The Little Rock Downtowner, Inc.

THE LITTLE ROCK DOWNTOWNER, INC. 107 The Little Rock Downtowner, Inc. and Hospital- Hotel-Motel, Restaurant Employees Union, Local 200, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO. Cases 26-CA-2415 and 26-CA-2654 November 7, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 14, 1967, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent filed excep- tions to the Trial Examiner's Decision and a sup- porting 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 powers in connection with this case to a three- member panel. 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 Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner, as modified below. The Union was certified on November 7, 1962. On July 29, 1963, and January 28, 1964, the Board issued Decisions and Orders, finding in part that Respondent had unlawfully refused to bargain with the Union. Following enforcement of these Orders by the court of appeals on March 5, 1965,2 ,the parties held a series of collective-bargaining meetings through April 8, 1966, although no con- tract was reached. Meanwhile, Respondent had uni- laterally raised the wages of certain employees. At the April 8 meeting, the Union complained to Respondent that this unilateral action was unlawful, and asked Respondent to agree to cease making unilateral changes in the future. Upon Respond- ent's refusal, the Union filed the original unfair labor practice charge in this case, alleging that the Respondent was refusing to bargain collectively in violation of Section 8(a)(5) and(1) of the Act. The Regional Director refused to issue a complaint based on the charge. The Union thereupon ap- pealed the Regional Director's Decision by requesting the General Counsel to review such ac- tion, pursuant to Section 102.19 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended. The Union requested further negotiations with Respondent around the second week of December 1966. In late December 1966, the General Counsel reversed the Regional Director's Decision and directed that a complaint be issued, whereupon Respondent agreed to meet with the Union on January 12, 1967. At the meeting, however, Respondent's attorney asked Union Representative Yeargan to account for his absence during the preceding 8 or 9 months. When Yeargan refused to do so, Respondent's attorney advised Yeargan that Respondent "doubted that the Union represented a majority of its employees," and added that Respondent would no longer recognize or bargain with the Union. Following this meeting, Respond- ent, in the latter part of the month, unilaterally changed the working hours and-days of a number of its employees. About the same time, the restaurant manager, Hixon, told a group of employees to stop talking about the Union, and further told them that it would not do them any good even if they did be- long to the Union. He also asked some employees if they had signed union cards on the job, although there was no explanation that Hixon believed they had done so on the job. In these circumstances, we agree with the Trial Examiner's conclusion that Respondent violated Section 8(a)(1) and (5) of the Act. The violations consist not only of the unilateral wage changes made prior to the meeting of April 8, 1966 3 but also of the refusal at that meeting to agree to discon- tinue further unilateral action, the refusal to con- tinue to recognize the Union at and after the meet- ing of January 12, 1967, and the subsequent state- ments and unilateral actions set forth above. It is well settled that after the first year of certification a Union's majority status is presumed to continue.' In order for Respondent to rebut that presumption, it must show that it had a reasonable good-faith doubt of the Union's continuing majority. As we ' The Trial Examiner incorrectly found that on January 1, 1966, H D. Becker's monthly wages were increased from $100 to $120 and Chmmie Stewart's daily wage was increased from $10 80 to $12. The record reveals that Stewart received the monthly increase and Becker received the daily raise 2 N.L.R.B. v. Little Rock Downtowner, 341 F.2d 1020 (C A 8) 8 We agree with the Trial Examiner that increases granted without con- sultation with the Union constituted unlawful refusals to bargain. With re- gard to Stewart, we specifically reject Respondent's contention that bar- gaining was not required because Respondent had good cause to increase Stewart's duties (to conform to the local health officer's order to improve sanitary conditions) and therefore his wages The duty to bargain remains regardless of the reason for the wage increase. 4 Celanese Corporation of America, 95 NLRB 664 The Richard W. Kaase Company, 141 NLRB 245 168 NLRB No. 18 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said in C & C Plywood Corporation and Veneers, lnc.,5 however, the prior unremedied unfair labor practices were "of such character and effect as to preclude Respondents from thereafter questioning the Union's majority status in good faith." In any event, as we said in Laystrom Mfg. Co.,6 the ex- istence of a good-faith doubt "requires more than an employer's mere assertion of it and more than proof of the employer's subjective state of mind. The assertion must be supported by objective considerations." Respondent advances several grounds which it claims "objectively" supported its doubt in January 1967: Employee turnover and expressed employee dissatisfaction with the