Continental Inn

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Interstate 65 Corporation d/b/a Continental Inn and Hotel & Restaurant Employees & Bartenders Union Local 181 . Cases 9-CA-5407-1 and 9-CA-5407-2 October 31, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 24, 1970, Trial Examiner James M. Fitzpatrick 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. The Trial Exam- iner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' 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. 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, the brief, and the entire record in this case, and finds merit in certain of Respondent's exceptions. Accordingly, we hereby adopt the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. 1. Respondent built the motel involved herein in 1961 and operated it until the Pick-Louisville Corpo- ration acquired the facility from Respondent in 1962. Pick recognized the Union on the basis of a card majority shortly after assuming control of the motel and, on January 23, 1963, entered into a collective- bargaining agreement covering such employees as waitresses, maids, housemen, bellmen, busboys, and bartenders. The parties renegotiated wages in 1966 and, on May 2, 1968, executed a new agreement, effective through December 31, 1970. When Pick defaulted on various obligations in March 1969,2 Respondent agreed to reacquire the physical assets of the motel, apparently to avoid foreclosure of the mortgage which Pick had assumed when it purchased the motel . During the month prior to Respondent's taking title to the property on June 5, it repaired and refurbished the building in an attempt to improve the motel's image in the Louisville community. On June 4, at a series of meetings with various groups of motel employees, Respondent's newly appointed motel manager, Dlutowski, an- nounced that Respondent was going to run an entirely different operation at the motel, with better food, better service , new equipment, and higher prices. Respondent retained 50-55 of the 60-65 former Pick unit employees in essentially the same positions they had before the takeover on June 5 . On June 6 and 9, the Union informed Respondent that it was the employees' bargaining agent and that there existed a contract between the Union and Pick . Respondent declined to deal with the Union under the contract or otherwise, stating that it was not Pick 's legal succes- sor. It also changed several employment conditions without consulting the Union, including the elimina- tion of seniority, overtime, and premium time. We agree with the Trial Examiner's well-reasoned conclusion that despite the change in ownership from Pick to Respondent, or the manner in which Respon- dent regained control of the motel and thereafter operated it, the employing industry has remained essentially the same, and that Respondent, as Pick's successor, is bound to recognize and bargain with the Union and honor the contract.3 It follows, as found by the Trial Examiner, that Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union and honor the collective-bargaining agree- ment and by unilaterally changing certain terms and conditions of employment. 2. The Trial Examiner found that Respondent violated Section 8(a)(3) of the Act by initially discharging employees Adams and Dunavan, along with the other unit employees, on June 4, and then conditioning the employees' continued employment on their willingness to work for Respondent without union representation . We disagree. At one of the June 4 employee meetings conducted by Motel Manager Dlutowski as a preliminary to Respondent's assumption of control over the motel on June 5 , the waitresses, including Adams and Duna- van, were told, inter alia, that Respondent had no contract with the Union, that there would be no union at the motel , and that Respondent would be glad to have all the waitresses as employees if they wanted to work without the Union. At the conclusion of his remarks, Dlutowski and Respondent's bookkeeper, Carter, distributed applications for employment to ' Respondent has requested oral argument . The request is hereby denied 2 All dates are 1969 unless otherwise indicated. because the record, the exceptions, and the brief adequately present the 3 The William J. Burns International Detective Agency, 182 NLRB No. issues and the positions of the , parties . 50; Solomon Johnsky d/b/a Avenue Meat Center, 184 NLRB No. 94. 186 NLRB No. 41 CONTINENTAL INN 249 the waitresses, but the supply ran out before Adams and Dunavan could receive their forms.4 Carter thereupon left the meeting room to secure additional applications. At about the same time that Adams failed to obtain an employment application, she overheard Dlutowski tell the dining room hostess to arrange a crew to open up for breakfast the following morning. Adams, who customarily worked the breakfast shift, was not assigned to work the next morning because, as found by the Trial Examiner, Respondent had not received a completed employment application from Adams at the time the crew was assembled. When she did not receive an employment form and assignment to her usual duties, Adams became upset, left the meeting, and went to the motel bar. Dunavan, after complaining to Dlutowski's superi- or that she had not received an application, was given two applications when Carter returned, one of which the Trial Examiner found was "presumably" for Adams, who had left the meeting by then. After reflection, Dunavan decided not to fill out the application, and, leaving both forms in the meeting room, she joined Adams in the bar. The Trial Examiner found that although Dunavan failed to deliver Adams' application to her, Dunavan told Adams about it shortly thereafter when she met Adams in the bar. However, Dunavan's testimony on this point is contradictory. On cross-examination by Respondent's counsel, Dunavan first testified that when Dlutowski gave her the second application for Adams, she left it in the meeting room but told Adams about it in the bar thereafter. Dunavan thereafter testified, upon further cross-examination, that she did not remember mentioning to Adams that she had an application for her. Adams testified that she never obtained an application. The likelihood that she was never told by Dunavan that an application had been made available for her appears to be supported by the following testimony by Adams. When asked by Respondent's counsel if she would like to return to work for Respondent, Adams replied: Well, I liked my job there. I had worked there for 7 years. If I hadn't liked [sic] I wouldn't have stayed that long. But they didn't want me to start with, it doesn't look like, or they would have give me an application, don't you think so? We find, therefore, contrary to the Trial Examiner, that while Dunavan was given an application for Adams, she left it behind in the meeting room upon joining Adams at the bar and never informed Adams of that fact. In short, we find that Adams at all times material herein was of the belief that Respondent had never even offered her an employment application. As noted above, Dunavan was given an employ- ment application after complaining to Dlutowski's superior about not having received one initially. When Dlutowski handed her the form, he told Dunavan, "Well, but no union; no union." Dunavan did not complete her application, but instead joined Adams at the motel's bar. Dunavan testified at the hearing herein about an incident in 1965 when she spearheaded a petition-signing drive designed to have Dlutowski, who was then catering manager for Pick, discharged for cruel treatment of waitresses. Dlutow- ski testified that he left Pick to take a better job. Dunavan testified that she "reconsidered" after receiving the application and left it at the meeting. When asked by Respondent's counsel on cross- examination why she had not filled out the form, Dunavan replied: It was an afterthought, I mean I was upset naturally when I didn't get one.... I don't know how to answer it without being mean. . . . It's obvious. I didn't want to work under Mr. Dlutow- ski. The Trial Examiner concluded that since Pick never authoritatively told the employees that their employ- ment was to be terminated as of June 4, Respondent in effect discharged all the employees on that date, when Dlutowski informed the employees that they would be rehired but without union representation. The Trial Examiner found that "to so condition their continued employment at the motel and to refuse to employ them except under nonunion conditions" was a violation of Section 8(a)(3) of the Act, and that Adams and Dunavan had therefore been the objects of unlawful discrimination. However, to sustain his Section 