Marriott Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1355 (N.L.R.B. 1980)

MARRIOTT CORPORATION 1 355
Marriott Corporation and Union de Trabajodores de
la Industria Gastronomica de Puerto Rico,
Local 610, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO.
Case 24-CA-4131
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEL.LO, ANt)
TRUESDALE
On June 16, 1980, Administrative Law Judge
Stephen Gross issued the attached Decision in this
proceeding. Thereafter, the General Counsel 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 of the Administrative Law Judge
and to adopt his recommended Order.
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 complaint be, and it hereby
is, dismissed in its entirety.
i The General Counsel 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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing his findings.
DECISION
STATEMENT OF THE CASE
STEPHEN GROSS, Administrative Law Judge: Club
Nautico de San Juan is a yacht club in San Juan, Puerto
Rico. Club Nautico has members, and some of its facili-
ties are available only to its members. But for a while
Club Nautico operated a restaurant and a bar (on the
Club's premises) that were open to the public. It appears
that the restaurant and bar were not profitable for the
Club.
Marriott Corporation (Marriott) is a large U.S. compa-
ny that operates throughout the United States. In Puerto
Rico, Marriott operate Marriott In-Flight Services, by
which Marriott provides airlines with food for service on
board flights departing San Juan. Marriott also operates
251 NLRB No. 180
various restaurants and bars in the terminal building at
the San Juan airport.
In late March 1979, Marriott entered into an arrange-
ment with Club Nautico under which Marriott would
operate the restaurant and bar located in the Club. In
keeping with that arrangement, on March 30, 1979. Club
Nautico shut down its restaurant and bar. All Club Nau-
tico employees assigned to the restaurant and bar were
laid off. (Thirteen or fourteen waiters, bartenders, cooks,
and cleaning personnel were employed at the Club at the
time. Another seven had been laid off a few months ear-
lier.) The layoff was no immediate surprise to Club Nau-
tico's employees. All had been told a week or two earlier
of the arrangement with Marriott and had been advised
by Club Nautico's management that if they wvanted to
continue to work at Club Nautico they shoud apply for
employment with Marriott.
Then, on or about April 4, Marriott began refurbishing
the facilities at Club Nautico. On April 17, 1979, Mar-
riott opened the restaurant and bar to the public under
its management. In the meantime Marriott had hired 16
employees for the restaurant and bar plus two parking
lot attendants. Three of these eighteen had been em-
ployed at those facilities prior to March 31, when they
were operated by the Club itself.' But most of the em-
ployees hired by Marriott did not come from the ex-Club
Nautico staff. (Those three employees, plus one other,
were apparently the only ex-Club Nautico employees to
have ever been offered positions by Marriott.)
The ex-Club Nautico employees were all members of
the Union de Trabajadores de la Industria Gastronomica
de Puerto Rico, Local 610, AFL-CIO (the Union or
Local 610). On April 23, 1979, the Union filed a charge
with the Board's Regional Office in San Juan alleging
that Marriott had failed to hire three ex-Club Nautico
employees because of their membership in, and activities
on behalf of, Local 610. That led to the issuance by the
Board's Regional Director for Region 24, on June 12,
1979, of a complaint alleging violation of Section 8(a)(1)
and (3) of the Act. Two of the ex-Club Nautico employ-
ees referred to in the charge were named as discrimina-
tees in the complaint. Then, on the first day of the hear-
ing, General Counsel moved to amend the complaint so
as to name five more ex-Club Nautico employees as per-
sons whom Marriott had failed to hire by reason of their
membership in Local 610.2 1 granted the motion to
amend the complaint.
Marriott has admitted the jurisdictional allegations of
the complaint, but denies any wrongdoing.
I heard the case on December 12, 13, and 14, in San
Juan. Counsel for the General Counsel presented oral ar-
gument at the close of the hearing. Respondent did not,
but filed a brief. General Counsel did not.
