Travelodge Corp.

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Travelodge Corporation ; National Motel Locations, Inc.; Lie, Gie Hoat and Lie , Njo Lian Hiap, husband and wife as joint tenants ; Gordan D. Pearson and Evelyn W. Pearson , husband and wife, d/b/a Mission Valley Travelodge and Local Joint Executive Board of Culinary Alliance and Hotel Service Employees Union Local 402, and Waiters & Bartenders Union Local 500. Case 21-CA-7694 May 7, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING, BROWN, AND JENKINS Or. April 22, 1968, Trial Examiner James R. Heming- way issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in any unfair labor practices, and recommending that the com- plaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Gen- eral Counsel and Charging Party each filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondents then filed an answering brief. On January 31, 1969, the National Labor Relations Board, having determined that the instant case raised issues of substantial importance in the administration of the National Labor Relations Act, as amended, ordered that this case be consolidated with three others' for the purpose of oral argument before the Board on March 12, 1969. The parties were given permission to file further briefs. Subsequently, on February 19, 1969, the Board extended the date of the oral argument to April 23, 1969. The Board also invited certain interested parties to file briefs amici curiae and to participate in oral argument. Briefs were filed by The Chamber of Commerce of the United States; American Federation of Labor and Congress of Industrial Organizations; International Union, United Automobile, Aerospace and Agricultural Implement Workers; the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America; and the National Federation of Independent Unions. The Chamber of Commerce of the United States; the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and the National Federation of Independent Unions did not choose to participate in the argument. The National Association of Manufacturers declined either to file a brief or partici- pate in the argument. The Board has considered the Trial Examiner's Deci- sion, the exceptions and briefs, the oral arguments, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent with the following: ' Kota Division of Dura Corporation , 182 NLRB No 51, Hackney Iron & Steel Co 182 NLRB No 53; and The William J Burns Internation- al Detective Agency 182 NLRB No 50 The business enterprise currently involved herein is a motel known as Mission Valley Travelodge. In 1961, the Charging Parties, collectively referred to as the Union, entered into a collective-bargaining agreement with the Restaurant-Hotel Employer's Council of San Diego (herein the Association) which was scheduled to terminate on November 1, 1969. In 1963, Del Webb became the leasehold owner and operator of the motel, operating under the name Del Webb's Hiway House. On September 1, 1963, Del Webb's Hiway House entered into a contract with the Union which was similar to the Association contract. On May 13, 1964, Del Webb's Hiway House joined the Association and agreed to be bound by the association-union contract. In October 1966, Del Webb's leased its interest in Hiway House to Respondent National Motel Locations Inc., which on October 19, 1966, assigned its leasehold interest to a joint venture composed of Respondent National, Respondents Pearsons and a Mr. and Mrs. Miller. This joint venture operated as Hiway House Hotel and, on October 21, 1966, it agreed to abide by the association-union contract. It is not clear whether Hiway House Hotel actually joined the Association. When Hiway House Hotel took over the operation of the motel, it also operated an adjoining restaurant, bar, and coffee shop, as had Del Webb. The restaurant, bar, and coffee shop were included under the collective- bargaining agreement. On November 23, 1966, the food and beverage operations were subleased to A. A. Stadt- miller. On December 29, 1966, Respondent National notified the Union that the food and beverage operations would be terminated on December 31. Apparently because of this combination of events the Trial Examiner concluded that Stadtmiller's interest in the restaurant, bar, and coffee shop ceased as of December 31, 1966. Although there is evidence suggesting that all restaurant employees were, in fact, terminated as of December 31, 1966, the record reveals that Stadtmiller was opera- ting the restaurant, bar, and coffee shop as of the time of the hearing herein. It is unclear as to whether the food and beverage operations ever ceased for any period of time. Moreover, the Union does not now claim the employees of the restaurant, bar, and coffee shop and, at the hearing, it declined to stipulate as to whether it has continued to represent these employees. On January 25, 1967, the standard Travelodge joint venture agreement involved herein as executed. The agreement designates Respondent Travelodge as the party of the first part and provides it with a 25 percent interest in the motel now known as Mission Valley Travelodge. Respondent National