8(a)(3) allegations in the unusual circum- stances of. this case, the General Counsel must not only establish that Respondent conditioned contin- ued employment on the employees' willingness to work without representation by their duly selected Union, but also that employees Adams and Dunavan chose not to continue in Respondent's employ because Respondent had established that condition. We find that the General Counsel has not proven the alleged violations of Section 8(a)(3) of the Act for the following reasons. It is clear that, through a series of unfortunate circumstances, Adams came to believe that Respon- dent was refusing to employ her. Adams became so upset at not receiving an application and not being assigned to her usual breakfast shift that she left the meeting before she could be made aware that Respondent was securing additional applications for her and Dunavan. Implicit in Adams' desire for an application-and assignment to her normal duties, and 4 The record shows that Adams was currently the union stewardess and Dlutowski had been employed byPick as catering manager at the motel. that Dunavan had been a stewardess some years before , at a time when 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her discomposure at receiving neither, is her willing- ness, if not eagerness , to work for Respondent even under the nonunion conditions earlier enunciated by Dlutowski at the meeting. In short, Adams wanted to continue working for Respondent but erroneously believed that Dlutowski did not want her. Thus, the General Counsel has failed to prove a causal connection between Respondent 's imposition of an illegal condition and Adams' failure to continue in Respondent's employ. In the absence of such a nexus or any proof that Respondent deliberately failed to tender an application to Adams in order to discrimi- nate against her because of her membership in the Union, we find that the General Counsel has failed to establish that Respondent violated Section 8(a)(3) of the Act by not rehiring employee Adams. According- ly, the complaint is dismissed insofar as it alleges that Respondent violated Section 8(a) (3) of the Act as to employee Adams. Similarly, the General Counsel has failed to estab- lish that Respondent violated Section 8(a)(3) of the Act when employee Dunavan did not apply for continued employment. By her own testimony, Dunavan admitted that she "reconsidered" upon receiving the application from Dlutowski and decided not to seek continued employment because she "did not want to work under Mr. Dlutowski ." Whether Dunavan reached this conclusion because of her prior experience under Dlutowski , or because she was fearful of reprisal from him for her earlier activity in petitioning for Dlutowski's discharge in 1965, or for some other reason, is not clearly revealed by the record. It may well be that her testimony , earlier quoted, that she thought it would be "mean" to admit that she didn't want to work for Respondent because of Dlutowski's presence strongly implies that her distaste for Dlutowski was a personal matter . Howev- er, the record contains not one scintilla of evidence that Dunavan's decision not to seek reemployment was influenced by the nonunion conditions estab- lished by Dlutowski's June 4 speech . In fact, had Dunavan wished to work only with continued union representation, it would have been more logical for her not to have demanded an employment form from Respondent . Instead, she immediately complained to Dlutowski's superior about not receiving her applica- tion . We conclude, therefore, contrary to the Trial Examiner, that the General Counsel has not estab- lished that Dunavan declined employment with Respondent because of the stated conditions or that Respondent violated Section 8(a)(3) of the Act in some other manner by not rehiring employee Duna- van. Accordingly, the complaint is dismissed insofar as it alleges that Respondent violated Section 8(a)(3) of the Act as to employee Dunavan. 3. We agree with the Trial Examiner's finding that Respondent violated Section 8(a)(1) of the Act by telling motel dining room customers in the presence of a waitress that there would be no union when it took control and that Respondent would close its doors before it would have a union ; by informing the employees on June 4 that there would be no union at the motel ; and by announcing at the same meeting that the waitresses would be given a pay raise. In his decision, the Trial Examiner found, as noted several times above, that, at the meeting, Respondent told the employees that they could continue to work at the motel but without union representation . However, in enumerating the Section 8(a)(1) violations , the Trial Examiner omitted the latter statement; also, his Recommended Order does not adequately reflect all the found violations of Section 8(a)(1). Accordingly, in our Order we shall rectify this situation by ordering Respondent to cease and desist from threatening to close its motel before permitting its employees to be represented by a union , informing the employees that there would be no union at the motel, telling them that their continued employment was conditioned on their willingness to work without union representation, and unilaterally announcing an increase in their wages. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that Respondent, Inter- state 65 Corporation d/b/a Continental Inn, Louis- ville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order , as so modified. 1. Delete paragraph 1(a) and substitute the follow- ing: "(a) Threatening to close its motel before permitting its employees to be represented by a union , informing the employees that there would be no union at the motel at a time when they had a right to union representation, telling them that their continued employment was conditioned on their willingness to work without union representation, and announcing changes in their wages , hours, or working conditions without bargaining with the Union about such changes." 2. Delete paragraph 1(b) and reletter subsequent paragraphs 1(c) through 1(f) accordingly. 3. Delete paragraph 2(a) and reletter the remain- ing paragraphs accordingly. 4. Delete the first paragraph of the Appendix attached to the Trial Examiner's Decision, and substitute the following: CONTINENTAL INN WE WILL NOT threaten to close the motel before permitting our employees to be represented by a union or inform our employees that there would be no union at the motel at a time when they are entitled to union representation. WE WILL NOT tell you that your continued employment at the motel is conditioned on your willingness to work without union representation or that we are unilaterally changing your working conditions without bargaining with the union which represents you. 5. Delete the second and seventh paragraphs of the Appendix attached to the Trial Examiner's Decision. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. MEMBER JENKINS, concurring in part and dissenting in part: With the exception of that portion of the Order requiring Respondent to honor and adopt the bargaining contract, I concur in my colleagues' disposition of this case . See my dissent in The William J. Burns International Detective Agency, 182 NLRB No. 50. TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK , Trial Examiner : These proceed- ings under Section 10(b) of the National Labor Relations Act, as amended (the Act), were tried before me at Louisville, Kentucky, on March 3 and 4, 1970, on a consolidated complaint and Respondent 's answer and amended answer thereto. The complaint was founded on charges filed November 6 and 10, 1969,1 by the Hotel & Restaurant Employees & Bartenders Union Local 1812 (herein called the Union). The complaint alleges and the answers deny that Respondent committed unfair labor practices forbidden by Section 8(a)(1), (3) and (5) of the Act. Upon the entire record , my observation of the witnesses, and considerations of the briefs filed by the General Counsel and Respondent , I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Interstate 65 Corporation, the employer involved herein, is a Kentucky corporation engaged at Louisville, Kentucky, in the brokerage of light petroleum products and, since June 5 , is operating a 141- room motel known as the Continental Inn. Seventy-five percent or more of the guests at the motel remain less than 1 month . During the period June 5, through December 30, Respondent in its Contmen- tal Inn operation received over $300 ,000 in gross revenues, 251 which, when projected over a 12-month period, will be in excess of $500,000 per annum, and it will receive directly from suppliers outside Kentucky goods and materials valued in excess of $5,000. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization which admits to membership employees of motels, hotels, restaurants, and similar enterprises, including employees of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues posed by the pleadings are: (1) whether in early June Respondent's manager in violation of Section 8(a)(1) of the Act announced that there would be no union at the motel and no union stewards running about , that he would distribute employment applications to those whom he would consider hiring while failing to distribute applications to known umon adherents, that there would be no union at the motel, and that Respondent would close its doors before it would have a union, that there would be no union at the motel and no talk about a union, and that there would be no raises, and that waitresses would make 95 cents an hour and no more nor less; (2) whether Respondent violated Section 8(a)(3) of the Act by discharging two waitresses on June 4 and thereafter refusing to reinstate them; and (3) whether Respondent since June 5 has been legally obligated as a successor- employer to recognize and bargain with the Union and therefore has violated Section 8(a)(1), (3), and (5) of the Act by admittedly refusing since June 13 to recognize the Union as the representative of motel employees , refusing to follow the terms of a collective-bargaining agreement between the Union and the employer which preceded Respondent in operating the motel, by cancelling seniority and other employee benefits without bargaining with the Union, by granting wage increases without consulting the Union, and by, on June 5, unilaterally eliminating payment of overtime and premium time to employees. B. Background In 1961 Respondent, a newly formed corporation (which was then, and still is, closely held by local businessmen), built the motel facility here involved. It initially was known as the Diplomat Motor Hotel and was operated by Respondent. On July 9, 1962, Respondent sold the motel at a puce of $1,989,000 to the Pick-Louisville Corporation (herein Pick-Louisville), a Kentucky corporation and a wholly-owned subsidiary of Albert Pick Corporation. Albert Pick Corporation directly or indirectly operates a multistate chain of hotels and motels. Under the terms of the sale Pick-Louisville paid Respondent $275,000 cash, assumed payment of the balance of a note in the amount of $800,288 secured by a first mortgage on the property and payable to the Greater Louisville First Federal Savings & Loan Association, and also gave to Respondent a I All dates hereinafter are 1969 unless otherwise stated. 2 This name is corrected to conform to the evidence in the record 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purchased money note for $913,711 secured by a second mortgage on the motel real estate and a chattel mortgage on the personal property. Respondent then used the cash received to establish its other unrelated business of brokerage of petroleum products in which it is still engaged. Following the purchase on July 9, 1962, Pick-Louisville operated the motel, including its bar and restaurant facilities, through June 4, 1969.3 It employed a manager, supervisory personnel, and a staff of rank-and-file employ- ees, including waitresses. On October 26, 1962, the Union petitioned the Board (Case 9-RC-5195) for certification as collective-bargaining representative of the motel employees, naming as employer "Albert Pick Motel" at the Louisville address. On November 8, 1962, the Regional Director for Region 9 of the Board issued a notice of representation hearing in that proceeding naming as employer "Pick-Louisville Corpora- tion Albert Pick Motel." The following November 29 the Union requested withdrawal of the petition on the grounds that the parties had reached a "settlement," and the next day the Regional Director ordered the case closed, again referring to the employer as "Pick-Louisville Corporation Albert Pick Motel." The parties stipulated that that employer granted recognition to the Union on the basis of a cardcheck of 52 union authorization cards signed by employees of the motel. The Union's petition had indicated there were 65 employees in the unit. On January 2, 1963, a collective-bargaining agreement was entered into between the Union and "Albert Pick Motel Corporation, Louisville, Kentucky" for a term from January 1, 1963, to December 31, 1967. By this contract the employer recognized the Union as the exclusive representative of its employees. It agreed to obtain new employees through the union hiring hall. The agreement also contained provisions for seniority, union security, and checkoff of union dues. It was signed on behalf of the employer by two vice presidents of "Albert Pick Motel Corporation." It permitted reopening of the contract for wage negotiations after December 31, 1965. Pursuant to the wage reopener provision the Union and "Albert Pick Motel Corporation, Louisville, Kentucky," on April 1, 1966, entered into a memorandum agreement covering new wage provisions. On May 2, 1968, a successor collective-bargaining agreement was entered into between the Union and "Albert Pick Motel, Louisville, Kentucky," effective February 16, 1968, to December 31, 1970. This agreement also provided that the employer recognize the Union as the exclusive representative of the employees, provided for union security and checkoff of union dues, and generally covered wages and working conditions including seniority. Pursuant to the checkoff provisions Pick-Louisville checked off dues for union members and remitted them to the Union through May 1969. The parties also processed grievances under grievance procedures of the contract, the last being 3 Pick-Louisville operated only this single motel facility. 4 The appropriate unit alleged in the complaint is as follows, All maids, housemen, bellmen, maintenance grounds keepers, cooks, pantry, dishwashers , pot washers, waitresses, busboys stewards, and bartenders of the Pick-Louisville Corporation, d/b/a Albert Pick Motel, 1620 Arbor Street, Louisville, Kentucky, excluding office clerical employees, guards , professional employees and supervisors as defined in the Act. approximately 1 month before Pick-Louisville terminated its operation of the motel. The complaint alleges and Respondent admits that the unit of employees for which Pick-Louisville recognized the Union is appropriate for purpose of collective bargaining under the Act.4 It is clear from the facts that the Union has represented employees of Pick-Louisville located at the motel in question in Louisville, Kentucky, and not employees elsewhere in the Albert Pick organization. The collective- bargaining agreement, therefore, looks to the enterprise involving this particular motel and, even though the identification of the employer in the current collective- bargaining agreement and its predecessors may have been slightly inaccurate, I find that Pick-Louisville was the contracting employer under those agreements. C. Respondent's Takeover from Pick-Louisville 1. Financial difficulties of Pick-Louisville By March 1969 Pick-Louisville was experiencing finan- cial difficulty to the extent that it was in default in installment payments on the notes to Greater Louisville First Federal Savings & Loan Association and to Respondent. Respondent as holder of the junior security and in order to protect its investment and avoid a forced foreclosure under the terms of the first mortgage, agreed with Pick-Louisville to what amounted to a voluntary, informal foreclosure arrangement. 2. Terms of resale Under this arrangement, which was entered into May 12, with a closing date of June 5, Respondent reacquired the physical assets of the motel, including both the real estate and much of the personalty used in its operation. Respondent reassumed the obligation to pay the first mortgage note from which it had been released at the time the motel was sold to Pick-Louisville and on which the remaining unpaid balance was $401,880. The balance still owed on the second mortgage note held by Respondent was $605,558. Pick-Louisville was released from further liability on these obligations. In addition Respondent paid Pick- Louisville $10,000 cash for linens, supplies, furnishing, fixtures, equipment, and other personalty at the motel.5 Under the terms of the resale contract Respondent reacquired the physical assets of the motel but did not purport to purchase good will or the business as a going concern. It did assume certain leased equipment contracts covering leased vending machines, television for the rooms, and signs with the right in the case of the latter to change the signs. The resale contract did not specifically deal with the outstanding collective-bargaining agreement. Respon- dent was given the right to enter the premises in advance of I find this is an appropriate unit for collective bargaining within the meaning of Section 9(b) of the Act. 5 Food and beverages were not included in the items sold to Respondent. The evidence shows that as of June 5 Pick -Louisville had no inventory of food or beverages on the premises. Various types of leased equipment such as vending machines also were not included in the sale to Respondent. CONTINENTAL INN the closing date, and pursuant to this provision its future motel manager, Arthur Dlutowski, took up residence in the motel about a month in advance in order to arrange matters for future operation. Certain repairs necessitated by the rundown condition of the motel were also begun about a month in advance of settlement and continued until about the end of June. These included, inter aha, painting of the rooms, repairing two roofs, resurfacing the parking lot, and installing some chain link fencing. 