told Cogen that she did not think
it was fair to bar her from using the locker room while
all other employees could use it.) Cogen testified that
Bodnar came in to the hotel on that day just 5 minutes
before she was to begin work, that she was in a softball
uniform, and that her hair was completely disheveled
He testified that he told her then that if she comes in just
before starting time, she is to come in ready for work.
He denied that he told her that she was not permitted to
use the locker room thereafter. I credit Cogen's version.
It is unlikely that Respondent would have voiced such a
patently discriminatory instruction against a key union
supporter and then have failed to enforce it, as appears
to be the case. If Cogen had enforced such an order,
Bodnar would likely have challenged it. There is no evi-
dence that she did. If Bodnar had elected to comply with
1069
such a discriminatory rule, the General Counsel obvious-
ly would have alleged the rule as an obvious discrimina-
tory act affecting her employment status and there is no
such allegation before me. Cogen's testimony has a plau-
sible basis and is more probably true.
Bodnar also testified that after the union activity
began, Respondent changed the practice governing cer-
tain overtime assignments . Banquet waitresses work in
teams of two and, according to Bodnar, each team decid-
ed prior to the advent of the union activity which
member would leave early so that the other would work
overtime. Bodnar related that after the Union made its
appearance , Respondent 's supervisor began making these
overtime assignments. There is no express complaint alle-
gation that that change constituted a discriminatory
change in the employment status of the banquet waitress-
es. Bodnar also testified that she then was singled out as
one who was always sent home early. Again, there is no
specific complaint allegation thereon alleging that she
was so discriminated against . Respondent 's banquet
maitre d', Cogen, testified that the change in the method
of selecting which employees stay late was made in May
because he did not consider it fair that "the same people
[were] always going home early and always the same
people [were] staying late." He testified that there is
very little additional pay compensation for those who
stay late inasmusch as the significant earnings of the
waitresses are derived from tips and not their hourly
wage rates. Cogen further related that Bodnar had, at all
times, before and after the start of union activity, been
the one on her team to leave early as she had an infant at
home to be taken care of. Bodnar testified that she was,
after she began her union activity "always being told to
go home early" and that as a consequence she was
"losing hours and wages, plus [her] Blue Cross and Blue
Shield benefits" because she had not worked enough
hours.
The totality of the testimony on this point (in context
with the absence of any allegation in the complaint relat-
ing to it, particularly in view of the fact that Respondent
had sought and was denied a request for a bill of particu-
lars) indicates that the change in the method of making
overtime assignments was at most de minimis. In any
event, I am not persuaded that the change was discrimin-
atorily motivated.
3. Bodnar's suspension
Bodnar was 45 minutes late for work on May 31. As
the banquet taking place then was a "very VIP party,"
Respondent had obtained a replacement for her when
she did not arrive at work on time.
When Bodnar did arrive, Respondent's director of ca-
tering, Robert Gilbert, asked her where she had been.
She testified that she had mistakenly thought the party
was scheduled to begin a half hour later than it did. She
also said that she had been stuck in traffic and could not
get to a telephone to report that she would be late. She
was told she could not work that night. She was later
informed that she was being suspended from work for 7
days. That suspension was reduced to 3 days, which re-
sulted in her missing two banquets. The General Counsel
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adduced evidence that although banquet waitresses in-
cluding Bodnar , had been late on occasions previously,
none had ever been suspended for being late. Respondent
adduced evidence that the May 31 incident involving
Bodnar was the first one in which a banquet waitress had
failed to call in to report that she could not be at work
on time . Respondent placed in evidence disciplinary
records of other employees in an effort to show that its
treatment of Bodnar was consistent with prior practice
and that it was not discriminatory . Those records are not
entirely supportive of Respondent's position as they, to
some extent , indicate that Respondent tolerated some ab-
sences and latenesses . More significantly, Respondent's
established disciplinary procedures would classify the in-
cident involving Bodnar as a group II violation which
calls for a written warning at the first offense . Bodnar
had never received any such written warning . Moreover,
the initial 7-day suspension imposed by Gilbert was
clearly excessive as a second group II offense , under Re-
spondent 's own rules, called for but a 2 -day suspension.
