Parc Fifty One Associates

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 1002 (N.L.R.B. 1992)

1002
306 NLRB No. 206
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has impliedly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
2 All dates refer to 1990.
3 April 13 memoranda by Schaefer and Reijmers describe
Rodriguez’ insubordinate conduct at the meeting and his being or-
dered off the premises because of his conduct.
Parc Fifty One Associates, d/b/a Parc Fifty One
Hotel and Jose Rodriguez. Case 2–CA–24310
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 30, 1991, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondent filed cross-exceptions and a
supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt his recommended Order for the
reasons set forth below.
1. The judge found that Personnel Manager Schaefer
violated Section 8(a)(1) by telling security guard Car-
mine Feola on April 12, 1990,2 to inform security
guard Jose Rodriguez that such ‘‘vote for the Union’’
comments as Rodriguez had just made to unit em-
ployee Rogers would lead to Rodriguez’ termination.
The judge noted that the Respondent and the Union
had entered into a preelection neutrality agreement, in
which the Respondent agreed inter alia not to express
any opinion for or against the Union. He concluded
that although such neutrality agreements may be com-
mendable they cannot negate employees’ exercise of
their Section 7 rights; and it is immaterial whether the
employees exercising those rights are in or out of the
unit sought. Thus, Schaefer’s threat to discharge
Rodriguez, a guard but nevertheless an employee, for
purportedly breaching the neutrality agreement, unlaw-
fully interfered with Rodriguez’ Section 7 rights, in
violation of Section 8(a)(1).
2. The judge dismissed 8(a)(3) and (1) allegations
arising out of General Manager Gaumert’s discharge of
Rodriguez on April 12 for the asserted reason that
Rodriguez’ above-quoted statement to Rogers violated
the neutrality agreement. The judge found, based on
credited testimony, that a few minutes before
Rodriguez’ actual discharge Schaefer and Resident
Manager Reijmers each independently had decided to
discharge Rodriguez for his insubordinate conduct un-
related to any Section 7 activity. Thus, he found that,
notwithstanding Gaumert’s asserted unlawful reason,
Rodriguez would have been discharged even without
his protected activity. The General Counsel has ex-
cepted to these findings. We affirm.
On April 9 Reijmers mailed to Rodriguez a letter
which included a final disciplinary warning. The April
9 letter followed a number of separate incidents in-
volving Rodriguez’ open disregard for managerial au-
thority. Thus, on March 28, Rodriguez left his security
post to take a break after being instructed not to do so
by the night manager. Reijmers and Schaefer orally
warned Rodriguez on March 30 that further violations
would be grounds for disciplinary action. A few days
later, Rodriguez appended the following signed note to
Reijmers’ posted memo describing proper telephone et-
iquette for security guards: ‘‘[P]LEASE REMEMBER
THAT THIS INSTRUCTIONS [sic] ARE VERY IM-
PORTANT TO MR. REIJMERS. SECURITY TASKS
ARE SECONDARY.’’ When Reijmers saw the nota-
tion he became outraged and upset, discussed the inci-
dent with Schaefer, and wrote to Rodriguez on April
9, as follows:
Following your signed message notifying your
colleagues of your disregard for the requests of
senior management, you are issued with this final
warning for misconduct and insubordination.
Should there be further reports of this or similar
types of behavior, you will bring upon yourself
more severe disciplinary action which may in-
clude suspension or termination.
On April 12, while at home on vacation, Rodriguez
received the April 9 letter. He immediately telephoned
Reijmers for an explanation and was invited by the lat-
ter to meet with him that day. At the April 12 meeting
with Reijmers, which was also attended by Schaefer
and two other security guards, Rodriguez waved the
letter in Reijmers’ face while loudly demanding an ex-
planation for the final warning and denying that he had
received any prior discipline. He demanded that
Reijmers define misconduct and insubordination; and
while again waving the letter at Reijmers, he stated,
‘‘Man, you are stupid.’’ At that point Schaefer termi-
nated the meeting and instructed the two security
guards to escort Rodriguez out of the facility.3 Both
Schaefer and Reijmers, according to their credited tes-
timony, decided at that time that Rodriguez had to be
terminated, although their testimony acknowledges that
neither told the other of his or her decision.
Immediately thereafter, Schaefer and Reijmers met
Gaumert on their way to a meeting at which the neu-
trality agreement was to be explained to the security
1003PARC FIFTY ONE HOTEL
4 Wright Line, 251 NLRB 1083 (1980).
5 Although it was Schaefer who gave the order to have Rodriguez
removed, Reijmers, by not objecting, signaled his approval of that
order.
6 We disavow the judge’s finding that the execution of a settlement
agreement by the Respondent’s predecessor in an earlier unfair labor
practice proceeding evidences the Respondent’s lack of union ani-
mus.
guards. Schaefer told Gaumert about Rodriguez’ ‘‘vote
for the Union’’ remark but not about his insubordinate
conduct to Reijmers. A few moments later, Gaumert
saw Rodriguez and escorted him outside the building
where, in the presence of Schaefer and Reijmers, he
discharged Rodriguez for violating the neutrality agree-
ment.
