The Aspen

National Labor Relations Board - Board DecisionsApr 30, 1990

298 N.L.R.B. 401 (N.L.R.B. 1990)

ASPEN Westmont Plaza , t/a The Aspen and Deborah Ragas and Carole Manla. Cases 22-CA-15851, 22- CA-16148, and 22-CA-16060 April 30, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On October 18, 1989, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed 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 brief and has decided to affirm the judge's rulings, findings," and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Westmont Plaza, t/a the Aspen, Parsippany, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility find- ings. The Board's policy, as set forth in Standard Dry Wall Products, 91 NLRB 544 (1950), is to attach great weight to a judge's credibility find- ings based on demeanor. When, however, credibility findings are based on factors other than demeanor, as in the instant case, the Board may proceed with an independent evaluation. E.g, Canteen Corp, 202 NLRB 767, 769 (1973); Valley Steel Products, 111 NLRB 1338, 1345 (1955) After independently evaluating the record, we adopt the judge's credibility findings. Olivia Garcia Boult, Esq., for the General Counsel. Mark S. Ruderman, Esq. (Ruderman & Glickman, P. C), for the Respondent. DECISION STATEMENT OF THE CASE JOEL P. BIBLowiTz, Administrative Law Judge. This case was heard by Administrative Law Judge Harold B. Lawrence " on May 9 and 10, 1989 , in Newark, New Jersey . The consolidated complaint, which issued on February 28, 1989 , was based on an unfair labor practice charge (22-CA- 15851 ) and first and second amended charges filed on July 28, 1988 ,2 October 29 and Novem- ber 10 by Deborah Ragas, an unfair labor practice charge (22-CA- 16060) and first amended charge filed on i Judge Lawrence died on July 17, 1989 Subsequently, the parties agreed that another administrative law judge should be designated to write the decision on the record as made By Order dated August 10, 1989, Associate Chief Administrative Law Judge Edwin H. Bennett des- ignated me to issue a decision on this matter on the record as made. 2 Unless otherwise indicated , all dates referred to are for the year 1988. 401 November 29 and December 30 by Carole Manla, and an unfair labor practice charge (22-CA-16148) filed on Jan- uary 31, 1989, by Ragas. The consolidated complaint al- leges that Westmont Plaza, t/a the Aspen (Respondent) violated Section 8(a)(1) of the Act by, discharging, and later reinstating without backpay, Ragas and Judith Votto, because, together with other employees, they concertedly complained about their working conditions. The complaint also alleges that in June, July, and Sep- tember Respondent denied work assignments to Ragas, Votto, Patricia Conoran, and Constance Pasquale be- cause of their concerted complaints as described above, in violation of Section 8(a)(1) of the Act, and, as regards Ragas and Votto, additionally because they participated in the filing of an unfair labor practice charge, in viola- tion of Section 8(a)(1) and (4) of the Act. Finally, the complaint alleges that in April Respondent threatened its employees with reprisals if they continued to utilize the Board's processes, and, in August, threatened its employ- ees with reprisals, including the denial of work assign- ments, if they engaged in protected concerted activities, also in violation of Section 8(a)(1) of the Act. On the entire record, I make the following FINDINGS OF FACT I. JURISDICTION There being no dispute, I find that Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. THE FACTS Respondent operates a hotel, with banquet facilities, in New Jersey; the area involved is the banquet facility. By its nature, few, if any, banquet operations can employ waiters and waitresses on a regular full-time basis. Rather, when the facility books an event, it then calls the number of waiters, waitresses, bartenders, and others who are needed to staff the event. The number of em- ployees needed will, of course, depend on the number of guests as well as the nature of the event (buffet or sit down, for example). In, addition to the two 8(a)(1) allega- tions of threats, the principal issues are whether Ragas and Votto were fired for engaging in concerted activities with their fellow employees, and whether Respondent violated the Act when it later refused to give work as- signments to Ragas, Votto (in violation of Sec. 8(a)(1) and (4) of the Act), and Conoran and Pasquale in viola- tion of Section 8(a)(1) of the Acts' On March 22, the waiters and waitresses working at the facility became aware of a rumor that Respondent was about to change its method of compensation, which 3 Shortly prior to the conclusion of the hearing, Judge Lawrence re- fused to receive into evidence three letters written by counsel for Re- spondent to the General Counsel, these letters were placed in the reject- ed exhibit file In her brief, counsel for General Counsel renewed her re- quest that these exhibits (G C. Exhs. 10, 11, and 12) be received because they show inconsistent positions by Respondent for why the discrirmna- tees were not subsequently employed For the reasons stated in her brief her request is granted and the exhibits are received Steve Alin Ford, 179 NLRB 229 to. 2 (1969) 298 NLRB No. 49 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they felt would be to their detriment . During a break, they all got together and composed a letter to Leonard Wilf, one of the three partners of Respondent . The letter complained about the proposed, as well as , prior changes in the method of compensation and places the blame for this on Julius Pereira , another partner and manager of Respondent , and ends by referring to their , " 12 percent gratuity which Mr . Pereira chips away at so easily and frequently ." The employees made no secret of the letter, which was signed by 40 employees . The signatures were collected by Ragas and Votto . The next day Votto typed the letter and sent it with the signatures attached , certi- fied mail (on the following day, March 24) to Wilf, ap- parently , at his home . On the afternoon of March 23, after typing the letter , but prior to mailing it, she re- ceived a telephone call from Tony Recino , who, at the time, was Respondent's banquet director ; she testified that he told her that he was sorry that he had to tell her that she was fired;4 she asked if it was because of the letter that the employees