The General Counsel has made out a prima facie
showing that Bodnar's suspension was motivated by an-
tiunion considerations as the credible evidence discloses
that she was an active union supporter since the incep-
tion of the Union 's organizational effort, as Respondent
was aware of her prominence as a union supporter and
as she was the only banquet waitress suspended in at
least 3 years because she was late , although other wait-
resses had been late in that same time interval . The evi-
dence offered by Respondent to negate the inference of
unlawful motivation is not persuasive . Rather, the evi-
dence confirms that Respondent did not even follow the
basic steps of its own progressive disciplinary system
with respect to Bodnar 's suspension . That is clearly a
factor in determining motivation. See H. B. Zachry Co.,
261 NLRB 681, 691 -692 (1982). I therefore find that Re-
spondent suspended Bodnar because she actively sup-
ported the Union and that Respondent seized on her late-
ness as an excuse to suspend her.
4. Alleged threat to close
Bodnar testified that she had been talking with Re-
spondent's director of catering, Robert Gilbert, in con-
nection with the matters discussed in the next subsection,
when he told her that Respondent's president would
close the doors of the hotel before he would let a union
in. Respondent called Gilbert as its witness to rebut this
testimony. His account thereon was equivocal at first and
it was only when he was asked a second time by Re-
spondent's counsel if he ever made such a statement to
an employee, that he responded in the negative. I find
Bodnar's account credible and not Gilbert's denial
5. Alleged closer supervision and alleged
surveillance by Gilbert
The General Counsel asserts in his brief that Respond-
ent subjected Bodnar to closer supervision and engaged
in unlawful surveillance of her union activities and of-
fered testimony concerning incidents involving Respond-
ent's director of catering , Robert Gilbert.
Bodnar testified that Gilbert told her in the presence
of coworkers and more than once since the Union's or-
ganizational effort began, that she should "jump off a
budge and die." She testified further that he told her on
other occasions again with other employees present, that
she "is bad," she "belong[s] in a toilet," that he would
"like to see [her] out of here," and that Bodnar also testi-
fied that Gilbert once ordered her to extinguish a ciga-
rette in a hallway where smoking was permitted and
then ordered her, in front of her coworkers, to pick up
the cigarette butt and to dispose of it elsewhere. She
complied. Other employees used that same area to smoke
and have not been subjected to similar treatment.
Bodnar also testified that, in mid-June, Gilbert spoke
to her about complaints she had voiced to Sands con-
cerning her being sent home early, a matter discussed
above According to Bodnar, Gilbert "confronted" her
about her discussion with Sands and "pulled out a write-
up sheet" while telling her that she had questioned
Sands' authority and had threatened to "get [him]."
Bodnar testified that she told Gilbert this was not true
and she thus refused to sign the writeup sheet. She relat-
ed that Gilbert then called Sands to his office and that
she told Gilbert that Sands was "lying."
Gilbert testified for Respondent but did not controvert
any of the foregoing. He acknowledged that he does not
like unions and that he was aware of Bodnar's support
for the Union. Respondent's brief characterizes the inci-
dents, as recounted by Bodnar, as "minor disputes" be-
tween a supervisor and an employee but refers to Bod-
nar's refusal to sign the writeup sheet in connection with
her suspension, discussed above, as a matter of conse-
quence. No writeup sheet was offered in evidence and
no probative evidence was submitted to support a finding
that Bodnar threatened to "get" the maitre d' or that she
had challenged his authority.
I cannot agree with Respondent that these matters are
but minor disputes. To subject an employee to abusive
treatment under the guise of exercising supervisory
powers and to do so in obvious retaliation against an em-
ployee's union activities sends a clear and chilling mes-
sage throughout the department, one which is far more
effective than many unlawful measures that may be used
to discourage support for the Union. Parenthetically, I
note that I could put no weight on any "write-up" that
may exist and by which Respondent may have sought to
discipline Bodnar for any asserted insubordination to-
wards its maitre d' or an asserted threat by her to him.
