Southern Florida Hotel & Motel Association

SOUTHERN FLORIDA HOTEI & MOTEL ASSOCIATION Southern Florida Hotel & Motel Association, and its employer-members, The Estate of Alfred Kaskell d/ b/a Carillon Hotel; The Estate of Alfred Kaskel d/ b/a Doral Hotel and Country Club; The Estate of Alfred Kaskel d/b/a Doral Beach Hotel' and Hotel, Motel, Restaurant & Hi-Rise Employees & Bar- tenders Union, Local 355, AFL-CIO Beau R. Corp. d/b/a Beau Rivage Hotel2 and Hotel, Motel, Restaurant & Hi-Rise Employees & Bar- tenders Union, Local 355, AFL-CIO The Estate of Alfred Kaskel d/b/a Doral Hotel and Country Club and Sonia Castellon, Miguel A. Zulon, Miguel Melendez, Antonio Martin, Apolon Fluerantin, Marilyn De Boeser, Alex Phanord, Rai- mundo Arce, Pilar Carrasco, Raquel Dumois, Ar- mando Maresma, Mirta Tamargo, Paula Martinez, Juan M. Serret, Elizabeth N. Dean, Pedro H. DeMendoza, Estrella Espino, Eufemia Villacampa, Ruth L. Jennings, and Raul Hernadez The Estate of Alfred Kaskel d/b/a Doral Beach Hotel and Alicia M. Rios The Estate of Alfred Kaskel d/b/a Doral Beach Hotel and Hotel, Motel, Restaurant & Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO. Cases 12-CA-7558, 12-CA-7662, 12-CA-7634, 12-CA- 7677, 12-CA-7706, 12-CA-7754, 12-CA-7774-1, 12-CA-7774-2, 12-CA-7774-3, 12 CA-7774-4, 12 CA 7774-5. 12-CA-7774-6. 12-CA-7780 1, 12 CA-7780 2. 12-CA-7780 3. 12-CA-7780-4. 12-CA 7780 5, 12-CA-7780-6. 12 CA 7780 7, 12-CA-7780-8, 12 CA 7780-9, 12-CA 7796 12 CA-7676, and 12 CA-7784 1 and 7784 2 September 28. 1979 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 29. 1978, Administrative Law Judge Joseph . Nachman issued the attached Decision in this proceeding. Thereafter, Respondents3 filed excep- The Estate of Alfred Kaskel d/b/a Carillon Hotel therein called ('aril- Ion), The Estate of Alfred Kaskel d/b/a Doral Hotel and Country Club (herein called Country Club). and The Estate of Alfred Kaskel d/b/a Doral Beach Hotel (herein called Doral Beach) are owned by the same enterprise and constitute a single integrated employer. Herein called Beau Rivage. 'All four of Respondent hotels as well as the Southern Florida Hotel & Motel Association are represented by the same counsel. Respondents' coun- sel filed 3 single set of exceptions, bnef, and answering brief covering all issues that apply to the various Respondents. tions and a supporting brief'4 and General Counsel and Charging Party Hotel, Motel, Restaurant & Hi- Rise Employees & Bartenders Union. Local 355. AFL CIO.5 each filed limited cross-exceptions and a supporting brief. Respondents filed an answering brief to the General Counsel's and Union's cross-ex- ceptions. 6 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the attached Decision in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. as modified herein. I. Respondents contend that the Administrative Law Judge's Decision contains numerous factual er- 4 Respondents have requested oral argument his request is hereby de- nied. as the record. the exceptions. and the brief, adequalel, present the issues and positions of the parties. Herein called the Union The General Counsel and Union filed motions to strike certain portions of Respondents' brief and the General Counsel alsoi filed a supplemental motion to strike certain portions of Respondents' answering brief In an apparent attempt to support several of his contentions and to discredit and disparage the Union. Respondents' counsel attached as exhibits to his briefs certain documents and newspaper clippings having to do with the Union's financial position and the activities of certain individuals associated with the Union These unauthenticated documents were not introduced as evidence at the hearing and are not part of the record in this proceeding See Sec. 10245 (h) of the Board Rules and Regulations. Senes 8, as amended Ac- cordingly. we grant the General Counsel's and Union's motions, and strike Exh. A and E attached to Respondents' brief and Exh B attached to Re- spondents' answenng brinef. The General ('ounsel and Union also request that the Board strike certain irrelevant. impertinent. and scandalous state- ments from Respondents' briefs and the I nion further requests that the Board take appropriate disciplinar acltion against Respondents' counsel fir his having engaged in improper conduct Respondents' counsel's unprofes- sional and unseemly remarks. particulary his comments claiming senility of the Administrative Law Judge. are totall inappropriate and uncalled for: however. in the circumstances of this case we do not believe that further disciplinary action is necessary other than the instant expression of strong disapproval. 7 Respondents contend that the Administrative La.w Judge's resolutions of credibility, findings of fact. and conclusions of law are the result of bias and prejudice. After a careful examination of the record, we are satisfied that this allegation is without merit. There is no basis fr finding that bias and partial- ity existed merely because the Administrative Law Judge resolved important factual conflicts in favor of the General Counsel's witnesses. As stated by the Supreme Court in Pittsburgh S. S. Co., 337 U.S. 656. 659 (149), "ITlotal rejection of an opposed view cannot of itself impugn the inlegrity or compe- tence of a trier of fact." Furthermore. it is the Board's established polic not to over.ule an administrative law judge's resolutions with respect to credlbil- ity unless the clear preponderance of all the relevant evidence cons inces us that the resolutions are incorrect. Standard Dn Wall Prusoucti. Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d ('ir 19SI) We have carefulls examined the record and find no basis for reversing his findings. We d find merit in Respondents' contention that the Administrative Law Judge incor- rectly referred to another administrative law judge's observations concerning Macrann Viertbauer's testimony in another proceeding (see fn 84 of' the Administrative Law Judge's Decision herein). i'mett. Inc. 135 NLRB 1305 (19621, and alle' Forge Flag Coimpan. 158 NI.RB 1227 1966). Iiowever. since the prior matter was merely noted. and since the Administrative Law Judge's credibility resolutions in the instant case were. in act, based on the witnesses' demeanor dunng the hearing as well as the nature of the testi- mons and cannot, on the record. he said to be clearly erroneon,. we accept the credibility reslutions as to Vlertbauer. In acrttd with established Board policy. Standard DN e Wall Products. Inc. supra. 245 NLRB No. 49 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rors that undermine the reliability and accuracy of his findings and conclusions. We have carefully reviewed the record and Decision in light of this argument and reject Respondents' contention. While the Adminis- trative Law Judge's Decision does contain some fac- tual errors, in view of the length of the hearing and the voluminous size of the transcript and exhibits, the number of errors is not only rather small, but the errors are generally either insignificant or pertain to tangential matters that do not affect the Administra- tive Law Judge's findings on essential factual issues. In any event, the errors do not demonstrate, as Re- spondents contend, that the Administrative Law Judge or his opinion is inherently unreliable. With the foregoing in mind, we make the following corrections and modifications to the Decision: (a) In footnote 8 of his opinion, the Administrative Law Judge finds the unit alleged as appropriate in the amended complaint to constitute the appropriate unit at Respondents' hotels. The General Counsel, how- ever, presented no evidence concerning the appropri- ate unit and the collective-bargaining agreement's ref- erence to the unit is couched in general terms that fail to state the specific categories of employees included within the unit. In any event, since Respondents do not contest the Administrative Law Judge's finding on the ground that his 8(a)(5) findings are based on an inappropriate unit, the Administrative Law Judge's finding does not affect the result. (b) In the first paragraph of section A,(I). of his opinion, the Administrative Law Judge states that the Association is comprised of 22 employers. The num- ber should read "32." (c) In footnote 90 of his opinion, the Administra- tive Law Judge inadvertently refers to Coleman, counsel for Union Local 355, as "Caldwell." (d) In the first paragraph of section A(12) of his opinion, the Administrative Law Judge incorrectly designates the particular legal proceeding that re- sulted in an order directing the parties to meet and discuss the mass "layoffs" of employees. The record indicates that the legal action resulting in the order was filed by the Union and involved the arbitration provision contained in the parties' collective-bargain- ing agreement. (e) In the second paragraph of section A,(3), of his opinion the Administrative Law Judge states that the Association's members consented to the execution of the collective-bargaining agreement at a morning meeting on January 17, 1977.8 However, the record shows that the Association's membership authorized its representatives to ratify the contract prior to Janu- ary 17 and that the meeting held on that date was actually called to distribute copies of the contract to I Hereinafter, all dates are in 1977, unless designated otherwise. the membership and to explain the agreement to those members of the Association that had signed in- terim agreements with the Union.9 (f) In footnote 37, the Administrative Law Judge inadvertently refers to employee Luis Cebey as "Luis Irby." (g) In the chart located after the third paragraph of section A,(7), and at other points in his Decision, the Administrative Law Judge finds that all unit em- ployees at Country Club, Doral Beach, and Carillon struck those hotels. That finding is not supported by the record. However, the fact that some unit employ- ees continued to work during the strike does not bol- ster Respondent's position; rather it provides an addi- tional indication that Respondents' mass termination of returning strikers was discriminatorily motivated. It is uncontroverted that supervisors at the hotels were instructed to place only the names of returning strikers on the lists of employees earmarked for layoff. While Respondents offered an explanation for leaving probationary employees off the layoff lists, no equiv- alent rationale was provided to explain why the names of nonstriking unit employees with seniority should not be placed on the lists. If, as argued by Respondents, the sole purpose of the lists was to des- ignate "unqualified" employees, then there is no dis- cernible explanation for the supervisors to have been instructed to place only the names of returning strik- ers on the lists. However, that instruction is entirely consistent with the finding that the true intent in for- mulating the lists and implementing the discharges was to retaliate against those of Respondents' em- ployees who had dared to engage in a lawful eco- nomic strike. 2. Respondent Beau Rivage excepts to the Admin- istrative Law Judge's finding that it discharged wait- resses Mary Colbert, Sally Green, and Mae Summers in violation of Section 8(a)(3) and (1) of the Act. In support of its exceptions, Beau Rivage contends that the jobs of the three waitresses were eliminated and that this constituted the sole reason for Beau Rivage's refusal to reinstate the three employees at the strike's conclusion. After thoroughly reviewing the record, we are un- able to find that Beau Rivage has overcome the Gen- eral Counsel's evidence that its failure to reinstate employees Green, Colbert, and Summers was unlaw- ful.' ° Respondent Beau Rivage elicited testimony to I This correction does not affect the finding that the agreement became effective shortly before noon on January 17 since the agreement provides that it becomes effective upon execution and since it is undisputed that the contract was executed by the Association's officials dunng the January 17 meeting 10 Although we agree with Beau Rivage's contention that the Administra- tive Law Judge erred in finding that only 4 of its employees participated in the strike (it appears that the actual number was around 30). nevertheless, we believe that the Administrative Law Judge's finding that the waitresses 562 SOUTHERN FLORIDA HOTEL & MOTEI. ASSOCIATION the effect that during the strike it modified its morn- ing restaurant service by substituting a buffet format for normal table service, which decreased the hotel's personnel requirements for waitresses. However, Beau Rivage failed to establish that the particular jobs eliminated as a result of the shift to buffet service in the morning were those of Green, Colbert, and Summers. Nor is the record entirely clear as to whether Beau Rivage retained any waitresses hired as strike replacements in place of any or all of the three employees laid off, a circumstance that would breach the terms of the strike settlement agreement." Since there are a number of remaining uncertainties with respect to the issue of whether the jobs of the three waitresses eliminated, we will leave, according to our regular practice, the final resolution of this matter to the compliance stage of this proceeding. 3. Respondents except to the Administrative Law Judge's finding that various management and super- visory personnel made threatening statements to em- ployees in violation of Section 8(a)(1) of the Act. We agree with Respondents only with regard to the Ad- ministrative Law Judge's finding that Richard Lem- mel, a supervisor at Country Club, made threatening statements to employees. We do not adopt that find- ing as it is not fully supported in the record." 4. Respondents except to the Administrative Law Judge's finding that Country Club and Doral Beach condoned the alleged strike misconduct of employees Jose Ortega, Emanuel Garcia, and Pedro Gonzalez.' 3 The strike misconduct raised by Respondents tojusti- fy the discharges of the three employees occurred during the course of the strike and prior to the strike settlement agreement. Security personnel, employed were unlawfully terminated is supported by a preponderance of the credited evidence and we adopt that finding. 1 Under the terms of the stnke settlement agreement., the hotels agreed to reinstate all striking employees to their former jobs, with the exception of employees whose jobs were eliminated and employees whose jobs were in departments that were temporarily closed As discussed below, we have found that Respondents' "layoffs" or discharges of stinking employees breached the stnke settlement agreement and constituted a violation of Sec 8(aX5) and (1) of the Act. 12 Respondents contend that Josephine Riccio, a head hostess at Country Club, is not a supervisor and argue that the Administrative Law Judge erred in finding that her coercive statements violated Sec. 8(aXI) of the Act. We agree with the Administrative Law Judge's determination that Ricco is a supervisor and adopt his finding that she made unlawful threats to employ- ees. However, at the hearing and in their brief Respondents pointed out that Riccio replaced Claudine Collazo as head hostess. The amended complaint alleged and the Administrative Law Judge found that Collazo was termi- nated in violation of Sec. 8(aX3) and (I) of the Act. Respondents argue that the findings in regard to Riccio and Collazo are inconsistent. We agree. Since the evidence establishes that Riccio is a supervisor and since Collazo pos- sessed virtually the identical indicia of supervisory authonty as Riccio, we find that Collazo was also a supervisor and, consequently, that the Adminis- trative Law Judge erred in finding that Respondent Country Club unlawfully discharged Claudine Collazo. 1 Prior to the strike, Ortega and Gonzales worked a Country Club and Garcia at Doral Beach by the hotels, either witnessed or were involved in all three incidents of alleged strike misconduct. During the course of the negotiations leading to the strike-settlement agreement, neither the Union nor the Association raised the topic of employees who engaged in strike misconduct. The settlement agree- ment required Respondents to reinstate all striking employees to their jobs, with the only exceptions being employees whose jobs were eliminated and em- ployees whose departments were temporarily closed at the time the strike concluded. Noting that Respondents' security personnel knew of the incidents of strike misconduct prior to the par- ties entering into the settlement agreement, the Ad- ministrative Law Judge found that Respondents' fail- ure to exclude employees who engaged in strike misconduct from the obligation to reinstate all the striking employees demonstrated a willingness to for- give or condone that misconduct and to allow the three employees to return to their jobs with a clean slate. Respondents contest that finding, arguing they never indicated any willingness to forgive the strike misconduct by the three employees or waive their right to rely on it to justify the discharges. In the instant case, the Administrative Law Judge relied on the strike settlement agreement to establish Respondents' condonation of the three employees' strike misconduct. In our view, Respondents' agree- ment to return all striking employees does not evince a willingness to wipe the slate clean and to continue the employer-employee relationship because not only was the subject of strike misconduct not raised or dis- cussed by either the Union the employer-employee relationship because not only was the subject of strike misconduct not raised or discussed by either the Union or the Association, but the record is unclear as to whether the Association's negotiators possessed knowledge of the incidents of strike misconduct. Even if the negotiators knew about the incidents of miscon- duct, given the absence of any reference to employees engaging in such activity, the terms of the settlement agreement provide but a slight inference that Respon- dents were agreeing to forgive any or all strike mis- conduct. Moreover, we note that the hotels dis- charged the three employees before any of the three actually returned to their jobs. This indicates that Re- spondents never forgave the three employees' strike misconduct and that Respondents understood the set- tlement agreement's provisions as not being appli- cable to employees who engaged in strike misconduct. In other instances where the Board has found condo- nation, the employer's conduct usually involves some positive manifestation of a willingness to forgive the specific misconduct involved. While we do not sug- gest that condonation could not be found in an in- stance lacking some positive assertion on the part of 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an employer that it is willing to forgive the specific misconduct involved, we believe that in the context of the instant case Respondents' action of entering into the settlement agreement, unsupported any other fac- tor indicating a willingness to forgive the incidents of strike misconduct, provides an insufficient basis to support the conclusion that Respondents condoned the strike misconduct by the three employees. Ac- cordingly, we do not adopt the finding that by enter- ing into the strike settlement agreement, Respondents condoned the strike misconduct of employees Ortega, Garcia, and Gonzalez.'4 The Board and courts have consistently ruled that not every act of misconduct committed during a strike deprives an employee of the Act's protection.5 Although an employee may have engaged in miscon- duct, he or she may not be deprived of reinstatement rights absent a showing that the conduct was so vio- lent or of such a serious nature as to render an em- ployee unfit for future service)6 With the foregoing in mind, we turn to the three discharges. Employee Jose Ortega's alleged misconduct oc- curred on the afternoon of December 30, 1976. Around 2:30 a cab containing a man and a woman, guests at Country Club, pulled up towards the hotel to drop off its passengers. When the cab arrived at the hotel, Ortega became agitated and yelled obscenities; finally, he unzipped his pants and exposed himself. The arriving guests observed Ortega's act, as did sev- eral other persons. In our view, Ortega's misconduct is sufficiently seri- ous to warrant his discharge. Ortega's misconduct oc- curred in the presence of and, indeed, appeared to be directed at guests arriving at Country Club-the life- blood of the hotel. Country Club had a reasonable basis to conclude that its guests might be deeply of- fended by such conduct. In our view, conduct by an employee intentionally designed to alienate or offend guests at a hotel is grounds for the employee's dis- charge by the hotel. The incident involving Emanuel Garcia occurred on December 28, 1976. At or about 10:30 a.m., as a car arrived at Doral Beach, a number of strikers, 14 Chairman Fanning does not join his colleagues in finding that the Ad- ministrative Law Judge erred in finding that the strike settlement agreement condoned the strike misconduct of the three employees. He would instead adopt in their entirety the findings, conclusions, and recommendations of the Administrative Law Judge concerning Ortega, Gonzalez. and Garcia, for the reasons set forth in the Administrative Law Judge's opinion. Chairman Fan- ning would further find that the discharges of the three employees breached the terms of the settlement agreement and, consequently, violated Sec. 8(a)(5) and (1) of the Act. In addition, Chairman Fanning would find the discharges of Raul Barroso and Maximo Gil to be unlawful since he does not believe that their misconduct was sufficiently serious to warrant their termi- nations. is Coronet Casuals, Inc.. 207 NLRB 304 (1973); N.L.R.8. v. Fansteel Met- allurgical Corporation, 306 U.S. 240 (1939). 16 MP Industries, Inc., etc., 227 NLRB 1709 (1977). among them Garcia, surrounded the car and began rocking it. A bottle was thrown through the car's rear window. Hotel security guards approached the car and began clearing away strikers from the car. Garcia and other strikers grabbed security guard Forest Eck- ert. Robert Levitt, a second guard, attempted to pull Eckert away, but as he did so Garcia threw a punch at Eckert that was partially deflected by Levitt. The blow landed on Eckert's shoulder. Garcia's misconduct occurred in the context of a purely economic strike: there is no contention that Respondents provoked the strike by committing any unfair labor practices. Thus, in evaluating Garcia's conduct there is no mitigating responsibility on the part of the hotel to balance against the seriousness of Garcia's conduct. Garcia's conduct amounts to an unprovoked and violent attack that could have re- sulted in serious injury. We believe that Garcia's con- duct is beyond the range of minor scuffles and similar misconduct that can be expected to occur on a picket line and conclude that his misconduct was sufficiently serious to warrant his discharge by Doral Beach. Pedro Gonzalez was discharged for throwing a rock at a taxicab as it drove away from Country Club on January 5. Although security investigator Chuck Collado testified that he saw Gonzalez throw a rock at the cab, and heard the rock strike the cab, there is nothing to indicate that the rock caused any damage to the vehicle or impaired the driver's ability to con- trol the car's course. Collado testified that, after the cab was struck, the driver stopped the car, inspected it, and then drove away. While we do not condone such misconduct, we are of the opinion that Gonzal- ez' conduct is the type of impulsive, minor misbehav- ior that can be expected on a picket line during the course of a lengthy and tense strike. We find that the strike misconduct raised by Respondent Country Club is not sufficiently serious to justify Gonzalez' discharge, and, accordingly, we find that Respondent Country Club violated Section 8(a)(3) and (1) of the Act by discharging employee Pedro Gonzalez.'7 'I Member Murphy disagrees with Chairman Fanning and Member Jen- kins insofar as they find that Gonzalez was discharged in violation of Sec. 8(a)(3) of the Act. Member Murphy notes that, as set forth in fn. 14, supra, Chairman Fanning would find that, by virtue of the terms of the strike settlement agreement, Respondent condoned the strike misconduct of Gon- zalez and hence his subsequent discharge for such misconduct violated Sec. 8(a)3) of the Act; whereas Member Jenkins, on the other hand. has joined with her in finding that Gonzalez' misconduct was not condoned by Respon- dent, but he nevertheless finds that the misconduct in question was not suffi- ciently serious in itself to justify the discharge which was therefiore in viola- tion of Sec. 8(aX3) of the Act. Unlike her colleagues, Member Murphy would find Respondent's dis- charge of Gonzalez was for cause under the circumstances. for precisely the same reasons that Garcia's discharge was found for cause as set out in the immediately preceding paragraph of this Decision. Member Murphy finds that each sentence about Garcia's conduct applies with equal force to Gon- zalez' conduct. Further, Member Murphy notes that she and Member Jen- kins, in agreement with the Administrative Law Judge and contrary to Chairman Fanning, have found that the picket line misconduct engaged in '64 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION 5. Respondents' exceptions challenge the ultimate unfair labor practice findings but' do not specifically challenge the sufficiency of the evidence establishing that the following individual employees were dis- charged in violation of Section 8(a)(3) and (1) of the Act. Nevertheless, our review of the record reveals on January 17 by employees Paul Barroso (stnriking a security guard with a thrown rock) and Maximo Gil (striking a security guard with his fist) was, in the words of the Administrative Law Judge, "violent conduct calculated to inflict physical injury," and thus justification for their discharges. Member Murphy points out that neither she nor Member Jenkins has distinguished between the use of fists (Garcia and Gil) and rocks (Barroso and Gonzalez) in assessing the relative severity of the misconduct in question. Nor, appar- ently, is there any basis for distinguishing these four incidents on the grounds of the existence or relative severity of any injuries or damage inflicted, since there is no evidence of any significant personal injury or property damage resulting from any of these attacks. Member Murphy does not, as she construes Member Jenkins to be doing, distinguish between the seventy of the attacks engaged in by Garcia, Bar- roso, and Gil and that engaged in by Gonzalez on the grounds that in the former three incidents the intended victim was a person, while in Gonzalez' case the target was an occupied moving vehicle. Member Murphy finds any such distinction to be at best arbitrary under these circumstances, and notes, in any event, that the potential for serious injury to people resulting from the hurling of a rock at an occupied moving vehicle is at least equal to that which could result from the punching of, presumably, wary and alert secu- rity guards. Consequently, Member Murphy would find Gonzalez' miscon- duct to be at least equally as serious as that of Garcia, Barroso, and Gil. Accordingly, she would find the discharge of Gonzalez to be as fully justified and lawful as the discharges of the other three, as to which she and Member Jenkins are in complete agreement. Is Respondents except to the Administrative Law Judge's inclusion of a number of probationary employees in the larger complement of employees found to have been unlawfully discharged. Respondents contend that the protections of the collective-bargaining agreement did not extend to proba- tionary employees and consequently they were empowered to discharge those employees for cause or any other reason. Respondents' contention is without merit. The Administrative Law Judge found that Respondents' mass discharge of employees discriminated against employees because of their assistance to and support of the Union. Accordingly, even though the collec- tive-bargaining agreement granted Respondents broad discretion to dis- charge probationary employees, it does not render lawful Respondents' dis- charge of probationary employees in retaliation for their assistance to and support of the Union. Lapeer Metal Products Co., 134 NLRB 1518 (1961): and Amole, Inc., 214 NLRB 67 (1974). Consequently, the Administrative Law Judge correctly included probationary employees within the list of em- ployees unlawfully discharged. Furthermore, Respondents' agreement to re- instate all the strikers encompassed an obligation to reinstate all striking probationary employees. Thus, as discussed infra, Respondents' discharge of probationary employees also constituted a violation of Sec. (aX)5) and (1) of the Act. Respondent Country Club similarly excepts to the Administrative Law Judge's finding that its discharge of golf department employees violated Sec. 8(aX3) and (I) of the Act. Country Club points to the Board decision in The Estate of Alfred Kaskel d/b/a Doral Hotel and Country Club, 235 NLRB 1357 (1978), wherein the Board ruled that the golf department employees constituted a separate unit and found that Country Club violated Sec. 8(a)(5) and (I) of the Act by refusing to bargain with the Union with regard to the golf department employees. However, the above facts do not affect the Ad- ministrative Law Judge's findings with regard to the golf department em- ployees. When Respondent Country Club terminated golf department em- ployees, it did so on the same basis as all other employees included in the mass discharge. Respondent's argument that the golf department employees were discharged for picketing in violation of the no-strike provision con- tained in the separate contract covering those employees was never raised at the time of the discharges and is patently an aflerthought, first raised only after Country Club was found to have violated Sec. 8(aX5) of the Act by refusing to bargain with the Union with regard to the golf department em- ployees, and hence was not its reason for discharging them. Moreover, the agreement to reinstate all striking employees encompassed golf department employees and consequently, as discussed infra, Country Club's subsequent discharge of golf department employees violated that agreement and consti- tuted a violation of Sec. 8(aX5) and (1) of the Act. that the evidence is insufficient to support the findings that the following alleged discriminatees were unlaw- fully discharged.' (a) Carmen Subriana (Country Club): Subriana was recalled to work after the strike. Her supervisor in- formed Subriana that her new schedule required her to work until 4 p.m. Subriana refused to return saying she could not return under those conditions. Subse- quently, Subriana attempted to return but was told that was no longer needed. We find that Subriana voluntarily resigned from her job. (b) Sonia Castellon (Country Club): After the strike, Country Club recalled Castellon to work and assigned her to a new work schedule. Castellon re- fused to return because the new schedule interfered with her other job. Castellon was also offered two other full-time jobs which she refused. We find that Castellon voluntarily resigned from her job. (c) Jerrilene G. Paschal (Country Club). After the strike Paschal was recalled to work and assigned to a different shift. Paschal told her supervisor that she could not return under those conditions because her new hours conflicted with the hours Paschal worked at another job. We find that Paschal voluntarily re- signed from her job. (d) Angel V. Martinez (Doral Beach): Martinez was recalled after the strike. When he returned, Martinez was told that he should call his supervisor for his work schedule. Martinez insisted on working a fixed 5-day schedule, but his supervisor said that was not possible. Martinez then requested either a guaranteed 5-day schedule or a layoff. He was given a layoff. Martinez subsequently called and asked if things had been organized, but was told no. He was not subse- quently recalled. In our view the above evidence es- tablishes only that Martinez voluntarily requested a layoff and fails to show that Martinez was unlawfully discharged. (e) Catherine Rogers (Country Club). Rogers went on maternity leave prior to the inception of the strike and remained on leave during the course of the strike. When Rogers attempted to return to work in late February, she was told there was no space for her in her previous department. Rogers then rejected an- othel job in the laundry room because it required her to stand while she worked. We find that the evidence fails to establish that Catherine Rogers was unlaw- fully discharged. 1' At the start of the heanng, counsel for the General Counsel moved to have the names of six employees deleted from the complaint and that motion was granted without objection. The Administrative Law Judge inadvertently included the six employees on the list of employees discriminatorily terr- nated by Respondents. We will delete the names of the six employees. Or- quiza E. Godwall (Country Club), Andrea Barreda (Doral Beach), Rodn- quez Z. Rego (Doral Beach). Barbara D. Roper (Doral Beach). Mar A Pizzani (Carillon), and Ralph Sacre (Carillon). 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Imre Deak (Doral Beach). Deak did not testify at the hearing. Employment records show that Deak resigned on January 28, after having returned for I day of work after the strike. The records further show that Deak again returned to work at Doral Beach on March 26. H. Lee Levine, personnel director for Country Club and Doral Beach, testified that Deak remained an employee of Doral Beach. We find that the evidence fails to establish that Imre Deak was unlawfully discharged. (g) Angel Feliciano (Doral Beach). Feliciano did not testify. Personnel Director Levine that after the strike he called Feliciano but was told that Feliciano had obtained other employment. We therefore find that the evidence fails to establish that Angel Felici- ano was unlawfully discharged. (h) Juana Gonzalez (Doral Beach): Gonzalez did not testify. Levine testified that Gonzalez was recalled to work after the strike and worked from mid-Janu- ary through March. There was no evidence of what occurred with regard to Gonzalez after that. We find that the evidence fails to establish that Juana Gonzal- ez was unlawfully discharged. (i) Luis Hernandez (Doral Beach): Hernandez did not testify. Levine testified that Hernandez returned to Doral Beach after the strike and worked until Oc- tober 1. There is no evidence concerning Hernandez' status after that date. We find that the evidence fails to establish that Luis Hernandez was unlawfully dis- charged. (j) Alonzo Stroman (Doral Beach): Stroman did not testify. Levine testified that Stroman was recalled to work and subsequently resigned. We find that the evi- dence fails to establish that Alonzo Stroman was un- lawfully discharged. (k) Ann Marshall (Doral Beach): Marshall did not testify. Levine testified Marshall voluntarily resigned. We find that the evidence fails to establish that Ann Marshall was unlawfully discharged. (1) Luis Pereira (Doral Beach). Pereira did not tes- tify. Levine testified that Pereira was recalled to work and returned on February 5. Levine further testified that Pereira remained an employee at Doral Beach. We find that the evidence fails to establish that Luis Pereira was unlawfully discharged. (m) Linda Rubin (Doral Beach): Rubin did not tes- tify. Levine testified that Rubin resigned to take other employment. We find that the evidence fails to estab- lish that Linda Rubin was unlawfully discharged. 6. The General Counsel and the Union cross-ex- cept to the Administrative Law Judge's failure to find that Respondents' repudiation of the strike settlement agreement, by and through the termination of return- ing strikers, constituted a violation of Section 8(a)(5) and (1) of the Act. As part of the strike settlement agreement Respondents agreed to the reinstatement of striking employees with two minor exceptions. By January 20, most of the strikers had returned; how- ever, on that date Respondents Country Club, Doral Beach, and Carillon began discharging substantial numbers of the returned strikers. We agree with the Administrative Law Judge's characterization that Re- spondents' "admitted agreement to recall the strikers has all the indicia of a promise made with tongue in cheek, and with which Respondents had no intention of keeping." However, the fact that Respondents had no intention of fulfilling their agreement to return the striking employees did not extinguish their obligation to do so. Accordingly, we find that the mass termina- tions of striking employees by Respondents Country Club, Doral Beach, and Carillon constituted a repudi- ation of the strike settlement agreement and violated Section 8(a)(5) and (1) of the Act.20 7. The General Counsel cross-excepts to the Ad- ministrative Law Judge's findings that employees Nina Enriguez, Miguel Melendez, and Liberatio Jor- don voluntarily terminated or abandoned their em- ployment and that employees Pablo Dominguez and Frank Toimel were discharged for cause. With the exception of Jordan, we adopt the Administrative Law Judge's findings and conclusions relating to the above-named individuals. Jordan worked at Doral Beach as the head barboy of a staff of four. He struck, picketed, and was re- called to work on January 17. On that day, Tony Cannes, Jordan's supervisor, told him that there were too many barboys and that two would have to be laid off. Cannes asked Jordan for his recommendation as to which two should be selected. Jordan said he would think the matter over. On the following day Jordan told Cannes that he felt it was improper for him to make any recommendation about employees to be laid off. Jordan also told Cannes that since he planned to retire in a few months he would be willing to take it now; in that way Cannes would only have to select one additional employee to accomplish the full reduction requirement. Cannes agreed and the matter was so resolved. We do not agree with the Administrative Law Judge's conclusion that Jordan voluntarily aban- doned his employment. Cannes' request that Jordan recommend two employees for layoff occurred in the midst of Respondent Doral Beach's implementation of the plan to terminate a substantial number of strik- Adams Iron Works, Inc., 221 NLRB 71 (1975). The Administrative Law Judge found that the termination of the returning strikers violated Sec. 8(aX3) and () of the Act and ordered reinstatement of the unlawfully dis- charged employees. Since the remedy for the repudiation of the stnke settle- ment agreement is identical, it is unnecessary to further modify either the Administrative Law Judge's remedy or Order other than to add the appro- priate cease-and-desist provision. The finding of this additional violation also applies to Respondent Beau Rivage (see fn. I I, supra). Accordingly, the separate order for that hotel will be modified to reflect this finding. 566 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION ing employees. Indeed, the reason provided by Cannes for laying off two barboys and the timing of his request to Jordan for recommendations establish that the laying off of two barboys was an integral part of Doral Beach's overall plan to terminate a substan- tial number of the recently returned strikers, a plan we have found to be unlawful. Thus, the moving fac- tor behind Jordan's decision to retire several months early was the implementation of Respondent Doral Beach's unlawful discharges of a substantial number of striking employees. Had Jordan supplied Cannes with the names of two barboys, as requested, and had Doral Beach then included those two employees among the mass layoff of striking employees, there is little doubt that the two barboys would have been found to have been unlawfully terminated. That Jor- dan chose to prematurely retire rather than single out fellow employees for layoffs does not erase the fact that the factor giving rise to the whole series of events was Respondent Doral Beach's implementation of the unlawful terminations. Accordingly, we conclude that employee Liberatio Jordan was constructively dis- charged by Respondent Doral Beach and that his dis- charge violated Section 8(a)(3) and (1) of the Act." 8. The General Counsel and Union cross-except to the Administrative Law Judge's conclusion that the contract's management prerogative provision, article III, section 4,22 allowed Respondents Country Club, Doral Beach, and Carillon to implement, without prior notification to or negotiation with the Union, a substantial number of changes in the working condi- tions of the hotels' employees. The amended com- plaint alleges that Respondents Country Club, Doral Beach, and Carillon have refused to bargain with the Union, in violation of Section 8(a)(5) and (1) of the Act, by unilaterally, and without bargaining with the Union, changing the existing conditions of employ- ment. More specifically, Country Club is charged with the imposition of 22 unilateral changes, 23 Doral Beach with 24 such changes, and Carillon with 12. The General Counsel contends that the Adminis- trative Law Judge erred in interpreting article III, section 4, as giving Respondents carte blanche to im- plement substantial numbers of modifications in their 21 John Dory Boat Works, Inc., 229 NLRB 844 (1977). 2 Art. 111, sec. 4, provides: Section 4. The EMPLOYER may from time to time make, continue and change such reasonable rules and regulations as it may deem necessary and proper in the conduct of its business. The EMPLOYER's reason- able exercise ofjudgment in this regard shall be conclusive and binding: provided, however, that such rules and regulations are in no way incon- sistent with any of the provisions of this Agreement. All such rules and regulations shall be observed, obeyed and abided by all employees not- withstanding any past practice or precedent. 