had circulated the prior evening and he said that it was. Recino said that she should not report for work the following day. She then called fellow waitress Conoran , told her that she had been fired , and asked if she should continue typing and sending the letter to WilÂ£ Conran said that she should, and she did . The letter was delivered to Wilf on March 25. Ragas testified that on March 23 she received a tele- phone call from Recino telling her that she was fired; she asked why, and Recino said that it was because of the letter . Pereira gave him no choice; he told him to fire them. Recino testified that on the evening of March 23 he had a conversation with Pereira in his office . Pereira told him that someone had told him "that there was a letter written" and he wanted to know what was in the letter, who was involved with it and if Recino was involved with it; he answered that he was not. (At the time, Recino was generally aware of the subject of the letter.) Pereira told Recino to terminate Votto and Ragas: "He told me to fire them and take them off the schedule." Recino then called Votto and Ragas and told them that they were fired ; each asked why and Recino told them that it was because of the letter. Pereira testified that at some point he saw the letter involved , but he cannot recall when that was. However, at about that time, Recino told him that he was having some problems with some of his banquet people : "I told Mr. Recino that it was his department , and his responsibility, and that he should clean up his affairs in his department . . he had full authority to do whatever he saw fit and to handle it." He did not tell Recino to fire Votto , Ragas, or any- body else . When he learned that Recino had fired Votto and Ragas, he told him to reinstate them , that he had not given any orders to fire them. Tommy Amato, was absent from the facility in the summer of 1988 , but became banquet manager in Sep- tember, replacing Recino . He testified that he was present during the initial discussion of the letter between 4 On cross-examination, she testified that Recino told her Pereira had directed him to fire her. Pereira and Recino ; Pereira asked "how did this happen?" He testified that Pereira was "very surprised, very hurt I think" but "he never got malicious or talked bad about anybody . He wanted to iron things out. He gave Tony Recino the full responsibility to iron every- thing out." Pereira never told Recino to fire Votto and Ragas. Respondent attacks Recino 's credibility on two fronts: his relationship with Votto and the termination of his employment by Respondent . Admittedly, Recino and Votto dated on a fairly regular basis from about Septem- ber 1987 through March 1989 . As regards Recino's em- ployment situation with Respondent , Pereira testified that Recino began working for Respondent in about 1984 and did an excellent job; however , in about 1986 or 1987, the two of them had "a little difference" and Recino walked out in the middle of a big function , and was thereafter replaced . Subsequently , Rosemary Carr, Re- spondent's general manager, told him that Recino was calling the facility asking to return ; she asked whether Pereira would consider rehiring him . Eventually, he agreed and rehired him as the banquet manager. He re- mained in that position until either Easter or Mother's Day at which time Recino did not appear for work, "and at that point , I fired him again." Carr testified that Recino was fired in May 1988 because he did not appear at work on Mother 's Day . Recino testified that he was out of work for 3 or 4 days during the period in question because he had hurt his back, but he had called the facil- ity and informed Oswaldo Sonco , Respondent 's food and beverage manager, that he was just out of the hospital and was told to take 5 or 6 days off. When he returned to work , Carr told him that Respondent had to let him go to lower their payroll; he testified it had nothing to do with his not appearing for work on Mother's Day. On March 25 , Ragas filed an unfair labor practice charge with the Board alleging that Respondent violated Section 8(a)(1) of the Act by discharging her and Votto. Ragas testified that in early April she received a tele- phone call from Recino saying that Pereira would like her to return to work, and she did , beginning April 11 and working until July 16. After returning to work, she withdrew the unfair labor practice charge she filed on March 25. Votto testified that on about March 31 Recino called her and told her that he made a mistake firing her and that she could have her job back if she wanted it. She accepted . Conoran testified that at either the end of March or beginning of April she had a meeting with Pe- reira about whether she had to work on Easter; Amato and Recino were present as well During this meeting, Pereira asked who wrote the letter and Conoran said that everyone did. He asked who started it and she said nobody in particular. He asked who typed it and she said that she would rather not say. At the conclusion of the meeting, she told Conoran to tell Votto and Ragas that they can have their jobs back and to "tell them to get off the labor board" or he would come after them "with both barrels." Recino testified that during this period there were a number of meetings in Pereira 's office at- tended by (at one time or another) himself, Amato, Carr, and Conoran. At one of these meetings , Pereira "went ASPEN off the wall ," screaming at Recino : "You've caused me a lot of problems. Now we have to hire them back ... give them their jobs back and weed them off the sched- ule." At the meeting in which Conoran was present, Pe- reira told Recino to get them to drop the Labor Board charges or he would come after them with both barrels. He called Votto and Ragas and told them that they had their jobs back . During the meetings , Pereira also told Recino that he fired Votto and Ragas the wrong way; instead of firing them outright, he should have taken them off the schedule and not give them work, telling them that business was slow. Pereira was asked , on direct examination , whether he directed Recino to tell Votto and Ragas to drop the charges or he would go after them with both barrels. He testified : "I don't recall, sometimes I have a way with words, or sometimes I may get excited , but I really don't recall something like that." The direct examination con- tinued: Q. Okay, did you