A. The Hiring Process
Samuel Erazo is the general manager of Marriott's bar
and restaurant operations at the San Juan airport termi-
i Persons who had worked at Club Nautico prior to Marriott's take-
over of the restaurant and bar operation will be referred to as "ex-Club
Nautico employees "
2 Certain errors in the transcript are herebh noted and corrected.
MARRIOTT CORPORATION
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nal. Mariott put Erazo in charge of its operations at Club
Nautico. According to Erazo, however, he had little to
do with hiring the staff for Club Nautico. Rather, he del-
egated that task to the assistant manager of Marriott's
San Juan terminal operations, Naida Ortiz de Cande-
laria. 3
According to Erazo and Candelaria, the hiring system
for the staffing of Marriott's Club Nautico operation pro-
ceeded this way. First, Erazo and Candelaria determined
what positions needed to be filled. They, then, decided
on three bartenders, a total of six waiters and waitresses,
three cooks, four utility personnel (the cleaning crew),
and two parking lot attendants. Three of the positions
were filled by transfers of employees working for Mar-
riott at the airport terminal (Erazo handled the transfers).
The 15 remaining positions were filled by new hires (that
is, by persons not previously in Marriott's employ).
As to those positions, Candelaria advised Marriott's
personnel office at the San Juan airport of the Club's
staffing needs. The personnel office had on file consider-
able numbers of job applications-a "bank" of applica-
tions. Someone in the personnel office selected a group
of job applications from that bank, called the applicants
to arrange for them to be interviewed by Candelaria at
Club Nautico, and then sent the applications to Cande-
laria. According to the testimony of Erazo and Cande-
laria, neither knew who in the personnel office selected
the applications to be sent to Candelaria, or how the se-
lection was made. (The only witness associated with the
personnel office to testify was Marriott's personnel and
industrial relations director for Puerto Rico, Florentino
Cruz Falcon, who was called as a witness by the Gener-
al Counsel. Cruz Falcon said that he was working on
other matters during the period in question and dis-
avowed any involvement in the selection process for the
staffing of Marriott's Club Nautico operation. 4) Cande-
laria interviewed about 50 candidates whose applications
had been sent to her by the personnel office.
As for the ex-Club Nautico employees, Marriott made
no special effort to seek applications from them. Several
ex-Club Nautico employees did speak to Candelaria or
Erazo at the Club Nautico facilities about getting a job
with Marriott, got applications forms, and turned the
completed forms in to Candelaria. Other ex-Club Nau-
tico employees went to Marriott's personnel office at the
San Juan airport to get application forms. But whether
the forms were turned in at Club Nautico or at Mar-
riott's personnel office, none were considered by Cande-
laria, according to her testimony and Erazo's, until the
forms had been processed by the personnel office.
B. Who Got Hired
1. Utility personnel
Erazo and Candelaria had determined that Marriott
needed four people to do cleaning work and generally to
3 The complaint alleges and Marriott admits that Erazo and Candelaria
are supervisors for purposes of the Act
I Cruz Falcon testified that he was away from San Juan, from shortly
after March 11, 1979, until June. But that is incorrect. His testimony else-
where, and Candelaria's, shows that he was in San Juan at least through
April I.
help with the refurbishing of Club Nautico during the
period April 4-16, and that the same four should stay on
as dishwashers and the like after the Club opened to the
public.
Two utility positions were filled by persons who were
employed in Marriott's airport terminal operation and
had asked to be transfered to Club Nautico. The record
does not indicate why Marriott determined to permit the
transfers, nor does the record show the date of the two
employees' transfer requests, except that the requests
must have been made prior to April 4, when the two
transferees began work at Club Nautico. (Marriott claims
that one of the reasons the alleged discriminatees were
not hired was that Candelaria had made her selections
prior to the time the discriminatees filed their job appli-
cations. This decision will accordingly specify what the
record shows about hiring dates and dates of applica-
tions.)
The third utility position was filled by an individual
who had applied for another job with Marriott, and had
already been interviewed when Candelaria started look-
ing fbr people to staff Club Nautico. And the fourth po-
sition was filled by an applicant who had some wood-
working experience, a background that Candelaria
thought would be useful during the refurbishing process.
