Holiday Inn of Perrysburg

DECISIONS OF NATIONAL LABOR RELATIONS BOARI) Motor Inn of Perrysburg, Inc. d/b/a Holiday Inn of Perrysburg, Ohio and Hotel & Restaurant Employ- ees and Bartenders Union, Local 868, AFL-CIO. Cases 8 CA 9873, 8 CA 9982, 8 CA 10070. 8 CA-10309, and 8 CA-10318 July 2. 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEIMBERS JENKINS AND PNEI.() On December 21, 1978, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief'. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Motor Inn of Perrysburg, Inc. d/b/a Holiday Inn of Perrysburg, Ohio, its offi- cers, agents, successors, and assigns, shall take the ac- tion set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint allega- tions not specifically found herein be, and they hereby are, dismissed. i Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION SIAMENT ()OF TllI1 CASE LEONARD M. WAGMAN, Administrative Law Judge: Upon a charge filed by Hotel & Restaurant Employees and Bartenders Union, Local 868, AFL-CIO, referred to herein as the Union, in Case 8-CA-9873 and subsequent charges filed by the same union in Cases 8 CA 9982, 10070, 10309. and 10318 on various dates in 1976, the General Counsel of the National Labor Relations Board, by the Regional Di- rector of' the Board's Region 8, issued a consolidated com- plaint on June 4, 1976, and a second consolidated com- plaint on September 30, 1976. against Holiday Inn of Perrysburg. Inc. d/b/a Holiday Inn of Perrysburg, Ohio. referred to herein as Respondent, alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)( ). (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. Respondent an- swered, denying commission of' the alleged unlawful con- duct. Pursuant to notice. a hearing was held before me in To- ledo, Ohio, on 22 days during January, February. and March 1977. Post-hearing briefs were submitted by the General Counsel, the Charging Party. and Respondent. Upon the entire record in this case. my consideration of the briefs, and from my observation of the demeanor of the witnesses, I make the following: FINIIN(,S OF FA(I 1. IIFE BUSINSS ()F RSP(ON)EN I Respondent, Motor Inn of Perrysburg, Inc. d/b/a Hioli- day Inn of Perrysburg, Ohio, is an Ohio corporation which operates a motel. restaurant, and bar in a single location at Perrysburg. Ohio. where it provides motel accommodations and engages in the retail sale of food, beverages, and related services. In the course and conduct of its business opera- tions. Respondent annually receives gross revenues in ex- cess of $500.000. Respondent also annually receives goods valued in excess of $6,000 at its Perrysburg. Ohio, facilities directly from points located outside the State of Ohio. Re- spondent admits, and I find from the foregoing commerce data, that Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 1. IIiF l.ABOR )R(iANIZAIION INVOLVED Respondent concedes, and I find, that Hotel & Restau- rant Employees & Bartenders Union. Local 868, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. IIl. IHE UNFAIR LABOR PRA(TI('ES A. Background and Issues In the summer of 1974, Betty Carman, then employed by Respondent as a night dining room waitress, contacted the Union's financial secretary-treasurer, William Parson, re- garding the inception of an organizing campaign. Parsons met with Respondent's night dining room waitresses Kath- leen Richmond. Doris Mullins, Joyce Roberge., and several other employees to begin the organizing campaign. There- after, the Union sought recognition as bargaining represent- ative of Respondent's food and beverage employees from Respondent's director of operations, Donald Loss, Loss de- clined to recognize the Union and suggested an election. Pursuant to a Stipulation for Certification Upon Consent Election in Case 8 RC-971 I, the Regional Director con- 243 NLRB No. 55 280 HOLIDAY INN OF PERRYSBURG. OHIO ducted an election on December 11. 1974, in the following unit: All full-time and regular part-time food and beverage department employees at the [Respondent'sj Perrys- burg. Ohio. facility, including cooks, salad help, dish- washers, porters, waitresses, bartenders, and bus help; but excluding all desk clerks, maintenance employees. housemen, maids, managers, assistant managers, office clerical employees, professional employees, guards, su- pervisors as defined in the Act, and all other employ- ees. The tally of ballots issued after the election showed that of approximately 197 eligible voters, 167 cast ballots, of which 63 were cast for, and 84 against, the Union. The 20 chal- lenged ballots were insufficient in number to affect the out- come of the election. Following the election, the Union filed objections to con- duct affecting the results of the election. In addition, the Union filed an unfair labor practice charge against Respon- dent in Case 8-CA-8823. On May 21. 1975. the Regional Director for Region 8 issued a complaint in Case 8 CA- 8823 alleging that Respondent committed a number of vio- lations of Section 8(a)(1), (2), and (3) of the Act during the preelection period. On July 15. 1975, the Regional Director, at the Board's direction, consolidated the objections in Case 8-RC-9711 with the complaint in Case 8 CA-8823. Two weeks later, Respondent and the Union entered into an in- formal settlement agreement which was approved by the Regional Director. As part of the settlement, Respondent and the Union entered into a stipulation calling for a sec- ond election to be held on September 17. 1975. In the preelection campaign which followed, a group of night dining room waitresses were among the leaders in the Union's organizing effort. After the second election, which took place on September 17, 1975, the tally of ballots showed that out of approximately 151 eligible voters in the unit, 111 cast ballots of which 42 were for the Union, 68 were cast against the Union, and I was challenged. The pleadings as amended present the following ques- tions: I. Whether Respondent violated Section 8(a)(3) and (1) of the Act on February 23, 1976, by imposing more onerous conditions of employment in the form of a limited or ex- perimental captain system upon its night dining room per- sonnel because they supported the Union. 2. Whether Respondent violated Section 8(a)3) and (I) of the Act on April 5, 1976, by implementing a revised captain system and thereby constructively discharged night dining room personnel because they exercised their right under Section 7 of the Act' to support the Union.' Sec. 7 of the Act reads: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and shall also have the nght to refrain from an)y or all such activi- ties except to the extent that such right may he affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in section 8(a)3). 'At the hearing on February 3, 1977. I granted the General Counsel's motion to amend the complaint In Case 8CA-9982 and the consolidated 3. Whether Respondent violated Section 8(a)(I) of the Act by threatening employees with discharge if they did not perform satisfactorily under the captain system. 4. Whether Respondent violated Section 8(a)( l of the Act by threatening employees with economic reprisals, in- cluding discharge, if they support the Union. 5. Whether Respondent violated Section 8(a)(I) of the Act by interrogating employees regarding their union ac- tivity and sentiment. 6. Whether Respondent violated Section 8(a)(I) of the Act by photographing employees engaged in picketing on the Union's behalf. 7. Whether Respondent violated Section 8(a)(1) of the Act by promulgating rules preventing or prohibiting em- ployees from wearing union pins and distributing union lit- erature during nonworking time and in nonworking areas of Respondent's facility. 8. Whether Respondent by refusing on and after April I, 1976. to recognize and bargain with the Union as the exclu- sive collective-bargaining representative of its employees in an appropriate unit violated Section 8(a)(5) and (I) of the Act. 9. Whether Respondent imposed split shifts, reduced work time, and early morning hours upon banquet cooks Elizabeth Hollers and Delores Nercurion and construc- tively discharged Delores Mercurio in violation of Section 8(a)(3) and (1) of the Act. B. The Captain Ssteim I. Facts Prior to the inception of the so-called captain system, Respondent operated its night dining rooms with waiters, waitresses, and buspersons. The waiter or waitress took the patron's food and drink order and served it. The buspersons assisted the waiters and waitresses by setting tables, supply- ing them with water and butter, brining in trays from the kitchen, clearing tables after meals were completed, stock- ing the work areas with flatware, glasses, and other neces- saries. and removing trays of dirty dishes and utensils from the dining rooms to the kitchen. Waiters and waitresses col- lected the tips given by their patrons and usually paid 10 percent of these receipts to the buspersons assisting them. Respondent's records covering 1975 show that the average hourly wage of a waiter or waitress during that period was $1.43 and that the hourly average amount of tips was $1.19. Respondent's director of operations, Donald J. Loss, be- came aware that Respondent's restaurant operations were losing money beginning with the spring of 1975. Loss feared that his position as Respondent's chief operating officer was in jeopardy. As he pointed out in his testimony "the people I work for were not accustomed to operating without mak- ing a profit. I'm a minority stockholder and I serve at the will of the Board of Directors." Loss examined Respon- dent's restaurant operations and saw the waiter-waitress- complaint in Cases 8 CA 9873 and 8-CA 9982 by deleting allegations that the implementation of the modified captain system on and after April 5, 1976. imposed reduced compensation or loss of compensation upon Respon- dent's night dining rx)m personnel. 281 DECISIONS OF NATIONAL LABOR RELATIONS BOARD busperson system as a substantial weakness in Respon- dent's restaurant operations. Loss developed his reorganization plan during the au- tumn of 1975. In mid-December, Loss told then Night Din- ing Room Supervisor, Mary Heppeny, about the contem- plated captain system. Happeny envisioned a harmful impact of the captain system upon her job and the jobs of the night dining room personnel. She telephoned a few of the night dining room waitresses, and, while crying because of her fear, explained her understanding of the contem- plated captain system. Heppeny testified that coupled with this fear was the thought that Respondent was implement- ing this new system as a response to the union activity of the night dining room waitresses. And, indeed, she ex- pressed that sentiment to the several waitresses she spoke to. In January 1976, Loss's subordinate in Respondent's management, Innkeeper Chip Dennison called Happeny into his office for a discussion of the captain system. He told her that she would cease being a dining room supervisor and become a captain in the new system. Again it crossed Happeny's mind as she listened to Chip Dennison that the Company was using the captain system to eliminate the night dining room waitresses jobs in reprisal for their union activity. Happeny also testified that after she had observed the captain system in action and had participated in it as a captain, she no longer suspected that the system's objective was to eliminate the night dining room employees. Donald J. Loss focused attention on night dining room operations in a memo to Chip Dennison on the subject of Respondent's 1976 food, beverage, and inn operations. The memo announced that in 1975, Respondent's restaurant op- erations enjoyed food sales of $1,813,971.14 "which was the largest year in [Respondent's] history." The memo pointed out that Respondent's food sales operations would show "a $40,000 to $50,000 loss for the year." Loss announced plans to reverse this unfavorable trend and achieve a profitable operation by reorganizing food operations effective Febru- ary 1. One of the innovations mentioned in this memo was "a dining room service concept known as the 'captain's pro- gram.' " Loss described the "captain's program" as follows: The basic concept is that each captain is assisted by 3 or 4 waitresses such (sic) as a captain in each of our smaller dining rooms and two in the main dining room. The captains take all orders fbr food and drink and supervise the serving of all orders by the waitress. The captains are responsible for the training and supervis- ing of the waitresses assigned to them. Bus help is eliminated as the waitresses do their own resets. The captains are paid $2.00 per hour and receive 1/3 of all gratuities received in their stations. Sunday, we would not use the captains program because of the limited menu. There are some very positive plus' (sic) to this type of nite (sic) dining room service that will help us reach our goals this year. Later in January, Donald Loss sat down with High and spelled out his design of the contemplated captain system to Assistant Innkeeper George High and directed him "to put the system together and get it going for him within three weeks." High, who became Respondent's night dining room supervisor on February 1, 1976, drafted an outline of the system for the most part in accordance with Loss's design. Under Loss's original concept, a captain would lead a team of waiters and waitresses without buspersons, collect the tips, and give two-thirds to the waitresses. High modified that scheme by adding buspersons and requiring the waiters and waitresses to collect the tips and distribute 30 percent to their respective captains and 10 