Holiday Inn Restaurant and Country Squire Restaurant

National Labor Relations Board - Board Decisions

Jul 29, 1968

172 N.L.R.B. 1384 (N.L.R.B. 1968)

1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William P . Carr Associates, Inc. d /b/a Holiday Inn
Restaurant and Country Squire Restaurant and
Rose Bottieri . Case 2-CA-1 1393
July 29, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On May 27, 1968, Trial Examiner John G. Gregg
issued his Decision in the above -entitled proceed-
ing, finding that Respondent had engaged in and
was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action , as set forth in the attached Trial Examiner's
Decision . Thereafter, Respondent and the General
Counsel each filed exceptions with a supporting
brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its
powers in connection with ' this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed. The Board has considered the
Trial Examiner 's Decision , the exceptions and the
briefs, and the entire record in the case , and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent , William P . Carr As-
sociates , Inc. d/b/a Holiday Inn Restaurant and
Country Squire Restaurant , Newburgh, New York,
its officers , agents , successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
' General Counsel excepts to the failure of the Trial Examiner to rule on
General Counsel 's posthearing motion to amend the complaint to encom-
pass additional violations of Sec 8(a)( I) of the Act, discovered at the
hearing In his brief to the Trial Examiner , General Counsel moved to
amend the complaint to include ( I ) an alleged implied promise of benefits,
(2) Supervisor Hammerl 's specific threat to Bother regarding her change
in day off, and (3 ) Hammerl 's admitted attendance at the union meeting.
As to ( I), the record merely shows that Respondent posted a notice
generally stating that if employees wished hospitalization or other things
they should see Respondent The record does not reveal the precise word-
mg of the notice , and in the circumstances, we find the evidence relative to
this allegation to be too vague to warrant a finding that Respondent in this
respect violated Sec 8(a)(I ) As to (2) and ( 3), we find the alleged con-
duct to be cumulative to 8(a )( I) violations found herein , and therefore any
finding respecting these additional unfair labor practices would not affect
the remedy For these reasons, and without passing upon the propriety of
the Trial Examiner 's action in failing to amend the complaint as requested
by the General Counsel , we hereby deny the motion of the General Coun-
sel
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG, Trial Examiner: This trial was
conducted at New York, New York, on March 5,
1968, upon allegations in the complaint of the
General Counsel issued in Case 2-CA-11393, on
December 28, 1967, based upon charges filed on
September 6, 1967, and the duly filed answer of the
Respondent to the aforesaid complaint.
The General Counsel alleges essentially that the
Respondent committed unfair labor practices in
that by various acts it interfered with , restrained,
and coerced its employees in violation of Section
8(a)(1) of the Act ; and that by changing her day
off the Respondent constructively discharged em-
ployee Rose Bottieri in violation of Section 8(a)(1)
and (3 ) of the Act. The Respondent denies the
commission of any unfair labor practices.
Upon the entire record in this case, from my ob-
servation of the demeanor of the witnesses as they
testified , and after due consideration of the argu-
ments and briefs herein , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
It was stipulated by the parties herein and I find
that at all times material the Respondent is and has
been a corporation duly organized under and exist-
ing by virtue of the laws of the State of New York,
has maintained an office and restaurant at R. D. #2
Route 17-K in the city of Newburgh, State of New
York , where it is and has been at all times material
engaged in providing and performing restaurant
and related services ; that at all times material
herein the Respondent and the Syfus Leasing Cor-
poration, a New York corporation d/b/a Holiday
Inn, have been held out to the public to be and are
a single integrated enterprise engaged in the busi-
ness of operating a restaurant and motel at the
common situs described above, sharing the same
facilities and serving essentially the same class of
customers; that during the past year which period is
representative of their operations generally the
Respondent and Syfus in the course and conduct of
their operations derived gross revenue therefrom in
excess of $500,000 and purchased and caused to be
transported and delivered to their respective places
of business food , beverages , and other articles and
commodities valued in excess of $5,000 of which
172 NLRB No. 146
HOLIDAY INN RESTAURANT
goods and materials in excess of $5,000 were trans-
ported and delivered to their place of business in
interstate commerce directly from States of the
United States other than the State of New York. I
find that the Respondent is and has been at all
times material herein an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 343, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein
called the Union , is and has been at all times
material herein a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues and Background
The complaint alleges violation by the Respon-
dent of Section 8(a)(1) and ( 3) of the Act in that
the Respondent , through its alleged agent and su-
pervisor , Peter Hammers , during the month of May
1967, warned and directed employees to refrain
from becoming or remaining members of the Union
and to refrain from giving assistance or support to it
and threatened employees with the discontinuance
of existing practices of granting coffeebreaks, per-
mitting smoking privileges , and allowing employees
to leave work areas when not needed if they
became or remained members of the Union and if
they gave assistance and support to it ; additionally
that in or about the middle part of May 1967, the
Respondent , through William Carr , its president,
kept under surveillance a meeting between
representatives of the Union and employees of the
Respondent ; and that on or about May 28, 1967,
the Respondent without prior notice changed em-
ployee Bottieri 's regularly established day off from
Friday to Monday , thereby causing her to leave her
employment and resulting in her constructive
discharge, and that the Respondent has failed and
refused to recall or reinstate Bottieri, all because
she joined and assisted the Union and engaged in
other concerted activity protected by the Act. The
Respondent denies any of the foregoing alleged
violations and contends that Bottieri was not active
in union activities ; that her day off was changed for
business reasons ; and that she never sought rein-
statement . At the trial it was stipulated by the
parties and I find that Peter Hammerl at the times
material herein was a supervisor of the Respondent
within the meaning of the Act.
