Lavan Hotel Corp. d/b/a Hotel Lafayette

National Labor Relations Board - Board Decisions

May 26, 1982

261 N.L.R.B. 1066 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS 1BO()ARD
Lavan Hotel Corp. d/b/a Hotel Lafayette and
Painters District Council No. 4 and Eugene Ed-
wards. Cases 3-CA-10041 and 3-CA-10050
May 26, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On December 28, 1981, Administrative Law
Judge Michael O. Miller issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
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, Lavan Hotel
Corp. d/b/a Hotel Lafayette, Buffalo, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in said recommended
Order, except the attached notice is substituted for
that of the Administrative Law Judge.
I 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 usthat the resolutions are incorrect Standard Dry Wall Producl.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
We have further considered Respondent's contention that the Administra-
tive Law Judge's findings of fact evidence bias. We have considered the
record and the attached Decision and reject this allegation.
In the absence of an exception thereto, we adopt, pro forma, the Ad-
ministrative Law Judge's finding that Respondent did not violate Sec
8(a)(3) and (1) of the Act by refusing to pay employee Edwards the pre-
scribed wage rate for painters under the labor agreement.
Member Jenkins does not agree with the Administrative l.aw Judge
that Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980),
is applicable in cases in which the asserted reason for the discharge is
pretextual
2 Member Jenkins would provide interest on backpay required herein
in accordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
261 NLRB No. 163
APPENDIX
NOTICE To EMPLOYEES
POSEI)D BY ORDER OF THE
NATIIONAI. LABOR RE IATIONS 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 repre-
sentatives of their own choice
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 Witl. NOT grant our employees wage in-
creases in order to discourage them from seek-
ing union membership or engaging in other
union activities.
WE WILL NOT layoff or discharge our em-
ployees because of their membership in or sup-
port for Painters District Council No. 4, or
any other union.
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 under Section 7 of the National Labor
Relations Act, as amended.
WE WILL offer Eugene Edwards immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges previ-
ously enjoyed, and WE WILL make him whole
for any loss of wages or other benefits he may
have suffered as a result of our discrimination
against him, plus interest.
LAVAN HOTEL CORP., D/B/A HOTEL
LAFAYETTE
DECISION
STATEMENT OF THE CASE
MICHAEI. . MILL.ER, Administrative Law Judge: This
case was heard in Buffalo, New York, on August 26,
1981, pursuant to unfair labor practice charges filed by
Painters District Council No. 4, herein called the Union,
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HOTEL LAFAYETTE
on October 9, 1980 (Case 3-CA-10041), and Eugene Ed-
wards on October 15, 1980 (Case 3-CA-10050), and an
order consolidating cases, complaint, and notice of hear-
ing issued on behalf of the General Counsel of the Na-
tional Labor Relations Board, herein called the Board,
by the Regional Director for Region 3 of the Board on
November 19, 1980. The complaint alleges that Lavan
Hotel Corp. d/b/a Hotel Lafayette, herein called Re-
spondent, violated Section 8(a)(1) and (3) of the National
Labor Relations Act, herein called the Act, by granting
Edwards a wage increase in order to dissuade him from
joining the Union, refusing to pay him the wage rate re-
quired by the prevailing collective-bargaining agreement,
and discharging him because he had joined the Union.
Respondent's timely filed answer denied the substantive
allegations of the complaint.
