Howard Johnson Motor Lodge

National Labor Relations Board - Board Decisions

May 13, 1982

261 N.L.R.B. 866 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Johnson Motor Lodge and Chauffeurs,
Teamsters and Helpers Local Union No. 364,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 25-CA-13009 and 25-CA-
13570
May 13, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On December 4, 1981, Administrative Law
Judge Stanley N. Ohlbaum issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and 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 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 brief
and has decided to affirm the rulings, findings,'
and conclusions 2 of the Administrative Law Judge
and to adopt his recommended Order.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
2 We agree with the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(a)(1) of the Act when Respondent's manager,
William Collins, ordered employee Dennis Mark to remove his union
button, when Collins interrogated Mark, and when Collins threatened
Mark. We base our agreement on a determination that, contrary to Re-
spondent's contention, Mark was not a supervisor.
Mark testified that he was "head of maintenance" and that he had five
men "under" him. Respondent's maintenance staff was arranged into
three shifts: Mark and two other men worked from 7 a.m. to 3 p.m.; one
man worked from 3 to 11 p.m.; and one man worked from I11 p.m. to 7
a.m. Three of these men (one on Mark's shift and the sole men on the
other two shifts) were drivers Their job was to drive people from the
motor lodge to the airport and truck terminal and back again. These driv-
ers took their assignments from the front desk clerk. Their driving duties
took up 6 to 7 hours of their shifts. They spent their remaining time
doing routine maintenance tasks such as taking out the garbage and re-
placing burnt-out light bulbs. Thus, although the drivers were nominally
"under" Mark, his contact with them was minimal. The other two men
"under" Mark were Thomas Rospopo, the weekend maintenance man,
and Charles Springer, the former head of maintenance. Springer worked
part time and made 50 cents per hour more than Mark.
In addition, Mark did not have the power to hire, fire, transfer, layoff,
suspend, or promote Respondent's maintenance employees or effectively
to recommend such actions. Although Mark did assign some work to the
rest of the maintenance staff by leaving notes for them, these assignments
were of a routine nature and Mark did not exercise independent judg-
ment in making them.
Finally, Collins himself testified that he did not consider Mark to be a
supervisor.
On the basis of all of the above, we find that Mark was at best the first
among equals and not a supervisor as that term is defined in Sec. 2(11) of
the Act.
In adopting the Administrative Law Judge's conclusion that the dis-
charge of Supervisor Paquin violated Sec. 8(aXl) of the Act, we rely on
the fact that Paquin was discharged for, in essence, refusing to engage in
261 NLRB No. 123
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 and
hereby orders that the Respondent, Howard John-
son Motor Lodge, South Bend, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
surveillance of employees' union activity for Respondent. To discharge a
supervisor for refusing to engage in unfair labor practices itself violates
the Act. See, e.g., Russell Stover Candies, Inc., 223 NLRB 592 (1976),
enfd. 551 F.2d 204 (8th Cir. 1977); see also Miami Coca Cola Bottling
Company doing business as Key West Coca Cola Bottling Company, 140
NLRB 1359 (1963), enforcement denied on other grounds 341 F.2d 524
(5th Cir. 1965). The fact that Respondent made its demand after Paquin
had already voluntarily attended the union meeting does not distinguish
this case from cases like Russell Stover, since Respondent here likewise
sought to compel its supervisor to report on the union activity of its em-
ployees.
DECISION
PREI.IMINARY STATEMENT; ISSUES
STANLE..Y N. OHI.BAUM, Administrative Law Judge:
These consolidated cases' prosecuted under the National
Labor Relations Act, as amended, 29 U.S.C. § 151, et
seq. (herein called the Act), were litigated before me in
South Bend, Indiana, on August 31 through September
1, 1981, with Howard Johnson Motor Lodge herein
called (Respondent Employer) participating throughout
by its counsel, the Board's Regional Director for Region
25 through his counsel, and Chauffeurs, Teamsters and
Helpers Local Union No. 364, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Charging Party herein called the
Union) making no appearance. All appearing were given
full opportunity to present evidence and arguments, as
well as to propose findings and conclusions and file post-
trial briefs. After unopposed application by counsel for
Respondent for time extension, briefs were received from
Respondent and from counsel for General Counsel of the
Board by November 3, 1981. Those briefs, as well as the
entire record, have been carefully reviewed.
The principal issues presented are whether Respondent
engaged in various acts (interrogation; direction not to
wear union buttons; engaging and attempting to have an
employee engage in espionage on union meetings; dis-
charging the employee for refusing to do so and for testi-
fying in a Board-conducted union representation pro-
ceeding; threatening employees that no union would be
permitted, and threatening employees with reprisals for
engaging in union activity; reprimanding an employee
and imposing more onerous working conditions because
I Complaint issued February I1, 1981, based on a charge (Case 25-
CA-13009) filed by the Union on December 30, 1980. Complaint issued
June 8, 1981, based on a charge (Case 25-CA-13570) filed by Union on
May 26 as amended June 8, 1981. The complaints, issued by the Regional
Director for Region 25, were consolidated by on August 19, 1981.
866
HOWARD JOHNSON MOTOR LODGE
of union activity) in violation of Section 8(a)(l), (3), and
(4) of the Act.
Throughout this Decision, Case 25-CA-13009 will be
referred to as C-I and Case 25-CA-13570 as C-2.