No such "write-up" was put in evidence and, more im-
portantly, Bodnar's account demonstrates that the
"write-up" itself was part of the harassing tactics adopt-
ed by Gilbert to dissuade her from continuing to support
the Union.
C. Other Alleged Acts of Interference with Employees'
Section 7 Rights
Valerie Ranieri , a banquet waitress, testified for the
General Counsel that the maitre d', Cogen, asked her on
May 25 to give him the name of any employee who
talked to her about the Union and also to tell him about
any other union activity she learned of. May 25 was the
WOODCLIFF LAKE HILTON INN 1071
date of the first union meeting Ranieri also testified
about the circumstances leading up to that discussion.
Cogen was called by Respondent as its witness and an-
swered in the negative when asked if he ever had any
individual discussion with Ranieri about the Union and if
he asked her to report on union activity among employ-
ees. Ranieri impressed me as one who had a good recol-
lection of the incident and I credit her account over the
bare denials of Cogen.
Margaret Craig , a housekeeping employee , testified
that , at a departmental meeting , Respondent 's president,
William Maloney Jr., showed an antiunion film, urged
employees to try to get back from the Union any cards
they signed, compared their wage rates and benefits fa-
vorably against a contract the Union has at another
hotel, and announced that the only union contract he
would settle for would be one that cuts their pay. Rose-
marie Jeunelot, another housekeeping employee, also tes-
tified for the General Counsel but made no reference to
such remarks by Respondent's president. William Ma-
loney Jr. testified for Respondent that, in mid-June, he
attended a meeting of housekeeping department employ-
ees at which a film was shown about their rights in a
union's organizational effort. Maloney testified that he
compared their wage rates to those in a union contract at
another hotel, noted that their wages were better, and
stated that it was Respondent's philosophy to have better
wages than any competing hotel in the area. I credit Ma-
loney's account as Craig's account was not corroborated
and it seems unlikely that Maloney would make an obvi-
ous threat, as Craig would have it, to reduce benefits
when he could readily point out that the wages paid to
Respondent 's employees were already superior to those
of employees under a union contract at a nearby hotel.
Craig testified also that Respondent 's assistant manag-
er, Nicholas Baker, had asked her to let him know if
anyone approached employees about the Union. Jeunelot
also testified that, at the end of May, Baker asked her if
she signed a union card and told her she could get the
card back, give it to him, and he would turn it in to Re-
spondent's president. Baker testified for Respondent and
denied that he asked Craig to inform him about any ap-
proaches made by the Union or that he asked Jeunelot if
she signed a union card. He testified that at a department
meeting he had stated that if any of the employees
wanted to retrieve their cards from the Union, they
could do so by following the directions on leaflets made
available to them by the hotel. I credit the accounts of
Craig and Jeunelot as they struck me as trying to give a
candid, accurate account of their discussions with Baker.
Respondent urged me to discredit Craig because of an
inconsistency between her account at the hearing and in
a prehearing affidavit she signed. The difference has to
do with her response and I do not find that enough for
me to discredit her account in toto Respondent also
urged me to find that Baker's remarks to Jeunelot were
noncoercive as Jeunelot was a supervisor as defined in
the Act. At best, the evidence discloses that she was a
nonsupervisory leadperson. She possessed no supervisory
authority as set out in Section 2(11) of the Act.
Craig further testified for the General Counsel that
Respondent's director of personnel, Phyllis Maloney,
called her in and talked to her about the Union's organiz-
ing effort. Maloney asked her, Craig testified, if she ever
had belonged to a union before coming to work for Re-
spondent and, when Craig answered that she had, Ma-
loney wanted to know if it had been better for her or
worse. Craig testified that she replied that it was better.
Maloney testified for Respondent that Craig came to her
office to discuss her workload and while she was there
Maloney discussed with her the Union's finances and its
bylaws and constitution as she had done with other em-
ployees. Maloney denied that she asked Craig anything
"about her union activities." There does not appear to be
any credibility issue to be resolved as Craig's account re-
veals that Maloney was asking her how she viewed unions,
particularly the one which represented her in her em-
ployment elsewhere. Maloney's account does not contro-
vert that testimony but simply avers that Maloney did
not inquire into her union activities. In any event, I
credit Craig's testimony. The Board has held that the
conducting of interviews by supervisors with the em-
ployees under them whereby the supervisors can evalu-
ate the union sentiments of those employees is not coer-
cive interrogation. A & E Stores, 272 NLRB 737 (1984).
