Hampton Inn

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 942 (N.L.R.B. 1992)

942
309 NLRB No. 152
HAMPTON INN
1 On June 5, 1992, Administrative Law Judge D. Barry Morris
issued the attached decision. The General Counsel and the Respond-
ent each filed exceptions and a supporting brief. The Respondent
filed an answering brief to the General Counsel’s exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
3 Member Devaney agrees with the judge that the Respondent vio-
lated Sec. 8(a)(1) when its director of operations, Anthony
Evaneglista, told employee Annette Espino that if the employees
‘‘go on strike, we lose our jobs.’’ However, he does not rely on the
judge’s citation to Baddour, Inc., 303 NLRB 275 (1991), in which
he dissented, because he views the language used there to be clearly
distinguishable from that employed here by the Respondent.
4 Evans Bros. Barber & Beauty Salons, 256 NLRB 121, 128
(1981), cited by the judge is distinguishable. There, the employer
asked an employee if he wanted to remain in the employer’s employ
and then stated that the union could not do the employees any good
because the employer could not afford it. Here, the Respondent’s
statement was much more limited.
Milford Plains Limited Partnership d/b/a Hampton
Inn and Local 371, United Food and Commer-
cial Workers Union, AFL–CIO, CLC. Cases
34–CA–5228, 34–CA–5376, and 34–RC–1031
December 16, 1992
DECISION, ORDER, AND CERTIFICATION
OF RESULTS
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues addressed here are whether the Respond-
ent violated Section 8(a)(1) by certain statements made
to employees during a union campaign and whether it
violated Section 8(a)(3) and (1) by discharging three
employees for their union activity.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,2 findings,3 and con-
clusions as modified and to adopt the judge’s rec-
ommended Order as modified. For the reasons set forth
below, we disagree with the judge that the Respondent
violated Section 8(a)(1) by threatening employees that
their efforts to unionize would be futile and they
would be subject to violence if the Union were se-
lected.
1. The judge found that Respondent in mid-May
threatened that the employees’ efforts to organize
would be futile. We disagree. In mid-May, the Re-
spondent’s director of operations, Anthony Evangelista,
came into a guest room which employee Albertina
Atilho was cleaning, and commented to Atilho that she
was wearing union buttons. Evangelista said ‘‘we’re
against the Union, we don’t want the Union in here
because we don’t have no money . . . trying to get
money from us is trying to get water from a stone.’’
At that point, they both laughed. Evangelista added
that the Union might promise sick days and other ben-
efits, but the employees could not get them ‘‘if we
don’t have any money because we have a lot of credi-
tors.’’
The natural import of Evangelista’s comments was
not that the Respondent would take reprisals against
the employees for their union activities but simply that,
in view of the Respondent’s current financial condi-
tion, it could not afford the benefits the Union was
promising. The statement was merely a statement as to
its view of its financial position and, without more,
was insufficient to threaten that the employees’ efforts
to unionize would be futile.4 We shall, therefore, dis-
miss this allegation.
2. The judge found that the Respondent violated
Section 8(a)(1) by posting a notice threatening its em-
ployees with violence if they selected the Union. We
disagree.
The notice stated:
WHAT CAN THE UFCW GIVE YOU?
1. The right to walk a picket line.
2. The right to go out on strike.
3. The right to pay dues to the United Food and
Commercial Workers Union.
4. The right to throw brickbats at cars of non-
strikers—even if they are your friends.
5. The right to fear for your safety and the safety
of your loved ones if you oppose United Food
and Commercial Workers Union strikes.
6. The right to worry over whether the United
Food and Commercial Workers Union will let
you work! [Emphasis in original.]
The judge found that the statements in the notice re-
ferring to throwing objects at automobiles and ‘‘fear
for your safety’’ exceed the permissible campaign ma-
terials protected by Section 8(c). He, therefore, found
that by this notice the Respondent made an unlawful
threat that violence would result if the employees se-
lected the Union.