Upon the entire record2 and my observation of the
testimonial demeanor of the witnesses, I make the fol-
lowing:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times Respondent has been and is a
Maryland corporation, with its principal office in Brain-
tree, Massachusetts, engaged in operating a motor-lodge
in South Bend, Indiana. In the course and conduct of its
business operation during each of the representative 12-
month periods immediately preceding issuance of the
complaints, Respondent purchased and received at its
said South Bend facility, directly in interstate commerce
from places outside of Indiana, goods and materials
valued at over $50,000, and derived gross revenues there
exceeding $500,000.
I find that at all material times Respondnt has been
and is an employer engaged in commerce and in oper-
ations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act; and that at all of those times
the Union has been and is a labor organization as defined
in Section 2(5) of the Act.
II. AI.LEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's South Bend motel is managed by Wil-
liam Collins and at the time of the hearing employed
about 23 persons. Around November or December 1980,
when the actions herein complained of started, there
were about 18 employees, consisting of 6 or 7 chamber-
maids or housekeepers, 5 maintenancemen, I housekeep-
ing supervisor, and 5 front-desk personnel.
Union organizational activity involving the South
Bend motel employees took place in and after November
1980, including union meetings attended by those em-
ployees, solicitation of employees by fellow-employees to
join the Union, and wearing of union buttons. A preelec-
tion representation case hearing was held under auspices
of the Regional Director for Region 25.
B. Respondent's Alleged Activities in Violation of the
Act
1. Proscription of union button display
During November 1980, Respondent's former mainten-
anceman Dennis James Mark (now elsewhere employed)
attended all of the union organizational meetings, dis-
played a union slogan on his car parked in the motel
parking lot, wore a union button at work,3 distributed
2 Certain errors in the transcript are hereby noted and corrected
s Mark wore the union button on his own vest, even after he received
a company-supplied jacket about 2 weeks later.
such buttons to other employees, and solicited employees
to join the Union. Later in the day when Mark had dis-
tributed these buttons, while repairing a faucet in a guest
room, he and chambermaid Rose Leeper were directed
by Motel Manager CoIling to "take off the button . . .
we don't wear them here.... I don't want you wearing
that button on the premises." Leeper removed it, but
Mark replied that he thought it was his right to wear it.
Although Collins warned, "Don't wear them at Howard
Johnson's," Mark continued to wear his union button
unitl the end of his shift, around 3 p.m., when Collins
asked him into his office, where, in the presence of two
other employees-front desk clerk Susan Callan and
Housekeeping Supervisor Sandra Lee Paquin-Collins
directed Mark to "Take the button off or else." Since it
was quitting time, Mark left, but he apparently did not
wear the button at work after that.
Credited testimony of General Counsel witnesses
Thomas E. Rospopo and Susan Callan, both formerly
employed as Respondent's motel desk clerks (Rospopo
also as a weekend maintenanceman), further establishes
that in early December Rospopo, who had successfully
solicited many fellow-employees to sign union cards, also
was directed by Motel Manager Collins to "Take off that
[union] button. We don't wear that here." At the time,
Rospopo was wearing a company-furnished blazer with
the company emblem. When Rospopo complied, Collins
remarked, "That's better, Tom." Collins was also ob-
served asking other employees to remove their union
buttons, as well as union stickers from carts. A few days
later Collins told Callan that he was "glad the union
craze hadn't caught on with all the employees, meaning
buttons."
Also in December, as credibly testified by Respond-
ent's desk clerk, Laura Fay Horvath, still in Respond-
ent's employ, 4 when Manager Collins observed a union
button on her purse beneath the desk counter, Collins
told her, "We don't wear that kind of pin on our proper-
ty," so she removed it.
Testifying on this subject, Respondent's Motel Man-
ager Collins conceded he instructed these employees to
remove their union buttons since, as his own personal
"policy" applicable to "all" buttons but not reflected in
company policy or anywhere in writing, "they were not
acceptable parts of the uniform" and might be regarded
adversely by guests. Although Collins indicated that
Horvath's button on her purse below the counter was
visible to a guest checking in, comparing testimonial de-
meanor as observed, I prefer and credit the contrary tes-
timony that it was not so visible. At no time, even ac-
cording to his own testimony, did Collins take the posi-
tion with regard to maintenanceman Mark that the latter
was a supervisory employee or other than a rank-and-file
employee; 5 as to the other employees (except Paquin,
4 Corroborated by Respondent's former Housekeeping Supervisor
Paquin, who also swore that Horvath's purse under the counter was not
visible from above.
5 Respondent now contends, in the instant proceeding, that its actions
(supra and infra) relative to Mark could not in any event have been viola-
tive of the Act since Mark was a statutory supervisor. Although the testi-
mony of Mark here could arguably, but not necessarily, support the con-
Continued
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who is not involved in this aspect of the case), it is con-
ceded that they were rank-and-file employees.
Inasmuch as employees have the right to wear union
buttons at work where, as here, they interfere neither
with the employees' job nor the conduct of the Employ-
er's business,6 and it is undisputed that Respondent did
indeed direct its employees not to display such buttons
on their clothes or otherwise on Respondent's premises, I
find that, substantially as alleged in the complaint (C-l,
clusion that Mark was a supervisor, it is to he noted that in the Board-
conducted representation case linked to this proceeding Respondent ex-
plicitly took the position-in its Excelsior list of employees furnished by it
to the Board, as well as in an affidavit (G.C. Exh. 15), and also in its
testimony and position to the Board at the hearing in that case (G C
Exh. 14)-that Mark was not a supervisor, on the basis of which Re-
spondent succeeded in persuading the Board that Mark was a nonsupervi-
sory employee and thus eligible to vote in that election. Further, notwith-
standing the current contention of its counsel, even at the instant hearing
Respondent's Motel Manager Collins explicitly swore that he does nlot
regard Mark as a supervisor. Moreover, as already indicated above, at no
time when Respondent's Manager Collins directed Mark to remove his
union button-nor at any other time, including during Mark's activities in
enlisting other employees to join the Union-did Collins or any other
agent or representative of Respondent indicate that Mark should desist
from such activities because it regarded him as a supervisor. Under these
circumstances, there would be ample warrant for not regarding Mark as
a supervisor; or, alternatively, for treating Respondent as estopped from
now so maintaining, contrary to its earlier sworn assurances to the Board.