23Allegations of seven additional unilateral changes by Country Club were deleted from the complaint at the hearing. employees' conditions of employment. The General Counsel points out that during the contract negotia- tions the Union requested that Respondents provide a list of contemplated changes. but that no such list was ever provided. Furthermore, argues the General Counsel, the actual discussion of specific proposed changes during the negotiations covered only a few. relatively innocuous, changes, such as allowing maids at the Sheraton Four Ambassadors Hotel to use elec- tric brooms, having the tomato slicer at the Deauville Hotel perform other duties, and reducing the exces- sively high number of cooks at the Deauville. In the General Counsel's view, since the changes actually discussed were innocuous, the Union had no reason to believe that its agreement to the proposed modifi- cation of article III, section 4, would amount to an across-the-board relinquishment of all its rights to be informed of, and to bargain about, future changes in work rules and/or conditions of employment at the hotels. The Union argues that while a number of the changes implemented by Respondents might conceiv- ably fall within the rubric of rules and regulations covered by article III, section 4, the majority of changes actually implemented modified either the wages or hours of the hotels' employees. In the Union's view these latter changes, affecting wages or hours, are beyond the scope of the types of changes allowed by article III, section 4. Responding to the General Counsel and Union, Respondents contend that article III. section 4, is a extremely broad man- agement-rights clause and that by agreeing to the clause, as modified, the Union waived its right to be informed about, and to bargain over, virtually any change in work rules implemented by Respondents. The law with respect to an employer's ability to unilaterally implement modifications of its work rules during the term of the collective-bargaining agree- ment is well settled. Work rules, particularly where penalties are prescribed for their violation, are gener- ally covered by the phrase "other terms and condi- tions of employment" as set forth in Section 8(d) of the Act, and are consequently mandatory subjects of collective bargaining.24 Thus, an employer violates Section 8(a)(5) of the Act if, during the term of a collective-bargaining agreement, it implements, with- out first having bargained with its employees' collec- tive-bargaining representative over the matter, changes in its employees' work rules. However, a la- bor organization may waive its statutory right to be notified and consulted concerning a change in work- ing conditions. Such a waiver will not be lightly in- ferred but must be clearly evidenced either by the " Murphy Diesel CorTanv, 184 NLRB 757 (1970), enfd. 454 F2d 303 (6th Cir 1971) 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms of the parties' collective-bargaining agreement or in the nature of the prior contract negotiations. 25 Applying these principles to the instant proceeding, the record shows that representatives of the Union and Association engaged in extensive discussion over the Association's proposal to modify the language of article III, section 4.26 The impetus behind the Associ- ation's proposal to modify the provision was the be- lief by the hotels that they needed expanded authority to implement changes in work rules in order to elimi- nate inefficient work practices. The Union's negotia- tors rigorously resisted the Association's proposed al- teration, with John Reynolds,7 a key union negotiator, saying on several occasions that if the Union accepted the Association's proposal it would be buying "a pig in the poke." The Union insisted that it needed a list of the specific changes that the hotels intended to implement, but no such list was ever provided. At one point during the negotiations, the Union was told by Ivar Blacker that his hotels had compiled a list of intended rule changes that ex- ceeded five legal-size pages.28 Furthermore, Blacker said that he had checked with other hotels and dis- covered that they contemplated a comparable num- ber of changes. Near the close of negotiations the Union acceded to the Association's demand to mod- ify article III, section 4, and the modified language was incorporated into the collective-bargaining agree- ment. We believe that the history and nature of the par- ties' negotiations demonstrate that article III, section 4, as modified, was understood to grant the hotels significantly expanded authority to unilaterally im- plement reasonable changes in work rules. While the Association's negotiators discussed only a few of the changes they intended to introduce, it is clear from Reynolds' apprehensive comments that the Union's negotiators understood the Association's proposal as granting the hotels a considerably expanded author- ity to implement work rule changes. Moreover, dur- ing the negotiations the Union was told that a list of contemplated changes for only a few of the Associ- ation's hotels exceeded five legal-size pages. There can be no doubt that the Union's negotiations under- stood that their acceptance of the modified contract provision amounted to a broad waiver of the Union's right to be notified of and to bargain about changes in working conditions. z The Preis Company, Incorporate4 121 NLRB 976 (1958); and Hilton Hotel Corporation. d/b/a Staller Hilton Hotel, 191 NLRB 283 (1971). X The modification proposed by the Association was to add the "notwith- standing any past practice or precedent" clause to art. III, sec. 4. 21 At the time of the negotiations, Reynolds held the position of general counsel to the Hotel and Restaurant Employees and Bartenders Interna- tional Union. z2 Blacker attended the negotiations as a representative of the Deauville and Eden Roc Hotels. Nonetheless, we do not agree in toto with the Ad- ministrative Law Judge's conclusion that the Union's acceptance of the revised contractual clause consti- tuted a waiver with respect to every single one of the numerous changes implemented by Respondents. By its terms, as set out in footnote 22, supra, article III, section 4, authorizes the hotels to make reasonable changes in "rules and regulations"; this provision is silent, however, as to changes in employment and rates of pay. Throughout the negotiations, the discus- sions pertained to the necessity of eliminating grossly inefficient work rules that impaired the hotels' abili- ties to function efficiently. Specific concerns raised by the hotels involved overstaffing, the unwillingness of employees to do work they considered to be outside the realm of their job's responsibility, and other simi- lar problems. The Association's negotiators also raised the problem of their need to be able to sched- ule the work hours of certain categories' of employees more efficiently,2 9 and the Union's negotiators re- sponded that the hotels already retained the authority to schedule work shifts according to need under other contractual provisions.- However, at no point during the negotiations did the Association's negotiators raise tipping practices, meal practices, or similar rules that effect the wages or compensation received by ho- tel employees in return for their labor as being subject to alteration under article III, section 4, as modified. Indeed, at one point during the negotiations, Joel Keiler, the Association's attorney, candidly admitted that reaching an agreement on wages did not present a serious barrier to the parties reaching an agreement. In his testimony, Keiler also admitted that work rules affecting wages, such as the rule providing for the automatic addition of a 15-percent gratuity to the res- taurant bill of a customer failing to leave a tip, were not discussed during the negotiations.' We conclude that neither the provisions of article III, section 4, nor the history of the parties' negotiations evidences an agreement on the Union's part to waive its right to be informed of and negotiate about changes in rules that directly affect employee wages. Accordingly, we find that Respondents, by unilaterally implementing changes in work rules that altered the amount of " Specifically, the Association raised the question of scheduling maids' starting times more efficiently on several occasions during the contract nego- tiations. 0 These statements by the Union's negotiators, confirmed substantially by the terms of art. VII of the contract, lead us to conclude that the parties understood the contract as empowering the hotels to unilaterally modify rules relating to work hours. Thus, we conclude that those allegations in the complaint alleging that Respondents violated Sec. 8(aXS) of the Act by uni- laterally modifying work rules relating to hours of employment are without merit. s3 Keiler also conceded that the hotels did not rely on art. III, sec. 4, to justify the elimination of the practice of adding the 15-percent gratuity, but he contended that other provisions of the contract empowered the hotels to unilaterally cease that practice. 568 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION compensation received by their employees, violated Section 8(a)(5) and (1) of the Act. The evidence shows32 and we find that Respon- dents violated Section 8(a)(5) and (1) of the Act by unilaterally implementing the following changes in their employees' conditions of employment: (a) Prohibiting employees from having sandwiches between 9 p.m. and 10 p.m. (Carillon). (b) Eliminating extra pay for employee Jorge Mas- sone for work he performs in addition to his regular duties (Carillon). (c) Stopping the payment of $1.50 to waiters and waitresses for table setups and an additional $1.50 for clearing tables (Carillon).33 (d) Stopping the practice of paying tips within 48 hours of functions (Carillon). (e) Discontinuing the practice of allowing cooks to have two free beers or soft drinks per day (Carillon). (f) Stopping the practice of providing a snack for certain employees who worked at night (Carillon). (g) Eliminating the practice of adding a 15-percent gratuity to the bill of a restaurant patron leaving his or her table without tipping (Country Club).'34 (h) Eliminating tips for serving certain food items (Country Club).35 (i) Reducing tips for work performed for conven- tion guests (Country Club). (j) Changing from 40 hours per week to 46 hours per week the number of hours an employee must work to receive overtime payments (Country Club). (k) Ceasing to pay employees for setting up roller and honeymoon beds (Doral Beach).3 6 Having found that Respondents violated Section 8(aX)(5) and (I) of the Act by unilaterally changing their employees' working conditions and by unilater- 52 A number of additional changes allegedly implemented at Carillon fall within the general category of changes affecting employee compensation. (See pars. I ,(e),(lXii), (kk), and ( I) of the amended complaint.) However, the only testimony proferred concerning those changes was that of employee shop steward Ada Woods. When Respondents objected to Woods' testimony on hearsay grounds, counsel for the General Counsel countered that Woods' testimony concerning changes about which she had no personal knowledge was being offered only to show the basis for her subsequent conduct, and not to prove that the changes had actually occurred. No further testimony was presented with respect to those alleged changes and, consequently, there is insufficient evidence to support findings that such changes were unlawfully instituted by Respondent Carillon. "3 This practice apparently applied only to banquet work. This practice is apparently identical to the practice alleged in sec. I 1,(e),(2),(cc), of the amended complaint. 5 "This practice is apparently only applied to banquet work. Allegations I l,(e),(2),(gg), and (ii) appear to pertain to the same practice. 3 The Doral Beach's increasing the number of rooms a maid must clean in a day from 33 to 51 is a change having a decided impact on wages. However, in our opinion, that type of change was raised by the Association's negotia- tions when they discussed the poor overall production of their employees and their need to be able to implement reasonable changes that would bring their work forces' production up to reasonable standards. Accordingly, we conclude that the collective-bargaining agreement empowered the Doral Beach to implement that change. ally discontinuing a number of employee benefits, we will order Respondents to: () restore the satus quo ante with respect to the unlawfully changed terms and conditions of employment should the employees through their Union so request, (2) make their em- ployees whole for any loss of pay they may have suf- fered due to the unlawful implementation of the uni- lateral changes, and (3) cease and desist from engaging in such unlawful conduct." 9. Finally, in view of the substantial number of non-English speaking employees employed b Re- spondents, we shall order that the notices be posted in Spanish as well as English. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and orders that the Respondents, Southern Florida Hotel & Motel Association and its employer- members, The Estate of Alfred Kaskel d/b/a Carillon Hotel, The Estate of Alfred Kaskel d/b/a Doral Ho- tel and Country Club, and The Estate of Alfred Kas- kel d/b/a Doral Beach Hotel and Respondent Beau R. Corp. d/b/a Beau Rivage Hotel. Miami Beach, Florida, their respective officers, agents. successors, and assigns, shall take the action set forth in the said recommended Order, as modified: i. Insert the following as paragraphs A,l.(f) and (g) and reletter the subsequent paragraphs accord- ingly: "(f) Unilaterally changing work rules and regula- tions affecting employee compensation, including: "(1) At Carillon, prohibiting employees from hav- ing sandwiches between 9 and 10 p.m., eliminating extra pay for Jorge Massone for work he performs in addition to his regular duties, ceasing to pay waiters and waitresses for setting up and clearing tables, ceas- ing to pay waiters and waitresses for setting up and clearing tables, ceasing the payment of tips within 48 hours of functions, discontinuing the practice of al- lowing cooks to have two free beers or soft drinks per day, and ceasing to provide snacks for certain em- ployees who worked at night. "(2) At Country Club, eliminating the practice of adding a 15-percent gratuity to the bill of restaurant patrons leaving their tables without tipping. eliminat- ing tips for the serving of certain food items. reducing tips for work performed for convention guests. and changing from 40 hours per week to 46 hours per week the number of hours an employee must work to receive overtime payments. 3' Abingdon Nursing Center. 197 NLRB 781 1972) 569 DECISIONS OF NATIONA. LABOR RELATIONS BOARD "(3) At Doral Beach, ceasing to pay employees for setting up roller and honeymoon beds. "(g) Reneging on and repudiating the strike settle- ment agreement by failing to reinstate or by discharg- ing the employees listed in the attached Appendixes C, D, and E." 2. Substitute the following for paragraph A,2,(a): "(a) Offer to the employees listed in the attached Appendixes C, D, and E, immediate, full, and uncon- ditional reinstatement to their former jobs, or, if- those jobs no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges previously enjoyed, and make each of them whole for any loss of wages suffered, in the manner stated in that section of the Administrative Law Judge's Decision entitled 'The Remedy.'" 3. Insert the following as paragraph A.2,(e), and reletter the subsequent paragraphs accordingly: "(e) Upon request, reinstate at the respective ho- tels the conditions of employment listed below, and make employees whole for any loss of pay they may have suffered, together with interest, due to the imple- mentation of the unilateral changes (Florida Steel Corporation, 231 NLRB 651 (1977); see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)): "(1) At Carillon, reinstate, upon request, the prac- tices of providing sandwiches for employees between 9 and 10 p.m., paying Jorge Massone extra pay for work he performs in addition to his regular duties, paying waiters and waitresses additional sums for set- ting up and clearing tables, paying tips within 48 hours of functions, providing cooks with two free beers or soft drinks per day, and providing snacks for certain employees who work at night. "(2) At Country Club, reinstate, upon request, the practices of adding a 15-percent gratuity to the bills of restaurant patrons leaving their tables without tip- ping, providing tips for the serving of certain food items, paying tips for work performed for convention guests at the rate in effect prior to the strike com- mencing on or about December 25, 1976, and paying overtime for work in excess of 40 hours per week. "(3) At Doral Beach, reinstate, upon request, the practice of paying employees for setting up roller and honeymoon beds." 4. Substitute the following for paragraph A,2,(g): "(g) Post at the premises of the Doral Hotel and Country Club, Doral Beach Hotel, and Carillon Ho- tel, Miami Beach, Florida, Copies of the attached no- tices marked 'Appendixes F,G, and H.,' respec- tively. Copies of said notices, in both English and Spanish, on forms provided by the Board's Regional Director for Region 12 (Tampa, Florida), shall, after being signed by an authorized representative of the hotel in which the notice is to be posted, and by an authorized representative of the Hotel Association, be posted as herein provided, immediately upon receipt thereof; and be so maintained for a period of 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material." 5. Insert the following as paragraph B,l,(b) and re- letter the subsequent paragraphs accordingly: "(b) Reneging on and repudiating the strike settle- ment agreement by discharging employee Frank Marcucci. and by failing to reinstate employees Mary Colbert, Sally Green, and Mae Summers." 6. Substitute the following for paragraph B,(2),(a): "(a) Offer Mary Colbert, Sally Green, Mae Sum- mers, and Frank Marcucci immediate, full, and un- conditional reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges previously enjoyed, and make each of them whole for any loss of wages suffered in the manner set forth in that section of the Adminis- trative L.aw Judge's Decision entitled 'The Remedy." 7. Substitute the following for paragraph B,2,(c): "(c) Post at the premises of the Beau Rivage Hotel, Miami Beach, Florida. copies of the attached notice marked 'Appendix .' Copies of said notice, in both English and Spanish, on forms provided by the Board's Regional Director for Region 12, shall, after being signed by an authorized representative of the hotel and of the Hotel Association, be posted as herein provided, immediately upon receipt thereof, and be so maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees of the hotel are customarily posted. Reasonable steps shall be taken to insure that said notice is not altered, defaced, or covered by any other material." 8. Substitute the attached Appendixes C, D, E, F, G, H, and 138 for those of the Administrative Law Judge. 1' The Administrative Law Judge, in his recommended Order par. B.2,(c). inadvertently referred to "Appendix I" as "." APPENDIX C List of Employees Discriminatorily Terminated by Respondent Doral Hotel and Country Club Eustaquia Alfonso Jesus M. Iglesias Oscar Alfonso Reinaldo Iglesias 57) SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION Eufemia Alvarez Gumersindo E. Alvarez Raul Andre Elefterios Apostolopoulos Nicolas Arcas Raimundo Arce Maria Arrastia Guajiib S. Asse Helen Ivonne Avritt (Bizzell) Francisca Azahares Margaret Ann Ball Andrea Barreda Adolpha Barreto Ada Charlene Black Alfred B. Borrego Joaquin Cabrera Pedro J. Cabrera Ella F. Calienes Rogelio Campo Yolanda Capote Pedro Cardentey Ruth Carmona Julio Carneado Pilar Carrasco Adelaido Casiano Marcia Castaneda Jose Castro Eric Cole Lilia Coley Vincent Comas Rodney Copley Emma Cornell Carmen Coto Jose Crespo Rafael Crespo Elizabeth N. Dean Marilyn De Boeser Eduardo De Cardenas Miguel De La Fuente Pedro H. DeMendoza Carmen Diaz Domingo A. Donnini Manuel Dominguez Raquel Dumois Doris M. Engling Estrella Espino Lillie Jenkins Ruth L. Jennings Robert Ky Chow Antonio Labeiras Serafin Lamas Juan M. Lara Ramon Ledesma Antonio Lobeiras Ricardo Lopez Jose Maceo Armando Maresma Manuel Marquez Avelia Marquinez Antonio Martin Arturo Martinez Jose F. Martinez Paula Martinez Ramon Matamoros Natalie McKeown Edilio Mederos Prisciliano Mendez Rogelio Menendez Juan Israel Milian Luis Miranda Pedro Pablo Molina Elizabeth Morva Ellsworth Murray Rodolfo Noy Nellie Nutt Joy Oliver Bertha Orosa Pedro Ortiz Maria Pascual Jose B. Pernas Alex Phanord Reinerio Pinero Loida Pomes Consela Puig Alberto Riveron Maria Riveron Felix Rodriquez Guarina Rodriguez Isabel Rodriquez Jorge Rodriguez Juan Rodriguez Raull R. Rodriguez Juan G. Estefani Kathy Evatt Francisco Fernandez Jose Fernandez Jose G. Fernandez Ketty Fernandez Roberto Gustave Fernandez Roberto J. Fernandez Evaraldo Fierro Nancy M. Finlay Diane Fisher Apolon Fleurantin Jose Forment Pedro Fornell Miguel H. Fort Julia Forte Eileen F. Gagne Carlos R. Garcia Hilda Garcia Sergio F. Garcia Marie Gartsu Sache Gochin Alfredo Gonzalez Augustin Gonzalez Dolores Gonzalez Luis Gonzalez Pedro Gonzalez Severino Gordillo Raul Hernandez Norma Hernandez Manuel Henriquez Rolando Herrera Karen Hesiak Eliseo Hidalgo- Gato Ingrid Hunter Pamela Icaro Rolando Rodriguez Pedro Roque Linda Rubinstein Hilda Salazar Antonio Salbarrey Eusebio Sanchez Octavio Sanchez Ruben D. Sanjur David Santiago Aldo J. Santin Gustavo Sardina Juan Martinez Serrano Cesar R. Sequera Juan M. Serret Jose Soberon Addy Sorenson Ronald Storch Nestor Suarez Humberto Subirana Kazimier L. Szlosowski Mirta Tamargo Carlos Toledo Glicerio Torres Lilia Travieso Ester Tyler Gerardo Urgelles Godwall Urgiuza Sebastian Vallinas Jose F. Victorero Eufemia Villacampa Donna L. Wentz Henry W. White Barbara L. Wolff Lola May Woods Robert Yudilevich Miguel A. Zulon APPENDIX D List of Employees Discriminatorily Terminated by Respondent Doral Beach Hotel Isabel Acebo Nicolasa Alberto Patricia Alberto Caridad Alles Esther G. Alvarez Lucia Alvarez Margarita Alvarez Mariano Alvarez Olivio Alvarez Rafael Alvarez Lucia Alverez Peter Iwash Justiniano Jimenez Allan Kerman Emma Kielly Steven Kromer Hilda Landrian Bartola Leon Adolfina Lopez Alicia Lopez Hydee Lopez Mariano Lopez DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yolanda Anastasi Luis G. Arango America Arcas Raul Arcos Francisco Arteaga Manuel A. Avila Rolando Avila Angela Aviles Maria Barinaga Amancio G. Barroso Juan A. Batista Olga Baylina Jose Beatriz Carlos Benavides Leopoldina Beovides Luis Borges Helen Branzer Ramon Lopez Jewel P. Lumm Yolanda B. Luna Lela Mangano Gilberto Manzano Armando Marquez Angel Martinez Edna Martinez Mario Martinez Milton Martinez Patricia McFeely Catherine McGrath Eduardo Montanez Rolando D. Morales Janet Morton Carmen O. Muina Luis Muniz Maria L. Cabellero Raimundo Luis Muniz Gilberto A. Cabrera Maria E. Munoz Seyda Campoalegre Sergio Neibla Arturo Cancio Candido L. Oramas Alberto Candelaria Miriam Elizabeth Orta Ana Casanovas Ana L. Ortega Cesar Casatti Anna Maria Padron Carmen Castro Rosa Palomino Alberto Cebey Rosa H. Pasaron Luis Cebey Amparo Paz Miguel Cebey Norma Pequeno Alice Corbett Mercedes Peraza Mary Corbett Ismael Perera Ezequiel Cortes Eloisa Perrera Maria Dolores Costoya Juan Perez Felipe Cruz Mariana Perez Maria Cruz Jose M. Peron Emilio Cueto Gregorio Rayneri Lida Lee Dahlberg Peter Recart Sergio De Armas Hugo Reyes Angel Delgado Georgina A. Ripolles Delia Delgado Barbara Rispinto Pearl Draper Carmen Rivero Robert L. Dubin Aurelio Riveron Isidro Esteves Hazel Roberge Alejandro Fernandez Armando R. Rodriguez Milton Fernandez Martin Ross Rosa Fernandez Jose Ruiz Maria Fidalgo Maria Ruiz Georgina Florez Manuel Sanchez Balbina Gallego Pedro Sanchez Catalina Garcia Ignacio Santos Gabriel Garcia Olga Garcia Gaspar Geli Judy Gero Florence Goldstein Juan Gomez Adalid Gonzalez Armando Gonzalez David Gonzalez Jose Gonzalez Vincente Gonzalez del Valle Sally Hennessy Jose Hernandez Augustin Herrera Pedro Herrera Henry A. Hile Margie Hill Romilio Santos Ignacio Scull Ardel Sera Pedro Seralena Osvaldo T. Tamarit Oscar A. Tejeda John B. Terris Alfredo L. Torres Martha Tunez Raimundo Ubieta Antonio R. Valdes Luis Valdes Daniela Vega Enrique Vega Esther Wiedeke Andrea Wiswall Jose Yanes APPENDIX E List of Employees Discriminatorily Terminated By Respondent Carillon Hotel Charles Debski Antonio Dib Lazaro Dou Enrique Fernandez Gilberto Guerrero Ralph Lopez William McCann Ramon Nunez Salvador Oevom Lucille Pasiuk Francisco Puig Nersa Sarmiento Gustavo Ubieta Peter E. Van Horne Jose Vila Michael Andrew Walker APPENDIX F NOTICE To EMPLOYEES POSTED BY ORDER OF TlHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present their evidence, it has been decided that we violated the National Labor Relations Act, as amended, and we have been ordered to post this no- tice. We intend to abide by the following: The Act gives employees the following rights: To engage in self-organization To form, join, or assist unions To bargain collectively through representa- tives of their own choosing To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection. To refrain from any and all such activity. WE WILL NOT tell our employees that they do not have a union contract, do not have seniority, 572 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION nor the protection of a union, or that we intend to assign work as we see fit. WE WILL NOT tell our employees that their Union has sold them out: that during negotia- tions their union leaders held out for a payoff: or that any union that signed a contract, such as Local 355 signed in January 1977, must be crazy. WE WILL NOT insist that multiple grievances filed by Local 355, be tried as separate griev- ances and before separate arbitrators, and that only a member in good standing of the Florida Bar is qualified to serve as an arbitrator in such a proceeding. WE WILL NOT unilaterally subcontract unit work or abolish jobs in the appropriate unit without prior bargaining on that subject with Local 355 as the exclusive collective-bargaining representative of the employees in the appropri- ate unit. WE WILL NOT unilaterally change work rules and regulations affecting wages without notify- ing Local 355 and giving it an opportunity to bargain collectively about such matters. WE WILL NOT repudiate the strike settlement agreement requiring us to reinstate all striking employees except those whose jobs were elimi- nated and those whose departments were tempo- rarily closed. WE WILL NOT encourage or discourage our employees' membership in Local 355, or any other labor organization, by discharging, laying off, failing to recall, or in any other manner dis- criminating against any employee in regard to the hire, tenure, or any other term or condition of employment. WE WILL NOT discriminatorily withhold accured vacation pay from any employee to en- courage or discourage membership in a labor or- ganization. WE WILL NOT in any other manner interfere with our employees in the exercise of their rights. All our employees are free to become or remain members of Hotel, Motel, Restaurant & Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO, or any other union. WE WILL reinstate all work performed by unit employees which we subcontracted or otherwise terminated on or after December 25, 1976, with- out first bargaining with Local 355, regarding the same. WE WILL, after reasonable notice to us, permit authorized representatives of Local 355 to come upon our premises for the purpose of conferring with our employees who are in the unit for which Local 355 is the collective-bargaining representa- tive, provided that all such visits with unit em- ployees are confined to the nonwork areas of the hotel, and are conducted during the nonwork time of the visited employee. WE WILL, upon request, provide Local 355 with information or material available to us which is relevant and useful to said Union in the performance of its duties as the collective-bar- gaining representative of the employees in the unit for which said Local is the collective-bar- gaining representative. WE WILL pay to Estrella Espino the accrued vacation pay due her under the current contract. WE WILL, upon request, reinstate the practices of adding a 15-percent gratutity to the bill of restaurant patrons leaving their tables without tipping, paying tips for the serving of certain food items, paying tips in an amount equal to those paid prior to December 25, 1976, for work performed for convention guests, and paying overtime for work performed in excess of 40 hours per week. WE WILL also make employees whole for any loss of pay they suffered, together with interest, that resulted from our unilaterally changing the above-described work practices. As the National Labor Relations Board found that we violated the law by discriminatorily terminating the employees listed in Appendix C, attached to the Board's Decision and Order, WE WILL offer said em- ployees immediate, full, and unconditional reinstate- ment to their former or substantially equivalent posi- tions, or, if those jobs no longer exist, to substantially eqivalent positions, without prejudice longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previ- ously enjoyed, and make said employees whole for any loss of pay they have suffered, together with in- terest. SOUTHERN FLORIDA HOTEL & MOTEL Asso- CIATION THE ESTATE OF ALFRED KASKEL D/B/A DORAL HOTEL AND COUNTRY CLUB APPENDIX G NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present their evidence, it has been decided that we violated the National Labor Relations Act, as amended, and we have been ordered to post this no- tice. We intend to abide by the following: 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Act gives employees the following rights: To engage in self-organization To form, join, or assist unions To bargain collectively through representa- tives of their own choosing To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from any and all such activity. WE WILL NOT tell our employees that they do not have a union contract, do not have seniority, nor the protection of a union, or that we intend to assign work as we see fit. WE WILL NOT tell our employees that their Union has sold them out; that during negotia- tions their union leaders held out for a payoff; or that any union that signed a contract, such a Lo- cal 355 signed in January 1977, must be crazy. WE WILL NOT insist that multiple grievances filed by Local 355, be tried as separate griev- ances and before separate arbitrators, and that only a member in good standing of the Florida Bar is qualified to serve as an arbitrator in such a proceeding. WE WILL NOT unilaterally subcontract unit work or abolish jobs in the appropriate unit without prior bargaining on that subject with Local 355 as the exclusive collective-bargaining representative of the employees in the appropri- ate unit. WE WILL NOT unilaterally change work rules and regulations affecting wages without notify- ing Local 355 and giving it an opportunity to bargain collectively about such matters. WE WILL NOT repudiate the strike settlement agreement requiring us to reinstate all striking employees except those whose jobs were elimi- nated and those whose departments were tempo- rarily closed. WE WILL NOT encourage or discourage our employees' membership in Local 355, or any other labor organization, by discriminating, lay- ing off, failing to recall, or in any other manner discriminating against any employee in regard to the hire, tenure, or any other term or condition of employment. WE WILL NOT discriminatorily withhold ac- crued vacation pay from any employee to en- courage or discourage membership in a labor or- ganization. WE WILL NOT in any other manner interfere with our employees in the exercise of their rights. All our employees are free to become or remain members of Hotel, Motel, Restaurant & Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO, or any other union. WE WILL reinstate all work performed by unit employees which we subcontracted or otherwise terminated on or after December 25. 1976, with- out first bargaining with Local 355, regarding the same. WE WILL, after reasonable notice to us, permit authorized representatives of Local 355 to come upon our premises for the purpose of conferring with our employees who are in the unit for which Local 355 is the collective-bargaining representa- tive, provided that all such visits with unit em- ployees are confined to the nonwork areas of the hotel, and are conducted during the nonwork time of the visited employee. WE WILL, upon request, provide Local 355 with information or material available to us which is relevant and useful to said Union in the performance of its duties as the collective-bar- gaining representative of the employees in the unit for which said Local is the collective-bar- gaining representative. WE WILL, upon request, reinstate the practice of paying employees for setting up roller and honeymoon beds and WE WILL also make em- ployees whole for any loss of pay they have suf- fered, together with interest, that resulted from our unilaterally changing the above-described work practice. As the National Labor Relations Board found that we violated the law by discriminatorily terminating the employees listed in Appendix D, attached to the Board's Decision and Order, WE WILL offer said em- ployees immediate, full, and unconditional reinstate- ment to their former or substantially equivalent posi- tions, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges previously en- joyed, and make them whole for any loss of pay they have suffered, together with interest. SOUTHERN FLORIDA HOTEL & MOTEL Asso- CIATION THE ESTATE OF ALFRED KASKEL D/B/A DORAL BEACH HOTEL APPENDIX H NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present their evidence, it has been decided that 574 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION we violated the National Labor Relations Act, as amended, and we have been ordered to post this no- tice. We intend to abide by the following: The Act gives employees the following rights: To engage in self-organization To form, join, or assist unions To bargain collectively through representa- tives of their own choosing To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from any and all such activity. WE WILL NOT tell our employees that they do not have a union contract, do not have seniority, nor the protection of a union, or that we intend to assign work as we see fit. WE WILL NOT tell our employees that their Union has sold them out; that during negotia- tions their union leaders held out for a payoff; or that any union that signed a contract, such as Local 355 signed in January 1977, must be crazy. WE WILL NOT insist that multiple grievances filed by Local 355, be tried as separate griev- ances and before separate arbitrators, and that only a member in good standing of the Florida Bar is qualified to serve as an arbitrator in such a proceeding. WE WILL NOT unilaterally subcontract unit work or abolish jobs in the appropriate unit without prior bargaining on that subject with Local 355 as the exclusive collective-bargaining representative of the employees in the appropri- ate unit. WE WILL NOT unilaterally change work rules and regulations affecting wages without notify- ing Local 355 and giving it an opportunity to bargain collectively about such matters. WE WILL NOT repudiate the strike settlement agreement requiring us to reinstate all striking employees except those whose jobs were elimi- nated and those whose departments were tempo- rarily closed. WE WILL NOT encourage or discourage our employees' membership in Local 355, or any other labor organization, by discharging, laying off, failing to recall, or in any other manner dis- criminating against any employee in regard to the hire, tenure, or any other term or condition of employment. WE WILL NOT discriminatorily withhold ac- crued vacation pay from any employee to en- courage or discourage membership in a labor or- ganization. WE WILL NOT in any manner interfere with our employees in the exercise of their rights. All our employees are free to become or remain members of Hotel, Motel. Restaurant & Hi-Rise Employees & Bartenders Union. Local 355, AFL-CIO, or any other union. WE WILL reinstate all work performed by unit employees which we subcontracted or otherwise terminated on or after December 25, 1976, with- out first bargaining with Local 355, regarding the same. WE WILL, after reasonable notice to us, permit authorized representatives of Local 355 to come upon our premises for the purpose of conferring with our employees who are in the unit for which Local 355 is the collective-bargaining representa- tive, provided that all such visits with unit em- ployees are confined to the nonwork areas of the hotel, and are conducted during the nonwork time of the visited employee. WE WILL, upon request, provide Local 355 with information or material available to us which is relevant and useful to said Union in the performance of its duties as the collective-bar- gaining representative of the employees in the unit for which said Local is the collective-bar- gaining representative. WE WILL, upon request, reinstate the practices of providing sandwiches to employees between 9 and 10 p.m., paying Jorge Massone for extra work he performs in addition to his regular du- ties, paying waiters and waitresses for setting up and clearing tables, paying tips within 48 hours of functions, allowing cooks to have two free beers or soft drinks per day, and providing a snack for certain employees who work at night. WE WILL also make employees whole for any loss of pay, together with interest, that resulted from our unilaterally changing the above-de- scribed work practices. As the National Labor Relations Board found that we violated the law by discriminatorily terminating the employees listed in Appendix E, attached to the Board's Decision and Order, WE WILL offer said em- ployees immediate, full, and unconditional reinstate- ment to their former or substantially equivalent posi- tions, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges previously en- joyed, and make them whole for any loss of pay they have suffered, together with interest. SOUTHERN FLORIDA HOTEL & MOTEL ASSO- CIATION THE ESTATE OF ALFRED KASKEL D/B/A CARILLON HOTEL 575 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX I DECISION NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present their evidence, it has been decided that we violated the National Labor Relations Act, as amended, and we have been ordered to post this no- tice. We intend to abide by the following: The Act gives employees the following rights: To engage in self-organization To form, join, or assist unions To bargain collectively through representa- tives of their own choosing To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection. To refrain from any and all such activity. WE WILL NOT tell employees that we are disap- pointed in them because they took part in picket- ing our hotel. WE WILL NOT repudiate the strike settlement agreement requiring us to reinstate all striking employees, except those whose jobs were elimi- nated and those whose departments were tempo- rarily closed. WE WILL NOT in any other manner interfere with our employees in the exercise of the forego- ing rights. All our employees are free to become or remain members of Hotel, Motel, Restaurant & Hi-Rise Employees & Bartenders Union, Lo- cal 355, AFL-CIO, or any other union. As the National Labor Relations Board found that we violated the law by failing to recall Mary Colbert, Sally Green, and Mae Summers, following the strike against us, and by discharging Frank Marcucci, WE WILL offer said employees immediate, full, and un- conditional reinstatement to their former or substan- tially equivalent positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or to her rights and privi- leges previously enjoyed, and make said employees whole for any loss of pay suffered, together with inter- est. SOUTHERN FLORIDA HOTEL & MOTEL Asso- CIATION BEAU RIVAGE HOTEL STATEMENI OF IHE CASE JOSEPH I. NAC(1MAN, Senior Administrative Law Judge:' This proceeding heard before me at Coral Gables, Florida, on 41 hearing dates between October 18 and November 18, 1977, and between January 9 and February 7, 1978, in- volves a consolidated complaint pursuant to Section 10(b) of the National Labor Relations Act, as amended, (herein called the Act), which as amended2 alleges, in substance, that following a strike by members of Hotel, Motel. Restau- rant & Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO (herein called the Union), against Southern Flordia Hotel & Motel Association (herein called the asso- ciation) and its employer-members, particularly Beau R. Corp. d/b/a Beau Rivage Hotel,' Estate of Alfred Kaskel d/b/a Carillon Hotel, Doral Beach Hotel, and Doral Coun- try Club' (herein respectively called Rivage, Carillon, Beach, and Country Club and collectively called Respon- dents), violated Section 8(a)(1), (3), and (5) of the Act by conduct specifically alleged in the complaint.' By answer, Respondents admitted certain allegations of the complaint but denied the commission of any unfair labor practice. At the hearing all parties were afforded full opportunity to adduce evidence deemed relevant and material, to exam- ine and cross-examine witnesses, to argue orally on the rec- ord, and to submit briefs. Oral arguments were waived. Briefs submitted by the General Counsel and Respondent, respectively, and a memorandum requesting extraordinary relief submitted by the Charging Parties have all been duly considered.5 For reasons hereafter more fully stated, I rec- I Assigned to hear and decide this specific case pursuant to authority of the United States Civil Service Commission after Administrative Law Judge Walter H. Maloney, onginally assigned to hear this case, recused himself from further participation. 2 The original consolidated complaint, issued June 24, 1977, is based on 10 charges filed between January 24 and June 21, 1977. A first amended com- plaint issued August 9, 1977, is based on the onginal charges and 18 addi- tional charges filed between June 27 and July 18, 1977. A second amended complaint issued September 12, 1977, and various motions for further amendments of the complaint were granted at the opening of the hearing and at various stages thereof. 