has a 371 percent interest, the Respondents Pearsons have 121h percent (National and the Pearsons constituted two of the three partners in the old joint venture and held a 50 percent interest therein) and Respondents Mr. and Mrs. Lie, the resident managers of Mission Valley Travelodge, own the remaining 25 percent. Mr. and Mrs. Lie also receive 10 percent of the adjusted room rental receipts and their living quarters for their services as managers. On February 1, 1967, Respondent National assigned 182 NLRB No. 52 TRAVELODGE CORP. its leasehold interest in the restaurant, bar, and coffeeshop to Mission Valley Travelodge. The record indicates the following with regard to the number of employees involved in the various trans- fers. As of December 30, 1966, the combined motel and food and beverage operations had a total of 16 employees in categories then claimed by the Union. On December 31, eight employees (all presumably involved in the food and beverage operations) were laid off. When Mr. Lie assumed control of the motel operations on January 25, 1967, the record suggests that there were 12 persons then employed in categories claimed by the Union. However, the Trial Examiner found that there were only seven employees involved in the motel takeover. In this regard, the record indicates that the number of maids employed may fluctuate daily depending upon the number of occupied motel rooms. For the 4 months immediately following its inception, the new joint venture undertook substantial remodeling and built an addition to the motel. The motel remained open continuously, albeit at a curtailed level of opera- tions (70 percent closed the first month, 50 percent the second, etc.). In the interim, on February 3, 1967, Travelodge received, pursuant to the association-union contract, the Union's remittance form for its insurance fund. Travelodge returned the form with a notation to the effect that no contract existed between Mission Valley Travelodge and any union. A subsequent union request that Travelodge honor the contract was refused with a denial by Travelodge that it had any contractual obliga- tion. The 8(a)(5) and (1) allegations giving rise to this proceeding resulted. Here, the Charging Parties propose that the Respond- ents honor a collective-bargaining agreement under cir- cumstances far different from those involved in our companion opinion in Burns.' The Union seeks to bind the Respondents to a contract which was executed for an 8-year duration with a multiemployer group. The Respondents have never sought or been offered member- ship in the Association. The association-union contract, when originally applied, covered both motel and food and beverage employees. Now, the restaurant, bar, and coffee shop are operated independently of the motel, which has itself undergone substantial alterations and renovations. Furthermore, it is not clear whether the food and beverage operations were ever terminated for any period of time or whether the Union has continued to represent the employees of the restaurant, bar and coffee shop. The record is further confused regarding the number of employees actually involved when the Respondents assumed operational control of the motel. Under all of the circumstances of this case we cannot find, as in Burns, that there has been that degree of continuity in the employing enterprise which would require that the Respondents honor the collective-bar- gaining agreement in issue . Thus, in refusing to make the payments demanded by the Union herein, Respond- R The William J Burns International Detective Agency, supra 371 ents have not in any manner violated Section 8(a)(5) and (1) of the Act. As we have found that Respondents have not violated Section 8(a)(5) of the Act, as alleged in the complaint, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner: Upon a charge and amended charge filed on August 1, 1967, and on November 9, 1967, respectively, by Local Joint Executive Board of Culinary Alliance and Hotel Service Employees Union Local 402, and Waiters & Bartenders Union Local 500, herein called the Union, against the persons named in the caption above, herein called Respondents, a complaint issued on November 30, 1967, alleging that Respondent had engaged in and was engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, herein called the Act. On December 14, 1967, the General Counsel issued an amendment to the complaint. Respondents' answer, filed on January 5, 1968, denied the Board's jurisdiction and denied the alleged unfair labor practices. Pursuant to notice, a hearing was held at San Diego, California, on February 27, 1968, before me. At the close of the hearing, the parties were given time to file briefs, and this time was subsequently extend- ed to March 27, 1968, at which time briefs were received from all parties. All have been considered.' From my observation of the witness and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS The persons named as Respondents in the caption of this case, on January 25, 1967, executed a standard ' [Certain errors in the transcript have been noted and corrected ] On April 2, 1967, the undersigned received