However, there is no need here to resolve the question of whether or
not Mark was a supervisor within the statutory definition The Act per-
mits union membership by supervisors. See Sec. 14(a) of the Act See also
Florida Power & Light Co. v. International Brotherhood of Electriwal Work-
ers, Local 641, 417 U S. 790, 795, 808 (1974); .VL.R.B. v. Palentine
Sugars, Inc., 211 F2d 317 (5th Cir. 1954); Party Cookies, Inc., 237 NILRB
612, 623-624 (1978). Thus, it was not unlawful for Mark to simply wear
his union button-even though, if he was indeed a supervisor within the
meaning of the Act, Respondent could have required him to remove it
(which he apparently did, at work) or discharged him for wearing it
(which it did not do), without violating the Act. Cf. Florida Power &
Light Co., supra,' DRW Corporation d/hb/a Brothers Three Cabinets, 248
NLRB 828 (1980). In any event, Respondent's proscription of union
button display by its other employees under the circumstances here
shown was done in order to thwart them in their protected concerted ac-
tivities and was violative of the Act. See fn. 6, infra
' Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793 (1945); Sierra
Development Company d/b/a Club Cal-Neva, 231 NLRB 22, 28-29 (1977),
enfd. 604 F.2d 606 (9th Cir. 1979); Howard Johnson Company, 209 NLRB
1122 (1974); Glenlynn, Inc., d/b/a McDonald's Drive-In Restaurant, 204
NLRB 299 (1973); Consolidated Casinos Corp., Sahara Division, 164
NLRB 950 (1967): Floridan Hotel of Tampa. Inc., 137 NLRB 1484, 1486
(1962), enfd. as modified in other respects 318 F.2d 545 (5th Cir. 1963);
Mayrath Company, 132 NLRB 1628 (1961), enfd. as modified in other re-
spects 319 F.2d 424 (7th Cir. 1963). N.L.R.B. v larrah's Club, 337 F.2d
177 (9th Cir. 1964), relied on by Respondent aside from whether or not
consistent with the Supreme Court's decision in Republic Aviation,
supra-involved, unlike here, mere continued application by the employ-
er of a longstanding, rigorously enforced rule, in absence of evidence of
employees being engaged in protected concerted activity.
Respondent's argument that it was justified in proscribing union button
wearing by its employees because it feared that some of its customers or
potential customers might react adversely or withhold their trade, is
without merit. Respondent could as well argue that it is for that reason
permitted to operate, and publicize that it operates, a "non-union motel."
(Of course, it may conversely be conjectured that some of Respondent's
potential customers might react favorably to employees wearing union
buttons.) The lawfulness of the exercise by employees of their rights
under the Act, including union button wearing, does not turn upon the
pleasure or displeasure of an employer's customers. Cf, e.g., Motz Poultry
Company, 244 NLRB 573, 576 (1979); International Union of Electrical.
Radio and Machine Workers. AFL-CIO [NECO Electric Products Corp.) v.
N.LR.., 289 F.2d 757, 762-763 (D.C. Cir. 1960); Ref-Chem Company,
153 NLRB 488, 491 (1965); Aero Corporation, 149 NLRB 1283, 1284
(1964), enfd. 363 F.2d 702 (D.C. Cir 1966), cert. denied 385 U.S. 973.
par. 5(b)), Respondent through its Manager Collins di-
rected employees not to display union buttons.
2. Interrogation
The complaint (C-I, par. 5(a); C-2, pars. 5(a)(iii), 5(c),
and 5(d)) alleges that on various occasions from Novem-
ber 1980 through April 1981 Respondent impermissibly
interrogated employees regarding their own and fellow-
employees' union membership, views, and activities. Var-
ious employees testified in support of these allegations.
Respondent's former housekeeping supervisor, Sandra
Lee Paquin, testified credibly that on November 21,
1980, she was summoned to the office of Motel Manager
Collins, where, in the presence of Respondent's attorneys
Callanan and Gaucher, she was told "a union [is] trying
to get in" and was asked what the employees were "un-
happy about" and whether she and was asked what the
employees were "unhappy about" and whether she had
"heard any union talk." She denied (untruthfully) that
she had heard any such talk, but indicated employees
were unhappy over their pay and supply shortages. She
was instructed not to discuss the Union with employees,
but, if asked, to tell them they did not need a union. She
was also instructed to report any union activity.
Inasmuch as it is conceded that Paquin was a supervi-
sor within the meaning of the Act, I find that Respond-
ent's described questioning of and instructions to her on
November 21, 1980, were not violative of the Act. It is
not unlawful under the Act for an employer to request
or require such information from a supervisor.
On December 17, 1980, Paquin was again summoned
by Motel Manager Collins for a conference with Re-
spondent's attorney, Callanan, this time in a motel execu-
tive suite, where Callanan asked her if she had attended
union meetings and signed a union card. Paquin admitted
she had, but denied involvement in union organizing ac-
tivity. She refused, then and again later (resulting in her
discharge, as detailed infra, to comply with Callanan's di-
rection that she disclose the identities of those she had
observed to be present at the union meeting or meetings
she had attended.
Since, as already indicated, Paquin was concededly a
supervisor, I find that it was not violative of the Act for
Respondent to question her as described.