All parties were afforded full opportunity to appear, to
examine and to cross-examine witnesses, and to argue
orally. The General Counsel and Respondent have filed
briefs which have been carefully considered. Based upon
the entire record, including my observation of the wit-
nesses and their demeanor, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINFSS AND) Hiti UNION'S L.ABOR
ORGANIZAI tON STATUS-PREI IMINARY
CONCI.USIONS OF L AW
Respondent is a New York corporation engaged in the
operation of a hotel, providing residential and nonresi-
dential rental of rooms for lodging, and restaurant and
related services in Buffalo, New York. Jurisdiction is not
in dispute. The General Counsel's complaint alleges, and
Respondent admits, that Respondent annually receives
gross revenues in excess of $500,000 and annually re-
ceives goods and supplies valued in excess of $50,000
which are shipped to it directly from States of the
United States other than the State of New York. The
complaint alleges, Respondent admits, and I find and
conclude that Respondent is and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is and has been at all times
material herein a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR L.ABOR PRACTICES
A. Background
In October 1978 Mrs. Nguyen Hung, the residential
vice president of Lavan Hotel Corporation, executed, on
Respondent's behalf, a collective-bargaining agreement
with the Maintenance Painters Union (AFL-CIO) Local
#1581, affiliated with Painters District Council No. 4 of
Buffalo and Vicinity, Brotherhood of Painters, Decora-
tors & Paperhangers of America AFL-CIO. That con-
tract provided for the Union's recognition as exclusive
bargaining representative of Respondent's "maintenance
employees . . . in the classifications of wallwasher and
maintenance painter." It further provided that all em-
ployees in those classifications would become and remain
members of the Union on the 31st day following their
employment. The contract, which is still in effect, pre-
scribed a wage rate, effective as of March 1, 1980, of
$5.50 per hour for painters.
B. Eugene Edwards' Employment
Eugene Edwards applied for work at Respondent's
hotel about July 30, 1980.' He was interviewed by Hung
and filled out an employment application 2 According to
Edwards, when he was hired he was told that he would
be renovating the sixth floor, plastering ceilings and
sidewalls, painting ceilings and trim, and hanging wall-
paper. It was, he said, made perfectly clear to him that,
if his work were satisfactory, he could join the Union
after 30 days of employment. As Mrs. Hung recalls the
employment interview, there was no discussion of the
Union, its contract, or the acquisition of union member-
ship. Edwards, she said, was hired as a "handyman, hou-
seman" to do such general work as cleaning around the
hotel. She denied that he was hired as a union painter.
On the application, Edwards had written, to describe the
employment he desired, "handynan." Edwards said that
Hung instructed him to use that description, and she
claimes that Edwards had initiated the use of that term.
Handyman is not a recognized job category in Respond-
ent's hotel. Edwards was not a member of any labor
union at the time that he was hired.
C. Edwards' Work
For about 6 weeks following the start of his employ-
ment, according to Edwards, he worked on the sixth
floor with Joseph Thomas, a member of the Painters
Union and its steward, doing papering, plastering, and
painting. In fact, he testified, since Thomas was an elder-
ly man in poor health, Edwards did most of the painting,
plastering, and papering work. Later in his employment,
he also replastered the wall in the hotel bar. He denied
doing any sweeping other than to clean up after the
painting and plastering. He did not mop, clean rooms, or
polish brass. Neither did he do any electrical or plumb-
ing work. On some occasions, toward the end of his em-
ployment, Edwards waxed and buffed the lobby floors.
However, for this he was paid separately, as a subcon-
tractor. On one occasion, together with a number of
other hotel employees, he pitched in to move material
from the ballroom.
Hung did not directly supervise Edwards; his supervi-
sor was the hotel manager, either Lotario or Luan. Hung
acknowledged that Edwards worked with Thomas, the
painter, and helped him but denied that she ever saw Ed-
wards working with a paint brush. She claimed to have
seen Edwards everyday but not to have observed his
work on a day-to-day basis. She could not dispute Ed-
wards' testimony that he had plastered the wall in the
hotel's bar.
I All dates hereinafter are 1980 unless otherwise specified
2 Edwards was reasonably certain but not absolutely positive that the
hotel's manager, a Mr ILuan, was present at his interview Hung testified,
without contradiction, that the manager at the time of Edwards' inter-
view was a Mr I otario and that Luan was not hired until September
Neither I.lrario nir Luan 1tc.ified herein
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joe Thomas, who left the hotel's employ for reasons
of ill health, was not called as a witness in this proceed-
ing.