As noted previously, the judge found that despite
Gaumert’s expressed reason for discharging Rodriguez,
the prior decisions of Schaefer and Reijmers to dis-
charge him for insubordinate conduct met the Re-
spondent’s Wright Line4 burden by proving that
Rodriguez would have been discharged in any event
for reasons unrelated to his Section 7 activity.
The General Counsel’s exceptions argue that Wright
Line is applicable only to dual-motive cases in which
there is evidence of both a lawful and an unlawful rea-
son for the discharge at the time of the discharge. The
General Counsel contends that Gaumert’s explicit
statement to Rodriguez reveals that the one and only
reason for discharging him was his violation of the
neutrality agreement. The General Counsel asserts that
there is no evidentiary basis for concluding that
Rodriguez would have been discharged even in the ab-
sence of his protected activity, because the evidence
shows that prior to the discharge Gaumert was in-
formed about Rodriguez’ remark to Rogers but not
about his insubordinate conduct in the meeting. Fur-
thermore, Schaefer and Reijmers neither revealed their
personal decisions to discharge Rodriguez to one an-
other, nor issued a written termination notice to him–
an omission which was contrary to the Respondent’s
established disciplinary policy. Thus, the General
Counsel contends the judge’s dismissal is predicated
on mere speculation that the Respondent would have
lawfully discharged Rodriguez sometime after his dis-
charge by Gaumert.
Contrary to the General Counsel, we conclude that
this is a case of dual motivation insofar as the credited
testimony of Schaefer and Reijmers establish that there
was an actual, lawful decision to terminate Rodriguez
for insubordination unrelated to Section 7 activity prior
to the time of his discharge. Accordingly, this is not
a case of post hoc rationalization, as the General
Counsel suggests.
There is ample evidence lending support, as well as
plausibility, to the judge’s finding that Schaefer and
Reijmers made a prior decision to discharge Rodriguez
for insubordination. Thus, evidence of the following
provides a concrete evidentiary basis for Schaefer’s
and Reijmers’ claims that each of them at that time
made the decision to discharge him: Rodriguez’ pattern
of open, insolent conduct towards management, includ-
ing his insulting behavior at the April 12 meeting to-
wards Reijmers in front of fellow employees even
while protesting a final disciplinary warning; the Re-
spondent’s documented, unsuccessful attempts to re-
strain Rodriguez; and Schaefer’s instantaneous action
of terminating the meeting and having Rodriguez re-
moved from the premises on his calling Reijmers stu-
pid. Before either Schaefer or Reijmers could act on
the decision, however, or even apprise their superior,
Gaumert, of Rodriguez’ insubordinate conduct, and
their consequent discharge decisions, Gaumert abruptly
intervened to discharge Rodriguez for violating the
neutrality agreement. Hence, Gaumert’s precipitate dis-
charge of Rodriguez explains their failure to terminate
Rodriguez, rather than negating the fact that they, inde-
pendent of any decision and action of Gaumert, and
independently of each other, had already decided to
discharge Rodriguez for insubordination.
Nor is there reason to doubt that they would have
discharged Rodriguez had Gaumert not done so. Their
action in ordering Rodriguez ushered off the premises
before Gaumert intervened,5 indicates that they had in-
formally set the discharge process in motion; and the
reason that they did not thereafter initiate the formal
procedures of that process is readily apparent. Once
Gaumert had acted, no purpose would have been
served for Schaefer or Reijmers to commence such dis-
charge procedures against Rodriguez, let alone inform
him of their respective decisions to discharge him.
Consequently, the fact that Schaefer’s and Reijmers’
lawful discharge decisions were never implemented
does not detract from the judge’s finding that those de-
cisions had been made and had come into existence
before Gaumert discharged Rodriguez. Thus, under
Wright Line, the fact of those previous discharge deci-
sions, unrelated as they were to Rodriguez’ protected
activity, is sufficient to rebut the prima facie case that
was established by the unlawful reason asserted by
Gaumert. We accordingly adopt the judge’s dismissal
of the unlawful discharge allegations.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Parc Fifty One Associates,
d/b/a Parc Fifty One Hotel, New York, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates referred to relate to the year
1990.
Laura Sacks, Esq., for the General Counsel.
Dorothy Rosensweig, Esq. and Thomas Bianco, Esq. (Kauf-
man, Naness, Schneider and Rosensweig, P.C.), for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on July 15 and 16, 1991, in New York,
New York. The complaint and notice of hearing, which
issued on June 20, 1990,1 and was based on an unfair labor
practice charge filed on April 17 by Jose Rodriguez, an indi-
vidual, alleges that Parc Fifty One Associates, d/b/a Parc
Fifty One Hotel (the Respondent) discharged Rodriguez on
or about April 12, in retaliation for his activities on behalf
of Local 6, Hotel Employees and Restaurant Employees
Union, AFL–CIO (the Union), in violation of Section 8(a)(1)
and (3) of the Act. During the hearing, counsel for the Gen-
eral Counsel amended the complaint to also allege that Re-
spondent, by Lorraine Beatty Schaefer, its director of human
resources, advised its employees that fellow employees who
support the Union would be discharged, in violation of Sec-
tion 8(a)(1) of the Act.