Respondent's discussions with or interrogations of em-
ployees concerning union membership and affairs was
not, however, confined to questioning Supervisor
Paquin. Credited proof establishes that it also discussed
such matters with or interrogated rank-and-file employ-
ees concerning these subjects. Thus, after a company-
convoked assemblage of employees early in January
1981, addressed by Respondent Regional Representative
Richard J. Moreau to dissuade them from union affili-
ation (according to Moreau's testimony), Motel Manager
Collins asked desk clerk Susan Callan what she thought
about Moreau's remarks. Callan did not respond other
than to indicate that it was odd that Respondent now for
the first time appeared to be paying attention to its em-
ployees. When Collins asked her how she thought the
upcoming Board-conducted union representation election
would turn out, Callan replied noncommitally. I fail to
868
HOWARD JOHNSON MOTOR LODGE
discern in any of the foregoing, interrogation of a coer-
cive character or otherwise violation of the Act.
Credited testimony of Respondent's former desk clerk
and weekend maintenanceman Thomas E. Rospopo es-
tablishes that after the above-described early January em-
ployer-convoked employees assemblage, he was ap-
proached and asked by Respondent's Regional Repre-
sentative Moreau why, "as a past management employ-
ee" (Rospopo had previously been a managerial trainee
at a different location, a status he had, for reasons of his
own, relinquished), he had "let this kind of [unionizing
activity] occurrence happen at the motor lodge at South
Bend" and "not let somebody [in management] know
there was some sort of a problem at the Howard John-
son at South Bend, as to why a union campaign was
coming." I find this to have been an impermissibly un-
warranted intrusion into Rospopo's and employees' pro-
tected concerted affairs and activities under the Act. 7
Another rank-and-file employee, chambermaid or
housekeeper Rose Leeper, testified credibly that in and
after December 1980, Motel Manager Collins repeated-
ly-two or three times weekly-asked her if she knew or
had heard anything about the union and what the talk
was on that subject, as well as what she knew about who
was responsible for the union stickers on employees'
automobiles and maids' carts. Leeper denied knowledge
of any of these things. Also, in January 1981, on an occa-
sion when fellow-employee and union activist Dennis
James Mark (from whom Leeper had received a union
button) had driven her home from work, she received a
telephone call at home from Manager Collins, who asked
her what Mark had talked to her about on the way
home. She said, "I didn't discuss anything with him."
Although the foregoing stands substantially undisputed
by Collins, as to the latter incident he claims he tele-
phoned Leeper only out of solicitude for her welfare in
order to ascertain if "she had gotten home all right." I
have difficulty in accepting this, particularly since he did
not directly deny that he asked Leeper what Mark had
talked to her about-although, according to his testimo-
ny, he asked her "if Dennis [Mark] had caused her any
problems on the way home." As to the other interroga-
tional episodes, based on close testimonial demeanor ob-
7 Respondent's affirmative defense as to the foregoing complaint alle-
gation (C-2, pars. 5(d) and 4, as amended), that it is untimely under Sec.
IO(b) of the Act, is overruled and dismissed. The allegations in question,
added by amendment of August 19, 1981, are directly related to and part
of the transactions described in the complaint (C-2) issued on June 8,
1981, growing out of the charge filed on May 26 as amended on June 8,
1981. Those allegations merely additionally identify Moreau as an officer
of Respondent-a purely perfunctory and perhaps unessential pleading al-
legation-and set forth an additional alleged instance of interrogation on
January 7, 1981. The complaint (C-2) was clearly timely issued and there
is no contention to the contrary. Where an amendment to a complaint is,
as here, merely an extension of or directly relates to the matters involved
in the charge and alleged in the complaint, it is not time-barred simply
because the amendment refers to an incident more than 6 months antedat-
ing the amendment. Cf., e.g., NL R.B. v Fant Milling Company, 360 U.S
301 (1959); National Licorice Co. v. NLR.B, 309 U.S. 350 (1940):
N.LR.B. v. Kohler Company, 220 F.2d 3, 7-8 (7th Cir. 1955); N.L.RB v
Dinion Coil Company. Inc., 201 F.2d 484, 491 (2d Cir. 1952); Local 282,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (. J. White Ready Mix Concrete Corp). 141 NLRB
424, 431-432 (1963); Exber, Inc., d/b/a El Cortez Hotel v NL.R.B., 390
F.2d 127, 129-130 (9th Cir. 1968).
servations, I reject Collins' testimony that he at no time
mentioned the Union to Leeper; instead, I definitely
prefer and credit the testimony of Leeper-a singularly
impressive witness on the stand-as recounted above,
and accordingly find that Collins did indeed interrogate
Leeper as she testified.
Further, Respondent's housekeeper Barbara Jane
Litler, still in its employ and thus testifying at risk of re-
taliation,8 credibly swore that in late March or early
April 1981 her supervisor, Head Housekeeper Edith
Parker (Paquin's successor), after remarking to her that
employee Dennis James Mark had "talked to . . . some
of the new girls about the union dues . . . out of their
. . . pay check, each month" and that she [Parker] had
"told the girls there wasn't no union in there, not to
worry about it," then asked Litler whether she (Litler)
or any other girls had had any union dues taken out of
their checks yet, which Litler answered in the negative.
This impresses me as a crudely disguised attempt at in-
terrogation, intended to elicit either a response that
Litler (or others) had indeed had or expected to have
that done, or that they had not joined the Union-plain
interrogation. I find that the latter inquiry, being in es-
sential substance undisputed by Parker-who testified
she asked Litler, "They haven't deducted anything from
your pay, have they, Barb[ara]"-constituted an unwar-
ranted and intrusive inquiry designed to elicit from Litler
whether she had affiliated herself with the Union.