3 These three hotels are owned by the same enterprise and admittedly constitute a single integrated employer. ' The charges filed named the association and some 20 of its employer- members as Respondents During the investigation of the charges the Union, apparently as a result of an out-of-Board settlement reached with most of the hotels, requested that the Regional Director approve withdrawal of the charges as to all Respondents except association, Rivage, Carillon, Beach, and Country Club. The request was granted. Hence, the complaint issued only against association and the four hotels mentioned. 5 By letters dated November 22 and 23, 1977, counsel for Respondents requested that I supply him with witness subpenas for the taking of the depositions of eight employees of Region 12 and for leave to take such depositions, allegedly for the purpose of establishing improper communica- tions between myself and the aforesaid individuals. By my letter of Decem- ber , 1977, said requests were denied. The basis for this ruling was that Sec. 102.37 of the National Labor Relations Board Rules and Regulations, Senes 8, as amended, provides the exclusive procedure for moving for the disquali- fication of an assigned administrative law judge, and that the taking of depo- sitions was unnecessary, particularly in view of counsel's assertion that he and his client personally heard the alleged prohibited commuuncations. Under date of December 16, 1977, counsel for Respondent requested that pursuant to Sec. 102.37 of the Board's Rules and Regulations I withdraw from further participation in this case because of my alleged disqualification. Attached to said request were the affidavits of H. Lee Levine and Joel I. 576 SOUTHERN FLORIDA HOTEL & MOTEL. ASSOCIATION ommend dismissal of certain allegations of the complaint but find others sustained by the evidence, and with respect to the latter I recommend an appropriate order. Upon the pleadings. the stipulations of counsel, the evi- dence, my observations of the demeanor of the witnesses Keiler. Levine's affidavit, executed December 7. 1977, stated that on Novem- ber 17, 1977 (the heanng recessed on November 18 to reconvene January 9, 1978)., he overheard a conversation between me and Anthony DiSalvo in the rear portion of the Board's Miami offices, which conversation "was about what items should be in Mr. DiSalvo's post-trial bnef so that the Judge could make credibility resolutions." Keiler's affidavit, executed December 16. states that on November 16 dunng a recess in the hearing he heard me and Mrs. Peer discussing the scheduling of one of her witnesses, and that on November 17, 1977, in the rear of the Board's Miami offices he heard through the wall, "Judge Nachman and Anthony DiSalvo one of the coun- sels for General Counsel in the instant casel discussing how to resolve the credibility issues that arose during the hearing." The request was denied by letter dated December 29, 1977, on the ground that it did not conform to the aforesaid rule and was, therefore, insufficient on its face. On January 10, 1978. the Board denied Respondent's request for special permission to ap- peal from that ruling. Because the request for disqualification is renewed in Respondent's brief, I deem it appropriate to set forth in somewhat greater detail the basis for my ruling. Sec. 102.37 provides in pertinent part: Any party may request the administrative law judge, at any time follow- ing his designation . . and before filing of his decision, to withdraw on ground of personal bias or disqualification, by filing with him promptly upon the discovery of the allegedfacts a timely affidavit setting forth in detail the matters alleged to constitute grounds for disqualification. If, in the opinion of the administrative law judge. such affidavit isfiled with due diligence and is suffiienr on its face, he shall forthwith disqualify himself and withdraw from the proceeding . .lEmphasis supplied.) Although Sec. 102.37 is somewhat narrower in scope than 28 U.S.C. 144, which relates to the disqualification of a Federal judge, the two are so similar in purpose that court decisions under Sec. 144 are persuasive with respect to the proper interpretation of Sec. 102.37. The cases hold that when presented with an affidavit of prejudice the court may not pass upon the truth or falsity of the allegations but must accept them as true for the purpose of determin- ing the legal sufficiency of the affidavit. See United States v. John N. Mitchell et al., 377 F.Supp. 1312, 1316 (D.C. Cir. 1974). On the other hand, the statutory standards and safeguards against misuse are "necessarily stringent and must be strictly enforced." See Brotherhood of Locomotive Firemen and Enginemen and H E. Gilbert Bangor &d Aroostook Railroad Company. 380 F.2d 570, 576 (D.C. Cir 1967). It is for this reason that "the motion and affidavit must be timely filed ... and must allege specific facts and not mere conclusions or generalities." Id. at 576 (emphasis supplied). And these "must be set forth with at least that degree of particularity as one would expect to find in a bill of particulars." See United States v. Mitchell, supra at 1316. It is thus clear that an affidavit which is either untimely or does not state the facts with sufficient particularity does not conform to the rule and does not re- quire the judge to disqualify himself, for "It]here is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is." See Union Leader Corporation, 292 F.2d 381, 391 (Ist Cir. 1961). Although the affidavits here show that the facts concerning the alleged disqualification came to counsel's attention on November 16 and 17, his letter requesting that I disqualify myself is dated December 16. In view of the purpose and objective of Sec. 102.67 I concluded that the affidavits for- warded on December 16 did not meet the requirement imposed by the rule that the affidavit be filed "promptly upon discovery of the alleged facts." Moreover,. even if it be assumed that under the circumstances of this case the affidavits were filed "promptly," they do not comply with the rule in that they fail to set forth facts that would establish an improper communication did occur, as distinguished from conclusions of the affiants that what oc- curred was a prohibited communication. Both affiants state that they person- ally overheard the alleged prohibited conversations. It is therefore not txoo much to require that they set forth exactly what they allegedly overheard so that it might be readily determined whether what passed was entirely in- nocuous comment or whether they impinged upon the impartiality ordinar- ily demanded of a judge. Instead of supplying the entire conversation coun- sel chose to rely on his conclusion that the conversation invaded the prohibited area. For these reasons the motion that I disqualify myself was denied. while testifying, and the entire records in this case I make the following: FINDINGS OF FA( 'I A. The ULnfir Labor Pracic-e. 1. History Association is composed of about 22 employers engaged in the operations of hotels or motels in the Miami Beach, Florida, area. Rivage, Carillon, Beach, and Country Club are each members of association. For some years associ- ation has recognized the Union as the collective-bargaining 6 The General Counsel filed with me and served upon all parties a motion. dated May 9. to correct the transcnpt in I I instances therein specified, which I have marked "A.L.J. Exhibit X." and by this reference make the same a part of the record. Respondent opposes this motion for reasons set forth in his response received May 17, which I likewise make a part of the record. At least by inference. Respondent concedes that except with respect to items 7 (incorrectly referring to p. 681 instead of 661). 8, 10, and I I of the motion the requested corrections are required but urges that in the four instances he mentions the transcript is correct as it stands. Basically, however. Respon- dent contends that the motion should be denied in its entirety because it was not timely filed as required by the last sentence of Sec. 102.24 of the Board's Rules which states that "Motions and responses thereto shall be filed promptly and within such time as not to delay the proceeding." Respondent points to the fact that the record closed on February 7. and that the motion was not made until May 10. after the time for filing briefs had expired. and that such was not a "prompt" filing within the meaning of the aforemen- tioned rule. I consider first the rule itself. Although I might well conclude in other circumstances that a motion withheld for about 3 months was not promptly filed, I feel that it would be inappropnate to do so under the circumstances here involved for a number of reasons. In the first place, coun- sel had to read and digest the transcript consisting of about 7,800 pages before she would know what corrections might be necessary. Working 5 days a week and reading 200 pages a day the task would require about 2 months, and the only correction which presents any substance, as hereafter discussed, occurred at page 7,652. Second, the brief had an absolute deadline of May 8, and the motion was one which, under the practice before the Board, is disposed of in the Decision, which in this case is many months off. Third, none of the requested corrections bear on any procedural or substantive contention advanced or argued by counsel In his brief; indeed, in his brief counsel makes no reference to nor does he specifically rely upon any' of the testimony the General Counsel seeks to correct. Finally, the corrections re- quested by the General Counsel, as hereafter indicated, are plainly necessary if the record is to speak accurately, and Respondent has made no showing that any prejudice would result to it from the granting of the motion. Turning to the corrections themselves, the first 10 items of the motion involve misspelling of names or the use of an obviously incorrect word which makes no sense in context. The only item which requires any real discussion is item II. At p. 7,652 the General Counsel was examining Reynolds, the Union's attorney and chief negotiator, and asked Reynolds if he had told the negotiators for the hotels what the Union's position was concerning the re- call of the strikers. According to the transcript the answer of the witness was. "That, I couldn't tell you." The next question was, "What did you tell them," and the witness proceeded to say what he told the hotel negotiators It is thus obvious that the answer to the first question as it appears in the transcript makes no sense and cannot be correct. For this reason I asked the reporter to check his open mike for the day in question and to file a certifi- cate with me showing what corrections, if any, were indicated. The reporter has filed with me a certificate, which I have marked "A.L.J Exhibit Y." and by this reference made a part of the record. stating that the answer above referred to was in error on the part of the transcriber, and that the correct answer is "Emphatically." This answer makes sense and fits logically into the following question and answer. Accordingly, for the reasons stated the motion to correct the transcript in the manner therein indicated is granted in its entirety. I No issue of commerce or labor organization is presented. The complaint alleges and the answer admits facts which establish those elements I find those facts to be as pleaded. 577 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the employees of its members in an appro- priate unit. A contract executed in 1968 (extended by agreements executed in 1972 and 1974 with changes not here material), expired by its terms on September 16, 1976. Negotiations for a new contract having failed to produce an agreement, the Union called a strike against association and many of its members. At Carillon, Beach, and Country Club the strike began on December 25, 1976, and at Rivage, it began on January 10, 1977. Most if not all unit employees in the four hotels here involved supported the strike and refrained from working for the struck hotels.9 The strike and all picketing ended January 14, 1977, when agreement was reached on the terms of a new contract.'0 Because a comparison of certain provisions of the 1968 and the 1977 contracts have a bearing on some of the issues requiring decision here, the applicable contract provisions of both contracts are set forth in Appendix A, attached, and are there explained. The General Counsel concedes that through January 16, 1977, no unfair labor practice oc- curred, and that the strike to that point was in all respects economic in nature. The General Counsel does contend, however, that because of certain alleged unfair labor prac- tices by the Doral hotels on January 17" some 41 strikers employed by Beach and Country Club who were dis- charged that day for strike action against those hotels are entitled to the status of unfair labor practice strikers. To clearly present the issues and the manner in which they arose the facts will be stated as closely as practicable in chronological order. 2. Post-strike contract negotiations Between December 30, 1976, when negotiations resumed following the strike, and January 14, when the parties reached agreement on contract terms, bargaining took place on about eight different dates.' So far as relates to the issues in this case the following three basic areas were dis- cussed at these sessions; (I) modification of the provisions I The unit alleged in the complaint to be appropriate is "all employees of the dining room, bar department, housekeeping department, service depart- ment, maintenance department, telephone department, laundry department, and kitchen department, employed by the employer-members of lassoci- ationl, excluding executives, department heads, managerial employees, guards and supervisors as defined in the Act." The answer denies the allega- tion. The collective-bargaining agreements in evidence grant the Union rec- ognition as the collective-bargaining representative for "all employees recog- nized as being in the bargaining unit of the Employer, except for executives, department heads, managerial employees and guards and supervisors, [etc.]." No testimony was offered on this issue. The unit pleaded in the complaint appears to be normal for the hotel industry, and I find nothing to indicate it to be inappropriate. Accordingly, I find the unit pleaded to be appropriate. ' The evidence shows that 668 unit employees struck at Country Club. 396 at Beach, and 299 at Carillon. The number striking at Rivage is not shown by the record. 10 Some issues are raised as to when the new contract became effective. Those issues will be considered in subsequent portions of this Decision. H This and all dates hereafter mentioned are in 1977 unless otherwise stated. 12 These were December 30, 1976, and January 5, 6, 7, 10, 12, 13, and 14, 1977. Keiler attended each of these meetings at the first as counsel for Du- pont Plaza Hotel and thereafter as counsel and principal negotiator for asso- ciation. At the January 5 meeting the International took over the bargaining for the Union, and thereafter International President Hanely and general counsel Reynolds were the negotiators on its behalf. of the old contract dealing with union access to the hotels: (2) changes in past practices at the hotels which Keiler in- sisted had to be made if they were to operate efficiently: and (3) how Respondents were to handle returning strikers and replacements hired during the strike. These issues will be discussed separately, and the entire course of bargaining with respect to each issue will be given before discussing another. a. Union access to the hotel On January 6 Keiler and Reynolds met alone and dis- cussed changes and new provisions Keiler and Reynolds met alone and discussed changes and new provisions Keiler wanted in the contract. Specifically, Keiler referred to the visitation provisions (art. III, sec. 3), mentioning two prob- lems. The first problem was the practice of Schiffman' 3 coming to the office of a hotel manager unannounced and cursing him in front of employees or visitors that might be in the office. The second problem was that union agents would walk into work areas of a hotel, and employees would stop what they were doing and congregate around the agents. Keiler told Reynolds that these practices could not be tolerated and had to stop."' Reynolds agreed that the hotels should not have to tolerate conduct such as Keiler related and suggested that some language requiring union agents to make prior arrangements before visiting the hotel would appear to solve the problem. Although Keiler claimed that Reynolds agreed at this meeting to amend the visitation provisions as indicated, and Reynolds claims that he went no further than promising to discuss the matter with officials of the local to determine if there was any dif- ficulty with what he had suggested, I find it unnecessary to resolve the conflict. The fact remains that whether it was at this or some subsequent meeting the parties agreed that the visitation provisions of the 1968 contract be amended as reflected in Appendix A, and the 1977 contract was drafted and signed with those modifications. b. Bargaining on past practices Another subject raised by Keiler at the January 6 meet- ing related to article III, section 4, of the contract entitled "Prohibitions and Reservations of Rights." Keiler told Reynolds that over the years many improper practices had grown up in the hotels, and that attempts to correct those practices had resulted in arbitration proceedings in which the hotels could not prevail because the condition was held to have become a "past practice or precedent." To correct the problem he wanted language inserted that would permit the hotels to make, change, and enforce reasonable rules and regulations and suggested that from his point of view insertion of the phrase "notwithstanding any past practice or precedent," would remedy the situation. Reynolds took " For some years and during the events here involved, president of Local 355. Later International placed Local 355 in trusteeship. Armando Vasques., theretofore chief organizer for the Local, was named trustee, and Schiffman became a special assistant to the International president. 14 Another practice Keiler complained of, which does not bear on any issue in the case, was that shop stewards spent many hours walking about hotels looking for grievances instead of performing their duties. 578 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION the position that the language Keiler suggested was much too broad, and to accept it would be "buying a pig in a pig." Reynolds asked Keiler to prepare a list of changes the hotels had in mind so that the Union might consider them and either agree or the parties could bargain them out. At the end of the January 6 meeting the issue remained in this posture. The evidence shows that the issue was discussed at sev- eral subsequent meetings. Reynolds insisted on a list of the changes Respondents were proposing, and management re- sponded that preparation of such a list was not practical because of the sheer number of items involved. Respon- dents insisted that the Union would have to accept the in- sertion of the phrase which Keiler had proposed. The issue was not settled until the meeting of January 13 when Reyn- olds told Keiler that the Union would agree that the above- quoted phrase could become a part of article III, section 4. of the contract, and the same appears in Appendix A. c. Negotiations on return of the strikers This issue first surfaced in the negotiations when, in pri- vate conversation between Keiler and Reynolds about January I 1, the latter asked whether, assuming agreement on all other terms of a contract, there would be any prob- lem about the return of the strikers to their former jobs. Keiler replied that this might well present a problem be- cause association was composed of many owners who did not always agree. Reynolds asked Keiler to ascertain the position of his clients because the issue might well be criti- cal to an overall agreement. When the parties met again on the morning of January 12 the Union asked for management's position on the re- turn of the strikers. Keiler replied that although the Union's request would present no problem to some of his clients. others would not go along, and for that reason he could not agree. Gray, who was present at this exchange, expressed the view that the hotels had a great obligation to the re- placements because they came to the rescue when the Union struck without notice on one of the busiest days of the year, and he regarded this as a greater obligation than any he might owe the strikers. At this point Hanely stated that the issue was more than a matter of money but in- volved a basic trade union principle, and unless the Union could get assurances that the strikers would be returned to their jobs there could be no agreement on a contract and further meetings would be useless. Hanley and Reynolds then left the meeting. The parties met again later on January 12 in the office of Novak, then president of the Fountainbleu.6 While many subjects were discussed, that principal issue discussed at 'i Dunng the negotiations Keiler also insisted upon a revision of the arbi- tration article and upon inclusion of a "zipper" clause in the proposed con- tract. His objections to the arbitration article were that a permanent arbitra- tor was named, and that it provided no time targets. The record does not indicate that there was extended discussion on those subjects. The record is quite clear that both were agreed to by the Union. The new arbitration provisions appear in the contract signed by the parties as art. XI and the "zipper" clause as art. XIlI, sec. 3. 1' Although Fountainbleu was not a member of association. Novak tned to be a peacemaker and bnng the parties together this meeting, as well as at the meeting of January 13, so far as this case is concerned related to the return of the strikers to their former jobs. Gray again expressed the view that he owed a greater obligation to the replacements than to the strikers and also stated that during the strike the hotels had ascertained that as a group the replacements were more efficient and better employees than the strikers, and for that reason he wanted to retain all the replacements. This was followed by an extended presentation by Blacker'7 to the effect that the strikers were thieves, malingerers, and as a group unsatisfactory employees, and that as a group the replacements hired during the strike were better employees. For this reason the hotels wished to retain them. Hanley responded that employees of the type Blacker described were not only bad employees that no employer should have to tolerate but bad union members as well. He pointed out that the discharge article of the contract (art. IV) and the revisions in the arbitration procedures which had been agreed upon provided the Employers with adequate ma- chinery to rid themselves of bad employees. Hanley reiter- ated his prior statement that reinstatement of strikers was a basic trade union principle, and unless the Union could get some assurances in that area further meetings would be useless. At the meeting in Novak's office no agreement in this area was reached, and management adhered to its posi- tion that they would not recall strikers. At the meeting on January 13 the return of the strikers was once a major issue discussed. Initially, each side ad- hered to its original position. The Union contended that all replacements must be dismissed and all strikers returned, and management answered that no strikers would be re- called. Finally, Gray inquired if the hotels agreed to return all the strikers to their jobs would the Union have any ob- jection to their also retaining the replacements. Reynolds responded that the Union did not represent the replace- ments and could not negotiate for them and continued to insist that all strikers had to be returned in accordance with the needs of the Employer's business." At this point Gray asked what the Union's position would be if management agreed to all Reynolds had said but still kept the replace- ments: Reynolds replied that the Union did not care what the hotels did with their replacements but added that the replacements could not be doing the strikers' jobs. Gray then asked Reynolds to assume that before the strike a ho- tel had employed five diswashers, and during the strike found they could get the same work from two diswashers. Reynolds replied that under the contract, the hotels always had the right to determine their personnel needs, had no obligation to hire more people than they deemed necessary, and added, "xxx but what we are telling you is, if you re- duce that job to two people, you cannot have three [replace- " An official of the Eden Roc and Deauville hotels. Both hotels are mem- bers of association but not individually parties to this case. Blacker was a member of management's bargaining committee. He did not testify in this case. n' By way of emphasis Reynolds explained that if on a given day the employer's business required a work force of 200, the 200 had to come from among the strikers. If on the following day the Employer's business called for a work force of 300, the extra 100 had to come from among the strikers. Reynolds also stated that he recognized that the hotels could not recall all the stnkers immediately, that a penod would be necessary to phase them in. but that within a few da)s employment should be at normal levels. 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments] in there assisting them, and if you find it has to go from two people back to five people, those other three have to be strikers." Following this presentation by Reynolds management again expressed its desire not to recall those strikers they described as "thieves, malingerers, deadbeats" who did not properly perform their duties. The Union adhered to its position that all strikers had to be recalled and repeated its prior statements that all the items of alleged misconduct to which management referred, as well as others, were grounds for discharge under article IV, and that this provi- sion, together with the revised arbitration provisions which the parties had agreed upon, provided the Employer with the machinery necessary to discharge any employee of the kind referred to. In addition, Hanley stated that he would instruct the local not to take any discharge to arbitration unless there was convincing evidence that the discharge was not for cause. Keiler admittedly replied to the effect that the hotels would not use the discharge provisions of the contract because to do so would involve them in arbitration proceeding which in the past had not proved too successful and which they wanted to avoid, and they could not rely upon the Union's promise to take cases to arbitration be- cause even though the Union carried out its promise in that regard the employee could, under Vaca v. Sipes, 386 U.S. 171 (1967), sue and require the Union and the Employer to arbitrate his case. Keiler stated that for those reasons the hotels would not discharge employees under article IV of the contract but would lay them off under article V, section 2, which he claimed gave the Employer the right to lay off out of seniority provided the retained employee is, "in the opinion of the employer, qualified to perform the available job." By proceeding under the quoted provision Keiler ad- mittedly told the Union that layoffs would not be subject to arbitration. He claimed that in two cases an arbitrator had so construed the contract provision referred to, holding it to be a valid and enforceable provision, and that under it the opinion of the employee was the sole criteria. 9 Keiler, Gray, and Kramer testified that when Keiler told the Union that the hotels would not discharge those they 9 The arbitration cases to which Keiler referred allegedly involved the Delano and Sheraton Four-Ambassador Hotels. Respondents did not, how- ever, offer either of those decisions in evidence or provide any citations so that I might take official notice of them. On rebuttal the Union offered the decision of arbitrator Davidson in the Delano case, which is dated September 9, 1976. Respondent refused to stipulate the authenticity of the document: this caused the hearing to be in recess for hours until the attendance of Davidson could be secured, and he identified the document as his decision in the Delano case. Davidson was not asked if he had issued any other decision on the point. I then asked Keiler if this was a decision he contended sup- ported his position on the construction of art. V. sec. 2 and if it was the only such decision. Keiler replied that he thought there were two such decisions. and he stated that he did not know if the one received in evidence was one of them or not. In the brief Keller submitted to me there is attached what purports to be a decision by arbitrator Davidson dated August 6, 1976, in a gnevance in- volving the Union and Sheraton Four-Ambassador Hotels. There is no evi- dence in this record establishing the authenticity of that document. nor have I been presented with any stipulation to establish its authenticity. Although the authenticity of the last mentioned decision has not been proved and strictly speaking should not be regarded as a part of the record, the signature thereon does appear to be same as that on the Delano decision. For this reason I shall treat the decision in the Sheraton Four-4mbassador case as a part of this record and give it due consideration. Both cases are discussed in a subsequent section hereof. regarded as undesirable employees but would lay them off under article V, section 2 of the contract, and that Respon- dents, although recalling the strikers. would retain them only for a short period as Kramer expressed it, the hotels would turnstile the strikers in and out--the Union agreed that the hotels could proceed as Keiler indicated. Reynolds and Hanley deny that they made any such agreement. I am unable to credit the testimonies of Keiler, Gray, and Kra- mer in that regard.2 0 At this point the parties seem to have regarded the issue of the return of the strikers and the manner in which the replacements should be handled as agreed upon. After agreement upon some economic issues not theretofore re- solved the "favored nations" clause and Reynolds' agree- ment that the phrase "notwithstanding any past practice of custom," which Keiler had insisted upon, might be added to article III. section 4. the parties considered that full agreement had been reached on all terms of' a contract.2' Having thus fully, agreed Reynolds turned to Keiler and said, "Now. Joel lets have no b.s.. these people go back to work. I don't want to hear your 'qualified' or "unquali- fied' these strikers go back to work." Keiler replied. "There is not going to be any of that. The) are all going back to work." Although the parties had agreed on contract terms they further agreed not to publicize that fact until after the meeting the next day with the Federal Mediation and Conciliation Service. They did, however, agree on the language of a statement to be released after the meeting on January 14. The statement, written by Kramer after being rewritten several times to accommodate the views of all parties, in its final form read: All strikers will be returned to work as the need arises, under normal operating conditions at the hotels occurs [sic], starting immediately 2o I reach this conclusion for several reasons. In the first place, the alleged agreement was most unusual, one from which the Union had nothing to gain and everything to lose. [Had the strike continued to the point that the Union would have been forced to walk away empty handed it would have been no worse off than it was under an agreement that Respondents might terminate the strikers when it suited their purpose, with or without cause On the other hand, as pointed out in a subsequent section hereof, the hotels were hard pressed to meet their staffing requirements and needed an end to the strike. Kramer admitted that recalling the strikers within a few days and terminat- ing a very substantial number of them was actually a facade but claimed that such procedure was only a face-saving device for the Union; a claim which I also am unable to credit. Finally, Keiler, Gray, and Kramer all agree that the Union did not in point of fact express agreement to Keiler's statement that the undesirable employees might be laid offbut claimed that such agree- ment could be legitimately inferred from the fact that when Keiler made his statement Reynolds and Hanley remained silent, Additionally, Kramer claimed that he inferred such agreement on the part of the Union from the fact that Reynolds and Hanley stated several times that the contract pro- vided the hotels with the machinery for the layoff of undesirable employees, and the only such machinery he was aware of was the layoff provision in art. V, sec. 2, of the contract. In this connection it may be noted that every reason assigned by Respondents for regarding the strikers as unsatisfactory employees is a ground for discharge under art, IV of the contract. 21 Both sides agree that two categories of strikers were not subject to the agreement. These were strikers whose jobs were eliminated and those em- ployed in departments that were closed, who would not be recalled until the department reopened. Nothing was said by either party relating to other strikers who may have engaged in picket line misconduct. 22 The parties did meet on January 14 with the Federal Mediation and Conciliation Service for several hours. Officers of Li.cal 355. who had not participated in the bargaining since the International assumed that responsi- bility, were present Although there appears to have been some attempt by 580 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION 3. Execution of the contract At a membership meeting held during the evening of Fri- day, January 14, Local 355 ratified the contract, and later that evening Reynolds notified Keiler of that fact. Keiler then completed the necessary revisions in the initial draft of the contract, and late Friday or early Saturday he left the revised document for Reynolds at the latter's hotel. Reyn- olds and officials of the local reviewed that document on Saturday, and after obtaining Keiler's consent to certain changes officials of the local signed the document that day and delivered it to Keiler's hotel for him to attend to its execution by association. Association President Gray testified without contradic- tion that about 10:30 a.m., Monday, January 17, he met with representatives of association's members, explained the contract to them, and obtained their consent to its ex- ecution; that he and association Vice-President Kramer thereupon signed the contract and shortly thereafter gave it to a messenger with instructions to deliver it to the union hall. Ivan Bowser, employed by Beach as a mail clerk and driver, testified that shortly before noon on January 17 Gray gave him a package with instructions to deliver it to the union hall at an address about 10 minutes away from the hotel, and that he delivered the package as directed, handing it to the telephone operator at the union hall. He fixed the time of such delivery at "about noon," because he was back at the hotel shortly thereafter. Union President Schiffman testified that just after 4 p.m. on January 17 his telephone operator brought him an enve- lope, saying that it had been left for him, and that in the envelope he found the executed contract." The contract itself bears no date, but provides that it shall become effective "upon execution." (Art. .) Based on the record evidence I find and conclude that "execution took place at about II a.m., January 17 when Gray and Kramer signed the document on behalf of association; the Union for its part having executed the document on Janu- ary 15.24 4. Events of January 16 Sunday afternoon, January 16, Keiler addressed the management officials and department heads of many asso- officials of the local, particularly Vasquez, to reopen some of the questions settled by the agreements reached the preceding day, the only such item having any beanng on the issues in this case was the insistence by Vasquez that the "qualified" language in art. V, sec. 2, be eliminated. However. Keiler insisted that the language must remain, and the parties reached final agree- ment on that basis. The statement which the parties agreed upon the preced- ing day was released and was carried by the press, radio. and television. 2 Vasquez corroborated Schiffman that the telephone operator brought in the envelope just after 4 p.m. According to Vasquez. he was on his way out and did not see what was in the envelope but did hear Schiffman say. "that must be the contract," and after opening the envelope he said. "yes, that's what it is." The telephone operator was not called as a witness, and there is no showing that she was not available. 24 Having so found I deem it immatenal when the contract was delivered to the union hall or when the telephone operator delivered it to a union official. However, should the Board deem delivery to be a relevant factor I find and conclude that the contract was delivered to the Union at approxi- mately noon on January 17. The fact (if it be a fact), that the telephone operator did not deliver the document to an official of the Union until about 4 p.m. I deem immaterial. iation members, including particularly Country Club, Beach, and Carillon. According to Keiler. he told those as- sembled that the strike was over, and that an agreement had been reached; that although he felt management had won the strike, they were not going to broadcast that be- cause the Union was still there and it had to save face; that under the agreement with the Union the hotels had to take back all of the strikers and had about 10 days to schedule them in but would try to do this the first week; that there was also an agreement with the union that the hotels could lay off anyone regarded as inefficient. unqualified, or dead wood: and that there was no requirement that any one be taken back whose job and eliminated or to any department that was closed. Still according to Keiler, he also told the group that Country Club General Manager Seamon would give them the mechanics for selecting those to be laid off, but that basically each department head would prepare a list of those strikers who were unqualified-not more quali- fied, not less qualified, but just unqualified in the opinion of the hotel-; that the department heads were not to be vin- dictive, and that names were not to be put on the list just because they went on strike or because they just did not happen to like the employee: that the objective was to get rid of all employees who were "no good"; and that if those who were no good were strikers they would be laid off un- der the "qualified" clause, and if they were replacements they would just be fired. Keiler also told the department heads to immediately prepare lists of those strikers that were being called back to work between January 17 and January 20 in order that the hotel might be properly staffed and deliver those lists to the security department so that those employees might be admitted to the premises as re- quired. According to Keiler, he did not see or participate in the preparation or review of any of these lists. Although most of the department heads of the Doral op- eration testified in this case none of them gave any evidence as to what was said to them at the aforesaid meetings or what criteria they used and the manner in which they pre- pared the lists of strikers that were to be laid off. It may be noted also that none of the layoff lists were introduced in evidence. The hotel executives did testify in this area, but their testimonies are not entirely in accord. Arnold Seamon, vice president and general manager of Country Club, testified that Keiler's remarks were that there was a new contract; that the hotels had won the strike and were getting their hotels back; that past practices would no longer be followed, and that department heads could promulgate reasonable work rules that employees would be required to follow; that union agents would have to make an appointment through the personnel department before visiting the hotel, and that the personnel department would designate the time and the location of visits by union agents; that thereafter seniority applies only for purposes of days off, vacations, and shift preferences; that under the agreement with the Union the hotels were required to recall all the strikers (except those employed in departments that were closed and would not reopen immediately or whose jobs had been eliminated) but could also retain all of the replacements; that this would result in overstaffing which would require layoffs; that the only basis for selecting those to be laid off would be that the employee was not qualified 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the opinion of the hotel, and that the department heads were to prepare lists of those employees who did not meet the test, and that such lists xkere to include the names of both strikers and replacements, but that those replacements who did not meet the test were to be fired while those strik- ers who did not meet the test were to be laid off; and that in preparing the lists the department heads were cautioned not to be vindictive or use union activity as a reason for select- ing an employee for lay off. Seamon also testified that while he construed Keiler's remarks as requiring some valid rea- son for saying that an employee was not qualified, such as discourtesy to a guest, frequent tardiness, or absenteeism, Keiler in fact said that all we have to say is in our opinion this employee is not qualified; that he instructed the depart- ment heads to prepare the lists accordingly, not put any names on the list for vindictive reasons or because they had engaged in union activity, and to submit the lists to him as soon as possible. Accordingly to Seamon, he received the first list from his department heads about 4 p.m., on Janu- ary 16, and the last list the following morning; that he went over each list with the department head involved and ascer- tained the latter's reason for placing each name thereon; that the unusual reason given was excessive tardiness or absenteeism, discourtesy to guests, or a similar reason, and that union activity was never mentioned; that in a couple of instances he removed names from the list because he was not satisfied that the reason assigned by the department head for including that person was a valid one;" and that after reviewing the lists with the department heads he was satisfied that each person included on the list was not quali- fied and belonged on the list. Seamon admitted that in going over the lists he made no review to determine what replacements might not be qualified, nor did he consider the qualifications of those members of the Union who, al- though they had initially engaged in the strike, had aban- doned the strike and returned to work. The testimony of Gustavo Novo, operations manager of Country Club, is substantially in accord with that of Seamon, except that he claims that he was with Seamon when the latter interviewed each of the department heads involved, and that at the end of the interview on the basis of what he heard he too was of the opinion that the employee involved was not qualified. According to Novo, in going over the lists Seamon spent from 30 seconds to perhaps 2 or 3 minutes in discussing a particular employee. Malkin, general manager of the Carillon, testified that he and all his department heads attended the meeting on Janu- ary 16. He, as did Seamon, attributed to Keiler the state- ments that the hotels had won the strike, and that there was a contract by which we got the hotels back; that the deal with the Union was that the replacements could be re- tained, and that all strikers would be recalled (except for closed departments and jobs that were eliminated), and that those strikers who were unqualified were to be laid off and replacements the hotels did not wish to retain were to be fired; and that lists of the unqualified were to be prepared by the department heads, but that in preparing the lists the 2 Seamon gave no testimony as to what facts came to his attention that caused him to conclude that the department head had improperly placed a name on the unqualified list. department heads were not to be vindictive and were not to put anyone on the list because they were prounion or had picketed.?6 According to Malkin, Levine, personnel man- ager for all the Doral properties, then addressed those as- sembled and directed each of the department heads to promptly prepare a list of those employees in their several departments who were not qualified and to submit such list to the hotel manager; that on January 17 he went over the several lists with the respective department heads discussing the reason each person on the unqualified list was placed there; that the principal reasons assigned were tardiness, improper performance of job duties, and discourtesy; that no department head gave as a reason that an employee was prounion, had participated in the strike, or had filed griev- ances; and that on the basis of the information so supplied he was satisfied that the persons whose names appeared on the list were not qualified" and were properly placed on the list. Malkin admitted that in going over the lists of unquali- fied employees he did not review the personnel files of the employees found to be unqualified or examine any adverse action reports the files may have contained. Although Mal- kin claimed that he knew most of the employees found un- qualified and was familiar with their work histories, the only one he discussed by name was Charles Debsky, and he claimed that in one instance a complaint was made by a guest that Debsky had been discourteous. Milken admitted that the incident occurred about I year prior to Debsky's layoff, and that he discussed the incident with Debsky's supervisor and with Debsky but took no further action at that time. s He also admitte, that he was unaware of any prior adverse action against any of the employees he found to be unqualified. The testimony of Personnel Director Levine is substan- tially in accord with that of the hotel managers. In addition, he testified that the various lists of employees to be laid off, as finally approved by management officials, were consoli- dated into one master list that was delivered to his office for use by his staff in notifying those strikers to be laid off.2" 25 Malkin further testified that Keiler told them that work rules could be changes at will, provided only that the changes were reasonable: that senior- ity would thereafter apply only to vacations. days off, and choice of shifts. and that union agents could not wander about hotel property but had to make a definite appointments as to time and place before meeting on com- pany property. 