percent to assisting buspersons. High also discussed the system with Innkeeper Dennison who approved it after changing some of its word- ing. On February 5, Respondent called a meeting of night dining room personnel and distributed copies of George High's written description of the captain system to the as- sembled employees. After the meeting, night dining room waitress Joyce Ro- berge contacted Union President William Parson and at his instruction mailed a copy of George High's plan to him. Roberge complained to Parson that giving 30 percent of the tip to a captain and 10 percent to a busperson would de- prive her of 40 percent of her income. The captain system began on an experimental basis in one of Respondent's three night dining rooms, the Wince Cellar, during the week of February 16. Respondent adopted the same system in all three of its night dining rooms beginning on February 23. Gloria Harrigan, a night dining room waitress employed by Respondent since Sep- tember 30, 1974, quit on February 23, 1976. Her reason for quitting was the captain system. During the week of February 23, Joyce Roberge and other night dining room waitresses, who now were working under the captain system asked that the captains provide them with slips stating that, the waitresses had properly divided up their tips between the captains and buspersonnel in accordance with the system. The captains refused to give the requested slips and George High supported that refusal. In the course of the discussion, Joyce Roberge commented that she believed that this captain system was installed in response to union activity. Although George High was pre- sent when she made the comment, he made no reply. Ro- berge's hostility toward the captain system, centered on the distribution of tips, and reflected the sentiments of many other night waitresses, involved in the initial captain sys- tem. On the evening of February 18, former night dining room waitresses Kathleen Richmond and Mary Ladd, visited Re- spondent's inn where they encountered Donald Loss. Loss, while hosting a party in the Wine Cellar, saw the two for- mer employees and met them in the hall outside the Wine Cellar. In the conversation which ensued, he explained that Re- spondent was installing a new captain system in its night dining room. He detailed the manner in which the system would work. The conversation then turned to the reason why Richmond and Ladd had quit their employment soon after the Union lost the 1975 representation election. Loss expressed resentment toward the two former night dining room waitresses because they had voted for the Union in that election. Loss said he did not want the Union coming in and telling him what to serve or how to serve it. He also complained about the cost of the election to Respondent both in expenses and loss of restaurant business. He warned that if the Union came in he would "shut the doors." He 282 HOLIDAY INN OF PERRYSBIIRG, OHIO remarked that he felt free to express displeasure with their support for the Union cause, now that the'v were no longer employees. oss asserted that he knew that all of the night waitresses had voted for the Union and that their efforts were responsible for the inception ofthe Union's organizing campaign. Loss declared that he had enough money to sat- isfy his needs for the rest of his life and if the Union got in he would end his connection with the operation and get out of the business. Mary Ladd asked him if his motives for installing the captain system was "to get rid of the girls, either get rid of them or make them mad enough to guit." oss laughed and did not respond with a yes or no. Instead, he remarked "we had to do something to make service better." ie added that he only had "4 more months until they tried to start getting in again." At this point, he stated that he was very disap- pointed that Mary Ladd and Kathleen Richmond had sup- ported the Union. lie stated that he "took it personally. lie advised them that "if you didn't like the way things were run, instead of going to vote for the Union. you could just quit."' On another occasion in late February or early March Donald Loss, in a conversation with Night Dining Room Supervisor George High, overheard by night waitress Glen- dine Bernt and cashier Judy Beebe, said that High had four months to eliminate the "old girls." Loss, added that he was unconcerned about how High accomplished that objective and that Respondent would "back him 100 percent."4 There were other manifestations of Respondent's concern about the Union's presence. I find from High's testimony that during January and February 1976. he and Loss occa- sionally discussed the Union's previous organizing attempt in August and September 1975. The two also talked of' the possibility of a third attempt later in 1976. one year after 3 When Donald Loss first testified about this conversation, on the second day of the hearing, he gave a short version which he offered as "all I recall basically about the conversation to my recollection." On the last da) of the hearing, after Ladd and Richmond had testified Loss provided a longer v5er- sion, including remarks addressed to Ladd to the effect that the captain system was not motivated by the Union. From the later embellishment and his testimony as to what he "probably" said at another point in the conver- sation, it appears that Loss was more interested in shielding Respondent than in providing his full recollection. I also noted that Loss left much of Ladd's and Richmond's testimony undenied, particularly that portion de- scribing Loss's attitude toward Ladd and Richmond's union sentiment. In contrast to Loss. Ladd and Richmond seemed to be providing their full recollection. Accordingly, my findings were based upon Ladd and Rich- mond's testimony. However as Ladd appeared to have better command of details I have principally relied upon her version. ' Donald Loss denied Bernt's version of the conversation. However. in denying Bernt's version, Loss appeared to be giving a cropped version of his remarks to High. ending with a denial that he said "four months." On cross- examination. High could not corroborate Loss's denial. Instead. he corrobo- rated much of Bernt's testimony. Further. Bernt's version was corroborated by the credible testimony of employee Glona Harrigan which, although hearsay, was given without objection. Hamgan testified that in February. Bernt came to her and said that she had overheard a conversation in which Loss told High. "that he had a certain amount of time to get rid of us." I was also impressed that notwithstanding her uncertainty about the precise date of this incident Bernt not only testified as to her recollection of the remarks, but also gave a vivid and reasonable account of the shocked reaction which she and Beebe exhibited at hearing Loss' remarks. As I was thus impressed that of all the witnesses involved including Beebe, Bernt was the most consci- entious about trying to search her memory for details. I have credited her account of this incident. the last campaign. George High. also :onceded that as early as the beginning of March 1976, the thought crossed his mind that a possible reason for Respondent's use of the captain system was the elimination of the night dining room waitresses because of their union activity. High also testi- fied that on occasion, Innkeeper ('hip Dennison discussed that possibility with High. Under the captain system which Respondent inaugurated on a full scale in its night dining room operations on Febru- ary 23, the hourly wages of the waiters and waitresses re- mained the same as they were under the waiter-waitress- busperson system. However, waiters and waitresses were required to share 30 percent of their tips with the captains and 10 percent with the buspersons. I find from the testimons of Respondent's witness Mary Happen) that prior to the inauguration of the February 23 captain system, Chip D)ennison. and George High in sub- stance warned the night dining room employees that they must chose between working under the captain system or quitting. According to George High's credited testimony and that of Mary' Happeny, who served as a captain in both the February and the April captain systems, the night wait- resses resented the required sharing of tips with the cap- tains. At one point during the week of February 23 night waitress Joyce Roberge told George High that she believed that Respondent was imposing the captain system "because of union activity ... ." High did not respond. In his testi- mony, High attributed the breakdown of February 23 cap- tain system to the tip-splitting requirement. On the evening of March 8, one of the captains failed to report for work. As there was no replacement for the absent captain, Respondent decided to return to the waiter-wait- ress-busperson system in the affected dining room. When the waitresses in the two dining rooms headed by captains learned that their colleagues in the third dining room would not be required to split tips with the absent captain, they threatened a work stoppage. In the interest of maintaining night dining room operations, Respondent's management abandoned the captain system that night. At a meeting on March 9, Respondent's management criticized the captain system's operations. Loss scolded those responsible for implementing the system. Mary Hap- peny responded, telling loss that the waitresses resented sharing tips. Whereupon, Donald Loss undertook a revision of the captain system. The captain system's spectre stirred up union activity among Respondent's employees. The Union renewed its or- ganizing efforts. High conceded that during January, Feb- ruary, and March he noted an increased wearing of union pins among the night dining room waitresses. On an occa- sion in January or February. Chip Dennison told a group of supervisors that "they were still wearing those damn union pins." Respondent's food and beverage director. Neal Kovacik testified that during February and March he had heard rumors regarding a union organizing campaign among Respondent's employees and that he had discussed those rumors with other members of management. Kovacik also conceded that in February and March, Donald Loss was apprised of these rumors and that Chip Dennison raised the topic of union activity at staff meetings. During 283 DECISIONS OF NATIONAL LABOR RELATIONS BOAR) the same period, Mary Happeny became aware that union authorization cards were ciculating among the employees. She immediately conveyed this to George High. Finally, on cross-examination George High conceded that in January, February, and March 1976 Respondent's management, in- cluding Loss and Dennison, were aware "that the people who were very pro-union, were in the night dining room department .... " Director of Operations Loss monitored the captain sys- tem from February 16 until March 8, when the system was terminated. In his opinion, the night waitresses were not cooperating or giving the captain system "an opportunity to work." In his view, "there was massive resistance from the waitresses." He noted from the comments of customers that the night dining room waitresses were dissatisfied with the captain system and were disgruntled. As Loss saw it, the waitresses' attitude fostered absenteeism and slowdowns in the kitchen. Loss was at Respondent's facility on March 8, when the night waitresses refused to take the floor. That night, the management decided to abandon the captain system and revert to the waiter-waitress-busperson system in the face of employee objections. Against this back drop, Loss designed what has been referred to in the record as the second cap- tains program. On March II1 Innkeeper Chip Dennison announced the second captains program to a meeting of about 15 night dining room waitresses and 8 or 9 busboys. Present also were Donald Loss, George High, and then director of food and beverage operations, Betty Timko. Dennison read from a prepared memorandum entitled "Change in Night Dining Room Job Classifications." He read: Effective April 5th, we are refining our night captains dining room service program in a continued effort to improve our service and quality control. To accom- plish this, we will have two new job classifications in the night dining room and two existing classifications will be eliminated. The "new job classifications" were described as dining room "night captain" and "service assistant." The captain's hourly rate would be $1.10. The service assistant's rate would be $3 per hour. The two classifications to be elimi- nated were night dining room waitress and night dining room bus. The memorandum described the captain's job as follows: The captain ... will be assigned a station in the dining room and this station will be staffed by three or four service assistants .... The captain will be available to work six nights per week, Monday through Saturday. Dennison went on to describe the qualifications, du- ties, and responsibilities of the captains as follows. 1. THE CAPTAIN MUST BE TWENTY ONE YEARS OF AGE. 2. THE CAPTAIN MUST HAVE HAD EXTENSIVE FOOD SERVICE EXPERIENCE AS WELL AS A BACKGROUND IN SU- PERVISION. 3. THE CAPTAIN WILL BE RESPONSIBLE FOR THE TRAINING AND SUPERVISION OF HIS SERVICE ASSISTANTS ASSIGNED TO HIM. 4. AI. FOOD (HE(KS WILl. B ISSUEDI) FROM IHE CASHIER TO THE CAPTAIN AND THEY WILL. BE RESPON- SIBI.E FOR THEIR PROPER DEPOSIIION. 5. HE CAPTAIN WI.I. SIGN FOR AND RE('EIVE Al.I. (HARGE IPS RE('ORDEI) IN HIS SATION. 6. THE ('APTAIN WILL RC('IIVE AI. ('ASII IIPS EARNEI) IN IlIS SIATION. 