a motion from the General Counsel to correct the transcript by adding ( 1) a stipulation and (2) a question by General Counsel's counsel and an answer thereto by the witness , Lie Counsel for Respondents and Counsel for the Union both consented to the additions Since all parties concur in the stipulation, I accept it, but I find it unnecessary to amend the transcript in order to receive it As to the second addition desired , since the General Counsel does not state the portion of the transcript where such question and answer were omitted by the Reporter , I deduce that the question and answer were not actually put and given at the hearing but that all parties are agreed that the question , if put , would have been answered by the witness , Lie, as shown in the motion I shall, therefore , accept this as a stipulation (since all agree to the additions) without making any physical change in the transcript 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TraveLodge joint .venture agreement to operate a nonre- sidential motel in San Diego , California , under the name of Mission Valley TraveLodge . During the 12-month period commencing April 1 , 1967, and projected to March 31, 1968 , the Respondent derived gross revenue in an amount estimated as between $340,000 and $350,000. The complaint alleges, but the answer denies, that Respondent , during the same period of time, would purchase or would have purchased , materials valued in excess of of $50 ,000 which were or would be shipped from points outside the State of California either directly to Respondent or directly to various firms located within the State of California , which in turn would ship the same materials to Respondent . The General Counsel did not offer any proof of this allegation but rested on the allegation (admitted in the Respondent 's answer) that TraveLodge Corporation (herein called TraveL- odge), a California Corporation , engaged in the business of owning and operating motels, licensing individual motel operators to hold themselves out as operators of TraveLodge motels, and forming joint ventures to operate TraveLodge motels throughout the United States and Canada ,2 annually derived a gross revenue in excess of $500,000 and derived revenue in excess of $50,000 from operations outside the State of California. The Respondent has purchased all of its supplies , with minor exceptions , from Balboa Supply Company, a subsidiary of TraveLodge. If TraveLodge's total operations are taken into account , the commerce figures under the Board ' s formula for determining whether or not to take jurisdiction would easily be reached . But if the commerce data is to be limited to the Mission Valley TraveLodge , the General Counsel has failed to adduce sufficient evidence to satisfy the Board 's dollar requirements . Under the joint venture agreement , TraveLodge has a 25 percent interest in the Mission Valley TraveLodge . Another 25 percent interest is owned by husband and wife Lie , who are given the management rights, while 12th percent is owned by another husband and wife team , the Pearsons, and 37th percent is owned by National Motel Locations, Inc., a New York corporation, herein called National. No commerce data was offered concerning National. Although TraveLodge has only a one-fourth interest, it calls itself "first party" in the joint venture agreement. The remaining joint venturers combined are called sec- ond party , and the agreement gives the first party an equal voice in the conduct of the business subject to stated delegated duties regarding maintenance and opera- tion . Although , by the joint venture agreement, the second party has a right to hire , at the expense of the joint venture , employees or independent contractors needed to maintain the motel in a clean , sanitary , orderly, and neat condition , the hire of other employees (even though at the expense of the second party) is subject to approval of TraveLodge . TraveLodge has the right to inspect the motel at all resonable times and, upon Y The joint venture agreement shows that the name TraveLodge is registered not only in the United States and Canada but also in Mexico written notice, to assume active management without compensation for 5 days in any 3-month period. The second party is required to cooperate with owners and managers of other TraveLodge inns with regard to com- mon problems and policies and to abide by the operating policy decisions of a majority of the area representatives in their coordinating committee meetings. Management rights belong to those owning not less than 50 percent interest , but in the event of a sale by second party of less than their full interest , TraveLodge has the right to designate who shall manage the motel, occupy the manager ' s quarters , and receive compensation for managing the inn . Management rights do not pass to the personal representative of the second party. In the event that rights of second party pass to a , personal representative or in the event of a sale of less than a 50 percent interest by second parties, TraveLodge has the right to designate who shall manage the motel. The second party is