Again, the record fails to show when that individual sub-
mitted an application to Marriott, except that it must
have been prior to April 4.
Except for the woodworking skills of one of the two
newly hired individuals, nothing in the record shows
either: () why Marriott's personnel office decided to
send these applications to Candelaria; or (2) what attri-
butes led Candelaria to make the choices she did.
All four of the utility personnel stayed on at Club
Nautico when its doors were opened to the public. But
subsequently all of the four left, either because they were
fired or because the financial situation at Club Nautico
led Marriott to lay them off.
Two persons who had been employed as dishwashers
at Club Nautico prior to Marriott's takeover sought
work at the Marriott-operated Club Nautico: Tomas
Merced Franco 5 and Catalino Batista.
Merced had been a dishwasher with Club Nautico
since February 1978. He got a job application form from
Marriott in mid-March, and submitted it to Marriott's
personnel office on March 26. According to Candelaria,
the personnel office did not forward Merced's applica-
tion to her. No testimony or documentation shows why
the personnel office felt that Merced's application did
not merit consideration by Candelaria.
When Merced did riot hear from Marriott he sought
out Erazo at Club Nautico on April 9 to ask personally
for a job. Erazo said that no openings were available at
Club Nautico, but Erazo gave Merced his business card
to take to Marriott's personnel office. (Erazo wrote on
the card: "Tomas Merced Franco worked at Nautico as
a dishwasher": G.C. Exh. 6.) When Merced did that,
r Most of the a;rious , iteltsses followed the latin custom of adding
their mother's maiden name after their father's urname In keeping with
a related custom, when this decisilot refers to a; witness by his or her sur-
name. nly the fathers surnlamne will be used
MARRIOTTT CORPORATION 1357
however, he was told that no openings were available
there either. Merced did not hear further from Marriott.
Batista never submitted an application to Marriott. He
was with Merced when Merced spoke to Erazo on April
9, and like Merced was told that no positions were avail-
able at Club Nautico. He too was given a business card
by Erazo on which Erazo referred to Batista's previous
employment and found that the card did not help when
he sought other employment at Marriott.
2. Bartenders
Erazo and Candelaria determined that the Club Nau-
tico staff ought to include three bartenders. Candelaria
interviewed applicants for the positions between April 4
and 9 or 10. Candelaria's standards for choosing appli-
cants are unclear except that, according to Candelaria. it
was important that the applicants have bartending expe-
rience.
The three persons initially chosen by Candelaria were
Juan Santiago Rivera, Esteban Ortiz Irizarry, and Angel
Medina Carmona.
Santiago had been a bartender at Club Nautico before
Marriott's takeover. He applied for work at Marriott on
April 10, and was hired on April II1.
Medina had not been previously employed at Nautico,
but he had bartending experience. The record does not
disclose the date of his application; but he was hired on
April II.
Esteban Ortiz was a waiter-not a bartender-at Club
Nautico before Marriott's takeover. He submitted his ap-
plication to Marriott on April 9, and was hired on April
11.
Candelaria fired Ortiz on April 16, when he failed to
show up for a training program during the weekend of
April 14 and 15. That meant that Candelaria had to hire
another bartender. She chose Reynaldo Flores Mojica.
Flores had not previously worked at Club Nautico, and
had no experience as a bartender. (His background was
as a waiter and maintenance man.)
Except for the fact that Santiago and Medina had bar-
tending experience, the record does not disclose why
Candelaria chose these four over other applicants.
Three persons who had worked in Club Nautico's bar
before Marriott's takeover applied for work with Mar-
riott, but were not hired: Mario Ortiz Astacio, Victor
Velez Otero, and Melida Vazquez Portes.
Mario Ortiz filed his application with Marriott on
April 7, but Marriott's personnel office did not send his
application to Candelaria. Ortiz has never heard from
Marriott. e
Victor Velez, another ex-Club Nautico bartender, tes-
tified that he submitted his application to Marriott on
March 31. I credit that testimony. In response to a Gen-
eral Counsel subpena, however, Marriott looked for but
was unable to find Velez' application. And Candelaria
testified that Velez' application was not forwarded by
the personnel office to her for consideration.