943HAMPTON INN
5 We agree with the Respondent that General Dynamics, 250
NLRB 719, 722 (1980), cited by the judge, is distinguishable. There,
the Board found that the employer’s numerous and graphic ref-
erences to strikes and violence, as well as loss of business, jobs, and
benefits amounted to veiled threats and created an atmosphere of
fear.
6 Cf. Louis Gallet, Inc., 247 NLRB 63, 66 (1980), enfd. 642 F.2d
443 (3d Cir. 1981), in which the employer went beyond lawfully
raising the possibility of a strike and accompanying violence to un-
lawfully state that a strike was inevitable.
7 See Benjamin Coal Co., 294 NLRB 572, 585–586 (1989). 1 All dates refer to 1991 unless otherwise specified.
The notice does no more than present the possibility
to the employees that bringing a union in may result
in strikes and that strike misconduct might then occur.5
An employer may properly discuss strikes or accom-
panying violence as a possible consequence of a union
entering the scene.6 The Respondent refers only to
possible violence, not by it, but by prounion support-
ers, i.e., conduct beyond its control. This constitutes no
more than an expression of opinion as to one possibil-
ity of what might happen should the Union win. It is
not a threat by the Respondent that it will take coer-
cive action, such as violence, against the employees
because they have selected the Union.7 We, therefore,
also dismiss this allegation that the Respondent vio-
lated Section 8(a)(1) by threatening employees with vi-
olence if they selected the Union.
AMENDED CONCLUSION OF LAW
We delete the judge’s Conclusion of Law 4 and sub-
stitute the following for his Conclusion of Law 3:
‘‘3. By threatening employees with more onerous
working conditions and loss of benefits if the Union
were selected and by threatening loss of jobs as a re-
sult of a strike, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Milford Plains Limited
Partnership d/b/a Hampton Inn, Milford, Connecticut,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Threatening employees with more onerous
working conditions and loss of benefits if they select
the Union; and threatening employees with loss of jobs
as a result of a strike.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for Local 371, United Food and
Commercial Workers Union, AFL–CIO, CLC, and that
it is not the exclusive representative of these bargain-
ing unit employees.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees with more oner-
ous working conditions and loss of benefits if they se-
lect the Union; or threaten employees with loss of jobs
as a result of a strike.
WE WILL NOT discharge employees for activities
protected by Section 7 of the National Labor Relations
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer full and immediate reinstatement to
Debra Coover Bennett to her former position or, if
such position no longer exists, to a substantially equiv-
alent position, without prejudice to her seniority or
other rights and privileges, and WE WILL make her
whole for any loss of earnings that she may have suf-
fered by reason of her discharge, with interest.
MILFORD PLAINS LIMITED PARTNERSHIP
D/B/A HAMPTON INN
Thomas W. Doerr, Esq., for the General Counsel.
S. Mark Klyza, Esq. (Kullman, Inman, Bee, Downing &
Banta), of New Orleans, Louisiana, for the Respondent.
Gerald Richman, Esq. (Shapiro, Shiff, Beilly, Rosenberg &
Fox), of New York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Hartford, Connecticut, on February
10–12, 1992. Upon charges filed on May 20 and August 22,
1991,1 a consolidated complaint was filed on October 31, al-
leging that Milford Plains Limited Partnership d/b/a Hampton
Inn (Respondent) violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act). Respondent filed an an-
swer denying the commission of the alleged unfair labor
practices.
Pursuant to a Decision and Direction of Election dated
June 13, an election by secret ballot was conducted on July
12. Fourteen votes were cast for Local 371, United Food and
Commercial Workers Union, AFL–CIO (the Union) and 14
votes were cast against the Union. Two ballots were chal-
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lenged. On July 17, Respondent filed timely objections to
conduct affecting the results of the election. On September
25, the Regional Director issued a supplemental decision, in
which he overruled the objections but further ruled that the
hearing on the challenged ballots of Scott Alter and Mar-
garita Alicea be consolidated with the hearing on the alleged
unfair labor practices. On November 21 the Regional Direc-
tor issued an order consolidating the cases for hearing before
an administrative law judge.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by all the par-
ties on April 30, 1992.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware Limited Partnership, with its prin-
cipal place of business in Milford, Connecticut, has been en-
gaged in the operation of a motel. It annually derives gross
revenues in excess of $500,000, and purchases and receives
at its facility goods valued in excess of $5000 from points
located outside the State of Connecticut. Respondent admits,
and I find, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act. In
addition, it has been admitted, and I find, that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
During February and March some of Respondent’s em-
ployees began attending union meetings and during April
they started wearing union buttons. Authorization cards were
signed in May and on May 7 the Union requested recogni-
tion. The Union filed a certification petition on May 8.