On the entire record, including the briefs received and my
observation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with its facility lo-
cated in New York, New York, is engaged in the operation
of a hotel providing food and lodging to the public. Annually
Respondent derives gross revenue in excess of $500,000 and
purchases and receives at its facility goods and supplies val-
ued in excess of $5000 directly from firms located outside
the State of New York. Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union, a con-
stituent of the New York Hotel and Motel Trades Council,
AFL–CIO (the Council), is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE FACTS
The facility involved is a large hotel located in midtown
Manhattan. Rodriguez was employed there as a security
guard from October 1988 until April 12, 1989, when he was
terminated. He worked the 11 p.m to 7 a.m. shift.
On July 27, 1989, the Council filed a petition to represent
all Respondent’s employees at the facility, excluding guards
and supervisory and managerial employees. On April 9, the
parties entered into an election agreement specifying the unit
(security employees were excluded) and providing that the
election would be conducted on April 19. The Regional Di-
rector approved this agreement. In addition, on April 9, the
Council and Respondent executed a ‘‘neutrality agreement.’’
This agreement provided that the Union would be permitted
to use Respondent’s employees’ cafeteria during certain
hours to speak to the employees. The agreement also states:
The Hotel specifically agrees that its supervisory em-
ployees, agents and/or representatives will not act or
make any statements that will directly or indirectly
imply the Hotel’s opinion as to whether or not the em-
ployees should support the Union or as to the reputa-
tion of the Union
The agreement provided that either party could file for arbi-
tration of an alleged violation of this agreement. In addition,
on April 9, Respondent and the Union executed a proposed
collective-bargaining agreement ‘‘in the event the union is
ultimately certified by the National Labor Relations Board.’’
During the week of April 9, Respondent distributed instruc-
tions to all its management and exempt employees explaining
the neutrality agreement. Basically, it provided that they
were not to initiate any conversation with a unit employee
regarding the Union, and were not to express any personal
opinions for or against the Union. The Union won the elec-
tion by a substantial majority and was certified on April 27.
Rodriguez was terminated by Respondent on April 12; he
testified that prior to that day he had never been disciplined,
reprimanded, or given any warnings by Respondent. Re-
spondent’s witnesses testified differently to the events lead-
ing to April 12. Leo Reijmers, who, at the time, was the resi-
dent manager and acting director of security for Respondent
(he left Respondent’s employ in December) and Schaefer,
Respondent’s personnel director, testified to a number of
problems that they had with Rodriguez prior to April 12.
Reijmers testified that Respondent’s night manager, Kate
Fallon, no longer employed by Respondent, informed him on
about March 8, that on that evening the singing group New
Kids on the Block was staying at the hotel. Because of this,
she asked Rodriguez not to take his break, but to remain in
the lobby so that they would be able to maintain proper secu-
rity. Instead, he took his break and left his post. Reijmers
testified that on March 30, he and Schaefer met with
Rodriguez; he told him that Respondent had the right to post-
pone or cancel breaks when necessitated by security require-
ments. He also told him that if similar violations should
occur, it would be grounds for disciplinary action. After dis-
puting the allegations, Rodriguez said that he would cooper-
ate. Schaefer testified about this meeting in a similar manner.
She testified that when they first informed Rodriguez about
Fallon’s complaint, he said that he had a right to take the
break and would take it unless he was going to be paid for
the time. She said that if he worked during his break he
would be paid for the time, but he did not have the authority
to overrule his supervisor’s instructions. Subsequently, ‘‘he
got very agreeable.’’ A memo that Reijmers and Schaefer
prepared about this meeting states that the night manager
must be consulted about breaks and: ‘‘Management reserves
the right to postpone or delay a break in case of emergency
or when necessary for other reasons.’’
Reijmers and Schaefer testified that the next incident in-
volving Rodriguez involved a memo that Reijmers placed on
the bulletin board a few days after the March 30 meeting.
The note stated: ‘‘PHONE ETIQUETTE. THANK YOU
1005PARC FIFTY ONE HOTEL
2 In this regard, Rodriguez wrote the following entry in the secu-
rity logbook on April 7:
MR. REIJMERS CALLED CONCERNING THE PROPER ETI-
QUETTE IN ANSWERING PHONE. HE SEEN [sic] TO BE
MORE CONCERN ON THE PROPER RESPONSE OVER
THE PHONE THAN TO PROVIDE THE PROPER SECURITY
TO HOTEL GUESTS AND EMPLOYEES. HE ALSO MADE
A PHONY REMARK: OH SO THE HERNANDEZ &
RODRIGUEZ TEAM IS ON; IN A VERY SARCASTIC WAY.