6 Ortiz did not sign his application, and Cruz Falcon testified that hat
precluded his application from being colnsidered b the personnel office
But at least two applicants ho also failed to sign their applications ,erre
given jobs at Club Nautico by Marriott see G C Ehs. 8 and 20 1, ac-
cordingly. do not credit Cruz Falcon's testimon on this point
Finally, Vazquez, a barmaid at Club Nautico prior to
Marriott's takeover, applied for work at Marriott on
April 9. As in Mario Ortiz' case, Marriott's personnel
office did not forward her application to Candelaria and
Vazquez never received a job offer from Marriott.
No witness was able to testify why the personnel
office chose not to send Mario Ortiz's and Melida Vaz-
quez' applications to Candelaria for consideration. As for
Velez, no witness was able to testify whether his applica-
tion was examined by the personnel office and deliberate-
ly not forwarded to Candelaria, or whether it was lost
prior to review by the personnel office.
3. Waiters and waitresses
Erazo and Candelaria decided that the restaurant at
Club Nautico needed six people to wait on tables, and
that they should be divided among waiters and waitress-
es, not just waiters, as had been the case under the previ-
ous Club Nautico operation. According to Candelaria,
because Marriott conducted a training program for the
personnel who would be waiting on tables at Club Nau-
tico, waiters and waitresses did not need any waiting ex-
perience. While Candelaria testified about a criterion she
did not use (experience), she did not say what criteria
she did use.
The following six people were initially hired as waiters
or waitresses at Club Nautico (all were either hired by
Marriott, or were transferred to Club Nautico, on April
11):
Pedro Cordero Colon, waiter at Club Nautico prior
to Marriot's takeover date of application April 10,
1979.
Jose Lopez, waiter at Marriott's airport terminal op-
eration.
Vilma Perez, no experience in restaurant work.
Ivette Torrez Hernandez, no experience in restau-
rant work-applied for office job with Marriott in
March 1979, or perhaps earlier.
Catherine Martinez, little or no experience as a
waitress, previously a cashier at a restaurant, and a
secretary, applied in January 1979, or perhaps earli-
er.
Elia Cortez, no experience, college student.
Three of the waitresses selected by Candelaria left
Club Nautico within a few months. The record is not en-
tirely clear as to who their replacements were or how
they were hired. None of these replacements had previ-
ously worked at Club Nautico.
Apart from Cordero and Esteban Ortiz (who was
hired as a bartender), the ex-Club Nautico employees
who, on the face of it, were eligible for consideration by
Marriott for waiting jobs at Club Nautico were Melida
Vasquez (the barmaid referred to earlier) and Angel
Gonzales Benitez. Gonzales applied for a job with Mar-
riott on April 9. His application was not forwarded to
Candelaria and he was not offered a job with Marriott.7
' G(onzales' application had no signature on it See fn 6 abose
MARRIOTT CORPORATION
1358 I)FCISIONS OF NAIIONAL LAI()R RELATI'ONS O()ARI)
did not send Gonzales' application to Candelaria.
4. Cooks
Candelaria hired three cooks. One of the three, Guil-
lermo Rivera Bonilla, had been a cook at Club Nautico
before Marriott's takeover. He applied for the position
on April 9, 1979. The record shows that another of the
persons hired as a cook, Carlos Rivera Santos, had expe-
rience as a cook (albeit not at Club Nautico) and was
hired sometime prior to April 11. The third cook hired
by Candelaria was Jorge Castro. Candelaria's testimony
indicates that he also was hired sometime prior to April
11. The record tells us nothing else about Castro, apart
from the fact that he had not previously worked at Club
Nautico.
Julio Ortiz Cartagena had been a cook at Club Nau-
tico prior to Marriott's takeover. He applied for work at
Marriott on April 11. His application was not given to
Candelaria and he has not been offered a job by Mar-
riott.
5. Parking lot attendants
Candelaria hired three parking lot attendants. None
had had any prior experience as parking lot attendants,
but according to Candelaria the only qualification
needed was a willingness and ability to handle money.