27 According to Malkin, in going over the lists there were two instances in which he disagreed with the conclusions of the department head and directed that the names be removed from the list of unqualified. Malkin explained that these employees were somewhat advanced in age and allegedly a little slow in their service, and he did not consider that a sufficient reason for regarding them as unqualified. Malkin did not elaborate further. 25 Debsky testified that he worked at Canrillon about 3 years as a pool attendant; was a member of the Union for the entire penod, and for about I year ending in October 1976, a union steward for the pool area; that he participated in the strike and picketed from its inception until the settlement on January 14: that he was recalled to work by the hotel and worked from January 18 through 21, at which time he was summoned to the personnel department where he was told that he was being laid off: that no explanation or reason for the layoff was given; that at the time of the layoff he was aware that a replacement had been hired for him dunng the strike, and that the replacement was on duty when he was told that he was laid off; and that during the period of his employment he was never told that he was not qualified for his job, nor was he ever reprimanded or criticized for his work performance. 24 Levine testified that the onginal lists prepared by the various depart- ment heads did not come to his office, and he had no information as to whether such lists were in existence when he testified. Regarding the master 582 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION 5. Events of January 17 A. Some strikers recalled to work As heretofore stated, when the parties reached agreement on the terms of a new contract a joint announcement was made which was carried by the press, radio, and television. In addition, when the hotels began recalling employees for work on January 17 this fact became generally known. As a result and because a large number of the strikers had been employed at one of the Doral hotels, literally hundreds of former strikers, many more than the hotels had recalled to work that day,3 appeared at the premises of those hotels early in the morning of January 17. The evidence leaves no room for doubt that many of these workers although not in fact called to work, were quite honest in their belief that if they reported for work they would be permitted to do so. It is equally clear that many others of those not recalled knew that they would not be permitted to work but just wanted to see what would happen. Be that as it may, the evidence shows that with one exception, hereafter discussed, of those employees who were called during the period of January 17-20 all were permitted to work. The exception is the six employees of Country Club who Respondent contends abandoned their jobs, as hereafter more fully discussed. Country Club admitted that it thereafter refused to rehire those employees. With respect to the employees who were not on the list of those recalled to work on January 17, the evidence shows that a substantial number of those, after milling about the hotels for several hours, went to the union hall. What transpired there is not shown by the record, but Respondent admittedly discharged and thereafter refused to reemploy 36 strikers because they picketed Beach on January 17. The details of the two incidents are now set forth. b. Allegedjob abandonment Helen Bizzell, Elizabeth Dean, Ingrid Hunter, Lola Woods, Manuel Marquez, and Carlos Toledo had been em- ployees in the coffee shop of Country Club for varying peri- ods of time ranging from 4 to 13 years, the first four men- tioned as waitresses and the remaining two as busboys. Each had been a member of the Union for the entire period of employment at the hotel and had participated in the strike from its inception. Each was called by the hotel to report for duty on January 17 and did so about 6 a.m. to make ready for the opening of the coffee shop at 6:30 a.m. What happened thereafter is best illustrated by the testi- mony of Lola Woods which, except for minor variations not deemed material, is corroborated by the testimonies of fellow waitresses Bizzell, Dean, and Hunter. Woods testified that upon arriving at the coffee shop she list, although onginally sent to his office and used by his staff in telephoning the strikers who were to be laid off, he was unable to say whether that was now available. m0 The hotels actually had phased recall over the 4-day period from Janu- ary 17 through 20. The precise number recalled for work each day is not entirely clear. asked her supervisor, Riccio, for her station assignment" and upon receiving it made her station ready. While so engaged Riccio told Woods that there would be no more 15 percent added to the guest's check if the guest failed to leave a tip." After setting up her station Woods went to the kitchen where Bizzell, Dean, and Hunter were talking with department head Lieberman. Wood heard Bizzel explain to Lieberman why she was late" and then asked Lieberman what was going on, why there were so many nonunion peo- ple working while many union people who had the greater seniority were outside and not permitted in the hotel. Lieb- erman replied that there is no more seniority, no more Union, no more rotation, no more 15 percent, and that he would call whom he please when he pleased. Bizzell then stated, "if you are not going to recognize the Union and not going to comply with the contract, the best thing for us to do is go to the union hall to find out what is going on," and that the group of six then left the hotel. fixing the time thereof as about 8 a.m. Woods also testified that later that day she telephoned the hotel and tried to speak with Lieb- erman or his assistant, Maffio, but was told that they were in a meeting and could not be disturbed. The following day Woods, Bizzell, Dean, and Hunter returned to the hotel together but were not admitted to the premises because their names were not on the list of employees called for work that day. Several days later she telephoned Lieberman and asked if she could come back to work but was told that the matter was out of his hands and was being handled by Manager Seamon. On cross-examination Woods testified that her only rea- son for leaving the hotel Monday morning was Lieberman's statement that there was no more seniority, and that had he not made that statement she would not have left. She ad- mitted that in her affidavit to the Board agent she stated that one reason for walking out was that the hotel was not complying with the contract, and although she had not read the contract she knew that there was noncompliance, that she had observed nonunion people at work and union mem- bers who were supposed to be at work were outside and could not gain admittance to the premises, and that she had no knowledge of the existence of an agreement that the hotel might retain all the nonunion people who worked dur- ing the strike. Woods also admitted that in her affidavit given to the Board agent she stated, "We set up our tables but left because the shop steward Gil and Bob not further identified] said we shouldn't work, and we should punch out. I did." ]* The evidence shows that because of location some stations are more desirable than others. To get a more equitable distribution of the work load and opportunities it was the practice to rotate the stations daily. Supervisors were responsible for the operation of the rotation system. 32 This refers to the practice prior to the strike of paying a gratuity of 15 percent of the amount of the check to waiters and waitresses if the guest did not leave a gratuity. The hotel added the gratuity to the guest's bill, and the latter was expected to pay it at the time of check out. If the guest then objected the item was deducted. and the waiter or waitress was supposed to reimburse the hotel. Apparently, instances where guests failed to leave a gratuity happened frequently. The refusal of the guest to pay the item when presented the bill was apparently an infrequent occurrence. IX Bizzel explained that she had reached the hotel on time. but security could not locate her name on the list of employees to be admitted and would not permit her to enter until they clanfied the situation. 583 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carlos Toledo testified on direct that he returned to work the morning of January 17 pursuant to a call from the hotel but after getting through the gate was told by a waitress named Helen (presumably Helen Bizzell) to leave and did so with others; that he spent approximately 15 minutes in the hotel and heard Lieberman and his assistant Maffio say- ing that the employees had no seniority and no contract. 4 Lieberman's testimony in this area is that following the strike he called Woods, Bizzell, Dean, Hunter, Marquez, and Toledo to report for work on the first shift on January 17; that he called these people according to seniority, and that they reported for work about 6 a.m., congregating in the kitchen; that at about 6:30 a.m. he told the group that it was time to open for business, and that they should report to the stations that had been assigned them; that Hunter spoke up that they were not going to work, but would wait a while; and that he again told them to go to work or leave the premises, and that the group then left, and none of them have been back. According to Lieberman, nothing else was said. Although Lieberman denied that he told any em- ployee that there was no contract, no seniority, and no more rotation, he admitted that he told them there would be no more 15 percent for tips, claiming that this was be- cause of a new policy adopted by the hotel during the strike. Lieberman claimed not to remember whether any of the waitresses when talking to him on the morning of Janu- ary 17 mentioned anything about the more senior wait- resses or that they mentioned the name of Marie Gartsu as the waitress with the greatest seniority who was among the crowd outside unable to pass the security guards, and al- though claiming that he recalled the waitresses in order of seniority and knew that Marie Gartsu was the most senior of the coffee shop waitresses admittedly did not recall her. He speculated that the probable reason for not recalling her was that the hotel was unable to reach her by phone. No other evidence was introduced to support such a claim." Lieberman also testified that he did not recall any of the group asking him anything about the union contract, whether it had been signed, and did not recall telling any of the group that he knew nothing about a contract or that there was no contract or no Union. Lieberman admitted that Marquez returned to work Tuesday morning, and that he told the latter that because he had walked off the floor the preceding day he could not use him anymore. Lieber- man did not impress me as a reliable witness. I therefore do not credit his testimony in the areas that it is in conflict with that of other witnesses. 3s The testimony of Marquez on cross-examination I find confusing and so utterly incomprehensible that I am unable to make any findings based thereon. 35 The only other testimony there is on the subject is that of Gartsu, who testified that she received no call from the hotel regarding work on Monday, but that because of the general publicity that all strikers were to be recalled according to seniority and because she was third on the seniority list, she assumed that she would work, but she was not permitted on the premises. Gartsu also testified that she received a call on Monday, telling her to report for work Tuesday, which she did and worked that day, but she was not called again until Friday when she was told that the hotel was overstaffed and that she did not qualify, and that she shound turn in all hotel property in her possession and pick up her check. According to Gartsu, in the II years she was employed by the hotel she was never told that she did not qualify for her job. Respondent introduced no contrary testimony. c. Picketing at Beach As indicated above, a great number of employees who had participated in the strike against this hotel and who had not been called for work on January 17 went to the hotel with the thought that they might be allowed to work, but none of these was permitted on the hotel's premises and just milled about for some period. At some time during the morning (variously estimated at between approximately 8 a.m. or 8:30 a.m. and 11 a.m. to 12 p.m.), a number of these people went to the union hall for information as to why they were not permitted to work. How many went to the union hall, whom they saw, and what they were told is not shown by the record. After visiting the union hall a number of these people returned to Beach and picketed and signs containing language to the effect that the Union was strik- ing the hotel for better wages and working conditions. Although there is conflicting evidence a to when this picketing occurred and how long it lasted, I credit the testi- mony of Respondent's witness Roy Milton, who took pho- tographs of the picketing and identified many of the pick- ets, that the picketing on January 17 took place at roughly between 2 p.m. and 4 p.m. The names of 36 individuals alleged by Respondent to have engaged in such picketing are set forth in the attached Appendix B. All but four of these (Margaritu Alvarez, Luis G. Arango, John B. Terris, and Martha Tunez), testified in this proceedings Of the 32 who did testify 17 admitted that they picketed the Beach hotel on January 17, denied that hey engaged in any picket- ing on the day in question, and 6 gave no testimony on that subject. Each of the 16 who either denied picketing or gave no testimony on that subject" was, however, identified by witnesses called by Respondent as being the individuals de- picted in photographs of the picketing. On the basis of this testimony, which included the identification of those who gave no testimony on the picketing, and the testimony of those who admitted they picketed as alleged, I find and conclude that each of the 36 persons listed on Appendix B picketed Beach for some period of time between 2 p.m. and 4 p.m. on January 17. d. Statements by supervisors (1) Beau Rivage The strike began at this hotel on or about January I, but not all employees participated. The day before the strike Comanagers Byrnes and Stein and Coffee Shop Manager Weiner spoke to the employees they caused to be assem- bled. Byrnes and Stein told the employees of the antici- pated strike the following day, and that to avoid the neces- sity of their possibly having to cross a picket line the hotel would provide them with rooms if they wished to continue at work. Byrnes and Stein also stated that it was not the 3 Respondent's testimony that these four picketed as alleged consists of photographs which are in evidence and testimony by witnesses regarding the identity of the picketers shown in the photographs. All of the picketers were identified in this fashion. 7 These were Ester Alverez, Angela Avilas. Seyda Campolegre, Luis Irby, Rosa Fernendez. Mary Fedelgo, Batola Leon, Rosa Paloinino, Ignacio Scull, Carded Alles. Olga Baylina, Albert Canderlana. Angel Delgado, Alejandio Fernendez, and Ramondo Lopez. 584 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION Union that paid employee benefits but the hotel, and that so far as the hotel was concerned employees would have the same benefits in or out of the Union, that if the employees struck, the hotels would have to hire people in their place. and that when they wanted to come hack their jobs might not be available at that time. The evidence shows that some, but not all, employees including Mary Colbert and Sally Green participated in the strike and picketed for the approximately 4 days the strike was in progress at this hotel. During the picketing both Byrnes and Stein visited the picket line, and on one occa- sion Stein asked Green where she would work after the strike. Green replied, at Beau Rivage. Stein made no reply. On January 15 Green telephoned Brynes, saying that it was her understanding that the strike had been settled and asked when the employees would return to work. Byrnes replied that he knew nothing about a settlement, that the hotel was very happy with the situation as it was, and sug- gested that Green call Weiner. which she did. Weiner told Green that nothing had been settled and suggested that she call back the next day. On January 16 Green again called Byrnes and then Weiner. She told Byrnes that she had been informed by the Union that all strikers were to return to work on January 17 and asked for instructions. Byrnes re- plied that nothing had been settled, and that the strikers would not be returning. When she called Weiner. Green told him she had been told by the Union to return to work. Weiner replied that the strikers could not come to work, and that if they did would not be permitted to enter the hotel. On January 20 Green and Colbert went to the hotel to- gether to pick up checks due them and while there spoke with Byrnes and Stein, again asking when they would be called back. Their reply was that the hotel was now serving buffet, was very happy with the way it was going, and needed no further help. Stein told Colbert that he was very disappointed with her because she was the picket captain during the strike and with Green because she was on the picket line, in view of the fact that both were longtime em- ployees. Byrnes told the two that it would not be fair to the new people who helped the hotel out during the strike to let them go back and give the work to those who struck. Green stated that the replacements worked only 4 days and she had worked 16 years, but Byrnes insisted that what Green and Colbert asked would be unfair to the replacements. s (2) The Doral properties The testimonies of witnesses for the General Counsel that I find credible. although met in most instances by denials from the supervisors involved, disclose that following settle- ment of the strike supervisors made the following state- ments to returning strikers." "a The above findings are based on a composite of the credited testimonies of Mary Colbert and Sally Green. Byrnes and Stein conceded that the con- versations detailed by Colbert and Green did occur but denied that they made any of the statements the latter attrinbuted to them. I do not credit their denials. 9 Only such incidents are reported here as are found to be supported by the credible evidence. My failure to report other incidents does not mean that they have not been duly considered they have only I do not regard 1. After the strike Ada Woods was called back to her job as a waitress at Carillon. One or 2 days later she and some fellow employees were congregated in the dining room prior to its opening, and they were told by Galub., an admitted supervisor, that seniority would no longer be rec- ognized. that qualified would be the word used, and that it would be in the hotel's discretion who would remain at work .' 2. On or about January 17 admitted Supervisor Lamont told employee Alfonso that the Union's chief organizer, Vasquez.4 ' was trying to get a plane ticket to South America because the Union had sold out the employees. 3. Beach Manager Miller, on or about January 18. told the coffee shop waitresses that the Union had sold out the employees, that the hotels were prepared to sign the con- tract long before they did but the Union held out for a payoff, and that any union that accepted a contract such as the Union here signed must be crazy. 4. On or about January 18 admitted Supervisor Joseph Marcel asked employees whether it was organizer Vasquez or local President Schiffman who sold out the employees, and he threatened to discharge an employee if he again caught him trying to read a notice which had been posted at the hotel pursuant to the informal settlement of Case 12- CA- 7428. 5. Admitted Supervisor Anderson told the employees that the Union had sold out the employees, that employees no longer had any seniority, and that they had to do what- ever work he assigned regardless of the Union. 6. Admitted Supervisor Leventhal told an employee that there was no longer a union to protect the employees. 7. Admitted Supervisor Lieberman told returning strik- ers that he could recall to work anyone he pleased, that there was no more seniority. that available work would be given to those employees who were loyal to the hotel during the strike, and that employees who did not like it could quit. 8. Josephine Riccio42 told employees that there was no union in the hotel, and that she could do anything she wanted to them. 9. Admitted Supervisor O'Shanghonessy told employ- ees that there was no more seniority, and that he could do the supporting testimony to be sufficiently probative to support a finding. I shall not. in this section, state as to each separate incident my reasons for resolving conflicts as I have. In making credibility resolutions I have fully considered all the testimony relating to that incident, the inherent plausibil- it) thereof in light of all the events, my estimate of the reliability of the witnesses based on their demeanor, candor. and fairness, or the lack thereof. and the extent, if any, that their testimonies were impeached in other re- spects. 40 Galub denied telling employees that they no longer had seniority but did admit that on the occasion in question he heard the employees discussing what they may have gained or lost by the strike, and that among the items the) mentioned was the loss of seniority and perhaps being discharged and that he told them he thought the) were nght. '1 Vasquez is Alfonso's father-in-law. 12 Although Levine claimed that Riccio was a rank-and-file employee credited evidence shows that she prepared work schedules for the coffee shop employees, assigned them to their work stations and other duties, directed the hostesses in the seating of people, and told employees when to take their breaks. I find that she responsibly directed the work of employees and was, therefore, a supervisor within the meaning of the Act. Ricio was not called as a witness. and there was no explanation for the failure to do so. 585 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anything he wanted with regard to the days employees would work. 10. Admitted Supervisor Lemmel told employees that se- niority was no longer a factor, and that the hotel could assign work to employees as it pleased. II. Admitted Supervisor Viertbauer told employees that there was no more seniority or that the hotel would no longer follow seniority, and that she could assign work in any manner she wished without considering the Union. 12. Admitted Supervisor Manuel Prado told employees that they had lost their seniority, that no one had seniority, and that he was now free to assign work as he pleased without regard to the Union. 13. Admitted Supervisor Jesus Perez told employees that there was no more seniority, no more union, that he was free to assign work as he pleased without regard to the Union, that employees who did not like it could leave, and that they were suckers for believing in the Union because it could not give them any protection. 14. Head Cashier Acle4 1 told employee Cornell that she had overheard Levine say that he would like to close the hotel, lay off all the employees, and then rehire those he wanted. 15. Admitted Supervisor Selma told employee Sera that she was the last person he expected to see on the picket line. e. Alleged unlawful unilateral conduct The complaint alleges that at all times since January 17 Respondents, in violation of Section 8(a)(1), (3), and/or (5) of the Act, engaged in the following conduct: (a) Repudiated and refused to comply with the strike- settlement agreement by reinstating the strikers and imme- diately terminating substantial numbers of them. (b) Failed to provide the Union with requested informa- tion necessary for the performance of the Union's bargain- ing duty. (c) Unreasonably restricting the Union's contractual right of access to the hotels and attempted to restrict all union contracts with employees to union members only. (d) Frustrated the bargaining process by imposing un- reasonable demands and conditions on the grievance-arbi- tration machinary provided in the contract by insisting that only a member of the Florida Bar is eligible to be an arbi- trator and that each grievance be arbitrated as a separate case. (e) Unilaterally and without notice changing existing conditions of employment in numerous particulars. The specific facts of each incident allegely falling within this general allegation have all been mentioned in prior sections hereof and will not be repeated. Respondents, by stipula- tion, admitting there is substantial evidence, mostly uncon- tradicted, to establish that changes from past practice were made at Carillon, Beach, and Country Club." In the view I 4 There is no stipulation as to the supervisory status of Acle. However, on the basis of Levine's testimony that Acle attended the meeting of department heads and other supervisors on January 16, when instructions were given on how to deal with the returning strikers, and the testimonies of Emma Cornell and Carmine Subirana regarding Acle's duties I find that she was a supervi- sor within the meaning of the Act. " The complaint does not allege nor does the evidence show any change in wages, hours, and working conditions at Rivage. take on this aspect of the case it is unnecessary and would to no proper purpose unduly extend this Decision to discuss each incident in this area. Suffice it to say that the 65 changes alleged in the complaint are of the following types: reducing the allotted time for meals from 60 minutes to 30 minutes and prohibiting employees from having free sand- wiches in the late evening hours; discontinuing the practice of permitting cooks to have two free beers or soft drinks each day; prohibiting union agents from coming to the ho- tel in accordance with past practice to discuss union busi- ness with the employees; changing the hours of work of an employee from 7 to 8 hours per day, without extra pay; ceasing to pay waiters and waitresses amounts formerly paid for table setups and changing tables; stopping paying tips within 48 hours of a function and instead accumulating and paying such tips every 2 weeks; terminating the privi- lege of certain employees of having a dinner in the coffee shop and requiring them to eat in the employee cafeteria; ceasing to pay cocktail waitresses 25 cents for each drink served and captains a percentage on wine sales; eliminating station rotation for waitresses and waiters; eliminating the practice of adding a gratuity to the bill of guests leaving the table without tipping; reducing the work days of waiters from 5 to 3 per week; prohibiting shop stewards from par- ticipating in the preparation of work schedules, and chang- ing the method of posting work schedules; changing em- ployees' days off; ceasing to guarantee a 5-day workweek; increasing the number of rooms to be serviced by maids from 33 to 51 per day; promulgating new rules and regula- tions for employees of the Starlight Roof; and refusing to pay employees vacation monies as provided in the collec- tive-bargaining agreement. This listing is not all inclusive, but illustrates the nature of the changes relied on by the General Counsel to establish what he contends to be a vio- lation of the Act in these areas. 6. Reynolds, Vasquez, Keiler, and Gray meet the evening of January 17 After contract terms were agreed upon on January 14 and Reynolds had reviewed Keiler's final draft of the con- tract, he returned to Chicago; upon receiving reports on what had occurred at the hotels on January 17, he returned to Miami that afternoon. As a result of telephone conversa- tions with Gray and Keiler a meeting was held at the Char- ter House that evening.'s Present were Reynolds and Vas- quez for the Union, Gray and Keiler for Respondents. The evidence shows that most of the conversation relevant to the issues here was between Reynolds and Gray; the other two participants had very little to say. Reynolds opened the discussion by telling Gray that perhaps both sides had made mistakes, but that matters had apparently gotten out of hand concerning the return of the strikers to work. Gray replied that the Doral hotels had called a number of strik- ers, but that some of them walked off the job and others picketed Beach. Reynolds challenged Gray's statement and referred to the following situations that had come to his attention: (I) During the strike a bus was hauling strike "1 According to the evidence, the Charter House was agreed upon because Keiler told Reynolds that Respondents would not permit Vasquez to come on their property. 586 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION breakers into Country Club, arriving about 7 to 7:30 a.m.. usually with five or six people aboard, but on the morning of January 17 the bus was full, arriving about 6 a.m., as the former strikers were returning to work, and it almost caused a riot. (2) Security guards were posted at the main gate with a list, and as employees approached they were admitted. but after going a short distance another guard told them they were not on the list, did not have a job, and ordered them off the premises. (3) Supervisors told returning strik- ers, that they had no seniority that they had a sweetheart contract, and that some union leaders had taken money to sell out the employees. (4) A returning striker who prior to the strike worked a 5-day week, returned to work Monday, and was told that she would work that day but would then be off until Friday, and that would thereafter be her work schedule. Reynolds asked Gray how he explained those events in light of the agreement reached during negotia- tions. Gray replied that he had no knowledge of the inci- dents Reynolds had mentioned but promised to investigate and communicate his findings to Reynolds. However, there is no evidence that he or Keiler ever did so. Gray also stated that he did know that supervisors had prepared schedules to return between 250 and 300 strikers that morn- ing, that more would be recalled Tuesday, and that by Wednesday all strikers would have been recalled. Reynolds asked Gray if he had the schedules available, explaining that he was looking for something to show good faith, but Gray said that he did not have them with him. Reynolds then said that the matter should be brought under control promptly and asked Gray whether he intended to return all strikers to their jobs. Gray responded in the affirmative. Reynolds then asked, "How many are you talking about." Gray replied, "All of them" but added that in view of the time lost this could not be accomplished by Tuesday. Reyn- olds responded that he recognized that time would be nec- essary to complete the task. Gray replied that he thought the recall could be accomplished by Thursday. At this point Reynolds remarked, "This takes care of the Dorals," and turning to Keiler said, "You represent the Association, What will they do." Keiler replied that he had not talked with them and could not say. Reynolds asked Keiler, "How many strikers will they return," and Keiler replied, "All of them, and it will be accomplished by Thursday." Reynolds then stated "That's fine; then we have an understanding as to what will be done." The meeting concluded on this note." 7. Mass layoff of returning strikers During the period of Monday through Thursday (Janu- ary 17-20), the hotels called a number of strikers to report for work.47 At approximately 3 p.m., Thursday, January 20 " The findings in this section are based on the testimonies of Reynolds and Vasquez, which substantially corroborated Reynolds, and admissions on the part of Keiler and Gray that Reynolds raised certain matters in the course of this meeting. Keiler claimed that he did not fully understand just what Reyn- olds was complaining about and still did not know that Reynolds did not ask for the meeting just to put on a show for the benefit of Vasquez. " Indeed, according to testimony offered by Respondents all strikers at the Dorals were recalled except those who worked in departments not then in operation, whose jobs had been eliminated who had engaged in misconduct during the strike, who had abandoned their jobs by leaving work after being (that being the time the first shift employees would be reaching home). the Doral personnel department began telephoning those employees on the list of returning strikers who had been selected for layoff. Personnel Director Levine testified that his office staff was provided with a list of the persons to be laid offs and a prepared statement to be read to each of them when contacted by telephone. According to Levine, the statement read. "Your department is over- staffed, you are being laid off because in the opinion of the hotel you are not qualified." Where applicable, the person was also told to pick up any paycheck that might be due and to return any hotel property in his possession. such as uniforms and ID cards. The personnel staff was also told to adhere strictly to the prepared statement, not to answer questions or argue with the people, to expect abusive lan- guage, but not to permit themselves to be deterred from finishing the statement even if it meant starting over a num- ber of times.' By the end of that week everyone on the list of those to be laid off had been notified of that fact. The layoffs, Respondents contend, were in all respects pursuant to and as authorized by article V, section 2. of the contract and allegedly were in compliance with the agreement Re- spondent's claim was made with the .inion during negotia- tions. In the course of Levine's testimony I asked that he supply the following information. stated separately for each hotel that is a part of the Doral operation: (I) number of unit employees on duty at the inception of tht strike: (2) number of unit employees that engaged in the strike; (3) number of replacements hired between inception of the strike and January 16; and (4) number of unit employees who struck that were employed on February 1. Respondents provided most of the information requested although not precisely in the form requested. In addition, a number of personnel rec- ords relating to the Doral operation were subpenaed by the General Counsel and introduced in evidence. 5 Based on a combination of Levine's testimony in this area and the aforementioned records, the following statistics apply to Country Club, Beach, and Carillon, respectively: Employ- ees in the unit when the strike began-668, 396, 299; num- recalled, and those who had picketed on January 17 The manager at Rivage testified that none of the strikers were recalled at Rivage except Frank Mar- cucci, who was discharged within I week, as hereafter discussed. ,4 According to Levine, the separate lists originally prepared by the var- ious department heads underwent constant changes until January 20 because the hotels learned of a number of strikers who for various reasons did not wish to continue their employment with the hotels. Neither the number nor identity of those strikers is disclosed by the record. '4 Many of the employee witnesses gave diffenng versions of what was said to them when they were informed that they had been laid off Some stated that they were given no reason for the layoff, and some said that they were simply told that the hotel was overstaffed. Most of the employees involved were Spanish speaking, and many testified through an interpreter. Although the members of the personnel staff who did the telephoning, none of whom testified, were bilingual, I am certain that the testimony variances can be explained, at least in part, by the language difficulty, as well as by the lapse of time and the failure of memory. These people knew only one thing-they were being told that their jobs were gone that much they understood and testified to. On the other hand, it is quite apparent that the personnel staff had no reason to violate Levine's instructions not to deviate from the pre- pared statement he furnished them. Accordingly, I find and conclude that in notifying the employees that they were being laid off the personnel staff said what was on the prepared statement and nothing else. ° Similar data relating to Rivage was not provided. 587 DECISIONS OF NATIONAL LABOR RLATIONS BOARD her who struck when the strike began 668. 396. 299; total number of replacements hired during the strike 3(K). 186. 121: replacements working on January 17. 1977 209, 110, 72; replacements working on February 1, 1977 15IO, 90. 46; strikers discharged for picket line misconduct during the strike 4, 2, 1; strikers whose jobs were allegedly elimi- nated 4, 9, 1; strikers who allegedly resigned 35, 24, 5 strikers recalled and laid off as not qualified 123. 84, 9: strikers recalled and laid off for other reasons 2, 2, 1: strikers recalled and who remained at work 500(). 241. 282: and strikers discharged for picketing on January 17, 1977 0, 35, 0. Levine explained that a substantial number of re- placements were hired who proved very quickly that they were not competent. They were paid in cash for the short period they worked, and no record was made of their em- ployment. The numbers provided represent those for whom personnel and payroll records were kept. Levine also testi- fied that employees who did not communicate with the ho- tel after the strike or who did not respond to a call to return to work were considered to have resigned their jobs. The figure for Country Club includes the six coffee shop em- ployees who left the morning of January 17. The personnel records also reveal that at Carillon, of the nine strikers who were recalled and then laid off as not qualified, one had worked there since 1958. one since 1959. one since 1960. one since 1963, one since 1968, one since 1973, one since June 1975, one since November 1975. and one since November 1976. Of the 123 strikers recalled at Country Club and then laid off as not qualified. 