MR. REIJMERS, PLEASE BE CAREFUL WITH YOUR COM-
MENTS. MR. SANTIAGO, PLEASE ADVISE MR. REIJMERS
NOT TO MAKE ANYMORE SMART RESPONSES TO ME,
ESPECIALLY IN A DISCRIMINATORY MANNER.
FOR CALLING. SECURITY; SANTIAGO, HERNANDEZ
ROMAN ETC. MAY I HELP YOU!’’ Reijmers testified that
he posted such a memo in each department of the facility so
that there would be a consistent and correct method of an-
swering the phones for the different departments at the facil-
ity. A few days after posting it, Reijmers saw that the memo
at the security department phone had written in red pen
alongside the memo: ‘‘NOTE: TO ALL OFFICERS,
PLEASE REMEMBER THAT THIS INSTRUCTIONS [sic]
ARE VERY IMPORTANT TO MR. REIJMERS. SECU-
RITY TASKS ARE SECONDARY.’’ It was signed ‘‘Jose.’’2
Reijmers testified that when he saw what Rodriguez had
written on his memo he was ‘‘outraged and upset,’’ espe-
cially since this was related to what he had told him at their
meeting about a week earlier. He discussed this incident with
Schafer and they decided that they would give Rodriguez a
final warning, which took the form of a letter to him dated
April 9, which stated:
Following your signed message notifying your col-
leagues of your disregard for the requests of senior
management, you are issued with this final warning for
misconduct and insubordination.
Should there be further reports of this or similar
types of behavior, you will bring upon yourself more
severe disciplinary action which may include suspen-
sion or termination.
Should you require clarification, please do not hesi-
tate to contact me.
Schaefer testified that Reijmer was ‘‘furious’’ when he
showed her the memo that Rodriguez had written on. They
discussed what action they should take, and it was decided
that because Rodriguez’ action was meant to embarrass
Reijmers, and since the incident occurred so soon after the
March 30 meeting with him, a final warning was appropriate
and the above letter was sent.
As previously stated, Rodriguez testified that he was never
reprimanded or criticized by management. However, he testi-
fied that he attended a meeting at the end of March with
Reijmers and Schaefer, but the meeting related to some let-
ters that he had written. He testified that at this meeting the
subject of any alleged insubordination of Fallon’s orders was
never discussed, but when asked whether there was an inci-
dent on March 28 where he disobeyed Fallon’s instructions
to remain on duty, he testified: ‘‘Not that I can remember.’’
Rodriguez received this letter on April 12; at the time he
was on vacation which began April 9. He first called
Rolando Santiago, his supervisor, who told him that he
didn’t know about the letter and suggested that he call
Reijmer, which he did. He asked Reijmer to clarify what he
meant by the letter. Reijmer told him that if he wanted clari-
fication he would have to come to the facility and talk to
him about it. Rodriguez then went to the facility, reported to
the security entrance and was told by Santiago to come to
his office, which is across the hall from Schaefer’s office,
which he did. Reijmers testified that when Rodriguez called
him on April 12 demanding an explanation of the April 9 let-
ter, Reijmers told him that he was not going to discuss it
over the phone, but that if he wanted to discuss it he would
arrange a meeting; however, he had no idea that Rodriguez
would arrive within the hour. Shortly thereafter, Santiago
told him that Rodriguez was in his office waiting to see
Reijmers. Reijmers located Schaefer in the facility and they
decided that they would meet with Rodriguez.
Carmine Feola was employed by Respondent from August
1989 through April 1991; he began as a security officer and
was promoted to security supervisor in May. He testified that
Rodriguez arrived at the facility at about 2 p.m. on April 12;
he told Feola that he had an appointment to speak to
Reijmers about a letter that he had received. He took
Rodriguez to Schaefer’s office and was told by Schaefer to
wait in the hallway outside her office. While they were wait-
ing in the hallway, Patrick Rogers, a housekeeping employee
of Respondent (a classification included in the unit) walked
by and Rodriguez said to him either ‘‘Vote union’’ or
‘‘Don’t vote union.’’ (Feola’s testimony was very confused
on this area, but as all the other witnesses testified that
Rodriguez said: ‘‘Vote union,’’ I find that is what was said.)
Rogers did not respond. Schaefer then told Feola to tell
Rodriguez that if he mentioned another word about the
Union he would be immediately terminated; Feola then told
Rodriguez what Schaefer said. He, Rodriguez, Santiago,
Reijmers, and Schaefer all went into Schaefer’s office, ad-
mittedly, a small office.
Rodriguez testified that when he got to the security office
in the basement of the cafeteria, Santiago told him that
Reijmers was having lunch in the employees’ cafeteria, and
they walked there. Rodriguez saw Reijmers eating in the caf-
eteria, and ‘‘within a close distance’’ he saw some employ-
ees and representatives of the Union. Rodriguez shook hands
with one of the union representatives and said: ‘‘These peo-
ple need a union here.’’ (In an affidavit that Rodriguez gave
to the Board a few days after his termination, he stated that
other than the introductions, he did not discuss anything with
them.) Reijmers ‘‘was having lunch and I didn’t want to in-
terrupt him’’ so he and Santiago returned to the security of-
fice to wait for Reijmers. Rodriguez testified further that
while they were waiting between the security office and the
personnel office for Reijmers to arrive, Rogers walked by.