direct Mr. Recino to rehire Ms. Votto and Ms. Ragas? A. Yes I did. Q. And did you tell Mr. Recino anything else with respect to scheduling? A. Other than it is his department, take care of it. Q. Okay, at any time did you make a statement to him, something to the effect-take them back "weed them out"? A. I may have made a statement something to that effect, again relating to the fact that it was de- partment, and he should handle it the best way he saw fit . If he had a problem , it was his responsibil- ity. If I have to take care of his job, I don't need Mr. Recino there, and I'll take his salary. JUDGE: Did you say what Mr. Recino said you said? A. I may have said that, sir. Subsequently , on redirect examination , Pereira was asked if he told anyone to weed out these employees; he answered: "Absolutely not." Pereira testified further that he never told Conoran that Votto and Ragas could have their jobs back, but they would have to drop the Board charges or he would go after them with both barrels. Pe- reira testified that he was upset about the letter to Wilf because "it didn't make sense to write a letter to Mr. Wilf" because there is a chain of command at the facility to address the problem; they should have contacted Recino, Carr, or himself, rather than Wilf, who is never at the facility. Carr testified that Pereira never directed her to "weed out" Votto and Ragas nor did she ever hear him say that if they did not drop the Board charges, he would go after them with both barrels. Amato testi- fied on direct examination that he was present at a meet- ing with Pereira and Recino where the unfair labor prac- tice charge filed by Ragas was discussed; however, he "didn't concern myself with it. I can't recall exactly what he said." On cross-examination, Amato was asked whether the Board charges were mentioned during any of these meetings and he answered "no." He also testi- fied on cross-examination that he never heard Pereira say that Votto and Ragas should be weeded out or that he 403 would go after them with both barrels; however, he came into the meeting after it started and left before it ended. It is next alleged that although Respondent reem- ployed Votto and Ragas without backpay in about early April, beginning in about mid-June Respondent ceased calling and giving work assignments to Votto, Ragas, Conoran , and Pasquale (Ragas' mother) because of their protected concerted activities involved in the March 22 letter, and, for Votto and Ragas, for filing the charge with the Board, as well. The last day of work for each was, as follows: Votto-June 18; Conoran-the end of June; Ragas-July 16; and Pasquale-August 21. General Counsel's witnesses testified that these four employees all had high seniority on the list Respondent employed on calling waiters and waitresses to work ; Respondent's wit- nesses testified that Respondent never employed such a seniority system . Respondent also defends that business was slow at the time, requiring fewer employees, and that these employees were unsatisfactory in some re- spect. Votto testified that three factors determined what waiters or waitresses would be called for an affair at the facility, and in what order: availability, seniority, and performance. As to availability, because employment of the waiters and waitresses was not full -time employment, many of these employees had regular day time jobs and Respondent knew that they could only be called for evening or weekend affairs. As to seniority, Respondent maintained a list of employees by seniority and, every- thing else being equal , called employees on that basis. She was in the top 10 or 12 in seniority at the facility. She has been employed at the facility since October 1983, except for an 18-month hiatus. During 1988, prior to June, she averaged working three or four functions a week and never went a month without working a func- tion at the facility. Recino also testified that Respondent employed a list in choosing which employees to call to work a function ; Votto, Ragas, Conoran , and Pasquale were all considered regular employees and were all in the top 10 or 15 in seniority at the facility. Conoran had been employed by Respondent as a captain until about October 1987; after that she was employed as a waitress. As a captain , she, at times , assisted Amato in scheduling employees for different functions at the facility. She testi- fied that availability, seniority, and job performance were the factors employed in determining who was called to work. The regulars with the greatest seniority were called first . During 1988, she usually worked 2 nights a week and, until June, never went more than 2 weeks without working. She began her employ with Respond- ent in about February 1985 and was fourth or fifth on the seniority list. Ragas , who has been employed at the facility since September 1983, except for some hiatus pe- riods, testified that during 1988 (until mid-July) she worked every week, between two to six times a week at the facility . She was one of the top 10 in seniority on Re- spondent 's list of waiters and waitresses . Sandra Sabo, who began working at the facility in 1985 and quit her employment with Respondent in December, was asked 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD what role seniority play in job assignments at the facility; she testified: "That's what it went by." Respondent's witnesses testified in a contrary way; Pe- reira, who did not appear to be too knowledgeable on this subject, testified that he never established a seniority list and "I don't know what seniority means on a part- time job." Respondent employed a list from which they chose names to call. Oswaldo Sonco, food and beverage manager for Respondent, testified that beginning in May, he began calling waiters and waitresses for functions. He used a list that was in existence before he took over the responsibility, but as to whether he used seniority to call people on the list, he testified: "No, I don't know, no." He was not aware of who was the most senior at the fa- cility. Votto's last day of work at the facility was June 18; she was available for work after that and called the facil- ity several times to see about her schedule, but her calls were never returned. In November 1987, she was given a written reprimand for putting a "lipstick kiss" on her timecard, with a warning that if it happened again, she would be suspended. There is no evidence of any