The record indicates that the employees of the
Respondent engaged in activity attendant on a cam-
paign to unionize the restaurant starting about May
7, 1967, when some of the employees met with a
union representative in the corner of the main bar.
When William Carr, president of the Respondent,
and Peter Hammerl , supervisor and "maitre de,"
1385
learned of the campaign, Carr had Hammerl post a
memorandum on the bulletin board stating
generally if employees wished hospitalization or
other things they were to see Mr. Carr. A sub-
sequent meeting of the employees with representa-
tives of the Union for the purpose of discussing
unionization was held on May 22, 1967, at the
Howard Johnson Restaurant directly across the
street from the Holiday Inn. This meeting was at-
tended by Hammerl . On May 28, 1967, the
Respondent changed hostess -cashier Bottieri's day
off from Friday to Monday.
B. The Alleged Interference, Restraint, and Coercion
Lucy Smith, an employee of the Respondent,
testified that she was employed by the Respondent
for 2-1/2 years and was a waitress on the night shift.
She testified to a conversation which she had with
Peter Hammerl in which he commented essentially
that Rose ( Bottieri) had "whitewashed " her. Mrs.
Smith also testified that she recalled an incident in
which Doris ( Padilla ) and Hammerl were discussing
coffeebreaks and smoking and so forth and Peter
said that if the Union came in, Mr. Carr would be
very rough on the girls and they would not be al-
lowed to stand around in the kitchen and talk or
have their coffee or smoke their cigarettes. Accord-
ing to Mrs. Smith , this conversation took place in
the kitchen in front of the coffee machine in the
month of May 1967 . Mrs. Smith also testified con-
cerning a meeting on May 22 , at the Howard John-
son Restaurant which is directly across the street
from the Holiday Inn, in which the employees held
a meeting with union leaders to decide whether or
not they wanted a union . Present at that meeting
was Peter Hammerl , and according to Mrs. Smith
while she was in attendance for a short while at the
meeting, Hammerl made a couple of comments.
I found Mrs. Smith to be a sincere and
straightforward witness and I credit her testimony.
There is no question about Hammerl 's attendance
at and participation in the union meeting as the
record clearly establishes this fact and it is admitted
by Hammerl.
Rosalie Tatro , an employee of the Respondent, a
waitress on the evening shift in May 1967, testified
that in May 1967 while the union organizational
campaign was going on, Peter Hammerl said that
Mr. Carr would make it very difficult for the em-
ployees if the Union succeeded in coming into the
restaurant . She stated that Mr. Hammerl had said
that Mr. Carr could make it very difficult, that he
could take away their coffeebreaks and make them
stand at stations and not leave them . As she put it
"In other words , there would be no communication
between the girls , could make it very difficult. In
other words a more tense atmosphere , rather than a
relaxed one." Mrs. Tatro testified to conversations
with Mr . Hammerl in which Mrs . Bottieri's name
was mentioned . Mrs. Tatro testified she thought it
was general knowledge that Rose Bottieri was for
354-126 O-LT - 73 - pt. 2 - 16
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union . According to Mrs . Tatro, Hammerl had
said that Rose was for the Union and was trying to
influence the girls to become union members or
voting for the Union , prompting them to send in
cards and to have another union meeting.