The Board has also held that a supervisor's calling for an
employee to respond to whether he or she favors a union
is coercive interrogation. Asociacion Hospital del Maestro,
272 NLRB 853 (1984). The latter holding directly applies
to the evidence before me in that Personnel Director
Maloney's inquiry of Craig was made after Craig was
summoned to her office and as it called for a response
concerning Craig's union sympathies. In view of this and
as the inquiry was made of an employee who was not an
open union activist and there were no assurances given
her, as the interview took place in the personnel direc-
tor's office to which Craig had been summoned, the in-
quiry in overall context constituted coercive interroga-
tion.
E. The Wage Increase
The complaint alleges that Respondent granted a gen-
eral wage increase to its employees on June 17 to dis-
courage them from supporting the Union. The General
Counsel, however, relied on an across-the-board raise
given to Respondent's 45 housekeeping department em-
ployees on June 17. Evidence of other raises given in the
ensuing 2 weeks was placed in the record but the Gener-
al Counsel has not attacked those.
Rosemarie Jeunelot testified for the General Counsel
that she had worked in Respondent's housekeeping de-
partment from September 1980, that she received a pay
raise in June 1983 without having expected it, that she
heard of it only when she received her check with the
increase therein, and that the rest of the housekeeping
staff got raises then. On June 17, she and her coworkers
received a notice with their paychecks, which was
signed by Respondent's president and which asked for
their help and stated that "others have attempted, for
their own selfish reasons, to jeopardize our success by
creating feelings of suspension and secrecy." The attach-
ment to that notice stated that the "atmosphere of trust
. . . is not [to be] cluttered by . . . labor unions."
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's payroll records disclose that for the
week ending June 16 , 45 housekeeping employees re-
ceived wage increases ranging from 20 cents to 50 cents
per hour.
Respondent 's personnel director , Phyllis Maloney, tes-
tified that she became aware that a raise would be given
the housekeeping staff before she knew of any union ac-
tivity among Respondent 's employees . She testified also
that her husband who is also Respondent 's president,
William Maloney Jr ., informed her then that he was in
the process of hiring a new executive housekeeper who
felt very strongly that the wages of these employees be
increased.
The executive housekeeper referred to in Maloney's
account is Mary Carella who testified that she is Re-
spondent 's director of housekeeping services . She also
testified that she was interviewed several times by Re-
spondent 's president in April and May and that she sug-
gested to him, as ways of improving employees ' morale,
a wage increase, painting employee areas , and "things
like that ." On her redirect examination , she responded af-
firmatively when asked if she felt whether it was impor-
tant that the wage increase be given . She testified also
that she conveyed that feeling to Respondent 's president
during her employment interviews . Carella further testi-
fied that when she began work for Respondent on June
6, its president told her he was carrying out his commit-
ment to her to grant the employees under her a wage in-
crease and the employees then were so advised. Re-
spondent 's president testified before me but did not
allude in any way to the matters recounted by Carella.
From my observation of Carella and particularly of
William Maloney Jr., Respondent 's president , I find it
most difficult to accept Respondent 's contention that
Maloney opted to authorize such wage increases for 45
employees because Carella in her hiring interviews told
him that it was important to do so for morale purposes
His personality struck me as one that was quite forceful
and she impressed me as one who was reserved . In short,
I do not credit the accounts of Carella or of Mrs. Ma-
loney , especially as Mr. Maloney did not bother to cor-
roborate either . The timing of these wage increases in re-
lation to the Union 's campaign , the reference to the or-
ganizing effort in the notice accompanying the pay-
checks which contained the wage increases , and the ob-
viously unpersuasive reasons offered by Respondent, all
demonstrate that the wage increase was granted to un-
dermine the Union 's organizational effort and thus inter-
fered with the Section 7 rights of employees . See NLRB
v. Exchange Parts Co., 375 U.S. 405 ( 1964); Sarah
Neuman Nursing Home, 270 NLRB 663 (1984).