Union. We agree with the Trial Examiner's rejection of these defenses. Respondent also contended before the Trial Ex- aminer, and again contends before us, that another basis for its belief that the Union no longer represented a majority of its employees was the absence of any attempt by the Union to negotiate with Respondent between April 8, 1966, and December 1966. This 8-month hiatus in the Union's efforts to bargain with Respondent is said to reveal the Union's abandonment of the unit em- ployees, and, Respondent contended, justified its inference that the employees no longer supported the Union as their bargaining agent. We do not agree. When the Union ceased efforts to bargain with Respondent after April 8, it had reason for believing that Respondent would not continue negotiations in good faith, and filed a charge to that effect. We find merit in this charge in that on two separate occasions Respondent had uni- laterally altered the wages and working conditions of employees in the bargaining unit. Both at the April 8 bargaining meeting in Little Rock and again in early May in Memphis, when Yeargan attempted to secure Respondent's agreement to a cessation of unilateral changes, Respondent refused to agree to these requests. Under the circumstances, Respond- ent could not reasonably regard the Union's sub- sequent 8-month absence from the bargaining table either as an abandonment of the unit employees or as an indication of loss of employee support. It is well settled that where further negotiations appear to be futile, a union is justified in not seeking to con- tinue them.7 Respondent's unilateral changes of working conditions, without consultation with the bargaining agent are violations which strike at the heart of the Union's ability to effectively represent the unit employees. There is no clearer or more ef- fective way to erode the ability of the Union to bar- gain for the employees than for Respondent to make such changes without consultation with the Union. Respondent, after having committed viola- tions which reasonably resulted in the Union's deci- sion to regard further attempts to bargain as futile, may not seize upon its own wrongs to charge an abandonment by the Union of the unit employees or to infer a loss of employee support. Rather, it ap- pears to us that the Union's prompt filing of the original unfair labor practice charge, and its ulti- mate successful prosecution of an appeal from the Regional Director's dismissal, amply demonstrate its zealousness and continuing interest in represent- ing the unit employees. Until the April 8 meeting, the Union had met with Respondent many times in an effort to induce Respondent to bargain in good faith, as the Act requires. Respondent is in no posi- tion to defend its later withdrawal of recognition when the Union resorted to Board processes in- stead of continuing to try to induce Respondent to discharge its bargaining obligation. Accordingly, we find that Respondent has unlaw- fully refused to bargain with the Union in violation of Section 8(a)(5) and (1). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, The Little Rock Downtowner, Inc., Little Rock, Arkan- sas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order.8 5 163 NLRB 1022 6 151 NLRB 1482, 1484 Although this Decision was denied enforce- ment , we view the court's action as differing with the Board in evaluating an evidentiary matter rather than as disagreeing with the applicable princi- ple set forth above 359 F 2d 799 (C A 7) ' Dixie Culvert Mfg Co, 87 NLRB 554, Toledo Desk & Fixture Co, 75 NLRB 744 " Delete from paragraph 2(b) of the Trial Examiner's Recommended Order that part thereof which reads to be furnished " and substitute therefor "on forms provided TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon charges, duly filed, the General Counsel of the National Laboc Relations Board, by the Regional Director for Region 26 (Memphis, Tennessee) issued a complaint on February 7, 1967, against The Little Rock Downtowner, Inc., herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Thereafter the Respond- ent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Trial Ex- aminer John P. von Rohr on April I I and 12, 1967. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-ex- amine witnesses, and to file briefs. Briefs have been received from the General Counsel and the Respondent and they have been carefully considered. THE LITTLE ROCK DOWNTOWN ER , INC. 109 Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Arkansas corporation, operates a motel in Little Rock, Arkansas, the only motel involved herein. The Respondent concedes, and I find, that it is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act.' H. THE LABOR ORGANIZATION INVOLVED Hospital-Hotel-Motel, Restaurant Employees Union, Local 200 , Hotel & Restaurant Employees and Bartend- ers International Union , AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background; the Issue On November 7, 1962, the Board certified the Union as the collective-bargaining agent of Respondent's em- ployees in the following unit: All regular and full-time and part-time employees of Respondent employed at its Little Rock, Arkansas, place of business, including front office employees, porters, cleanup men, maids, waitresses, cooks, dishwashers, potwashers, and room service em- ployees, but exclusive of office clerical employees, watchmen and guards, and supervisors as defined in the Act.2 On January 28, 