3. Notification to the Union On May 19 Pick-Louisville advised the Union by telephone and letter of its intention to cease operating the motel on June 5; that it was reconveying the property to Respondent with which it had no connection; and that, "arrangements are being made to pay all employees for all monies due to them during the period of our operation." 4. The overheard conversation A day or two before Respondent's takeover Dlutowski was overheard by Iva Adams, a waitress, talking to three customers in the dining room about the future operation of the motel. According to her she overheard him say there would be no union at the motel and that Respondent would close the doors before they would have a union. Dlutowski testified that he did not recall the conversation but denied generally making such statements regarding the Union. I credit Adams regarding this conversation because her recollection of it was quite specific while Dlutowski could not recall the occasion, did not deny that he had a conversation with customers about future operations, and only denied generally that he had ever made such a statement regarding unionism. His making of such a statement, however, was consistent with later statements he made regarding unionism, detailed hereinafter, and also consistent with the nonunion policy of the Respondent. 5. Meetings on June 4 On the evening of June 4, Respondent's manager Dlutowski held a series of meetings with various groups of motel employees to advise them of the impending takeover by Respondent. At the last of these meetings about 9 or 9:30 p.m. he spoke with the waitresses.6 He advised them that Respondent was taking over the operation of the motel, that he was the new manager, and that it was to be run as an entirely different operation with better food, better service, new equipment, and higher prices. He announced that waitresses would be paid a flat rate of 95 cents an hour, an increase of 5 cents per hour over their existing pay scale, and that working conditions would be good. He also announced that Respondent had no contract with the Union and there would be no union at the motel. Waitresses Iva Adams and Louise Dunavan testified that he also stated that no union stewardess would be running around, a statement which Dlutowski denied and which denial was corroborated by the testimony of waitress 6 Dlutowskf testified that he spoke from a prepared draft However the text of such draft was not offered in evidence 7 Adams admitted that before the meeting she had been drinking in the 253 Dorothy Dunigan and bookkeeper Mary Lou Carter. In this regard I credit Dlutowski, Dunigan, and Carter and find that he did not make a comment regarding a union stewardess. Adams, Dunavan, and waitress Geraldine Mauk testified that he also said he would pass out applications for employment to those whom he would consider rehiring. The bookkeeper, Carter, testified that what he said was that he would be glad to have them all as employees if they wanted to work without the Union because there would be no union. I credit Carter's version. Dlutowski himself testified that he stated that Respondent would operate as a nonunion company, that it had no affiliation with the Union and no union contract. He made it clear that no reference would be made to the contract between Pick-Louisville and the Union. And he condi- tioned reemployment on their willingness to work without a union. When Dlutowski finished speaking he and Carter handed out applications for employment to the waitresses. Adams, who was the union stewardess and was wearing a stewardess' buttons, and Dunavan, who had been union stewardess for some years before at a time when Dlutowski was employed as catering manager at the motel, did not then receive applications. Both had been waitresses at the motel for 7 years. The General Counsel contends that they were purposely omitted and in effect discharged. I find, however, based on the testimony of Carter, that as they were being distributed the supply of applications ran out because the waitresses' meeting was the last of several held that night, and that Carter left the meeting to obtain additional applications which she then brought back to the meeting room. Before she returned with the additional applications Adams had left the room and returned to the bar.7 About the same time R. R. Townes, who was Dlutowski's supervisor in the management of the motel on Respondent's behalf, came into the meeting room and Dunavan complained to him that she had not received an application. On his instructions Dlutowski gave her two applications, one for herself and presumably one for Adams, next to whom she had been sitting at the meeting. According to Dunavan, Dlutowski did so reluctantly saying, "Well, but no union; no union." Dlutowski denied he made such a comment, but it is consistent with his other remarks at the meeting, and I credit Dunavan. Having obtained two application forms, Dunavan did not fill them out but left both in the meeting room. She then went down to the bar to join Adams, whom she filled in on the events at the meeting subsequent to Adams' departure. Dunavan explained that she did not fill out her application because she did not want to work for Dlutowski. On the foregoing facts I find that Adams and Dunavan were not categorically refused employment as contended by the General Counsel. Instead I find that they did not at first receive applications because the supply ran out. Adams could have obtained an application had she remained in the meeting and Dunavan in fact did obtain applications for both herself and Adams. Dunavan failed to fill out her own application and although she failed to bar Several witnesses testified that at the meeting it was obvious that she had been drinking Carter testified that Adams brought a drink to the meeting and spilled it during the course of the meeting 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deliver the other to Adams, she told her about it shortly thereafter. I find that both of them could have worked for Respondent if they had chosen to do so on Respondent's terms. But the offer of employment was conditional. Dlutowski made it with the proviso that the employees be willing to work under nonunion conditions. The waitresses were never given the opportunity to accept employment under union conditions. Normally Adams would have been on the morning shift the next day and Dunavan would have been the one to open up the dining room . However, at the end of the June 4 meeting, Dlutowski met with Carter and Ann Overstreet, the dining room hostess , and instructed them to arrange for a crew to open the dining room the next morning. Overstreet instructed Mauk to open up. Adams and Dunavan were not included in the crew . I find that this was because they had not submitted their applications for employment. Other than its letter to the Union of May 19, Pick- Louisville never indicated to the employees directly that it was discharging them. Their only authoritative word regarding change in their employment came from Dlutow- ski at the June 4 meeting. Respondent offered in evidence a letter dated June 5 from Pick -Louisville to Respondent certifying that all employees of Pick -Louisville were terminated as of midnight June 4. This appears , however, to be a purely self serving document and there is nothing in the record to show that Pick-Louisville communicated to the employees that their employment was terminated. Adams testified that the employees were never so notified. In the circumstances I find that Dlutowski in effect fired everyone and then conditionally reemployed , as above noted. 