Finally, it is alleged (C-2, par. 5(a)(iii)) that or or about
April 22, 1981, Motel Manager Collins engaged in addi-
tional interrogation, shown at the hearing to have been
of its employee Dennis James Mark, who testified credi-
bly that on that date he was summoned to the office of
Collins who asked him, "who in hell [do you] think [you
are] taking it upon [your]self to talk to the employees
about the union and what has gone on here in the past."9
Mark did not respond. The foregoing is not essentially
disputed by Collins. It is found that Collins impermissi-
bly interrogated Mark on this occasion, as alleged.
3. Threats
The complaint (C-2, par. 5(b)) alleges that late in No-
vember 1980 Motel Manager Collins threatened its em-
ployees with reprisals for union activities. Since counsel
for General Counsel conceded upon the record that no
proof was supplied here in this regard, I find the allega-
tion not established.
The complaint (C-2, pars. 5 (a)(i) and (ii)) further al-
leges that on or about April 22, 1981, Collins also threat-
ened employees with reprisals for engaging in union ac-
tivities and that Respondent would never permit a union
at the motel. On this subject, Respondent's former em-
h We have been judicially instructed that this is a factor to be weighed
in favor of crediting such a witness. See Georgia Rug Mill. 131 NLRB
1304, 1305, fn 2 (1961), enfd as modified 308 F.2d 89 (5th Cir 1962). W
Willard Wirtz v B. 4 C£ Steel Products, Inc., 312 F.2d 14, 16 (4th Cir.
1962)
9 Again, in no way did Collins state, indicate, or suggest that Mark
was a supervisor or so regarded by Respondent, or that his activities
were disfavored by Respondent for this reason. See fn 5, supra.
869
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loyee Dennis James Mark's credited' ° testimony estab-
lishes that on that date, on the same occasion when Col-
lins demanded to know "who in hell [do you-i.e.,
Mark] think [you are] taking it upon [your]self to talk to
the employees about the union," Collins directed him not
to speak to a named employee about the Union and
added that "There [is] no union and there will never be
no union here at Howard Johnson's" and that "If [you
don't] stop talking to new employees about the union,
[you'll] be in deep, deep trouble." In no way did Collins
limit this direction to working time. Upon the basis of
Mark's credited testimony, within the frame of reference
of the record as a whole, I find these allegations estab-
lished.
4. Reprimand
The complaint (C-2, pars. 6(a) and (c)) alleges that on
or about February 16, 1981, Respondent issued an un-
warranted written reprimand to Dennis James Mark be-
cause of his protected concerted union activities.
As to this, Mark, a known union activist and protago-
nist among Respondent's employees, testified that when
he returned to work on Monday, February 16, 1981,
after having missed work on Friday, February 13, be-
cause of a knee derangenent impeding ambulation, he
was handed a written reprimand (G.C. Exh. 4(d)) by
Motel Manager Collins. Although Mark concedes he
failed to telephone in on Friday, February 13, to apprise
Respondent he could not come to work, he claims that
another maintenanceman, Charles E. Springer, told him
that he (Springer) had likewise not called in when he
failed to report to work during the preceding week,
without receiving a reprimand. When Mark complained
to Collins about this allegedly disparate treatment, Col-
lins reminded him that he had allegedly been warned
before for tardiness. (According to Collins, on that previ-
ous occasion he had told Mark that a callin was required
in such circumstances.) Called as Respondent's witness,
Springer, its former maintenance supervisor now work-
ing for it as a Social Security annuitant, testified that he
called in when he was absent during the preceding week.
Called as a rebuttal witness by General Counsel, Re-
spondent's desk clerk Susan Callan testified that Springer
did not call in and that when she asked Collins why
Springer was not there on the day in question, Collins
responded that he did not know.
Although I credit Callan's described testimony, it cer-
tainly is possible that Springer may nevertheless have
called in and spoken to somebody other than Callan or
Collins, or that Springer called in after the described
conversation between Callan and Collins.
Since I am neither satisfied that the described repri-
mand meted out to Mark was disparate, unjustified, or
tied to his union activity, I find the allegation in question
not established by preponderating substantial credible
evidence as required.
10 See fns. 5 and 9, supra Based on my comparative testimonial de-
meanor observations, I credit Mark's assertions, in preference to Collins'
denials, that Collins told Mark there would never be a union in the
motel.
5. Imposition of more arduous work
The complaint (C-2, pars. 6(b) and (c)) alleges that, be-
cause of his protected concerted activities, Respondent
"imposed more arduous and less agreeable working con-
ditions" on employee Dennis James Mark "by requiring
him to maintain a daily log sheet reflecting the work he
performs."
According to Mark's testimony, when Manager Col-
lins instructed him to hand in "a daily log sheet of every-
thing you do"-which Collins admits he did, without,
however, in any way indicating this pertained to or in-
cluded Mark's off-duty or nonworking time activities-
Collins preceded this requirement with the statement that
it was being imposed "since [you-i.e., Mark] have so
much time to talk to new employees about the union and
everything."
Again, while there is no significant testimonial factual
conflict regarding this matter, there is, in my view, insuf-
ficient warrant for assuming that the requirement was
imposed in retaliation for or because of Mark's union ac-
tivity. The requirement for merely handing in his log
(which he had all along, as required, anyway been keep-
ing) of the maintenance work performed by Mark did
not encompass his recording off-duty, nonworking time
or breaktime activities, which he remained legally free to
conduct, including union organizing of other employees
on nonworking time, without recording in the log.