He said to Rogers: ‘‘Vote for the Union.’’ Rogers continued
walking without commenting. Schaefer then called Feola into
her office and a few moments later Feola came out and said
that Schaefer said that if he made any other comment con-
cerning the Union he would be immediately terminated.
Schaefer testified that the first she learned that there would
be a meeting with Rodriguez that day was at about 2 p.m.,
while she was having lunch in the cafeteria, Reijmers came
in and told her that Rodriguez had come to the facility to
talk about the letter that he had sent him. She and Reijmers
went to her office and saw Rodriguez, Feola, and Santiago
standing outside the security office; she invited them all into
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her office. The first thing that occurred was Rodriguez began
waving the April 12 letter in front of Reijmer’s face demand-
ing an explanation, saying how could he get a final warning
with no prior warnings. As Reijmers attempted to answer,
Rodriguez got louder and more excited and did not give him
an opportunity to answer, but continued to wave the letter in
his face. At that point, Schaefer’s phone rang; she wanted to
take the call so she asked everyone to step outside while she
spoke on the phone, and they did so. As they were leaving,
Rogers walked by the office and Rodriguez shouted to him:
‘‘Hey man, vote for the Union.’’ Schaefer then said to Feola
that he should tell Rodriguez that he was not to make com-
ments like that; ‘‘Tell him that disciplinary action will be
taken if he says that sort of stuff. It could lead up to termi-
nation, it is very serious, so please make sure he under-
stands.’’ After Schaefer completed her phone call everyone
returned to her office; she and Reijmers said that they had
listened to what Rodriguez had to say and asked to be given
an opportunity to answer. Reijmers attempted to answer
Rodriguez’ questions, but Rodriguez ‘‘started going nuts
again, started going crazy and he stepped forward . . . de-
manding an explanation. And again, it couldn’t really be an-
swered.’’ Whenever Reijmers attempted to answer,
Rodriguez shook the April 9 letter in front of his face talking
about the logbook maintained at the facility and other sub-
jects. While shaking the letter in front of Reijmer’s face,
Rodriguez said: ‘‘Man, you are stupid.’’ At that point,
Schaefer said that the meeting was over, there was nothing
further to discuss. She told Feola to make sure that
Rodriguez left the facility. Rodriguez, Feola, and Santiago
then left her office.
Reijmers testified that after all five were present in Schae-
fer’s office, Rodriguez, who was very close in proximity to
him, pointed the April 9 letter at him and, in a loud voice,
wanted to know what was the story with the letter and why
it was a final warning. Reijmers said that it was a final warn-
ing because his insubordination had been repeated. At that
point, Schaefer received a telephone call and the meeting
was delayed briefly, pending completion of that call. While
they were standing together waiting for the meeting to re-
sume, Rogers walked by and Rodriguez shouted to him:
‘‘Vote union.’’ When the meeting resumed, Schaefer told
Rodriguez that if he could not act with a normal voice and
a normal manner there would be no meeting. Reijmer then
told him that it was a final warning because of his insubor-
dination. Rodriguez then pointed the letter at Reijmers and
said: ‘‘You’re stupid; you don’t know what you’re doing.’’
Schaefer then said that the meeting was over and Rodriguez,
Feola and Santiago left the office.
Rodriguez testified that he began the meeting by asking
Reijmer ‘‘to clarify the content of the letter.’’ However, ‘‘I
really couldn’t get a straight answer to my question. He was
just going around.’’ Reijmer ‘‘mentioned’’ that it was due to
the ‘‘little statement’’ that he wrote on Reijmer’s telephone
memo to the employees. Rodriguez testified that during this
meeting he didn’t raise his voice, although ‘‘it could have
sounded a little bit higher than normal.’’ At one point, while
he was seated, and because he never received a satisfactory
explanation from Reijmers why the letter referred to a final
warning, he did ‘‘shake’’ the letter and said: ‘‘The contents
of this letter is stupid.’’ He testified that during this meeting
he did not call Reijmers stupid, he did not scream at him,
and did not repeatedly interrupt him, although he may have
interrupted him, on occasion. After he commented that the
contents of the letter were stupid, Schaefer said that the
meeting was over, but she did not instruct Santiago and
Feola to escort him off the premises.
Feola testified that Rodriguez questioned Reijmers about
the letter that he had received, but Reijmers ‘‘didn’t really
explain what the reason was. He had said things, but I
couldn’t make sense of actually what the reason was.’’