D. Edwards' Ehffort 7b Join the Union
About September 6, Edwards had a conversation with
Hung and Luan. He asked them whether he had com-
pleted his 30-day probationary period satisfactorily and
what they were going to do about his pay scale. As Ed-
wards testified, Hung told him: "There is really not
reason enough to go to the Union, and we really can't
afford it because the hotel is in a financial strain, but we
could afford to pay you a dollar more." Hung recalled
Edwards coming to her with a request for a raise, threat-
ening to quit if his pay was not increased. After discuss-
ing the request with Luan, she said, it was agreed that
Edwards' pay would be increased $1 per hour. Mrs.
Hung denied that there was any discussion of the Union
at that time and further denied telling Edwards that it
was not necessary for him to join the Union.
According to Edwards, after about 5 weeks of em-
ployment he began to talk to Thomas about getting into
the Union. On one occasion, according to his uncontra-
dicted testimony, he overheard Thomas telling Hung of
his desire to acquire union membership. Seeing no prog-
ress in his efforts to secure membership by dealing
through Thomas, Edwards went to the Union's office
after work on October 8. He spoke to Michael Wolford,
the Union's business manager, about acquiring member-
ship and submitted an application.
E. Edwards' Termination
When Edwards returned to work on October 9, he
told Hung that he was now a "full-fledged member of
the Painters Union." She did not reply.3 At about 3:30
p.m., Luan took Edwards from the sixth floor to his
office and told him that he was being laid off due to a
lack of work, that the hotel could not afford to employ
two painters, that his work really was not satisfactory,
and that Luan did not particularly care for his attitude.
Edwards was told that he should be grateful, work
harder, and show more allegiance. His work, Luan said,
was not up to management's standards. At the conclusion
of this meeting, Edwards was told that he would have to
take a job as houseman or be laid off. Luan told him to
take the next day off to think about his decision. Ed-
wards did not return for the lower-paid position.4
In mid-October Edwards, Thomas, and Wolford met
with Luan and Hung. Respondent refused to continue
Edwards' employment as a painter under the terms of
the union contract but offered him the houseman's essen-
tially janitorial job.
According to Edwards, prior to his termination there
had been only praise and no criticism of his work. When
Edwards and Wolford met with management following
his termination, Thomas had told Wolford that Edwards'
work was good. Edwards further testified, without con-
tradiction, that, in late September or early October, Luan
s This testimony is uncontradicted.
4 Hung testified that the contractual wage rate for housemen was $3.55
per hour.
had told him that Respondent contemplated renovating
the entire hotel. Luan asked Edwards how much paper
he could hang in a hour and "approximately how much
[he] would have to have to do the job," and said that he
would hire a helper when they could proceed.
F. Analysis
While there exists a substantial conflict in the testimo-
nies of Edwards and Hung as to the terms under which
Edwards was initially hired, the probative evidence es-
tablishes that, in fact, he worked as a painter, plasterer,
and paperhanger throughout his brief tenure. Whatever
other work he did was incidental to his painting duties
or was separately compensated. Edwards so testified and
no one who supervised or worked with him on any regu-
lar basis was offered to contradict that testimony. Hung's
observations of him were too sporadic and of too short
duration to warrant the drawing of any contrary conclu-
sion. It is the work which an employee performs, not his
job title classification, which determines his unit place-
ment. See, for example, Sears, Roebuck and Co., 222
NLRB 476 (1976).
The probative evidence further establishes that when
Edwards sought to exercise his contractual right (and
indeed to fulfill his contractual obligation) as a painter to
acquire membership in the Painter's Union, he was of-
fered an unacceptable alternative and terminated. Thus,
while there had been no objection to his work or his atti-
tude prior to October 9, he was told that both were un-
acceptable immediately after he announced that he had
taken steps to acquire union membership. Management's
haste to find fault with him once he acquired standing in
the Union, compared with its acceptance of his work and
attitude prior thereto, including its compliments of him
and its implied promise of substantial continuing work
(all uncontradicted) belies any contention that he was
terminated for faulty work or because the work he had
been doing had run out. See Highlift Equipment Co., a
Division of Highway Equipment Company, 224 NLRB 918
(1976).