One of the persons chosen as a parking lot attendant had
applied for work at Marriott back in January. She began
work at Club Nautico for Marriott on April 17. The
second parking lot attendant had applied for work on
April 3. He too began work on April 17. The third park-
ing lot attendant applied for work with Marriott on
April 20. The record does not show when lie began
work at Club Nautico.
Candelaria apparently did not consider any ex-Club
Nautico employees for the parking lot attendant posi-
tions.
C. Alleged Antiunion Statements by Marriott Officials
Erazo, Candelaria and, to a lesser extent, Cruz Falcon,
had numerous conversations with ex-Club Nautico em-
ployees and with the business agent of Local 610. Ac-
cording to most of the testimony of record, all three of
the Marriott officials were polite, sometimes helpful, and
in any case no worse than neutral in their discussions
about possible work at Marriott for ex-Club Nautico em-
ployees, and about representation by Local 610.
Two ex-Club Nautico employees, however, testified
that Erazo told them that their membership in Local 610
precluded them from getting jobs with Marriott. And
one testified that Candelaria said much the same thing.
The two employees who testified about Erazo's anti-
Local 610 statements were Catalino Batista and Tomas
Merced Franco.8 Merced testified that Erazo "said to me
. . .if I was an employee of Club Nautico and that I be-
longed to the Union Gastronomica that he could not hire
me there": Merced went on to testify that he had heard
Erazo say "that same thing to Mr. Batista, that he
couldn't work here because he belongs to a union": Simi-
8 See fn. 5, above.
larly, Batista testified that Erazo said that he would not
give Batista the opportunity to work at Club Nautico
under Marriott "because I had already been an employee
for Club Nautico and that I had belonged to the union":
According to Batista, Erazo told Merced that "he wasn't
going to give him the job opportunity because he was an
employee of Club Nautico and he belonged to Local
610":
Erazo denied having said any such thing to either Ba-
tista or Merced.
Esteban Ortiz was the ex-Club Nautico waiter who
was hired by Candelaria on April 11 to fill a bartender's
slot and then was fired on April 16 for having failed to
show up for the training course that Marriott conducted.
According to Ortiz, on the day he was fired Candelaria
told him that "if some employee was in agreement with
Local 610 . . . they weren't going to be there." Cande-
laria denied saying any such thing.
I credit Erazo and Candelaria, not Batista, Merced, or
Ortiz. As far as Erazo's alleged statement is concerned:
Erazo has far too much experience with unionized em-
ployees to make it likely that he would say any such
thing; Marriott did in fact hire some ex-Club Nautico
employees who were members of Local 610; and, as
noted earlier, the testimony of other ex-Club Nautico
employees shows that Erazo was no worse than neutral
in his dealings with them.
As far as Ortiz' testimony about Candelaria is con-
cerned, again it fails to square with the fact that Marriott
did hire some ex-Club Nautico employees, including
Ortiz. In addition, Ortiz' testimony is necessarily suspect
in that he must have found his dealings with Marriott to
be upsetting-he was hired by Marriott only to be dis-
charged, for cause, 4 days later.
D. Evidence of Marriott's Preference for a Union
Other Than Local 610
The employees working in Marriott's In-Flight and
terminal operations are unionized, albeit not by Local
610. According to Esteban Ortiz, Candelaria told him
that "if she took on an employee (at Club Nautico) . . .
he wasn't going to belong to Local 610. They were
going to belong to the other union they (Marriott) have
over there after 90 days (i.e., a 90-day probationary
period), if they wanted a union." A document Marriott
gave to one of the people it hired for Club Nautico simi-
larly refers to a 90-day probationary period, and calls the
employee's attention to a collective-bargaining agree-
ment.
During the course of the hearing, counsel for the Gen-
eral Counsel appeared to argue that that document and
Ortiz's testimony indicate that Marriott officials had con-
cluded that they wanted the Club Nautico employees to
be represented by the union that represented Marriott's
terminal and In-Flight employees, not Local 610. But as
of the date of the hearing, at least, the Club Nautico em-
ployees were not represented by any union, and the col-
lective-bargaining agreement between Marriott and the
terminal/In-Flight employees union provides for a 30-
day probationary period, not a 90-day period.