Rodriguez said that the letter was ridiculous and ‘‘this is stu-
pid,’’ but he didn’t swear. Rodriguez did not say that
Reijmers was stupid, but that the letter was stupid. He raised
his voice, but was not very loud. He does not recollect
whether he was waving the letter around. Rodriguez inter-
rupted both Reijmers and Schaefer during the meeting and on
one occasion Feola asked Rodriguez to step outside the of-
fice to calm down; Schaefer also asked him to calm down
during this meeting. At the conclusion of the meeting Schae-
fer told Feola and Santiago to escort Rodriguez out of the
facility. Feola then brought Rodriguez to the service entrance
of the facility; shortly thereafter he heard Horst Gaumert,
then the general manager of the facility (no longer employed
by Respondent) who was outside the service entrance door
to the facility, telling Rodriguez: ‘‘You can’t work here any-
more. You’re fired. Get the fuck out of here.’’ Shortly there-
after, Gaumert told Feola that Rodriguez had been fired and
told him to put an entry into the logbook to that affect and
that Rodriguez would no longer be allowed on the premises.
He testified that at the previously scheduled security meeting
shortly after Rodriguez’ discharge, Gaumert told the security
employees that if they wanted to form a union, you ‘‘can get
the fuck out.’’ Respondent placed into evidence a memo
signed by Reijmers, Schaefer, Santiago and Feola; it states,
inter alia, that during the meeting with Reijmers and Schae-
fer, Rodriguez was raising his voice and carrying on in an
argumentative manner, and Reijmers told him that it was
necessary to speak in a normal voice and if he continued
shouting the meeting would end. It also states that the meet-
ing was concluded when Rodriguez told Reijmers that he
was stupid and didn’t know what he was doing. At that time,
‘‘Mr. Rodriguez was requested to leave the premises.’’ Feola
testified that he signed this memo because he was afraid of
being fired, although he never told this to either Schaefer or
Reijmers. Reijmers testified that when he gave this statement
to Santiago and Feola, he told them that they could either
sign it or write their own statement of what occurred at the
meeting. Neither one objected to signing it as it was.
Rodriguez testified that after the meeting concluded, he
and Santiago went to the service entrance to wait for a secu-
rity meeting which was scheduled to begin at 3 p.m. Appar-
ently, this meeting was to inform the security employees of
the neutrality agreement with the Union. A few minutes later,
Gaumert, Schaefer, and Reijmers approached him and
Gaumert asked Rodriguez to step outside with them.
Rodriguez said that he wanted to have Santiago with him,
but Gaumert refused. Gaumert told him that he was fired for
violation of the union agreement, and ‘‘Get the fuck out of
here, I don’t want to see you around.’’ He left shortly there-
after. In the affidavit Rodriguez gave to the Board shortly
after his discharge, he did not refer to any profanity.
Reijmers testified that when Rodriguez, Santiago, and
Feola left the office, he and Schaefer ‘‘sat down and looked
1007PARC FIFTY ONE HOTEL
3 Respondent attempted to introduce evidence to establish that
Rodriguez was unfit for reinstatement because he stole documents
from Gaumert’s office during his employment with Respondent. I re-
fused to allow such evidence on the ground that it would be more
appropriate at a supplemental backpay proceeding.
at each other and couldn’t believe what took place.’’ He tes-
tified: ‘‘As far as I was concerned Mr. Rodriguez was termi-
nated for insubordination.’’ He testified:
Because he openly on two occasions put me, first in
writing, disobeying my immediate instructions and then
he displayed the same behavior in person in front of
other staff members, saying that I’m stupid and that I
don’t know what I’m doing. As a manager of a hotel
in order to operate a hotel, you’re not going to have
anybody on your staff who treats management like that.
He and Schaefer went upstairs where they met Gaumert
and informed him of what had just occurred in the basement
offices. They saw Rodriguez at the service entrance door and
Gaumert asked him to step outside with them. He did so and
Gaumert told him: ‘‘You’re fired because you broke the neu-
trality agreement.’’ There was no profanity and Rodriguez
left.
Schaefer testified that ‘‘immediately after the meeting was
over’’ she decided that Rodriguez had to be terminated. She
testified:
We were in an office the size of your average building
elevator and there was a desk and a filing cabinet in
there. There were five of us in there. And he was going
nuts and I was terrified. Leo [Reijmers] I know was
scared and shocked and for this person to be securing
our hotel was lunacy. There was no way it could con-
tinue.
She and Reijmers sat down in her office; ‘‘I think that we
were both a bit glazed. And we didn’t quite know what had
happened.’’ They walked out of her office and met Gaumert;
Reijmers spoke to Gaumert, but Schaefer didn’t hear what
was said because she was locking her office. They headed
toward the elevator to go to the security meeting and Schae-
fer told Gaumert that since he was going to be discussing the
neutrality agreement at the meeting, ‘‘you may want to high-
light the fact that this happened just a few minutes ago.’’