1964, the Board issued a Decision and Order in which it found that the Respondent had engaged in certain unfair labor practices including, inter alia, that the Respondent had refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. The Little Rock Downtowner, Inc., 145 NLRB 1286. On March 5, 1965, a United States Court of Appeals granted enforce- ment of this finding of the Board. N.L.R.B. v. Little Rock Downtowner, Inc., 341 F.2d 1020 (C.A. 8). Following the court's decision, the parties engaged in a series of collective-bargaining meetings. No contract was reached. A final meeting between the parties was held on January 12, 1967, at which time the Respondent refused to bargain with the Union on the asserted ground that the Union no longer represented a majority of the employees in the appropriate unit. The principal issue in this case is whether the Respondent in fact held a good- faith doubt as to the Union's majority status. B. The Facts Pertaining to Respondent's Refusal To Bargain As noted above, the Respondent admittedly refused to bargain with the Union at a meeting held on January 12, 1967. The last bargaining meeting prior to this meeting took place on April 8, 1966, at which time the Union was represented by Earl Yeargan, then an International representative. Yeargan, it may be noted, acted as representative of Respondent's employees from 1962 to 1964. After an absence of approximately 2 years, during which time he was replaced by another union representa- tive, Yeargan again appeared as the union representative at the April 8 meeting. Thereafter, in about May 1966, Yeargan again left the Little Rock area. He testified that prior to leaving he advised the Local Union to contact At- torney John Sizemore if any assistance was needed. Yeargan's wife also remained as secretary-treasurer of the Local. She resigned this position in October 1966, at which time she was replaced by George Creach, who thereafter also acted as business agent for the Local. No agreement having been reached at the April 8, 1966, meeting, the Union made no further efforts to bar- gain until the second week in December 1966, at which time Sizemore, the Union's attorney, sent a letter to Respondent's attorneys in which he requested the re- sumption of bargaining negotiations.3 It was finally agreed that a meeting of the parties would be held on January 12, 1967. In the meantime , and shortly after the receipt of Sizemore's bargaining request, Respondent's attorneys contacted Bart Santaro, the innkeeper and manager of the motel, and sought to ascertain from him whether the Union still represented a majority of the employees in the appropriate unit.4 Thereafter, once in the latter part of December 1966 and again in about the first week in January 1967, Respondent's attorneys met with Santaro and the restaurant manager, Robert Hixon, at which time discussions were held concerning the Union's majority status. Before entering the January 12 meeting, the Respondent determined that it would take the position that the Union no longer represented a majority of the employees in the unit.5 Aside from irrelevant detail, there is no material dispute as to what transpired at the Jaunary 12, 1967, meeting. Union Representative Yeargan began by -presenting a document which apparently covered the Union's past contract proposals. It is undisputed that at this point Respondent's attorney, Brackhahn, asked Yeargan where he had been during the approximate past 8 or 9 months. Yeargan responded that it was none of his business. After some further discussion along this line, Brackhahn finally advised the union representatives that the Company "doubted that the union represented a majority of its employees"s and that it would no longer bargain with the Union. The Respondent has continued to refuse to recognize the Union as the employees' collec- tive-bargaining agent. The Respondent advances two reasons for arriving at its conclusion that the Union had lost its majority status. ' The jurisdictional facts are set forth m'The Little Rock Downtowner, Inc , 143 NLRB 887 and 145 NLRB 1286, wherein the Board has previ- ously asserted jurisdiction over this Respondent 2 In accordance with the Board certification, I find the above unit to be appropriate for the purposes of collective bargaining Respondent's con- tention that two employees should be excluded from the unit is discussed hereinafter. J The Respondent 's attorneys referred to herein are the same as those who represented it in the instant hearing Certain undisputed facts set forth herein, including the bargaining request of Sizemore , are taken from the affidavit of Respondent Attorney Brackhahn. (G C Exh 2) As stated in the affidavit of Attorney Brackhahn , " I then [upon receipt of Sizemore's letter] directed inquiry of Santaro whether or not he believed that the union represented a majority of his employees at that time " 5 Notwithstanding Santaro's testimony that Respondent went to the January 12 meeting with the intent to bargain , the undisputed position taken by the Respondent at this meeting , as hereinafter set forth, indicates to the contrary Moreover, the predetermined position of the Respondent, as reflected in Brackhahn's affidavit, was that "The doubt of the employer in this regard [the alleged lack of majority ] was expressed to the represent- atives . . on the 12th day of January 1967 ^ Affidavit of Brackhahn 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first