The result remains the same whether the facts herein
are viewed as a "pretext" case or as a case involving al-
leged dual motivation. See Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980). Edwards'
union activity, the animus revealed in Luan's references
to his attitude, allegiance, and gratitude, and the precipi-
tate nature of his termination establish a strong prima
facie case. Respondent offered nothing save a claim that
he had been hired as a handyman rather than as a painter
to rebut that prima facie case. Accordingly, I must con-
clude that Eugene Edwards was offered employment in
an unacceptable lower-paying position and was terminat-
ed because he sought to exercise his contractual right
and obligation to acquire union membership, in violation
of Section 8(a)(3) and (1) of the Act.
Similarly, I must credit Edwards' testimony regarding
the September 6 request for a wage increase and con-
clude that Respondent granted Edwards a $1-per-hour
wage increase in order to dissuade him from joining the
Union and seeking the full contractual wage rate. In
reaching this conclusion I have considered, in addition to
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HOTEL LAFAYETTE
the demeanor of the witnesses, the fact that Edwards' re-
quest came at the appropriate time, very shortly after he
had completed 30 days of employment. I have also noted
that Respondent granted him a very substantial raise,
amounting to nearly a third of his hourly wage. Such a
large increase was inconsistent with Respondent's con-
tention that Edwards was merely a utility employee, like
a houseman, where the contractual wage rate for house-
man was only $3.55 per hour. The logical explanation for
an increase of this size is that Respondent knew Edwards
was entitled to more and hoped to dissuade him from
seeking the full extent of the increase to which he was
entitled.
The General Counsel further alleges that Respondent
refused to pay Edwards the contractual rate to which he
was entitled because of his union activities or in order to
discourage employees from engaging in such activities, in
violation of Section 8(a)(3) and (1) of the Act. This re-
fusal may have been a breach or a uniltateral change of
that contract, but I fail to see how it could constitute a
violation of the Act as interference or discrimination in
the manner alleged in the complaint. Accordingly, I shall
recommend that this allegation be dismissed.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(l) and
(3) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Eugene Edwards, Respondent shall offer him
immediate and full reinstatement to his former or a sub-
stantially equivalent position without prejudice to his se-
niority or other rights and privileges and shall make him
whole for any loss of pay he may have suffered as a
result of the discrimination against him. Any backpay
found to be due shall be computed in accordance with
the formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). 5
CONCI.USIONS OF LAW
1. By offering employees wage increases in order to
dissuade them from joining the Union, Respondent has
interfered with, restrained, and coerced its employees in
the exercise of their statutory rights and has thereby vio-
lated Section 8(a)(1) of the Act.
2. By discharging Eugene Edwards because of his
union activities, membership, and support, Respondent
has discriminated against him in regard to hire and
tenure of his employment in violation of Section 8(a)(3)
and (1) of the Act.
3. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
4. Respondent has not engaged in any other unfair
labor practices not specifically found herein.
See, generally, Ins Plumbing d Heating Co., 138 NLRB 716 (1962).
5. Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I make the following recommended:
ORDER 6
The Respondent, Lavan Hotel Corp. d/b/a Hotel La-
fayette, Buffalo, New York, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Granting employees wage increases in order to dis-
courage them from joining the Union or engaging in
other union activities.
(b) Discriminatorily laying off or discharging employ-
ees because of their union membership, activity, or sup-
port.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Eugene Edwards immediate and full rein-
statement to his former job or, if that is not possible, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings 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) Post at its place of business in Buffalo, New York,
copies of the attached notice marked "Appendix. " 7
Copies of said notices, on forms provided by the Region-
al Director for Region 3, after being duly signed by Re-
spondent's 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 cus-
tomarily posted. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all pay-
roll records, social security records, timecards, personnel
records and reports, and all other records necessary to
determine the amount of backpay due under the terms of
this Order.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
6 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 find-
ings, 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 pu.poses.
7 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."
1069