According to Mrs . Tatro everyone left the union
meeting with the feeling that nothing had been ac-
complished , and Harry , the bartender , objected
during the meeting to the presence of Mr. Ham-
merl. Mrs . Tatro testified concerning the union
meeting that although Mr. Hammerl 's presence was
objected to he was not asked to leave . Mrs. Tatro
testified further that it was not unusual for em-
ployees to drop by the Holiday Inn to pick up their
paper when not on duty, or to check the schedule,
or to stop in for coffee, and that it was not unusual
for Mrs . Bottieri to have coffee with someone while
she was not on duty. Mrs. Tatro stated that Mrs.
Bottieri was definitely for the Union, but did not
tell other employees that they had to belong to the
Union, although she did try to influence them. Ac-
cording to Mrs. Tatro , Harry , the bartender, was
for the Union , actively engaged in trying to con-
vince other employees to join the Union, and Peter
Hammerl was against the Union, trying to influence
against the Union . According to Mrs. Tatro, at the
union meeting Peter Hammerl stated that he had
had an association with a union once before and
knew that the Union could not help, and that Ham-
merl had said that if the Union came in and if the
Howard Johnson Restaurant went on strike the Un-
ion could make the Holiday Inn employees go on
strike . Mrs. Tatro testified further that at the union
meeting , the union agent who tried to explain that
this could not happen was constantly cut off and in-
terrupted by those who opposed the Union, one of
those being Peter Hammerl . Mrs. Tatro testified
that she recalled a couple of weeks before the ac-
tual meeting at the Howard Johnson Restaurant
some of the employees were sitting in a group, and
Doris Padilla came in from the bar and asked if
they would like to talk to the union man, who was
in the main bar, who would like to talk to them
about the Union , and she asked Peter Hammerl if it
was all right and Hammerl objected; said no. I was
impressed by Tatro's sincerity and straightforward
testimony and I credit her testimony.
Rose Bottieri testified that she worked for the
Respondent for almost 4 years as a cashier and
hostess . She testified to a conversation which she
had with Hammerl in the early part of May 1967,
when the Union was attempting to organize.
"It was one evening , there was several of is in
the kitchen and we discussed the dish washing.
There was dishes piled all over . The kitchen was a
mess and we were discussing union . And I- several
of us were all discussing it and it came about I
make the statement that I would vote for a union so
that we would get sufficient amount of help to keep
this kitchen clean because Mr. Carr had hired
young school kids that could not work over 10 o'-
clock at night or 9:30 at night more dishes are com-
ing in off the dining room and you still need a dish
washer until after we leave because they mop the
floor after we leave . So they have to work until
about 1 1:30 or 12 o'clock. But hiring all that cheap
help all these kids that you can take advantage of I
felt that. I just said I was voting for the Union to
clean this mess up ." According to Bottieri, Ham-
merl then told her that Mr. Carr would make it very
hard on her and would take her up to the cash reg-
ister and would not let her go into the kitchen and
have any coffee and that he would take her Fridays
off.
Concerning the union meeting at the Howard
Johnson Restaurant Mrs. Bottieri testified that not
only was Mr. Hammerl at the meeting but she had
occasion to observe Mr. Carr on the premises in
that evening at the counter . She stated that those
walking in could not help seeing Mr. Carr sitting at
the counter and that Mr. Carr faced the door and
watched everyone of the employees going in while
he was having a cup of coffee. As for Mr. Ham-
merl's conduct at the meeting , according to Mrs.
Bottieri , he talked about closed shops and inter-
rupted the conduct of the meeting . Mrs. Bottieri
stated that she had on occassion discussed with
other employees her estimate of what would hap-
pen to Mr. Hammerl if the Union came in, stating
that she said that if the Union came in Hammerl
would have to be a manager and not work on the
tables. Mrs. Bottieri testified that she received a
card for the Union and signed one and that she sol-
icited others to sign . Based on my observation of
the demeanor of the witness as she testified, I am
convinced that she testified honestly and in a
straightforward manner and I credit her testimony.
Mrs. Marie Perrego testified that she was an em-
ployee of the Respondent , a waitress employed dur-
ing the month of May 1967 and was present at the
meeting held in the kitchen sometime in May when
the dishes were piled high in the sink . Mrs. Perrego
stated that she heard Hammerl 's remarks with re-
gard to what would happen if the Union was cer-
tified and she stated that he did not state that Mrs.
Bottieri would be deprived of her Fridays off. Mrs.
