Oklahoma Sheraton Corp.

OKLAHOMA SHERATON CORPORATION 681 WE WILL NOT coercively interrogate our employees concerning their union membership, activities, and desires. WE WILL NOT interrogate employees concerning, or request that they furnish us copies of, the statements which they give the National Labor Relations Board during its investigations. WE WILL NOT threaten employees with discharge for signing membership cards in the above-named or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employ- ees in the exercise of their right to self-organization, to form, join, or assist said International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local Union No. 667, or any other labor organization, to bargain collectively thiough representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to Barry James Looney immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay which he may have suffered as a result of our discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. BRASWELL MOTOR FREIGHT LINES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE -We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be alteied, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161. Oklahoma Sheraton Corporation and Hotel & Restaurant Em- ployees and Bartenders International Union, Local 246, AFL- CIO. Case No. 16-CA-2356. January 7,1966 DECISION AND ORDER On October 25, 1965, Trial Examiner Frederick U. Reel issued his Order Granting Motion To Dismiss in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor prac- tices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Exam- iner's Order. Thereafter, the Charging Party filed a request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. 156 NLRB No. 69. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Order, the request for review, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as modified herein.' [The Board adopted the Trial Examiner's Order dismissing the complaint.] 1In adopting the Trial Examiner's recommendation for the dismissal of the complaint, we rely only on the finding that the General Counsel had failed to establish that the Respondent in bad faith declined to recognize the Union on the basis of the Union's proffered card showing . John P. Serpa, Inc., 155 NLRB 99. We do not adopt the Trial Examiner's conclusion that the Respondent's good-faith doubt as to the appropriate- ness of the unit, even If it had been erroneous, would constitute an independent defense to the alleged refusal to bargain. United Aircraft Corporation (Hamilton Standard Division) v. N.L.R.B., 333 F. 2d 819 (C.A. 2), cert. denied 380 U.S. 910; Southhand Point Company, Inc., 156 NLRB 22 TRIAL EXAMINER'S ORDER GRANTING MOTION TO DISMISS This proceeding 1 is before Trial Examiner Frederick U. Reel on Respondent's motion to dismiss which was made following the close of General Counsel's case-in- chief, which I heard at Oklahoma City, Oklahoma, on September 28 and 29, 1965, pursuant to a complaint issued July 16, 1965, on a charge filed June 1 , 1965. Upon considering the evidence adduced by General Counsel, and the memorandum filed in his behalf, I am of the view that the motion to dismiss should be granted , pursuant to the following. FINDINGS OF FACT 2 AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED As found in a prior proceeding involving the same parties (Case No. 16-CA-2049, 152 NLRB 759), and as established by the pleading herein, Respondent , herein called the Company, an Oklahoma corporation engaged at Oklahoma City in operating a hotel, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Charging Party, herein called the Union , is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Background In 1961 the Union attempted to organize the Company's employees. At this time the Union originally sought a bargaining unit embracing all the employees of the Company, with statutory exclusions. The Company stated that it would agree to a consent election in a smaller unit, excluding office clericals, cashiers , and other "white collar" employees. The unit placement of certain casual and part-time employees was also discussed , and the parties eventually agreed to a consent election in the unit urged by the Company. The Union at this time had authorization cards signed by 190 employees. Nevertheless, the Union lost the first election in 1961 by a vote of 132 to 38. This election was set aside pursuant to objections filed by the Union, and in a second election held in 1961, the Union lost 92 to 41. In 1964 the Union again started to organize. On March 13, 1964, the Company discriminatorily discharged the union leader, Leslie Brown. The Board ordered Brown reinstated (152 NLRB 759, decision dated May 21, 1965, not yet complied i The caption of the case reflects the correct name of the Respondent , pursuant to amendment of the complaint made at the outset of the hearing. 2 All facts here found are based on giving the fullest possible weight to the testimony and offers of proof on behalf of General Counsel. Some of these "facts" may be con- troverted by the Respondent if the case should be remanded for further hearing. OKLAHOMA SHERATON CORPORATION 683 with, awaiting review in the Tenth Circuit). Notwithstanding Brown's discharge, the organizing campaign continued, and led to the instant proceeding. B. The Union again obtains a card rnajoi ity, and vainly requests bargaining After Brown's discharge, Union Representative Ellenbarger told Hotel Manager Pennella that the Union would conduct a campaign at the hotel, and expressed the hope that the Company would also conduct a fair campaign. The Union did obtain a number of signed authorization cards, and on Friday, April 9, 1965, Ellenbarger called on Pennella and presented him with both an oral and a written request for recognition and bargaining. At this meeting Ellenbarger handed Pennella 112 authorization cards signed by employees between February 17 and April 9, 1965. Ellenbarger also handed Pen- nella a letter which recited that a majority of the employees "in a unit consisting of all employees in housekeeping, food and beverage, uniform services, repair and maintenance, heat, light and power departments, parking lot attendants and telephone operators" had designated the Union as their bargaining representative. The letter continued, "We offer to prove this majority status through a card check" and con- cluded by requesting a meeting for contract negotiations. Pennella read the letter and looked over the cards, commenting with respect to a few that the employees had left the Company or had been promoted to supervisors He stated, "You know I will have to check these with the Payroll Department, I don't know whether they are my employees or not." Ellenbarger replied that he would be happy to have Pennella check with the payroll clerk and with a disinterested party, such as a clergy- man. Pennella then commented about the inclusion of waiters, to which Ellenbarger returned, "This is the same unit that the Hotel, the Company, and the Union con- sented to in the last election." Pennella