required to account to TraveLodge daily for receipts , disbursements , cash on hand and in bank deposits . All account books are kept at TraveL- odge ' s accounting department at El Cajon , California. A guest at any TraveLodge may telephone free any other TraveLodge for a reservation . Because of the degree of control reserved to TraveLodge and because the Mission Valley TraveLodge is held out to the public as one of a chain of TraveLodge motels, I find that commerce of Respondents ' motel should be considered in conjunction with that of TraveLodge' s generally. Hence , I find that TraveLodge and the other Respondents herein are a single employer within the meaning of Section 2(2) of the Act and, inasmuch as the commerce facts concerning TraveLodge 'alone suffice to meet the Board 's commerce standards , I find that the Board has jurisdiction and that it will effectuate the policies of the Act to assert jurisdiction in this case.3 II. THE LABOR ORGANIZATION INVOLVED Local Joint Executive Board of San Diego (herein called the, Union) comprises Waiters and Bartenders Union Local No. 500 (herein called Local 500) and Culinary Alliance and Hotel Service Employees Union Local No. 402 (herein called Local 402). The Union, in 1961, entered into a collective-bargaining agreement with Restaurant-Hotel Employers' Council of San Diego, Inc. (herein called the Association) on, behalf of its members for a term ending November 1, 1969. This agreement covered, in addition to others, all motel employees (housekeeping, service, and maintenance) except employees at the front desk. The Union is a labor organization admitting to membership employees of Respondent 8 Pacific Hosts, Inc-Padre Trails Motel Corp , 156 NLRB 1467, Horizon House , etc , 151 NLRB 766 TRAVELODGE CORP. III. UNFAIR LABOR PRACTICES A. The Union's Relation to Respondent's Predecessors In 1963, 2 years after the Union signed its agreement with the Association, Del Webb, operating a chain of seven to nine motor hotels, became the leasehold owner and operator of the motel location here involved, and it was operated under the name of Del Webb's Hiway House. On September 1, 1963, Del Webb's Hiway House entered into a collective-bargaining agreement similar to that of the Association. Thereafter Del Webb's Hiway House became a member of the Association and on May 13, 1964, the Association gave the Union notice that Del Webb's Hiway House had joined the Associa- tion. By the terms of the contract, this automatically brought Del Webb's Hiway House under the Union- Association collective-bargaining agreement, an agree- ment which contained a union-shop clause. In October 1966, Del Webb's leased its interest in the Hiway House motel location to Respondent National, who on October 19, 1966, assigned its leasehold interest so acquired to a joint venture composed of National, the Respondent Pearsons, and Robert and Victoria Miller, husband and wife. This joint venture called itself Hiway House Hotel. On the same day, October 21, 1966 (according to a stipulation received at the hearing), Hiway House Hotel agreed to abide by the terms of the agreement between the Union and the Association, under which Del Webb's Hiway House operated. It does not appear whether or not Hiway House Hotel was a member of the Associa- tion. The agreement of Hiway House Hotel to a abide by the terms of the Association contract is evidenced by a letter written by the Union to "Mr. Kaneb" in care of Hiway House Motel and confirmed by the signa- ture of E. J Kaneb, who signed "Hi-Way House." According io a stipulation received after the close of the hearing, Edward Kaneb was, during the time that Hiway House Hotel operated the motel, an official of Respondent National. When Hiway House Hotel first took over the operation of the motel, it operated it in conjunction with an adjoining coffee shop, restaurant, and bar, as had Del Webb. The Association contract covered employees of those operations as well as employees of the motel proper. On November 23, 1966, Hiway House Hotel subleased the coffee shop, restaurant, and bar to a man named A. A. Stadtmiller. There is no evidence as to whether or not Stadtmiller assumed the obligations of the Union's contract. On December 29, 1966, National wrote to San Diego Bartenders and Culinary Workers Union, Local 402 (one of the two unions making up the Joint Board) stating that because National was losing large sums of money in the operation of the restaurant, the restaurant would be permanently closed on December 31, 1966, and that National planned no more food or beverage operations after that date. Seven employees were terminated on that date. Stadtmiller's interest apparently died at the same time. The motel employees continued to be employed by Hiway House Hotel until January 25, 1967. B. Respondents' as Successors 373 On the latter date, January 25, 1967, the joint venture agreement between the individual Respondents was exe- cuted, and the joint venture known as Hiway House Hotel was dissolved. National, on February 1, 1967, assigned its leasehold interest in the motel to the new joint venture, known as Mission Valley TraveLodge. The