---- - -- - - - ___ - -
MARR()IOTT CORPORATION 1359
On brief, Marriott urges that the reference in the doc-
ument in question (G.C. Exh. 24) to a collective-bargain-
ing agreement represents no more than "an error attrib-
utable to time limitations involved in the opening by Re-
spondent of the Club Nautico operation, which error
was subsequently corrected." I agree. And since I do not
credit Ortiz' recollection of his discussion with Cande-
laria, I cannot conclude that there is any probative evi-
dence that Marriott had determined that it wanted its
Club Nautico employees to be represented by a union
other than Local 610.
E. The "86" Evidence
Ten ex-Club Nautico employees filed applications with
Marriott. Four were given jobs (at Club Nautico) by
Marriott. Of the six ex-Club Nautico applicants who did
not get jobs at Marriott, Marriott was unable to locate
one application (Velez'). Of the five remaining applica-
tions, four had the number "86" written at the top. The
applicants who submitted the applications with "86"
written on them had all submitted their applications to
either Candelaria or Erazo at Club Nautico. (Those ap-
plications were theft sent to Marriott's personnel office
for the selection process described earlier.) The remain-
ing applicant-whose application did not have "86" writ-
ten on it (Tomas Merced Franco)-had submitted his ap-
plication directly to the personnel office.
There is no dispute that "86" was written on the appli-
cations while they were in Marriott's hands. And Mar-
riott officials testified that it is not standard procedure
for "86" to be written on applications-that, indeed, the
presence of an "86" on an application form was "unusu-
al." The three Marriott officials to testify (Erazo, Cande-
laria, and Cruz Falcon) said that they did not have any
idea what the number "86" meant or who at Marriott
could have written the number on the applications.
General Counsel called a San Juan bartender, not asso-
ciated with Marriott, Club Nautico, or Local 610, to tes-
tify, as an expert witness, about the meaning of the
number "86." According to the bartender, the term "86"
is well known in the "bar business" and it means "that
when you're '86' you're absolutely not allowed in the es-
tablishment": The witness went on to say that he had
also heard it used in reference to places other than bars.
Marriott opted not to put on any rebuttal testimony.9
The "86" evidence, standing alone, does not necessarily
suggest that Marriott's failure to hire more ex-Club Nau-
tico employees had anything to do with their member-
ship in Local 610. On the other hand, the "86" evidence
does indicate that someone at Marriott decided that the
applications of a group of ex-Club Nautico employees
should not be processed in normal fashion and that, for
some reason, they should not be permitted to work for
Marriott.
9 In view of the nature of the bartender' s testimony about the meaning
of 86," 1 indicated that I would be amenable to ordering a continuance
of the hearing if Marriott needed one in order to develop rebuttal evi-
dence on the 86" issue. As indicated above, however. Marrioll chose to
refrain rom putting on rebuttal testimony on that issue
F. Conclusions and Further Findings o Fact
1. Applicable law
Club Nautico had a collective-bargaining agreement
with Local 610, and all of Club Nautico's rank-and-file
employees were members of Local 610. Under an ar-
rangement with Club Nautico. in early April 1979 Mar-
riott began operating the same facilities that Club Nau-
tico itself had operated up until March 30, 1979. The law
is clear that under these circumstances: (I) if Marriott
had hired a work force for the Club Nautico facilities
that had been made up of the majority of persons who
were previously employees of Club Nautico, Marriott
would have had to have bargained with Local 610 about
the terms and conditions of employment at the Club
Nautico facilities: N.L.R.B. v. Burns International Secu-
rity Services, Inc., 406 U.S. 272 (1972); (2) if Marriott re-
frained from hiring any ex-Club Nautico employee in
order to avoid having a majority of its Club Nautico
work force made up of members of Local 610, Marriott
thereby violated Section 8(a)(l) and (3) of the Act; e.g.,
Karl Kallmann, d/b/a Lovces Barbeque Restaurant No. 62,
Love5s Enterprises, Inc., 245 NLRB No. 17 (1979), Food-
way of El Paso, a Division of Kimbell Food. Inc., 201
NLRB 933, 937 (1973), enfd. 496 F.2d 117 (5th Cir.