2. Events of early May
Albertina Atilho began her employment with Respondent
as a housekeeper/maid on April 27. She appeared to me to
be a credible witness. She testified that approximately 2
weeks after she began her employment, Anthony Evangelista,
Respondent’s director of operations, came into a guest room
which Atilho was cleaning, told her to sit down, and said to
her:
I notice you’re wearing Union buttons on your
clothes and I said yes. And he said you know that
we’re against the Union, that we don’t want the Union
in here because we don’t have no money . . . . And
he said trying to get money from us is trying to get
water from a stone.
Atilho also credibly testified that several days after the con-
versation with Evangelista, Rebecca Forsythe, general man-
ager of Respondent, approached her while she was cleaning
a room and told her that ‘‘we’re against the Union because
we don’t have any money.’’
3. Events of mid-May
Linda Cummings began her employment with Respondent
in July 1990 as a housekeeper. She signed an authorization
card on behalf of the Union on April 25 and started wearing
a union button at work shortly thereafter. She testified that
after she began wearing the union button, Florence Hughes,
the executive housekeeper of Respondent, told her that if the
Union came in ‘‘they’d make it harder on us because they’d
have to enforce the rules more, be more strict. We could no
longer be friends or anything. You know, she couldn’t do fa-
vors for us like she used to.’’ Cummings testified that
Hughes also told her that ‘‘she was going to clock us on our
breaks . . . and if we took one minute after . . . instead of
getting oral warnings, we would get written warnings.’’
Hughes was not called as a witness.
4. Meeting of May 29
A meeting was held of the employees on May 29 at which
time Paul Underhill, President of Respondent, addressed the
employees. Atilho testified that Underhill said:
If we do get the Union in, that it was going to be
like the Greyhound Bus strike, that it would be a big
mess. And if we did go on strike with the Union, that
we had better put our walking shoes on . . . and he
will replace us with a maid . . . service.
Debra Coover’s recollection of Underhill’s statement at that
meeting was that he said ‘‘he could rehire new people to
take our place; and if we didn’t like it, we could put on our
walking shoes and keep on walking.’’ Similarly, Cummings
testified that Underhill stated at that meeting ‘‘if we wanted
to go strike, that we would be replaced; he would have other
workers come in and replace us; if we wanted to go on
strike, then we could put our walking shoes on and keep on
walking.’’
Underhill testified that he read the speech from a prepared
text. The speech, which is in evidence, states, in pertinent
part:
If any of you have your heart set on all of those
promises of the Union, you better buy your walking
shoes now, get them broken in good and paint your
picket signs, because you’re going to be on strike and
on strike for a good long time.
4. Events of June 15
Annette Espino began her employment with Respondent in
November 1990. She testified that about 2 weeks after the
meeting with Underhill, Evangelista told her that ‘‘if we go
on strike, we lose our jobs.’’ Espino asked him ‘‘if we vote
no, what’s going to happen?’’ and he replied, ‘‘you have
your job.’’ She further testified that Evangelista told her:
If the Union would get in, [there] would be a de-
crease in our pay. We will be getting paid less than we
were getting paid now. He put an example, as $4.50.
We would be getting paid $4.50, because they start
from zero to negotiate. We used to get paid $5.75.
945HAMPTON INN
6. Impression of surveillance
At the hearing General Counsel amended the complaint to
allege that on July 11 Respondent created an impression
among its employees that their union activities were under
surveillance. The notes of Underhill’s remarks on July 11 in-
dicate that he told the employees that he knew that a few
of them had not made up their minds. Underhill testified that
he told the employees that ‘‘I understand that a few of you
have still not made up your mind, referring . . . to how to
vote in the election.’’