3 had worked at the hotel since 1964, 3 since 1965, 8 since 1966. 5 since 1967, 6 since 1968, 15 since 1969. 5 since 1970. 6 since 1971, 8 since 1972, 10 since 1973, 24 since 1974, 13 since 1975, 9 since 1976. and for 8 the record does not indicate a date of hire. Of the 84 strikers recalled at Beach and then laid off as not qualified, I had worked since 1961, 4 since 1962, 4 since 1963, 2 since 1964, 5 since 1965, 8 since 1966, 4 since 1967. 6 since 1968. 5 since 1969, 6 since 1970, 5 since 1971, I since 1972, 7 since 1973, 15 since 1974. 9 since 1975. and 2 in 1976. 8. Terminations for picket line misconduct In addition to the 6 employees discharged for leaving their jobs at Country Club and the 36 discharged for picket- ing Beach, all on January 17, Respondents concededly dis- charged 6 strikers" for engaging in picket line misconduct. As the conduct allegedly engaged in by the several employ- ees mentioned occurred at different times and involved dif- ferent facts, those facts are set forth separately for each employee. a. Lucille PLsiuk Pasiuk, employed by Carillon as a maid toIbr about 19 years, was a member of the Union and participated in the strike; she received a telephone call from the hotel on Sun- 5' These were Jose Ortega. Pedro Gonzales, Maximo Gil., and Raul Bar- roso, all employed by Country Club; Emanuel Garcia, employed at Beach; and Lucille Pasiuk. employed at Carillon. day, January 16. telling her to report for duty uesday. January 18, at her usual hour. Pasiuk asked. "Why not Monday" and was told that she was not scheduled until Tuesday. Notwithstanding these instructions. Pasiuk went to the hotel Monday. January 17, arriving about 7:30 a.m., but she was denied admission by security." While standing around Pasiuk saw a fellow employee known to her as il- lian"3 and admittedly hollered to her, "Well son-of-a-bitch, I'll see you tomorrow." Pasiuk admits that her statement was directed at Lillian, who was about 50 60 feet from her. and that what she said was with sufficient volume that it could he heard by a person at that distance.4 When Pasiuk arrived at work Tuesday she was sent to the office where she was discharged by Carillon General Manager Robbins, the latter stating that he could not tolerate her behavior or her threatening a fellow employee. According to Pasiuk, Robbins claimed that her remark was "I'll get you tomor- row." John Quiros, employed by the Doral enterprise as a secu- rity investigator. testified that on January 17 he observed and heard the incident involving Pasiuk. Quiros at first tes- tified that the words Pasiuk directed to Lillian were "you scabby son-of-a-bitch, I'll see you tomorrow." Then upon a suggestion from counsel that what he had said might not be correct, Quiros stated that he was not sure the words were "I'll see you tomorrow" and thought they were "I'll get you tomorrow." Quiros then stated that at the time he made a written report of the incident. which he examined the morn- ing he testified, that the language was "I'll get you tomor- row."55 I do not credit Pasiuk's version of the language she used and find that she said "I'll get you tomorrow." I regard this as the more probable version of what occurred in view of the first portion of the words she admittedly used. b. Emanur l (;aril Garcia had been employed tor about 10 years by Beach as a porter. He was a member of the Union; he joined the strike and picketed for its duration. Beach admits that it failed to reinstate or offer reinstatement to Garcia but claims such failure was because Garcia assaulted a security guard while picketing. The evidence adduced to support its position may he summarized as follows: Robert Levitt. a security guard employed by Doral, testi- fied that on December 28 he was assigned to Beach, where striking employees were picketing. At approximately 10:30 a.m. a car came to the hotel and an occupant asked fo)r directions to the personnel department. After receiving the requested information the car started to move away but it was met by a group of pickets which Levitt testified in- cluded strikers Manual Cebey. Luis Iglacious, and Emanuel Garcia, who were all known o him. According to Levitt. 3 Pasiuk testified that she went to the hotel Monday to see if employees with less seniority than she were working that day. " According to Pasiuk. Lillian has worked at the hotel a ea month be- fore the strike but had not participated in it s Lillian did not testify. 0 On my suggestion that the report was the best evidence o what it con- tained, counsel at first declined to produce it. but hetore the witness left the stand the report was offered and received in evidence It contained the words, "I'II get you tomorrow" 588 SOUTHERN FORIDA HOTE. & MOTEL ASSOCIATION the pickets began rocking the car, and a bottle was thrown through its rear window." After the guards moved the pick- ets away from the car so that it could proceed into the street, strikers Garcia and Cebey grabbed security guard Eckart by his arm. Levitt pulled Eckart away, and as he did so Garcia threw a right hand punch toward Eckart, which Levitt blocked with his right hand. Eckart testified that through the corner of his eye he saw Garcia throw the blow and saw Levitt's arm partially deflect it, but that Garcia's punch "kind of landed on my shoulder." Neither Garcia nor any other witness called by the General Counsel gave any testimony relating to this incident, and the testimonies of Levitt and Eckart, which I credit, stand undenied." c. Pedro Gonzales Gonzales worked as a banquet waiter at Country Club for about 12 years. For the entire period he was a member of the Union and picketed during the strike. When the strike ended Gonzales went to the hotel for the purpose of working but was denied admittance by security because his name was not on the list of those recalled to work. Gonzales thereupon telephoned his head waiter, who told him that his name was on the list, but that due to the confusion of the times there were many errors; he suggested that Gonza- les return to work the next day. Gonzales did return the following day but was again denied admittance, security telling him that he was terminated. According to Gonzales, the reason given by security for his termination was that he had been on the picket line. Respondents' records sub- mitted to the Region during the investigation showed that Gonzales was "Recalled, laid-off, Not Qualified." This has a line drawn through it, and written above that legend are the words "Not recalled-Misconduct." Chuck Collado, employed by the Doral enterprise as a security investigator, testified that he was on duty at Coun- try Club about 9 a.m. on January 5 and observed Gonzales. whom he knew as a waiter at the hotel, among a group of pickets; that he took photographs of activities of the pickets and identified Gonzales in the series of photographs re- ceived in evidence as Respondent's Exhibits 40(a)-(d). Ac- cording to Collado, at the time mentioned he observed Gonzales throw a rock at the cab shown in the aforemen- tioned photographs and saw and heard the rock strike the cab. Collado's testimony in this regard, which I credit, is uncontradicted. d. Raul Barroso Barroso, a member of the Union for about 15 years, had worked at Country Club only for about I year as a coffee shop waiter. He participated in the strike from its inception and was on the picket line. On January 17 Barroso went to ' Levitt testified that he did not see who threw the bottle: but securits guard Eckart. who also witnessed this incident, testified that the bottle was thrown by Iglacious, and that it landed against the left front quarter panel of the car. t1 Although the complaint alleges the discriminatory discharge of Manuel Cebey and Luis Igracious. neither at the trial nor in Respondents' brief is the contenticn advanced that either of them is disqualified for reinstatement by reason of picket line misconduct. the hotel to see if he could work. but security would not permit him to enter. He returned the following daN for the same purpose, and when he gave his name security required him to surrender his ID and told him that he had been terminated because he had been on the picket line. Barroso gave no testimony regarding the incident hereafter men- tioned. Respondents' records simply state that Barroso was "not recalled." Roy Milton. who during the strike was emplo,,ed b the Doral enterprise as a security investigator, testified without contradiction that on January 17 he was observing the ac- tivity of a group of pickets and saw Barroso throw a rock which struck Collado. also a security investigator. on the leg. Collado testified that he was hit by a rock on this occa- sion, hut he did not know who threw it other than that he had been told by a fellow employee that it was Barroso. It is of some importance to note that the ev idence does not es- tablish that there was any picketing at (omuntr 3 Club on January 17. It is shown that large numbers of people came to the hotel on that day expecting to go to work but were not admitted, and that many of them milled about the premises for extended periods of time. The incident seems to be in some way connected with the events involving Ma- ximo Gil, next discussed. e. axsinio Gil Gil. a member of the Union for about 18 years, had worked at Country Club about 2 years as a coffee shop waiter. For a major portion of this period Gil was a union delegate at the hotel and participated in the strike front its inception. According to Gil. he went to the hotel the morn- ing of January 17 at the direction of the Union fr the purpose of working, arriving about 6 a.m.: he was denied admittance by security because his name was not on the list of returning workers. L.ater in the day Gil telephoned his supervisor and asked if he would work the next day and was told that he would be notified at a later time but was never called. Gil repeated this for several days, and on January 21 was told that he had been terminated; when he asked for the reason he was told, "You know why." On cross-examination Gil admitted that he was told b union agent Sanchez on January 18 that he had not been recalled because of alleged picket line misconduct but claimed that he did not know what Sanchez was referring to. Evidence offered by Respondents shows that Elaine Lemmel was hired during the strike to work in grounds maintenance. On January 17 Lemmel went to work alone in her car. reaching the hotel about 6 a.m. As she approached the entrance gate Lemmel observed a large crowd and a small car ahead of her at the gate. Some of the crowd were hollering. "Nobody works today unless everybody does," and some in the crowd picked up and moved the small car to one side. As Lemmel attempted to move forward some of the crowd moved around her car, and someone hollered. "Are you crazy? You will run over us." The window on the driver's side of Lemmel's car was down about 3 inches, and someone put his hand through this opening. Lemmel rolled the window up in her car, and the person's fingers were caught. She had to roll the window down to release them. Lemmel was unable to identify this individual other than to 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD say that it was a man, nor was she able to identify the person who hollered out, "Are you crazy?" Security agent Collado testified that he knew Gil and saw him the morning of January 17 with a group of Latin males around a car that was being driven by a woman trying to get into the hotel to go to work. According to Collado, he, Milton, and Ethridge were about 20 feet away and observed Gil with a group rocking the car and Gil with his hand through the window of the car, which was partially down. as though trying to take the keys from the car to prevent it from moving. The three of them approached Gil and di- rected him to remove his hand from the car. As Gil did so he struck Ethridge in the left shoulder with his fist. They freed the car from the crowd, and Lemmel drove into the hotel area. Both Milton and Ethridge testified to the same effect.55 f. Jose Ortega Ortega worked for Country Club approximately for 6 months doing general maintenance on plumbing and elec- trical equipment, and he had been a member of the Union for that period of time. He participated in the strike from its inception. On January 17 Ortega received a call from his supervisor directing him to report for work on January 18, but when he did so he was informed by security that he had been discharged. When Ortega protested that he had been directed by his supervisor to return to work that day he was told that his discharge had been ordered by security. Ortega then went to the union hall, where he was told by one of the business agents that the hotel had pictures of him making indecorous motions while on the picket line, and that this was the reason for his discharge. Security investigator Roy Milton testified that on Decem- ber 30, 1976, he was on duty at Country Club taking pic- tures of the activities on the picket line and observed Or- tega, who was personally known to him, among the pickets and heard him yelling obscenities. Milton further testified that at about 2:30 that afternoon a cab with a lady and gentleman who were guests of the hotel arrived at the en- trance, but the cab was apparently reluctant to enter hotel property, and a security man went to the entrance to see that the cab got in without difficulty. As the cab began to move in, according to Milton, Ortega became agitated, his yelling of obscenities became louder, and finally Ortega opened the zipper on his pants and exposed himself. Milton identified a series of four photographs which he took.5 The last two show Ortega with his hands on the fly of his pants 5 Testifying in rebuttal, Gil admitted that he was in the area of the car on the morning in question but denied that he hit anyone and that he had his hand in the car, claiming that the window of the car was rolled up the entire time he was there. According to Gil, on the occasion in question there were from 50-100 people congregated at the gate and about the car, and he kept telling them to let the lady through because she might be a guest of the hotel or a worker. He told the lady to go on through the gate because there was no problem at the hotel. Gil claimed that when he made these statements he did so with a sweeping gesture of his hand but denied that he struck anyone. I do not credit Gil's version of the incident. Nina Enrique testified, in ubstance that she arrived at the hotel about 7 a.m. on the day in question but did not observe Gil strike anyone or impede the progress of any car. I do not regard her testimony to be in conflict with that of Collado, Milton, or Ethridge, but to the extent it is I credit the latter group. 5 Resp. Exhs. 41(a)-(d). pulling his pants apart. Milton testified that at this point he ran out of film and thus could not get the final scenes, but that he saw what occurred, and that it was as he described. Security investigator Ethridge corroborates Milton, claim- ing that he also observed the act of complete exposure of Ortega's person.? Testifying as a witness for the General Counsel, Ortega denied that he exposed himself; he claimed that he opened the zipper on his trousers only to fix his shirt. He admitted, however, that in his affidavit to the Board agent he stated that he opened the zipper on his pants because he felt pro- voked by the fact that security was taking pictures of the pickets, and that he then made no mention of any difficulty with his shirt. In view of this admission and the fact that the photographs themselves show that his shirt was not in dis- array I do not credit Ortega in this area, and I find that the incident happened as testified to by Milton and Ethridge."' 9. Union denied access to hotel premises The evidence shows that the Union assigned a business agent to visit a hotel at intervals to service the contract and talk with the employees concerning employment problems. The evidence also shows that Frederick Eckelkamp was the business agent assigned by the Union to service the Caril- lon, and that he had performed that duty for a number of years.62 There is no dispute that prior to the strike which began on December 25 the business agents went to the ho- tels, particularly the three Doral properties involved in this proceeding, whenever they pleased, talking with both em- ployees and supervisors anywhere in the hotel, although the business agents claim that in doing so they made every ef- fort not to interfere with employees or supervisors in the performance of their duties. It is equally undisputed that the hotels raised no objection to this conduct of the business agents, nor did they attempt to restrict in any way this activity of the union agents.63 According to Eckelkamp's uncontradicted testimony, he went to the Carillon hotel about 7 a.m. the morning of January 17 or 18 and sought to enter the premises as he had in the past but was denied admission by security, the guard stating that he would have to check with hotel officials. Eckelkamp made no attempt to check at the time, but later in the day he telephoned Levine and asked why he was 60 According to the testimony of Ethndge. the act of exposure was wit- nessed by the two guests of the hotel. s' Respondents contended that Ortega had been convicted of the afore- mentioned offense. stating that he had a record of such conviction which he showed a witness, but declined to offer the document into evidence. The General Counsel. upon examination of the document, contended that it showed that Ortega was acquitted of the offense but likewise did not offer the document. Whether the document showed acquittal or conviction is beside the point; the critical question is whether Ortega in fact engaged in the conduct claimed by Respondents. On the evidence I have found that Ortega did engage in such conduct. The legal effect of such conduct, in light of other factors, is hereafter discussed. 62 Servicing Country Club was business agent Ralph Sanchez, and at Beach the assigned agent was Villanova. The evidence does not show what agent serviced Rivage. 6 All such activity was, of course, pursuant to art. I111, sec. 3 of the 1968 contract. As indicated, the only language change made by the 1977 contract was that after the words "Such visits shall be prearranged" the words "with the Employer" were added. 590 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION unable to get into the hotel. Levine said that Eckelkamp could come to the hotel only if he had a specific grievance only pursuant to specific appointment. On January 25 Eckelkamp, Sanchez, and Villanova met with Levine in the latter's office to discuss the question of access to the Doral hotels. The business agents asked Levine why they could not have access to the hotels as they had prior to the strike. Levine's reply was that he would not permit it but gave no reason for his decision, saying only that if they had a spe- cific grievance they could call him, and he would set up an appointment. The business agents asked if they might have access to the employee's cafeteria in the respective hotels to talk with employees, pointing out that the cafeteria was a nonwork area and that while in the cafeteria the employees were on their own time. Levine's reply as "No way" and at that time suggested no alternative to what the business agents had requested. At a later date (the exact time not being fixed but appar- ently sometime in February), Eckelkamp was informed by Vasquez, then the local's chief organizer and now its trustee, that arrangements had been made for him to visit the hotel where a room would be set aside for his use in talking with the employees, but that he would have to con- fine himself to that room and could not visit other areas of the hotel and would have to ask the hotel for permission to use the room each time he desired to visit the hotel. Accord- ing to Eckelkamp, the room assigned for his use was in the lower lobby where the hotel shops are located; except for a table, chairs, and telephone the room was empty; he was not permitted to call nonmembers of the Union, nor could he call employees who were union members directly, but had to call the department head who would get the employ- ees he asked for if the latter felt so inclined. According to Eckelkamp, prior to the strike he visited the Carillon twice a week and spoke with about 200 employees each time. After the strike he used the assigned room twice and spoke to a total of three people. On both occasions security guards were walking in the corridor where the room assigned to him was located. On one of these visits to the Carillon Eckelkamp spoke with Levine and asked the latter for per- mission to go into certain areas of the hotel and talk with the employees. Levine denied the request. Eckelkamp then asked Levine, "How can I talk to the employees," to which Levine replied that the only way Eckelkamp could do so was out in the street. On both January 17 and 18 union agent Sanchez, whose assignment included servicing Country Club, went to that hotel and observed a great number of former strikers mill- ing about outside the gate, who were denied permission to enter the hotel. Particularly on the second day Sanchez no- ticed that in some instances if a striker's name was not on the list of those to be admitted the guards would make a telephone call and then permit the employee to pass, but in other instances they would direct the employee to call him- self from an outside phone. Because of this Sanchez asked the guard for permission to go into the hotel for the purpose of discussing the situation with someone in authority, but he was told that the guard force had instructions not to permit him on the premises. Sanchez then went to his office and from there telephoned Levine, telling the latter that the situation then prevailing demanded that he go upon the hotel premises and discuss matters with the employees, and that security would not admit him. Levine replied that un- der no circumstances could Sanchez come on the hotel property without his prior permission. Sanchez asked, "how about now?" Levine replied that he was too busy and sug- gested that Sanchez call back "in a couple of days." Several days later Sanchez again called Levine seeking permission to visit employees in the hotel. Again Levine said that he was too busy and suggested that Sanchez call back in a few days. Several days later Sanchez again called Levine but could only talk to Levine's secretary. He left his name and telephone number, but Levine never called back. About 10 days after the end of the strike Sanchez and other union agents attended a meeting in Levine's office and again asked permission to talk with employees. Levine asked the reason for the request. Sanchez replied that he had a lot of grievances. Levine said that he could take care of those immediately and asked that the grievances be stated. San- chez replied that what Levine asked was not possible be- cause he first had to talk with the employees and perhaps with department heads. Levine's reply was, "You know very well I cannot allow you to go inside." Sanchez then said, "If that is the case I am wasting my time" and left. Another meeting of similar nature occurred between San- chez and Levine during February when Sanchez asked per- mission to interview employees in the hotel, and Levine refused the request.? 10. Grievances filed and events pursuant thereto Between January 24 and March 21 a group of 21 letters was sent by William T. Coleman, Jr., attorney for Local 355, concerning grievances under the current contract. Nineteen of those letters were directed to one of the Doral hotels, and the other two were to the Federal Mediation and Conciliation Service and dealt with the aforementioned grievances. An analysis of these letters shows: 1. By a letter dated January 24 addressed to Carillon the latter was advised that a grievance was being presented pursuant to article Xi of the contract. It listed nine employ- ees as having been discharged, layed off, or terminated in violation of the contract; that it was felt that the list was incomplete, and as soon as other names became available they would be supplied. The letter additionally alleged a violation of the contract by reason of substantial changes in working conditions, such as loss of seniority, changes in hours of work and shifts, laying off employees, and failure to give more senior employees regular days of work and regular days off. 2. By identical letters dated January 26 addressed to Beach, Country Club, and Carillon, Coleman alleged "mas- sive" terminations of employees, and to enable the Union to effectively administer its contract asked that each hotel promptly supply the following information: (a) the name. "The findings in this sec. are based on the uncontradicted and credited testimonies of Eckelkamp and Sanchez. Although Levine testified at length. he did not deny any of their testimonies in this area. nor did he give any reason for denying the Union access to the hotels other than that he had been advised by Keiler that such was the proper interpretation of the 1977 contract. 591 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD address, and telephone number of each employee in the unit terminated on or after January 15; (b) the reason each employee was terminated: (c) the seniority dates of' each terminated employee: (d) the name and address of the su- pervisor or management official who participated in the de- cision to terminate each employee: (e) the number of em- ployees now employed, their seniority dates, and the name of the employee replaced or whose position they filled: f) the name and address of each employee whose position was abolished, merged, or whose work was subcontracted out: and (g) the identity of any subcontractor presently perform- ing the work of any terminated employee. This letter also referred to the alleged changes in working conditions and requested that union agents be permitted access to the ho- tels in order that they might discuss these problems with employees and union stewards. In addition, the letter re- quested a "full and complete written statement." by depart- ments, of each change in terms and conditions of employ- ment of the employees in the unit which the Union represents. 3. By identical letters dated January 27 and 28 Coleman advised Beach and Country Club. respectively, that the Union had learned of additional employees allegedly termi- nated without cause and asked for an opportunity to meet and discuss with the hotels the alleged unlawful termina- tions. In the case of Beach the letter listed 46 additional unlawful terminations, and in the case of Country Club the number so listed was 31. 4. By letter dated February 1, with a copy to association, Coleman advised the Federal Mediation and Conciliation Service of the grievances he had filed and asked for a panel of arbitrators. Coleman also mentioned that because of the large number of alleged improper terminations and the 60- day limit provided in the contract for the hearing of griev- ances, it was important in selecting the panel that those named be available for the required time and be agreeable to accepting an assignment of the type indicated. 5. By letter dated February 2 Coleman wrote to Carillon, Beach, and Country Club that he had learned of other em- ployees improperly terminated and attached a list of names of such employees. In the case of Countrv Club the list named 72 employees, in the case of Beach it named 50 employees, and in the case of Carillon, four employees. 6. By letters also dated February 2 Coleman again wrote to Country Club, Beach, and Carillon that the hotels were denying the Union access to their premises, that the situ- ation was continuing, and that the letter constituted a griev- ance under the contract. Coleman further stated that rea- sonable access to the hotels was essential for the Union to effectively administer the contract, particularly so in the instant case because of the massive terminations of employ- ees and the information that had come to the Union from its members that the hotels had made substantial unilateral changes in working conditions. 7. By separate letters dated February 18 to Country Club, Beach, and Carillon, Coleman advised that the Union was presenting a grievance because of the failure of the hotels to deduct from the employees and remit to the Union dues and initiation fees for the month of January 1977 with respect to all employees who had authorized such deduc- tions. Coleman asked to be advised if the hotels desired to meet with the Union to discuss the matter before its submis- sion to arbitration. The evidence does not indicate that any reply was made to this letter. 8. On February 23 Coleman addressed a joint letter to the three Doral hotels, attention director of personnel. re- ferring to his previous letter requesting information (letter of January 26), and that officials of the Union had orally requested the same or similar information during confer- ences at the hotel (meetings hereinafter discussed): that the only information received was that supplied by Beach on February 15 which consisted of a list of employees who were terminated or whose jobs were abolished together with their addresses and dates of hire, but that neither Carillon nor Country Club had provided any of the requested infor- mation: that in order to effectively administer the current contract it needed to have the following information: (a) the name, address, and telephone number of all unit em- ployees terminated, discharged, or laid off after January 15, as well as the dates upon which they were hired and termi- nated: (b) the name, address, telephone number, and classi- fication of employees who were not recalled commencing January 17; (c) the name, address, telephone number, and classification for all employees recalled commencing Janu- ary 17 who remained employed at the present time: and (d) the name, address, telephone number, and classification, as well as the date of hire, for all employees hired during the strike who permanently replaced employees who were on strike. This letter closed by asking that the requested infor- mation be promptly supplied. There is no evidence that this information was ever supplied to the Union. 9. By identical letters to Country Club, Carillon, and Beach dated March 7 Coleman referred to the then pending grievances explaining that he had requested and received from the Federal Mediation and Conciliation Service a panel of arbitrators containing seven names: that because of the great number of employees involved it was impossi- ble to arbitrate all the cases within the 60-day period speci- fied in the contract: and he asked for a meeting to go for- ward with the procedure of selecting the arbitrator and ascertaining his availability to hear the cases to be arbi- trated. 10. By letter dated March 21 Coleman wrote to the di- rector of the Federal Mediation and Conciliation Service, referring to a request by Keiler dated March 14. for a panel of' arbitrators to hear a dispute as to whether picketing by the Union violated the anti-picketing clause in the constitu- tion" ' and that the panel include only persons who were members of the Florida Bar. Coleman's letter advised the director that the contract between the Union and the hotels had no provision that the arbitrators be limited to attorneys who were members of the Florida Bar, and that he objected to the panel being so limited. Meanwhile, on or about March I 11, Coleman telephoned Keiler in an effort to arrange a meeting for the purpose of selecting the arbitrator from the panel submitted by the Federal Mediation and Conciliation Service. Keiler told Coleman that he could not accept the panel of arbitrators because he thought the arbitrator had to be a member of the Florida Bar. Coleman responded that the contract con- "' Presumably the reference is to the Union's constitution. 592 SOUTHRN FI.ORII)A H()l(I. & MOl()[. ASS()(OIATI()N tained no such provision. and that the contract should pre- vail. Coleman also suggested to Keiler that the parties pro- ceed by selecting five arbitrators, one to sit for a week and hear all the cases he could and the following week another to sit and hear all the cases he could and so on until all the cases were heard. otherwise it would take an undue length of time to get all the cases heard and decided. certainly far beyond the period contemplated b the contract. Keller re- jected this suggestion, saying that he would insist that a separate arbitrator hear each grievance relating to the ter- mination of an employee. Keiler did offer to agree to hae one arbitrator hear all the cases if' Coleman would agree that the only issue before the arbitrator would be whether the hotels had the right to proceed as they did under the "qualified" language of article V. section 2 of the contract. Coleman replied that in his view the issue to be arbitrated was much broader than what Keiler suggested, and that he could not agree to so limit the arbitrator. Keiler and ('ole- man were unable to reach agreement. and when this record closed all of the grievances remained pending and unre- solved. Keiler's position on this aspect of the case is twof'old. First, he contends that Coleman knew that Keiler was rep- resenting the hotels, and that by ignoring Keiler and send- ing his letters directly to tht hotels Coleman was guilts, of a breach of the canons of ethics which require the letters as well as Coleman's oral testimony be stricken from the rec- ord. Keller's objection and motion to strike based on this contention were denied because assuming. arguendo. that Coleman did in fact violate the canons of ethics. this is a matter between Coleman and the Florida Bar and presents no issue for the Board to decide. Keiler's second contention is that based on Advisor Opinion 74 1 of the Unautho- rized Practice of l.aw ommittee of the Integrated Bar of the State of Florida one engaged in the trial of an arbitra- tion proceeding in the State of Florida in an area which has not been federally preempted is engaged in the practice of law, and to lawfully engage in such activity one must be i member of the Florida Bar. From this Keiler reasons that if the persons trying the arbitration case must be members of the Florida Bar. it logically follows that the arbitrator hear- ing the case must likewise be a member of that bar. Keiler admits that his construction is not explicit in the ruling, but simply "a logical extension I made." As Keiler expressed it, "I didn't think I had to be more holy than the Pope." Al- though Keiler stated on the record that he would argue this issue more fully in the brief he would submit, his brief does not discuss the point, and for reasons detailed in a subse- ' The findings In this section are based on the exhibits abose analyzed and the uncontradicted and credited testimony of Coleman Respondents made no contention that they complied with the Urnion's requests for information except for the part supplied by Beach. *' This opinion reads: The representation of another persin n an arbitration proceeding n- volving the presentation of evidence. examinallon and cross-examina- tion of witnesses. consideration and presentation of questions of law. and decisions affecting the legal rights of the party to the arbitration proceeding is, in fact, the practice of lasw and where such activities are carried on in the State of Florida b) an individual not a member of the Flor:da Bar. and where there has not been federal preemption, such activities are indeed the unauthorized practice of law. quent section hereof I am unalhle to agree with his Constlr-UC- tiot o1' the ruling of the 'loridla Bar. II. Etvidence relating to mlotl\e Brenda \'itucci worked al ('ounlr\ ('luh in the I-ront door departllment since about 1971 She is not In the llit here ItivOlved. nor was she e a er oa member f the I nion. Il March 1976 a l'ealmilers loc;al hegan a campaign Io orga- nize the fronlt door departltilm t onllstillg l' abhout I eni- ployes. In lue course a petitiolnl was iled. and an election wals held on June I 1. 197. Personnel D)irector levine and Vltuicci discussed this canipaign se eral times a week during the priod t ;as ill prog-ress il the cot-fce ho p where te, at times ale together. i the loh b of the hotel. or lust out- side the door of her departilent ias I .eine entered or lelt the building. In these conlsersations I.es ine asked Vitucci toi use hel- influence t get the etliplo ees to \ te agaillstl Ileaim- sters. lie questioled her as tl the idetitit ot ieploeecs \ ho were tior and against the uniot. lie urged her to tell employN- ees that they could he terminaled belfore the electon he- cause solmething could ;ai'as e found in theil recuord to justil', discharge. that he knev w.ho had signed cards and that the, could he dischalrged t r that alnd urged her- to promise the employees raises or other hentits they might wish." Vitucci did as Levine asked. and the election re- suited in 2 votes for 'lealsters and 14 against. After the election Le ine came to Vltucci's booth. kissed her. and expressed his thanks tfor hat she had done. Iesine re- quently pressed Vitucci for the identit> oi' the twio ,whi had votedl for the t'eamsters. hut she refutled to sai. clailIliing that she had recei'ed the intoriatton n in conftiidence. Following the electiotn Vitlucci went n extended leave. returning to work sonlinlme in Septembher 197.. At this time she found that instead ol the substantial pa! raise she had been promised her raise s las 1O celits an hour and that rules had been promulgated requi-iring her to punLch I time clock. Viltucci cotmplained I I.eime, telling him n sub- stance, that after all she did at hiis request she thougIht that he should at least compl,, with the promises hie mlade to her. Levine's repls was that he had said a lot of things alid didl not rentmember hat the, sere and that she was angr at the moment hut wouldl soon Jre.-get the matter. Vitucci thetn told l.evine that she knevw all the things he had done to defeat eamsters and elt that she should go to the Board and tell them. Levine laughed. saying that even if ou o they will not believe ou. Vitucci filed a charge with the Board (Case 12 (A 7428), which was subsequently settled informall', with the postir,g of a notice. According to Vitucci. none of' the tore- going brought about any change in the relationship he- tween her and I.evine until a'fter she complained aboutl the location where the notice ias posted After the notice was :X his department handle, the parking lot and cir reni.al, F6 tir example. Villlcc tol li I.eici thit .a certl.l remplesee .ulntedl to he assistant lreman L.esine toldl her to tell the cirploee [hi[ il he soted against the nion he would be the ;i.irtis Ilremli. bl it hc \oledl foir the union he '-ould not 7°' he nlformall setlemenl agreement u.a ap.pros.ed hs the Regional 1)1- rector on D)ecember . 197 I he inice pitecd i, dlled Jnuars 2. 