pertains to the turnover of employees which oc- curred since the Union's certification and the second is predicated upon Respondent's appraisal of its employees' interest (or lack thereof) in retaining the Union as their bargaining representative. These are discussed as fol- lows: 1. Turnover of employees With respect to the turnover of employees, the parties stipulated that Respondent's records reflect as follows: (1) that the payroll just preceding January 15, 1967, in- cluded the names of four employees who were listed on Respondent's payroll of October 10, 1962;7 (2) that of the 36 motel employees (exclusive of restaurant em- ployees) employed on January 12, 1967, 18 were in the Company's employ on April 8, 1966;8 (3) and that of the 29 employees employed in the restaurant on January 12, 1967, 12 were on Respondent's payroll as of April 8, 1966.9 2. Respondent's appraisal of the employee's interest in the Union In addition to Respondent's "turnover" defense, Respondent contends that it observed a falling off of union activity at the motel and that this bolstered its con- clusion that the Union no longer represented a majority of the employees. Innkeeper Santaro and Restaurant Manager Hixon were called by the Respondent to testify concerning their observations in this regard. In testifying as to his basis for doubting that the Union had a majority in January 1967, Santaro began by stating, "Well, we had a large amount of turnover in our staff; also from observing this at our meetings and seeing the number of people who were supposedly Union members, I got the impression that there were not as many Union members as anyone else had thought." Santaro then stated that he "assumed" that it was "just" the employees who attended the bargaining meetings who were members of the Union. It was thereupon established that Santaro had attended only one bargaining meeting prior to the January 12 meeting, Indeed, a careful study of Hixon's Santaro further testified that prior to April 8 he observed union representatives come into the restaurant "at least every couple of weeks ... to speak to Laura Tackett or some in the restaurant." This, he said, did not continue after April 8.10 However, on cross-examination Santaro conceded that he never was advised that any employee had withdrawn from the Union or that any employee had ever stated to him that he could not sign up with the Union; further, that in January 1967, he did not know which of the employees were union members and which employees were not. Turning to the testimony of Restaurant Manager Hix- on, I should first note that Hixon impressed me as a distinctly unreliable witness. Much of his testimony was confused and rambling, punctuated with conclusions, and frequently not responsive to the questions put to him. Hixon began his testimony by stating that in about the middle of December 1966, he noticed that employees in the restaurant whom he knew to be union members or "sympathizers" were gathering around and talking among themselves. He said that, "in order to try to find out what was going on, I would go around and police my dining room, pick up a little piece of paper here and there and wipe off tables, and, of course, they would depart." As he later conceded, all this came to naught for he could not hear what the employees were saying. Also on direct ex- amination Hixon gave conclusionary testimony to the ef- fect that prior to the January 12, 1967, meeting he con- ferred with Santaro and the Company's attorney, during which conference they concluded that of the 23 or 24 restaurant employees 6 employees were "positive" union adherents and that "possibly three or four you might say were on the fence, who could move either way." Aside from the lack of probative value which can be accorded this testimony, I refer to it here only because it is demon- strative of the manner in which Respondent apparently arrived at its conclusion that the Union no longer represented a majority of the unit employees. This was even more conclusively demonstrated when Hixon responded on cross-examination as follows: Q. Now, will you tell me how you arrived at that figure? A. Yes sir. During the negotiations in 1965, and also in early 1966, the members that had been at these negotiation meetings with the Union that were still employed at the Restaurant, numbered in my count, the ones who had been there and were not with the company, I came up with the count of six still with the company. Q. These six had participated in negotiations? A. Yes, they had. Q. Now, how did you determine the affiliation of the rest of these employees in the Restaurant? If you can, break them down as to how you separate each group? A. Well, being in the restaurant all of the time and watching the work, and the interest the people take, it is very easy to determine those who are, or are not. Q. What do you mean by that? A. The people who are interested in the service to the company and service to the employees. In other words, the good workers go right on. Now, I do not mean to say by this that you do not have Union mem- bers who are not good workers - In addition to the foregoing, Hixon testified that a number of employees told him that they were not mem- bers of the Union. Again, Hixon's testimony in this re- gard was highly confusing and uncertain. He specifically mentioned the names of employees Mary Lou Rogers, Bonnie Hanneman, Rose Garten, and Clara Burns as having told him that they did not