7. Threat of violence
At the hearing General Counsel also amended the com-
plaint to allege that on June 26 by posting a notice to its em-
ployees, Respondent threatened its employees with violence
if they selected the Union. The notice stated:
WHAT CAN THE UFCW GIVE YOU?
1. The right to walk a picket line.
2. The right to go out on strike.
3. The right to pay dues to the United Food and
Food and Commercial Workers Union.
4. The right to throw brickbats at cars of non-strik-
ers—even if they are your friends.
5. The right to fear for your safety and the safety of
your loved ones if you oppose United Food and Com-
mercial Workers Union strikes.
6. The right to worry over whether the United Foods
and Commercial Workers Union will let you work!
8. Conclusions as to 8(a)(1) allegations
a. Threats
I credit Atilho’s testimony that Evangelista told her Re-
spondent is against the Union because ‘‘we don’t have [any]
money’’ and that ‘‘trying to get money from us’’ is like try-
ing to get ‘‘water from a stone.’’ I believe that this statement
threatened that the employees’ efforts to organize would be
an exercise in futility, in violation of Section 8(a)(1) of the
Act. See Evans Bros. Barber & Beauty Salons, 256 NLRB
121, 128 (1981).
I also credit Cummings’ testimony that Hughes told her if
the Union were selected, ‘‘they’d make it harder on us.’’ The
testimony was not rebutted. I find that this statement threat-
ened employees with more onerous working conditions if the
Union came in. This constitutes a violation of Section 8(a)(1)
of the Act. See Churchill’s Supermarkets, 285 NLRB 138,
140 (1987).
Several witnesses testified concerning Underhill’s remarks
on May 29 about putting on their ‘‘walking shoes.’’ As is
understandable, each witness remembered the remarks a little
differently. Underhill testified that he read from a prepared
text. The speech, which is in evidence, stated that if the em-
ployees have their ‘‘heart set’’ on all of the union promises,
‘‘you better buy your walking shoes now . . . because
you’re going to be on strike and on strike for a good long
time.’’ I find that Underhill’s statement was within the range
of permissible conduct during an election campaign and did
not constitute a violation of Section 8(a)(1) of the Act. See
Blue Grass Industries, 287 NLRB 274, 275 (1987). Accord-
ingly, the allegation is dismissed.
I credit Espino’s testimony that around June 15
Evangelista told her that ‘‘if we go on strike, we lose our
jobs.’’ In Baddour, Inc., 303 NLRB 275 (1991), the Board
found that Respondent’s statements to bargaining unit em-
ployees that ‘‘union strikers can lose their jobs’’ conveyed
to the employee the message that employment will be termi-
nated. Such a statement unlawfully implies a threat of job
loss as a result of a strike, in violation of Section 8(a)(1) of
the Act.
I also credit Espino’s testimony that around June 15
Evangelista told her ‘‘if the Union would get in, [there]
would be a decrease in our pay. This constitutes an unlawful
threat of loss of benefits if the Union is selected, in violation
of Section 8(a)(1) of the Act. See Tra-Mar Communications,
265 NLRB 664 (1982).
b. Impression of surveillance
On July 11 Underhill told the employees that ‘‘I under-
stand that a few of you have still not made up your mind’’
on how to vote in the election. In testimony which was not
controverted he stated that he knew this ‘‘from employees
who had come to me to ask for more information after we
had given our speeches.’’ General Counsel alleges that this
constitutes an unlawful impression of surveillance, citing
Gupta Permold Corp., 289 NLRB 1234 (1988). To the con-
trary, I do not believe that case supports General Counsel’s
position. In that case a violation was found where the plant
manager stated ‘‘he knew that there were . . . 13 people at
the Union meeting the previous day’’ (id. at 1247). As stated
in Gupta (id.):
In circumstances in which, as here, a high-ranking
company official makes reference to a specific number
of employees at a union meeting for no apparent rea-
son, which number corresponds or closely corresponds
to the actual number in attendance, I find it reasonable
for employees to assume that the company has that
meeting under surveillance.