1977 s a result o . clnplint 1itu-i l.l d[ ti ll i BHe d 'h t the notilce was not posted i)n Ia c sIlplktlilll1 place [hic .. t phrlig u.., changedi DECISIONS OF NATIONAL LABOR RELATIONS BOARD moved on January 10, 1977, Levine told her that he could fraternize with all other employees in the hotel, hut that he was not supposed to talk to her.7 In the meantime, as above indicated, the then current contract between association and Local 355 expired on Sep- tember 16, 1976, and the parties bargained for several months prior to the beginning of the strike. In this period there was discussion among the employees as to what the demands of the Union might be and whether there would be a strike. Vitucci testified to some 10 or 12 conversations with Levine and other hotel supervisors in which they told her how the hotels proposed to treat strikers in the event there was a strike. The substance of those conversations follows. About October 25, 1976. Vitucci talked with Levine in the coffee shop. She mentioned that cashiers in the hotel were receiving overtime after working 40 hours a week, that she was getting overtime only after 49 hours, and she re- marked that in view of this fact it might be to her advan- tage to join the Union. Levine remarked that things with the Union would change shortly, and that present benefits would not continue. When Vitucci asked what he meant Levine replied, "Just wait and see. Things will change shortly." About I month later Vitucci had another conversation with Levine in the coffee shop. She mentioned that rumors were circulating among employees that there would be a strike and asked Levine if the rumor was true. Levine re- plied, "I don't care if they strike or not, we're prepared and whoever walks out won't be back. There's not going to be anymore union here." On December 25 Vitucci had a conversation with Levine in the main lobby. As she walked in Levine asked, "Why don't you join the strike." Vitucci replied, "I am not a member of that union, and I know you would fire me if I did." Levine replied, "That's right." Then Levine said, "The hotel already has the Union beat. We're holding all the cards. The strike will never end if we have to take the strikers back. The hotel owners admantly refused to do that. Their minds are made up. The Union will not get the benefits they seek. They're even going to lose some they now have." On January 2 or 3 Vitucci had still another conversation with Levine in the main lobby near the service desk. Vitucci mentioned to Levine that someone had asked her to vac- uum the rugs inside the hotel, and that she did not feel that was her function. Levine replied, "you are a spoiled bitch." Then Levine stated, "We have the Union on the run. We can break them completely if we want to. We can hold out indefinitely with all the new employees we have working. The only problem is those idiot strikers outside. If we could just get rid of them, the strike never would have to end." Then Levine added, "They're just wasting their time." He also said that he had the urge to run over them when he " It appears that Vitucci was terminated on or about June 26, 1977, and this was the subject of a charge filed by Teamsters (Case 12-CA-7790). That case was heard by Administrative Law Judge Frank on January 20, 1978. but no Decision has yet issued. I do not rely upon any of the foregoing facts as a basis for my Decision in this case. I set them forth only as background to the events hereinafter referred to, evidence of union animus, and to assist in resolving issues of credibility. arrived in the morning and would do so if one of them got in front of his car. lie said, "That would make just one less striker to negotiate with." Later the same day Vitucci had another conversation with Levine at the front door as the latter was leaving the hotel. As Levine passed her, Vitucci remarked that it was a good thing the pickets had left for the day because they did not like him. Levine replied, "I wish I could get one of' those s-o-b's in front of my car. If they think they're going to come back once this thing is settled, they have another thing coming. Everything is going our way and we can play this game as long as we want." On January 7 Vitucci had a conversation with David O'Shaughnessy and Jose Olivera, beverage manager and su- perintendent of room service, respectively, both admitted supervisors. The three were in the main dining room dis- cussing the strike, and O'Shaughnessy stated that this was a perfect time for the hotel to get rid of' all the employees they did not want. Olivera said that the hotel had been trying to screw the Union, and now they finally had the opportunity to do it. Both O'Shaughnessy and Olivera referred to the desire of the hotels to get rid of the Cubans and the union- oriented employees who run to the Union for every little problem that comes up. O'Shaughnessy in particular stated that he would love to get rid of some of the union-oriented cocktail waitresses working for him. Both stated that the strikers would not be allowed back into the hotel. On January 10 Vitucci had a conversation with Martin Rosenzweig, an admitted supervisor, in the dining room of the hotel, when the subject of the strike again came up. Rosenzweig told Vitucci that the Cubans in his department relied totally on the Union, and that it was for this reason that he and the other managers preferred keeping the new employees rather than taking back strikers because the new employees were not affiliated with the Union in any way. On January 13 Vitucci had a conversation with Jose Paraper, the head of her department, concerning the strike. Paraper told Vitucci, "The Union really messed things up for themselves with the strike, and now the hotel is going to give it to them." He said that Ray Lamont, superintendent of services and an admitted supervisor, was going to get rid of every Cuban in his department by using the excuse that he was getting rid of dead wood. About January 18 Vitucci had a conversation with Sam Culmo regarding the strike settlement reached in this case. According to Vitucci, this was the first day that there were no pickets at the hotel, and some strikers had returned to work. Vitucci remarked that she was surprised that the ho- tel had agreed to take back the strikers in view of their prior 71 In the representation case filed by the Teamsters, referred to above, the Regional Director found that Joe Marcell, doorman on the day shift, and Sam Culmo, doorman on the evening shift, were both supervisors. In this case Respondents admitted Marcell's supervisory status but did not admit Culmo's supervisory status. Other than Vitucci's testimony that Culmo was her immediate supervisor and the fact that he directed her work and the work of the car runners, there is no testimony either by the General Counsel or by Respondents as to Culmo's supervisory status. Although Respondent was entitled to litigate the supervisory status of Culmo, had it seen fit to do so, the absence of evidence to the contrary and the presumption of regularity which attaches to the Regional Director's decision is sufficient, I find, to establish a primafacie case that Culmo was a supervisor within the meaning of the Act. I so find and conclude. 594 SOUTHERN FLORIDA HOTEL & MOTEL ASSO('IAIION expressed opposition to doing so. (ulmo stated that there had been a big meeting of top management to decide what they were going to do now that the strike was over, and that what the strike settlement said and what the hotels would do were two different things. Later the same day Vitucci had a conversation with Bev- erly Wheeler in the latter's office.'3 The conversation opened with Vitucci telling Wheeler that she was surprised that the hotel was taking back the strikers. Wheeler replied that things were going to be very bad for the strikers. Man- agement had had a meeting; while what they decided was to be kept very quiet, if the strikers thought they were com- ing back and still had their jobs, that was not a fact. They were only to be taken back for a few days for the most part. and for those who were kept longer the hotel had a lot planned. Things would be made so hard and miserable for them that they would want to quit, which was exactly what management wanted. During the evening of the same day Vitucci had a con- versation with David O'Shaughnessy and Morton Rosen- zweig, both admitted supervisors, in the main dining room. Vitucci opened the conversation by telling them what she had learned from Wheeler, and both admitted that the in- formation was correct. O'Shaughnessy told Vitucci that all supervisors had been instructed to make a list of the striking employees in their respective departments. The list was to indicate the employees who were the strongest union sup- porters and also which employees the supervisors wanted to keep. They could only keep a few strikers in each depart- ment, and the lists were to go to General Manager Seamon for approval. O'Shaughnessy also stated that although the strikers were to be taken back in accordance with the agree- ment made with the Union the hotel was not going to give them full-time regular schedules: they would work only on a day-to-day basis. Most of the strikers were to be laid off with the assigned reason that they were unqualified or un- desirable. Those kept on were to have things made so hard for them that they would want to quit, and if any strikers complained about the treatment they were to be told that there was no longer any union in the hotel. Rosenzweig stated that the hotels wanted to get rid of the long term Cuban element, especially the strongest union supporters, and wanted to operate as a nonunion hotel.7 :' Vitucci testified that Wheeler is social director at the hotel, arranges for entertainment, has an office and an assistant, does not punch a timeclock. and attends management meetings. Respondent introduced no contradictory testimony. Based on Vitucci's testimony in this regard I find Wheeler to be a supervisor within the meaning of the Act. 74 Levine denied that he had any conversation with Vitucci concerning the strike by Local 355. He admitted talking with employees in groups, of which Vitucci was one, concerning the campaign by Teamsters but denied asking Vitucci to report to him on the activity of those employees. He admitted that during this campaign Vitucci engaged him in conversation but claimed that he just listened and made no response. Olivera and Rosenzweig also denied having the conversations about which Vitucci had testified. My findings in this section are based on the credited testimony of Vitucci. I do not credit the denials of Levine, Olivera, or Rosenzweig. none of whom impressed me as credible witnesses. O'Shaughnessy, Paraper. Culmo. and Wheeler did not testify, nor was any explanation given for their failure to do so. There is testimony that O'Shaughnessy is no longer employed by the hotel, but there is no showing that his whereabouts were unknown to Respondents or that his attendance could not be secured by a subpena. In this posture it is appropri- ate to infer, as I do, that had O'Shaughnessy. Paraper. Culmo. and Wheeler been called as witnesses their testimonies would hase been adverse to Re- spondents. See Interstate Circuit Inc. e al. v Unrted States. 306 U.S. 208. 226 (1939). Natalie McKeon had been emploed hb (ountr, (lub for approximately 10 ears as a cocktail waitress. Just prior to the strike McKeon was on vacation, hut when she re- turned on December 25 she telephoned O'Shaughness, her supervisor, to inquire about her work status. O'Shaugh- nessy told her that the strike was in progress. hut that she was needed for work and asked that she report that eve- ning. McKeon explained that she could not (do that because she was a member of the Union and had to respect the picket line. O'Shaughnessy stated that if she came to work as he requested he could assure her that she could have a job when the strike was over, but if she did not return he could not make that guarantee. Several dans later O'Shaughnessy called McKeon and told her that if she and the other girls in the department returned to work immedi- ately he had been authorized to sa) that they would he assured of their jobs when the strike was over, but if' they continued to remain absent he could not tell them what would happen to their jobs after the strike. About 5 days later McKeon received still another call from O'Shaugh- nessy, in which he made basicall3 the same statements. On January 16 McKeon received a call telling her to report January 17 at 6 p.m. for work in the blue room. She reported as directed and worked that shift, then asking O'Shaughnessy whether she would work T'uesday. O'Shaughnessy told her to call Tuesday morning to see if she was on schedule. McKeon called as directed, and O'Shaughnessy told her to report for work in the coffee shop, and she did so. When the coffee shop closed McKeon was sent to complete her shift in the blue room. While there McKeon was shown a memorandum from the personnel department by the steward. addressed to General Manager Seamon with copies to all supervisors. The memorandum stated that on Thursday and Friday certain people would be called and told that due to overstaffing their positions were no longer available to them, and that they should turn in their uniforms and ID cards and pick up any check that might be due them. McKeon examined the list attached to the memorandum, hut her name was not on it. At the end of her shift O'Shaughnessy told McKeon not to come in Thursday or Friday. as these were her normal days off, and to call him Friday morning and he would tell her whether she would work Saturday. Before McKeon could make the call on Friday she received a call from the hotel personnel department telling her that the hotel was overstaffed, and that they had found someone else better qualified for her job." Several hours later McKeon telephoned O'Shaugh- nessy and informed him of the telephone call she received from personnel. O'Shaughnessy's reply was that he had told McKeon during the strike that if she then returned to work her job would be protected but that if she failed to do so he could give her no guarantees, and as she did not accept his offer he could do nothing for her at the time." ' This is McKeon's testimony. evine testified that the instructions to all personnel in his department were to tell the employees that the hotel was overstaffed and the employee was not qualified. I have found that Iesine's personnel followed his instructions and used the language he directed. I assume that McKeon regarded the two statements as substantially the same u, Based on the credited testimony of Natalie McKeon. As stated In fn 74. rupra. O'Shaughnessy was not called by Respondents 595 I)I-FCISIONS OF NATIONAL, LABOR RLATIONS BOARD 12. Meeting between the nion and the hotel as to reasons strikers were terminated In late January or early February the [Union brought an action against the hotels in the Inited States l)istrict C'ourt for the Southern District of Florida. The action sought an adjudication by the court that the written contract now in effect did not reflect the agreements which the parties reached in negotiations or, in the alternative, that the par- ties did not have a meeting of the minds." The court di- rected the parties to meet and conduct interviews in the nature of discovery proceedings to enable the Union to learn the hotels' reason for terminating each of the strikers not then working, as well as the position of the hotels on other issues. The evidence shows that between February 7 and March 10 a total of eight such meetings were held.7" At the first meeting the chief spokesmen for the Union were Reynolds and Gopman and for the hotels Gray. Levine, and Keiler. The procedure followed at the meeting was that Gopman would read a name from'a list he had before him and Levine, after consulting his files, would give the date and reason for that employee's termination. In most in- stances the reason given was that the hotel was overstaffed and that the employee was not qualified.7 9 After hearing this answer several times Reynolds. directing his question to Gray and Keiler, asked "is that what we agreed to in our negotiations?" Gray replied, in effect, that apparently there was a misunderstanding. Keiler made no response. Reyn- olds then told (iray that there was two things in his profes- sional life that he valued highly ability and integrity and Gray had impugned his integrity, as well as that of Hanley. Reynolds added, "You know very well that is not what we agreed to." The only response was by Gray, who again stated that he was sorry, but there seemed to be a misunder- standing. Also at this meeting Gopman raised the question of the Union's access to the hotels. In the course of this discussion Vasquez related that when agents called a hotel to arrange for visits they were told, "We can't do it today" or "We are too busy, call back some other time." Because of this the agents had been unable to get into the hotels to talk with employees. At this point Reynolds asked Keiler. "Is this what you and I negotiated?" Keiler replied, "That's my understanding of it." Reynolds then stated that what had been negotiated was that the union agent would call before going to a hotel to give the latter an opportunity to arrange for the visit with as little interruption to its operations as possible. Keiler made no response. About this time Gop- man and Keiler had a discussion regarding a suggestion by Keiler that if a union agent made a request to visit a hotel the latter would make a room available where the Union could meet with its members, provided the Union first dis- closed to the hotel the reason for the meeting, the depart- ment involved, and designated the employees to he inter- viewed. Gopman stated that the Union had a duty to represent all employees in the unit, both union and non- 7' So far as the record indicates the action remains pending "The dales were February 7, 15, 18. 22, and 25 and March 1. 4, 10. ' In some instances the reason was that the job had been abolished or that the employee had engaged in illegal picketing. union employees, and he asked Keiler if' he meant that the hotel would not make available for interview employees who were not members of the Union. Keiler replied, "yes. they' are not your members." The next meeting was on February 15, when the princi- pal spokesman for the Union were attorney Coleman and business agent Fader and for the hotels evine and Beach General Manager Miller. One portion of this meeting was devoted to the issue of union access to the hotels. he issue was raised by a statement of one ol' the union representa- tives that there was a large number of grievances that they wished to discuss with employees before formally present- ing them, and that in order to do so access to the hotels was necessary. Levine reiterated the position he ultimately stated at the preceding meeting that the Union would be permitted to talk only with its members and only in a room which he designated. Coleman asserted that Levine's re- strictions were unlawful, but Levine adhered to his position, stating that he had been advised by Keiler that under the contract he had the right to restrict access as indicated. The remainder of this meeting was devoted to a discus- sion of the reason for the layoff of the returning strikers, and in this area Fader was the principal spokesman for the Union. In reply to a question from Fader as to whether seniority was a factor or played any part in the selection of those to be laid off Levine replied that the decision was based solely on whether the employee was qualified or not. and that seniority was not considered in arriving at a deci- sion. Fader then stated that in the past when layoffs became necessary the selection was by seniority. He asked, why' now, after a strike, and with the identical language in the contract, did you just lay' off such a large number of strik- ers, some of whom had worked for Levine for many years. without regard to seniority? Levine replied that the hotels and Keiler interpreted the contract differently from Dean.80 The remainder of this meeting and all the remaining meetings were devoted, for the most part.' to Fader inter- viewing the department heads and supervisors8 2 who pre- pared or participated in the preparation of the lists of strik- ers selected for layoff. Except in the case of Selma, who was interviewed because Head ('Cashier Edith Faber was ill. (and which will he discussed separately)., all the interviews of s0 The reference is to Edward Dean, who during these events and for some years prior as executive secretary of association. Apparently differences have arisen between Dean and members of association. I note that the evi- dence des not place Dean at any negotiating session held on or after Janu- ary 5. as well as Keiler's testimony that when he was authorized to attend his first meeting he was told that among his functions was to see that Dean and Schenerlein. then attorney for association, did not sell out association to the Union. Also, at these meetings, when Fader made reference to an interpreta- tion of the contract by Dean. Levine replied that Dean was a "pussycat" controlled by the Union, that Keiler was nastier and stronger, and that the hotels preferred his interpretation. Levine did not deny that he made the statement. "' There were instances at the remaining meetings when the discussion dealt with access to hotels, but there was no change in the position of the parties. 1 The supervisors interviewed were Coffee Shop Manager Frank L.a Grua. Executive Housekeeper Viertbauer, Bar Manager Anthony Caanes. Superin- tendent of Services Frank McCarren, Maitre d' Jose Vargus, Comptroller Joseph Selma. Chef Claus Erstling, and Banquet epartment Manager Ed- die Garcia, all employed by Beach, as well as Operations Manager Gustavo Novo, Coffee Shop Manager Herb Lieberman, Executive Housekeeper Louis Sellen, all employed by Country Club. 596 SOUTHERN FLORIDA HOT'I' & MOTEI. ASSOC'IA'IION these people followed the same pattern. Fader gave the name of a striker who had worked in the department of that supervisor and asked why the employee was no longer working. Each supervisor gave the same answer -the hotel was overstaffed and the employee was not qualified." All admitted that the lists they prepared of those to be laid off' contained only the names of recalled strikers, and that se- niority played no part in selecting the employees to be laid off. In addition, the interviews with the supervisors devel- oped certain facts which can best be presented by dealing with each interview separately. Frank La Grua After establishing that La Grua initially came to Beach only about I month or 6 weeks prior to the strike nd had been there only about 2 months when he prepared his list of those to be laid off, Fader told La Grua that some of the people on his list had worked for the hotel 8, 10, or 12 years or longer, and that these people must have had some quali- fications for the job. Fader then asked how La Grua. who had only been on the job about 2 months when he prepared his list, could determine who was or was not qualified. The only answer that La Grua would give was that in his opin- ion as the department head those laid off were not qualified. Fader then asked if La Grua had ever reprimanded or im- posed discipline upon any of the laid off employees or taken them to higher authority for such purpose. When La Grua claimed that he had Fader asked for the records showing such reprimands. At this time Law Grua claimed that everything was verbal, and that he just made a mental note of it. No such records were produced. Maryann Viertbauer s Fader began this interview by asking Viertbauer how she determined who was or was not qualified. Although Viert- bauer first claimed that she had a list of some kind she later admitted that there really was not any list. Finally she said that she had spent about 5 minutes going over the situation in her mind and then decided who was not qualified. Fader pointed out that there were over 100 people in her depart- ment and asked how she could come to such determination involving over 100 people in a period of about 5 minutes. Viertbauer replied that she had been thinking about the matter for quite some time, and now that she had the legal interpretation of the new contract from Keiler and Levine she felt that she had the authority to terminate whomever she pleased whenever she felt like doing so. Fader also asked Viertbauer if Beach was the first hotel at which she had worked where a union contract was in effect, and she admitted that she had worked at many union hotels in the r In the few instances where a supervisor attempted to say nything else he or she was admonished by Levine to adhere strinctly to the note before them and not to say anything further. Also, in one instance Viertbauer, when asked why a certain employee was laid off, replied that she did not know and asked Levine for the reason. Levine supplied the usual answer of overstaffing and the employee was not qualified. 5 This is the same Maryann Viertbauer who was found by Administrative Law Judge Ricci not to be a credible witness. See Omni Inrernational Hotel, JD-34-78, issued January 24, 1978, and now pending before the Board on exceptions. preceding 15 years. Fader then asked her if she as not aware that even under a union cot,tract she had the right to discharge employees for cause. Viertbauer admitted that at Beach she had discharged employees for fighting, drinking, and acts of dishonesty but claimed not to he aware that she had the authority to discharge an emploNee for not properly performing his duties. However. she admitted that she had discharged for that reason at other hotels where she worked. Fader then mentioned the name of a girl employed as a towel folder and asked Viertbauer what made one girl more qualified to fold a towel than another, particularly where one had been doing it for 8 years and the other for not more than 3 weeks. Viertbauer's only response was that under the new contract she had the right to determine any- thing she wished with regard to who was qualified and who was not. Fader then asked if Viertbauer hadt reprimanded or disciplined employees or taken them to higher authority for that purpose. For the most part Viertbauer claimed not to recall if she had done so or not, but in some instances she claimed that she had. When asked to produce a record of these Viertbauer stated that everything was verbal, and that she just made a mental note of it. Gustavo Novo Upon ascertaining that Novo was operations manager at Country Club and had been such for about 3 months Fader asked if he had anything to do with hiring and firing. Novo replied that he directed the several department heads to prepare a list of unqualified employees, and that he made the final decision in that regard. In response to Fader's question as to how and on what basis he made the decision Navo would only reply that in his opinion as operations manager the employees selected for layoff were not quali- fied. What made them unqualified he was unable or unwill- ing to state. Anthony Caanes Caanes was in charge of the bartenders, barmaids, and cocktail waitresses. After going through a list of names with Caanes and receiving the stock answer Fader asked if it was true that Caanes had laid off his entire department. Caanes admitted that this was true but claimed that after about 1 week or 2, when he felt like it, he brought them back. Fader then asked why cocktail waitress Pat McFeeley had been laid off and received the usual stock answer. Fader then asked if McFeeley had been recalled and if so how long she had been off. Caanes replied that she was back and had been off for about I week or 2. Fader then asked what had occurred in the period McFeeley was off that made her qualified, as she had not been qualified when he laid her off about a week earlier. Caanes replied that he now felt McFeeley was qualified, but that he "now kept an eye on her." Fader then turned the discussion from barmaids and cocktail waitresses to bartenders, naming some of them. and asked why they were not working. Caanes replied that it was his experience that all bartenders steal. He had caught them taking money from the register, giving out drinks without collecting for them, and taking drinks for themselves, but that he just never did anything about it. When asked why he never took action against the bartend- 597 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers Caanes replied that he just never got around to it. When asked if he was aware that under the contract he had the authority to terminate or discipline employees for stealing or for other improper performance of their duties Caanes claimed to be unaware of that fact, but he said that he had been informed that under the new contract he now did have the authority, and that he could do what he pleased with the employees whenever he pleased. Fader also asked Caanes how he could determine that persons hired during the 3-week period of the strike were qualified and those hired prior to the strike, some of whom had worked for many years, were not qualified. Caanes replied that the time had been sufficient for him to make the required deter- mination. Frank McCarren When Fader got the stock reply from McCarren to his question why named employees were not working Fader pressed for more particulars, pointing out that the service department was very small compared to others, asking gen- erally what makes a bellman qualified. In reply to specific questions McCarren admitted that the strikers he found un- qualified were neat in appearance, were not excessively late, handled the baggage properly, and were not abusive or dis- courteous to guests. When pressed as to why, in view of the foregoing answers, he concluded that the returning strikers were not qualified, McCarren's only response was that it was his opinion as superintendent of services that those laid off were not qualified. Herb Lieberman Preliminary questions established that Lieberman ini- tially came to Country Club approximately early in mid- November 1976 as manager of the coffee shop; prior thereto he had worked in various restaurants in the Miami area which operated under a union contract. When Fader asked for the reason specific employees were not working Lieberman gave the usual stock reply.85 Fader asked if at the restaurants where Lieberman formerly worked he could discharge or discipline employees who did not properly per- form their duties, and upon receiving an affirmative reply Fader asked if he could not do the same at Country Club. Lieberman replied that he was not aware that such a policy existed at Country Club, or that he had such a free hand in that regard. Fader then asked Lieberman how he deter- mined whether an employee was qualified or not. At first Lieberman said nothing and appeared to be at a loss for words, but after conferring with Levine and Novo out in the hall he returned to the room and said that he had been directed by Novo or Country Club Manager Seamon to prepare a list of the unqualified employees, that during the first 3 days of the week of January 17 he observed the re- turning strikers and made notes on how they performed their duties, and that thereafter he met with Novo and Sea- mon, at which time his comments were analyzed, and a *" Fader testified that in some instances Lieberman attempted to expand on his answer but was immediately stopped by Levine. who told Lieberman to consult his notes before answering and to say only what was in his notes. decision was made as to who was not qualified. Fader asked for the notes and comments Lieberman had prepared, but nothing was produced. Fader then asked if Lieberman had disciplined or reprimanded employees or taken them to higher management for that purpose. Lieberman replied that he was unaware that he had such authority, that it was not until after the strike that he ascertained that his author- ity was not so limited, and that now he was free to do as he wished. Louis Sillen In response to questions from Fader, Sillen stated that he attended a meeting at which Keiler spoke, and that pursu- ant to the latter's instructions he prepared a list of the for- mer strikers who were not qualified. Fader asked for the list of unqualified employees Sillen had prepared, but nothing was produced. When Fader asked what criteria Sillen used to determine who was not qualified Sillen stated that he used his common sense, taking into consideration the way employees treated guests, how they did their work, and other things of that nature. In response to Fader's question as to what made one maid better than another Sillen stated that he decided that question by using common sense. Jose Vargas In interrogating Vargas, one of the names Fader supplied was Sergio De Armis, who had the duty of polishing silver; Fader asked why he was no longer working. Vargas replied that the job had been eliminated. Fader asked if this meant that no one polished silver any more. Vargas stated that the job had been doubled up. and that someone else was doing the work. Joe Selma The admitted supervisor of all cashiers at Beach was Edith Faber, who in turn answered to Joe Selma. Faber had been absent from duty for an extended period because of serious illness, and for this reason Selma was made avail- able to Fader for interrogation by the latter. Fader gave Selma the name of Ardel Sera, who had been employed by Beach as a cashier, and Fader asked why she was not work- ing. Selma gave the stock answer that she was not qualified and the hotel was overstaffed. In reply to a question from Fader, Selma stated that it was true that during periods when Fader was absent from duty because of illness Sera acted as head cashier and performed all of Fader's duties. Fader then asked if Sera was qualified to perform the duties of a head cashier why was she not qualified to perform the duties of a cashier. In reply Selma would only state that Sera was not qualified, and the hotel was overstaffed. Claus Erstling As in the case of other supervisors, Fader gave Erstling a number of employee names, asking why each employee was no longer working, and he received the usual stock answer. One of the names Fader gave Erstling was that of Vincent Gonzales, who had been employed by Beach as a broiler- man for about 6 years. Fader asked how much broiling 598 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION Gonzales did and if there were any complaints about his work. Erstling replied that Gonzales would normally cook 150-200 steaks each evening, and that during the period Gonzales worked he had received approximately three complaints about him. Fader then asked if Erstling would not agree that for the volume of work and the number of complaints he mentioned Gonzales' work record was excel- lent. However. Erstling insisted that in his opinion as the head chef Gonzales was not qualified, and the hotel was overstaffed. Also in response to questions from Fader. Erstling stated that he had never dismissed or disciplined employees who did not properly perform their duties or send them to higher management for that purpose, claiming that prior to the new interpretation of the contract he was not aware that he had authority to terminate or discipline employees in his department for improper performance of their duties. Eddie Garcia In response to a series of questions from Fader, Garcia stated that he supervised the banquet department and had done so for about 12 years. He had attended the meeting addressed by Keiler on January 16, and pursuant thereto he prepared a list of employees in his department that he re- garded as not qualified. When asked by Fader to produce the list Garcia claimed that it was not available. Garcia also told Fader that the criteria he used in determining who was or was not qualified were job capability, tardiness, and atti- tude toward guests. Garcia also stated that he had never reprimanded or disciplined any employee for improper per- formance of duty nor sent an employee to higher manage- ment for that purpose. He also stated, as did other supervi- sors, that not until the new interpretation of the contract was made available to him did he understand that he had the authority to discipline or terminate employees for im- proper performance of duties." 13. Events at Rivage The facts set forth above relate solely to events at Doral hotels here involved. The events at Rivage are entirely dif- ferent and will now be detailed. Comanager Byrne admitted that except for the one in- stance hereafter discussed Rivage did not recall any of the strikers when the strike ended.7 The one striker recalled was Frank Marcucci, and the facts concerning his subse- quent termination follow. Marcucci worked at Rivage for 13 years as a bartender. He was one of three so employed when the strike began. "The findings in this sec. are based on the credited testimony of Fader which, in this area, is undenied. It may be noted that of the II supervisors discussed in this sec. 8 were called as witnesses by Respondents, and none of those denied the statements attributed to them by Fader. It may also be noted that none of the supervisors called by Respondents were interrogated as to the supporting reasons for concluding that employees were not quali- fied, and when the General Counsel in some instances sought to do so Keiler objected that the question was beyond the scope of direct examination. which objection, in accordance with prior rulings in this area, was sustained. r According to the complaint four strikers were illegally terminated by Rivage. These were Mary Colbert, Sally Green, Frank Marcucci, and Mae Summers. All but Summers testified in this proceeding. January 10. the day the strike began at Rivage. was Mar- cucci's day off, but the following day he joined the strike and participated in the picketing of his Employer, being the only bartender to do so. During the strike, Rivage hired a replacement for Marcucci, and that replacement worked during the strike and also following Marcucci's termination. On January 18 Marcucci went to Rivage and talked with Comanagers Byrne and Stein, asking when he was to return to work now that the strike was over. Bryne and Stein told Marcucci that the hotel had enough bartenders and would not need him. Marcucci protested that he had seniority over all the bartenders in the hotel and was entitled to the job, but Byrne and Stein insisted that they had no work for him. Marcucci then complained to the Union. Later the same day Marcucci received a telephone call from Stein, who told him to report for work the next day. Marcucci did so and worked January 19, 20, and 21. At the end of his shift on January 21 Marcucci was told by Bryne and Stein that they had found another person who could do the job better, and that he (Marcucci) was finished. Stein accused Mar- cucci of being rough with customers by throwing drinks at them. Marcucci denied this. Stein stated that he had caught Marcucci stealing. Marcucci replied that Stein's statement was untrue, and that he (Stein) knew it was untrue. Mar- cucci testified that at no time prior to this incident had his work ever been criticized, pointing out that in fact he had been assigned to work some of the better functions at the hotel including some private functions given by the hotel's chief executive officer." B. Contentions and Conclusions 1. Preliminary contentions Before considering the merits several preliminary ques- tions raised by Respondents must first be disposed of. a. Collyer defense Relying upon Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), Respondents contend that the Board should withhold any adjudication in this case and require the parties to adjust their differences under the grievance and arbitration provisions of the contract. The dispute here, Respondents assert, is basically a ques- tion of contract interpretation, and the contract itself pro- vides the machinery for resolving all the issues involved in this case. Respondents concede that in General Anerican Transportation Corporation, 228 NLRB 808 (1977). and Ro H" Based on the credited testimony of Marcucci and the admissions of Byrne and Stein; Byrne admitted that Marcucci was discharged because he had a sullen attitude and could not get along with fellow workers. but that the reason given Marcucci was that he was no longer qualified. Byrne did not recall whether he told Marcucci that the latter had a sullen attitude He also admitted that the replacement hired for Marcucci dunng the stnke was re- tained after Marcucci's discharge. He gave no testimony as to when the sullen attitude by Marcucci began, nor could he recall even mentioning the sullen attitude to Marcucci. Stein testified that Marcucci was terminated because he was not qualified, and that this was the opinion of both himself and Byrne. Stein claimed that Marcucci was told at the time of the termina- tion that he was being laid off because in the opinion of the hotel he was not qualified To the extent that the testimonies of Byrne and Stein are in conflict with that of Marcucci I credit Marcucci. 599 DECISIONS OF NATIONAl. LABOR RELATIONS BOARD Robinson. Inc. d/h/a Rov Robinson Chevrolet, 228 NLRB 828 (1977), the Board modified Collyer with the result that cases involving alleged violations of Section 8(a)(1) and (31 of the Act will no longer be deferred to arbitration. How- ever, Respondents argue that as those decisions issued March 16, 1977, and all of the activity here alleged to be illegal occurred and the initial charges herein were filed before that date, the General Counsel's ruling, announced June 10, 1977, that all cases pending at the time would be processed in accordance with the last mentioned cases. I should decline to give retroactive effect to General American Transportation and Roy Robinson and direct that all matters in dispute here be deferred to arbitration because not to do so would violate the Administrative Procedure Act, and an order applying those decisions retroactively would not be enforceable in a court of appeals. I find it unnecessary to burden this Decision with a dis- cussion of retroactivity. Suffice it to say that upon consider- ation of the entire record I find and conclude that under the facts of this case deferral would be inappropriate even un- der Collyer and its progeny. Collyer is predicated on the theory that where the parties have by contract provided a method for adjustment of disputes and the method agreed on indicates that a fair and equitable result not inconsistent with the policies of the Act can be achieved, the parties should be required to resolve their dispute as provided in their agreement." But even under Collyer the Board would not defer to arbitration even in a pure 8(a)(5) situation where, as here, it clearly appears that the arbitration pro- ceeding could have but one result, namely dismissal be- cause it was not held within the time limit fixed by the contract. Here the contract provides that "arbitration shall be held within sixty (60) days of the occurrence of the griev- ance," a period that has long since expired, and an arbitra- tor would be precluded from making any award other than that the grievance was not timely under the contract. Nei- ther at the trial nor in their brief did Respondents express any willingness to waive the contractual time limit.9 Thus, by simply raising this contractual period of limitations Re- spondents would preclude the Union and the discriminatees from having the issue decided. See Pate Manufacturing Company, 197 NLRB 793 (1972); The Detroit Edison Com- pany, 206 NLRB 898 (1973); Southwestern Bell Telephone Company, 212 NLRB 43 (1974); Guerdon Industries, Inc., 217 NLRB 1018, 1022 (1975). Accordingly, I find and conclude that under the facts of this case a deferral to arbitration would negate rather than promote the policies and purposes of the Act, and that Re- spondents' contentions in that regard should be denied. I so find and conclude. " It is of some interest to note that while Respondents contend that the issues here should be referred to arbitration, they argue on the merits that terminations pursuant to article V, sec. 2 of the contract are not subject to arbitration. 9It is true that in conversation with Caldwell (detailed supra sec. A,10), Keiler did offer to let arbitration proceed but attached the condition that the only question the arbitrator be permitted to decide was whether art. V. sec. 2 is a valid contractual provision, an issue he claimed had been adjudicated in the prior arbitrations involving Delano and Sheraton Four-Ambassadors Hotels. Plainly, arbitration limited to that issue would not dispose of the real controvery here. In practical effect, what Keiler asked the Union to agree to was no more than a "heads I win, tails you lose" proposal. b. The time-barred charges To bring into proper focus Respondents' contention in this regard certain facts relating to the manner in which the proceeding was initiated must be stated. Promptly follow- ing the termination of the recalled strikers the Union filed charges alleging violations of Section 8(a)(1), (3), and (5) of the Act.9' With respect to the Section 8(a)(3) violations the charges alleged that certain named individuals "and others" had been discriminatorily terminated by Respondents. From time to time certain individuals filed their own charge, alleging they and others were discriminatorily ter- minated by one of Respondents. All of these charges were filed within the Section 10(b) period. After the Section 10(b) period expired approximately 10 individuals filed charges alleging that they had been discriminatorily terminated. The Regional Director dismissed each of these charges be- cause they were time barred, but nonetheless named them as discriminatees in the complaint, as amended. Respon- dents contend that in no event can any relief be granted to those individuals who filed an untimely charge. I find the contention without merit. It is true that untimely charges may not be used to sup- port a complaint, and the only action the Regional Director could take on those charges was to dismiss them, as he did. But it does not follow that because the Regional Director dismissed the time barred charges that he is precluded in any way from proceeding on the original charges which were timely filed. That is what he in fact did. That he acted lawfully in doing so is clear from the Supreme Court's deci- sion in N.L.R.B. v. Fant Milling Company, 360 U.S. 301, 309 (1959). Stated another way, the Regional Director pro- ceeded on the original charge just as though the time- barred charges had never been filed.92 2. The 8(a)(l) violations a. At Beau Rivage I find and conclude that this Respondent violated Section 8(a)(1) of the Act by Stein's statement to employees Green and Colbert that he was disappointed with them because of their activity on the picket line. The statement clearly inter- fered with, restrained, and coerced those employees in the exercise of their right to engage in concerted activity for mutual aid or protection, a right protected by Section 7 of the Act. b. At the Doral hotels I. Supervisor Golub told employees that the hotel would no longer recognize seniority, and that it would decide who 9' As heretofore stated (fn. 4), these charges were filed against association and all its members. Subsequently, the Regional Director approved with- drawal of these charges insofar as they related to all member hotels except those named as Respondents in this proceeding. 