two Lies were designated managers of the Mission Valley TraveLodge in the joint venture agreement. In addition to their return on their 25 percent interest in the joint venture, the Lies receive 10 percent of the adjusted room rental receipts and the manager's quarters for their services as managers. Lie (when used in the singular meaning the husband) notified the motel employees, seven in number, that they were terminated but that he was rehiring them. All obligations to the employees were paid by Hiway House Hotel up to the date Mission Valley TraveLodge took over, the books of that joint venture were closed and were sent to National's home office at Rochester, New York. The new joint venture borrowed about $116,000 from a bank and set about the renovation of the motel. In all, it spent close to $150,000 in painting inside and out; installing all new furniture and furnishings; landscaping, including installation of a lawn sprinkler system; the building of a two-story addition (the lower floor of which became the managers' apartment); the addition of a swimming pool and new telephone equip- ment . During the period of renovation, the motel was 70 percent closed for one month and then gradually was opened. At the end of the second month, about 50 percent was closed. The renovations took about 4 months to complete. During this period, the motel employed only as many employees as were needed to keep up the curtailed operations.4 C. Union's Demand for Performance and Respondents' Refusal On February 3, 1967, the Union's remittance form for its insurance fund' was received by Respondent TraveLodge. Cliff Emery of TraveLodge returned the form with a memorandum saying that "there does not exist a union contract between the Mission Valley Tra- veLodge and any union." This reply was referred by the Union to its lawyer, who, on March 2, 1967, wrote to Emery at El Cajon, stating: Please be advised that as the successor to Mr. Edward A. [J.?] Kaneb, as the employer signatory to the current collective-bargaining agreement cov- ering San Diego Hiway House, 1201 Camino del Although the motel was partially open to the public, it was only 80 to 90 percent occupied ' This is a list of employees of the employer, their social security numbers, number of shifts worked during the past month, hiring date of new employees, and termination dates of any terminated Under the Association contract with the Union, a certain amount of money per employee-shift worked was obliged to be remitted to the Union's health and welfare insurance fund 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rio," San Diego , California , you are bound to per- form that contract according to its terms for its duration. Your failure to complete the remittance forms pursuant to the trust provisions of that contract is a violation thereof. Our client and this office -on its behalf will enforce its agreement with you as a successor employer according to its terms. You can avoid the expense of appropriate enforcement action by notifying the undersigned of your prompt compliance. Emery referred the foregoing letter to Allan Frostrom, resident counsel of TraveLodge, who replied: To the best of our knowledge there is no collec- tive bargaining agreement in force with regard to the TraveLodge at 1201 West Hotel Circle, San Diego. All employees were terminated , and while some were rehired , I do not know how many. The motel is known as the Mission Valley TraveL- odge and is owned and operated under the terms of a standard TraveLodge Joint Venture Agreement. Since we have entered into no contract with Culinary Local. 402 or the Bartenders Local 500, nor any other union, we must take exception to your letter. D. The Appropriate Unit, and the Union's Majority Therein The General Counsel has not argued the unit question except to allege that a unit limited to the motel employ, ees, excluding those at the front desk, is appropriate.7 The complaint also alleges that Respondent is a successor to National. The General Counsel's theory is, therefore, that the contract was binding on the successor and that there was a refusal to abide by the terms of the contract-not on the theory, of a request and refusal to bargain for a new agreement . The description of the unit and of the Union 's majority therein appear to be offered to conform to the traditional pattern in cases under Section 8(a)(5) of the Act, although it is the failure to abide by the contract that is alleged to be the refusal to bargain . Yet, it is difficult here to find any conformance to the normal pattern . The unit alleged is a unit of all employees of all members of the, Association, but now it is argued that a unit of Respondents' motel employees is appropriate. The insurance form which was returned by Emery to the Union was not introduced in evidence . I assume that it was not addressed to TraveLodge but to Hiway House, inasmuch as it must have covered the month of January 1967, when Hiway House was still operating h If that had been the name of the street earlier, it had not been used since 1964 or before The address was 1201 W Hotel Circle The unit alleged by the complaint to