7. AS A I'IPPED EMPI.OYEE 11 IS IHIe (CAPIAIN'S RE- SP()NSIBII.IY 1() DI)EARE A AI. (GRAltIIIlES IN A MANNER CONSIS IAN1 WITH FEI)DRAI. & SAIE LAWS. 8. THE (CAPIAINS W'II.I ROIAIE DINING ROOM SIA- lIONS EA(H WIEEK Al TIlE IIRE(C]ION ()F IEIR IMMEDI- ATE SUPERVISOR, THI Nl(iH DININ(i ROOM SUPERVISOR 9. ite ('CAPTAIN WII. IAKE A DRINK AND FOOD ORDERS IN 111EIR SAI'ION AND SUPERVISE IlS SERVI(CE ()F THESE ORDERS. 10. IF IHE (CAPTAINS WISHI 10) GIVE HEIR SERVICE ASSISTANTS A PORTION OF HEIR (iRAIUITIES EARNED IN THEIR STATION, HAT IS THEIR OWN DECISION. II. IF THE ('APTAINS ARE DISSAIISFIEI) WIIl THtie PERFORMANCE OF ANY OF THEIR ASSI(INED SERVICE AS- SISTANTS, THEY Wll.l. NOTIFY THEIR NICiIIT I)NING ROOM SUPERVISORS W!0 WILL FOI..LOW 1'THE COMPANY WARNING PROCEDURE. Similarly, Dennison, reading from his prepared statement, described the job description and qualifications for the ser- vice assistants as follows: THE SERVICE ASSISTANTS . . . WIL1. BE ASSIGNED TO A CAPTAIN . .. AND THE CAPIAIN ... IS THEIR IMMEDIATE SUPERVISOR. THE QUAI.IFICATIONS, DUTIES, AND RE- SPONSIBILITIES OF IHE SERVICE ASSISTANTS ARE LISTED BELOW. 1. THE SERVICE ASSISTANTS MUST BE TWENTY ONE YEARS OF AGE. 2. THE SERVICE ASSISIANT WILI. ASSIST THE CAPTAIN IN COMPLETING( DRINK AND FOOD ORDERS. 3. THE SERVICE ASSISIANTS WILL PERFORM REQUIRED SIDEWORK AS DETERMINED BY THE NIGHT DINING ROOM SUPERVISOR UNDER THE SUPERVISION OF THEIR CAP- TAIN. 4. THE SERVICE ASSISTANTS WILL ROTATE STATIONS WEEKLY WITH THEIR CAPTAINS. 5. IT IS THE SERVICE ASSISTANTS RESPONSIBILITY TO DECLARE ANY GRATUITIES GIVEN TO THEM BY THE CAP- TAIN IN A MANNER CONSISTANT WITH THE FEDERAL AND STATE LAW. After Dennison described the new positions, George High concluded the meeting. He advised the employees that from March II until April 4 Respondent would use the "old waitress-waiter type service" to permit the planning and organizing of the revised captain program. George High called attention to the following application which was attached to the memorandum, copies of which were distributed to the assembled employees: Sign your name and please make a check mark next to one of the below statements and return to George High by Monday, March 15, 1976. Your name ----- 1. --- I understand that my present job classifica- tion "Waitress", "Waiter", and/or present "Captain" 284 HOLIDAY INN OF PERRYSBURG, OHIO position is being terminated April 4th, and a new job classification "Service Assistant" is being implemented April 5th. I have read all information given and totally understand the service assistant's job responsibilities, wages, and duties. I agree to conform to the above job requirements and wish to have a transfer April 4th to the position of "Service Assistant." 2. -- I have read all information given and totally understand the "Revised Captain's Position", job re- sponsibilities, wages, and duties, and wish to apply and interview for that position. 3. ---- I am not interested in either position and will be leaving the Company's employ as of---(date). After assuring his audience that either he or other members of management would be glad to answer questions, High ended the meeting. In his testimony, Donald Loss admitted that the elimination of the bus personnel and the job de- scription for service assistants together indicated that the busing duties would fall upon the service assistants. Ac- cording to Loss, those duties included cleaning and reset- ting dining room tables and carrying trays of dirty dishes to the kitchen, where they scraped them in preparation for washing. In his testimony, George High conceded that un- der the second captain's system, service assistants would perform the busing tasks. The immediate reaction of the night dining room wait- resses to the new program was negative. Waitress Gene- vieve J. Paternite decided at the meeting that she would have no part in the new program. She read over the job descriptions and the requirements for captain and service assistant. As she had no supervisory background, Paternite could not qualify for the position of captain. She did not apply for the service assistant job because of the uncer- tainty of her tip income plus the added burden of busing duties. Paternite did not turn in an application to Respon- dent. Night waitress Doris Mullins who also attended the March I meeting reacted similarly. Mullins studied the revised captain system and the job preference form, and was repelled by what she read. "The way I read it and understood it when I did read it is that there just wasn't anything on there for me." She credibly explained in her testimony that she did not consider herself qualified for the captain position because she did not have any supervisor or management experience. Mullins rejected the service assist- ant position as being below her dignity. Mullins had been a waitress for 22 years. She looked upon busing work as de- meaning and resented the inter position of the captain be- tween herself and her customer. Night dining room waitress Glendine Bernt considered the proposed captain system and did not fill out the job preference form. Bernt's reason was that she was ineligible to apply for the captain position because she did not have a supervisory background. As for the service assistant job, she credibly testified: "I just felt it was a glorified bus kid's job, and I just didn't want it. I didn't like the idea of the captain picking up my tips that I worked for." She continued: "I would have lost all personal contact with my guests and I think the first contact with your guests is very important." Night waitress Betty Cox also refrained from completing the job preference form. Her first ground was that she did not have the requisite supervisory experience to be a cap- tain. Second, taking into account her 30 years experience as a waitress and her 3 years at Holiday Inn, Cox resented the inconvenience of reapplying for what amounted to her for- mer job as a waitress. Finally, she saw that elimination of bus personnel would impose additional work upon the ser- vice assistants. Cox did not wish to face that burden. Night waitress Margaret Rollins, who had no supervisory background decided that the Company's captain program added up to her being converted into "a glorified bus girl." She did not apply. Night dining room waitress Joyce Rechtine did not apply for work under the second captains program. She lacked a background in supervision. She declined to apply for the service assistant position because she feared that her cap- tain might deprive her of all possible tips. Rechtine also testified that under the new system she envisioned more onerous work due to the absence of busing personnel. Night waitresses Inez Fallon, Patricia Roberts, and Florena Tay- lor similarly testified credibly as to their reasons for not applying for positions in the second captains program. By March 15 only two members of the night dining room staff, Mary Happeny, and night waiter, Souheil J. Kabbara, filed job preference forms with Respondent. Both applied for captain's positions. In an effort to obtain sufficient em- ployees to implement the new captain system, Respondent placed an advertisement for service assistants in "The To- ledo Blade" on March 17, 1976. The advertisement stated that the service assistant's wage would be $3 an hour and invited inquiries to George High. From responses to the advertisement and other recruitment, Respondent obtained a sufficient number of applicants. In addition to Kabbara and Happeny, as of April 5, Respondent's night dining room captains were Chris Timko Kozeni, Nitja McGrane, and Dwight Monroe. On April 4, the last day before the revised captain system went into effect, the night dining room staff designated as department 14 in Respondent's records numbered about 45 including Happeny and Kabbara. Of this group, only Hap- peny and Kabbara remained on the night dining room staff on and after April 5. Night waitress Joyce Roberge's last work day was on March 6, 1976. From March 9, until the fourth week in May 1976, Roberge was ill. Respondent carried her on sick leave from March 8 until August 22, 1976. On June 5, Ro- berge contacted Donald Loss and requested reinstatement. Loss informed her of the new captain system. Loss ex- plained to Roberge that the captains were authorized to collect the tips. He also told Roberge that service assistants were being paid $3 an hour. Roberge decided that she could not qualify for the captain's position. Roberge told Loss that she knew that none of the other night waitresses had qualified for the captian's position and that she recognized that her 9 years with Respondent did not qualify her for the captian's position. After telling Roberge that none of the other waitresses applied for the job of service assistant and that Respondent was obliged to advertise for employees, Loss asked her to apply for either of the jobs. Roberge did not make any application. On June 10, Roberge read a copy of the job descriptions and the job qualifications for captain and service assistant from the material distributed 285 I)f[-'ISIONS O() NATIONAI IABOR RLA'I IONS BOARKI by Respondent on March II. Robherge concluded that she qualified only for the service assistant job. She did not ap- ply because she felt "like a glorified busgirl." Night waitress Kathy Klein, an alleged discriminatee, came to work on April 2 and quit that same evening. I he record is unclear as to the reason or reasons she gave for quitting. However, it does not appear that she applied for a position on the second captain's program. Between March I I and April 4, Night Dining Room Su- pervisor George igh held a meeting with the night bus personnel at which he told them that their job classification was being terminated as of the end of business on April 4. He offered to "do everything" he could to place them in new jobs at Respondent's inn. Two of them requested and received his assistance in obtaining new jobs. Similarly on or about March 28, High assured busboy Tony Lynott, who was not at the meeting, that he would help Lynott obtain a job in Respondent's banquet department. However, follow- ing this conversation Lynott did not hear from High again. 2. Analysis and conclusions The question presented here is whether the so-called cap- tain system, first from February 23 until March 8, 1976, and later in a revised form on and after April 5. 1976. was designed to get rid of a group of known or suspected union supporters. I find, contrary to Respondent's contention, that both captains programs were designed to bring about that unlawful purpose. The record makes plain that Direc- tor of Operations Donald Loss, the chief architect of the captain system at least suspected that the night dining room waitresses had provided the Union with strong support. His remarks to former employees Ladd and Richmond on the evening of February 18 revealed his intention of using the captain system to eliminate the night dining room waitress before a union organizing drive which he and High ex- pected would begin in late summer. Loss' hostility toward employee support for the Union surfaced in this same conversation. He censured Ladd and Richmond for supporting the Union in the most recent rep- resentation election. He complained that the election had been costly to Respondent. Loss also warned that he would close Respondent's restaurant operations if the unit em- ployees voted for the Union. This warning revealed union animus and was also violative of Section 8(a)( ) of the Act. Loss' remarks to George High in late February or early March again reflected an intent to rid Respondent of the night dining room waitresses and thus weaken the Union's expected organizing campaign. In this conversation, Loss reminded High that he had 4 months to achieve the desired result. High's silence in the face of Joyce Roberge's ex- pressed belief that Respondent was imposing its captain system "because of union activity" suggested that he agreed with her. Indeed, High conceded that such a thought crossed his mind in early March. The initial captain program implemented on February 23, represented the combined thinking of Director of Op- erations Loss, Innkeeper Dennison, and Night Dining Room Supervisor High. However, the impetus for the sys- tem and most of its design came from the director of opera- tions. who wanted to get rid of the night waitresses before the Union could begin a new election campaign. I have little doubt that Loss. an experienced member of Respondent's management, knew how to motivate employ- ees. lie was well aware that the night waitresses whose hourly wages were no more than $1.50. were jealous of their tips. Such sentiment was exemplified by night waitress Ro- berge's complaint to the Union when infirmed of Respon- dent's first captain program. Nor do I doubt that Loss was unaware of the waitresses' attitude toward busing. Yet Loss's initial captains program required the waitresses to give one-third of their tips to a captain and imposed busing duties upon them. Given Loss' stated desire to get rid of these same waitresses his captains program provided the means of' fulfillment. These two conditions were likely to persuade the night waitresses to abandon their jobs. Ilowever. Hligh added buspersons to the plan. This weak- ened the intended impact. Though displeased with the tip- ping arrangement, all but one of the night waitresses re- mained in Respondent's employ. Though this displeasure finally welled up on March 8 and disrupted the first cap- tains program, the desired result was not attained. On March 9. Loss took full charge of revising the captain system. His desire to eliminate the night waitress guided his hand. Loss made three major revisions of the February 23 