1974).
On the other hand, Marriott was not obligated to hire
any ex-Club Nautico employees, either individually or as
a group, so long as the refusal to hire was not based on
discriminatory reasons: see Burns International Security
Services, supra, Howard Johnson Co. v. Detroit Local Joint
Executive Board, Hotel & Restaurant Employees & Bar-
tenders International Union, AFL-CIO, 417 U.S. 249
(1974). In fact, Marriott had no obligation even to con-
tact the ex-Club Nautico employees about the possibility
of work for Marriott at Club Nautico, since it had "no
obligation . . . to initiate the employment relationship":
Vantage Petroleum Corp., 247 NLRB No. 202 (1980).
The issue here is whether Marriott's failure to hire
some or all of the alleged discriminatees was due to a de-
cision on Marriott's part to avoid having to bargain with
Local 610.
2. Marriott's claims about untimely applications
from ex-Club Nautico employees
Merced submitted his job application on March 26,
1979. Marriott appears to argue, on brief, that that was
too early since it was submitted "at a time when Re-
spondent had not even taken possession and control of
the facilities at Club Nautico."' ° But that argument
comes close to frivolousness since several persons that
Marriott hired for its Club Nautico operation submitted
their applications long before Merced did.
As for the other applicants, Marriott argues that they
submitted their job requests too late. There is some va-
lidity to Marriott's claim in that Batista and Julio Ortiz
submitted their applications (or, in Batista's case, made
an oral request) too late to be considered for positions on
the initial staff of Marriott's Club Nautico operation. But
' Br alp 1I)
MARRIOTT CORPORATION I 
1360 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
there was no showing that that was so for Merced, Gon-
zales, Mario Ortiz, Victor Velez, or Melida Vazquez.
And as for the latecomers, Marriott failed to show why
they could not have been hired to replace those many
members of Marriott's initial Club Nautico staff, who left
after a few weeks or months.
3. The case against Marriott
The weight of the evidence indicates that: (1) Marriott
determined not to hire at least four ex-Club Nautico em-
ployees for reasons, or via procedures, different from
those Marriott ordinarily applied in considering job ap-
plications; and (2) Marriott officials sought to suppress at
least some of the facts associated with Marriott's failure
to hire additional ex-Club Nautico employees.
To begin with, there is the "86" evidence. As dis-
cussed earlier, it indicates that someone at Marriott de-
cided that the applications of at least four ex-Club Nau-
tico employees should not be processed in normal fash-
ion, and should be rejected.
Second, I think Erazo and Candelaria deliberately
failed to tell the whole truth. Neither Candelaria nor
Erazo were newcomers to Marriott. Both held important
positions in Marriott's San Juan operation and together
they were responsible for running the new Club Nautico
operation for Marriott. Yet according to Candelaria and
Erazo, neither knew nor took the trouble to find out:
who in the personnel office made the initial selections of
the candidates to be considered for staffing the Club
Nautico operation; or what standards the personnel
office used in that selection process; or how the person-
nel office implemented these standards in selecting appli-
cations. That simply does not square with the way things
work. My sense is that both Erazo and Candelaria knew
full well precisely how the personnel office went about
its task of sending some applications to Candelaria and
rejecting others, and that they used a professed lack of
knowledge about the process to cover something they
did not want made known.
Third, Cruz Falcon's disclaimer of knowledge about
employee selection for the Club Nautico operation did
not ring true.
Fourth, Marriott did not call as a witness anyone to
testify about how the personnel office did select applica-
tions to forward to Candelaria. This occurred in a setting
in which: (1) the basic issue in the case was why Mar-
riott chose some applications and not others; and (2) the
only other Marriott witnesses to testify said that they did
not know how the personnel office made its selections.