be appropriate was All employees coming under the jurisdiction of the Union , including kitchen and stockroom employees, lunch and dining room employ- ees, fountain and stand employees , cafeteria employees , bartenders and cocktail lounge employees , bartenders , special short shifts, housekeeping and service department employees and motel em- ployees the motel . Hence, that form would not have been a request to the Respondents to bargain . The complaint alleges a request to bargain on March 2, 1967. But the letter written by the Union ' s counsel to TraveLodge on March 2, 1967, cannot be deemed to be a request to bargain . It was a demand for compliance with the terms of its contract with Hiway House , not a request otherwise to bargain with the Union. Nor was this letter treated by the General Counsel as a request to bargain in the conventional pattern ,, because if the Union's letter of March 2, 1967, had been the request relied on, and if the reply of TraveLodge, dated March 6, 1967, were to be taken as the refusal to bargain, then it would have been incumbant on the General Counsel to prove the Union' s majority on March 6, 1967. No attempt was made to do so . The General Counsel relied entirely on a presumption of continued majority and on the assumption that a successor is bound ipso facto by the contract entered into by the predecessor . No alter ego theory was relied on in the pleading although , in the briefs of the General Counsel and the Union, the identity of two of the four Respond- ents with the owners and operators of the previous joint venture were pointed up. I do not have much doubt that Respondents were successors to Hiway House Hotel , the previous joint venture . Although a great deal of money was spent on improving the property, the essential nature of the business continued with only a partial interruption, and the employees retained by Respondents' continued to perform the same duties.' Although I incline to the view that a presumption of continued majority should be indulged in only where a union establishes its majority properly in the first instance , either by Board certification or by a bona fide card check (facts which are now shown here), this may no longer be an open question. It has been held that a presumption of majority arises from a prior recognition and collective bargaining by a predecessor without proof that the recognition was based on the employees ' choice.10 This is not to say, however, that, if the facts show affirmatively that a union-shop contract was imposed on employees who did not choose to be represented by a union, the mere existence of a contract would give rise to a presumption of majority. And if a union-shop contract is effected merely by the fact that an employer joins an association of employ- ers who has agreed that new members would become bound by the contract , the coercion of the new member's employees to join the union under a union-shop clause, can, in my opinion , be justified , if at all, only on the basis that the new member's employees are absorbed " The ritual of discharge and immediate rehire does not alter the fact of continuation of the employment relationship. 9 Maintenance Incorporated, 148 'NLRB 1299, Valleydale Packers, Inc., ofBristol,' 162 NLRB 1486 10 Shamrock Dairy, Inc , 124 NLRB 494 The Board presumed the legality of the recognition and of the contract , because otherwise the predecessor would have been guilty of an unfair labor practice. This might be called a presumption of continued majority based on a presump- tion of legality of recognition See also Valleydale Packers, Inc , of Bristol, 162 NLRB 1486 TRAVELODGE CORP 375 into a larger existing unit where there is already contract coverage Before Del Webb's Hiway House Hotel, Inc , joined the Association, it had already executed a union-shop contract with the Union for employees coming under the jurisdiction of both locals of the Union This contract had an expiration date of November 1, 1966, with an automatic renewal clause unless terminated on 60 days' notice prior to that date The General Counsel and the Union do not, however, make any contention that that contract was still in existence When Del Webb's Hiway House Hotel, Inc , joined the Association in 1964, the Association contract apparently was recognized as superseding the original agreement , and it was the Association contract to which Webb's successor, Hiway House, agreed to be bound, although that successor was not shown to be a member of the Association At the time when the successor Hiway House contract- ed separately with the Union, it was, in effect, carving its employees out of the unit of employees of all Associa- tion employers and establishing a separate unit of its individual employees in its restaurant, coffee shop, bar, and motel Again, its employees had imposed on them a union-shop contract with no opportunity to make the choice of representative for themselves My personal feeling in the matter is that this would be a good time to give the employees a chance to express themselves However, I find, for reasons hereinafter stated, that it is unnecessary to pass on the