further problems with her work. Conoran testified that beginning at the end of June, when she did not hear from Respondent about job as- signments , she called the facility several times and was told by Sonco either that there was no work or he had enough help. Shortly before Easter (April 3) Amato told her that she would work Easter Sunday. She protested that she wanted to spend the day with her children and he told her that if she did not work that day, she would not work anymore. When she protested, he said that she should discuss it with Pereira, which she did. (The re- sulting conversation with Pereira allegedly contained the "both barrels" statement, supra.)5 She worked Easter Sunday. Ragas testified that prior to July 16 Amato told her that two large weddings were scheduled for the facility on July 30. Between that time and July 29, she called the facility to find out if she would be working as she had not been called by Amato or Sonco (who replaced Amato, who was away on his honeymoon). Each time she called, she spoke to the receptionist; Sonco refused to speak to her. Sabo testified that Ragas and Conoran (as well as others) were more senior than she was on the list and she worked the following weeks in 1988: July 16, 23, and July 30, August 13, September 17 and 24, October 1, and 13, 22, and 29, November 5, 12, 19, and 29, and Decem- ber 10. Pasquale testified that her final job at the facility was on August 21; she was scheduled to work at the facility subsequently, but she got "deathly sick" and called the facility 2 days before the function to tell them that she would not be able to work that day. The following week she called to ask if there was any work for her and was 5 Counsel for Respondent in his brief, in attempting to show that the General Counsel's witnesses were incredible, states that Conoran testified that Pereira made this statement to her over the telephone. This is not so, she testified that the statement was made at a meeting attended by herself Pereira, Recmo, and Amato. (Tr 105-106, 115-116.) told that she would not be given any more work because she did not come in for the job the prior week. Respondent's defenses to these allegations, i. e., the reason that Votto, Ragas, Conoran, and Pasquale are no longer employed at the facility, has been inconsistent. In a letter dated November 18 to the Regional Office of the Board, counsel for Respondent stated that there was no concerted effort to deny employment to Votto, Ragas, or Conoran. In his brief, counsel for Respondent defends that Votto was not called to work after June 18 because of her dating relationship with Recino and the "lipstick kisses" incident, referred to, supra; Ragas, because of gross misconduct at an engagement party, described, infra; Pasquale because she was scheduled to work, but failed to appear for work on one occasion (as testified to by Pasquale, supra), and Conoran, because business was slow. Pereira testified that there is a policy at the facility that employees are not allowed to smoke in any public area at the facility and it had been brought to his atten- tion that Votto and Ragas were found smoking in pro- hibited areas; in addition, he was notified that Ragas had been caught drinking on the job. Pereira never testified to the period of time that these offenses allegedly oc- curred, nor did he testify that these offenses contributed to their not being employed by Respondent. On cross-ex- amination, he was asked whether it was true that Votto, Ragas, Conoran, and Pasquale are no longer employed at the facility and he testified: "I really don't know that to be a fact." As to why Votto and Ragas are no longer employed at the facility, he testified: "Evidently they haven't been called. Evidently they don't want to work at the Aspen. I understand they have been called a number of times, and never showed up for work." He then testified that Ragas was called for a function, but did not show up, and he said: "she is finished, she doesn't work here anymore," although he could not give a date or the year when this occurred. Pereira testified that in the summer of 1988, there was "hardly any busi- ness at all"-about a 60-percent drop from 2 or 3 years earlier. On cross-examination, he was asked whether that was a factor in their not being employed at the facility; he answered: "I can 't answer that, because I really don't know." He did testify that he asked a number of times why Conoran was no longer at the facility, but he did not specify whom he asked or what the answer was. Teresa Malizia is the banquet sales manager for Re- spondent; this involves arranging and booking the affairs at the facility. She testified to an incident in July where a client complained about the service and attitude of Ragas at the engagement party she gave. Carr testified that Ma- lizia related these conversations to her and because of this incident she told Sonco not to call Ragas to work anymore. Ragas testified that she worked at an engage- ment party on July 16; she did not hear any complaints about her, work, and she worked behind the buffet table for that affair and therefore had no customer contact. Carr was also asked if she heard any complaints about Votto and she testified to the 1987 incident involving, the "lipstick kisses." She testified further that after Recino was terminated in April she learned of his relationship ASPEN with Votto, and, as a result, she told Sonco "not to call her for any work." On cross-examination , she testified that she knew of this relationship for about a year and a half; the remaining testimony on this subject is too con- fusing to be recounted . When Judge Lawrence asked her the difference between not being called and being fired, she answered: Well, if you are fired , you are not going to ever work again , and if you are just not called , you are just not called for every function that comes about. She could be called sporadically and that is what she was told. You can call her sporadically, but I don't want her here all the time. She testified that she told Sonco that he could call her if he needed her "desperately." Sonco made the work assignments at the facility be- tween April, when Recino was terminated , and Septem- ber, when Amato returned from his honeymoon and took over this job. He testified that sometime during the early summer Carr told him not to call Votto and Ragas; therefore during the rest of the summer he did not call