In the instant proceeding, Underhill merely said that he
understood that a ‘‘few’’ employees had still not decided
how to vote in the election. No specific number of employ-
ees was given. I do not find that employees would reason-
ably assume, based on that statement, that their union activi-
ties were under surveillance. Gupta Permold Corp., supra,
289 NLRB at 1246. Accordingly, the allegation is dismissed.
c. Threat of violence
On June 26 Respondent posted a notice to employees enti-
tled ‘‘What Can the UFCW Give You?’’ Among other
things, the notice stated the ‘‘right to throw brickbats at cars
of non-strikers’’ and the ‘‘right to fear for your safety if you
oppose the Union’s strikes.’’ The complaint, as amended, al-
leged that these statements constituted threats to employees
with violence if they selected the Union.
In General Dynamics Corp., 250 NLRB 719, 722 (1980),
the Board stated:
[We] find that the Employer’s statements regarding the
consequences of bargaining, such as strikes . . . were
objectionable and implied threats inasmuch as these
statements were intertwined with graphic descriptions
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of long and violent strikes at other plants of the Em-
ployer. [Emphasis added.]
While Respondent cites Clark Equipment Co., 278 NLRB
498 (1986), that case involved allegations of implied threats
of loss of benefits and the inevitaibility of a strike if the em-
ployees selected the Union. There were no statements similar
to those in the instant notice which suggested violence and
‘‘fear for your safety’’ if a strike was called by the Union.
Under such circumstances, the Board held that respondent
did not violate the Act. In this proceeding, however, I be-
lieve that the statements concerning throwing objects at auto-
mobiles and ‘‘fear for your safety’’ go beyond the permis-
sible campaign materials envisioned by Section 8(c) of the
Act. Accordingly, I find that by making such statements Re-
spondent violated Section 8(a)(1) of the Act.
9. Discharge of Margarita Alicea
Margarita Alicea began her employment with Respondent
in March. On May 2 she signed an authorization card on be-
half of the Union. There is no indication in the record that
she wore a union button or that she participated in any other
union activity. On May 6 Alicea informed Hughes that she
had violated probation and she was required to be in court
the following day. On May 7 Alicea was sentenced and com-
menced serving a 37-day jail term. Evangelista credibly testi-
fied that on May 14 Hughes told him that Alicea had been
absent from work for over a week and that she was in jail.
Evangelista testified that new employees have a 90-day pro-
bationary period and as of May 14 Alicea was still within
her probationary period. Evangelista instructed Hughes to ter-
minate Alicea as of May 14. While Alicea testified that
Hughes told her ‘‘job would be there,’’ Evangelista credibly
testified that Hughes did not mention to him that she had
told Alicea that the job would remain open. Evangelista also
credibly testified that Respondent had never granted a leave
of absence to a probationary employee and has never granted
a leave of absence to any employee for the purpose of serv-
ing a jail sentence.
The only union activity that Alicea was involved in was
the signing of a union authorization card. Thomas Wilkinson,
the union representative, testified that 13 authorization cards
were signed. On May 7 the names of the card signers were
revealed to Evangelista and Forsythe. Except for Alicea,
Coover, and Cummings, the other employees were not termi-
nated. I find that General Counsel has not shown by a pre-
ponderance of the evidence that Alicea was discharged be-
cause of union activities. On the contrary, I find that she was
a probationary employee and she was terminated because she
did not report to work inasmuch as she was serving a jail
sentence. Accordingly, the allegation is dismissed.
10. Discharge of Linda Cummings
Linda Cummings began employment with Respondent in
July 1990. On April 25 she signed a union authorization card
and began wearing a union button at work shortly thereafter.
Evangelista credibly testified that on August 14 a guest
called to say that $30 was missing from his room. The guest
normally left money in the nightstand drawer. Cummings had
been assigned to clean that room. The next day Evangelista
and Forsythe counted the money in the drawer and it totaled
$56. After Cummings cleaned the room, Evangelista and
Forsythe again counted the money and Evangelista testified
that $2.50 was missing. Evangelista questioned Cummings
about the missing money. Initially she denied taking the
$2.50. However, after being asked a third time, Evangelista
credibly testified that Cummings admitted taking the money
and said, ‘‘I needed it, I was going to put it back.’’