pointed out that he had not been with the Oklahoma hotel at that time, and Ellenbarger said that he would get the pertinent papers from his files and furnish Pennella with copies. Pennella then said, "Well, I will have to check this out with Boston [headquarters of the Sheraton Hotel chain].... Well, of course, I will have to do whatever Boston says.... Well, I'll have to check out with Boston, and, whatever Boston says, well, this is what I will do." Ellenbarger returned to his office, extracted the pertinent papers from the 1961 case, and telephoned Pennella, offering to bring him the papers. Pennella "said that this would be helpful, and said that he would have to check this out with Boston." Ellenbarger replied that he realized this as he "had a boss, too." Ellenbarger that afternoon delivered the 1961 documents to Pennella's secretary On April 12 Ellenbarger again wrote Pennella, reciting that on April 9 Pennella had examined the Union's cards and had expressed a desire to have the cards checked by the payroll department The letter continued: "We offer to comply with your request by presenting the cards to a mutually agreeable disinterested party, such as a clergyman." In the letter Ellenbarger again suggested the unit used in the 1961 election as appropriate. He concluded by requesting an early meeting to negotiate a contract. The letter made no reference to Pennella's oft-repeated statement that he was going to check with the Boston office of the Company. One week later Ellenbarger called Pennella and asked for a meeting, and Pennella replied that under instructions from Boston he could not meet with Ellenbarger unless the company attorney were also present, a condition to which Ellenbarger readily agreed On April 23 Pennella replied in writing to the letter of April 12, taking issue with Ellen- barger's assertions that Pennella had examined all the cards and that he had mentioned the payroll department. Pennella's letter concluded. Not only is there doubt as to the validity on the basis on which the union's claim for representation is made, but also there is disagreement that the unit requested is appropriate under the law. Therefore, the company must decline your request for recognition unless and until the pertinent issues are resolved by the National Labor Relations Board, which is the appropriate forum for handling the issues here involved. On April 28 Ellenbarger and two associates met with Pennella and company counsel. Ellenbarger expressed the view that they could easily negotiate a contract. Company counsel replied that the Company did not recognize the Union and would not negotiate in the absence of an election and certification. As the meeting ended, Ellenbarger offered to show the authorization card to company counsel, but the latter declined to examine them. Subsequent correspondence passed between the parties, but reflected no change of position. The Union continued to obtain author- ization cards, and the Company continued to decline to recognize the Union unless and until it was certified. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination Ellenbarger testified that at the Skirvin Hotel in Oklahoma City the Union represented the employees in a large unit , comparable to that which the Union had -first sought at the Sheraton in 1961 . Pennella, called as a witness by General Counsel , testified that the present policy of the Sheraton , as he was advised in Boston , was to seek more comprehensive units than that agreed to in the 1961 election. C. Concluding findings On the foregoing facts, which are either undisputed or rest on testimony of wit- nesses called by General Counsel, and resolving all factual questions in favor of General Counsel's version, I believe the complaint must be dismissed. First, there is a good-faith dispute over the appropriate unit. In Arlington Hotel Company, Inc., 126 NLRB 400, the Board indicated a preference for the all-inclusive unit here sought by the Company but stated that it would honor agreements of the parties excluding or including such groups as office clericals. In the instant case, no such agreement had been reached. To be sure, agreement existed in 1961, but a change of managers and a change of company policy since then left the matter open, par- ticularly as no bargaining history resulted from the 1961 agreement. The unit matter was thus one to be resolved by the Board, as the Company in apparent good faith insisted. Under the recent decision in Clerniont's, Inc., 154 NLRB 1397, no violation can be found, based on a card majority where the employer had a good-faith doubt as to the appropriate unit. Second, the Company engaged in no unfair labor practices after the demand for recognition, and, applying John P. Serpa, Inc., 155 NLRB 99, it cannot be said that the Company "has completely rejected the collective bargaining principle or seeks merely to gain time within which to undermine the union and dissipate its majority." Even accepting Ellenbarger's testimony that Pennella said of the cards, "I would have to check these with our Payroll Department and our Payroll Clerk. . . . You know, I will have to check these with the Payroll Department. I don't know whether they are my employees or not," this is far short of an agreement, such as existed in Fred Snow, et al. d/b/a Snow & Sons, 134 NLRB 709, to abide by a card check by a neutral. Ellenbarger's testimony is most explicit that Pennella in each of the conversations on April 9 stated that he would have to submit the matter "to Boston," and Ellenbarger testified that he "assumed that [Pennella] was going to tell them that [Ellenbarger] had met with him, showed the cards, and gave him a letter requesting recognition." Finally, General Counsel argues that the Company was not acting in good faith, and that a fair election could not be held, because of the unremedied unfair labor practice found in the prior case. But this unfair labor practice was committed in March 1964, and the Union's cards were all signed in 1965. The unfair labor prac- tice did not prevent the Union from obtaining the cards, and as no unfair labor practices have been committed since the cards were obtained, it cannot be said that the unremedied unfair labor practice has any tendency to dissipate a majority acquired subsequent to its commission, or would prevent the holding of a fair elections It is therefore ordered that the Respondent's motion to dismiss the complaint be granted, and said complaint is hereby dismissed .4 'In such an election the discriminatee could cast a challenged ballot . See Old-King Cole, Inc. v. N.L.R.73., 260 F . 2d 530 (C.A. 6). 4 Under Rule 102.27 the parties have 10 days from the date hereof to which to file with the Board a request for review of this Order. Holly Hill Lumber Company and International Woodworkers of America, AFL-CIO. Cases Nos. 11-CA-2593 and 1.7-RC-2048. January 7, 1966 DECISION AND ORDER On September 2.7, 1965, Trial Examiner Robert L. Piper issued his Decision in the above-entitled proceedings, finding that the Respoiid- 156 NLRB No. 72.