92 Respondents further contend that the complaint herein should be dis- missed in its entirety because the Regional Director declined to make avail- able to Respondents, prior to trial, the affidavits obtained during the investi- gation of this case. The recent Supreme Court decision in N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978), has put that contention to rest, and no further discussion thereof is necessary. 600 SOUrTHERN FLORIDA HOTEL. & 1MT0 1. ASSOCIATION would remain at work. Supervisors Lieherman, Riccio. Lemmel, Anderson, Prado. O'Shaughnessy. Leventhal. Viertbauer, and Perez. in one form or another, also told employees that they no longer had any seniorily, no con- tract, no union to protect them, and that the hotels could assign work to any employees it wished as it wished. Al- though I have found, as set forth in a subsequent section hereof and for reasons there stated, Respondents did not violate Section 8(a)(5) by the changes they made in terms and conditions of employment. some of which involved elimination of seniority in certain areas and for certain pur- poses, these statements are nevertheless untrue. There is a contract which recognizes the Union as the representative of the employees. The contract has an article entitled "Se- niority" which bestows some seniority rights on employees. and it also regulates terms and conditions of employment to an extent. Hence, the aforementioned statements to em- ployees by supervisors, i.e., that there was no union, no seniority, no contract, and that Respondents were free to give work to whom they pleased when they pleased were untrue statements. The statements indicated that the em- ployees no longer had the protection of their Union in their day-to-day employment relations and in this sense inter- fered with, restrained, and coerced employees in the exer- cise of their Section 7 rights. See The Rangaire Corporation. 157 NLRB 682, 683 684 (1966); The Great Atlantic & Pa- cific Tea Company, Inc., 230 NLRB 766 (1977). I so find and conclude. 2. The statements by Manager Miller and other hotel supervisors to the effect that union leaders had taken bribes and sold the employees out also interfered with, restrained. and coerced employees in the exercise of their Section 7 rights and violated Section 8(a)( ) of the Act. 3. Also violative of Section 8(a)(I) of the Act was the denial of the Union's contractual right of access to the ho- tels for the purpose of conferring with employees. See Har- vey's Wagon Wheel, Inc. dbla Harveyv's Resort Hotel & Harvey's Inn, 236 NLRB 1670 (1978).9' 3. The 8(a)(3) violations a. A the Doral hotels On this phase of the case consideration of the entire rec- ord convinces me. and I therefore find and conclude that except for the individuals hereafter discussed and where a ,o A number of witnesses called by the General Counsel who worked at one of the Doral hotels testified that after their termination they asked their Employer for vacation pay they claimed was due them but never received the same. Relying on N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S 26 (1967), the General Counsel contends that the failure to make such payments violated Sec. 8(aX3) and (I) of the Act. Except with respect to one employee hereafter mentioned, no evidence was offered to prove that any vacation pay was due under the provisions of the contract (art. XIII. sec. 6). The exception referred to involves Estralia Espino, who had been employed by Country Club. Levine admitted that Espino did in fact qualify for vacation pas under the contract, and that the hotel was in error in declining to make the pa- ment. but he stated that the same would be paid before the hearing closed. Whether this was in fact done the record does not show. In this posture I find that the failure to pay Espino the vacation pay due violated Sec 8(a)3) and (I) of the Act. and I shall recommend the usual remed) However. to the extent that appropriate remedial action has heretofore been taken no furiher action by Respondents in this area by way of remedy will he required different conclusion is specifically reatched that each of the persons listed in Appendix A. B. and (' of the complant herein, as amended, was discriminatorilv terminated hb Re- spondents in violation of Section 8(a)(3i and ( I ) of the Act. I reach this conclusion upon the lotalits of the following considerations: 1. Respondents' union aninius is made abundanltly clear b,, the credited testimonies of Vitucci. McKoen. :aider. as well as by the testimony of' Levine himself. 2. When the issue oft returning the strikers irst arose Re- spondents were adamant in their position that the\ would retain the replacements hut would not take back an of the strikers. It was not until the Uinion made it clear that an agreement to take back the strikers was a condition prec- edent to any' strike settlement that Respondents came up with the proposal that they would recall all strikers hut would also retain the replacements. The figures shown in footnote 95, post, demonstrate, and I find, that Respondents made this proposal because they were hard pressed to oper- ate their business with the relatively small number of re- placements (less than one-third of their normal staffing re- quirements). and wanted an end to the strike to reap the benefits of the busy season then upon them. 3. Except for certain strikers who allegedly quit. picketed. and engaged in picket line misconduct Respon- dents recalled all the strikers in the 4-day period between January 17 and 20 and promptly thereafter terminated a substantial number of them. ' 4. The figures provided by Respondents with respect to the staffing patterns at the hotels just prior to the recall of the strikers on January 17 and immediately following the layoff of the strikers on January 20 and 21 convince me. and I therefore find, that what Respondents in fact did was retain the replacements. which at the outset was their stated purpose. complete their staffing requirements from among the recalled strikers, and dismiss the remaining strikers, al- legedly as "not qualified."' 5. The qualifications of the returning strikers were not the factors which Respondents in act used in determining which strikers would be retained and which would be termi- nated. This is made clear by the interviews Fader had with supervisors of the hotels, which are summarized sulpra (sec. 9' Respondents argue that these people were not discharged but laid off In the course of Personnel Director Levine's testimony I pointed out to him that the term "layoff" normally connotes that the interruption of employment is probably temporary, and I asked Levine whether those laid off had any reasonable expectancy of future employment with the Doral hotels. I.eine replied, in effect, that they had no chance whatever because the hotels re- garded them as unqualified and would not rehire them. In view of Levine's reply aad because substance rather than the words used is the proper criteria tsee Redwing Carriers. Inc., and Rockana Carri'rs. Inc. 137 NRB 1545 (1962); Overnight Transporrarion ConWant, 212 NL.RB 515 1 9 74)) I find that the employment of these people was permanently severed. Mnd that they were. in practical effect. discharged "' The figures show that at Counlry (Club there were 668 unit emplo-ees when the strike began. that 209 replacements were working on Januarr 17. 1977, and that 500 strikers were recalled and retlaned: a.t Reach the tlotill were 396, 110, and 241, respectively and at Carillon they ere 299, 72. and 282. respectively The small differences are probalhl? explilned hb the tafi-- ing pattern requirements on December 25, the busiest tilc of the sear for Respondents and mid-January. which, although still in the hus season. is nolt its husy its December 25 he igures at ( ontr ( luhb would aIplear ito he explained by the fact that it annually sponsor, the Dl)r.al ()pen. plaed aIt it, golf clubh early in MNarch. nd for shiich IIt as doubiless then rm;aking the necessary preparalltons 601 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A,12). The statements by most supervisors that they were not aware they could discharge employees for failing to properly perform their duties and did not ascertain that they had such authority until they got the new interpreta- tion of the contract simply strains credulity beyond the breaking point, and appropriately give rise to the inference I draw that their statements were simply part of a well coached scheme to conceal the true reason the strikers were terminated. Cf. Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (1966). Even Levine and Gray, who had worked for the Doral Enter- prises for over 6 and 10 years, respectively, admitted that in their experience with these hotels they had never heard of any employee being laid off pursuant to article V, section 2, of the contract, and Levine admitted that he first learned of such a possibility when he got the new interpretation of the contract from Keiler. In this posture, Respondents' admit- ted agreement to recall the strikers has all the indicia of a promise made with tongue in cheek, which Respondents had no intention of keeping. To the Union and its members Respondents' contractual commitment was, to borrow a phrase from Mr. Justice Jackson concurring in Edwards v. California, 314 U.S. 160, 186 (1941), "only a promise to the ear to be broken to the hope, a teasing illusion like a munifi- cent bequest in a pauper's will." 6. Respondents' contention that their layoff of the re- called strikers was in conformity with article V, section 2, of the contract is supported neither by the contract language nor by the practice thereunder. Turning first to the con- tract, the language is: Seniority shall prevail by classifications among quali- fied employees in case of layoffs due to reduction in busi- ness, provided the senior employee in the opinion of the Employer, is qualified to perform the available job. [Emphasis supplied.] Under this language the condition precedent to applicabil- ity of the provision is that the layoffs be "due to reduction in business." There is no evidence nor do Respondents claim that they suffered any reduction in business." True, the hotels were overstaffed, but this was a situation of their own making in retaining the replacements and agreeing to recall all the strikers, a situation that does not constitute a reduction in business. But even assuming that the overstaff- ing in this case falls within the ambit of the contract provi- sion, the above-quoted language cannot be construed, as Respondents claim, to vest in the Employer the right to determine unilaterally and without review by anyone, who is qualified and who is not.97 The decisions of arbitrator Davidson, upon which Re- spondents so strongly rely, are not to the contrary. In the Delano case two employees laid off by reason of a reduction in force claimed to have seniority over the two employees who were retained and grieved on that basis. The arbitrator found that the grievants did not work in the classification " Indeed, it is a matter of common knowledge that by reason of the un- usually cold weather in the northern and northeastern sections of :his coun- try during early 1977 the tourist industry in Flonda, particularly the Miami Beach area, expenenced better than usual business. " It may be noted that when the parties wanted to vest absolute discretion in the Employer they knew how to do it. See art. III, sec. 4 and 6; and art. IV, sec. 4. No language of similar purport is included in art. V. sec. 2. there involved and hence did not have seniority in that clas- sification, and that under article V, section 2 the employer acted properly in giving the jobs to the two employees who did have seniority in the particular classification and denied the grievance. Plainly. that is not the situation involved in this case. Sheraton Four-Ambassadors Hotels also involved a layoff, apparently because of reduced business. The griev- ants contended that they were laid off out of seniority con- trary to criteria always applied in the past when layoflfs occurred. The employer did not deny' that employees with less seniority were retained but defended on the ground that it had the right to retain on the basis of "qualification by ability." The employer testified that in his opinion the grievants were not qualified, and the latter sought to contra- dict and rebut that charge. However, the nature of the tes- timony offered in that area is not disclosed by the decision. The arbitrator held that the burden was on the grievants "to prove that they are qualified." that the evidence did not convince him that such was the fact, and concluded that unless the grievants could show that the employer's action was arbitrary or capricious it must be concluded that the employer acted properly in laying off the grievants. Shera- ton Four-Ambassadors Hotels clearly does not support the proposition Respondents advanced during the bargaining, advanced during the hearing of this case, and repeat in their brief here that the Employer's determination that an em- ployee was unqualified was conclusive and not subject to review, however erroneous or arbitrary his decision might be. 7. Equally without merit, I find and conclude. is Respon- dent's contention that a layoff of employees pursuant to article V, section 2, was not subject to the arbitration provi- sions of the contract. The basis for this assertion was not explicated during the hearing, nor does it appear in Re- spondents' brief. If Respondents mean that because article IV, section 2. gives the Union the right to grieve a discharge it believed not to be for cause. and comparable language does not appear in article V, section 2, there is no contrac- tual right to grieve concerning a layoff under the last men- tioned article. I find the contention without merit. In the first place, under the agreement so construed no dispute would be arbitrable except a discharge which the Union regarded as not for just cause. This result would be plainly at variance with what the parties normally seek by an arbi- tration provision in a labor contract. Second, the arbitra- tion provision itself (article XI), is not limited in scope to any particular area but apparently applies to any dispute arising under the contract. The Supreme Court has held that: In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, where, as here, the exclusion clause is vague and the arbitration clause quite broad. [United Steelworkers of America v. War- nor & Gulf Navigation Co.. 363 U.S. 574. 584 585 (1960).] The Court added that in determining whether a particular grievance is within an arbitration provision: [Arbitration] should not be denied unless it may be said with positive assurance that the arbitration clause 602 SOUTHERN FLORIDA HOTEL & MOTEL. ASSOCIATION is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. [Id at 582 583.1 Although I find that article V, section 2, is on its face a lawful provision and under appropriate facts may be used by an employer as a shield against a claim that an employee was improperly laid off due to a reduction in business, the provision may not lawfully he used by the Employer as the sword by which he perpetrates and perpetuates the dis- crimination forbidden by Section 8(a)(3). This I find and conclude is what Respondents Carillon. Country Club. and Beach did here.9 Although in the main I have concluded that each of the persons named in Appendixes A. B, and C to the General Counsel's complaint, as amended, was discriminatorily ter- minated, there are five exceptions resulting from the fact that the evidence developed by the General Counsel shows, and I find, that the employee involved either voluntarily terminated his or her employment or was discharged for cause. These employees are as follows: I. Nina Enriquez was employed by Country Club as a cashier. She participated in the strike and picketed the ho- tel. On January 17 she was called to return to work, but she was told that she would have to work different hours and at a different station than she worked before the strike. Enri- quez said she would have to think about it, and the follow- ing day she returned to the hotel, surrendered all hotel property in her possession, and resigned. Although Enri- quez claimed that she was forced to resign because for per- sonal reasons she could not work the hours she was told she 9t In preparation for this hearing Respondent caused a subpoena duces lecum to be issued to the Union directing the latter to produce a contract entered into between the Union and Diplomat Hotel. The Union's petition to revoke that subpena was granted. A copy of a prior contract between the parties mentioned, in effect from September I. 1971. to August 31., 1974, was offered into evidence. That exhibit was rejected and is in the rejected exhibit file. Respondents argued at the heanng and repeat in their brief. that I was in error in quashing the subpena and rejecting the exhibit because they believe that the current Diplomat Hotel contract contains discharge provisions more favorable to the employer than are contained in the contract here involved. and under art. XII, sec. 3, of the contract Respondents are entitled to the benefit of the more favorable provisions. The expired Diplomat Hotel con- tract provides (and Respondents assert they have every reason to believe the same is carried over into the current Diplomat Hotel contract) as follows: Article Il l-Discharge Section . The Employer shall have the nright to direct and control its employees. The Employer shall have the right to discharge any em- ployee, which action shall not be subject to contest or review. The Union shall have the right to confer with the Employer in behalf of any discharged employee. The Employer will provide all of its employees with appropriate copies of the Rules and Regulations covenng employ- ees. Section 2. No employee shall be discharged because of Union Activities. In the event of a claim being made that an employee has been dis- charged because of such activities, such matters shall be submitted to arbitration in accordance with the grievance machinery contained herein as hereinafter provided for and the provisions contained herein. As I have found, the issue in this case is Respondents' motive in terminating the returning sinkers. On the facts I have for the reasons stated found that the terminations here were, with few noted exceptions, discriminatorily mo- tivated. That being the case, nothing in the Diplomat Hotel contract could make the discriminatory terminations lawful. Hence the provisions of the Diplomat Hotel contract are irrelevant to any issue in the case. For that reason the subpena was revoked and the exhibit rejected. I find no reason to change my rulings at this time. would have to work, the fact remains that she voluntarily terminated her employment. 2. Miguel Melendez worked at (Country Club as a butcher. He participated in the strike and picketed the ho- tel. The morning of January 19 he went to the hotel at 6 a.m.. but security refused to admit him because his name was not on the list of those to work that day. Melendez then told the guard that he only wanted to pick up his tools, and the guard escorted him to the kitchen for that purpose. Me- lendez collected his tools, left the premises, and has not returned. I find that he voluntarily terminated his employ- ment. 3. Libertario Jordan worked at Beach as the head bar- boy of a staff of four. He participated in the strike and picketed the hotel. returning to work on January 17. During that day Jordan was told by his supervisor. Tonny Caanes. that there were too many employees, that two barboys would have to be laid off, and asked Jordan for his recom- mendation as to which two should be selected. Jordan said that he would think about the matter, and he talked to Caanes the following day. The next day Jordan told Caanes that he felt it was improper for him to make any recommen- dation in the area, but that he had been planning to retire in a few months and he would just do it now. In this way if Caanes would select one man to be laid off, the full reduc- tion would be accomplished. Caanes agreed, and the matter was concluded that way. Jordan, I also find. voluntarily abandoned his employment. 4. Pablo Dominquez worked at Beach as head saladman. He participated in the strike and picketed the hotel. He returned to work on January 18. After working 2-1/2 hours he was told by the chef to make certain salads. Dominquez admits that he refused to do as the chef asked, saying that his job was to decorate salads and not to make them. Dominquez also admits that the chef told him that unless he did as he was told he would be fired, and that he there- upon gathered his personal belongings and left the prem- ises. I find that Dominquez either quit voluntarily or was discharged for cause. 5. Frank Tomil worked for Country Club about 4 months prior to the strike as a houseman under Supervisor Sillen. He participated in the strike and picketed the hotel. After the strike he was recalled and worked January 18 and 19. He was scheduled to work January 20 but telephoned Sillen saying he had car trouble and could not come in. Sillen insisted that Tomil had to come to work because the crew was already one man short. but Tomil insisted that he could not make it. Finally, Sillen said, "just forget the whole thing, come in tomorrow and get your check. I can't put up with this any longer." On the basis of Tomil's own testimony I find that he was discharged for cause. b. A Beau Rivage As related supra (sec. A,7(b)), Rivage concedes that none of its four employees who struck that hotel was recalled following execution of the contract except Frank Marcucci who, although recalled on or about January 18 or 19. was terminated on January 21. For reasons now stated I find and conclude that all four of these employees were discrim- inatorily terminated. 603 DECISIONS OF NATIONAL LABOR REI.AFIONS BOAR[) Treating first the three employees who were not re- called,9 it is clear that Rivage, as a member of association. is bound by all the commitments made by the latter on behalf of its employer-members in the bargaining negotia- tions. It is undisputed that association agreed. on behalf' of all its members, that all strikers (other than in excepted areas not involved here), would be recalled to their respec- tive jobs. It is also undisputed that upon conclusion of the strike none of the three here involved was recalled by Rivage. In fact, Colbert and Green both went to the hotel after the strike ended and requested reinstatement and were told that no work was available to them, although the hotel was then in full operation. This established a prima Jicie case for the General Counsel, and the burden of evidence shifted to Respondent to prove that the failure to recall the strikers was due to some legitimate and substantial business justification. See Restaurant Association of the State o(! Washington, Inc., etc., 190 NLRB 133, 139 (1971). Respon- dent introduced no evidence of business justification. Ac- cordingly, the General Counsel's primafacie case must pre- vail. Turning to the case of Marcucci, the evidence shows that he had worked at Rivage for 13 years. In that period he was never reprimanded nor was his work ever criticized. Mar- cucci was the only one of three bartenders tojoin the strike. and during the strike Rivage hired a replacement for him. On January 18 after the strike ended Marcucci asked to be returned to his job, but this request was refused with the statement that Rivage had no need for his services. Mar- cucci complained to the Union about the refusal of Rivage to give him work, and later that day the hotel recalled Mar- cucci to work 'm but on January 21 terminated him. The reasons given by Comanagers Byrne and Stein for the ter- mination of Marcucci are not exactly in accord. Stein testi- fied that Marcucci was not qualified but gave no details to support that conclusion. Byrne testified that after his recall Marcucci's attitude left much to be desired, that he was quite sullen and could not get along with his fellow workers. Like Stein, Byrne gave no details tending to support his stated conclusion. As set forth supra (sec. A,7(b)), I do not credit either Stein or Byrne, and I find that the alleged misconduct of Marcucci was simply a pretext seized upon to give his discharge an aura of legitimacy. What the total evidence shows is that a theretofore satis- factory employee is suddenly discharged without prior no- tice or warning promptly after the employee had partici- pated in a strike against his Employer, and that during the strike the Employer hires a replacement for him. These fac- tors are among the classic indicia of a discriminatorily mo- tivated discharge, and the inference is even stronger when it is found, as I have in the instant case, that the stated reason for the discharge does not stand up under scrutiny. As the Court of Appeals for the Ninth Circuit stated the principle in Shattuck Denn Mining Companoy v. N.L.R.B., 360 F.2d at 470: If he [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is 99 Mary Colbert, Sally Green. and Mae Summers. '° The record does not explain why the hotel changed its mind. Appar- ently. there was some conversation between the Union and the hotel. another motive. More than that, he can infer that the motive is one that the employer desires to conceal an unlaTwful motive at least where, as in this case, the surrounding facts tend to reinforce that inference. Accordingly, assuming that Marcucci was in fact fully reinstated to his job on January 19. as Rivage committed itself to do--an issue I need not decide I find and con- clude that the discharge of Marcucci on January 21 was motivated by the fact that Marcucci had engaged in a strike against Rivage and hence violated Section (a}(3) and ( I ) of' the Act. 4. D[efenses as to strikers not recalled In addition to the strikers recalled and subsequently ter- minated, a substantial number of strikers were either not recalled or if recalled were not restored to their former jobs. Respondents contend they acted lawfully with regard to these strikers. The strikers involved in this phase of the case may be divided into five broad categories, which will be considered in the order stated. 1. Strikers who did not communicate with Respondents to indicate a desire to work and were treated as having abandoned their employment. 2. The employees whose jobs were allegedly eliminated. 3. The six coffee shop employees at Country Club who left work the morning of January 17. 4. The 36 employees that picketed Beach the afternoon of January 17. 5. The six employees discharged for alleged picket line misconduct. a. The alleged joh ahandonment Respondents concede that during negotiations they agreed and committed themselves to recall all strikers ex- cept those in two categories previously mentioned. Respon- dents admit, however, that there were some employees who did not communicate with them regarding employment and with whom they made no effort to communicate, simply treating such employees as having "resigned" or "quit" their employment because they did not report for work. The identity of the strikers falling into this category is not entirely clear in the record, not was the evidence fully de- veloped to show why or under what circumstances the strik- ers did not communicate with the hotels. In my view, Respondents' agreement to recall all strikers not in the excepted categories imposed an obligation on them to make a reasonable effort to contact all the strikers that were to be recalled and make an offer of reinstatement. The failure to do so constituted discrimination proscribed by Section 8(a)(3). See Restaurant Associaton, o'the State of' Washington, 190 NLRB 133: Iamb-We stern, Inc.. 170 NILRB 1692 (1968).10' '01 To the extent that it may become necessary at some future time to identitf the strikers invol ed in this categor. i e. olers of reinstatement or computation of hackpa,, this may be deterred to the compliance sage oI this proceeding. or the time being it will suffice Io Irea them a included in the class of those found to have been terminated in violation tl Sec. (aX3) iof the Act and entitled to the Renied ol reinstatement with hackpa 604 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION b. Jobs allegedly eliminated Respondents contend that pursuant to the agreement reached during negotiations the jobs of certain strikers were eliminated, and for that reason Respondents were not re- quired to provide those strikers with employment.l? The exact jobs Respondents claim to have eliminated are not entirely clear from the record, Although Levine spoke of other employees whose jobs were eliminated, according to General Counsel's Exhibits 11. 32. and 33,10' only the fol- lowing seven strikers allegedly had their jobs eliminated and were not recalled: Manuel A. Avilla, window washer: Rolando Avilla, window washer: Miguel Cebey, coffee shop and kitchen steward; Sergio DeArmes, silver cleaner: Octavio Diaz, window cleaner; Pedro Ortez, window cleaner; and Aurilio Riverun, room service captain. This record leaves no room for doubt, and I therefore find and conclude, that none of the aforementioned em- ployees had his job eliminated, and termination and was in each instance discriminatorily motivated. As to Manuel Avilla, Rolando Avilla, Octavio Diaz, and Pedro Ortez, all employed as window cleaners, the evidence shows that dur- ing the strike Respondents Country Club and Beach con- tracted the window cleaning out to a service company. and after the strike the arrangement was continued. Thus. the work still exists and is being performed. Respondents sim- ply unilaterally and without notice to or bargaining with the collective-bargaining representative arranged to have the work performed by nonunit people. The Supreme Court's decision in Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964), makes it clear that such ac- tion by an employer violates Section 8(a)(5) of the Act. and that in such cases the Board may appropriately order re- spondent to resume the contracted out work, reinstate the employees who performed that work, and make them whole for the net wages lost. I find such to be the appropriate remedy here, and my recommended Order will so provide. No contracting out is involved in the case of Miguel Cebey, Sergio DeArmes, and Aurillio Riverun, who worked as coffee shop kitchen steward, silver cleaner, and room service captain, respectively. The evidence shows that the work performed by these employees prior to the strike is still being performed; it is just being performed by other employees of the hotel. This is not job abolition. It may be that the volume of work was reduced following the strike so that fewer employees were needed to do the work. If such was the case each hotel had the right to reduce force to the number of employees it needed for its operations. But no such showing was made by Respondents. "2 Testifying as a witness, Keiler stated that the agreement was that the hotels would return all strikers to their former jobs except those working in departments that were closed until such time as the department reopened and those whose jobs had been eliminated. This is in accord with all other witnesses who testified on the subject. With respect to eliminated jobs Keiler states in his brief (p. 6) that the agreement was that "strikers need not be returned if their jobs were eliminated or subcontracted out," citing the tran- script at pages 5659-60. The transcript shows no reference to contracting out, nor is there any other evidence to establish that the parties agreed that work contracted out should be regarded as an eliminated job Accordingly, I find that the agreement of the parties covered only those jobs which were in fact eliminated. O1 These are lists prepared by the Doral personnel office. purporting to show the action it took against each employee in the unit. When the General Counsel established, as he did. that Respondents had agreed that all strikers other than those in the expected categories would be restored to their former jobs, and that they failed to do so, he established a prima facie case, the burden of evidence shifted to Respondents to establish that the failure to recall the strikers was due to some legitimate and substantial business justification, and the burden of proving justification is on the employer. See Restaurant Association of the State of Washington, 190 NLRB 133, 139. The evidence detailed above, I find and conclude. does not establish that the jobs of these seven employees were in fact eliminated. Hence Respondents have failed to carry their burden of evidence, and the Gen- eral Counsel's prima facie cast must prevail. I so find and conclude. c. Coffee shop emplovees who left their jobs As detailed supra (sec. A,5(b)), the six employees in- volved in this incident reported for work on the morning of January 17, pursuant to instructions from their Employer. After so reporting they were told by their supervisors that seniority practices formerly followed would no longer pre- vail; that the practice of adding 15 percent to the check of a guest who failed to leave a gratuity would no longer be followed: and that the employees had no seniority. no con- tract, and no union to protect them. After some discussion the group told the department head that if he was not going to abide by the contract they were going to the union hall to find out why. All six employees then left the hotel. This occurred between 6:30 a.m. to 8 a.m. It is plain that this action by the employees constituted concerted activity for mutual aid and protection, and in support of that activity they engaged in what Respondents call an abandonment of their jobs; the activity was, in fact, a strike against their Employer.? The authorities make it clear that termination of an employee for having engaged in such activity violates Section 8(a)(1) of the Act unless the conduct was for some reason unprotected. See N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964); N.L.R.B. v. Wash- ington Aluminum Company. Inc., 370 U.S. 9 (1962). Respon- dents' defense to this aspect of the case is that (I) the six employees "quit"; (2) their conduct violated the no-strike clause in the contract; and (3) even in the absence of such contract provision was unprotected. I find no merit in these contentions. As to (1), the issue is whether these employees left the hotel on January 17 as strikers or as workers who had "quit" their jobs. That question must be answered by ascer- taining the intent of the employees as evidenced by their entire course of conduct. See Grismac Corporation, 205 NLRB 1108, 1117-18 (1973). Consideration of the entire record convinces me that the employees left the hotel as strikers and not as persons who had voluntarily abandoned their employment. In the first place, although it is possible that six employees may simultaneously agree to perma- nently terminate their employment, it would be most un- usual for them to do so in that fashion. Normally, employ- m04 Sec. 501 of the Act defines the term "strike" as including "any strike or other concerted stoppage of work by employees ... and any concerted slou- down or other concerted interruption of operations by employees." 605 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees leave en-masse because they feel aggrieved about some condition of their employment. Whether their grievance has merit is, of course, beside the point. See N.L.R.B. v. Wash- ington Aluminum Co., supra; Bob Henry Dodge Inc., 203 NLRB 78 (1973). Second, the employees went directly to the union hall. Their doing so is wholly inconsistent with any idea that they were permanently abandoning their em- ployment but entirely consistent with the proposition that they left the hotels to concertedly protest conditions they, rightly or wrongly, thought were not in their interest. Fi- nally, each of them returned to the hotel and asked to be assigned work, a request also inconsistent with any idea that they had terminated their employment but consistent with the view that they left the hotel only to protest what they felt were improper conditions of work. Each such re- quest was denied by Respondent. Regarding the contention that the conduct violated the "no strike" clause in the current contract, it appears to be a complete answer there was no contract in effect at the time the employees left the hotel. The prior contract had expired September 16, 1976, and was no longer in effect. The new contract was not executed, and as I have found, did not become effective until about II a.m. January 17. Hence, there was no contractual provision in effect that prevented the employees from taking strike action (and there is no evidence that anything they did was in any way violent or unlawful), to protest what they regarded as regarded as un- fair conditions of employment. To support the contention that the conduct of these em- ployees would be unprotected even in the absence of a no- strike clause in the contract, Respondent cites N.L.R.B v. P. B. and S. Chemical Co., 567 F.2d 1263 (4th Cir. 1977). That case, in my view, does not support Respondent's posi- tion. So far as relates to the instant case, all the court there held was that employees who voluntarily sever their em- ployment do not thereby engage in protected concerted ac- tivity within the meaning of Section 7 of the Act. Accordingly, I find and conclude that by terminating the six employees involved in this incident Respondent Country Club violated Section 8(a)(3) and (I) of the Act. able to function only to a limited degree with the replace- ments they could hire. In this posture. obviously a period of time was needed for the air to clear and the dust to settle. Respondents, for their part, did not attempt to achieve that objective. On the contrary, their precipitous action in im- mediately discharging this group strongly suggests a dis- criminatory motive. They knew that many employees came to hotels the morning of January 17 expecting to go to work and were not permitted to do so. Although Respondents were not required to give the excluded employees any ex- planation and had an agreement with the Union to place the strikers in their jobs over a reasonable period, the fact remains that not one word was said by way of explanation to the employees milling about the premises or to their Union. Many who were admitted to work were told that they had no seniority, no contract, and no union to protect them. One would have to be naive to believe that word of all this did not reach employees on the outside, and it is easy to understand that this conduct by Respondents is of a kind reasonably calculated to provoke employees into tak- ing some action by way of protest. Additionally, there is strong indication that Respondents raise the issue of this picketing in bad faith. As pointed out in my discussion of the 8(a)(3) violations, it is reasonable to infer, as I do, that had these employees not been terminated for picketing they would have been laid off as not qualified. because on the entire record I am convinced that Respon- dents' mode of operation was to keep all the replacements, pick from among the returning strikers the number needed to complete their staffing requirements, and terminate the remainder as not qualified. Accordingly, I find and conclude that under the circum- stances here involved these employees did not, by reason of the picketing here involved, lose their right to reinstate- ment. On the contrary, having committed themselves to re- store all of the strikers to their former jobs, and having failed to do so with respect to 36 strikers here involved Respondents discriminated against them in violation of Section 8(a)(3) and (1) of the Act. See Restaurant Associ- ation of the State of Washington. 190 NLRB 133, 139-40. 1 so find and conclude. d. Picketers at Beach I have found supra (sec. A,5(c)) that for some period dur- ing the hours between 2 p.m. and 4 p.m. on January 17 the 36 employees listed in Appendix B hereof picketed Beach for some period of time. Respondents contend that this picketing was a clear violation of the "no strike" clause in the contract (art. II, sec. 2), which bars striking or picket- ing "for alleged or actual unfair labor practice" and af- forded legal justification for the discharge of each partici- pant in the picketing. Although I have found that each of the 36 persons named in Appendix B picketed as indicated, and that such picketing occurred at a time that the current contract was in effect, I nonetheless find and conclude that under the circumstances here involved such picketing did not provide Respondents with justification for discharging those employees. It must be remembered that the strike lasted 3 weeks, with virtualy the entire work force of over 1,300 persons in the four hotels here involved on strike, and the hotels were e. Alleged picket line misconduct As detailed supra (sec. A,8(a-f)), Respondents discharged six employees for allegedly engaging in picket line miscon- duct. With respect to three of these, the alleged misconduct occurred well before January 17. '0' The remaining three' "6 occurred on January 17. The evidence shows, as heretofore found, that during the bargaining negotiations Respondents agreed to reinstate all strikers except those employed in closed departments and whose jobs had been eliminated. The two exceptions mentioned were all Respondents asked for and all that were agreed to. Respondents were well aware that the conduct complained of had occurred-they had photographs of it in their files, and their security per- sonnel testified that they observed it-but during the bar- ' Garcia, December 28, 1976; Ortega, December 30, 1976; and Gonzalez. January 5. I" Pasiuk. Gil, and Barraso. 