want anything to do with the Union. However, he testified that his conversation with Rogers to this effect occurred on the night of Janua- ry 12, 1967, which was after the meeting wherein Respondent refused to bargain further with the Union. ' The election which resulted in the Union 's certification was held on October 30, 1962 The October 10, 1962, payroll listed the employees employed by the Respondent preceding the election The record does not reflect the number of employees in the unit at the time of the 1962 elec- tion, although the stipulation of the parties reflects that there were approx- imately 60-65 unit employees employed on January 12, 1967 8 It will be recalled that the last meeting prior to the January 12 meeting occurred on April 8, 1966 9 The above data was submitted by the Respondent and agreed to by the General Counsel I have set forth these figures as the only data in the record relative to the turnover of Respondent's employees 10 Along this line Santaro testified, "And after the April 8 meeting I be- lieve there were only two occasions in which I received a telephone call about anything pertaining to Union matters [and] the only correspond- ence I can recall is a telegram I got one time. THE LITTLE ROCK DOWNTOWNER, INC. III This was also true of his conversation with Rose Garten, which he conceded occurred a day or two following the January 12 meeting. Indeed, a careful study of Hixon's confused testimony convinces me that his conversations with Hanneman and Burns, assuming his versions thereof to be true, also occurred at some point after the January 12 meeting." In addition, Hixon testified that he had con- versations with other employees who told him as follows: In December 1965, Mosella Reed, a cook, stated that "some people" came to her home and stated that she had to join the Union to work for the Respondent12• in about December 1966, employee Eline Yamitz stated that she had never been approached by the Union "because she felt that they understood how she felt anyhow"; that Bobbi McGuthrie told him at unspecified occasions in 1966 and 1967 that she was not interested in the Union; and that "back sometime last year" three weekend busboys (he named Leon Jackson, Ronnie Smith, and Napoleon Dennis) told him they were not interested in the Union.13 Thus the extent of Hixon's testimony con- cerning his conversation with employees concerning their lack of interest or membership in the Union. C. Additional Facts; Conclusions as to Respondent's Refusal To Bargain The issue as to Respondent's asserted good-faith doubt of the Union's majority status is governed by well- established Board and court precedent which the Board has recently summarized and reasserted in Laystrom Manufacturing Co. 151 NLRB 1482, 1483 as follows: Absent unusual circumstances, there is an ir- rebuttable presumption that the majority status of a certified union continues for 1 year from the date of certification. [Ray Brooks v. N.L.R.B., 348 U.S. 96; Celanese Corporation of America, 95 NLRB 664, 672.] After the first year the certificate still creates a presumption of majority status, but the presump- tion is normally rebuttable by an affirmative showing that the union no longer commands a majority. Moreover, where the certificate is a year or more old an employer may withhold further bargaining without violating the Act and insist that the union reestablish its statutory representative status if, but only if, he in good faith has a reasonable doubt of the union's continuing majority. [The Richard W. Kaase Company, 141 NLRB 245; Mitchell Standard Cor- poration, 140 NLRB 496; The Randall Company, et al., 133 NLRB 289; Celanese Corporation ofAmer- ica, supra.] A showing of such doubt, however, requires more than an employer's mere assertion of it and more than proof of the employer's subjective frame of mind. The assertion must be supported by objective considerations. The applicable test, as defined in the Celanese case, is whether or not the objective facts furnish a "reasonable basis" for the asserted doubt, or, put another way whether or not there are "some reasonable grounds for believing the Union has lost its majority status since its certification." In the instant case it is clear that in asserting a good- faith doubt as to the Union's majority status the Respond- ent relies chiefly on the turnover in the number of em- ployees in the unit which occurred during the approxi- mate 4-year period following the Board's certification." However, the Board has held that employee turnover of itself cannot be a basis for claiming loss of majority. Thus, in the Laystrom case the Board stated: is Employee turnover standing alone does not pro- vide a reasonable basis for believing that the Union had lost its majority since the prior election. The Board has long held that new employees will be presumed to support a union in the same ratio as to those whom they have replaced. Indeed, the facts in the instant case are stronger than in the Laystrom case, for in the Laystrom case the employer had enjoyed a good relationship with the Union, it had not committed any unfair labor practices, and it finally filed a decertification petition to test the Union's majority. In the instant case, however, more than a 2-year delay in the bargaining process between the Respondent and the Union was incurred as a direct result of Respondent's un- fair labor practices in having refused initially to bargain in good faith with the