Perrego testified that on Friday evening , May 26,
1967, while she was on duty, in her opinion, the
dining room was a shambles. An inexperienced
cashier and hostess were on duty , people were
sitting down to the dirty tables that had not been
reset , customers set for maybe 20 minutes and were
not waited on because of the dirty dishes, people
sat around , and customers walked out . The hostess
never offered to serve cocktails because she was
not familiar with this line of work. According to
Mrs. Perrego by the end of that night a lot of peo-
ple walked out , people did not pay their checks,
and there were bar checks left over laying around
that nobody could take care of. Mrs. Perrego also
testified that that very same night Hammerl was off
duty. While I am convinced that Perrego testified in
a straightforward manner concerning the condition
of the dining room on the night in question, I was
HOLIDAY INN RESTAURANT 1387
not similarly impressed by her demeanor in her
testimony concerning the remarks of Hammerl to
Bottieri and, particularly in view of her personal
hostility indicated on the record , I do not credit her
version of Hammerl 's remarks.
Peter Hammerl testified that he was the " maitre
de" and manager of the County Squire Restaurant
and that William Carr was his immediate superior.
As maitre de Hammerl makes out the worksheet
and sees that everything runs right , parties are
taken care of, the dining room is taken care of, and
the work is divided properly. He has been em-
ployed at the restaurant since April 1965.
Hammerl testified that when he learned that the
Union was attempting to organize the employees of
the restaurant , Mr. Carr gave him a memorandum
to be placed on the bulletin board which he then
posted on the bulletin board . While Mr. Hammerl
was not familiar or could not recall the contents of
the posted memorandum he remembered that it
stated generally that if employees wished
hospitalization or other things they were to see Mr.
Carr.
Mr. Hammerl testified that Carr told him that no
matter what happened , whether the Union came in
or not , he would be paid the difference " in order to
make it up."
Hammerl testified that some of the girls asked
him what would happen if the Union got in and
asked him whether they should vote for the
Union . According to Hammerl he answered them
by saying they could do as they pleased , they could
vote for the Union if they liked, and they did not
have to vote for it if they did not want it. "But I say
this , everything is a two -way street , the Union natu-
rally will put in certain restrictions to the boss and
maybe the boss has certain rights to clamp down on
the employees, that 's all I said . Of course they
probably would have to stay in their stations and
not standing out in the kitchen or standing
somewhere in the corner and talking."
Concerning the meeting at the Howard Johnson
Restaurant and his presence there, Hammerl
testified that that night some of the girls said to him
"come on Pete let's go and see the meeting, go to
the meeting ." According to Hammerl he went to
the meeting , and when Harry , the bartender , raised
the question as to whether he should be allowed to
be there , one of the union men said " let him stay."
According to Hammerl he only spoke once at the
meeting and he told the meeting that he had been a
member of organized labor 40 years ago.
Hammerl testified that he knew that Mrs. Bottieri
was very active for the Union , and that during
several conversations with employees in which the
Union was mentioned he told the employees that if
the Union could tighten things up with the boss the
Union could tighten things up with certain things
like eliminating continued coffeebreaks , permitting
employees to eat when they wanted , and eliminat-
ing smoking privileges. It is clear from the
testimony on record , including the very testimony
on Peter Hammerl, that he threatened the employees
of the Respondent with the elimination of benefits
such as coffeebreaks , smoking privileges , eating
privileges , and the privilege of leaving work areas
and chatting when not busy , should the Respondent
become unionized . Hammerl 's statement " But I say
this , everything is a two -way street , the Union natu-
rally will put in certain restrictions to the boss, and
maybe the boss has certain rights to clamp down on
the employees , that 's all I said . Of course they
probably would have to stay in their stations and
not standing out in the kitchen or standing
somewhere in the corner and talking " leaves the
clear import that present benefits would be endan-
gered or diminished with the advent of the Union.
Lenkurt Electric Company, Inc., 169 NLRB 941. 1
find , accordingly , that the Respondent through
Hammed threatened the employees of the Respon-
dent with the loss and discontinuance of benefits if
they became or remained members of the Union or
gave assistance and support to it , and that the
Respondent did thereby interfere with , restrain, and
coerce its employees in their exercise of activity
protected by the Act in violation of Section 8(a)(1)
of the Act. '
Crediting the uncontradicted testimony of Bot-
tieri that Carr was present at the Howard Johnson
Restaurant on the night of the union meeting of
May 22 , 1967, and sat at the entrance to the bar
where he was clearly observed by employees going
into the meeting and where he could observe the
employees as they went into the meeting, I find that
by these actions the Respondent , through Carr,
kept under surveillance the meeting between union
representatives and employees of the Respondent
thereby interfering with , restraining, and coercing
the employees of the Respondent in their exercise
of activity protected by the Act in violation of Sec-
tion 8 (a)(1) of the Act.