them . In an affidavit supplied to the Board by counsel for Respondent, Sonco stated, inter alia : "I maintain a list of waitresses available for banquets. Judith Votto and Deborah Ragas are on that list . I was never advised to exclude those two individuals from the list." Sonco also testified that in about August he stopped calling Pasquale because she did not show up for an affair she had been scheduled for, nor did she call to notify Respondent that she would not be able to work that function . Pasquale testified that she was scheduled to work a job after August 21, but she got "deathly sick" and 2 days before the affair she called the facility and told Malizia that she was too ill to work. Carr testified that in about August, Pasquale and Manta complained to her that they were not being given work. She told them that business was slow, but that she would speak to Sonco about it to see what the problem was. She never discussed it with Sonco and left for vaca- tion . When she returned she saw paychecks for Pasquale and Mania and she asked Sonco : "Why were they work- ing?" Sonco told her that they told him that Carr had told them to tell Sonco that they should be put on the schedule, and he did so. Can said that she never told them that. Sonco testified that during August he called Conoran and she worked one Saturday . This was for the period where he made up the schedule for a month in advance because he was going on vacation ; "I say when I come back from my vacation I want to call her...." Iiowev= er, when he returned from his vacation , Amato assumed these duties. Because Sonco had made assignments for a month in advance , Amato did not have to make assign- ments until October. Amato testified that -neither Con- oran, Votto, not Ragas called him for work beginning in October . He could not remember whether he called Conoran beginning in October. He was never told by Can, or anyone else, that he was not to call Votto or Ragas. On rebuttal, Conoran testified that in May or June she called Amato and told him that she had ar- 405 ranged for Votto to work one function for her; Amato told her to call Votto and tell her she could not work because she was not allowed to put her on the schedule. Amato testified that he never had such a conversation with Conran. There are two 8(a)(1) allegations in addition to the dis- crimination allegations discussed , supra . The first is that in early April Respondent, by Pereira, threatened its em- ployees with reprisals if they continued to utilize the Board's processes . This is the "both barrels" statement allegedly made by Pereira, as testified to by Conoran, and discussed above. It is also alleged that Respondent violated Section 8(a)(1) of the Act when Amato in about late August threatened an employee with reprisals, in- cluding the denial of work assignments, if they engaged in protected concerted activities. This allegation is sup- ported solely by Pasquale , who testified that at the end of August, while at the facility, Amato told her that he was sorry to hear that Votto, Ragas, and Manla were on the blacklist, although he gave no reason ; she asked what a blacklist is and he said: "When they are on the blacklist they don't work." Pasquale asked if she was on the blacklist and Amato said : "Not that I know of." Pasquale then asked Amato about his honeymoon . Amato testified that he never had any such conversation with Pasquale about a blacklist; in fact , he was never at the facility from mid-July until he returned the "first part of Sep- tember." He got married and went on a honeymoon during this period. III. ANALYSIS The initial issue is whether Votto and Ragas were dis- charged in violation of Section 8(a)(1) of the Act on about March 23. In Wright Line, 251 NLRB 1083 ( 1980), the Board set forth the rule to be applied in discrimination cases such as the instant matter : "First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a `motivating factor' in the employer's decision . Once this is established , the burden will shift to the ' employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." On the day prior to the discharges , all the employees got together to compose a letter to one of Respondent's three partners protesting the change in the method of their compensation ; it requires no case citations to estab- lish that this represents protected concerted activities. Votto and Ragas (who both began, their employ with Respondent in 1983) Were fired the following day. Clear- ly, by this timing, the General Counsel has satisfied her initial burden. Respondent appears to have two principal defenses to this allegation : that Pereira told Recino that it was his department and he had full authority to do whatever was necessary and that Respondent had no knowledge of the letter or Votto or Ragas' participation at the time of the discharges., I have difficulty with Re- spondent's defenses . Respondent alleges that Recino is prejudiced against it because of his subsequent discharge (and this is a reasonable and supported 'allegation) and that he is not credible because of that, as well as because 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of his relationship with Votto. Pereira testified that he did not tell Recino to fire Votto and Ragas; he told him that he had full authority to do whatever he saw fit to handle his department. Subsequently, upon learning of the discharges, he told Recino to rehire them, that he could not fire anyone. In addition to the fact that these two statements are contradictory (first, "you have the authority to do what is needed to run the department," and then, "you can't fire anyone"), I cannot understand why Recino would fire Votto and Ragas on his own, es- pecially considering his relationship with Votto. Al- though my reading of the transcript convinces me that Recino was not totally forthright in his testimony, I would cearly credit him over Pereira, who had conflicts in his testimony, and whose memory was unusually faulty. I therefore credit Recino that on March 23 Perei- ra told him that he was aware of the letter and he wanted him to fire Votto and Ragas , which he did.6 As stated, supra, Respondent defends that at the time of the discharges it had no knowledge that Votto and Ragas were involved with the letter. However, in addition to the fact that Pereira' s statement to Recino indicates that he knew of their involvement in the letter the prior day, the evidence