She then told Gaumert what Rodriguez had yelled to Rogers
in the basement; ‘‘and Mr. Gaumert was not happy about
it.’’ When they got upstairs, they saw Rodriguez and
Gaumert asked him to step outside. When they were outside,
Gaumert told him: ‘‘Jose, your position has been terminated
for breach of the neutrality agreement.’’ He did not use any
profanity and Rodriguez left.3 In reply to Rodriguez’ claim
for unemployment, Schaefer stated in a form dated May 19
that he was fired for ‘‘Insubordination to senior management
during meeting.’’
IV. ANALYSIS
The principal issue is, of course, whether Rodriguez’ ter-
mination violates Section 8(a)(1) and (3) of the Act. Addi-
tionally, at the hearing, General Counsel amended the com-
plaint to allege that Schaefer’s statement to Rodriguez, warn-
ing him about further statements such as the one he made
to Rogers, could result in discipline or termination. The sec-
ondary issue is whether this violates Section 8(a)(1) of the
Act. In making these determinations, it is first necessary to
make credibility findings. I have little difficulty in totally
crediting the testimony of Schaefer, whom I found to be an
open, honest, and direct witness who left no doubt in my
mind that she was testifying in an honest and truthful man-
ner. I also found Reijmers to be a credible witness who testi-
fied in a believable manner. He was no longer employed by
Respondent and had no incentive to lie, other than, possibly,
a continuing dislike for Rodriguez caused by his actions at
the April 12 meeting and marking up Reijmers telephone
memo a few days earlier. I also have little difficulty in dis-
crediting much of Rodriguez’ testimony; he was argumen-
tative, evasive, and appeared to often be tailoring his testi-
mony to best suit his purpose. Feola, who was no longer em-
ployed by Respondent and might therefore be considered a
credible witness, clearly had a faulty memory and was, at
times, evasive and is therefore not credited when his testi-
mony conflicts with Schaefer or Reijmers.
I therefore find that, after Rodriguez told Rogers to vote
union, Schaefer told Feola to tell Rodriguez ‘‘that we are not
supposed to make comments like that,’’ and that disciplinary
action, leading up to termination, will be taken ‘‘if he says
that sort of stuff.’’ Feola testified that Schaefer told him to
tell Rodriguez that if he mentions another word about the
Union he would be terminated, and he did so. General Coun-
sel alleges that this is a ‘‘hallmark violation’’ regardless of
the neutrality agreement. Respondent alleges that this state-
ment was not meant to and, in fact, did not interfere with
employees’ Section 7 rights and therefor this allegation
should be dismissed. I agree with General Counsel for a
number of reasons: General Counsel was not a party to the
neutrality agreement. Even though such agreements may be
encouraged by the Board and public policy, they do not
overcome employees’ Section 7 rights, especially when the
employees have not been made aware of the restrictions.
Therefore, even though Schaefer’s statement may have been
well-meaning, it was a threat to fire Rodriguez if he spoke
about the Union, clearly a Section 7 right, and therefor vio-
lates Section 8(a)(1) of the Act.
As regards the 8(a)(3) allegation, counsel for General
Counsel, in her brief, states: ‘‘The record is replete with evi-
dence of Respondent’s animus toward the union.’’ Actually,
I find that the opposite is true. General Counsel has two
bases for this claim; the above-mentioned threat that
Rodriguez would be disciplined if he again spoke of the
Union and Feola’s testimony that Gaumert told the security
officers at the meeting following Rodriguez’ discharge that
if they wanted a union they could ‘‘get the fuck out.’’ As
to the former, as stated above, I find that this threat was mo-
tivated not by union animus, but by a fear of violating the
neutrality agreement signed 3 days earlier. As to the latter,
I generally do not credit the testimony of Feola and would
not credit that this statement was made. However, even if it
was made, it may have been the result of anger generated
minutes earlier by the Rodriguez discharge. It certainly did
not represent Respondent’s position with the Union. On June
8, 1988, Region 2 of the Board issued a consolidated com-
plaint against Respondent’s predecessor and the Union alleg-
ing that the hotel had recognized and entered into a contract
with the Union at a time when the Union did not represent
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 At the hearing I rejected the exhibits regarding this prior action
as irrelevant to the instant matter. Because counsel for General
Counsel in her brief alleges animus to the Union, I reverse myself
and now find that R. Exhs. 2a and 2b are relevant and shall be re-
ceived in evidence.
an uncoerced majority of the unit employees, in violation of
Section 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the
Act. This consolidated complaint was subsequently settled.4
Also relevant to the lack of animus on Respondent’s part is
that at the same time that it executed the neutrality agree-
ment with the Union, on April 9, the parties executed a col-
lective-bargaining agreement that would be effective ‘‘in the
event the union is ultimately certified by the National Labor
Relations Board.’’ These are not the usual activities of an
employer with animus toward a union.
General Counsel alleges next that Rodriguez was fired be-
cause he encouraged Rogers to vote for the Union; Respond-
ent, in its brief, agrees that he was fired because of his
breach of the neutrality agreement:
Jose Rodriguez was terminated on April 12, 1990, by
Respondent’s General Manager, Horst Gaumert because
Gaumert perceived that Rodriguez had violated the neu-
trality agreement by making statements regarding the
Union to another employee.