Union.16 Neither has the Respondent here presented evidence that its asserted good-faith doubt was predicated upon objective factors, such as knowledge of substantial em- ployee defection from the Union or rejection by them of the Union as their collective-bargaining agent. As hereto- fore noted, Manager Santaro admittedly had no knowledge as to the extent of employee membership in the Union ... nor did he offer any testimony whatsoever of having witnessed, or having called to his attention, any employee dissatisfaction with or rejection of the Union. As to Santaro's subordinate, Restaurant Manager Hixon, even construing his testimony in a light most favorable to i i As to employee Burns, it appears from Hixon's testimony that in fact he ascertained that she was "for" rather than "against" the Union Thus, he testified, "Clara Burns told me that she had signed a card a long time ago, and when she told me this at this time, she said that she did not want anything to do with it Of course, I found out later that she did " (Emphasis supplied ) 12 According to Hixon, Reed did not say whether she had ever joined the Union The record does not disclose whether Reed in fact was a member of the Union or not is Employee Ruby Bolin, whom Hixon also named as having stated that she was not interested in the Union, was not in Respondent's employ on January 12, 1967 14 It was not until after the Union's request to bargain in December 1966, that Respondent undertook to ascertain whether the Union main- tained a majority it was at this time that Respondent's attorneys took the initiative by requesting management to obtain whatever evidence it could with respect to the Union's majority or lack thereof As indicated previ- ously, the attorneys thereafter met with management on two occasions prior to January 12, 1967, for the purpose of discussing this matter Sig- nificantly, the affidavit of Attorney Brackhahn cites the percentage of turnover of employees as reflected on the Company' s payroll during the penod in question as the only reason for doubting the Union's majority Attorney Brackhahn , who appears to have been Respondent 's principal representative in dealing with the Union during the period material herein, made no mention in his affidavit that any alleged employee defection from the Union was a reason for Respondent 's refusal to recognize and bargain with the Union 11 The court denied enforcement of the Laystrom case N L R B v Laystrom Manufacturing Co , 359 F 2d 799 (C A 7) However the Board has indicated that it will continue to follow the Laystrom doctrine See Quaker Tool & Die, Inc, 162 NLRB 1307, Palmer Asbestos & Rubber Corp, 160 NLRB 723, M FA Oil Company, 162 NLRB 1071; U S Gypsum Co, 157 N LRB 652 16 As previously noted, the Union was certified on November 7, 1962 The court's decision enforcing an order of the Board directing the Re- spondent to bargain in good faith with the Union did not issue until March 5, 1965 N L R B. v. Little Rock Downtowner, supra 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent, it reflects that during a period including more than a year prior to January 12, 1967, only some 4-6 of the 60-65 unit employees expressed to him a disin- terest in the Union. Surely, this expression from such an exceedingly small percentage of the unit employees is not ground for assuming that a substantial number of them were disenchanted with or had defected from the Union, and I so find. Interestingly enough, Hixon testified that in late December 1966, or early January 1967, he received complaints from several customers to the effect that the waitresses were congregating and talking in the dining room and that he "suspected" that they were talking about the Union. He thereupon found it necessary to warn them about engaging in such activity during working hours. Rather than reflecting employee abandonment of the Union, Hixon's own testimony would seem to in- dicate that union activity among the restaurant employees in fact was still very much alive. In sum, and in view of all the foregoing, I conclude and find that Respondent has not met the test for establishing a good-faith doubt which is sufficient to override its statu- tory bargaining obligation." Accordingly, I find that by refusing to recognize and bargain with the Union on and after January 12, 1967, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. D. Independent Violations of Section 8(a)(5) and (1) of the Act It is undisputed that on January 1, 1966, the Respond- ent unilaterally, without notice to or consultation with the Union, granted wage increases to H. D. Becker, a maintenance employee, and Climmie Stewart, a porter. Becker's monthly wages were increased from $100 to $120 and Stewart's daily rate was increased from $10.80 to $12. Respondent apparently defends this action on the ground that Union Representative Earl Yeargan was not active in representing the Local at this time. However, the evidence reflects that Yeargan was still in the Little Rock area during this period and the Respondent has shown no reason why it could not contact him or some other union representative for the purpose of negotiating the wage rates of these employees. Indecd, Innkeeper Santaro, who granted the wage increases in question, as- serted that in the months prior to the April 8, 1966, meet- ing, he frequently observed union officials come to the motel and speak to the employees. I find Respondent's defense, as aforesaid, to be lacking