606 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION gaining sought no reservation concerning the recall of strik- ers who had allegedly engaged in picket line misconduct. Nor during that period did Respondents notify the employ- ees involved that they were discharged for unlawful ac- tivity. In these circumstances it is appropriate to conclude, as I do, that Respondents condoned and forgave the im- proper conduct in which these employees engaged. See Af. Eskien & Son, 135 NLRB 666 (1962), enfd. 312 F.2d 108 (2d Cir. 1963); E. A. Laboratories, Inc., 86 NLRB 711 (1949); enfd. 188 F.2d 885 (2d Cir. 1951); The Colonial Press, Inc., 207 NLRB 673 (1973).107 The cases of Pasiuk, Gil, and Barroso, however, do not show any condonation by Respondents. The conduct of each of these occurred on January 17, and promptly upon the happening of the event each was discharged. At least the conduct of Gil and Barroso here involved is more than a trivial moment of animal exuberance. Rather, their con- duct falls within the forbidden area of violent conduct cal- culated to inflict physical injury. The Pasiuk case, I find and conclude, is different from that of Gil and Barroso. Although the language used by Pasiuk was certainly not that of the Victorian parlor, under the circumstance I am convinced that it was not intended by Pasiuk or reasonably understood by Lillian to be a threat of physical violence. Rather, I am convinced and therefore find and conclude that the statement was no more than a spontaneous outburst of indignation that an em- ployee of much less seniority than she was put to work ahead of her.'? Accordingly, I find and conclude that by denying rein- statement to Pasiuk, Garcia, Ortega, and Gonzales Respon- dents violated Section 8(aX3) and (1) of the Act, but that the denial of reinstatement to Gil and Barroso was justified because of their picket line misconduct. 5. The alleged 8(a)(5) violations The complaint alleges that Respondents violated Section 8(a)(5) of the Act by their conduct in the following five specific areas: I. Unilaterally and without notice to or bargaining with the Union changing wages, hours, and terms and conditions of employment of unit employees. 2. Unreasonably restricting and impeding the Union's contractual right of access to the hotels for the purpose of conferring with employees concerning their wages, hours, and conditions of employment. 10 I am not unmindful of the fact that the Court of Appeals for the Eighth Circuit disagreed with the Board's conclusion and declined to enforce its Order in Colonial Press. See 509 F.2d. 850 (1975). Although no petition for certiorari was filed, the Board has not acquiesced in that decision. Hence it is my duty "to apply established Board precedent which the Board or the Supreme Court has not reversed." Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 773 (1957); Iowa Beef Packers, Inc., 144 NLRB 615 (1963). 'I Respondents contend that N. L R. B. v. Pepsi Cola Company of Lumber- ton, Inc., 496 F.2d 226 (4th Cir. 1964), where the court denied enforcement of a Board Order to the extent that it required reinstatement of a striker who told an employee trying to enter a struck plant to work that he knew where the employee lived and if he entered the plant he would come and get him. requires denial of reinstatement to Pasiuk. In my view, that case is not appo- site here. But even if it is I am required to follow the decisions of the Board. See fn. 107, supra. 3. Failing and refusing to provide the Union with re- quested information relevant and necessary to the Union in performance of its collective-bargaining obligation. 4. Frustrating the arbitable process by insisting that the arbitrator selected must be a member of the Florida Bar, and that each grievance be arbitrated separately and before a different arbitrator. 5. Reneging on and repudiating the strike-settlement agreement to recall and reinstate all strikers. a. Unilateral changes There can be no doubt that where, there exists a collec- tive-bargaining agreement between an employee and a union, "[ujnilateral action by an employer without prior discussion with the Union does amount to a refusal to nego- tiate about the affected conditions of employment." See N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369, U.S. 736. 747 (1962).'? The proposition is subject to the qualifications, however, that. where the parties as a result of their bargaining have entered into a contract which contains a provision dispositive of a particu- lar issue or issues, neither party violates his bargaining obli- gation by refusing to bargain further on the matter upon which the parties have so agreed. In such a case the parties are said to have "bargained away" or "abandoned" all po- sitions contrary to their agreement. For, as the Board said in International News Service Division of The Ilcarst Corpo- ration, 113 NLRB 1067. 1071 72 (1955), reaffirmed in Inter- national Shoe Company, 151 NLRB 693 (1965: To hold otherwise is to encourage one party to a bar- gaining agreement to resort to Board processes to upset the terms of a contract which the other parts to the agreement had every good reason to believe had been stablized for a definite period. In the instant case the parties negotiated, and on January 17 executed a written document memoralizing in its article III, section 4 certain agreements reached as a result of their negotiations. There is no claim by either party--indeed such a claim if advanced would have no support in the record-that the contract they signed in this regard does not truly reflect the agreement they reached. The agreement vests in the hotels the right to make. continue, and change reasonable rules and regulations as they may deem neces- sary and proper for the conduct of their business, and that they might do so "notwithstanding any past practice or precedent." The various unilateral changes admittedly made by Respondents, which the General Counsel chal- lenges, have not been shown to be unreasonable or inappro- priate for the conduct of the business of Respondents. nor do they in any way conflict with any other provision of the contract. The contract language thus must be regarded as a very broad management prerogative provision which, when given its plain meaning, removed the subjects here involved from the scope of collective bargaining during the term of *' See also Order of Railroad Telegraphers, et a v. Chicago & orh Westr- ern Railway Co., 362 U.S. 330 (1960), where the United States Supreme Court held that a decision to eliminate jobs was a mandatory subject of bargaining, concerning which the employer was required to bargain with the bargaining representative before taking any action to implement that deci- sion. 607 DECISIONS 01: NATIONAL LABOR RELATIONS BOARD the contract. See Harve's' Wagon Wheel, Inc., 236 NLRB 1670; LeRoy Machine Co., Inc., 147 NLRB 1431 (1961), and the cases there cited. Accordingly, I find and conclude that all the allegations of the complaint in the areas indicated should be dismissed, and I shall so recommend. b. Restricting access to hotels Respondents' conduct with respect to the Union's con- tractual right of access to their premises, I find and con- clude, violated Section 8(a)(5) and (1) of the Act. The facts summarized supra (sec. A2(a)), show that prior to the strike the practice was for union agents to visit the hotels when- ever they desired and move about freely in any area of the hotel." ° When Keiler spoke with Reynolds about changes in this provision he made only two complaints about the then existing practice: (I) Schiffman's practice in coming to a hotel manager's office and conducting himself improperly, and (2) union agents going into work areas of the hotels and interfering with employees in the performance of their du- ties. There was no indication that the parties contemplated withdrawing the Union's contractual right of visitation completely. Nor was it the intention of the parties to leave such right of visitation completely to the whim of the hotels. Respondents' action here not only had the purpose of try- ing to keep the Union away from their nonunion employees and embarassing the Union in the eyes of those employees who were members of the Union, which violated Section 8(a)(Xl1) of the Act (see Harvey's Wagon Wheel, Inc.. 236 NLRB 1670), but also is the unilateral action which Section 8(a)(5) proscribes. See N.L.R.B. v. Katz, 369 U.S. at 747. On the facts here Respondents' conduct cannot be deemed lawful on the ground that the action was a matter of management perogative under the "past practice or prec- edent" language of article III, section 4. Respondents' right to act unilaterally in promulgating and enforcing reason- able rules and regulations is expressly limited to those which are "in no way inconsistent with any of the provi- sions of this Agreement." Thus, any attempt to totally ex- clude the Union from the hotels is contrary to article III, section 3. Nor can Respondents justify their conduct here by the argument that they were, in the language of the contract, restricting the Union's visitation rights to "union members." In the first place, as I have found, Respondents, in effect, excluded the Union from contacts even with union members. Second, the contract between the parties is not a "members only" agreement but one which grants the Union recognition as the bargaining agent for "all of the employ- ees . . . in the bargaining unit," with the usual statutory exclusions. The statute to one side, this provision imposed upon the Union the obligation to act for all employees. Finally, it is quite apparent that although the contract uses the words "union members," the parties meant "unit mem- bers." The parties quite clearly placed that construction on '0 Although the hotels were not legally required to agree to such visitation the fact is that they did so agree, and while the 1968 contract provided that such visits should be prearranged, occur during reasonable hours, in desig- nated areas, and not during the busy period of the day so as to interfere with the orderly operation of the hotel's business, the uniform practice for many years was, as indicated above, that these restrictions were not insisted on by Respondents. the 1968 contract."' and the current contract should be so construed. Accordingly, I find and conclude that by denying the Union access to the hotels under the circumstances dis- closed by this record Respondents Country Club, Beach, and Carillon violated Section 8(a)(5) and () of the Act."2 c. Failure to provide information Respondents' failure tantamount to a refusal to provide the Union with relevant and material information I also find and conclude was in violation of Section 8(a)(5) and (1) of the Act. As found supra (sec. A-10), by letters dated January 26 and February 23 union attorney Coleman wrote each of the Doral hotels requesting information dealing with the recall and subsequent termination of the former strikers and with respect to alleged unilateral changes made by Respondents in terms and conditions of employment."' Although Beach provided some information, it did not sub- mit all that was requested, and Country Club and Carillon provided the Union with no information whatsoever. Nei- ther at the hearing nor in their brief do Respondents offer any justification for their failure to supply the requested information. The information sought by the Union was plainly relevant to the issues then pending between the Union and Respondents and was of a nature that would be of use to the Union in carrying out its statutory duties and responsibilities. The duty of an employer to supply such information to the collective-bargaining representative of its employees is well settled. See N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149 (1956); N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967). Indeed, in ascertaining whether information sought by a union must be supplied by an employer, virtually the only function of the Board is to determine "the probability that the desired information was relevant, and that it would be of use to the Union in carry- ing out its statutory duties and responsibilities." (See Acme Industrial, supra at 437.)"4 d. Frustrating the arbitration process Additionally. I find and conclude that by insisting that only a member of the Florida Bar could serve as an arbitra- "I In my view, this is made plain by several factors. In the first place, when the contract was entered into in 1968 apparently all employees were union members. Certainly all were at the beginning of the strike, so that union members and unit members, in practical effect, were the same. Second, during the entire time that the contract was in effect Respondents did noth- ing to indicate that they regarded the Union's right of visitation as limited to conferring only with union members. Third, in negotiations Respondents neither said nor did anything to indicate to the Union that they sought any change in this aspect of the contract. On the contrary, all Keiler asked for was protection from what he regarded as the improper conduct of Schiffman and the practice of union agents interfering with employees in the perform- ance of their duties. Both of these objectives, the parties agreed, would be achieved by insertion of the phrase "with the employer" following the word "prearranged." Finally, in this posture the Union had every right to assume that the remainder of the sec. would, in practice, be interpreted as in the past. "I There is no evidence that Rivage engaged in any conduct of this type. Hence, Rivage is not included in this finding. I" The nature of the information sought is detailed in the above-refer- enced sec. hereof and need not be repeated here. 14 There is no evidence that Rivage was asked or declined to provide information. Hence, it is not included in this finding. 608 SOUTHERN FLORIDA HOTEI. & MOTEI. ASSOCIAII()ON tor, and that each terminated employee be processed as a separate grievance before a different arbitrator Respon- dents Country Club, Beach. and Carillon violated Section 8(a)(5) and (I) of the Act.'' The applicable facts are sum- marized supra (sec. A 10), and need not be repeated. Both positions I find were taken with the intent and purpose of frustrating the arbital process and emharassing the Union in the eyes of the employees. The contract itself at article XI is silent on the matter of qualifications of the arbitrator, other than that he must be selected from a list provided the parties by the Federal Me- diation and Conciliation Service. Insisting that the arbitra- tor possess some additional qualification imposes an unwar- ranted impediment upon the arbital process unless it is a condition required by law. Certainly, there is no Federal statute imposing any qualification of the nature Respon- dents sought to impose here. Nor does Advisory Opinion 74 I so hold. In my view, Advisory Opinion 74 I does no more than state that in the view of the committee one who participates in the trial of an arbitration case in the State of Florida as counsel for one of the parties who is not a mem- ber of the Florida Bar and where there is no Federal pre- emption engages in the unauthorized practice of law. The opinion does not state that the arbitrator who hears such a case is also engaged in the unauthorized practice of law. In my view Keiler's conclusion, which he calls "a logical ex- tension" of the committee's ruling, is in reality a non sequi- fur." 6 Additionally, I find and conclude that an arbitration proceeding pursuant to a collective-bargaining agreement between an employer and a union who are required by the Act to bargain with one another, as is the case here. is a federally preempted area and not subject to regulation by the Florida Bar. Keiler's insistence that each termination be arbitrated separately and before a different arbitrator. I am convinced and therefore find and conclude, had no purpose other than to frustrate and render nugatory the entire arbital process and constituted not only a refusal to arbitrate but also a refusal to bargain in violation of Section 8(a)(5) and I ) of the Act as well. The last sentence of the second paragraph of article XI of the contract reads, "The arbitration shall be held within sixty (60) days of the occurrence of the griev- ance." By Respondents' own testimony, the terminations here involved took place in the period between January 20 and 22. The discussion between Keiler and Coleman took place on March I 11. By insisting that each termination be handled separately and before a different arbitrator Keiler could be certain. in view of the approximately 375 termina- tions involved, that the vast majority of the arbitrations could not be held within the 60-day period required by the contract and could be defeated on that ground alone. It is true Keiler did offer to permit all the terminations to be treated as one case and heard before one arbitrator but only on condition that Coleman agree that the sole issue I There is no evidence that any grievances involving Risage were filed or that it took any position on this issue. "'The situation is not too different from the practice prevailing n he United States Supreme Court. Although one seeking to practice elore that Court must be a member in good standing of its bar, neither the (Constitution nor any statute of the United States requires that a Justice of that Court he a member of the bar or even that he be a lawyer. before the arbitrator would be the validit of article V. sec- tion 2 of the contract. This. in practical effect. offered noth- ing. Were that the sole issue before the arbitrator the an- swer would obviousls have to be in the affirmative, for the bare language of the pro ision standing alone is plainly lawful. But because in the abstract provision is lawful does not mean that it ma, be used as the means b which discrimination is accomplished, which I am convinced is what happened here. Accordingly for the reasons stated. I find and conclude that by frustrating and negating the arbital process Respon- dents violated Section 8(a)(S) and (I) of the Act. e. Repudiation o /ic srike stt'ltment igrt'enlnt The General Counsel contends that b terminating the returning strikers under the circumstances and in the man- ner heretofore stated Respondents repudiated the strike set- tlement agreement and thereby violated Section 8(a)(5) of the Act. Having found that b terminating the returning strikers Respondents violated Section 8(a)(3) and ( I) of the Act. it is unnecessary to decide whether such conduct also violated Section 8(a)(5). Either wa. The Remnedyc would be the same. See N.L. R. . v. Burnup & Sims,. Inc.. 379 .S. 21. Upon the foregoing findings of fact and the entire record in the case I state the following: C()N(CI SI()NS ()1- LAW I. Respondents are employers within the meaning of Section 2(2) of the Act, and each is engaged in commerce within the meaning of Section 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. B the conduct set forth in section B-2(a) hereof Re- spondent Rivage interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Sec- tion 7 of the Act and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(I) of the Act. 4. By the conduct set forth in section B-2(b) hereof Re- spondents Country Club. Beach, and Carillon interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed them by Section 7 of the Act and thereby engaged in and are engaging in unfair labor prac- tices proscribed by Section 8(a)( I ) of the Act. 5. B terminating the strikers listed in Appendixes C. D). and E attached. because of their assistance to and support of the Union, Respondents Country Club. Beach. and Car- illon discriminated against said strikers in regard to their hire, tenure of employment, and the terms and conditions thereof, discouraging membership in a labor organization and thereby engaged in and are engaging in unfair labor practices proscribed by Section 8(a)(3) and ( I ) of the Act. 6. By failing to recall strikers Mary ('olbert. Sally Green, and Mae Summers and terminating Frank Marcucci be- cause of their assistance to and support of the I rnion Re- spondent Rivage discriminated against said strikers in re- gard to their hire. tenure of employ ment, and the terms and conditions thereof. discouraging nmemrnbership in a labor or- ganization. and thereby engaged in and is engaging in un- 609 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fair labor practices proscribed by Section 8(a)(3) and (I) of the Act. 7. By unreasonably restricting and impeding the Union's contractual right of access to the hotels, failing and refusing to supply revelant and material information requested by the Union and necessary to it in the performance of its collective-bargaining obligation, and by frustrating the ar- bitration process, all as heretofore found, Respondents Country Club. Beach, and Carillon refused to bargain with the Union as the collective-bargaining representative of the employees in an appropriate unit and thereby engaged in and are engaging in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Except to the extent herein specifically found that Re- spondents engaged in unfair labor practices the General Counsel has failed to establish by a preponderance of the evidence that Respondents engaged in the other unfair la- bor practices alleged in the complaint, and all such allega- tions should be dismissed. THE REMEDY Having found that Respondents interfered with, re- strained, and coerced their employees in the exercise of rights protected by Section 7 of the Act, I shall recommend that they be required to cease and desist from such conduct and take the affirmative action set forth below designed and found necessary to effectuate the policies of the Act. The unfair labor practices found being of a character which go to the very heart of the Act, an order requiring Respon- dents to cease and desist from in any manner infringing upon employee rights is warranted. See N.L.R.B. v. Entwis- tie Mfg. Co., 120 F.2d. 532 (4th Cir. 1941); California Lin- geries Inc., 129 NLRB 912 (1960). I shall so recommend. Having found that Respondents Country Club, Beach, and Carillon discriminatorily terminated the individuals listed in Appendixes C, D, and E, respectively, and that Respondent Rivage discriminatorily refused to recall Mary Colbert, Sally Green, and Mae Summers and terminated Frank Marcucci, I shall recommend that Respondents sev- erally be required to offer immediate, full, and uncondi- tional reinstatement to their aforesaid respective employees to their former jobs or, if such jobs no longer exist to sub- stantially equivalent ones, without prejudice to their senior- ity and other rights, privileges, or working conditions and make each of them whole for any loss of wages they may have severally suffered by reason of the discrimination against them by paying to each a sum of money equal to the amount he or she would have earned from the date of the discrimination against him or her to the date of Respon- dents' offer of reinstatement, less the net earnings during that period. The backpay so provided for shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon as provided in Isis Plumbing and Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). It will also be recommended that Re- spondents be required to preserve and, upon request, make available to authorized agents of the Board all records nec- essary or useful in determining compliance with the Board's Order or in computing the amount of backpay due as herein provided." Upon the foregoing findings of fact, conclusions of law, and the entire record in the case and pursuant to Section 10(c) of the Act I hereby issue the following recommended: ORDER" A. Respondents Southern Florida Hotel & Motel Asso- ciation and its employer-members, The Estate of Alfred Kaskel d/b/a Carillon Hotel, The Estate of Alfred Kaskel d/b/a Doral Hotel and Country Club. and The Estate of Alfred Kaskel d/b/a Doral Beach Hotel, Miami Beach, Florida, their respective officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Telling employees that they no longer have the pro- tection of a union, no union contract, no seniority, and that the hotels could assign work in any fashion they see fit. (b) Telling employees that their Union had sold them out, that during negotiations their union leaders had held out for a payoff, and that any union that would sign a contract such as Local 355 signed must be crazy. (c) Failing or refusing to permit authorized representa- tives of Hotel, Motel Restaurant & Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO (herein Union), to come upon the premises of the Employer, after reasonable notice, for the purpose of conferring with their employees in the unit for which the Union is the recognized collective- bargaining representative provided, however, that all such visits with unit employees be confined to nonwork areas of the hotels and conducted during the nonwork time of the visited employees. (d) Insisting that multiple grievances filed under the con- tract be tried as separate grievances before different arbitra- tors and that only members in good standing of the Florida Bar be permitted to serve as an arbitrator. (e) Failing or refusing, upon request. to provide the Union with available information or material which is rel- evant and useful to the Union in the performance of its duties as the collective-bargaining representative of their employees in the unit for which the Union is the collective- bargaining representative. "' In its brief the Union requests that it be awarded its litigation expenses. including attorney's fees, incurred in this proceeding, as well as the dues and fees lost to it under the checkoff provision of the contract by reason of Respondents' improper termination of the large number of workers from their payroll. Neither the General Counsel nor Respondents address this question in their respective briefs. In my view, the facts of this case do not meet the cnteria established by the Board for the award of litigation expense and lost dues and fees. See Heck's, Inc., 215 NLRB 765 (1974}: King's Ter- race Nursing Home and Health Facility, 227 NLRB 251 (1976); Capitol Rec- ords, Inc.. 232 NLRB 228 (1977); California Blowpipe & Steel Companr. Inc, 218 NLRB 736 (1975), enfd. 543 F.2d 416 (D.C. Cir. 1976); Creurz Plating Corporation, 172 NLRB I (1968). Accordingly, the request is denied. '' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 610 SOUTHERN FLORIDA HOTEL & MOTEL ASSOCIATION (f) Unilaterally subcontracting unit work or otherwise abolishing jobs in the appropriate unit without prior bar- gaining on that subject with the aforesaid Union as the collective-bargaining representative of the employees in the said unit. (g) Encouraging or discouraging membership in Local 355 or any other labor organization of its employees by discharging, laying off, failing to recall, or in any other manner discriminating against any employee in regard to the hire, tenure, or any other term or condition of employ- ment. (h) Discriminatorily withholding accrued vacation pay from any employee to encourage or discourage membership in a labor organization. (i) In any other manner interfering with. restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist a labor organization. to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Offer to each employee listed in Appendixes C, D. and E, attached, respectively, immediate, full, and uncondi- tional reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent ones, without preju- dice to their seniority or other rights and privileges or work- ing conditions. and make each of them whole for any loss of wages suffered in the manner stated in the section hereof entitled "The Remedy." (b) Admit to their respective establishments, after rea- sonable notice that admittance is desired, authorized agents of the Union for the purpose of conferring with their em- ployees who are members of the unit for which the Union is the recognized collective-bargaining representative, pro- vided that all visits with employees be confined to nonwork areas of the premises and take place during the nonwork time of the visited employees. (c) Upon request, provide the Union with available in- formation or material which is relevant and useful to it in the performance of its duties as the collective-bargaining representative of the employees in the unit it represents. (d) Forthwith pay to Estralia Espino the accrued vaca- tion pay due under the contract executed January 17, 1977; provided, however, that nothing herein shall be construed as requiring the repayment of any vacation pay heretofore paid to Estralia Espino. (e) Reinstate all work performed by unit employees which was subcontracted or otherwise terminated on or af- ter December 25, 1976, except to the extent that such action was taken after good-faith bargaining with the aforesaid Union. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary or useful in determining compliance herewith or in computing the amount of backpay due. (g) Post at the premises of Doral Hotel and Country Club, Doral Beach Hotel, and Carillon Hotel, Miami Beach. Florida. copies of the attached notices marked "Ap- pendices F, G. and H." respectively" Copies of said no- tices, on forms provided by the Regional Director for Re- gion 12, after being signed by an authorized representative of the hotel in which the notice is to he posted, and by an authorized representative of the hotel association, shall be posted as herein provided immediately upon receipt thereof, and be so maintained for a period of 60 consecutive days thereafter, in conspicuous places. including all places where notices to employees of that hotel are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered. defaced, or covered by any other material. (h) Notify the aforesaid Regional Director, in writing. within 20 days from the date of this Order, what steps Re- spondents have severally taken to comply herewith. B. Respondents Southern Florida Hotel & Motel Associ- ation and its employer-member. Beau R. Corp. d/b/a Beau Rivage Hotel, Miami Beach. Florida, their respective offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling employees that the hotel was disappointed in them because they were active or participated in the picket- ing of the hotel. (b) Encouraging or discouraging membership in a labor organization of its employees by laying off, failing to recall. or in any other manner discriminating against any em- ployee in regard to the hire, tenure, or any other term or condition of his or her employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join. or assist labor organizations. to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Offer Mary Colbert, Sally Green, Mae Summers, and Frank Marcucci immediate, full, and unconditional rein- statement to their former jobs or, if those jobs no longer exist to substantially equivalent ones, without prejudice to their seniority or other rights and privileges or working con- ditions and make each of them, severally, whose for any loss of wages suffered in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary or useful in determining compliance herewith or in computing the amount of backpay due. (c) Post at the premises of Beau Rivage Hotel, Miami Beach, Florida, copies of the attached notice marked "Ap- pendix J."'" Copies of said notice, on forms provided by the '" In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." I20 See. fn. 119, supra. 611 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD Regional Director for Region 12 after being signed by an authorized representative of the hotel and of the hotel asso- ciation, shall be posted as herein provided immediately upon receipt thereof, and he so maintained for a period of 60 consecutive days thereafter, in conspicuous places. in- cluding all places where notices to employees of the hotel are customarily posted. Reasonable steps shall he taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the aforesaid Regional Director, in writing, within 20 days from the date of this Order what steps have been taken to comply herewith. Section 4. The Employer may from time to time make. continue and change such reasonable rules and regula- tions as it may deem necessary and proper in the con- duct of its business. The Employer's reasonable exer- cise of judgment in this regard shall he conclusive and binding: provided, however, that such rules and regu- lations are in no way inconsistent with an' of the pro- visions of this agreement. All such rules and regula- tions shall be observed, obeyed and abided by. by all employees, lnotwithstanding altl pat practice or prec- edent. APPENDIX A Note: This is a comparison of relevant contract provisions in the 1968 and the 1977 contracts. Other than article Xl entitled "Arbitration," the contract provisions are identical except that the underscored material did not appear in the 1968 contract, but was added by the 1977 contract. Article XI is completely different in the two contracts. As no arbi- tration issues under the 1968 contract are involved, only the provisions of the 1977 contract in that regard are set forth. Because various contentions are advanced by the parties as to when the 1977 contract became effective, the pertinent portion of article 1, section . of the contract, which deals with that question, is set forth. ,4 rticle I Term This agreement shall become eflective upon execution and shall continue in fi//l fre and eifict. without the right to reopen same Jbr firty-two (42) months from the date of execution, * * * * Article 111 Prohibitions and Reservation of Rights * Section 2. During the term of this agreement, the par- ties are prohibited from resorting to, utilizing, or in any way effectuating strikes, picketing, lockouts, boycotts (primary or secondary), slowdowns, or any other eco- nomic compulsion or sanctions hereinbefore or herein- after devised for the purpose of compelling their de- sired objects. This clause shall bar such conduct for alleged or actual unfair labor practices. It is speciicall agreed that during the term of this Agreement, neither the Union nor it.s members shall have the right to respect any picket line established at any Emplover's place of business. Section 3. Authorized representatives of the union shall be permitted to come upon the premises of the Employer at reasonable hours for the purpose of visit- ing Union members. Such visits shall be prearranged with the Eniployer and take place in designated areas and shall not occur during the busy period of the day in a manner which would interfere with the orderly and smooth operation of the Employer's business. Shop Stewards. ex.ept in emergencies, shall not he per- mitted to conduct union business on work time. Article I -V Discharge of Emploqvees Section I. he Employer shall have the right to dis- charge any employee for just cause. However. all new employees shall be on a thirty (30) day probation, dur- ing which time the Employer may discharge such em- ployee or employees with or without cause and without question or right to review by the Union or the individ- utial employee. The probationa,n period described above shall be thirtyv (.0) working days or employees who are scheduled to work three (3) dies or less per week. Section 2. With regard to all employees who have com- pleted the thirty (30) day probationary period and are subsequently discharged, the Union shall have the right to have a review of such discharge, if in the opin- ion of the Union the discharge is not for just cause and the Union so indicates in writing to the Employer within one (I) week of such discharge. In the event of the inability of the Union and the Employer to arrive at a satisfactory understanding in regard to such dis- charge, if it is timely questioned, then, and in that event, the dispute shall be referred to the Arbitrator under the arbitration procedure hereinafter provided for the settlement of such dispute. Section 3. Among the just causes for discharge of any employee are the following: (a) Drinking or being under the influence of alco- holic beverages or drugs during working hours. (b) Insubordination (c) Dishonesty (d) Fighting on the premises (e) Violation of any houserule or regulation (f) Insolence or lack of courtesy to the Employer or any guest of the Employer (g) Failure to perform the services required by the position held by the employee (h) Lack of proper personal appearance. sanitation and cleanliness (i) Inefficiency 0i) Physical condition which endangers the health of a guest, fellow employee, or the employee himself (k) Failure to report for work, except in the case of established illness, which must be verified by a medical certificate or satisfactory evidence. The above-enumerated list is understood and agreed not to be all inclusive. and the Employer shall have the 612 r SOUTHERN FLORIDA HOTEL. & MOTEL ASSOCIATION right to discharge any employee whose conduct is det- rimental to the welfare of the business interests of the Employer. Section 4. The Employer shall have the right during the slack periods to reduce the number of employees by as many as it may deem appropriate, the Employ- er's exercise of judgment in this regard shall be in- disputable. Article V--Seniority Section I. It is understood and agreed that the senior- ity provision hereinafter contained shall have applica- tion only to permanent employees. An employee is considered permanent only after he or she has served continuously (temporary layoffs of less than thirty (30) days duration excepted) as an employee for one hun- dred twenty (120) days. Section 2. Seniority shall prevail by classifications among qualified employees in the case of layoffs due to reduction in business, provided the senior employee is. in the opinion of the Employer, qualified to perform the available job. In the rehiring of qualified laid-off employees, they shall be rehired in the inverse order in which they were laid off, the last employee laid off shall be the first re-employed, provided that such em- ployee returned to his employment within one () week of the Employer's notification to him (with a copy to the Union) that such employee is being offered re-em- ployment. * * Section 4. Seniority shall continue and be considered unbroken when an employee cannot work because of accident, illness, or childbirth, induction into the Armed Forces of the United States of America. or when granted leave of absence by the Employer, pro- vided, however, that in the case of illness or childbirth. such leaves of absence shall not exceed a period of twelve (12) months. Article XI-Arbitration The grieving part'y shall reduce all grievances to writ- ing. The non-grieving party must receive this grievance within seven (7) days of its occurrence for the grievance to be valid. If the grievance is not resolved by discussion, the griev- ing party must, within twenty-one (21) days after the oc- currence of the grievance, write to the Federal Mediation and Conciliation Service requesting a panel of seven (7) names. The parties shall alternately strike names. with the grieving party strikingfirst, until only one remains, he shall be the arbitrator. The arbitration shall be held within sixty (60) days of the occurrence of the grievance. The arbitrator shall not have the power to modfy, al- ter, or change any of the terms, conditions or provisions or language of the collective-bargaining agreement. Article Xll--Automnatic Termination * . . * Section 3. The Union agrees that if during the term of this Agreement i eters into anTV conltracts with hotels or imotels or i/'an .4rbitrators alt ard or decision i made providing or lower swages, longer hours. or /fr an term.5 and onditions more fiaorable to anr Employer than tlhose described i this Agreemrent, then (antv Emplover memher o'/ this Association sall immediately have tilt, bene/it / such provisions or awaird or decision and ther shall auto- mati(allyi become part /f this Agreement and trupon nro- tice to the Union shall immediatl' become in /ill f/arce tand elffict, .uipersreling anm ' s.vs fnavorable prov.iions of this A.greemient. During the term hereof the Ullion shall promptl provide te A4ssociation with copies ol other ntew conltracts or agreements or Arbitrator's awlards or deci- sion. so hat the A4ssociation ma cmparr such contracts and agreements or award or decision iwith this Agreement to determine whether they are. in /fit, more fclorable. Article lIII AMiscellaneous * . * * * Section 2. o grievances which have arisen between Dcc. 24, 1976, and Jan. ?13, 1977 shall bhe permitted to o o arbitration. Section 3. his document contains all of lt termls, on- ditions. and provisions of the collective -bargaining agrec - mentt, tl..ess modified in writinlg b!v all partie, no wage, term or working condition tnot contained herein may be enored hy one partv against another. APPENDIX B Employees Discharged For Picketing at Beach on January 17 Candad Alles Ester G. Alvarez Margarita Alvarez* Luis Arango* America Arcas Angela Avilas Olga Baylina Seyda Campoalegre Alberto Candelaria Luis Cebey Alice Corbett Mary Corbett Angel Delgado Delia Delgado Alejandro Fernandez Rosa Fernandez Mirian Fidalgo Juan Gomez Bartola Leon Adolfina Lopez Haydee Lopez Ramon Lopez Raimundo Luis Muniz Miriam Orta Rosa Palomino Mercedes Peraza Ismael Perera Eloisa Perrera Gregorio Rayneri Armando Rego Rodriquez Ignacio Scull John Terris* Martha Tunez Raimundo Ubieta Enrique Vega Jose Yanes 'Did not testifN n this proceeding 613