establishes that both Amato and Recino knew of the letter, and at least, Votto's involvement in it, on March 22. Furthermore, even absent that knowledge, the precipitous nature of their discharge, after almost 8 years of employment, together with the fact that no valid reason was given for the discharges, is sufficient to establish that they were discharged in retaliation for their protected concerted activities of the prior day. As the Court states in NLRB v. Health Care Logistics, 784 F.2d 232 (6th Cir. 1986): "Since an employer is unlikely to ac- knowledge an improper motivation in its decision to ter- minate employees, the NLRB may rely on circumstantial evidence and all relevant facts surrounding an employ- er's action to establish knowledge of employee's pro- union activities as well as to infer an unlawful motive." See also Culmtech, Ltd., 283 NLRB 163 (1987); and Dardar Indian Restaurant, 288 NLRB 545 (1988). I there- fore find that the discharge of Votto and Ragas on March 23 violated Section 8(a)(1) of the Act. Recino called Votto on about March 31 and she worked next on April 3; Ragas worked next on about April 11. The next allegation is that beginning June 18, for Votto, and July 16 for Ragas, Respondent stopped giving them work assignments due to their protected concerted activities, as described above, and the fact that they filed an unfair labor practice charge after their dis- charge. The principal evidence supporting the allegation is the testimony of Conoran and Recino of Pereira's "both barrels" and "weed them out" statements. This statement, or statements, took place at a meeting of Pe- reira, Conoran (who was there to talk about whether she had to work Easter Sunday, April 3), Recino, and Amato (who was not present for the entire meeting). This meeting occurred sometime during the week of March 28 (after Respondent received a copy of the 6 Even if I did not credit Recino as he was admittedly a supervisor at the time, I would still find that the discharges would violate Sec. 8(a)(1) of the Act. unfair labor practice charge, but prior to Easter Sunday). Conran testified that during this meeting Pereira asked her who initiated and typed the letter, but she refused to tell him. At the conclusion of this meeting, he told Con- oran to "tell them to get off the Labor Board" or he would come after them "with both barrels." Recino testi- fied that he had a number of meetings with Pereira during this period about the Votto-Ragas situation; Carr and Amato were sometimes present. At the meeting with Conoran, Pereira told him to hire them back and get them to drop the Labor Board charges or he would come after them with both barrels. At one meeting where Conoran apparently, was not present, Pereira was "off the wall," screaming that Recino had caused him a lot of problems. He testified that at this meeting Pereira told him to "give them their jobs back and weed them off the schedule." Carr testified that she never heard such statements made at meetings she attended. Amato also testified that he never heard such statements being made by Pereira, although he testified that he cannot recall exactly what was said because it did not concern him, and he entered the meeting after it had begun and left prior to its conclusion. Pereira's testimony on this subject is very confusing. Initially, he was asked if he directed Recino to tell Votto and Ragas to drop the charges or he would go after them with both barrels; he answered, basically, that he did not recall. He was next asked if he made the "weed them out" statement to Recino; he answered: "I may have made a statement to that effect." The next question was from Judge Lawrence: "Did you say what Mr. Recino said you said?" Pereira answered: "I may have said that sir." Subsequently, Pereira was again asked if he told anyone to weed out the employees; he answered: "Absolutely not." I have little difficulty in crediting the testimony of Conoran over Pereira; she appeared to be testifying in an honest and truthful manner while Pereira's testimony was often inconsistent and his memory faulty. I therefore find that at a meeting attended by Conran, Pereira told her or Recino to tell Votto and Ragas to ,drop the Labor Board charges or he would go after them with both bar- rels. This is a threat to discourage access to the Board, and therefore violates Section 8(a)(1) of the Act. I have more difficulty in crediting Recino's testimony, as well. I found him not particularly open regarding his separation of employment with Respondent and somewhat evasive in his testimony on cross-examination. However, I found him more credible than Pereira and therefore credit his testimony that Pereira told him to rehire them and then to "weed them out." This goes a long way in establish- ing that the subsequent failure to employ, them was in re- taliation of their protected concerted activities and their Board charges, in violation of Section 8(a)(1)(4)', of the Act. Further supporting such a finding is the conflicting reasons given by Respondents for their lack of employ- ment. Initially, in letters dated November 18 and Decem- ber 29 to the Board, counsel for Respondent stated that there was no concerted effort to deny work to the four employees, including Votto and Ragas; that their failure to be called was caused solely by the downturn in busi- ASPEN ness. However, at the hearing, Respondent's witnesses testified to a litany of offenses by Votto and Ragas; some of which, admittedly, played no part in their failure to be called. Pereira testified that-both Votto and Ragas were caught smoking in protected areas, and that Ragas was caught drinking on the job. Malizia testified that at an engagement party at the facility on about July 16 Ragas made fun of the guests and provided poor service, result- ing in an unhappy customer and the giving of six com- plementary brunch tickets to compensate for it. She also testified that she has observed Votto and Ragas smoking in prohibited places during her 4 years of employment at the facility; they were given memos to inform them of the infraction, but nobody has ever been fired, or refused work, for this infraction. Carr testified that when Malizia told her of the July 16 incident with Ragas, she told Sonco: "Just don't call her." Carr testified to the "lip- stick kiss" incident involving Votto in November 1987. She also testified that she first learned of Votto and Re- cino's relationship