in merit. Accordingly, I find merit to the complaint's allegation that Respond- Although the Union may have been negligent in pursuing its bargain- ing rights , this was not a valid basis for the Respondent 's refusing to bar- gain Litho-Graphic Press, Inc , supra Unless shown to the contrary by objective considerations , which the Respondent has not shown here, the presumption of the Union's majority status continued 11 At the hearing the Respondent attempted , but admittedly failed, to establish that Becker was a supervisor within the meaning of the Act. I also reject as without merit Respondent 's contention that Becker and Laura Tackett, the latter a desk clerk, should be excluded from the unit for the asserted reason that they do not have a "community of interest with the other unit employees " Suffice it to note that ( I) there is no evidence that Respondent has ever raised any issue concerning the exclusion of these employees from the unit during the 4 years pnor to the instant case, and that (2) the Respondent has not established that the routine duties of these employees are such that they should be excluded from the unit 10 Although there was some discussion concerning the Union during this conversation , there is no allegation in the complaint that Santaro en- gaged in any type of coercive conduct on this occasion Moreover, I was ent's action in granting the aforesaid unilateral wage in- creases, without prior consultation with the employees' bargaining representative, was violative of Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Benne Katz, 369 U.S. 736.18 The complaint also alleges that the Respondent bar- gained directly and individually with employees in the unit on February 28 and March 7, 1966, in violation of Section 8(a)(1) and (5) of the Act. Laura Tackett, the desk clerk, testified that she had a discussion with San- taro on February 28 in which he stated, inter alia, that "he would like to give me and Sallie Berryman some extra duties."19 It is undisputed that on March 7, 1966, Santaro spoke to Tackett and Sallie Berryman, the latter also a desk clerk, concerning the possibility of giving them extra duties, together with additional compensation therefor. However, Berryman credibly testified that Santaro also told them he would have to take the matter up with the Company's regional manager and the Union before any such changes could become effective.20 While the testimony is somewhat confused as to what happened thereafter, it is undisputed that the Union and the Respondent discussed the Tackett-Berryman situation as the next bargaining meeting; it appears that the Union agreed to the additional duties but not to the extra compensation.21 Upon consideration of the foregoing, I fail to see where Santaro's preliminary discussions with the two desk clerks where he indicated the possibility of granting them additional duties and additional compensa- tion (but not before prior consultation with the Union) constituted individual bargaining with the employees in violation of the Act. I shall, accordingly, recommend that this allegation in the complaint be dismissed. The complaint further alleges that in latter January 1967, the Respondent unilaterally changed the working hours and days of its employees without notice to or bar- gaining with the Union. That Respondent in fact made such changes with respect to a number of its employees following Respondent's refusal to bargain on January 12, 1967, is undisputed.22 Inasmuch as I have found that the Union remained the bargaining agent when such changes were made, I find that by taking such unilateral action the Respondent further violated Section 8(a)(5) and (1) of the Act.23 Finally, the complaint alleges that Restaurant Manager Hixon engaged in conduct independently violative of Sec- tion 8(a)(l) of the Act. Relative to this allegation, Clara Burns, a dishwasher, testified without contradiction that in the middle of February 1967, Hixon came up to her and employee Eleanor Barbridge while they were at under the impression that Tackett tended to exaggerate her testimony I do not credit her testimony , which Santaro denied, that during the course of this conversation Santaro volunteered to give her a $500 loan 20 It was Tackett 's testimony that, "He [Santaro ] mentioned that he did not know whether he would go through the Union or through the Com- pany, and that he was also going to Shreveport to talk to Mr Kessler [the regional manager] " 21 Tackett testified that she was given the extra duties pnor to the bar- gaining meeting in which this was discussed Santaro testified that no such action was taken until after the meeting I credit the testimony of Santaro in this regard 22 The uncontroverted and credited testimony of employees Clara Burns and Owlie Gundy 23 In a previous case, the Board found that the Respondent committed similar violations of the Act by unilaterally granting wage increases and by unilaterally changing working conditions of certain employees The Little Rock Downtowner, 145 NLRB 1286 THE LITTLE ROCK DOWNTOWNER, INC. 113 work and asked if they had signed a union card on the job. Elizabeth Bray, a waitress, testified without contradiction that on January 15, 1967, Hixon ap- proached her and three other waitresses as they were standing together in the dining room during a slack period. According to the credited testimony of Bray, Hixon stated that "he was tired of us girls talking this Union business, and