6. Before and after On June 5, Respondent took over complete operation of the motel with no hiatus between the regime of Pick- Louisville and its own. The incoming top management was entirely new. In overall charges of the operation was R. R. Townes who held a 25 -percent stock interest in Respon- dent. Under him and in immediate charge as manager was Dlutowski . In lesser supervisory positions there was some change in the identity of personnel and some alteration in the jobs but the essential functions continued to be performed by someone . Thus the maintenance manager and engineer under Pick-Louisville was promoted to a newly created post of assistant manager. The auditor under Pick-Louisville left but Carter the assistant auditor and bookkeeper, remained and performed both functions. The sales manager and both the night and day hostesses left and were replaced. The housekeeper remained . The Pick- Louisville executive chef had been terminated 1 month before the changeover. He had been in charge of the kitchen and a separate catering manager had been employed for that function . Under Respondent these two jobs were combined under the title of catering manager and the job was given to the man who had been temporary catering manager under Pick-Louisville. Of the 60 to 65 rank-and-file employees of Pick- Louisville, about 50 to 55 remained and became employees of Respondent performing essentially the same work. Since the policy of the new operation was nonunion, they worked under nonunion conditions as compared with union conditions before the changeover. The provisions of the collective-bargaining agreement with respect to rates of pay, hours, seniority, overtime, and premium time pay and other terms and conditions of employment were not followed by the new management. Their group insurance was changed . Waitresses were given a uniform allowance and required to provide their own uniforms. Different recordkeeping systems were installed. Thus, different type ledgers were used for the room ledger as well as for the city ledger and Respondent no longer used standard Pick forms for these functions. The cash register system was changed from Sweda to National Cash Register. With respect to credit cards Respondent ceased recognition of Pick credit cards but continued the Pick- Louisville practice of honoring major credit cards general- ly. The telephone switchboard system for incoming and outgoing telephone calls was changed. Respondent did not take over Pick-Louisville accounts receivable, did not use its customer list nor any of its books and records. Room rates were increased. Respondent changed from the bank that Pick-Louisville had used to another bank . It ceased using any kind of equipment with the Pick name and accordingly began using a whole different line of purveyors of linen, china, silver, paper products, cleaning supplies, and air-conditioning supplies . In its dining room Respon- dent switched from the Pick-Louisville menus to those of the Continental Inn, Nashville , and eventually obtained its own menus. Respondent made a lot of physical changes including the new roofs and the resurfacing of the parking lot and the painting of the rooms, referred to above. It bought and installed new carpeting and drapes, new bedding, new color televisions, new dining room linen, new lamps , new flower pots, new ice machines, new china ware , and silver. It repaired the boiler, the air-conditioning, and renovated the pool and installed new poolside equipment. The name of the motel was changed to Continental Inn and it became affiliated with the Best Western Association of motels. And of course it was no longer connected with the Pick chain. The signs on the motel were changed accordingly. Under its affiliation with the Best Western Association, Respondent involved itself with a new system for room reservations at its own motel and other motels in the association. It adhered to association minimum standards and submitted to periodic inspections. It became listed in the Best Western guide. In sum Respondent tried to change the image of the motel from that of a rundown operation to an upcoming one and from one identified with the Pick chain to one identified with Best Western. To accomplish this it expended an additional $ 100,000, approximately 40 percent of which was for performance of deferred maintenance and about 60 percent to change the image of the motel. It was of course a one-purpose structure, so both before and after the changeover it was a 141 room motel with essentially the same accompanying facilities such as dining room , bar and pool. 7. Union overtures to Respondent Until the takeover on June 5, Pick -Louisville and the CONTINENTAL INN Union had actively administered their collective-bargaining agreement, including the processing of a grievance as late as a month before the changeover. After the changeover, the Union did not file any grievances for Adams or Dunavan because, as business representative Freddie Mitchell testified, the grievance procedure depended upon the collective-bargaining agreement which Respondent had rejected. The day following the changeover, Mitchell contacted Dlutowski by telephone and stated that the Union was the bargaining agent for the employees, claimed to represent a majority of them, and desired to meet with Respondent for the purpose of discussing the present contract. Dlutowski referred him to Respondent's attorney. Mitchell called the attorney about June 8 and advised him that the Union was the bargaining agent for the employees in the bargaining unit and wished to meet with Respondent for the purpose of discussing the present contract or negotiating a new contract. Respondent's attorney replied that Respondent assumed no responsibility for honoring the collective- bargaining agreement. The Union then sent Respondent a certified letter on June 9, asserting that it represented the employees and claimed bargaining rights for them, and that there was at the time of the changeover an existing contract between the former owner and the Union. The letter went on to request a meeting for the purpose of arranging continuance of the present contract or for the purpose of negotiating a new one. To this, Respondent's attorney replied by letter of June 13 confirming their prior telephone conversation, and asserting that Respondent was not legal successor to Pick-Louisville and not obligated under the outstanding collective-bargaining agreement. Other than to file the charges herein on November 6 and 10, the Union took no further action with regard to Respondent's rebuff. On July 18 it did seek to recover from the parent company of Pick-Louisville vacation pay allowances owed employees at the time Pick-Louisville ceased operating the motel. It also wrote a letter to motel employees members on August 6 advising that although dues had not been paid, the Union was waiving the payment of dues by members until the expiration date of the contract on January 1, 1971.8 In early November the Union sent to Respondent checkoff lists for the months of July, August, September, and October. The purpose of this, according to Mitchell, was to try to get recognition from Respondent by having dues deducted as called for by the contract, and that had Respondent complied and remitted checkoff dues to the Union, the Union would have refunded them to the employees since it had already excused their dues obligation by its letter of July 18. The maneuver did not succeed. On November 7 Respondent returned the checkoff lists to the Union. D. Conclusions 1. Independent violations of Section 8(a)(1) Based on facts set out heretofore, I find that a preponderance of the evidence establishes that a couple of days before the June 4 meetings Respondent's manager, 8 As with other provisions of the collective-bargaining agreement, Respondent did not honor the checkoff provisions therein, and, 255 Dlutowski, told customers in the motel dining room that there would be no union at the motel when Respondent took over and that Respondent would close its doors before it would have a union there; that at the June 4 meeting of waitresses he announced that there would be no union at the motel; and that waitresses would make 95 cents an hour. Considering all the evidence I find that he did not at that meeting state that there would not be any union stewards running about the motel. I find that he did announce that applications for employment would be distributed among the employees present, but I find that a preponderance of the evidence is insufficient to establish that he concurrently failed to distribute applications to Adams or Dunavan. I further find that a preponderance of the evidence is insufficient to establish that at that meeting he stated there would be no