Further on in its brief, counsel for Respondent states:
It is undisputed that General Manager Gaumert told
Rodriguez he was being discharged because he had vio-
lated the Neutrality Agreement not because he sup-
ported the Union. Respondent was, in fact, trying to
preserve its relationship with the Union by enforcing
the terms of the neutrality agreement and nothing more.
The first question therefor is whether General Counsel has
sustained its initial burden under Wright Line, 251 NLRB
1083 (1980). Respondent defends that Rodriguez was not
fired in order to discourage union activity among its employ-
ees; rather, he was fired because he violated the neutrality
agreement it entered into with the Union. There are a number
of problems with this defense. Principal among them is that
such an agreement, while otherwise commendable, cannot
bind employees and deprive them of their Section 7 rights,
which is what Respondent’s argument, if accepted, would do.
In addition, the evidence establishes that the rules regarding
this neutrality agreement were not yet conveyed to the secu-
rity employees; apparently, that was the purpose of the meet-
ing of security employees on the afternoon of April 12. Fi-
nally, it is not clear from the language of the neutrality
agreement (‘‘its supervisory employees, agents and/or rep-
resentatives’’) whether security guards would be included
within the classifications proscribed. For these reasons, I find
that the neutrality agreement did not lawfully restrict
Rodriguez’ right to tell Rogers to vote for the Union, and I
therefor reject this defense. As the evidence establishes that
when Schaefer and Reijmers met Gaumert after their meeting
with Rodriguez, Santiago, and Feola they only told him
about what Rodriguez said to Rogers, and that Gaumert told
Rodriguez that he was being fired for violating the neutrality
agreement, I find that General Counsel has sustained its bur-
den of establishing that Rodriguez’ protected conduct of urg-
ing Rogers to vote for the Union was a motivating factor in
his discharge.
The issue therefore is whether Respondent has sustained
its burden of establishing that Rodriguez would have been
discharged even if he hadn’t told Rogers to vote for the
Union. I find that it has. Schaefer and Reijmers both testified
that at the conclusion of the meeting they decided that
Rodriguez had to be fired. Schaefer testified that at the meet-
ing, Rodriguez
was going nuts and I was terrified. Leo I know was
scared and shocked and for this person to be securing
our Hotel was lunacy. There was no way it could con-
tinue.
Reijmers testified in a similar manner: ‘‘as far as I was
concerned Rodriguez was terminated for insubordination.’’
His reason was that Rodriguez was warned on March 30
about not following a supervisor’s order, and was given a
final warning in the April 9 letter for the comments he wrote
on Reijmers telephone memo. His actions at the April 12
meeting was the final straw: ‘‘you’re not going to have any-
body on your staff who treats management like that.’’ Con-
sidering their shock at what had occurred at this meeting, it
is surprising that they did not mention Rodriguez’ insubor-
dination when they met him on the way to the security offi-
cers’ meeting. This may be explained by the fact that they
were in a rush to get to the meeting and, as Schaefer testi-
fied: ‘‘I said to Mr. Gaumert in view of the fact that you
are going to be talking about neutrality you may want to
highlight the fact that this happened just a few minutes ago.’’
Schaefer may have concluded that she could tell Gaumert
about the insubordination at the conclusion of the meeting.
However, since I credit Schaefer and Reijmers regarding
Rodriguez’ actions at the April 12 meeting, and credit the
fact that at the conclusion of the meeting they had decided
to fire him, I find that Respondent has satisfied its burden
that Rodriguez would have been fired even absent his direc-
tion to Rogers, and therefor recommend that the 8(a)(1) and
(3) allegation be dismissed.
CONCLUSIONS OF LAW
1. Parc Fifty One Associates, d/b/a Parc Fifty One Hotel
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
threatening its employees with discharge or other discipline
for talking about the Union.
4. The Respondent did not violate the Act as further al-
leged in the complaint.
REMEDY
Having found that Respondent has engaged in, and is en-
gaging in, certain unfair labor practices, I shall recommend
that it cease and desist therefrom, and take certain affirma-
tive action designed to effectuate the policies of the Act,
principally the posting of the notice.
1009PARC FIFTY ONE HOTEL
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact, and conclusions of law, and the
entire record, I issue the following recommended5
ORDER
The Respondent, Parc Fifty One Associates, d/b/a Parc
Fifty One Hotel, New York, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge or other dis-
cipline for talking about the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the purposes of the Act.
(a) Post at its New York, New York facility copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced
or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed as
to the termination of Jose Rodriguez.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board found that we violated
the National Labor Relations Act and has ordered us to post
and abide by this notice.
WE WILL NOT threaten our employees with discharge or
other discipline for talking about Local 6, Hotel Employees
and Restaurant Employees Union, AFL–CIO or any other
labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
PARC FIFTY ONE ASSOCIATES, D/B/A PARC
FIFTY ONE HOTEL