Fifth, it is inconceivable that Marriott officials did not
focus on the fact that Club Nautico had a staff prior to
Marriott's arrival on the scene, and that some decision
was needed about what treatment to accord applictions
from the members of that staff. Yet the record is without
any indication of what that decision was.
Sixth, the record not only fails to disclose how the
personnel office selected candidates, it also fails to indi-
cate how Candelaria selected from among those candi-
dates. Candelaria testified at length, but with very limit-
ed exception, she did not say exactly why she picked the
people she did. And in respect to bartenders, she did not
apply a standard she said she did apply (the need for bar-
tending experience).
But for all of that, I cannot conclude that the General
Counsel proved that Marriott violated the Act in any re-
spect.
All of the considerations listed above are, of course,
consistent with the possibility that Marriott refused to
hire some ex-Club Nautico employees because of their
membership in Local 610. But there might well be other
reasons why Marriott would (a) not want to hire ex-Club
Nautico employees, and (b) want to avoid making those
reasons known. And, since I do not credit the testimony
of Merced, Batista, and Esteban Ortiz regarding anti-
Local 610 statements by Candelaria and Erazo, nothing
in the record permits the drawing of an inference that
the failure to hire Local 610 members stemmed from a
Local 610 animus on Marriott's part, or from some more
generalized antiunion attitude.
For one thing, Marriott did hire four Local 610 mem-
bers. For another, there is nothing in the record that sug-
gests that the ex-Club Nautico employees it did hire
were less active in union matters than the ex-Club Nau-
tico employees Marriott did not hire. Thirdly, there was
no showing that Marriott would have had any reason to
consider that Local 610 would have been difficult to deal
with (had Local 610 represented the majority of Mar-
riott's staff at Club Nautico).
Fourthly, there was no showing that Marriott had any
general antiunion disposition. 12
In sum, this is not a case in which "the surrounding
facts tend to reinforce" an inference that the motive that
the employer seeks to conceal is one prohibited by the
Act: Best Products Company, Inc., 236 NLRB 1024, 1025
(1978), quoting Shattuck Denn Mining Corporation (Iron
King Branch), v. N.L.R.B., 362 F.2d 466, 470 (9th Cir.
1966).
For these reasons, my conclusion is that the General
Counsel has not shown that Marriott violated the Act.
CONCI.USIONS OF LAW
1. Marriott Corporation is an employer, and Local 610
is a labor organization, within the meaning of Section
2(2) and 2(5) of the Act, respectively.
2. There has been no showing that Marriott: (a) dis-
couraged membership in Local 610 or in any other labor
organization by discrimination in regard to hire or tenure
II Compare Shattuck Denn iMining Corporation (Iron King Branch), 151
NLRB 1328, 1335-37 (1965), enfd. 362 F.2d 466 (9th Cir. 1966), in which
the employer's failure to give a reasonable explanation for "a long-term
and competent" employee's discharge occurred in a case in which the
evidence showed that at the time of the discharge a newly certified union
was pursuing "its recently acquired bargaining rights with vigor": 151
NLRB at 1335, 1336.
12 On May 14. 1980. the Board affirmed Administrative Law Judge
David S. Davidson's January 7, 1980, Decision, in which he found that
Marriott's In-Flight Services )ivision violated Sec. 8(a) 1) and (3) of the
Act at the Division's Tampa facility: 249 NLRB 496. I have not taken
that decision into account here in evaluating Marriott's attitude toward
unionization since: (a) the issue was not litigated: (b) the acts at issue in
Administrative Law Judge Davidson's Decision occurred in Tampa, not
San Juan; (cl even in Tampa, Marriott did not demonstrate a "general
disregard for its employees' rights" (see ickmorr oods, Inc.. 242 NLRB
1357 (1979)).
MARRIOTT CORPORATION 1361
of employment or any term or condition of employment,
or (b) interfered with, restrained, or coerced employees
in the exercise of the rights guaranteed in Section 7 of
the Act, or (c) otherwise violated the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
13 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
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER '3
The complaint is dismissed in its entirety.
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