appropriateness of the smaller unit or on the question of the Union's majority either E Refusal to Bargain This is not a case where the successor is called upon to remedy an unfair labor practice of his predeces- sor The predecessor is not alleged to have committed any unfair labor practice Nor is it a case of a refusal to negotiate a new contract The complaint is that Respondents, as successor to an employer who had entered into a contract with the Union, are automatically bound by that contract by virtue of their successorship In support of this theory, the General Counsel and the Union, in their briefs, rely on John Wiley & Sons v Livingston, 376 U S 543, and Wackenhut Corporation v Plant Guards, 332 F 2d 954 (C A 9), which followed Wiley Neither of these cases arose as an unfair labor practice case, however Both were concerned with the survival of arbitration rights The Union also cites Webster Wood Industries, Inc , 169 NLRB 67 In that case, a union had been certified by the Board and had commenced negotiations but had not reached a contract The Board found a duty on the part of the successor to continue to bargain collectively with the union That case is not like this, therefore, where the Union in claiming only that Respondents failed to perform a contract entered into by their predecessors The Union also cites Valleydale Packers, Inc , of Bristol, 162 NLRB 1486 Although the issue was there raised as to whether or not a successor was bound by its predecessor's collec tive-bargaining agreement, the Trial Examiner did not decide the issue in his Decision issued on December 15, 1965, but referred that issue to the Board The Board decided on February 7, 1967, that in view of the expiration of the contract on March 6, 1967, "no useful purpose would be served in determining the Respondent's liabilities, if any, under its predecessor's collective-bargaining agreement in this case " In a later case, Glen Goulding dl bl a Fed-Mart, 165 NLRB 202, the Trial Examiner was presented with this issue, and in this case he decided that the Respondent was bound by his predecessor's collective-bargaining agreement The Board in that case said, "While we agree with and adopt the Trial Examiner's findings with respect to Respondent's duty to bargain we are unwilling on the instant record to hold that the successor employ- er's statutory duty to bargain obligation extends beyond the fundamental duty to recognize and bargain in good faith with the labor organization that has been designated by the predecessor's employees " The Board went on to state that there were uncertainties in that case that the contract had been entered into through arms length bargaining, and, since the contract had been signed only 13 days before the successor took over the business, the contract did not appear to have been implemented That there is no precedent for the proposition that a successor is bound by virtue of being a successor to give effect to a collective-bargaining agreement entered into between the predecessor and the employees' collec- tive-bargaining representative just by virtue of successor- ship to the business is clear, but even in cases where the issue has heretofore been raised there was a charge of refusal to bargain aside from the refusal to give effect to the contract I find a distinction between an alleged breach by Respondents of a contract made by their predecessor and a breach of a statutory duty to bargain The former is based solely on the contract and successor relationship The latter is based on a statutory duty to meet with the Union and to negotiate a collective bargaining agree- ment The Board has been given no authority to enforce contracts as such If the Union has a contract with the Respondents at all, a forum is provided in the Federal District Courts under Section 301 of the Act, or in a State court In Charles Dowd Box Co v Courtney, 368 U S 502, the Court said, with reference to the history of Section 301 of the Act The bill which the Senate originally passed contained a provision making a breach of a collec- tive-bargaining agreement an unfair labor practice subject to the jurisdiction of the National Labor Relations Board, S 1126, 80th Cong , 1st Sess , §§8(a)(6) 8(b)(5) as well as a provision conferring jurisdiction upon the Federal Courts over suits for violation of collective-bargaining agreements In conference, however, it was decided to make collective-bargaining agreements enforceable only in the courts `Once parties have made a collective- bargaining contract,' the conference report stated, `The enforcement of that contract should be left 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the usual processes of the laws and not to the outcome of the case I find that there is involved the National Labor Relations Board ' H R Conf here only an alleged breach of contract and not a refusal Rep No 510, 80th Cong , 1st Sess , p 42 to bargain within the meaning of Section 8(a)(5) of the Act The additional circumstance that a successor to he Upon the foregoing considerations , I recommend that employer contractor is involved is not enough to alter the complaint be dismissed in its entirety