Under the circumstances presented, I am unprepared to
conclude that Respondent could not, in the exercise of
its managerial prerogatives, require an employee to hand
in work logsheets he was maintaining-even if it wished
to single him out because it suspected (with apparent
reason, as admitted by Mark at the hearing, in the case
of fellow-employee Debbie Skwarkin, whom he solicited
while he but not she was on breaktime) that he was mis-
conducting himself by engaging in union organizing ac-
tivity during working time. I accordingly find this allega-
tion of the complaint not sustained.
6. Attempt to enlist employee to engage in
espionage on union meetings and discharge of
employee for refusal to do so
The complaint (C-I, pars. 5(c), and 6(a) and (b)) also
alleges that on or about December 17, 1980, Respondent
attempted to enlist an employee to engage in espionage
on its employees' union meetings and discharged the em-
ployee for refusing to do so.
The employee in question was Sandra Lee Paquin,
who was concededly a supervisor (head housekeeper) of
Respondent. The material facts are not in essential dis-
pute. Paquin concedes that she attended union meetings
(which she had the right to do, so long as not acting as
an espionage agent of her employer). Respondent con-
cedes that Paquin acknowledged to it under its question-
ing (which Respondent had the right to do, supra)-after
denying it (untruthfully) at an earlier discussion with her
employer-that she had done so. Respondent concedes
that it insisted that Paquin disclose to it the identities of
its employees observed by Paquin at that meeting or
those meetings. Paquin concedes that she refused to do
so. It is undisputed that it was not until Paquin twice re-
870
HOWARD JOHNSON MOTOR LODGE
fused to "finger" the employees at those meetings-the
second time, when recalled to the interview, by Re-
spondent's attorney and vice president for labor rela-
tions, Callanan, for the express purpose of giving her an-
other opportunity to comply with Respondent's require-
ment that she disclose the names of the other employees
at those meetings-that she was then and there precipita-
tely discharged after her continued refusal to supply that
information.
Then and now contending that it had the absolute
right to require Paquin to disclose the identities of other
employees she had observed at the union meetings, Re-
spondent's position is bottomed on her being a supervisor
and therefore required to demonstrate total "loyalty" to
her employer. While I agree that an employer has the
right to total loyalty from its supervisors, as well as from
all other employees, I cannot agree that loyalty encom-
passes requiring a supervisor to engage or participate in
violation of the Act, or entitlement by the employer to
share in the forbidden fruits of what would have been its
own violation of the Act if directed by it. At no time did
Respondent indicate to Paquin that she was not required
to furnish this information;' on the contrary, Respond-
ent made it plain that her job depended on it. It was only
after Paquin had refused to reveal the names of employ-
ees whom she had observed attending the union meet-
ings, and after she again refused to do so when recalled
to the executive suite for the same purpose, that she was
discharge. The fact that Paquin had not attended the
union meetings at the behest of her employer did not
give her employer the right to insist upon information to
which it was not entitled and which it would clearly
have been unlawful for it to direct Paquin to obtain.
While it is also clear that Respondent could lawfully
have discharged Paquin, as a supervisor, for attending
union meetings,' 2 the fact remains that it did not do so-
it discharged her only after and because she declined to
identify employees (other than herself) whom she ob-
served at those meetings. Under the circumstances, I find
that the true and controlling reason for Respondent's dis-
charge of Paquin was her refusal to identify the employ-
ees she observed attending union meetings-that is, to di-
vulge to Respondent the results of that which it was
lawful for her to do viz, attend union meetings of her
own volition, not for surveillance purposes) but which it
would clearly have been unlawful for Respondent to re-
quire her to do; i.e., to conduct surveillance over a pri-
vate union meeting or meetings of employees on their
own time, as distinguished from while on working
time. t 3 It is also unlawful for an employer to require a
supervisor to divulge such information to the employer
when, as here, gained by a supervisor who voluntarily
and without direction of the employer attends a union
"I Cf., e.g., Johnnie's Poultry Co., 146 NLRB 770, 775 (1964), enforce-
ment denied on other grounds 344 F.2d 617, 619 (8th Cir. 1965); Preston
Products Company, Inc., 158 NLRB 322, 348-351 (1966), enfd. 392 F.2d
801, 809 (D.C. Cir. 1967), cert. denied 392 U.S. 906 (1968); Surprenant
Manufactunng Co. v. N.L.R.B., 341 F.2d 756, 762-763 (6th Cir. 1965)
x' See, e.g., St. Anthony's Center, 227 NLRB 1777, 1787 (1977).
13 Cf Rike's a Division of Federated Department Stores, Inc., 241 NLRB
240, 243 (1979); Emerson Electric Company, 177 NLRB 75, 87 (1969), and
cases cited. But cf. Elm Hill Meats of Owensbora, Inc., 205 NLRB 285
(1973); Cannon Electric Company, 151 NLRB 1465 (1965).
meeting, since the supervisor has the right to attend such
a meeting on his own time for nonsurveillance purposes
(and even to join the union, if admitted to member-
ship).14 To sanction requiring a supervisor to divulge the
identities of other employees observed by him at such a
union meeting would directly interfere with, restrain,
and coerce other employees in the exercise of their Sec-
tion 7 rights,' since it would thereby permit the em-
ployer to acquire confidential organizational information,
concerning its employees' protected concerted activities,
to which the employer is not entitled. Under the circum-
stances, I find that, by requiring Paquin to disclose the
names as indicated and by discharging her because she
declined to divulge them, Respondent violated Section
8(a)(l), but not Section 8(a)(3), of the Act, as alleged in
the complaint. 6 Cf. Russell Stover Candies, Inc. v.