C. The Alleged Discriminatory Constructive
Discharge of Bottieri
Lucy Smith, an employee of the Respondent for
2-1/2 years, testified that she was a waitress on the
night shift , that on Mrs. Bottieri 's last day of em-
ployment at the restaurant she, Mrs. Smith, was
working from 12 noon to 5 p.m., and about 12:30
or 1 p.m . she overheard a conversation between
Hammed and Lyle, another employee , in which
Bottieri 's name was mentioned . According to Mrs.
Smith , Lyle, a busboy, told Hammerl that Bottieri
was in that morning having a meeting with the day
girls, and Peter said "why the hell don 't she keep
her ass out of the kitchen ." Mrs. Smith testified
further that when Bottieri came on duty around 2
or 2:30 that afternoon Mrs. Smith told Bottieri
what she had heard the busboy say to Mr. Ham-
merl. After this discussion , later that day Mrs.
Smith had occasion to see Bottieri at the bar where
Bottieri was crying . Mrs. Smith asked her what the
matter was , and she said "Well, Peter had just
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changed my day off. He took my Fridays away from
me."
Mrs. Smith testified further that during the
period of time that she worked at the Holiday Inn,
for the year and a half prior to May 1967, Mrs. Bot-
tieri had Fridays off.
Q. Was it always Fridays?
A. Yes, as near as I can remember. Occa-
sionally, you know, she might have another day
for something special, but Friday was her regu-
lar day off.
I found Mrs. Smith to be a straightforward and sin-
cere witness and I credit her testimony.
Betty Terrette, an employee of the Respondent in
May 1967, had worked in the capacity of a waitress
for approximately a year and a half at the Holiday
Inn. She testified credibly that she knew of her own
knowledge that Mrs. Bottieri had a particular day
off and that day was Friday. Mrs. Terrette testified
further to a conversation which she had with Peter
Hammerl . According to Terrette, one night when
she reported to work she and Hammerl discussed
Rose Bottieri . According to Terrette, Hammerl
mentioned that he thought he could prove that Bot-
tieri was trying to "instigate " a union.
Another employee of the Respondent, Rosalie
Tatro, testified credibly that she was employed at
the Country Squire Restaurant in May 1967, as a
waitress , and at that time had just returned to work
as a regular girl on the evening shift. Mrs. Tatro
testified that at that time Mrs. Bottieri was also em-
ployed by the Holiday Inn.
Q. Did she have a particular day off?
A. Yes, Fridays.
Q. Fridays? Always Fridays, to your
knowledge?
A. To my knowledge, yes.
Rose Bottieri testified that she worked for the
Country Squire Restaurant for almost 4 years, that
she worked evenings as a cashier and hostess and
that during the 4-year period she worked a particu-
lar schedule that is every day, holidays, Saturday,
Sunday, but she had Friday nights off. She said this
schedule started in 1965 when she was doing some
"moonlighting" which required her to work on
Thursday night, Friday night, and half a day Satur-
day morning, that she then worked for the Country
Squire Saturday night, Sunday night, right through
the week. She testified that during the year 1966,
her night off was Friday night, that she worked
Saturday and Sunday nights and holidays and that
this was the same in 1965 and up until May 1967.
Q. Did you ever have occasion to work on
Friday nights?
A. Yes. When he had a party or something
and we needed- I would go in and help out as
a hostess or something , or if a girl didn't show
up, I would help out.
Q. This was a regular thing was it?
A. It wasn't too often that I did it but I
helped.
Mrs. Bottieri testified concerning the day she left
the employ of Holiday Inn which was May 28, a
Sunday. She was scheduled to work that day at 3
o'clock in the afternoon until closing at 9:30 or 10;
she was at the restaurant before 3 o'clock, her re-
porting time, inasmuch as she had brought the chef
to work. According to Bottieri, she picked up the
chef and brought him over to the Holiday Inn and
had a cup of coffee with the day girls. Bottieri
testified that the night before this happened, Satur-
day night she and Hammerl had both worked. She
had not worked the previous Friday night. She had
not been told on Saturday night of any change in
her day off, but on Sunday when she reported early
to bring the chef to work she had occasion to speak
to Lucy Smith at which time Lucy told her that she
was accused of going in in the morning and having
a union meeting with the day girls and that Peter
Hammerl had talked with Lyle about it in the
kitchen. After this discussion with Smith , Bottieri
went and spoke to Hammerl . She asked Hammerl
why he was saying that she had a union meeting
with the day girls and, according to Bottieri, Ham-
merl said, "I didn't say that to your face," and he
walked off, neglecting the issue.
According to Bottieri , a little while later Ham-
merl came back and told her that Mr. Carr had
changed her day off from Friday to a Monday. Bot-
tieri testified that she told Hammerl that he knew
that she could not take the change , to which he
replied, "Well you speak to Carr." Bottieri testified
that as Mr . Carr was not in she spoke to him when
he did come in at 9 o 'clock that night, "Well Mr.
Carr came in and I told him I would like to talk to
him and we went in on the side room . And I told
him that I could not take the change off. And he
told me that-I should because of the busy season.
And I told him that every summer is a busy season
for the Holiday Inn but he always had help on. He
always hired a girl for Friday night, Saturday morn-
ing and Sunday morning . So there was no need for
me. And Pete is always on every weekend. So I
could not see why I had to be there too." Bottieri
testified that having Friday night off was important
to her because she visits her mother and father and
her relatives in New Jersey. According to Bottieri,
she would wait for her children to come home after
4 o'clock and then would go down to New Jersey
and would get there about 6 for supper. Bottieri
stated that by going on a Friday night she can stay
over Saturday and come back Saturday afternoon
then go back to work, but if she goes on a Monday
night she has to get the children back home and get
them in bed before 10:30 or II o'clock because
they have to be on a 7 o'clock bus to go to school
the next morning.
Bottieri testified essentially that Carr tried to tell
her that the season was going to be very busy and
she told him that every season was busy, every
summer , and that she had had Friday nights off for
3 years and did not know why she could not have it
this year. According to Bottieri , Carr would give
her no answer, but told her it was her problem.
HOLIDAY INN RESTAURANT
Mrs. Bottieri testified that when she told Mr. Carr
that she could not continue on the job if her day off
was changed , she asked Mr. Carr if he wanted a
notice or if she should leave and he said , " it's up to
you," so she left. This was on a Sunday , the 28th.
Mrs. Bottieri testified further that when she had her
Friday nights off her place was taken by a cashier
who worked Friday nights , Saturday mornings, and
Sunday mornings . Based on my observation of Mrs.
Bottieri and her demeanor as she testified , I credit
her testimony . I was impressed by her sincerity and
straightforward account.
Harry Persutti , a bartender for the Respondent
for about 5-1/2 years, testified that he was engaged
in the activity attendant on the union campaign in
the month of May 1967. He identified himself as
one of the chief organizers and stated that this was
known to everyone including Hammerl and Carr.
Persutti stated that he called for the union meeting
which was held on May 22 , 1967. He objected to
Hammerl 's presence at the meeting and asked the
union men that Hammerl not be allowed on the
premises , that he would like Hammerl off the
premises , but the union men refused to go along.
According to Persutti the union man said , " I know
Mr. Carr is in front , we should invite him in too."
According to Persutti, Hammerl , at the meeting,
stated that he was at one - time in an organized
union and said he did not like unions.
Peter Hammerl testified that he made up the
work schedule for Mrs . Bottieri , that one day Mrs.
Bottieri told him that her grandparents or parents
were sick in New Jersey and she wanted to go down
there on Friday nights and would like to have
Friday off. Hammerl stated that he said he would
speak to Mr. Carr about this and he spoke to Mr.
Carr who approved. According to Hammerl, this
took place sometime around 8 weeks before Mrs.
Bottieri quit , sometime in March or April 1967.
According to Hammerl , before that time Mrs. Bot-
tieri did not have a regular day off, sometimes she
had Tuesday off, sometimes Wednesday , and it all
depended on the work situation . According to
Hammerl , after Mrs. Bottieri 's request sometime in
March or April 1967, she did have Friday off regu-
larly, that is since March 1967, but that before that
she did not regularly have Friday off.
Hammerl testified concerning the change in Bot-
tieri 's day off that he did not work on May 26,
Friday night ; he worked again on Saturday ; and the
next time he saw Mr. Carr was on Sunday at 1 1 o'-
clock in the morning at which time he had a con-
versation with Mr . Carr, in which Carr told him
that it was a mess on Friday night and that from
now on neither he nor Mrs. Bottieri would take off
Friday. According to Hammerl , Mr. Carr told him
to tell Mrs. Bottieri that from now on she would
have to take off on a Monday instead of a Friday,
because they were getting too busy with the
summer business coming in.
Hammerl testified that he determined his own
day off, had no regular day off, and normally would
1389
take off when it was not too busy . According to
Hammerl there was no question but that business
was heavier in the summer than it was in the winter,
and Fridays and Saturdays in the summer were the
busiest days . Concerning the change in Bottieri's
day off, Hammerl stated that when she came in
about 12 o'clock or 1 o'clock he said , " Rose, Mr.
Carr told me that you can 't take off Fridays any-
more . You will have to take off Mondays instead
because they were too busy ." Mrs. Bottieri
responded "then I quit ." According to Hammerl, as
soon as Mr. Carr came back at 5 o'clock, Mrs. Bot-
tieri went and talked to him in a private room and
after a while Mr. Carr called in Hammerl and he
said , " Pete , what did you tell Mrs . Bottieri?" Ham-
merl stated , " I said I told her exactly what you told
me that ... she will have to take off Mondays in-
stead of Fridays ." Hammerl testified that after Mrs.
Bottieri left he hired a cashier to replace her; they
had one cashier , but this girl was very new and had
never done any work of that kind before and was
not able to handle Friday night; and he eventually
hired another cashier who was hired with the un-
derstanding that she would get a day off whenever
feasible , in other words no set day. Hammerl
testified that Angie Spraglin, who replaced Mrs.
Bottieri , was given every Friday night off for a
while ; " For a while she had every Friday night off,
the cashier who was there when Mrs. Bottieri was
there had more experience than Mrs. Spraglin
therefore we left her on for Fridays but she was not
every Friday off now, never did have."
Hammerl testified with respect to timecards
required to show Mrs. Bottieri's regular day off that
the timecards were destroyed sometime back with
the flooding of the basement, and that the Respond-
ent had no timecards which would reflect the days
Mrs. Bottieri worked. He testified that the
schedules which he made up for Mrs. Bottieri were
also destroyed inasmuch as they were kept a week
or two and then torn up.
Lucy Smith testified further that Angie Spraglin,
the current cashier , replaced Mrs. Bottieri; there
was also a part-time cashier named Mary ; and after
replacing Mrs. Bottieri Angie Spraglin had Friday
nights off regularly except on infrequent occasions
when there was a big banquet.
Based on my observation of the demeanor of the
witnesses as they testified, I credit Mrs. Bottieri's
account of the length of time over which she had
enjoyed Friday nights off . I do not credit the ver-
sion of Hammerl , whom I found to be somewhat
evasive and unconvincing in his testimony and
responses . Accordingly , I am persuaded and I find
from ample credible testimony of record that Mrs.
Bottieri had enjoyed Friday night as her regular
night off for a considerable length of time , at least
through 1966 and up until the time the Respondent
unilaterally changed it on May 28 , 1967. I am also
convinced , and I find , from ample testimony of
record that the change in Mrs. Bottieri 's night off
from Friday to Monday was motivated by the
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's displeasure with Mrs . Bottieri 's union
activity, her attempts to influence others to bring in
a union and to sign cards for the Union, and her
outspoken support for unionization , all of which
were clearly a matter of knowledge to the Respond-
ent through Hammerl and Carr and to the other
employees of the Respondent. I do not credit Ham-
merl's statement that Bottieri 's regular day off was
changed because of business reasons.
I found the Respondent 's rationale for Carr's ac-
tion in ordering Bottieri 's regular day off changed
to be most unconvincing in view of the fact that on
the very next Friday night both Hammerl and the
girl hired to take Bottieri 's place took Friday night
off. I have also taken into account the timing of the
action , coming hard on the heels of the opening of
the union campaign , the meeting at which Hammerl
participated , the surveillance by Carr of the em-
ployees as they entered the union meeting and,
finally, just prior to the action of the Respondent,
the incident in which Bottieri was believed to have
held a discussion concerning the Union with other
employees in the kitchen , on her time off and
which exasperated Hammerl . Accordingly, I find
that on May 28 , 1967, by changing Bottieri 's regu-
lar day off from Friday to Monday under circum-
stances making it difficult and onerous for Bottieri
to continue her employment , the Respondent con-
structively discharged Bottieri not for the reason
advanced but because of her union activity and that
the Respondent thereby discriminatorily discharged
Bottieri to discourage union activity in violation of
Section 8 ( a)(3) and ( I ) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III , above, occurring in connection with the
operations described in section 1, above, have a
close , intimate , and substantial relationship to
trade , traffic , and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. William P. Carr Associates , Inc. d/b/a Holiday
Inn Restaurant and Country Squire Restaurant is,
and has been at all times material to this proceed-
ing, an employer within the meaning of Section
2(2) of the Act.
2. Local 343, Hotel and Restaurant Employees
and Bartenders International Union , AFL-CIO, is,
and has been at all times material to this proceed-
ing, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By discriminatorily constructively discharging
Rose Bottieri the Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act.
4. By threatening employees with the loss and
discontinuance of benefits and privileges if they
became or remained members of the Union or gave
assistance or support to it and by surveillance of the
union activities of its employees , the Respondent
interfered with , restrained, and coerced its em-
ployees in their exercise of rights guaranteed by
Section 7 of the Act and thereby engaged in unfair,
labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and ( 7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in various unfair labor practices affecting com-
merce , I shall recommend that it be ordered to
cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act.
Having found that Respondent unlawfully
discharged Rose Bottieri on May 28, 1967, I shall
recommend that it be ordered to offer her im-
mediate and full reinstatement to her former or to a
substantially equivalent position, without prejudice
to her seniority or other rights and privileges, and
make her whole for any loss of earnings she may
have suffered by reason of the discrimination
against her, by payment to her of a sum of money
equal to that which she normally would have
earned from the aforesaid date of discharge to the
date of Respondent 's offer of reinstatement, less
her net earnings during such period . The backpay
provided herein shall be computed on the basis of
calendar quarters, in accordance with the method
prescribed in F. W. Woolworth Company, 90 NLRB
289. Interest at the rate of 6 percent per annum
shall be added to such net backpay and shall be
computed in the manner set forth in Isis Plumbing
& Heating Co ., 138 NLRB 716.
Because of the Respondent 's coercive threats and
surveillance , and its discriminatory discharge of
employee Bottieri , it is reasonable to conclude that
the Respondent in the future , unless specifically en-
joined , may deny its employees their statutory
rights not only in these , but in other ways as well.
Therefore, I shall also recommend that the Re-
spondent be ordered to cease and desist from in any
other manner interfering with, restraining , or coerc-
ing its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, William P. Carr Associates, Inc. d/b/a Holiday
Inn Restaurant and Country Squire Restaurant, its
officers, agents, successors , and assigns , shall:
HOLIDAY INN RESTAURANT
1. Cease and desist from:
(a) Discouraging membership of any of their
employees in Local 343, Hotel and Restaurant Em-
ployees and Bartenders International Union,
AFL-CIO, or any other labor organization, by
discharging or in any other manner discriminating
against any employee in regard to hire, tenure of
employment, or any other term or condition of em-
ployment because of union or other protected con-
certed activity.
(b) Coercively threatening employees and keep-
ing their union activity under surveillance, thereby
interfering with, restraining , and coercing its em-
ployees in the conduct of activities protected by the
Act.
(c) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their right to self-organization, to form, join, or
assist any labor organization, to bargain collectively
with representatives of their own choosing, to en-
gage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Offer to Rose Bottieri immediate and full
reinstatement to her former or substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and make
her whole in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Notify the above-named employee if
presently serving in the Armed Forces of the
United States of her right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts of backpay due to Rose Bottieri.
(d) Post at its restaurant in Newburgh, New
York, copies of the attached notice marked "Ap-
pendix."' Copies of said notice, on forms provided
by the Regional Director for Region 2, after being
duly signed by the Company's representative, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in
writing, within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.'
' In the event that this Recommended Order is adopted by the Board, the
1391
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 2, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that:
WE WILL NOT try to discourage you from
becoming or being a member of Local 343,
Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO, - by
discharging any employee or in any other
manner discriminating against our employees
as regard to hire or tenure of employment or
any other term or condition of employment
because of their union membership or activi-
ties.
WE WILL NOT threaten any of our employees
with the loss or discontinuance of benefits and
privileges because of their union membership
or activity.
WE WILL NOT try to discourage you from
union activities or membership by surveillance
of your union or other concerted activities.
WE WILL offer Rose Bottieri her former job
with all of her rights , without prejudice to her
seniority , and make her whole for any loss of
pay she may have suffered as a result of our
discrimination against her.
All our employees are free to become or remain,
or refrain from becoming or remaining , members of
any labor organization.
WILLIAM P. CARR
ASSOCIATES, INC. D/B/A
HOLIDAY INN
RESTAURANT AND
COUNTRY SQUIRE
RESTAURANT
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Rose Bottieri if presently
serving in the Armed Forces of the United States of
her right to full reinstatement upon application in
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth
Avenue, New York, New York 10022, Telephone
751-5500.