furthermore it would not do us any good if we did belong to the Union and that he did not want to hear it any more on the floor." Assuming the situation warranted Hixon in warning the employees not to engage in union activities while they were working'24 I find that Hixon's further statement that it would not do the employees any good to join the Union, particularly in the context of Respondent's unlawful refusal to bargain with the Union 3 days earlier, was violative of Section 8(a)(1) of the Act. I further find that Hixon's unexplained questioning of Burns and Barbridge as to whether they had signed a union card was likewise violative of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, it will be recommended that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. In view of the extent of the unfair labor practices found herein and in view of the commission by the Respondent of similar unfair labor practices in the recent past, I shall recommend that the Respondent cease and desist from in- fringing in any manner upon the rights guaranteed em- ployees by Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2 (5) of the Act. 3. By interfering with, restraining , and coercing em- ployees in the exercise of their rights guaranteed in Sec- tion 7 of the Act, Respondent has engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. All regular full-time and part-time employees of the Company employed at its Little Rock, Arkansas, place of business including front office employees, porters, cleanup men, maids, waitresses, cooks, cashiers, dish- washers, potwashers, and room service employees, ex- cluding office clerical employees, professional em- ployees, watchmen and guards, and supervisors as defined in the Act constitute a unit appropriate for collec- tive bargaining within the meaning of Section 9(b) of the Act. 5. At all times since November 7, 1962, the Union has been, and now is, the exclusive representative of the em- ployees in the said unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 6. By refusing on and since January 12, 1967, to bar- gain collectively with the Union as the representative of the employees in the above unit, and by unilaterally in- stituting wage increases and changing the hours of its em- ployees without notice to or consulting with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of law, and pursuant to Section 10(c) of the Act, it is recommended that Respondent, The Little Rock Downtowner , Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Hospital- Hotel-Motel , Restaurant Employees Union, Local 200, Hotel & Restaurant Employees and Bartenders Interna- tional Union , AFL-CIO, as the exclusive representative of all employees in the appropriate bargaining unit described hereinabove. (b) Unilaterally instituting changes in wages, rates of pay, hours, or other terms and conditions of employment of its employees in the above-described appropriate unit without first notifying and consulting with the Union. (c) Coercively interrogating and threatening its em- ployees, thereby interfering with, restraining , and coerc- ing its employees in the conduct of activities protected by the Act. (d) In any manner interfering with , restraining, or coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of all em- ployees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its motel in Little Rock , Arkansas, copies of the attached notice marked "Appendix ."25 Copies of said notice , to be furnished by the Regional Director for Region 26, after being duly signed by the Respondent's " As previously noted, Hixon testified that he warned employees after receiving complaints from customers that the waitresses were congregat- ing and talking in the dining room 15 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 114 DECISIONS OF NATIONAL representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.26 IT IS FURTHER RECOMMENDED that the complaint be dismissed as to any violations alleged but not herein found. xe In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT interrogate our employees concern- ing their union activities, sympathies, or member- ship. WE WILL NOT tell our employees that it will not do them any good to join the Union. WE WILL NOT refuse to bargain collectively with Hospital-Hotel-Motel, Restaurant Employees Union, Local 200, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, as LABOR RELATIONS BOARD the exclusive representative of all the employees in the bargaining unit described below. WE WILL NOT change hours, wages, working con- ditions, or other terms of employment of our em- ployees in the unit described below without first noti- fying and consulting with the above-named union. WE WILL, upon request, bargain with the above- named Union as the exclusive bargaining representa- tive of our employees in the appropriate unit described below, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All regular full-time and part-time employees employed at our motel in Little Rock, Arkansas, including front office employees, porters, cleanup men, maids, waitresses, cashiers, dish- washers, potwashers, room service employees, excluding office clerical employees, professional employees, watchmen and guards, and super- visors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. THE LITTLE ROCK DOWNTOWNER, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, 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, Ten- nessee 38103, Telephone 534-3161.