talk or anything else about a union at the motel, or that there would not be any raises. I conclude that those acts which I find above were established by a preponderance of the evidence constituted violations of Section 8(a)(1) of the Act. 2. Violations of Section 8(a)(3) of the Act The complaint alleges that Respondent discriminated against Adams and Dunavan by discharging them on June 4 and at all times thereafter refusing to reinstate them. I so find. Although it had been common knowledge among the employees for a month or so prior to the changeover that the Pick-Louisville operation was coming to an end, the employees generally, and specifically Adams and Dunavan, had received no direct word from Pick-Louisville that their employment was being terminated. The first and only authorative word received from the employer came from Dlutowski at the June 4 meeting. The whole tenor of his remarks was that the old operation was ceasing and a new operation beginning and that he would consider applica- tions for employment. Implicit in his remarks was the message that their existing employment was terminating. They were all, therefore, discharged including Adams and Dunavan, and were told in effect that they could be reemployed only on the condition that they agree to abandon rights to self-organization guaranteed by the Act. At that time Adams and Dunavan were Respondent's employees within the meaning of the Act. Chemrock Corporation, 151 NLRB 1074. To so condition their continued employment at the motel and to refuse to employ them except under nonunion conditions, was a violation of Section 8(a)(1) and (3). West Suburban Transit Lines, Inc., 158 NLRB 794. 3. The alleged violations of Section 8(a)(5) of the Act The Union was admittedly the exclusive representative of Pick-Louisville employees in an appropriate unit as well as party to a current collective-bargaining agreement with Pick-Louisville covering unit employees in effect until December 31, 1970. Respondent also admits that since its takeover of the motel it has refused to recognize the Union, has refused to follow the terms of the collective-bargaining accordingly, since the changeover had not checked off nor remitted any dues to the Union. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement, has cancelled seniority and other employee benefits without bargaining with the Union, has granted wage increases without consulting the Union, and has unilaterally eliminated the payment of overtime and premium time to employees. The General Counsel contends that this conduct violates Section 8(a)(5) of the Act under the doctrine of Wiley v. Livingston, 376 U.S. 543, and later cases following that line, requiring a successor- employer to assume the bargaining obligations of its predecessor. Respondent defends on the ground that it is not the successor of Pick-Louisville and consequently is not obligated to recognize or bargain with the Union as the incumbent employees' representative nor to assume any of Pick-Louisville's obligations under the outstanding collec- tive-bargaining agreement . Respondent stresses that its reacquisition of the motel was not voluntary in the usual sense ; that instead, although it was an agreed-upon arrangement for an informal foreclosure, in reality it was forced upon Respondent by Pick-Louisville' s default in its debt obligations and the resultant economic necessity for Respondent to protect its investment. It points out that under its resale contract it acquired only the physical assets of the motel and not the business nor goodwill of Pick- Louisville. It points out further that while certain contractual relations of Pick-Louisville, such as contracts covering leased equipment, were assumed specifically by Respondent, no such similar provision in the resale contract provided for its assumption of obligations under the outstanding union contract. It notes that Respondent and Pick-Louisville are two distinct unrelated corporations with no interest one in the other and with entirely different officers and stockholders, and that when Respondent took over it installed completely new top management and partially changed subsidiary management. It also relies on the argument that it endeavored to create a new image for the motel by its change of affiliation from the Pick chain to that of a member of the Best Western Association, by its refurbishing of the facilities to the tune of $100,000, and by a change in methods of operation such as bookkeeping and accounting methods and the identity of suppliers of goods and services. It asserts that there was no continuity in the employment of rank-and-file employees on the ground they were all terminated by Pick-Louisville, and further that only a portion of the Pick-Louisville employees were employed by Respondent. As to this latter point I note that the record shows only that Pick-Louisville wrote to the Union stating its intent to cease operating the motel but said nothing directly to the employees about their employment being terminated. The only authoritative word on the termination of their employment came from Respondent's manager at the meetings on June 4 when applications for employment by Respondent were distributed and the employees were led to believe that applicants would be newly employed by Respondent. I note also that over 80 percent of the rank- and-file employees of Pick-Louisville continued without interruption to work at the motel after the changeover. The General Counsel urges that the same circumstances, namely, a continuation of a large portion of the Pick- Louisville employees in the same job classifications such as maids, waitresses , kitchen help, and others under approxi- mately the same working conditions demonstrates a continuation of the prior existing bargaining unit without substantial interruption, and that since this was at one- purpose facility operated as a motel with guest rooms, restaurant, and bar both before and after the changeover, with no hiatus at the time of changeover, there has been a substantial continuity of identity of the business enterprise in spite of the change in ownership. I agree. See Will Coach Lines, Inc., 175 NLRB No. 87; Randolph Rubber Company, Inc., 152 NLRB 496. Although the record shows numerous changes in connection with the takeover, many of these were minor in nature. Many others were designed to change the image of the motel from a somewhat rundown operation to a up and coming one and from one identified with the Pick chain to one identified with the Best Western organization. Additional capital was required to achieve the new image. Nevertheless, even with its new patina, the main physical features of the motel remained the same, as did the functions it performed for the traveling public. Because the larger aspects of the motel basically remained unchanged and because for the bulk of the employees their situation as employees in this particular motel operation remained essentially unchanged, there was present the requisite continuity and identity in the employing industry to hold Respondent to the obligations of a successor employer under the Act. Randolph Rubber Company, Inc., supra, at 499. In my view the present matter is controlled by the recent Board decision in William J. Burns International Detective Agency, Inc., 182 NLRB No. 50, where an employer was held to be a successor when it assumed the functions of a prior employer without any contractual privity with it, the nature of the business remained the same, and a majority of the successor's workforce was made up of employees of the predecessor. In those circumstances the Board held that the successor employer violated Section 8(a)(5) and (1) of the Act when it refused to recognize and bargain with a union which had been the incumbent representative of the employees with the predecessor. Further, the Board held the successor bound to an existing collective-bargaining agreement between that union and the predecessor, and in violation of Section 8(a)(5) of the Act for refusing to abide by the contract. The Board found that binding the successor employer to his predecessor's bargaining obliga- tion would further the statutory policy of protecting employee collective-bargaining rights and concluded that absent unusual circumstances the Act imposed an obliga- tion on a successor employer to take over and honor a collective-bargaining agreement negotiated on behalf of the employing enterprise by the predecessor. The Board observed that, "In essence, the finding of successorship involves a judgment that the employing industry had remained essentially the same despite the change in ownership." In the present matter I conclude that the employing industry has remained