captains program. He eliminated the bus personnel. changed the designation of the waiters and waitresses to service assistant, and provided that the captain would col- lect all tips and decide whether a service assistant would get any portion and the amount of such portion. Given the grumbling which attended the first program, it was likely that the night dining waitresses would be repulsed by these revisions. In apparent recognition of this likelihood. Loss added a job application to his handout. At first glance, the applicant was free to select either the captain position or the service assistant position. However. as Loss probably recognized, few if any of the waitresses were likely to have the supervi- sory background apparently required for selection as one of the few captains. Thus, only the unattractive position of' service assistant would be available. Failure to apply for that position within four days of the announcement meeting meant automatic termination on April 4, 1976. On March II. Respondent revealed the new plan in stark detail. Absent was any attempt to allay fears of economic loss, which the assembled waitresses might envision. Nor did Respondent attempt to soften the impact of the removal of bus personnel and the imposition of busing upon the service assistants. Loss' captain program and the handout had the desired effect. None of the night dining room waitresses had super- visory background. Thus, none of them applied for the cap- tain's position. Respondent's portrayal of the service assis- tant's position repelled the night waitresses. They found themselves confronted with a loss of status and income if they accepted a service assistant's position. Accordingly none of them applied for the position. Loss accomplished his purpose. On April 5, when the second captain system went into effect, Respondent opened its night restaurant operations free of the night dining room 286 HOLIDAY INN OF PERRYSBURG, OHIO waitresses who had provided the Union with a strong base of support. All had been replaced. Respondent attempted to show that the employees mis- conceived the intent of the second captain program. Re- spondent's comptroller, Steven M. Suelzer, offered as testi- mony an array of figures to show that even under the first captain system, which began on February 23, the waitresses suffered no loss of income. Further, counsel for Respondent attempted to elicit testimony from the night waitresses that prior to the promulgation of the second captain program they had performed some of the so-called "sidework" which was- in larger part performed by the bus personnel. How- ever, such attempts to portray the system in a favorable light came too late to assist Respondent's cause. For no such attempt was made in February or in March 1976 when Respondent was presenting its captain programs to the night waitresses. Instead, Respondent was content to let the waitresses fear the worst. Nor did Respondent give them hope of change in the system. Indeed, Innkeeper Chip Dennison and Night Dining Room Supervisor George High notified the employees on two occasions that they could either ac- cept the captain system as is, or leave. Thus, Respondent attempted to present the employees with hard choices: Ei- ther accept what appeared to them as a downgrading of their jobs as waitresses and a concommitant loss of income, or quit the Company's employ. I find that such warnings were attempts to add to the coercive pressure created by Respondent's implementation of the first captain program which I find was designed to persuade the waitresses to quit Respondent's employ. This first attempt failed. Only Gloria Harrigan quit. The remaining waitresses viewed the first system as demeaning because it interposed a captain be- tween them and their patrons. They also saw a threat to their income because the captain took 30 percent of their tips. Nevertheless, they came to work. Their grumbling and protest on the night of March 8, 1976, persuaded Loss that more pressure was needed. Loss hit upon the proper for- mula for dislodging the tenacious night waitresses in the second captain program. In sum, I find that the first captain program, imple- mented during the week of February 23, and the second or revised captain program, implemented on April 5, were de- signed to cause the night waitresses to quit their jobs with Respondent. I further find that the announcement of the second captains program on March 11 amounted to a no- tice to the bus personnel that they were discharged effective April 4 and except as to Joyce Roberge, amounted to a notice of constructive discharge to the night waitresses also effective no later than April 4. Having found the discrimi- natory motive in Respondent's design, i.e., to eliminate a source of union support among its employees, I find, there- fore, that the February 23 captain system, and the April 5 captain system constituted violations of Section 8(a)(3) and (1) of the Act. I also find that Respondent constructively discharged Gloria Harrigan on February 23, 1976, Kathy Klein on April 2, 1976, and Joyce Roberge on June 5, 1976. In sum, I find, as alleged in the amended complaint, that Respondent, by its unlawful conduct described above, vio- lated Section 8(a)(3) and (I) of the Act by discharging or constructively discharging the employees listed below in Appendix "A." I also find that the remarks of George High and Chip Dennison to the effect that employees would ei- ther comply with the captain system or would have to leave their jobs with Respondent were nothing less than attempts to pressure the night waitresses into quitting their jobs rather than face the onerous task of complying with the distasteful captain system. Thus, these warnings were but further efforts by Respondent to cause the waitresses to leave Respondent and thus abandon their support for the Union. I find, therefore, that these two warnings interfered with, restrained, and coerced employees in the exercise of their right to support a union, and, therefore, were violative of Section 8(a)( I ) of the Act. C. Rules 17 and 31 of the "Emplovee Handbook and Guide" Respondent's "Employee Handbook and Guide" for 1976 contains a section entitled "Rules of Operation." The first page of this section contains the following warning: Violations of these rules necessarily result in disciplin- ary action, ranging from reprimand to terminations of employment, depending upon the nature and severity of the infraction. Therefore, I must ask that you be- come thoroughly familiar with the company rules and regulations. Among the prohibitions contained in Respondent's rule book are the following: 17. Wearing pins, or other adornment, that are not part of the approved uniform. 31. Posting or distributing unauthorized pictures or literature. There is no showing that any employee suffered any pun- ishment for violating either of these rules. Nor is there any showing of any specific attempt by Respondent to enforce either of the two rules. The General Counsel and the Union urged that the two rules were overly broad in that they appear to prohibit so- licitation and distribution during nonworking time and in nonworking areas of Respondent's Holiday Inn. Respon- dent conceded that rule 31 is ambiguous and could be con- strued in the manner suggested by the Charging Party and the General Counsel. As for rule 17, Respondent denied that the rule violates Section 8(a)(1) of the Act. Further, Respondent argued that its revocation of rule 31 cured whatever unfair labor practice it may have committed and a finding of violation and further remedy would be super- fluous. I find that both rules trespass upon employee rights under Section 7 of the Act and that a remedy is warranted in both instances. The Board had provided guidance for limiting such rules. Absent "special circumstances" demonstrating that such a rule was necessary to maintain production or discipline, the promulgation of a rule prohibiting employees from wearing union insignia on an employer's premises is violative of Sec- tion 8(a)(I) of the Act. Florida Hotel of Tampa, Inc., 137 NLRB 1484, 1486 (1962). Similarly, absent "special circum- stances" showing that production or discipline require pro- 287 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hibition of such distribution, a rule prohibiting employees prohibiting employees from distributing union literature during nonworking time and in nonworking areas is viola- tive of Section 8(a)(1) of the Act Stoddard-Quirk Manufai- luring Co., 138 NLRB 615. 621 (1962). Here, the language of the challenged rules appeared to run afoul of both Board policies. Thus, rule 17 flatly pro- hibited employees from wearing any "pins, or other adorn- ments" which would include union buttons. Rule 31. with- out providing any words of limitation, prohibited distribution of literature. Thus. an employee could reason- ably conclude that distributing union literature anytime and anywhere on Respondent's premises would subject him or her to punishment. I find, therefore that these rules im- posed broad limitations violative of Section 8(a)(1) of the Act. In light of Respondent's other unfair labor practices. revocation of rule 31 did not militate against the imposition of a Board remedy directed at curing the continuing effect of that unlawful rule. Bandag Incorporated, 225 NLRB 72. 82 (1976), and cases cited therein at footnote 17. D. The Refusal To Recognize the Union On April 1, Respondent rejected the Union's request for recognition as the collective-bargaining representative of the following unit which the parties agreed was appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: All full-time and regular part-time food and beverage department employees employed by the Respondent at its Perrysburg, Ohio facility, including cooks, salad help, dishwashers, porters, waitresses, bartenders, and bus help: but excluding all desk clerks, maintenance employees, housemen, maids, managers. assistant man- agers, office clerical employees, all professional em- ployees, guards, supervisors as defined in the Act, and all other employees. Respondent contended that it properly rejected the Union's request on the ground that the Union did not represent an uncoerced majority of the employees in the appropriate unit. Respondent's payroll covering the appropriate unit for the week ending April 4, 1976. contained the names of 163 individuals. The parties stipulated to omit the name of em- ployee Ann Burmeister as she was no longer an employee on April I. The parties also agreed to add Judith Beebe, whose name was inadvertently omitted from the payroll list for the week ending April 4, 1976. The evidence pertaining to the status of 25 persons whose unit placement status was disputed is set out and evaluated below. Jake E. Sweede and Charles Tisdale The Union contended that employees Jake E. Sweede and Charles Tisdale should not be included in the unit as of the date of the demand for recognition. The parties stipu- lated. and I find, that neither Sweede nor Tisdale was hired by Respondent until April 3. 1 find, therefore that neither Sweede nor Tisdale were in the unit as of April 1, the date of the Union's demand. Accordingly, I shall not include them in the unit for purposes of determining the Union's majority status as of April 1. Jim Steftanelli Busboy Jim Stefanelli signed an authorization card for the Union on March 14, 1976. arly in the hearing on this matter, I rejected the General Counsel's offer of Stefanelli's authorization card on the ground that his termination date of April 4 removed him from the unit prior to April 9. the alleged date of the Union's demand for recognition. How- ever, thereafter the General Counsel amended the com- plaint to allege that April I was the date of the Union's initial demand for recognition. Having fiound that April 1 was the date of the Union's initial demand I have now reconsidered my ruling on Stefanelli's card. As Stefanelli was in the unit on April 1. I now receive his authorization card in evidence as General Counsel's Exhibit 52. Tony Mercurio Tony Mercurio signed an authorization card for the Union on March 15. 1976. two days after he left his em- ployment in Respondent's banquet department to take up his enlistment in the United States Army. Thus, as of April I Mercurio was a member of the United States Army. Contrary to the Union's contention, the Board has held that in determining a union's majority status, employees on military leave shall be excluded from the unit. Lawrence Rigging, Inc., 202 NLRB 1094. 1101 (1973): Tri-('ount Tube, Inc.. 194 NLRB 103, 105 (1971). Consequently. in accordance with Board policy. I conclude that with respect to the determination of the Union's majority status as of April I, 1976, Tony Mercurio should be excluded from the unit. Kathy Shull and Stephen Tucker Unit employee Kathy Shull was in Respondent's employ as of April 1, 1976. However 2 days later, she terminated her employment. Inasmuch as Shull was a unit employee on the date of the Union's demand for recognition, I find that she is properly included in the unit as of that date for purposes of determining the Union's majority status. The Union argued that employee Stephen Tucker's name should be deleted from the list on the ground that his em- ployment from March 18 until April 4. 1976, was too brief to give him a sufficient community of interest with the food and beverage employees to warrant his inclusion in the unit. The parties stipulated, and I find, that Tucker's first day of employment by Respondent was March 18, 1976. and that his last day of employment in the unit was April 4. 