Evangelista immediately discharged her. Forsythe corrobo-
rated Evangelista’s testimony. Cummings testified that she
was only asked whether she had taken $30 and denied hav-
ing taken the $30.
I find that General Counsel has established a prima facia
showing that union activity was a motivating factor in the
decision to discharge Cummings. Cummings signed an au-
thorization card and wore a union button. However, under
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989, once a prima
facia showing has been made, the burden shifts to the em-
ployer to demonstrate that the ‘‘same action would have
taken place even in the absence of the protected conduct.’’
I have credited Evangelista’s and Forsythe’s testimony that
$2.50 was missing from the room after Cummings cleaned
it. I have also credited their testimony that she admitted hav-
ing taken the money. I find that she was terminated because
of the theft. Accordingly, the allegation is dismissed.
11. Discharge of Debra Coover
Debra Coover Bennett (Coover) began working for Re-
spondent in April 1990. During April 1991 she began wear-
ing a union button. On August 7 during the morning break,
several of the employees were sitting in the breakroom.
Atilho credibly testified that three employees, including
Coover, were smoking. Atilho also credibly testified that Ida
Porretti lit a book of matches. The smoke alarm subsequently
went off and Evangelista came into the room and asked
‘‘which one of you set off the alarm? Atilho testified that
‘‘nobody said anything.’’ Atilho testified that about an hour
later Hughes came into the guest room that Atilho was clean-
ing and told her ‘‘I have two girls who are saying Debbie
[Coover] did it.’’ Atilho further testified that sometime sub-
sequent to the incident, Hughes approached her and said that
Evangelista wanted Atilho to say that she saw Coover set off
the alarm. Atilho told Hughes that she couldn’t do that be-
cause ‘‘I never saw Debbie do it.’’ Espino testified that she
had been smoking directly under the smoke detector and that
Coover did not light anything and hold it under the smoke
detector.
Kim Schietinger worked as a housekeeper for Respondent
during the summer of 1991. She testified that she is the
girlfriend of Hughes’ son and that at the time of the smoke
detector incident Porretti took a piece of paper and held it
up to the smoke detector and then Coover took the paper
from her, lit it, and held it to the smoke detector, after which
the fire alarm went off. Evangelista testified that after the
alarm went off, he went into the breakroom and asked every-
one ‘‘in a general question’’ what happened. He testified
‘‘no one seemed to know anything.’’ He then asked Hughes
to talk to the employees. Evangelista testified that Hughes
spoke to Schietinger and based on what Schietinger had told
her, Hughes told Evangelista that Coover lit a piece of paper
and held it to the smoke detector. Evangelista testified that
he then decided to terminate Coover.
947HAMPTON INN
2 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Atilho appeared to me to be a credible witness. I credit
her testimony that Porretti lit a book of matches but that
Coover did not set off the alarm. I note that Schietinger is
the girlfriend of Hughes’ son and I also note that Hughes did
not testify.
Coover had worn a union button and was one of the em-
ployees who signed a union authorization card. I find that
General Counsel has made a prima facia showing sufficient
to support the inference that her union activity was a moti-
vating factor in Respondent’s decision to discharge her. I
have credited Atilho’s testimony that Coover was not the
cause of the alarm going off. Evangelista came into the break
room and asked the ‘‘general’’ question of who set off the
alarm. There was no response. Evangelista questioned
Coover, who denied having set off the alarm. He did not
question the other employees individually. Had he done so,
he may well have discovered that it was Porretti who lit the
book of matches. I find that Respondent has not satisfied its
burden under Wright Line, supra. Accordingly, I find that
Respondent has violated the Act by discharging Debra
Coover.