(a) By its director of security, Lloyd Elliott, coercive-
ly interrogated employee Richard Boland and subjected
him to close supervision to discourage employees from
support of the Union.
(b) By its liquor and bistro manager , Greg Mazzo,
threatened Richard Boland with physical harm to dis-
courage him from engaging in activities in behalf of the
Union.
(c) By its maitre d', Jeff Cogen, interrogated its em-
ployee, Valerie Ranieri, about which employees support-
ed the Union and their reasons therefor.
(d) By its assistant manager, Nick Baker, coercively in-
terrogated its employee, Rosemarie Jeunelot, about her
support for the Union and asked employee Majorie Craig
to report to Respondent any employee who approached
employees to enlist their support for the Union.
(e) By its personnel director, Phyllis Maloney, coer-
cively interrogated Majorie Craig about her membership
in the past in any labor organization and her feelings
thereon.
(f) By its director of catering, Robert Gilbert, threat-
ened that its president would order the hotel closed
before the Union could represent any of its employees
for purposes of collective bargaining.
(g) By its director of catering, Robert Gilbert, subject-
ed its employee Brigitta Bodnar to personal harassment
in the context of closely supervising her work to dis-
suade its employees from supporting the Union.
(h) Engaged in the conduct described in paragraph 4
below.
4. Respondent, in violation of Section 8(a)(3) of the
Act, had suspended Richard Boland and Brigitta Bodnar
from its employ to discourage employees from support-
ing the Union.
5. Respondent did not violate the Act with respect to
the allegations that it by: (a) its banquet manager, Arthur
Sands, engaged in surveillance of the union activities of
Brigitta Bodnar or closely supervised her for discrimina-
tory reasons, (b) its maitre d', Jeff Cogen, closely super-
vised Bodnar for discriminatory reasons or discriminated
as to overtime assignments to her, (c) its president, Wil-
liam Maloney Jr., made coercive statements to house-
keeping department employees, (d) its director of securi-
ty, Lloyd Elliott, engaged in surveillance of the union
activities of Richard Boland, and (e) its executive stew-
ard, Skiller Leger, coercively interrogated Richard
Boland.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. Respondent, in violation of Section 8(a)(1) of the
Act, has interfered with, restrained , and coerced employ-
ees about their rights under Section 7 of the Act in that
Respondent
ORDER
The Respondent, Woodcliff Lake Hilton Inn, Inc.,
Woodcliff Lake New Jersey, its officers, agents, succes-
sors , and assigns, shall
1. Cease and desist from
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
WOODCLIFF LAKE HILTON INN
(a) Coercively interrogating its employees in regard to
their membership in or support for Local 69, Hotel Em-
ployees and Restaurant Employees International Union,
AFL-CIO, or any other labor organization.
(b) Threatening to close its hotel or to physically harm
any employees to discourage employees from supporting
the Union.
(c) Soliciting employees to inform it of the names of
employees who discuss the Union and the extent of sup-
port for the Union among employees.
(d) Subjecting any employee to personal harassment to
discourage employees from supporting the Union.
(e) Suspending from its employ any employee to dis-
courage support for the Union.
(f) In any like or related manner interfering with, re-
straining , or coercing employees with respect to their
right under Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Make Richard Boland and Brigitta Bodnar whole
for their lost earnings with interests arising from their
suspensions.
(b) Remove from its personnel files any references to
their unlawful suspensions and notify them in writing
that this has been done.
s The amount shall be computed from the respective paydays on
which they would have been paid for the days they were suspended with
interest to date of payment to be computed in accordance with Florida
Steel Corp, 231 NLRB 651 (1977)
1073
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at Respondent's hotel in Woodcliff Lake,
New Jersey, copies of the attached notice marked "Ap-
pendix."' Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that unfair labor prac-
tices alleged in the complaint, to which merit has not
been found above, be dismissed.
* If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "