Host Services, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1982

263 N.L.R.B. 672 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Host Services, Inc. and Dorothy Perdon and Local
109, Waiters, Waitresses, Hotel, Motel, Service
Employees, Cooks and Bartenders Union, Hotel
and Restaurant Employees and Bartenders In-
ternational Union AFL-CIO, Party to the Con-
tract
Host Services, Inc. and Marlene Valihard and Local
20408, United Warehouse, Industrial and Affili-
ate Trades Employees Union. Cases 22-CA-
9723, 22-CA-9898, 22-CA-10247, and 22-
CA- 10694
August 24, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On January 22, 1982, Administrative Law Judge
Raymond P. Green issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief and counsel for
Charging Party Union filed a brief in opposition to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as also modified herein.
The Administrative Law Judge determined that
Respondent, on July 11, 1980, terminated employee
Joseph Colwell in violation of Section 8(a)(3) of
the Act. We do not agree. The record evidence re-
veals that Colwell participated in the 1980 union
campaign by distributing leaflets and soliciting sig-
natures for authorization cards from fellow em-
ployees. The existence of such activity by Colwell,
along with the statement made by Supervisor Wal-
lace cautioning him to "watch his step," leads us to
agree with the Administrative Law Judge that
counsel for the General Counsel has presented a
prima facie case that Colwell's activity, which is
protected under the Act, was a motivating factor
in Respondent's decision to discharge him. 2 Al-
though we find that the General Counsel has pre-
' In the absence of exceptions thereto, Chairman Van de Water adopts
the Administrative Law Judge's findings that Respondent violated Sec.
8(aXI) of the Act by interrogating employees. He does not, however,
rely on PPG Industries, Inc., Lexington Plant, Fiber Glass Division, 251
NLRB 1146 (1980).
Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1089
(1980).
263 NLRB No. 86
sented a prima facie case of unlawful motive, we
note that it is a weak one. 3
On the other hand, we are convinced that Re-
spondent has met its burden of persuasion, i.e., that
it has demonstrated that it would have discharged
Colwell in the absence of the protected conduct. 4
Colwell's intemperate actions-cursing a supervisor
on July 10, 1980, in the face of little or no discern-
ible provocation-were, in our judgment, legiti-
mate grounds-not a pretext-for the action taken
by Respondent. The Administrative Law Judge at-
tempted to pigeonhole the Colwell incident into
past allegedly similar disciplinary occurrences. He
concluded that employees who had engaged in mis-
conduct similar to Colwell's, and were discharged,
either had extensive disciplinary records, were em-
ployed for only a short period of time prior to
their discharge, or were involved in misconduct of
a more serious nature than Colwell's. The Adminis-
trative Law Judge found that those employees that
did not fit into one of those three categories, in-
cluding the Colwell incident, were either issued a
warning or, at most, suspended. He thus reasoned
that discharging rather than suspending Colwell
constituted disparate treatment.
The categorizing of Respondent's past practices
by the Administrative Law Judge is, we believe,
overly simplistic. Generally, it appears that situa-
tions where employees engaged in conduct facially
similar to Colwell's and were not discharged in-
volved less serious, spontaneous exchanges. In con-
trast, Colwell's behavior was gradual in nature
with ample time for a cooling-off period.
On July 10, Colwell had gone to check the flight
boards in the corridor of the airport and had been
followed by Supervisor Stewart. Colwell noticed
this and, upon returning to his work area, he told
another supervisor, Lewis, that if Supervisor Rossi
or anyone else did not like his work he could kiss a
portion of Colwell's anatomy. Supervisor Monte-
sano then informed Colwell that Rossi did not
want him to check the flight boards anymore.5
3 We note that, although Colwell supported the Union, he was not a
particularly prominent supporter. Other more prominent supporters, of
whom Respondent was well aware, were not discriminated against for
their support. We also note that the Administrative Law Judge's findings
concerning Respondent's knowledge of Colwell's activities and Respond-
ent's animus toward the Union were somewhat tenuous. Finally, in as-
sessing whether the General Counsel has demonstrated a prima facie case,
and the degree proven, we are unable to rely on the alleged July 8, 1980,
exchange between Colwell and Supervisor O'Hare. Colwell alleged that
O'Hare inquired of him whether he had called the union attorney subse-
quent to an employee's asthmatic attack. O'Hare denied making the state-
ment attributed to him. The Administrative Law Judge failed to resolve
the credibility dispute.
However, even assuming the Administrative Law Judge had credited
Colwell, we would find, for the reasons set forth below, that Respondent
rebutted the General Counsel's case
4Id.
a Colwell, a cook, checked the flight boards for delays so as to ascer-
tain how much food to prepare.
672
HOST SERVICES, INC.
Colwell then approached Supervisor Rossi about
this admonition. When the meeting between the
two was drawing to a mutually satisfactory conclu-
sion, Colwell was asked by Supervisor Costanza
about his earlier remark to Lewis. Thereafter, Col-
well confronted Lewis, in the presence of Costanza
and Rossi, and asked her if she had told Costanza
about his (Colwell's) remark. When Lewis denied
that she had done so, 6 Colwell became extremely
enraged and verbally attacked Lewis with a ven-
geance. He was immediately instructed by Cos-
tanza to punch his timecard and, later that day, sus-
pended indefintely. On July 11 he was discharged.
On the basis of the above facts and a review of
Respondent's past practices, we are not persuaded
that Colwell's behavior fits neatly into a category
of misconduct that would normally have resulted
in discipline less than discharge. The distinctions
drawn by the Administrative Law Judge-in find-
ing Colwell's misconduct would warrant, under
Respondent's policy, no more than a suspension-
are too narrow to be meaningful. Accordingly, Re-
spondent's decision to discharge-rather than sus-
pend-Colwell cannot be characterized as disparate
treatment. Therefore, we will order dismissal of
that portion of the complaint alleging that Re-
spondent terminated Colwell in violation of Section
8(a)(3) of the Act.
AMENDED CONCLUSIONS OF LAW
The Administrative Law Judge's Conclusions of
Law are modified by deleting paragraph 3.
AMENDED REMEDY
Having found that Respondent engaged in ac-
tions found to be in violation of the Act, we shall
order that Respondent cease and desist therefrom
and take certain affirmative action to effectuate the
purposes of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Host Services, Inc., Newark, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Delete paragraphs l(a) and 2(a) and (b), relet-
tering the succeeding paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
a Essentially the truth, as it was Stewart who had related the remark
to Costanza.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through
sentatives of their own choice
repre-
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT threaten employees with dis-
charge if they participate in a lawful economic
strike, or because of their membership or sup-
port for Local 20408 or any other labor orga-
nization.
WE WILL NOT interrogate employees about
their membership or sympathies for Local
20408 or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
HOST SERVICES, INC.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge:
These cases were heard before me in Newark, New
Jersey, on July 20 through 23 and September 15 through
17, 1981.' During the hearing, certain of the allegations
were settled by the parties by means of a partial informal
I The charge in Case 22-CA-9723 was filed by Dorothy Perdon on
January 25, 1980. The charge'in Case 22-CA-9898 was filed by Marlene
Valihard on April 10, 1980. The charges in Cases 22-CA-10247 and 22-
CA-10694 were filed by Local 20408, United Warehouse, Industrial and
Affiliate Trade Employees Union on September 4, 1980, and March II1,
1981. The initial complaint in Cases 22-CA-9723 and 22-CA-9898 was
issued by the Regional Director Region 22 on May 30, 1980. The first
amended complaint in Cases 22-CA-9723. 22-CA-9898, and 22-CA-
10247 was issued by the Regional Director on October 2, 1980. The
second amended consolidated complaint in Cases 22-CA-9723. 22-CA-
9898, 22-CA-10247, and 22-CA-10694 was issued by the Regional Di-
rector on April 29, 1981.
673
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settlement agreement.2 Accordingly, the remaining issues
for resolution are the following:
(1) Whether on July 11, 1980, the Respondent dis-
charged Joseph Colwell because of his membership and
support of Local 20408, United Warehouse, Industrial
and Affiliate Trade Employees Union (herein called
Local 20408).
(2) Whether in October 1980 the Respondent by
Thomas O'Hare and Michelle Hartsfield, respectively, in-
terrogated its employees concerning their sympathies for
Local 20408.
(3) Whether in October 1980 the Respondent by
Thomas O'Hare threatened to discharge employees if
they engaged in a lawful strike or a concerted refusal to
work.
Based on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses,
and after considerations of the briefs, I make the follow-
ing:
FINDINGS OF FACT
1. JURISDICTION
The parties agree that Host Services, Inc., is a Dela-
ware corporation which operates restaurants and related
facilities throughout the United States, including restau-
rants, and coffeeshops at Newark International Airport.
It further is agreed that, annually, the Respondent de-
rives gross revenues in excess of $500,000 and that it an-
nually purchases products valued in excess of $50,000
which are delivered to its New Jersey facilities from
States other than the State of New Jersey. Accordingly,
it is concluded that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties agree and I find that both Unions involved
herein are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Initially, in 1973, the Respondent recognized Locals
109 and 131 of the Hotel, Restaurant and Bartenders In-
ternational Union, AFL-CIO, as the collective-bargain-
ing representatives of its employees situated at Newark
International Airport. In 1974 the International Union
transferred jurisdiction from Locals 109 and 131 to Local
45 which was then recognized as the collective-bargain-
ing representative notwithstanding the fact that the em-
ployees affected did not vote on the transfer.
s As a result of the settlement agreement which was approved by me,
pars. 9-15 and 22-25 of the second amended complaint were withdrawn.
The settlement agreement contains a nonadmisions clause and also a
clause whereby the General Counsel reserved the right to present evi-
dence on the settled allegations to the extent such evidence would be rel-
evant to the remaining allegations of the consolidated complaint.
By letter dated December 4, 1981, 1 was informed by the General
Counsel that Respondent has fully complied with the terms of the partial
settlement.
In September 1975, the International merged Local 45
with two other locals to form a Local 69. The new
Local 69 was thereupon recognized by the Company as
the bargaining representative and, in that case too, the
employees did not vote on the change. In December
1976, Host negotiated a collective-bargaining agreement
with Local 69 covering the employees at Newark air-
port.
On September 30, 1979, Local 69 was merged into
Local 6 of the same International Union and Local 6 was
then recognized by the Respondent as the representative
of its Newark airport employees. Here again, the affected
employees did not vote on the merger. Notwithstanding
this new merger, the collective-bargaining agreement
with Local 69 was maintained in force and effect and
Local 6 undertook to administer the terms of that con-
tract.
In December 1979, the Company and Local 6 began to
arrange for meetings to negotiate for a new contract to
replace the one which was expiring on January 15, 1980.
However, on December 31, 1979, the International
Union directed that jurisdiction over Host's Newark em-
ployees be transferred back to Local 109 from Local 6.
The Respondent then recognized Local 109 as the bar-
gaining representative at Newark airport and negotiated
a collective-bargaining agreement with that Local effec-
tive from January 15, 1980, to January 15, 1983. Need-
less to say, the employees of Host were not afforded ad-
vance notice of this last transfer of jurisdiction from
Local 6 to Local 109 and they were not given an oppor-
tunity to discuss or vote on the transfer.
From January 1, 1980, until May 1980 the collective-
bargaining agreement between Host and Local 109 was
enforced, including the union-security and dues-checkoff
provisions. However, in light of the unfair labor practice
charge filed by Dorothy Perdon in Case 22-CA-9723 on
January 25, 1980, the Company did not remit dues to the
Union, but rather held them in escrow., Thereafter, on
October 17, 1980, these moneys were refunded to the
employees.
In the meantime, on April 24, 1980, Local 20408 filed
with Region 22 a petition for an election wherein it
sought to gain representation on behalf of the Respond-
ent's employees at Newark airport. On September 12,
1980, the Employer, Local 20408, and a recharted Local
69 executed a Stipulation for Certification Upon Consent
Election pursuant to which a secret-ballot election was
held on October 22, 1980. In that election, 84 votes were
cast for Local 20408, 12 votes were cast for Local 69,
and 61 votes were cast against both labor organizations.
There were, in addition, three challenged ballots which
did not affect the outcome of the election.
s At the same time Perdon filed the charge in Case 22-CA-9723, she
also filed a charge against Local 109 in Case 22-CB-4269. This latter
charge alleged that Local 109 attempted to cause the employer to dis-
charge certain employees of Host because of their failure to authorize
membership or dues deduction cards for that Union. It also was alleged
that Local 109 violated the Act by accepting recognition as the bargain-
ing representative of the Respondent's employees at Newark airport at a
time when that labor organization did not represent a majority of such
employees. The allegations of the CB charge were thereafter settled by
Local 109 on May 30, 1980.
674
HOST SERVICES, INC.
B. The Discharge of Joseph Colwell
The General Counsel contends that Colwell was dis-
charged on July 11, 1980, because of his membership in
and support for Local 20408. The Respondent denies this
allegation and argues that Colwell's discharge was for
just cause resulting from an incident which occurred on
July 10. The Respondent further asserts that its managers
and supervisors were not even aware, prior to July 10,
that Colwell was a supporter of Local 20408.
Colwell was first hired on March 12, 1978, and was
employed as a cook in Respondent's buffeteria located in
Terminal B of Newark airport.4 By all accounts Joseph
Colwell was a good cook who did his job well and
showed initiative in relation to his work. According to
Thomas O'Hare, the Respondent's general manager, Col-
well had done a lot of work to develop menus and to
upgrade the quality of the food. O'Hare testified that he
considered sending Colwell to a college or an appren-
ticeship program at the Company's expense in order to
develop Colwell into a chef so as to be able to provide
first rate dining facilities at the airport. In the same vein,
Arkia Wallace, the Terminal B food and beverage super-
visor, testified that Colwell was an excellent cook and a
good employee. One of the things she cited in his favor
was the fact that he checked the flight boards so that he
could determine the amount of food he needed to cook
and therefore he was responsible for reducing wastage. 5
As will be seen hereinafter, Colwell's practice of check-
ing the flight boards, a practice which was praised by
Wallace, takes on some significance as it became a local
point around which many of the subsequent events
turned. It is also noted that, during the period of Col-
well's employment, he had received only one warning
which was not, in any way, relied on by the Respondent
in its decision to discharge him.
It appears from this record that the employee who
first contacted Local 20408 and who was most active in
its support was Dorothy Perdon who worked at Termi-
nal A. Colwell first became involved with Local 20408
and the effort to oust the incumbent union in early May
1980 when he attended a meeting of Local 20408 after it
had filed its representation petition on April 24, 1980. It
was established that during May, June, and July Colwell
actively supported Local 20408. Thus, the evidence dis-
closes that Colwell along with Catherine Lattimore, and
to a lesser extent, Leon Howard, engaged in a variety of
activities at Terminal B including solicitation of member-
ship and the distribution of leaflets and pamphlets at or
about the facility. 6 At Terminal A, the employees who
4 The airport has three terminals, and the Respondent has restaurant
and/or coffeeshop facilities at each. The terminals are designated as Ter-
minal A, Terminal B, and the North Terminal.
s By checking the flight boards one can determine the number of de-
layed flights. When flights are delayed it is possible to anticipate more
restaurant business because delayed passengers can reasonably be expect-
ed to spend their time in one of the Respondent's facilities.
6 Catherine Lattimore and Leon Howard were both employed at Ter-
minal B. Prior to Colwell's discharge three leaflets were distributed. One
of these was an announcement of a Local 20408 meeting to be held on
July 16, 1980. One was a pamphlet put out by the NLRB entitled "Your
Government Conducts an Election." The third was a flyer entitled "Em-
ployees' Rights Under Federal Law." The latter two documents did not,
on their face, indicate that they were sponsored by Local 20408.
distributed literature were Dorothy Perdon, Marlene Va-
lihard and Annette Jaworsky.
According to Colwell, various supervisors saw him
distributing literature at Terminal B, including Arkia
Wallace, Tyrone Anderson, Neil Rossi, and Paul Monte-
sano, the latter being Colwell's immediate supervisor.
Colwell states that, on one occasion in early May, Wal-
lace saw him passing out literature and told the recipient
not to read it. However, all of the above named people
(except for Rossi who did not testify)7 denied that they
either saw Colwell distribute literature or solicit union
membership. They denied categorically that they were
aware of Colwell's union activities. Indeed, they went so
far as to deny even being aware of Local 20408 until
after Colwell's discharge. This latter assertion is, howev-
er, rather odd inasmuch as Local 20408's representation
petition was served on the Respondent on or about April
25, 1980, and Darryl Costanza, Respondent's assistant
general manager, concedes that he had instructed the su-
pervisors, soon after the petition was filed, to look out
for any unusual activity at the premises including union
activity.
Sometime in May or June 1980, Colwell was involved
in a conversation with Arkia Wallace. 8 In this regard,
Colwell testified that Wallace approached him and Leon
Howard and said that "they were trying to get rid of
you, Leon and Cathy Lattimore." He states that, when
he asked why, Wallace said that she did not know, but
that he better watch his step. Catherine Lattimore testi-
fied that she was present during a portion of this conver-
sation and recalls Wallace saying that "they were trying
to get rid of you," and that "you better watch your
step." Leon Howard, who worked directly with Colwell,
did not testify.
Arkia Wallace acknowledges a conversation with Col-
well and Howard in which she told Colwell that if he
wanted to retain his job he should "straighten out" and
"get his act together." She also testified that she told
Colwell that she had heard that he was leaving his work
station, whereupon Colwell responded that she knew he
checked the flight boards. Wallace states that she told
Colwell that she was aware of this but that she was not
"there anymore," and that he should let them know
when he was going. As to her intent during this conver-
sation, Wallace asserted that she was not giving Colwell
an official warning but was merely imparting some
friendly advice. She also testified that she became aware
of management's concern about Colwell and Howard
7 At the time of the hearing, Rossi, who was the manager of Terminal
B, was no longer employed by the Respondent. The Respondent asserted
that it made several unsuccessful attempts to contact Rossi by phone and
telegram. However, it is conceded that the Respondent did not attempt
to serve a subpoena, either by mail or in person, on Rossi at his last
known address. Also, the Respondent did not offer into evidence a cop)
of the telegram it purportedly sent to Rossi and it offered no evidence to
show that the telegram was delivered.
8 It is not entirely clear as to when this conversation took place. Col-
well's recollection was very confused and he could not be sure if it took
place before or after he became involved with Local 20408. However.
Catherine Lattimore, who testified that she was present during part of
the conversation, placed it in late or early June. Arkia Wallace also
placed the conversation as occurring in May or June.
675
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaving their work stations at a previous Wednesday
management meetings
In relation to the above, I shall credit the testimony of
Colwell and Lattimore to the effect that Arkia Wallace
conveyed a warning to Colwell, Lattimore, and Howard
sometime in late May or early June 1980. Indeed, based
on Wallace's testimony this was not simply a warning,
but constituted a threat of discharge. The real question,
therefore, is whether the threat was motivated by a
genuine concern regarding the employees leaving their
work stations or whether it was related to their union ac-
tivities. Based on all the circumstances including Wal-
lace's own account of the transactions, it is my opinion
that the threat was related to union activities.
Wallace testified that, a few days before her conversa-
tion with Colwell and Howard, their names were
brought up at a Wednesday managers' meeting. She as-
serts that their names were mentioned in connection with
an expressed concern by someone that they were leaving
their work stations. There are, however, a number of
points in her testimony which are intriguing. Firstly, in
view of her admitted threat to Colwell, et al., it may be
inferred that at the Wednesday managers' meeting there
was some discussion about discharging these employees,
including Colwell who admittedly was highly regarded
by management. Secondly, since Wallace, and no doubt
the other managers, was aware that Colwell made a
practice of checking the flight boards each day; as nei-
ther Colwell nor the others had received any prior warn-
ings for leaving their stations; and as Wallace specifically
approved of Colwell's practice, any suggestion that Col-
well should or could be discharged on this account
would make no sense. Indeed, as this entire transaction
took place at a time when Colwell, Lattimore, and
Howard were the employees primarily engaged in union
activity at Terminal B, and as Wallace's explanation of
the events leading up to the threat is implausible, it
seems to me that what did take place at the managers'
meeting was a discussion about the possibility of dis-
charging these employees because of their union activi-
ties and their distribution of literature at the facility.
Such distributions were considered by the Respondent as
being contrary to its rules.10
Catherine Lattimore testified that on or about June 21,
1980, Costanza came over to where she worked, picked
up and looked through a folder containing literature, and
told her that she could not distribute such on the prem-
ises." She states that Costanza told her to put the folder
away and that she should get and put away the papers
which Colwell also possessed. Costanza basically admits
this conversation, although he was not asked and there-
9 According to Thomas O'Hare, weekly management meetings were
attended by himself, Darryl Costanza, Neil Rossi, Joyce Trachler, Dan
D'Arcy, Joe Pontana, and Arkia Wallace.
'0 According to Darryl Costanza, his understanding of the Company's
rules and the way he enforced them was that there could be no distribu-
tions and no solicitations anywhere on the Respondent's premises on
company time.
It is noted that, subsequent to the testimony of Costanza, the Respond-
ent agreed to settle that portion of the complaint wherein it was alleged
that the Company unlawfully promulgated and enforced no-distribution
and no-solicitation rules.
I The literature apparently was the NLRB booklet and the flyer enti-
tled "Employees' Rights under Federal Law," described above at fn. 6.
fore did not testify about telling Lattimore to get Col-
well's papers.
Colwell testified that in June 1980 he had another con-
versation with Wallace wherein she asked him what he
had in common with Local 20408, and where she said
that he had better watch himself. Wallace denied this
conversation. In addition, Colwell testified that in June
1980, when he was distributing housewarming invitations
to other employees, his supervisor, Paul Montesano, told
him that Neil Rossi had expressed concern about Colwell
passing out union literature, but that he (Montesano) had
told Rossi they were only invitations to Colwell's
housewarming party. Montesano denied this assertion, al-
though conceding that he did tell Colwell that it was
against company policy to pass out the invitations on
company property.
On July 8, 1980, the ventilation fan in the area where
Lattimore worked, broke down. It appears that, when
Lattimore arrived at work and saw the condition at her
work station (the grill), she asked O'Hare if she had to
work there. When she and O'Hare went upstairs to
check the condition, she had an asthma attack and was
taken to a hospital. However, before she left, Colwell
called her husband and also called Craig Livingston, the
attorney for Local 20408. Livingston described Colwell's
call as being excited and confused, whereupon after un-
successfully trying to call the attorney for Host in Cali-
fornia, he then called O'Hare, telling the latter that he
had received a call from Colwell. According to Living-
ston, O'Hare explained that the problem had been taken
care of and the matter was dropped. On July 9, 1980, ac-
cording to Colwell, he and Leon Howard were asked by
O'Hare and Shirley Lewis (another supervisor) which
one of them had called the lawyer. Also Lattimore states
that, on July 9, she was asked by Rossi who had called
the lawyer and told him that it was Colwell. O'Hare
denied having a phone conversation with Livingston on
July 8, although he does assert that he did speak with
him on July 9 about a doctor's release required from
Lattimore. He specifically denies that Colwell's name
was mentioned during his conversation with Livingston.
On the afternoon of July 10, a series of incidents oc-
curred involving Joseph Colwell. It was this series of
somewhat bizarre events which led to his discharge.
Colwell reported to work on July 10 at or about 2
p.m. and at or about 3 p.m., in accordance with his habit,
he went out to check the flight boards. Costanza, seeing
Colwell in the corridor, related this information to Neil
Rossi and Donald Stewart, and asked if they were aware
that Colwell was in the corridor. According to Costanza,
they said no and Stewart was dispatched to look for Col-
well. In this respect, Costanza testified that he was not
concerned with Colwell being in the corridor but was
only concerned about his supervisors knowing where
their people were. Curiously, Stewart was not Colwell's
immediate supervisor.
In any event, Colwell noticed that Stewart was fol-
lowing him and he became suspicious, a reaction which
was understandable in view of the earlier warning by
Wallace that he had better "watch his step." When Col-
well returned to the buffeteria, he went over to where
676
HOST SERVICES, INC.
Shirley Lewis and Don Stewart were sitting. Colwell
told Lewis that he did not know what Rossi had against
him and to tell Rossi that, if he (Rossi) or anyone else
did not like his work, Rossi could "kiss my ass." Colwell
then left that area and proceeded to see Rossi because
Montesano told him that Rossi no longer wanted him to
check the flight boards. At or about the same time,
Stewart told Costanza what Colwell had said to Lewis
and, when Costanza asked Lewis to confirm it, she did.
Colwell then had a conversation with Rossi in the
office and was told that due to insurance considerations
he should no longer check the flight boards. Colwell
agreed. As the meeting between Rossi and Colwell was
coming to a close, Costanza entered the office and asked
Colwell if he told Shirley Lewis to tell him to kiss his
ass. Colwell's immediate response was to ask, "Did you
hear me say that?" When Costanza pressed the question,
Colwell told him that he had directed the remark toward
Rossi. In the meantime, Rossi left the office to look for
Shirley Lewis and the interaction between Costanza and
Colwell became hotter. It should be noted here that Cos-
tanza testified that he did not actually think that Col-
well's original remark to Lewis was a big deal, but that
he decided to tell Colwell to keep his opinions to him-
self.
When Costanza and Colwell left the office (near the
bar area), Shirley Lewis and Neil Rossi approached. Col-
well asked Lewis if she had told Costanza that he should
kiss his ass and, when Lewis denied it, Colwell called
her a damned liar. Soon thereafter, Costanza told Col-
well to get his timecard and to punch out, which Col-
well refused to do.12 At this point it appears that the
parties involved were in the noncustomer area of the fa-
cility called the back of the house. According to Colwell
it was at this juncture that Costanza either said, "I know
what a troublemaker or I know a union organizer when
I see one."' 3 This was denied by Costanza who for his
part asserts that at this point Colwell "grabbed" Shirley
Lewis, pulling her toward him, while yelling that she
was a "damned liar" and a "mother fucking liar." Miss
Lewis states that at this stage it was her opinion that
Colwell was becoming irrational and that she pushed a
knife that was lying on a table out of sight because she
was frightened.'4 Costanza concedes that he too was be-
coming emotional.
According to Costanza, he then told Colwell that as
far as he was concerned Colwell was indefinitely sus-
pended. He further states that, after Colwell again called
Lewis a "mother fucking liar," he told Colwell to leave
or the port authority police would be called. According
to Costanza he and Lewis went down the elevator
toward O'Hare's office with Colwell yelling after them.
"t According to Costanza. when he told Colwell to punch out, Col-
well said, "You punch my mother fucking card."
"a When asked about these alleged statements, Colwell at first testified
that he was not sure if Coltanza said troublemaker or union organizer.
Later, he testified that Costanza used both terms. In his testimony at an
unemployment hearing, Colwell., although relating the incidents on July
10, did not mention either remark allegedly made by Costanza, despite
his assertion that his discharge was motivated by antiunion consider-
ations.
"· Miss Lewis testified that prior to this incident she had a good rein-
tionship with Colwell who always was polite in her presence.
Shirley Lewis states that, as she and Costanza got on the
elevator, Colwell's final words were "if anything goes
down, you're going down with it."'5
The Respondent's witnesses assert that, soon after
Shirley Lewis and Darryl Costanza went into O'Hare's
office, Rossi entered and said that Colwell had just told
him that he, Costanza, and Lewis were going to "burn."
Colwell denies making such a statement and, as noted
above, Rossi did not testify in this proceeding.'5 Ac-
cording to O'Hare, he, Costanza, and Rossi went beck
upstairs where he saw Colwell making a telephone call.
O'Hare states that Colwell asked to speak with him,
whereupon the entire group went back down to
O'Hare's office. In the office, each person gave their re-
spective versions of what had just happened. According
to O'Hare, but denied by Colwell, the latter admitted to
the "burn" statements. O'Hare also states that Colwell
asserted that he felt he was being unfairly harassed and
that, after the meeting ended, Colwell apologized for
what had happened. After the various versions were pre-
sented to O'Hare, he told Colwell that he was suspended
and to call him the following day for a final decision.
Soon after the meeting, Costanza wrote up a "Notice
of Disciplinary Action" indicating that Colwell was in-
definitely suspended because of insubordination and per-
sonal conduct. In describing the events upon which the
suspension was based, Costanza wrote:
Mr. Joe Caldwell [sic] on July 10, 1980 exhibited
extremely gross insubordination toward supervisor
Shirley Lewis. Mr. Caldwell in the presence of sev-
eral management and non-management employees,
in a very loud tone of voice which could be heard
in the customer area called Ms. Lewis a "Damned
Liar" and a "Mother Fuckin Liar." This is gross in-
subordination. Mr. Caldwell's actions are inexcus-
able and will not be tolerated. Mr. Caldwell is
therefore indefinitely suspended.
According to O'Hare, he did not make a decision to
discharge Colwell on July 10, but rather gave it careful
consideration overnight. In his words, "it was one of the
most difficult decisions I had to make regarding the ter-
mination of an employee." Nevertheless, O'Hare did
decide to discharge Colwell and notified him of that de-
cision on July 11.17 According to O'Hare, whereas he
I"This last statement attested to by Shirley Lewis was not corroborat-
ed by Costanza who was in the elevator at the time. I assume that the
Respondent would argue that this alleged statement by Colwell should be
construed as a threat rather than a reference to the elevator.
"6 With respect to the alleged statement by Colwell to Rosi that he
and the others would burn, the Respondent contends that I should rely
on Rosi's testimony at the unemployment hearing. Fed. R. of Evid.
804(b) does permit, as an exception to the rule prohibiting hearsay evi-
dence, the receipt of a person's former testimony when the declarant i
unavailable. However, as noted above at fn. 7, I do not believe that the
Respondent has made a sufficient showing that Rossi was not available to
testify in this proceeding. Accordingly, I reject the Respondent's argu-
ment in this respect.
17 On July II, there was a short work stoppage by some of the Re-
spondent's employees protesting the discharge of Colwell. This stoppage
lasted only a few hours and all the employees involved returned to work
on the same day.
677
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered Colwell to be a valued employee, he also tes-
tified that "what made me decide to terminate Colwell
was essentially the question as to whether or not I would
set a precedent to future actions and therefore I would
not have control of our operations."
Colwell testified that, after his discharge, he had occa-
sion to speak with Paul Montesano on the phone. Ac-
cording to Colwell, and denied by Montesano, the latter
volunteered the opinion in September 1980 that Colwell
was discharged because of his union activities. He states
that, during this conversation, Montesano said that he
knew that Colwell was an excellent worker and that "as
far as he could see it, the only reason I was fired was
because of my union activities." However, in a pretrial
affidavit given by Colwell on July 23, 1980, he stated
that on that date he spoke with Montesano about going
to an unemployment hearing and that during that con-
versation he told Montesano that "the only reason they
fired me was because of my union activities." Colwell, in
the affidavit, stated that Montesano simply responded by
saying that "I was right." At the unemployment hearing
Colwell did not, however, bring up his alleged conversa-
tion with Montesano despite contending that he was dis-
charged for his union activities."'
A group of documents relating to past discharges and
disciplinary actions was placed into evidence. From
these, the Respondent contends that its decision to dis-
charge Colwell was consistent with prior dismissals of
other employees for similar infractions. From the same
group of documents, the General Counsel argues that
they demonstrate that Colwell was treated in a disparate
manner.
Notwithstanding the contention by the Respondent
that 'cursing at a supervisor in the presence of others
constitutes an automatic terminable offense, the evidence
in this case does not tend to support such an absolute as-
sertion.' 9 Thus, there does appear to have been occa-
sions where employees have engaged in conduct some-
what similar to Colwell's and have not been discharged.
These may be summarized as follows:
1. Patricia Bennett received a 3-day suspension on
February 13, 1980, for "being insubordinate in front of
customers." She later was discharged on March 24, 1980,
because she repeatedly refused to perform a job as per
Ad In the briefs filed by the General Counsel and the Charging Party's
counsel, neither relies on this alleged conversation between Colwell and
Montesano. lit is noted that the decision of the New Jersey Department
of Labor's Appeals Tribunal was adverse to Colwell's claim for unem-
ployment benefits. However, it also is noted that the testimony before
that tribunal was far less extensive than was the testimony heard by me. I
therefore do not think it appropriate to consider the decision of the state
agency as binding on me or the Board. Cadillac Marine & Boat Company,
115 NLRB 1071 (1956); 11. M. Patterson 4 Son, Inc., 244 NLRB 489, 490
(1979).
19 The Respondent maintains a progressive disciplinary system as fol-
lows:
Any infraction of the company rules or regulations will be record-
ed by your supervisor on a warning notice form. The infraction will
be explained fully and you will be asked to acknowledge it with
your signature. All warning notices become part of your personnel
record.
Two such notices in your record can result in disciplinary action
including suspension or discharge. In the event of a serious infraction
of the company rules and regulations you may be discharged imme-
diately, without prior warning notices.
her supervisor's direction and used "insubordinate lan-
guage." At the time of her discharge she had been em-
ployed for 7 months and had previously received one
written warning for poor attitude toward customers, two
1-day suspensions for leaving her workplace unattended
and sending customers away, and the aforementioned 3-
day suspension.
2. Bill Conley, on October 17, 1979, was given a 1-day
suspension for being abusive to his supervisor during a
discussion and refusing to do as he was told. Previously,
Conley was given a written warning for being involved
in a "disruptive incident in the buffeteria" and exhibiting
"rowdy behavior." Thereafter, on October 19, 1979,
Conley was discharged after another incident in which
he cursed at a supervisor and engaged in fighting on the
job.
3. According to Catherine Lattimore, she witnessed an
incident wherein an employee named Willie Thomas was
asked by Supervisor Stewart to put on a hat and where
Thomas told Stewart that he was not going to put on
that "mother fucking hat." She also stated that Thomas
threatened to assault Stewart during the incident. Latti-
more testified that on that occasion Thomas received no
discipline, although she does acknowledge that he was
later discharged when a second incident of similar char-
acter occurred.
4. Lattimore testified about another incident where no
discipline was given to employee Mary Foster who told
a supervisor to keep "his damn hands off her card."
5. Dorothy Perdon testified that there was an incident
wherein employee Marlene Valihard told a supervisor
"to go to hell." She states that, at a meeting, D'Arcy
(the manager of Terminal A) said that Valihard could be
discharged for her remarks but decided to forgo any dis-
cipline as this was a first offense.
6. On one occasion, Annette Jaworski, when asked by
D'Arcy what she was complaining about, responded by
saying it was none of his "damn business." Jaworski re-
ceived a I-one day suspension for this.
7. Miren Jones received a final warning on August 4,
1978, because she called her supervisor a liar.
The records received in evidence show that a number
of employees have been discharged for conduct which
the Respondent asserts is arguably similar to Colwell's
conduct on July 10, 1980. However, as will be seen
below, most of these employees had extensive disciplin-
ary records, or were employed for only a short time
before their discharge, or were involved in conduct of a
more serious nature. A summary of these records shows
the following.
1. Steve Blevins was discharged on July 28, 1979, be-
cause he was insubordinate to a supervisor and called her
names including "bitch." Earlier that day Blevins had re-
ceived a I-day suspension for wearing an improper uni-
form after having received a warning on that account on
July 26, 1979. Previously, Mr. Blevins had received a 1-
day suspension on April 5, 1979, for another infraction.
Additionally, Blevins had been given five other written
warnings. Blevins was employed for about I year prior
to his discharge.
678
HOST SERVICES, INC.
2. Idriss Bradley was discharged on March 29, 1979,
because he was not doing his work properly; he became
irate when the supervisor refused to let him go home
early and threatened to assault supervisors. Prior to his
discharge, Bradley had been suspended for 5 days for re-
fusing to do a job. He was employed 3 months prior to
his discharge.2 0
3. Therese Falbo was discharged on July 15, 1981, be-
cause when her supervisor asked her several times to go
to her work station Falbo said, "I don't like you any-
more and you can go fuck yourself." Prior to her dis-
charge, Falbo had received a suspension for being short
in her cash register. Also, Falbo had received four writ-
ten warnings for cash register errors. Falbo had been em-
ployed for about 4 months prior to her discharge.
4. Henry Freeman was discharged on January 27,
1979, because while being given a warning, Freeman
said, "Jam this slip up your -. " Prior to his discharge
Freeman had been suspended for 4 days because of
horseplay in the kitchen where food was thrown about
and where an employee was injured. Also, Freeman had
received four written warnings for a variety of infrac-
tions including rudeness to a customer. Freeman had
been employed for about 9 months prior to his discharge.
5. William Gonzalez was discharged on January 30,
1980, because of insubordination, bad attitude, and
having a foul mouth. Gonzalez had been employed for
only 5 days and had not received any prior warnings.
6. Olivia Haynes was discharged on January 13, 1980,
because she verbally abused and used profanity to super-
visors in a public area. Previously, Haynes had received
two written warnings respectively for absenteeism and a
cash register shortage. She had been employed for about
3 months before her discharge.
7. Candice Holman was discharged on September 2,
1979, because of her use of extensive profanity in an ar-
gument with another employee in a public area. Previ-
ously, Holman had received one written warning for re-
peated lateness. She was employed for about 2 months
before her discharge.
8. Wilber Galarza was discharged on May 1, 1980, be-
cause he refused to follow orders coupled with loud
statements to his supervisor to "shut the fuck up." Ga-
larza had received no prior warnings or disciplinary
action, but was employed for only 2 months prior to his
discharge.
9. Charles Ross was discharged on August 4, 1979, be-
cause he left the floor when asked not to, and responded
with foul language toward the Company and the super-
visor. Previously, Ross had received a written warning
for poor work performance. Ross was employed for
about I month before he was discharged.
10. Gerald Simpkins was discharged on March 2, 1979,
because he refused to do work as ordered by his supervi-
sor and for "shouting out insults" to the supervisor. Pre-
viously he had received a warning for failing to give
proper notice before taking time off. Simpkins was em-
ployed for about 1-1/2 months prior to his discharge and
the Company's records state: "This employee has a very
2O The records also show a group of written warnings to one ldriss
Fuller. On the basis of this record I do not know for certain that Idriss
PFuller and Idriss Bradley are the same person.
bad language problem. He does his work only when we
go thru the third degree with him."
11. Willie Thomas was discharged on February 13,
1981, because he refused to comply with a supervisor's
orders and threatened to fight with the supervisor. Willie
Thomas had been employed for about 4 months prior to
his discharge and had not received any prior warnings.
However, as noted above, Catherine Lattimore testified
that she was present at an earlier and similar altercation
between Thomas and his supervisor, Don Stewart,
wherein no disciplinary action was taken.
12. Earl Williams was discharged on July 14, 1979, be-
cause, when he was asked to leave an area, "his attitude
was insubordinate both verbally and by his actions." Wil-
liams had previously received two written warnings for
absenteeism and tardiness. Williams had been employed
for about 3 months prior to his discharge.
13. Andrew Brown was discharged on October 15,
1979, because he "provoked a loud and boisterous discus-
sion with a fellow employee," and continued to tease and
abuse the employee in a public area despite being aware
of his personal problem. Previously Brown had received
two suspensions, one for absenteeism and one for deliber-
ately disobeying a supervisor. Additionally, Brown had
received four other warnings. Brown had been employed
for about 10 months.
14. Ronald Coleman was discharged on July 8, 1979,
because he was rude to a customer. Previously, Coleman
had been suspended for 3 days for refusing to follow
orders. Also he had received five warnings for a variety
of infractions. Coleman had been employed for about 8-
1/2 months prior to his discharge.
15. Jeff Coward was discharged on November 14,
1978, because he challenged his supervisor to a fight.
The discharge notice went on to state: "This is not the
first time that you have threatened Host Management."
Previously, Coward had received a 3-day suspension and
two written warnings for unrelated offenses. Coward
was employed for about 6 months prior to his discharge.
16. Ernest Mitchell was discharged on February 15,
1980, because he threatened to assault his supervisor.
Previously, Mitchell had received a I-day suspension for
latenesses and two other warnings for lateness.
17. William Royal was discharged on July 7, 1980, for
threatening a supervisor with bodily harm. Previously,
he had received two written warnings for absences. He
had been employed for about 4-1/2 months prior to his
discharge.
18. Eric Atkins was discharged on September 23, 1980,
because he refused to perform an assigned task and
walked off the job. Previously, he had received one writ-
ten warning for excessive tardiness. Atkins was em-
ployed for about 2 months prior to his discharge.
19. Michael Blow was discharged on May 8, 1980, be-
cause of insubordination and his refusal to follow the
Company's dress code. Previously, on August 19, 1979,
Blow was suspended for 3 days for being sarcastic to
customers. Blow had been employed for about 5 years
prior to his discharge.
20. John Carter was discharged on August 11, 1980,
because of horseplay and wrestling with a coworker
679
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after receiving a verbal warning about this earlier in the
day. Prior to his discharge Carter had been employed by
the Company for about 1-1/2 months.
21. Gil Colon was discharged on July 22, 1979, be-
cause he refused to perform a job assignment and told
his supervisor to fire him if she chose to. Colon had re-
ceived no prior warnings, but had been employed for
less than 2 months.
22. John Correano was discharged on October 26,
1978, because he broke the timeclock when he hit it with
his fist. He had received no prior warnings and had been
employed for about 4 months.
23. Leon Howard was discharged on July 10, 1980, be-
cause he refused to perform Joseph Colwell's job when
Colwell was terminated. He had been employed almost 2
years and had received no prior warnings.21
24. Kevin Leak was discharged on June 3, 1979, for
refusing to do an assigned job. He had been employed
for about I month.
25. Mark Lewis was discharged on June 1980 because
he refused to comply with the Company's grooming
standards. Lewis had previously received verbal warn-
ings and two I-day suspensions, one of which related to
his failure to shave and the other to his refusal to per-
form work. Lewis had been employed for about 9
months prior to his discharge.
26. Vincent Niney was discharged on February 12,
1979, for assaulting his supervisor. He had been em-
ployed for 5 days.
27. Theresa Ragonese was discharged on October 5,
1978, because she refused to work at her assigned work
station and told her supervisor, "You can fire me." She
had worked for 1 month and had received no prior
warnings.
28. Ken Williams was discharged on April 12, 1981,
because he refused to follow a supervisor's orders, had a
bad attitude, and was unprepared for work. Previously
he had received three written warnings for absenteeism
and tardiness. Williams had been employed for about 10
months.
C. Concluded Findings as to Colwell's Discharge
Although Colwell's performance as a cook may have
been exemplary, the same cannot be said for his perform-
ance as a witness. In my opinion he often was confused
both as to dates and the sequence of events and his testi-
mony at times struck me as being excessively vague and
contradictory. Moreover, on certain points his testimony
was at variance either with his pretrial affidavit or with
his testimony given at an unemployment hearing. There-
fore, in reaching my conclusions in this case I shall dis-
count certain aspects of Colwell's testimony which were
unpersuasive to me. Accordingly, I shall not credit Col-
well's assertion that on July 10, 1980, Costanza said, "I
know a Union organizer or a troublemaker when I see
one." Similarly, I shall not rely on Colwell's assertion
that sometime in late March or early May he overheard
Rossi telling other supervisors that, if certain employees
did not cut out their activities, heads would start rolling.
"l The General Counsel did not allege Howard's discharge as being
discriminatory.
Also, I do not find that, subsequent to Colwell's dis-
charge, Paul Montesano offered his opinion that Colwell
was fired because of his union activities.
At the same time, certain elements of Colwell's testi-
mony, about which I was skeptical upon first hearing,
turned out to be essentially corroborated by certain of
the Respondent's witnesses. Thus, Arkia Wallace conced-
ed that in May or June she did transmit a threat of dis-
charge to Colwell. Moreover, my opinion, as I have indi-
cated above, is that this threat was in fact related to Col-
well's union activities and not to his approved practice
of leaving his work station which he did in order to
check the flight boards.
It is also clear to me that, given the fact that Local
20408 had filed its petition for an election on April 24,
1980, and the testimony of Costanza that he instructed
his supervisors to look out for any unusual activity in-
cluding union activity, the Respondent's supervisors
were aware of this Union, despite their assertions to the
contrary. I therefore find the denials of such knowledge
by Supervisors Montesano, Wallace, and Anderson to be
incredible. Moreover, because Lattimore, Colwell, and
Howard were the employees who were principally re-
sponsible for distributing literature and soliciting union
membership at Terminal B, and given Costanza's ac-
knowledgement that he was aware of Lattimore's activi-
ty, it seems implausible that the Respondent's manage-
ment was not equally aware of Colwell's activities.
There is no doubt that the events of July 10 precipitat-
ed Colwell's discharge. In this regard it is apparent that,
when Costanza sent Supervisor Stewart to check on Col-
well's movements, Colwell, who was checking the flight
boards, as per his usual practice, became justifiably upset.
Thus, the trigger of all the subsequent events on July 10
was caused by Costanza, who admittedly was not even
concerned about Colwell being in the corridor, but was
only concerned about whether his supervisors knew
where their people were.
It is acknowledged by Colwell that, when he returned
to the buffeteria, he told Shirley Lewis that Rossi or
anyone else who did not like his work could "kiss his
ass." This statement in turn was conveyed to Costanza
who entered a meeting between Rossi and Colwell for
the purpose of confronting the latter, even though Cos-
tanza did not think that the statement itself was a "big
deal." It also is evident that, when Costanza questioned
Colwell about his statement, Colwell initially attempted
to deflect Costanza's question by asking Costanza if he
heard it. From this point, the confrontation became in-
creasingly heated and when Rossi and Lewis met Col-
well outside the office, the latter accused Lewis of being
a "damn liar." I also believe, based on Lewis' testimony,
that Colwell did in fact call her a "mother fucking liar,"
but that this occurred in the back of the house, in a non-
public area. As to the contention that Colwell grabbed
Lewis, the testimony as a whole does not suggest that
Colwell assaulted her, but merely took her arm as a
means of getting her attention. It also is clear that,
during the argument, Costanza told Colwell to punch
out and to leave the premises which Colwell refused to
do. Insofar as the assertion by the Respondent that Col-
680
HOST SERVICES, INC.
well made the statement to Rossi that he, Costanza, and
Lewis would burn, there is in my opinion insufficient
evidence in this record to support that assertion which
was denied by Colwell. Moreover, it is noted that on the
form filled out by Costanza on July 10, which sets forth
the reasons for Colwell's indefinite suspension, no men-
tion was made of this alleged threat or of any physical
assault on Lewis.
O'Hare characterized his decision to discharge Colwell
as being one of the most difficult decisions he had to
make. He also conceded that before he made the decision
he was aware that Colwell had been followed in the cor-
ridor while checking the flight boards and that Colwell
had expressed his belief that he was being harassed.
There is also no question but that among the reasons for
O'Hare's difficulty in reaching the decision was the fact
that O'Hare considered Colwell to be an excellent em-
ployee who had great potential value to the Respond-
ent's operations at the airport.
I do not believe that, when Costanza sent Stewart out
to follow Colwell, he anticipated the chain of events that
was to follow. Thus, I think it highly improbable that,
when Costanza made that decision, he intended to pro-
voke an incident which would give him grounds to dis-
charge Colwell. At the same time, given the entire set of
circumstances, it may fairly be asked whether Respond-
ent's knowledge of Colwell's union activities was placed
in the balance when O'Hare made his "difficult" decision
to discharge him.
As in all cases of this nature, the ultimate question is
one of intent. Moreover, in the absence of an admission,
the question of intent cannot be directly ascertained, and
its manifestation by words and deeds must be divined.
Among the factors to be considered is whether, in this
instance, the Respondent acted in accordance with or at
variance from its past practice. Wright line, a Division of
Wright, Inc., 251 NLRB 1083 (1980); Gossen Company, a
Division of the United States Gypsum Company, 254
NLRB 339 (1981).
The Respondent asserts that, when an employee curses
at a supervisor in the presence of others, this, by itself,
constitutes an automatic ground for dismissal, irrespec-
tive of the employee's past record. However, in making
that assertion, it seems to me that the Respondent asserts
more than the evidence can bear. Thus, although it is
true that there have been instances where employees
have been discharged for cursing at supervisors, those in-
stances involved factual situations which are distinguish-
able from Colwell's. Thus, for the most part, where em-
ployees have been discharged for cursing at supervisors,
the employees involved have either had extensive past
disciplinary records or have been employed for short pe-
riods of time. Also, in a number of instances the dis-
charges were not based solely on cursing, but involved
situations where that was coupled with unambiguous acts
of insubordination or with threats of physical assault. By
the same token, the evidence herein shows that there
have been occasions where either no discipline or disci-
pline short of discharge was imposed on employees who
cursed at supervisors in the presence of others. Indeed,
Costanza conceded that, when Colwell told Lewis to tell
Rossi to "kiss his ass," he did not consider that statement
to be a "big deal."
It is not my intention to decide what I would have
done were I in O'Hare's place when the events of July
10 were reported to him. Rather, my analysis goes to the
question of what he would have done based on the Com-
pany's past practice in similar circumstances. While rec-
ognizing that no set of events is precisely the same as
previous circumstances and that no company can be ex-
pected to follow past practice by use of a precise math-
ematical formula, it nevertheless is my opinion that the
conduct of Colwell on July 10 (which itself was precipi-
tated by Costanza's actions) would not have resulted in a
discharge based on the Company's historical precedent.
On the contrary, it is my opinion that had these events
occurred at a different time O'Hare would either have
approved a written warning or a suspension of 1 to 3
days. Put another way, it is my conclusion that but for
the Company's awareness and concern over Colwell's
union activities he would not have been discharged. It
therefore is concluded that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act when it discharged Col-
well on July 11. 1980.
D. Other .41eged 8(a)(1) Conduct
According to Dorothy Perdon, on or about October 6,
Supervisor Michelle Hartsfield came over to a group of
employees and asked how she really felt about the
Union. Perdon testified that she asked Hartsfield what
she was talking about and said, "Why do you think we
need a union?" According to Perdon, Hartsfield respond-
ed by saying that the employees ought to give the Com-
pany a chance. Perdon states that she and the other em-
ployees, all of whom openly supported the Union, ex-
plained their reasons for wanting representation by Local
20408, whereupon Hartsfield said, "Well I can see what
everyone's feelings are." This conversation was essential-
ly corroborated by Dorothy Morton. Hartsfield, who no
longer was employed by the Company at the time of the
hearing, did not testify.2 2
In connection with the above, while the interrogation
by Hartsfield can hardly be described as momentous, it
nevertheless constitutes a violation of the Act. Thus, in
PPG Industries, Inc., Lexington Plant, Fiber Glass Divi-
sion, 251 NLRB 1146 (1980), the Board reversed the De-
cision of an Administrative Law Judge, who, relying on
Stumpf Motor Company, Inc., 208 NLRB 431 (1974), and
B. F. Goodrich Footwear Company, 201 NLRB 353 (1973),
had concluded that interrogation of a similar character
did not violate the Act. In PPG Industries the Board
stated:
The Administrative Law Judge found the inquir-
ies to Hepler, Lanning, and Potts to be privileged
under Stumpf and B. F. Goodrich. Those cases found
questions concerning employees' union sympathies
to be not coercive in view of the employees' open
22 Respondent asserted that it attempted to contact Hartsfield by
phone and letter but was unsuccessful However, as in the case of Rossi,
Hartsfield was not subpoenaed and it was not shown to my satisfaction
that she was unavailable.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and active support for the union and the absence of
other threats in the conversations. We have recently
held, however, that inquiries of this nature consti-
tute probing into employees' union sentiments
which, even when addressed to employees who
have openly declared their union adherence, reason-
ably tend to coerce employees in the exercise of
their Section 7 rights. We have further found such
probing to be coercive even in the absence of
threats of reprisals or promises of benefits. The type
of questioning at issue conveys an employer's dis-
pleasure with employees' union activity and thereby
discourages such activity in the future. The coer-
cive impact of these questions is not diminished by
the employees' open union support or by the ab-
sence of attendant threats. Accordingly, we hereby
overrule Stumpf and B. F Goodrich to the extent
they hold that an employer may lawfully initiate
questioning about employees' union sentiments
where the employees are open and known union
supporters and the inquiries are unaccompanied by
threats or promises. We find that Respondent violat-
ed Section 8(a)(1) of the Act by questioning union
adherents Hepler, Lanning, and Potts about their
union sympathies and reasons for supporting the
Union. [251 NLRB at 1147.]
The other alleged 8(a)(1) violation is based on a con-
versation between Catherine Lattimore and Thomas
O'Hare, occurring in October 1980. Lattimore testified
that O'Hare asked a group of employees including her-
self if they had received a letter from the Company ex-
plaining its position vis-a-vis the two competing Unions.
She states she told O'Hare that she did not like the letter
because it was trying to tell the employees that they did
not need a union. She further states that O'Hare then
asked why they thought they needed a union, to which
she responded that a union was needed to prevent super-
visory harassment. Lattimore asserts that O'Hare said
that unions only cause problems between management
and employees and that they could have a better rela-
tionship if the employees voted against both Unions. Ac-
cording to Lattimore, O'Hare also said that unions were
known for going out on strikes and that if the employees
participated in an illegal strike they could be fired. She
states that O'Hare characterized a strike for more money
and benefits as an illegal strike. As to this alleged con-
versation, O'Hare was not asked to give his version and
therefore Lattimore's testimony stands unrebutted. I
therefore shall conclude that on this occcasion O'Hare
made statements in violation of Section 8(a)(1) of the
Act.
CONCI.USIONS OF LAW
1. Respondent Host Services, Inc., 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.
2. The Unions involved herein are labor organizations
within the meaning of Section 2(5) of the Act.
3. By discharging Joseph Colwell on July 11, 1980, be-
cause of his membership and activities on behalf of Local
20408, the Respondent violated Section 8(a)(1) and (3) of
the Act.
4. By interrogating employees about their union sym-
pathies, the Respondent violated Section 8(a)(1) of the
Act.
5. By telling employees that they would be fired if
they engaged in an economic strike, the Respondent vio-
lated Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent unlawfully dis-
charged its employee, Joseph Colwell, and engaged in
other actions found to be in violation of the Act, I shall
recommend that the Respondent cease and desist there-
from and take certain affirmative action to effectuate the
purposes of the Act.
With respect to Joseph Colwell, it is recommended
that the Respondent offer him full and immediate rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges previ-
ously enjoyed, and to make him whole for any loss of
earnings he may have suffered by reason of the discrimi-
nation practiced against him, such earnings to be com-
puted in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). See, gener-
ally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein, and pursuant to
Section 10(c) of the Act, I hereby recommend the issu-
ance of the following recommended:
ORDER2 3
The Respondent, Host Services Inc., Newark, New
Jersey, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging employees because of their member-
ship or activities on behalf of Local 20408 or any other
labor organization.
(b) Threatening employees with discharge if they par-
ticipate in a lawful economic strike, or because of their
membership or support for Local 20408 or any other
labor organization.
(c) Interrogating employees about their membership or
sympathies for Local 20408 or any other labor organiza-
tion.
(d) In any like or related manner interfering with, re-
straining, or coercing our employees in the exercise of
their Section 7 rights.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Joseph Colwell full and immediate reinstate-
ment to his former position of employment or, if that po-
23 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
682
HOST SERVICES, INC.
sition no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him whole
for any loss of pay he may have suffered by reason of
the discrimination against him in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its places of business at Newark Internation-
al Airport copies of the attached notice marked "Appen-
dix."24 Copies of the said notice, on forms provided by
the Regional Director for Region 22, after being duly
signed by Respondent's representative, shall be posted by
it in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
683