N.L.R.B., 551 F.2d 204 (8th Cir. 1977); N.L.R.B. v. Vail
Manufacturing Company, 158 F.2d 664 (7th Cir. 1947),
cert. denied 331 U.S. 835; Gerry's Cash Markets, Inc.,
d/b/a Gerry's GC.A., 238 NLRB 1141, 1151 (1978), enfd.
602 F.2d 1021 (Ist Cir. 1979); Belcher Towing Company,
238 NLRB 446, 447 (1978), enfd. as modified in other re-
spect 614 F.2d 88 (5th Cir. 1980); Meat Packers Interna-
tional, 225 NLRB 294, 305 (1976); Buddies Super Mar-
kets, 223 NLRB 950 (1976), enforcement denied 550 F.2d
39 (5th Cir. 1977); General Nutrition Center, Inc., 221
NLRB 850 (1975); Donelson Packing Co., Inc. and Riegel
Provision Company, 220 NLRB 1043 (1975); Rohr Indus-
tries, Inc., 220 NLRB 1029, 1035-39 (1975), and cases
cited; The Permian Corporation, 189 NLRB 860, 864
(1971), enfd. 457 F.2d 512 (5th Cir. 1972); I.D. Lowe,
d/b/a Thermo-Rite Mfg. Co. d/b/a Ken-Tool Mfg. Co.,
157 NLRB 310, 322 (1966), enfd. 406 F.2d 1033 (6th Cir.
1969).
7. Discharge of employee for testifying in NLRB
proceeding
It is, finally, alleged (C-l, pars. 6(c) and 9)) that Re-
spondent further violated the Act by discharging an em-
14 This is not to say, as already indicated, that a supervisor may not be
discharged, without being entitled to the Act's protection, for attending
such a meeting or joining the union, since he is not an "employee" within
the Act's definition. See Sec. 2(3) of the Act.
" There is ample evidence, through credited testimony of a number of
employee witnesses, that the employees were aware of what had oc-
curred involving Respondent's attempts to compel Paquin to "finger"
them.
16 Respondent's contention that it is entitled to the information de-
manded of Paquin in order to establish "supervisor taint" of the cards of
other employees at the meeting is unsound. Mere knowledge of who was
present at a union meeting would not establish "supervisory taint." Fur-
thermore, all employees were entitled to voice their preferences--union
or no union-through their secret ballots cast at the subsequent Board-
conducted representation election. Although Respondent's counsel and
vice president for labor relations, who conducted the questioning of and
made the described demands upon Paquin, at no time gave any indication
to her that he had any such motive, and at no time disavowed to its em-
ployees any such supposed role on the part of Paquin, "supervisory
taint" to the extent that such a contention may be available to an em-
ployer (cf., e.g., Leventhal. J., in International Union. United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO
(Aero Corporation) v NPLR.B., 363 F.2d 702, 707-708 (DC. Cir 1966).
cert. denied 385 U.S. 973-may be established in lawful ways, such as
through objections to an election and evidence at a representation case
hearing.
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee for giving testimony in a Board-conducted repre-
sentation case (Case 25-RC-7570) preceding the repre-
sentation election held to determine the union representa-
tional desires of Respondent's South Bend motel employ-
ees.
The employee involved is, again, Paquin, who testified
in that proceeding on November 24, 1980. She testified
at the request of the Union, without subpoena, and com-
pleted her testimony during her lunch hour without miss-
ing any time from work. It is stipulated that Respondent
learned within a few days thereafter about her testify-
ing-not later than November 28, 1981. Respondent of
course denies that Paquin she was discharged for this
reason.
While Section 8(b)(4) of the Act does not require that
testimony before the Board be required or in response to
subpoena, I have difficulty, upon the record presented, in
linking Paquin's testifying on November 24 with her dis-
charge almost a month later, on December 17, particular-
ly when it seems to me quite clear that the propelling,
proximate cause of that discharge was Respondent's irate
refusal on that date to accept her unwillingness to dis-
close the identities of employees she had observed the
union meetings. Furthermore, even were Paquin's dis-
charge to have been in part attributable to her testifying
on November 24-a conclusion I would regard as specu-
lative-a finding to that effect would not alter the
remedy here required by reason of her discharge.
Upon the record as a whole, I find this allegation of
the complaint not established by substantial evidence.
Complaint
Pars.
C-2, pars.
5(a)(ii), 7
&9
C-2, pars.
5(a)(iii), 7
C-2, pars.
5(b), 7, & 9
C-2, pars.
5(c), 7, & 9
C-2, pars.
5(d), 7, & 9
C-2, pars.
6(a)&(c), 8
&9
C-2, pars.
6(b)&(c), 8
&9
Subject & Date(s)
Threatening that no
union would be
permitted (4/22/81)
Interrogation
(4/22/81)
Threatening reprisals
for union activities
(11/80)
Interrogation (3/81-
4/81)
Interrogation (12/80-
3/81)
Reprimand for union
activity (2/16/81)
Imposition of more
arduous work
(4/22/81)
Act Sec(s). Finding
8(a)(1)
8(a)(l)
8(a)(1)
8(a)(l)
8(a)(1)
Found
Found
Not found
Found
Not found
as to
Callan;
found as
to
Ro-
spopo &
Leeper
8(a)(I)&(3) Not found
8(a)(l)&(3) Not found
Upon the foregoing findings and the entire record, I
state the following:
CONCItUSIONS OF LAW
C. Recapitulation of
The following chart recapitulate
ings:
Subject & Date(s)
Interrogation ( 11/21
& 12/17/80)
Proscription of union
button display
(11/80 & 12/80)
Attempt to enlist
employee to
engage in
espionage on union
meetings
(12/17/80)
Discharge of
employee for
refusal to engage in
espionage on union
meetings
(12/17/80)
Discharge of
employee for
testifying at Board-
conducted
Representation case
hearing (12/17/80)
Threatening reprisals
for union activities
(4/22/81)
4indings 1. Jurisdiction is properly asserted here.