after Recino was fired and as a result of learning it she told Sonco not to call Votto for work. Subsequently, Carr testified that she knew of the Votto- Recino relationship for a year and a half; her testimony to attempt to explain this contradiction is extremely con- fusing and uncertain. Can also testified that whenever she saw Ragas, she was not well groomed. Sonco testi- fied that at about this time Carr told him not to call Votto, and Ragas; however, in an affidavit supplied to the Board, Sonco stated: "I was never advised to exclude those two individuals [Votto and Ragas] from the list." The affidavit also states the the banquet schedule at the facility was slow during the summer. Amato testified that when he started doing the scheduling, beginning with the October affairs, Votto and Ragas' names were on the list and nobody ever instructed him not to call them. He testified that he does not know why they are no longer employed there, and that if Votto and Ragas came to him for work he would give it to them. Howev- er, unanswered is why he did not assign them to work when he began making the job assignments commencing with the October banquets; he testified that they were on the list, he was never told not to assign them and if they came to him, he would give them work' Because of this confusing and conflicting testimony by Respondent's witnesses, together with the position papers supplied to the Board, and the "both barrels" and "weed them out" statements made by Pereira, I find that com- mencing on June 18 and July 16 Respondent stopped giving work assignments to Votto and Ragas because of their protected concerted activities and the filing of the charge with the Board, in violation of Section 8(a)(1) and (4) of the Act. The complaint also alleges that Respondent, by Amato, threatened its employees with reprisals, including the denial of work assignments, if they engaged in pro- tected concerted activities. The evidence to support this is Pasquale's testimony that on about August 28 as she was leaving the office after picking up her paycheck for her last day of employment, August 21, Amato told her that he had bad news for her, that Votto, Ragas, and Manla were on the blacklist. She asked what a blacklist was and he said: "when you're on the blacklist, you 407 don't work." Pasquale asked if she was on the list and'he said: "Not that I know of." Sometime subsequent to that conversation, Amato called her and told him that he had bad news that Manla would not be able to work at the facility any more because "she butted into too many things" and put her nose into too many things. Amato testified that he was never present at the facility in August and did not return to work until September; ad- ditionally, he never had such conversations with Pas- quale . In making this credibility determination, I have less difficulty with Pasquale's testimony that it occurred at the end of August when Amato did not return to the facility until September (her estimate may have been off by a week) than I do with the reality of the situation; why should Amato, who was in charge of the schedul- ing, initiate a conversation with Pasquale and tell her that three employees, including her daughter, were on the blacklist and would not work, and then subsequently call and tell her that Manla could not work because she butted into too many things, when he had previously told her that Manla would not work because she was on the blacklist? Because I have difficulty with this concept, I credit Amato, and would recommend that this 8(a)(1) allegation be dismissed. The final allegation is that Respondent violated Sec- tion 8(a)(1) of the Act by not giving any work assign- ments to Conoran and Pasquale due to their protected concerted activities. The alleged reason for the discrimi- nation is the signing of the March 22 letter by both, for Pasquale, the fact that Ragas is her daughter and for Conran the fact that at her meeting with Pereira she re- fused to identify those who had initiated the letter. Conoran began working for Respondent in 1985 and by March was fourth or fifth on the call-in list. During a period which ended in October 1987, she was employed as a captain, which involved assisting the maitre d' in scheduling or directing the waiters and waitresses. She testified, that, in the past, she always worked at least once a week during the summer. As stated, supra , in late March she was scheduled to work Easter Sunday; she protested to Amato that she wanted to spend the day with her children. Amato told her that if she didn't work on that day, "you don't have a job here." Conoran ob- jected to the unfairness of it and Amato told her that she should talk to Pereira about it. She discussed it with Pe- reira at the "both barrel," conversation and worked on Easter Sunday. Her last day of work for Respondent was the end of June; as to why she is no longer employed there, she testified: "Honestly, I don't know." She called the facility on a few occasions after June; on those occa- sions, Sonco told her that he already had enough help or he had no work. On occasion she called and left a mes- sage, but received no call in return. Respondent's wit- nesses testified as follows: Pereira testified that he did not know why Conoran was no longer employed at the facility; Sonco testified: "I call if I remember one day and she came working one Saturday"; he did not sched- ule her for September. After that, Amato took over the scheduling. Amato testified that he could not remember whether he called Conoran, when he commenced sched- uling for the October affairs and could not give a reason 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD why he would not have called her. I find that General Counsel has sustained her burden under Wright Line she was one of the signers of the letter (as were all, or almost all, of the waiters and waitresses) and, at the meeting with Pereira, she refused to tell him who initiat- ed or typed the letter. This is certainly not the strongest case, but it is barely enough to satisfy the initial burden under Wright Line. I also find that Respondent has not sustained its burden under Wright Line; in fact, Respond- ent presented no evidence at all as to why Conoran has not been called since June. Here was an employee who was capable enough to be the captain at the facility for a period of time. In the past, she worked from 1 to 4 times a week for Respondent. For