1976. There is no showing that Respondent hired Tucker with any understanding that his tenure would end on April 4. In these circumstances, I find that Tucker was in the unit on April I for purposes of determining the Union's majority status on that date. See C'olecraft M/g. Co., Inc.. 162 NLRB 680, 689 1967). Joan Hahn The parties stipulated that Joan Hahn's last day of em- ployment in the unit was April 4, 1976, and I so find. As 288 HOLIDAY INN OF PERRYSBURG, OHIO Respondent's records show, that Joan Hahn was employed in the appropriate unit on April , 1976. 1 shall include her in my determination of the Union's majority status as of that date. Gloria Swanson Respondent hired Gloria Swanson in the nonunit posi- tion of switchboard operator on March 22, 1976. However, as of April I and for the week ending April 4, Respondent employed Swanson as a hostess on its dining room staff and thus had apparently transferred her into a unit position. However, in a progress report evaluating her performance in April, Respondent classified her as a switchboard opera- tor. Further, Respondent's records reveal that Swanson worked as a hostess during the weeks ending April 4, 11, and 18 and then was transferred back to the switchboard. There is no showing that Respondent issued a written evaluation of Swanson's performance as a hostess on the night dining room staff. I find from these circumstances that Swanson's transfer into the unit was temporary in na- ture. Accordingly, I shall not include her in the unit for purposes of determining the Union's majority status as of April 1. Michael Stepnick The Union urged deletion of Michael Stepnick's name from the unit list on the ground that his name was included on two departmental lists. The payroll list shows Stepnick employed both by the night dining room and by the night kitchen during the week of April 4, 1976. However, Re- spondent's records showed Stepnick as a busboy in the night dining room from the week ending February 29, 1976, until the week ending April 4, 1976. Respondent's records also show Stepnick as a dishwasher in the night kitchen during the week ending April 11, 1976. Both classifications were included in the unit description above. There was no dispute as to Stepnick's status as a night dining room bus- boy as of April 1, 1976. I shall, therefore delete Stepnick's name from the portion of the eligibility list pertaining to the night kitchen, and include him with the night dining room employees as of April 1, 1976. The Replacements The payroll list included the names of individuals hired for service assistant positions to replace the night dining room employees, who were unlawfully discharged or con- structively discharged effective April 4, 1976. The hiring of these service assistants as replacements for the night wait- resses and bus personnel was part of Respondent's unlawful plan to eliminate the night waitresses and buspersons be- cause they supported the Union. Under Board policy, the replacements hired in furtherance of Respondent's unlawful discrimination are ineligible to participate in the determina- tion of the Union's status as collective-bargaining repre- sentative on April 1, 1976. Lock Joint Tool Company, 127 NLRB 1146, 1163 (1960); Sioux City Brewing Company, 85 NLRB 1167-68 (1949). I shall therefore exclude the follow- ing individuals from the unit for purposes of determining the Union's majority status as of that date: Sandra L. Rick- ard, Eduardo Hernandez, Randall Dixon, Michael D. Schi- avo, Dwight Monroe, Paula Crouse, Mary K. Durham, Al- lan Kozeni, Rita Coutcher, Sulaiman Aboul Karim, Roger Bowne, Neil McGilvery. and Shelly Derkin. Craig Hohler The parties stipulated, and I find, that at all times mate- rial to this case, Craig Hohler whose name appears on the unit payroll for the week ending April 4, 1976, was a super- visor within the meaning of Section 2(1 1) of the Act. Conse- quently, I shall exclude Hohler from the unit. Sandy Baker On and after March 28, 1976, Respondent employed Ba- ker as manager of a small bar known as the Hide-Away which is an extension of Respondent's bar service. Al- though Baker was charged with operating the bar she did not have any subordinate. There was no showing that Re- spondent had assigned subordinates to assist Baker's prede- cessor. Nor was there any showing that Respondent planned to expand the Hide-Away staff to include subordi- nates. Thus, notwithstanding that Respondent classified the position of Hide-Away manager as a supervisory position, there was no showing that Baker's predecessor had ever exercised, or that Respondent expected Baker to exercise any of the indicia of supervisory authority set out in Section 2(11) of the Act.' Accordingly, contrary to the Union's po- sition, I find that Baker was not a supervisor and will in- clude her in the unit for purposes of determining the Union's representative status as of April , 1976. Montgom- en' Ward & Co., Incorporated, 198 NLRB 52, 58 (1972). Helen Mulrooney The Union and the General Counsel would exclude Head Waitress Helen Mulrooney on the ground that at all times material to this case, she was a supervisor within the meaning of Section 2(11) of the Act. Respondent claimed that Mulrooney was not a supervisor and would include her in the unit. The relevant facts as of April , 1976 were as follows: Mulrooney, who was hourly paid and received 25 cents per hour more than the highest paid banquet waitress, worked under the direction of Banquet Department Super- visor Alice Wisbon. As a rule, Wisbon scheduled waitresses and bus personnel for banquet work. From time to time, Mulrooney prepared the work schedule for banquet wait- resses and bus personnel. However, Mulrooney assigned them to stations when they reported for work and had dis- cretion to change employees' work assignments during a 'Sec. 2( 1) of the Act reads: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires that use of independent judgment. 289 DECISIONS OF NATIONAL LABOR RELATIONS BOARD banquet. Although she worked along with the waitresses at a banquet, Mulrooney directed the service of food and re- ported unsatisfactory waitresses to Wisbon. She also checked the preparation of the food. Scheduled employees reported to her when they were unable to appear for work. Upon receiving such a report Mulrooney, on her own initia- tive, adjusted the schedule or the assignments to meet the problem created by absence. She occasionally gave written job evaluations for banquet waitresses and bus personnel. Mulrooney did not attend staff meetings with department managers and other undisputed supervisors. I find from Banquet Department cook Delores Mercurio's undisputed testimony, that during 1976 Mulrooney reprimanded 3 em- ployees and sent an employee home from work. I find from the foregoing that as of April 1, 1976, Helen Mulroonev responsibly directed the work of banquet department em- ployees. Accordingly, I find that she was a supervisor within the meaning of Section 2(11) of the Act and shall exclude her from the unit. Ruth Roberts The Union and the General Counsel urge the exclusion of cashier Ruth Roberts from the alleged bargaining unit on the ground that she was a supervisor within the meaning of the Act. Respondent included her on the payroll list for the period ending April 4 as a member of the day restaurant staff. I find from the testimony of Innkeeper Chip Dennison that throughout 1976 Respondent employed Ruth Roberts as head cashier. I also find from his testimony that Roberts, while so employed, made out work schedules for her fellow cashiers, trained new cashiers, interviewed new hires, and had authority to hire new cashiers after consultation with Dennison. Her hourly wage was 50 to 75 cents higher than the other cashiers. During 1976, Roberts exercised her au- thority over a complement of cashiers usually numbering three. I find from the uncontradicted testimony of cashier Judy Beebe, that Roberts scheduled cashiers, assigned them their days off, and had authority to chaige the work schedule to satisfy a cashier's request. Cashiers unable to report for work as scheduled were required to notify Roberts, who then made the appropriate change in the schedule. Roberts also prepared quarterly evaluations of individual cashier's work performance and signed such forms next to the printed work "supervisor." According to Director of Operations Loss, Respondent considered such evaluations in determining whether a cashier would receive a raise in salary. Respondent's policy was to distribute such evalu- ation forms only to the supervisor of the employee to be evaluated. I find from the foregoing that throughout 1976, Ruth Roberts responsibly directed the work of other cash- iers. Accordingly, I find that Roberts was a supervisor within the meaning of Section 2(11) of the Act and shall therefore exclude her from the unit. Mary Happeny Mary Happeny, who Respondent employed since Janu- ary 1972, was designated a captain from February 23, until July 5, 1976. Happeny also functioned as a waitress when the captain program was suspended between March 8 and April 4, 1976. Until February 23, Happeny had been a night dining room supervisor. As a captain, Happeny was responsible for the performance of three or four service as- sistants on the night dining room staff under George High, the night dining room manager. As a captain, Happeny had authority to recommend the discharge of unsatisfactory ser- vice assistants to High. Whether such recommendations would have been effective was not shown. Happeny was expected to evaluate the service assistant's performance and also had authority to recommend wage increases. Again there was no showing that such a recommendation would have been effective. However, under the second captain program, Happeny had discretion to reward service assis- tants by paying to them portions of gratuities left by restau- rant patrons based upon her evaluation of their individual performances. Happeny also scheduled service assistants on a weekly basis. In the event a scheduled service assistant was absent or contemplated absence a captain such as Happeny had authority to direct a substitute service assistant to come to work. In an emergency, the captain also had authority to grant service assistants time off from work either before the service assistant came to work or during work. Respondent's captains were responsible to direct correc- tive action including the provision of a free meal if a service assistant made a mistake in serving an order. In addition, the captains had authority to discipline service assistants. Manager George High had weekly meetings with his cap- tains to criticize system's operation during the period when it was in effect. I find that under second captain program, Respondent's captains had authority to reward and responsibly to direct the service assistants in their work. The exercise of that authority required the use of independent judgment. I therefore find that Respondent's captains, under the April 5, 1976 captains program, were supervisors within the meaning of Section 2(11) of the Act. As Happeny was a designated captain on April 1. 1976, I shall exclude her from the unit. Gloria Harrigan Respondent employed Gloria Harrigan as a night dining room waitress from September 30, 1974, until she quit on February 23, 1976, in response to Respondent's implemen- tation of its first captain program. The amended complaint alleged, and I have found above, that Respondent construc- tively discharged Harrigan in violation of Section 8(a)(3) and (I) of the Act on February 23, 1976. Contrary to Re- spondent's contention, under Board policy, Harrigan's sta- tus as a discriminatee entitled her to participate in the selec- tion of a representative for the bargaining unit sought by the Union on April 1, 1976. Commodore Watch Case Co., Inc., 114 NLRB 1590, 1599 (1955). I shall include Gloria Harrigan in that unit. Joyce Roberge Respondent hired Joyce Roberge in May 1967 as a night dining room waitress. Roberge's last active day in that posi- 290 HOIIDAY INN OF PERRYSBURG, OHI0 tion was on March 6, 1976. Thereafter, because of illness. Respondent placed Roberge on a leave of absence effective from March 21, 1976. Respondent terminated her leave sta- tus on August 22. 1976. Further, as I have found above, her unlawful constructive discharge occurred on June 5. 1976. However, under Board policy, Roberge's leave of absence status on April I entitled her to inclusion in the unit for purposes of determining the Union's majority status. E. H. Sargent and Co., 99 NLRB 1318. 1319-20 (1952). Accord- ingly, I shall include Roberge in the unit. Monique Perrin and Michelle Wagener The General Counsel and the Union would exclude Monique Perrin from the unit on the grounds that her em- ployment as a lifequard deprived her of a sufficient commu- nity of interest with the food and beverage employees to warrant inclusion with them in the unit sought by the Union. The Union would also exclude Michelle Wagener on the same ground. There was no dispute as to the inclu- sion of Karen Gould, Diane Powell, and Linda S. Cocke who were employed with Perrin and Wagener in a portion of Respondent's facility known as the French Quarter dur- ing the week ending April 4, 1976. The French Quarter is an 85' x 140' indoor area adja- cent to a 25' x 50' swimming pool. This facility includes a snack bar, tables and chairs, a whirlpool bath, a putting green, a pool table, ping-pong tables, and other amuse- ments. The five employees servicing the French Quarter were under the immediate supervision of Innkeeper Chip Denni- son. All five employees were hourly paid. Of the five em- ployees included in the French Quarter on April I. 1976. three, Karen Gould, Diane Powell, and Linda S. Cocke, were classified as snack bar attendants. The duties of the snack bar attendants included the service of beverages and food and the cleanup of tables. Respondent classified Perrin and Wagener as pool attendants and from time-to-time re- quired that they wear bathing suits or tee shirts bearing the inscription "French Quarter Lifeguard." Respondent also required Perrin and Wagener to act as lifeguards during periods when guests were using the pool. However, both spent substantial portions of their working time performing duties similar to those of the snack bar waitresses. In sum, I find that as of April 1,. 