2. By engaging in the acts hereinabove found in sec-
s the foregoing find- tion II, of this Decision, Respondent has interfered with,
restrained, and coerced its employees in the exercise of
their rights under Section 7, inviolation of Section
fAc t Sec(s). Finding 8(a)(1), of the Act, and continues to do so.
3. The aforesaid unfair labor practices affect, and each
8(a)(l) Not found of them have affected, and unless permanently restrained
and enjoined will continue to affect, commerce within
8(a)(1) Found the meaning of Section 2(6) and (7) of the Act.
4. It has not been established by substantial credible
evidence, upon the record as a whole, that Respondent
has violated the Act in any respect not found in section
II, supra.
REMEDY
8(a)(1) & Found Respondent should be required to cease and desist
(3) 8(a)(1) from the unfair labor practices found herein, as well as
only from any like or related violation of the Act. Respondent
should also be required to offer Sandra Lee Paquin rein-
statement to her former or, if not available for proper
reason, equivalent employment, and to make her whole
8(a)(1) & Not found for moneys, benefits (including expenses resulting from
(4) canceled hospitalization and other insurance coverages, if
applicable), and seniority lost by reason of her discharge
on December 17, 1980, together with interest, calculated
in the manner explicated in F. W. Woolworth Company,
8(a)(1) Found 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977). Respondent should be required to
Complaint
Pars.
C-l, pars.
5(a), 7&10
C-l, pars.
5(b),7&10
C-1, pars.
5(c),7& 10
C-1, pars.
6(a)&(b), 8
& 10
C-1, pars.
6(a)&(c), 9
& 10
C-2, pars.
5(a)(i), 7 &
9
872
HOWARD JOHNSON MOTOR LODGE
delete from its records references to that discharge. Re-
spondent should be required to open its books to the
Board's agents for compliance determination purposes.
Finally, Respondent should post the usual informational
notice to employees.
As to any violations alleged but not herein found, the
complaints should in those respects be dismissed.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing:
ORDER 1 7
The Respondent, Howard Johnson Motor Lodge,
South Bend Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their or
other employees' membership in, affiliation with, sympa-
thies for, or activities on behalf of any labor organiza-
tion, in violation of Section 8(a)(1) of the National Labor
Relations Act, as amended.
(b) Prohibiting or proscribing the wearing or display
on any article of clothing or belongings of any employ-
ees, of any conventional type union membership, affili-
ation, or sponsorship button, badge or emblem, in viola-
tion of Section 8(a)(1) of the Act.
(c) Threatening reprisal against employees by reason
of union membership or contemplated membership, affili-
ation, sympathy, or activity.
(d) Threatening employees that no union will be per-
mitted by Respondent to represent Respondent's employ-
ees for collective bargaining or other lawful purpose
under said Act.
(e) Enlisting or attempting to enlist any employee or
any supervisor to engage in spying or reporting on em-
ployees' union meetings or other lawful off-premises or
off-duty-time concerted activities protected under said
Act.
(f) Discharging, disciplining, or threatening to dis-
charge or discipline any employee or any supervisor for
refusing to disclose the identities of employees observed
by him or her to attend any union meetings of employees
or to engage in other lawful, off-premises and off-duty-
time concerted activities protected under said Act.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of any of
their rights under Section 7 of said Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Offer to Sandra Lee Paquin immediate, full, and
unconditional reinstatement to her former job with Re-
spondent as chief or head housekeeper at its South Bend,
17 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 which follows herein
shall, as provided in Sec. 102 48 of those 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.
Indiana, motel (or, if not available, a substantially equiva-
lent job there), dismissing, if necessary for that purpose,
any person hired in her place and instead; without preju-
dice to Sandra Lee Paquin's seniority and other rights,
privileges, benefits, wage rates, and emoluments, includ-
ing but not limited to any and all wage and pay scale in-
creases and progressions since her discharge on Decem-
ber 17, 1980; and make her whole for any loss of income
(including overtime, holiday and vacation pay, and reim-
bursement for all hospitalization, surgical, medical, and
other payments or obligations incurred by reason of Re-
spondent's cancellation, withdrawal, or nonpayment of
any applicable insurance coverages or premiums in con-
sequence of said discharge), together with interest, in the
manner set forth in the Remedy section of this Decision.
(b) Expunge from all of Respondent's books, records,
and files any entry or reference indicating or to the
effect that said discharge of Sandra Lee Paquin was be-
cause of any wrongdoing, misconduct, delinquency, dis-
loyalty, dereliction, or fault on her part; and refrain from
so reporting or stating to any employer, prospective em-
ployer, employment agency, employment insurance
office, reference seeker, or character or credit inquiry.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage rate records, overtime records,
records of employees hired, records of jobs held by and
payments made to personnel in its employ, and all work
schedules, personnel records and reports, social security
records, insurance records, and all other records and en-
tries necessary or appropriate to determine the amount
and extent of backpay and other sums and benefits due,
as well as the adjustment of seniority required, under and
the extent of compliance with the terms of this Order.
(d) Post at its motel premises in South Bend, Indiana,
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that as to any alleged viola-
tions set forth in either of the complaints herein and not
here found to have occurred, said allegations are hereby
dismissed.
"' 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"
873