Respondent to offer no ex- planation for not calling Conoran leads to the inescap- able conclusion that it was due to her protected activities in violation of Section 8(a)(1) of the Act, and I so fmd. Pasquale was on the top 10 on the list; her last day of work was August 21. She received one assignment after that, but became "deathly sick" and called the facility and informed Malizia of her condition and that she would not be at work for the assignment. The following week she called the facility and asked about work; she was told that because she did not report for the job the prior week, she would not be allowed to work at the fa- cility again. Sonco testified that Pasquale did not appear for the affair in question and never called to say that she would not be there. I find that General Counsel has sus- tained her burden under Wright Line; Pasquale signed the March 22 letter and is Ragas' mother. I further fmd that Respondent has not sustained its burden; admittedly, Pas- quale did not work her last job assignment. She testified that she called the facility to say that she would not be able to work; Malizia testified that she sometimes an- swers the phone and takes messages from waiters and waitresses. She never denied that Pasquale called her to say that she could not work on the day in question. I therefore credit Pasquale that she did call and find that Respondent used this as a pretext to stop calling her. I therefore find that by failing to call Pasquale since about August 21 Respondent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Westmont Plaza, t/a the Aspen, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent violated Section 8(a)(1) of the Act by threatening its employees with reprisals if they continued to utilize the Board's processes. 3. Respondent violated Section 8(a)(1) of the Act by discharging Judith Votto and Deborah Ragas on or about March 23, and by denying work assignments to Patricia Conoran and Constance Pasquale in about June and August. 4. Respondent violated Section 8(a)(1) and (4) of the Act by denying work assignments to Votto and Ragas beginning on or about June 18 and July 16. 5. Respondent did not violate the Act as further al- leged in the complaint. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, it will be rec- ommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Respondent shall offer Votto, Ragas, Conoran, and Pasquale reinstatement to their former po- sitions, i.e., by placing their names on the assignment list in the same order that they had been prior to March 22 and assigning them work as it would have done prior to March 22. It is also recommended that Respondent be ordered to make them whole for any loss they suffered due to the lack of assignments since the periods in ques- tion, and to make whole Votto and Ragas for any loss they may have suffered during their period of termina- tion from March 23 to about April 3 and 11, without the loss of seniority or other rights and privileges. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950); New Horizons for the Retarded, 283 NLRB 1173 (1987). See generally Isis Plumbing Co., 138 NLRB,716 (1962). On these findings of fact and conclusions of law and the entire record, I issue the following recommended? ORDER The Respondent, Westmont Plaza, t/a the Aspen, Par- sippany, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging, or refusing to assign work to, employ- ees in retaliation for their protected activities. (b) Discharging or refusing to assign work to its em- ployees in retaliation for their filing an unfair labor prac- tice charge with the Board. (c) Threatening its employees with reprisals for utiliz- ing the Board's processes. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their Section 7 rights. 2. Take the following affirmative action to effectuate the policies of the Act. (a) Reinstate Votto, Ragas, Conoran, and Pasquale to the list from which Respondent chooses waiters and waitresses for assignment and with the same seniority that they enjoyed prior to March 22, 1988. (b) Assign them work in the same manner as it did prior to March 22, 1988. (c) Make Votto, Ragas, Conran, and Pasquale whole for the loss they suffered as a result of the discrimination in the manner set forth in the remedy section of the deci- sion. (d) Remove from its files reference to the refusal to employ Votto, Ragas, Conoran, and Pasquale, and notify them in writing that this has been done and that evi- 7 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses. ASPEN deuce of this unlawful activity will not be used as a basis for future actions against them. (e) Preserve and, on request, make available to the Board or its agents for examination or copying, all records or documents necessary to analyze and deter- mine the amount of backpay owed to Votto, Ragas, Con- oran, and Pasquale. (f) Post at its Parsippany, New Jersey facility copies of the attached notice marked "Appendix."8 Copies of such notice, to be furnished by the Regional Director for Region 22 of the Board, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed as to matters not specifically found here. 8If 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 Nation- al 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 409 The National Labor Relations Board has found that we violated the NationalLabor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT threaten our employees with reprisals if they continued to utilize the processes of the National Labor Relations Board. WE WILL NOT discharge or refuse to assign work to our employees because they utilized the processes of the National Labor Relations Board. WE WILL NOT discharge or refuse to assign work to our employees because they engaged in protected con- certed activities. 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. WE WILL make whole Judith Votto, Deborah Ragas, Patricia Conoran, and Constance Pasquale, with interest, for any loss of earnings they may have suffered as a result of our discrimination against them and we will offer them full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or other rights and privileges. WE WILL remove from our files any reference to our failure to employ Votto, Ragas, Conoran, and Pasquale and notify them in writing that this has been done and that evidence of this unlawful action will not be used as a basis for future personal action against them. WESTMONT PLAZA, T/A THE ASPEN