1976. Perrin and Wagen- er spent a substantial portion of their work time performing functions similar to those of agreed unit employees with whom they shared common immediate supervision, a com- mon work area, and similar conditions of employment. From these circumstances, I further find that Perrin and Wagener enjoyed a sufficient community of interest with Gould, Powell, and Cocke to warrant inclusion of all five in the same unit. Consequently, I shall include Perrin and Wagener in the unit as of April 1. 1976. In sum, I find that as of April 1. 1976. the following employees should not be included in the unit: Jake A. Sweede Helen Mulrooney Craig Hohler Charles Tisdale Ruth Roberts Sandra L. Rickard Randall Dixon Rita Coutcher Michael Schiavo Sulaiman Aboul Karim Dwight Monroe Gloria Swanson Mary K. Durham Edduardo llernandez Allen Kozeni Ann Burmeister Mary Happen? Roger Bowne Paula Crouse Neal McGilvery Shelley Derkin I also find that the folloing named employees not on Re- spondent's payroll list for the week ending April 4. 1976. were in the unit as of April 1, 1976: Judith Beebe. Gloria Harrigan. and Joyce Roberge. Consistent with my finding that Michael Stepnick was night dining room employee as of April I. I shall delete his name from the portion of the payroll list pertaining to the night kitchen. From the Iorc- going additions and deletions. I find that as of April 1. 1976. the appropriate unit herein included 144 employees whose names are listed below in Appendix "B." At the hearing. the General Counsel otfered signed au- thorization cards in support of the Union's claim that as of April 1, 1976. it had achieved majority support in the bar- gaining unit. I rejected the authorization cards of emplo,- ees Tony Mercurio. Jim Stefanelli. and Jennifer Teschner. I have now found that Stefanelli was eligible to participate in the selection of a bargaining representative on April 1., the date of the Union's initial demand for recognition and bar- gaining. I now find further that his authorization card, ex- ecuted on March 14. 1976, was valid and will be counted in determining the Union's majority status as of April I. 1976. Respondent challenged 14 other cards signed by unit em- ployees. The evidence pertaining to the validity of these disputed cards is set out and evaluated below. Diana Dauer Employee Diana Dauer signed her authorization card on April 9. eight days after the critical date. I find that l)auer's card came too late to support the Union's claim ot majority on April I. Thereftre her card will not be counted. Cathy Craig, nee Jacobs Employee Cathy C('raig using her maiden name. Jacobs. executed an authorization card in favor of the Union on April 5 1976. Accordingl. her card can not be counted in support of the Union's demand for recognition 4 days ear- lier. I shall therefore exclude it. Bonnie Moyes Bonnie Moyes signed an authorization card in favor of the Union on April 3 1976. Thus, as her card cannot be counted in support of the Union's claim of majority status on April . 1976. 1 shall exclude it. Joyce Roberge Employee Joyce Roberge signed an authorization card supporting the Union on March 31. 1976. However. it ap- pears from a postmark on the card that it was not mailed to the Union until April 3. 1976. 2 days after the Union's claim of majority status. Under Board policy, notwith- standing the late mailing of the card, its signing by Roberge on March 31. 1976. was a valid designation of the Union to 291 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represent her as of the date of her signature, International Metal Specialties, Inc., 172 NLRB 1338, 1339, fn. 7, (1968) enfd., 435 F.2d 870, 872 (2d Cir. 1970); Retail Clerks Inter- national Association. AFL-CIO, 153 NLRB 204, 226-227 (1965). Respondent challenged the timely executed authorization cards of employees Terry Saunders, Patricia Lehmann. Le- Vonne Green, Brian Brandenburg, Lucianne Bortel, Patri- cia Soldwish, Thomas Goede, Kevin Smith, Brian L. Over- myer, and Sue Mutchler on the ground "that they were told that the sole reason for the signing of the card was to enable a union to obtain another Election (sic)." (Respondent's brief.) The challenged authorization cards contained no refer- ence to an election. Instead, each card declared its purpose as follows: I hereby authorize the above mentioned Union affili- ated with the Hotel and Restaurant Employees and Bartenders International Union to represent me as my bargaining agent in all relations with my employer. and to negotiate for me in regard to wages. hours of employment and working conditions. Under the Board's doctrine in Cumberland Shoe Corpora- tian, 144 NLRB 1268, 1269 (1963), where, as here, the au- thorization card unambiguously recited that the signer au- thorized the specified union to represent the employee for purposes of collective bargaining and made no mention of an election, that card would be counted in favor of the specified union unless it was shown that the solicitor told the employee that the sole purpose of the card was to ob- tain a Board-held election. The Supreme Court has ex- pressed its approval of the Board's policy as follows: In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly conceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. [N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 606-607 (1969)]. Of the 10 cards, only that of Terry Saunders runs afoul of the Cumberland doctrine. For Saunders' credited testimony shows that the solicitor on behalf of the Union told him that the purpose of the authorization card "was just to get another vote, to be able to get another vote." (Emphasis supplied.) I find that the use of the word "just" was calcu- lated to give Saunders the impression that the only purpose of the card was to obtain a representation election. This contradiction of the stated purpose of the card was suffi- cient to nullify Saunders' apparent designation of the Union as his bargaining agent. I shall not count Saunders' authorization card. Levi Strauss & Co., 172 NLRB 732, 733 (1968). Each of the remaining nine authorization cards satisfies the Cumberland doctrine. None of the nine signatories was told that his or her card would be used only for the purpose of securing a Board representation election. There was no showing that in any of the nine instances the solicitor con- tradicted the language of the card or told the employee to disregard it. Instead, in each instance, the solicitor stated in substance that a purpose of the card was to secure such an election. That the solicitor in each instance did not restate the bargaining authorization expressed clearly by the card did not establish that the Union was abandoning or ignor- ing that authorization. Consequently, I find that the autho- rization cards signed by Patricia Lehmann, LeVonne Green, Brian Brandenburg, Luciann Bortel, Patricia Soldwish, Thomas Goede, Kelvin Smith, Brian L. Over- myer, and Sue Mutchler to be valid for purposes of deter- mining the Union's representative status. Hedstroni Com- pany, 223 NLRB 1409, 1410-11 (1976). For the reasons set forth above, I find that Respondent demonstrated the invalidity of only four of the Union's 84 authorization cards described above. Thus, valid authoriza- tion cards of a majority of 80 of the 144 bargaining unit employees supported the Union's unsuccessful request for recognition and bargaining on April I, 1976. See Appendix "C." I agree with the contention of the C'harging Party and the General Counsel that it was highly improbable that the Board could conduct a fair election among Respondent's employees in light of Respondent's serious unfair labor practices including the unlawful constructive discharge of 25 unit employees by the close of business on April 4, 1976. In these circumstances, I find that the Union's authoriza- tion cards were the most reliable indication of the desires of the unit employees concerning representation. The Union had obtained authorization cards from a majority of the employees in the appropriate unit by April 1, 1976. the date it demanded recognition. Respondent, which had engaged in a succession of unfair labor practices beginning with the implementation of the first captain system on February 23, 1976. refused the Union's demand. I find therefore that Re- spondent violated Section 8(a)(5) of the Act by this refusal to recognize the Union on and after April 1, 1976. Albertson Manufacturing Compans. 236 NLRB 663 (1978). E. Delores Mercurio and Elizabeth Hollers Respondent hired Delores Mercurio and Elizabeth Hol- lers as banquet cooks on October I, 1973. Mercurio ended her employment in that position by resignation on July 6, 1976. Hollers' employment by Respondent ended in dis- charge on or about July 29, 1976. Mercurio and Hollers actively supported the Union. On March 14, 1976, both signed authorization cards. There- after each wore a union button on her uniform until she left Respondent's employ. Both were active participants in the Union's organizing campaigns in 1974, 1975, and 1976. Mercurio and Hollers passed out a total of eight union au- thorization cards during the 1976 campaign. They attended all three of the Union's meetings held respectively on March 10, 14, and 31 with Respondent's employees. They also joined in the Union's picketing of Respondent's facili- ties on April 5 and 7, 1976. It appears that by mid-March, Respondent at least sus- pected that Mercurio and Hollers were union activists. 292 HOLIDAY INN OF PERRYSBURG. OHIO Thus, I find from Mercurio's testimony that on March 17. 1976. Director of Operations Donald Loss asked her whether she and her cousin, Elizabeth Hollers, were trying to have a union come in. Mercurio replied that she was not so engaged, and suggested that he look elsewhere.' Later in March. Mercurio and Hollers were present in the kitchen when Banquet Manager Alice Wisbon told Head Waitress Helen Mulrooney that the bus personnel would be dismissed if Wisbon found out that they were signing union authorization cards. Wisbon made no at- tempt to take Mulrooney out of the banquet kitchen. On April 5. 1976. a number of night dining room wait- resses with union signs began picketing Respondent's facil- ity in response to the implementation of the second captain program. That same evening. Mercurio and Hollers joined the pickets after their shift ended. Two days later. Mercurio and Hollers returned to the picket line. During the picketing, on April 7. Banquet Kitchen Su- pervisor Curtis White and Innkeeper Chip Dennison ap- proached the picket line with cameras and took pictures of the pickets. White directed his photography at pickets Mer- curio and Hollers. Turning to Mercurio's and Hollers' conditions of employ- ment I note the following: Beginning January and throughout 1976. Respondent scheduled Mercurio. Hollers, and its other banquet cooks to work split shift, as it had done the previous year. This scheduling depended upon variations in the banquet sched- ule. Mercurio and Hollers had both worked split shifts in previous years. On April 21, Respondent hired Randy Fox as a banquet cook. Respondent's records show that its banquet cooks worked the following hours during the period from and in- cluding the week ending February 8. 1976. prior to Fox's rehire and up to an including the week ending May 16. 1976. about 4 weeks after his hire: Holiday Inn of Perrysburg-Banquet Cook's Hours- Week ending 2/8/76-5/16/76 Dates Kern 2/8 2/15 2/22 2/29 3/7 3/14 3/21 3/28 38.9 47.5 19.5 22.8 45.1 21.3 34.9 39.4 Over- Hol- Mer- meyer lers curio 51.6 50.9 32.3 33.6 39.7 36.0 42.8 42.8 71.1 51.7 40.4 30.3 45.7 30.6 49.4 45.9 Fox 71.1 52.3 45.2 32.1 46.8 31.0 28.3 43.5 4/4 4/11 4/18 4/25 5/2 5/9 5/16 39.6 30.6 20.8 34.6 15.2 33.9 29.9 47.1 43.8 19.7 40.9 17.2 31.0 25.4 Total 474 544.8 51.0 45.2 24.7 29.0 12.7 24.4 26.1 56.0 37.2 19.8 24.4 13.0 28.4 32.0 22.7 13.5 28.3 31.6 588.2 561.1 96.1 At the end of April. Curt White changed that Banquet Department's operational instructions and pasted them in the banquet kitchen. He told Hollers that violation of the new instructions would result in a warning slip. There is no evidence that Hollers thereafter received a warning slip charging her with violation of those instructions. In the middle of May, Hollers and Mercurio asked White not to schedule them before 3 p.m. They gave as their rea- son that it was too costly to drive to work in the morning for an hour or two, and then return for a few more hours in the afternoon. Soon after their request, White warned Mer- curio that she would suffer a substantial reduction in total hours per week if she insisted upon this limitation on her availability. There is no showing that other banquet cooks asked for a similar restricted schedule. Beginning in May and through July, Respondent experi- enced its usual slow banquet season. By the middle of June, all of the banquet cook's were drastically reduced. On June 14, 1976, White and Food and Beverage Man- ager Kovacik approved Hollers' request for a leave of ab- sence effective that day until August 1, 1976, when Hollers anticipated returning to her job. Mercurio credibly testified, that by July I, White's atti- tude toward her had become hostile. Thus, in early July, White told Dishwasher Dan Williams, while pointing at Mercurio. "You see that bitch'? I am going to get rid of her." In a letter to Loss and Dennison dated July 6, 1976, Mer- curio announced her resignation, effective that same day, as follows: Due to my husband having no income & (sic) my get- ting proper help for my family from the State. (sic) I regret that I have to terminate my job with Holiday Inn Perrysburg today July 6, 1976. 