III. CHALLENGED BALLOTS
A. Margarita Alicea
The Board challenged the ballot of Alicea because her
name did not appear on the eligibility list furnished by Re-
spondent for the election. I have already found that Respond-
ent did not unlawfully discharge Alicea. Accordingly, I find
that as of the date of the election Alicea was not an em-
ployee of Respondent. The challenge to the ballot is there-
fore sustained.
B. Scott Alter
The Union challenged the ballot of Scott Alter on the
ground that he was not employed during the agreed-upon eli-
gibility period. Evangelista testified that Alter commenced
employment with Respondent in February 1988 working as
a part-time employee at the front desk. He had another full-
time job and worked approximately 2 days per week until
October 1990. At that time he was working a considerable
amount of overtime at his full-time job and he asked Re-
spondent not to schedule him for any work until his work
at the full-time job ‘‘slowed down.’’ The records show that
he worked only twice during January 1991 and once during
February. While Evangelista testified that Alter returned as
a regular part-time employee in May, in fact Alter worked
only 5 hours from the beginning of May through July 12.
In determining whether an employee is a regular or a cas-
ual part-time employee the Board has taken into consider-
ation such factors as regularity and continuity of employ-
ment. Muncie Newspapers, 246 NLRB 1088 (1979). The in-
dividual’s relationship to the job must be examined to deter-
mine whether the employee performs unit work ‘‘with suffi-
cient regularity to demonstrate a community of interest with
remaining employees in the bargaining unit.’’ Mid-Jefferson
County Hospital, 259 NLRB 831 (1981); Pat’s Blue Ribbons,
286 NLRB 918 (1987). The record shows that Alter worked
twice during January, once during February, and only 5
hours from May through July 12. Under such circumstances,
I find that Alter was not a regular part-time employee but
instead was a casual employee. See Davison-Paxon Co., 185
NLRB 21, 23–24 (1970); Trump Taj Mahal Casino, 306
NLRB 294 (1992). Accordingly, I find that Alter was ineli-
gible to vote in the election. The challenge to his ballot is
therefore sustained.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commcerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening that employees’ efforts to organize
would be futile, by threatening employees with more onerous
working conditions and loss of benefits if the Union were se-
lected and by threatening loss of jobs as a result of a strike,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By threatening employees that they would be subject to
violence if the Union were selected, Respondent has engaged
in an unfair labor practice within the meaning of Section
8(a)(1) of the Act.
5. By discharging Debra Coover Bennett because she en-
gaged in union activities, Respondent has engaged in an un-
fair labor practice within the meaning of Section 8(a)(3) and
(1) of the Act.
6. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondent did not violate the Act in any other manner
alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necesssary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having discharged Debra Coover Bennett in
violation of the Act, I find it necesssary to order Respondent
to offer her full reinstatement to her former position or, if
such position no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of earnings
that she may have suffered from the time of her discharge
to the date of Respondent’s offer of reinstatement. Backpay
shall be computed in accordance with the formula approved
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).2
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Milford Plains Limited Partnership d/b/a
Hampton Inn, Milford, Connecticut, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that their efforts to organize
would be futile; threatening employees with more onerous
working conditions and loss of benefits if they select the
Union; threatening employees with loss of jobs as a result of
a strike; and threatening employees that they would be sub-
ject to violence if the Union were selected.
(b) Discharging employees for activities protected by Sec-
tion 7 of the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Debra Coover Bennett immediate and full rein-
statement to her former position or if such position no longer
exists, to a substantially equivalent position, without preju-
dice to her seniority or other rights and privileges, and make
her whole for any loss of earnings, with interest, in the man-
ner set forth in the remedy section above.
(b) Remove from its files any references to the unlawful
discharge of Debra Coover Bennett and notify her in writing
that this has been done and that the discharge will not be
used against her in any way.
(c) Preserve and, on 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.
(d) Post at its Milford, Connecticut, copies of the attached
notice marked ‘‘Appendix.’’4 Copies of the notice, on forms
provided by the Regional Director for Region 34, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the challenges to the ballots
in Case 34–RC–1031 are sustained.
IT IS FURTHER ORDERED that those allegations of the com-
plaint as to which no violations have been found are hereby
dismissed.