essentially the same, and Respondent's refusal to recognize and bargain with the Union or to honor its contract was unlawful. I find some support for Respondent's defense in the Board decision in a companion case to Burns. See Travelodge Corp., 182 NLRB No. 52. Travelodge involved the same industry as the present matter. Also there, as here, CONTINENTAL INN 257 the alleged successor had done substantial remodeling and had even built an addition to the motel. The Board found no successorship, summarizing its holding as follows, "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 membership 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 over the motel. Under all 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-bargaining agreement in issue." Thus the Board's language makes it apparent that the record in Travelodge was confused in many regards. In the present matter the record is clear. The present fact situation is further distinguishable in that the Pick-Louisville contract with the Union applied to all rank-and-file employees of the motel; the Union continues to assert its right to represent and apply the contract with respect to employees in what is alleged to be a continuation of that bargaining unit; Respondent continues, as did Pick- Louisville, to operate all phases of the motel facility; Respondent's operation followed upon Pick-Louisville's with no hiatus whatsoever. I conclude, therefore, that given the well-established facts before me, and in spite of some similarities between the present matter and Travelodge, the Board decision in Burns is controlling. It further follows from the above that when Respondent unilaterally changed employment terms by canceling seniority, granting wage increases, and eliminating pay- ment of overtime and premium time, it did so in violation of Section 8(a)(5) and (1) of the Act. William J. Burns International Detective Agency, Inc., supra. 4. The forced sale defense Respondent strongly urges that because its reacquisition of the motel was occasioned by the economic duress of Pick-Louisville's default on the first and second mortgage notes, it is not a successor in the usual sense, and because it had no real economic choice, it should, in all fairness, not be saddled with Pick-Louisville obligations, including its collective-bargaining obligations, to which it was not a party and which it did not assume. In my view the manner in which Respondent acquired the motel does not, given the circumstances present here , alter the situation . The form of transfer is not controlling. Valleydale Packers, Inc., of Bristol, 162 NLRB 1486, 1490, enfd. 402 F.2d 768 (C. A. 5). For example, a court appointed trustee may be a successor under the Act. Marion Simcox, etc., 178 NLRB No. 85. And see N.L.R.B. v. Zayer Corp., F.2d (Dec. April 27, 1970, C.A. 5),74 LRRM 2084. The Board noted in Burns, which was not a foreclosure case, that, "In the normal case, we perceive no real inequity in requiring a `successor-employer' to take over his predecessor's collective-bargaining agreement, for he stands in the shoes of his predecessor . He can make whatever adjustments the acceptance of such obligation may dictate in his negotiations concerning the takeover of the business. Normally, employees cannot make a compa- rable adjustment . Their basic security is the collective- bargaining agreement negotiated on their behalf ." At first blush, this language seems to support Respondents' position. It must be remembered , however, that even though Pick-Louisville defaulted on its obligations and Respondent was under some duress to do something to protect its investment, no foreclosure actually occurred. Respondent and Pick-Louisville did in fact negotiate what Respondent describes as an agreed foreclosure which was a contract containing various provisions for the protection of each party thereto and which resulted, among other things, in Respondent's reacquisition of the motel property. Respondent obviously did have some room for maneuver- ing and could have, and for all this record shows may have, made the collective-bargaining situation a subject of its negotiations with Pick-Louisville. It was not, therefore, without the possibility of some self protection through negotiation . In view of this I do not think the Board's language in Burns is to be taken as an indication that a situation such as Respondent's is exempt from the normal application of the successor-employer rule. Respondent's further argument that there is here an absence of continuity of the employing enterprise because what was the unit in a multistate chain of motels is now a locally owned business, and its reliance on N.L.R.B. v. Alamo White Truck Service, Inc., 273 F.2d 238 (C.A. 5) to support that argument, are both misplaced. The extent to which the Pick-Louisville operation was a small part of a motel empire managed from afar is not established in this record. What is established is that Pick-Louisville, a Kentucky corporation, operated this single motel, the stock of which was owned by the parent Pick corporation. In this case no effort has been made to pierce the Pick-Louisville corporate veil. The evidence also indicates both an adherence to certain accounting and record keeping standards of the Pick chain and reliance on, and participation in, its guest reservation system . For its part Respondent is also a Kentucky corporation , although it, unlike Pick-Louisville, is locally owned . It too adheres to certain operational standards of a larger organization, the Best Western Association, and relies on and participates in its guest reservation system . As far as the public is concerned the motel chain aspects of the Pick affiliation appear somewhat comparable to the Best Western affilia- tion. See N.L.R.B. v Zayre, supra. Respondent continues to operate a motel on the same premises as the Pick-Louisville motel, but with different multistate affiliation . In Alamo White there was a change in the type of business being done . The transferor had been engaged in the manufacture, sale, and repair of trucks, and depended on the sale of a large number of units to a small number of buyers. The transferee was primarily a service operation , and its sales were local and retail in nature . Here both Respondent and 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pick-Louisville operated the same kind of business. See N.L.R.B. v. Zayre Corp., supra. Additional arguments made by Respondent also appear to me to be without merit. Among these is the argument that it could not adopt the collective-bargaining agreement between Pick-Louisville and the Union because that agreement referred to national employees of a chain with which Respondent had no connection. A reading of the contract, however, reveals that it deals only with employees at the particular motel in question and that the intended employer involved was the employer of these employees and engaged in the operation of this particular motel. That employer was Pick-Louisville even though the contract refers to the employer as the Albert Pick Motel, Louisville, Kentucky. The only provision of the contract which would appear inapplicable to Respondent's operation is one whereby the employer agrees to make available to the employees the "Pick" hospitalization and insurance plan, "providing this plan remains in effect generally for all employees of the Pick system." I conclude that this one inapplicable provision is insufficient to relieve Respondent of its duties under the Act to honor the outstanding collective-bargaining agreement. A further argument made by Respondent is that the Union acquiesced in Respondent's decision not to bargain with it, that it abandoned the employees, and that it is now estopped from asserting its representative status. There is no evidence in the record that the Union acquiesced in Respondent's position. In view of Respondent's immediate and adamant refusal to recognize or bargain with the Union or to honor the collective-bargaining agreement, it cannot be said that the Union abandoned the employees. The filing of the instant charges are evidenced to the contrary. And the argument that somehow the Union has head Respondent down the garden path and is responsible for Respondent's conclusion that it was not a successor under the Act is wholly without support in the record. Finally Respondent argues that the Union must prove that it represents a majority of the bargaining unit personnel. But the record establishes that the Union represents them. The Union is party to a still current collective-bargaining agreement with Pick-Louisville con- taining both union security and checkoff provisions with which Pick-Louisville was complying up to the time of transfer. So far as the employees are concerned the bargaining unit has not changed. If, as I have found, Respondent is a successor, the Union as the incumbent labor organization is presumed to retain its majority status as bargaining representative. West Suburban Transit Lines, Inc., supra. In any case, in view of Respondent's serious unfair labor practices at the time of takeover, designed, as they were, to force employees as a condition of employment to abandon the Union, it cannot now persuasively assert that the Union lacks majority status. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation 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. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All maids, housemen, bellmen, maintenance groundskeepers, cooks, pantry, dishwashers, potwashers, waitresses, busboys, and bartenders employed by Respon- dent at its motel at 1620 Arthur Street, Louisville, Kentucky, excluding office clerical employees, guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union is the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By conduct set forth in section III, above, which has been found to constitute unfair labor practices, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, discriminated against employees to discourage membership in a labor organization, and refused to bargain collectively with the representative of its employees in accordance with the provisions of Section 9(a) of the Act, and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. 6. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. The Remedy Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. I recommend that it offer Adams and Dunavan immediate, full, and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights, privileges, or working conditions, and make each of them whole for any loss of earnings suffered by reason of discrimination against them by paying each a sum of money equal to the amount she would have earned from the date of the discrimination on June 5 to the date Respondent offers her reinstatement, less her net earnings during that period in accordance with the Board's formula stated in F. W Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716, and that it make records available to the Board agents in connection with compli- ance therewith. I also recommend that Respondent recognize and upon request bargain with the Union and, if any understanding is reached, embody such understanding in a signed agreement, and further that as successor to Pick- Louisville it honor, adopt, and enforce the contract in CONTINENTAL INN 259 existence between the Union and Pick-Louisville, except for article II, section II, or other provision thereof peculiar to a relationship with Pick-Louisville, giving retroactive effect thereto to June 5, 1969, making whole with 6 percent interest employees for any losses suffered by reason of its refusal to adopt, honor, and enforce such agreement. See the Board's order in William J. Burns International Detective Agency, Inc., supra. However, nothing in the recommended order shall be construed as requiring Respondent to abandon employee benefits put into effect on or after June 5, 1969. I further recommend that Respondent post appropriate notices. Since neither Adams nor Dunavan are in the Armed Forces, nor likely to be, I have omitted from the recommended order and notice language complying with the Selective Service Act and the Universal Military Training and Service Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record herein, it is recommended that Respondents, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to close its motel before it will permit its employees to be represented by a union. (b) Discouraging membership in Hotel and Restaurant Employees and Bartenders Union, Local 181, or any other labor organization, by discriminatorily discharging, refus- ing to employ, refusing to reinstate, or in any other manner discriminating against any employee in regard to hire, tenure, or other term or condition of employment. (c) Refusing, as successor of Pick-Louisville Corporation, to adopt, honor, and enforce provisions of the outstanding collective-bargaining agreement with that Union except for article II, section 11, or other provisions thereof peculiar to a relationship with Pick-Louisville Corporation. (d) Refusing to recognize and bargain collectively with that Union as the exclusive representative of all maids, housemen, bellmen, maintenance grounds keepers, cooks, pantry, dishwashers, pot washers, waitresses, busboys, stewards, and bartenders employed at its Louisville, Kentucky motel, excluding office clerical employees, guards, professional employees and supervisors as defined in the Act, concerning rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. (e) Unilaterally changing the terms and conditions of employment of employees in that bargaining unit without consulting the Union. (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other 9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Iva Adams and Louise Dunavan immediate, full, and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working conditions, and make them whole for any loss of earnings they may have suffered, in the manner set forth in the section hereto entitled "The Remedy." (b) Honor, adopt, and enforce the collective-bargaining agreement between Respondent as successor to Pick- Louisville Corporation and the above-named Union, except for article II, section 11, or other provisions thereof peculiar to a relationship with Pick-Louisville Corporation, and give retroactive effect thereto to June 5, 1969, and make whole its employees for any losses suffered by reason of its refusal to honor, adopt, and enforce said collective-bargaining agreement, with interest at 6 percent, provided nothing herein shall be construed as requiring Respondent to abandon employee benefits put into effect on or after June 5, 1969. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts due under the terms of this Recommended Order. (d) Upon request, bargain collectively with the above- named Union as the exclusive representative of all employees in the unit described above, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. (e) Post at its motel at Louisville, Kentucky, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immediately 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. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps have been taken to comply herewith.10 IT IS FURTHER ORDERED that the complaint be dismissed National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." io In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insofar as it alleges violations of the Act not specifically found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to close our motel before we will permit employees to be represented by a union. WE WILL NOT fire, refuse to hire, refuse to reinstate, or otherwise discriminate against any employee because he joins, assists, or supports a union. WE WILL NOT refuse to adopt, honor, and enforce, as successor of Pick-Louisville Corporation, the existing union contract with Hotel and Restaurant Employees and Bartenders Union Local 181. WE WILL NOT refuse to recognize and bargain collectively with that Union as the exclusive representa- tive of all maids, housemen, bellmen, maintenance groundskeepers, cooks, pantry, dishwashers, potwash- ers, waitresses, busboys, stewards, and bartenders employed at our Louisville, Kentucky motel, excluding office clerical employees, guards, professional employ- ees and supervisors as defined in the Act, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment. WE WILL NOT change terms and conditions of employment of employees in that bargaining unit without consulting the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to Iva Adams and Louise Dunavan their old jobs back, with full seniority, and We Will make up any pay they have lost, together with 6 percent interest. WE WILL, as successor to Pick-Louisville Corpora- tion, honor, adopt, and enforce the existing union contract with the above-named Union, giving retroac- tive effect thereto to June 5, 1969, and make whole our employees for any loss suffered by reason of our refusal to honor, adopt, and enforce said union contract, with interest at 6 percent. WE WILL recognize and, upon request, bargain collectively with the above-named Union as exclusive representative of our employees in the bargaining unit described above with respect to rates of pay, wages, hours of employment and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. INTERSTATE 65 CORPORATION D/B/A CONTINENTAL INN (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.