1 myself need an operation and can't afford it any other way. I regret leaving, (sic) you, the friends I've made but please un- derstand. it's for the above reasons only. Thank You 6 1 did not credit Donald Loss' estimony to the effect that prior to April 2 he did not speak to any employees about the Union's organizing activities among Respondent's employees. As I have previously noted. Loss impressed me as being a less than candid witness, more interested in protecting Respon- dent than in providing his full recollection. Here, instead of an attempt to recall specific conversations with employees, Loss made a sweeping self- serving denial. In contrast, Mercurio in relating her recollection of the inci- dent testified in a full and forthright manner. Consequently. I have credited Mercuno's testimony in this regard. /s/Delores Mercurio Delores Mercurio However, at the hearing in this case. Mercurio offered a different reason for her resignation. She testified on direct examination that White's changed attitude coupled with onerous and disparate conditions of employment caused her to resign. This testimony also conflicted with assertions 293 )F.DECISIONS OF NATIONAl. I.ABOR RELATIONS BOARI) in her pretrial affidavit to the effect that she resigned on her doctor's advice to have necessary surgery. It also conflicted with her frank concession under cross-examination that the real reason for her resignation was to obtain state assistance needed to pay for the surgery. In light of her letter and affidavit I have credited her testimony on cross-examina- tion. The last day Hollers worked for Respondent was June 14, 1976. Thereafter, at her request she was on a leave which was to end on August 1, 1976. On July 31, Hollers phoned White about her proposed schedule for August. White told Hollers that she was not on the schedule, and that he and Kovacik had agreed to let her go. White ended the conversation, saying, "I am going to have to let you go, you've just lost too much time." White added that if Kovacik wanted her back, he would let her know. On August I. Hollers called dishwasher Mike Halloran, and inquired about the schedule. Halloran told Hollers that he had heard that she was "fired." On August 6, Hollers applied for unemployment compensation, stating that her reason for not working was she had been fired. On or about August 12. Hollers received a letter of rein- statement for Chip Dennison. Enclosed was a banquet kitchen schedule. The letter stated that because of some "misunderstanding," Respondent had not been able to schedule her, but that Hollers could return the following week. Shortly after Dennison's letter, Curt White made two phone calls to Hollers' home. White's first conversation was with Holler's husband, who stated that he was not sure of Hollers' plans. On a second occasion, White talked to Hol- lers, who told him that she had other plans. By letter of August 5, 1976. to which was attached a banquet kitchen schedule, Respondent asked Hollers to indicate the days and hours she could work. She did not respond. Nor did she reply to Respondent's letter of August 12, 1976, in which Chip Dennison asked if she wished to be terminated. The General Counsel and Charging Party urged that Re- spondent violated Section 8(a)(l) and (3) of the Act by re- ducing Mercurio's and Hollers' hours of work, so that nei- ther could continue working for Respondent, and that Respondent thereby constructively discharged Mercurio, all because of their activity on the Union's behalf. Respondent contended that such reductions in hours as the two employ- ees suffered were at the employees' own request, and that Mercurio resigned for reasons other than her reduced hours. I find that the weight of the evidence does not pre- ponderate in favor of the General Counsel and Charging Party's contention. Respondent at least suspected that Mercurio and Hollers were engaged in union activities well before they suffered a reduction in hours. On March 17, Respondent evidenced an awareness that Mercurio and Hollers were active in support of the Union. On that day, Loss singled Mercurio out for questioning about whether she and Hollers were assisting the Union's organizing campaign. Later that month, Ban- quet Manager Wisbon made certain that Hollers and Mer- curio heard her threaten to discharge bus personnel who signed union authorization cards. Aside from showing Re- spondent's hostility toward Hollers and Mercurio's sus- pected union activity, I find l.oss' interrogation, and Wis- bon's warning violated Section 8(a)(l) of the Act.7 Finally, on the evening of April 7, when both joined the Union's picket line outside Respondent's facility, Innkeeper Dennison and their immediate supervisor, White, com- menced photographing the pickets, paying special attention to Hollers and Mercurio. Significantly, there was no show- ing that Respondent's photography was occasioned by picket line misconduct. Thus, photographing of Mercurio and Hollers as they picketed violated Section 8(a)( 1) of the Act. eroy E. Craw, Jr. e al.. dh/a Craw & Son, 227 NLRB 601, 607 (1976). Granted that Respondent's union animus was directed at Mercurio and Hollers, the attempt to link that animus with their reduced hours and Mercurio's resignation falls short. I recognize as shown above, that Respondent was not above devising ways of' ridding itself of prounion employees. However, the admissions of alleged discriminatees Mercu- rio and Hollers revealed that their reductions in hours in the spring of 1976 followed their request to he scheduled for work only after 3 p.m.. thus eliminating them from oppor- tunities to work on breakfast banquets and luncheons. Moreover, irrespective of Respondent's real reason for hir- ing Randy Fox, there has been no showing that Mercurio and Hollers lost hours because of his hiring. Absent was any threat or suggestion by White or other members of management that Respondent intended to inflict reduced hours upon them as punishment for supporting the Union. In sum, the evidence casts considerable doubt upon the propositions urged by the General Counsel and Charging Party that union animus moved Respondent to curtail Hol- lers and Mercurio's working hours. As for Mercurio's resignation, her testimony on cross- examination and her letter announcing her resignation re- vealed that she took this step not because of the condition of employment imposed by Respondent. Instead in her let- ter, Mercurio attributed her departure to her plan to obtain public assistance for contemplated surgery. In conclusion, I find that a preponderance of the evi- dence does not support the allegations that Hollers and Mercurio suffered discriminatory treatment at Respon- dent's hands. IV. 1111i FII: I 01F 111ii UNFAIR ABOR RA11( iS UPON (OMMER( I The activities of Respondent set forth in section II1, above, occurring in connection with its operations de- scribed in section I above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. CON(I.L'SIONS OF LAW I. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act, engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 7 Although not alleged as siolations in the amended complaint. these inci- dents were lully litigated. 294 HOLIDAY INN OF PERRYSBURG. OHIO 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent interfered with, coerced, and restrained its employees in the exercise of the rights guaranteed them in Section 7 of the Act, thereby committing unfair labor practices prohibited by Section 8(a)(l) of the Act, by: a. Threatening to terminate its restaurant operation rather than bargain with a union. b. Threatening to discharge employees because they signed union authorization cards. c. Interrogating employees regarding their union activi- ties and sentiments and the union activities and sentiments of other employees. d. Promulgating and maintaining an unlawful no-solici- tation rule and an unlawful no-distribution rule. e. Threatening to get rid of employees because they sup- ported the Union. f. Engaging in surveillance by photographic employees engaged in picketing on behalf of the Union. g. Telling employees that they must work under the cap- tain system or quit their employment with Respondent. h. Promulgating and maintaining a rule prohibiting its employees from wearing union buttons, or other union campaign adornment while on Respondent's premises. 4. Respondent discriminated with respect to employees' hire and tenure of employment, thereby discouraging mem- bership in a labor organization and committing unfair labor practices prohibited by Section 8(a)(3) and (I) of the Act. by imposing more onerous conditions of employment upon its night dining room employees in the form of a captain system for servicing patrons, and by constructively dis- charging night dining room waitress Gloria Harrigan on February 23, 1976, night waitress Kathy Klein on April 2, 1976, and night waitress Joyce Roberge on June 5, 1976. and by discharging or constructively discharging the follow- ing night dining room employees on April 4, 1976: Nancy Artz, Glendine Berndt, Karyn Ciprian. Betty Cox, Inez Fa- Ilan, Sharon Hess, Janet Kozlowski, Victoria Langlois, Terry Lynott, Bonnie McGeorge, Julie McKaig, Sue Myer, Michael Miller, Doris Mullins, Doug Obensbain, Gene- vieve Paternite, Stephen Presti, J,,yce Rechtine, Patricia Roberts, Marge Rollins, Florence Taylor, Tim Zirke, and Jim Stefanelli. 5. Since April 1, 1976, a majority of the employees in the following appropriate unit have designated the Union as their exclusive representative in that unit for purposes of collective bargaining: All full-time and regular part-time food and beverage department employees employed by the Respondent at its Perrysburg, Ohio, facility, including cooks, salad help, dishwashers, porters, waitresses, bartenders and bus help but excluding all desk clerks, maintenance employees, housemen, maids, managers assistant man- agers, office clerical employees and all professional em- ployees, guards and supervisors as defined in the Act and all other employees. 6. Respondent, by refusing on and since April 1. 1976, to recognize and bargain with the Union as the representative of its employees in the appropriate unit, has refused and is refusing to bargain in good faith and thus has committed. and is committing, unfair labor practices prohibited by Sec- tion 8(a)(5) and (1) of the Act. 7. The above-described unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent has not committed any other unfair labor practices except as noted above. THl- REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices. I shall recommend that it cease and desist therefrom and take affirmative action necessary to effectuate the purposes of the Act. I shall also recommend that Respondent be ordered to terminate the captain program, and restore its night dining room opera- tions to the waiter-waitress-bus personnel system as that system existed prior to February 23, 1976. I shall further recommend that Respondent be ordered to offer the em- ployees, named in the portions of this decision entitled Con- clusions of Law, and Appendix "A" immediate and full reinstatement to their former positions in the restored night dining room operations, or if those positions are not avail- able, to substantially equivalent positions without prejudice to their seniority or other benefits and privileges. I shall recommend that Respondent be ordered to make these em- ployees whole for any losses of pay and tips they may have suffered by payment to each of the sums they would have earned but for the discrimination against them, with inter- est thereon to be computed in the manner described in F W. Woolworth Companlv, 90 NLRB 289 (1950), and Flor- ida Steel Corporation. 231 NLRB 651 (1977).? I further rec- ommend that Respondent be required to preserve and make available to Board agents, upon request, all pertinent records and data necessary to analyze and determine what- ever backpay may be due. Having found that by April I,. 1976. a majority of Re- spondent's employees in an appropriate bargaining unit had authorized the Union to represent them in collective bargaining with the Respondent, and having found that Re- spondent committed serious and extensive unfair labor practices so that it now seems unlikely, if not impossible that a fair election under Board auspices could be held. I recommend that Respondent be required to recognize and bargain with the Union as the representative of those em- ployees, effective April 1, 1976. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). Upon the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER9 The Respondent. Motor Inn of' Perrysburg, Inc.. d/b/a Holiday Inn of Perrysburg. Ohio, its officers, agents, succes- sors. and assigns, shall: 8 See, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). 9 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, he adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 295 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Cease and desist from: (a) Interrogating employees concerning their member- ship in, sentiment toward, and activities on behalf of, Hotel and Restaurant Employees and Bartenders Union. Local 868, AFL-CIO, or any other labor organization. (b) Engaging in surveillance of employees engaged in lawful picketing on behalf of Hotel and Restaurant Em- ployees and Bartenders Union, Local 868. AFL CIO, or any other labor organization. (c) Threatening employees with the discharge or onerous conditions of employment or other economic reprisals be- cause of their support for Hotel and Restaurant Employees and Bartenders Union, Local 868, AFL-CIO, or any other organization. (d) Promulgating, maintaining, giving effect to or entbrc- ing any rule which prohibits employees from distributing literature in nonworking areas, on nonworking time, relat- ing to matters involving the exercise by employees of their rights under Section 7 of the National Labor Relations Act. as amended. (e) Promulgating, maintaining, given effect to or enforc- ing any rule prohibiting employees from wearing buttons. pins or other adornment, relating to matters involving the exercise by employees of their rights under Section 7 of the National Labor Relations Act, as amended. (f) Telling employees that quitting their jobs is the only alternative to complying with more onerous conditions of employment imposed by Respondent to interfere with their support of an organizing campaign conducted by Hotel and Restaurant Employees and Bartenders Union, Local 868. AFL-CIO, or any other labor organization. (g) Implementing a captain system or any other system for conducting business in its night dining room operations. or otherwise imposing more onerous conditions of employ- ment on its employees because they support or have sup- ported Hotel and Restaurant Employees and Bartenders Union Local 868. AFL-CIO, or any other labor organiza- tion. (h) Constructively discharging or otherwise discriminat- ing against employees because they support or have sup- ported Hotel and Restaurant Employees and Bartenders Union, Local 868, AFL-CIO, or any other labor organiza- tion. (i) Refusing to recognize or bargain collectively with Ho- tel and Restaurant Employees and Bartenders Union, Lo- cal 868, AFL-CIO as the exclusive bargaining representa- tive of the employees in the following appropriate bargaining unit: All full-time and regular part-time food and beverage department employees employed by the Respondent at its Perrysburg, Ohio, facility, including cooks, salad help, dishwashers, porters, waitresses, bartenders and bus help but excluding all desk clerks, maintenance employees, housemen, maids, managers, assistant man- agers, office clerical employees and all professional em- ployees, guards and supervisors as defined in the Act. and all other employees. (j) In any other manner interfering with. restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Rescind and discontinue the captain system and re- store the night dining room operations to the system known as the waiter-waitress-busperson system. as it was, prior to February 23. 1976. (b) Offer to the employees listed below in Appendix "A" immediate and full reinstatement to their respective former positions of employment as waiters, waitresses, or bus per- sonnel in Respondent's night dining room department, dis- missing if necessary anyone who may have been hired or assigned to perlbrm their functions in Respondent's night dining room operations, and if their respective former posi- tions do not exist. to substantially equivalent positions with- out prejudice to their seniority or other rights or privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination each has suffered, in the manner set forth above in the section entitled "The Remedv." (c) 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 to analyze the amount of backpay due under the terms of this Order. (d) Upon request, bargain with Hotel and Restaurant Employees and Bartenders Union, Local 868, AFL-CIO. as the exclusive representative of the employees in the appro- priate unit described above in respect of rates of' pay, wages, hours of employment and other conditions of em- ployment and if an understanding is reached embody such understanding in a signed agreement. (e) Post at Respondent's Perrysburg. Ohio facility copies of the notice attached hereto marked "Appendix D."0 Cop- ies of said notice, on forms provided by the Regional Direc- tor for Region , after being duly signed by an authorized representative of Respondent. shall be posted by Respon- dent immediately upon receipt thereof for a period of 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered. defaced, or covered by any other material. (f) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHIER ORDERED that unfair labor practices al- leged in the complaint but not specifically found herein are hereby dismissed. '° In the event that this Order is enforced by a Judgment of the 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- menl of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." APPENDIX A Captain Program Discriminatees Nancy Artz Glendine Berndt 296 Julie McKaig Sue Myer HOLIDAY INN OF PERRYSBURG. OHIO Karyn A. Ciprian Betty Cox Inez Fallon Gloria Harrigan Sharon Hess Kathy Klein Janet Kozlowski Victoria Langlois Terry Lynott Bonnie McGeorge Tim Zirke Michael Miller Doris Mullins Doug Obenshain Genevieve Paternite Stephen Presti Joyce Rechtine Joyce Roherge Patricia Roberts Marge Rollins Florence Taylor Jim Stefanelli APPENDIX B Dorothy R. Harvey Charlotte Morris Suzanne L. Townsend Dawn Hurst John Kern Mary Calevro Mary Fultz Virginia Keeton Mary Smetana Ellie Paterson Beth Paterson Rodney L. Shaw Daniel Desandro Mary K. Mulrooney Janet C. Bettenbrock Virginia Rate Mike J. Halloran Linda Greulich Dan W. Williams Karen Blevins Scott Reiter Vincent E. Davis Jay Seiler Brian Overmyer Sue L. Mulrooney Bryan W. Terry Wesley J. Jackson Kevin Smith Bill J. Shanks Elizabeth A. Hollers Delores Mercurio Lorraine D. Emmick Cathy Jacobs Christopher Welsh Pamela Smith Barbara Hudson Sandra Baker Anna Danilovic Bruce Hanna Therese Neuser Doloris Snider Barbara Edwards Maria Varela Sarah Alexander Bart Bowe Bonnie J. Moyes Diane Dauer Cathy Jo Crowthers Cynthia Paterson Nabih 0. Dandan Karen Pitzen Robert Bostdorf Daniel Griesinger Jeffery Hanthorn Genevieve Jarosz Jose Martinez Carlos Sanchez Kent A. Hoffman Jay M. Schmidt Tod Schmidt Jane Sieczkowski Sandra A. Johnston Betty J. Boney Mark H. Butler Mildred Decius Christine D. Fall Stephen Lucas Howard Lightner Tom Goede Mark Slowinski Mark G. Newville Ed L. Kleinfelter James P. Riehm Scott Yoder Steve Tucker Jimmie Perrine Richard Butler William Babcock Leona Saunders Mary' K. Smith Norman Soldwish Susan Mutchler Theresa Bowe Susan Mae Landolt Lenna Robinson Karen Shaffer Sharon Taylor Helen Koles Lucianne Bortel Brian Brandenburg Arlene Lawson Jill Aspacher Jane Oleary Kathy Shull (Cass M. Roby Jana M. Yoder Tim Oiler Joan M. Hahn Eileen M. Miller Jeri S. homas Pam Hess D)ave R. Burdo l.avonne M. Giren Sharon S. Britt Patricia K. I.ehmann I.ori Hencher Patti Sold'uish .lim Stetinelli Jovce R. Rechtine ('heire Akenberger Timothy Zirke Bonnie L. Mc(eorge D)oris Mullins Kathleen M. Shaw Patricia Roberts Jeanne Smith (iene, ieve I'atcrnite Souheil J. Kabbara Michael Stepnick Michael ). Miller Kathleen A. Klein Karyn A. Ciprian Terry W. I lnott Julie A. McKaig Glendine Berndt Stephen . Stepnick Leslie Kozlowski Florence Ta lor Marge Rollins Victoria S. L.anglois Janet Kozlowsk i Nanc, Artz [)ouglas H. ()benshain Inez . :Fallon Sharon 1.. less Bett\ Jean (ox Karen (iould Monique N. Perrin Mlichelle Wagener [)iane Powell Linda S. ( ocke Judith Beebe Gloria arrigan Joyce Roherge ,\PPINI)IX (' The lnion's authorization cards as of April I. 1976 ('herie Akenberer Nancy Artz Bill Babcock Judith (. Beebe Glendine Berndt Janet ('. Bettenbrock Lucianne Bortel Bob Bostdort' Brian Brandenburg Mary V. Calevro Karyn (iprian Betty Jean C(ox Vincent [)avis Mildred L. DeC(ius Dan DeSandro Lorraine Emmick Inez E. Fallon Mary Fultz Tom Goede LaVonne M. Green Linda Lou Greulich Sharon I.. Hless Kent Hofloman Elizabeth A. ollers Wesley J. Jackson Geneviee Jarasz Sandie Johnston Virginia . Keeton Kathleen A. Klein Ed Kleinfetter John Kern Janet Kozlowski Victoria S. L.anglois Patricia K. I.ehmann Howard lightner Terry Lnott Stephen ucas Bonnie l.ou Mc(George Julie McKaig Deloris Mercurio Eileen NM. Miller Michael Miller 297 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Daniel Grisinger Mike Halloran Jeffery W. Hanthorn Gloria Harrigan Doug Obenshain Brian L. Overmyer Genevieve J. Paternite Beth Paterson Ellie Paterson Cynthia L. Patterson Stephen E. Presti Virginia M. Rate Joyce L. Rechtine James P. Riehm Bryan W. Terry Charlotte Morris Doris L. Mullins Susan J. Mutchler Mark G. Newville Rodney L. Shaw Jane A. Sieczkowski Mark Slowinski Mary Smetana Jeanne Smith Kevin Smith Patricia Ann Soldwish Jim Stefanelli Florena Taylor Sharon Suzanna Taylor Scott C. Yoder Suzanne L. Townsend Tim Zirke APPENDIX D NoI(-i To EMPi.OYiI-S Posii lI) BY ORDER OFI 11E NAI()ONAI I.ABOR R.A I()IONS BOARD An Agency of the United States Government The National labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions fTo bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities except to the extent that the employees bargaining representa- tive and employer have a collective bargaining agreement which imposes a lawful requirement that employees become union members. In recognition of these rights, we hereby notify our employees that: WE Wllt. NOI interrogate you regarding your mem- bership in, sentiment toward, or activities on behalf of Hotel & Restaurant Employees and Bartenders Union. Local 868, AFL-CIO, or any other labor organization. WE Wi.L. NO'I threaten employees with termination of our operations or discharge because they support Hotel & Restaurant Employees and Bartenders Union, Local 868, AFL-CIO, or any other labor organization. WE WL.l, Nor photograph employees engaged in peaceful picketing of our facility on behalf of Hotel & Restaurant Employees and Bartenders Union. Local 868, AFL CIO, or any other labor organization. WE WILL NOT promulgate, maintain, or enforce any rule or regulation which prohibits our employees from soliciting on behalf of any labor organization in work areas of our facilities during their nonworking time or from distributing literature on behalf of any labor or- ganization in nonwork areas of our facilities during their nonworking time. WE WILL. NOI promulgate or enforce any rules pro- hibiting our employees from wearing union buttons or other union campaign adornment at our facility. WE WILL NOT confront you with termination of your employment as an alternative to working under more onerous discriminatory conditions of employment and thus attempt to interfere with your right to support Hotel & Restaurant Employees and Bartenders Union, Local 868, AFL CIO. or any other labor organization. WE Wll I. NOI impose onerous conditions of employ- ment, attempt to cause you to quit your employment with us by imposing onerous conditions upon you, or otherwise discriminate against you for supporting Ho- tel & Restaurant Employees and Bartenders Union, Local 868, AFLCIO,. or any other labor organization. WtE WILl. NOT refuse to recognize Hotel & Restau- rant Employees and Bartenders Union, Local 868, AFL C10 as the collective-bargaining representative of: All full-time and regular part-time food and bever- age department employees employed by Motor Inn of Perrysburg, Inc.. d/h/a Holiday Inn of Perrys- burg. Ohio, at its Perrysburg. Ohio facility, including cooks, salad help, dishwashers. porters, waitresses. bartenders, and bus help but excluding all desk clerks, maintenance employees, housemen. maids. managers, assistant managers, office clerical employ- ees and all professional employees, guards. and su- pervisors as defined in the Act, and all other employ- ees. Wi. WllI. NO) in an) other manner interfere with any of your rights set forth above which are guaran- teed by the National I.abor Relations Act. Wt. Wtl.l. abolish the captain system in our night dining room operations and reinstate the former waiter-waitress-busperson system as it existed prior to February 23, 1976. WE wll.t. offer the following employees immediate and full reinstatement to their former positions in the night dining room department dismissing if necessary any one who may have been hired or assigned to per- form the work which they had been performing under the waiter-waitress-busperson system, or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of our discrimina- tion. Nancy Artz Glendine Bernt Karyn A. Ciprian Betty Cox Tim Zirke Julie McKaig Sue Myer Michael Miller 298 HO IDAY INN OF1 PRRYSBlR(;. OHI() Inez Fallon Gloria Harrigan Sharon Hess Kathy Klein Florena Taylor Janet Kozlowski Victoria Langlois Terry Lynott Bonnie McGeorge Doris Mullins D)oug ()benshain Genevieve Paternite Stephen Presti Joyce Rechtine Joyce Roberge Patricia Roberts Marge Rollins Jim Stefanelli Wi wii.iL. upon request recognize and bargain with llotel & Restaurant Employees and Bartenders Lnion. L.ocal 86h8 AFL ('10. as the collective-hargaining rep- resentative of the employees in the unit described above respecting rates of paN. wages. hours or other terms and conditions of employment and i an under- standing is reached embodN such understanding in a signed agreement. MOlOR INN ()1 PRRYSIBIR(, IN(.. I)/B/A 1()I1- DAY INN o01 PRRYSBUR(, O1ll() 299