Ramada Inn

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Builders Realty & Mortgage Co., Inc. d/b/a Ramada Inn; Green Construction of Indiana, Inc.; Robert E. Green; Green Construction of Indiana, Inc. d/b/a Builders Realty & Mortgage Co., Inc.; Robert E. Green, d/b/a Builders Realty & Mortgage Co., Inc. and Culinary Alliance, Local No. 443, Hotel & Restaurant Employees and Bartenders Internation- al Union, AFL-CIO. Case 25-CA-3201 November 16, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On March 11, 1969, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision, with supporting briefs, and the Respondents filed cross-exceptions and acquiescence to the Trial Examiner's Decision and 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, cross-excep- tions, and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. 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, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The findings and conclusions of the Trial Examiner are based , in part, upon his credibility determinations, to which the General Counsel and the Charging Party have excepted . After a careful review of the record herein, we conclude that the Trial Examiner 's credibility findings are not contrary to the clear preponderance of the relevant evidence and , accordingly, we find no basis for disturbing them . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Trial Examiner: This proceeding was heard at Terre Haute, Indiana, on December 17, 18, and 19, 1968. A complaint issued herein on October 31, 1968, against Builders Realty & Mortgage Co., Inc. d/b/a Ramada Inn, hereinafter called Respondent Builders. An amended complaint, which was amended further at the hearing, issued herein on December 9, 1968 , against Respondent Builders and , in addition, against Green Construction of Indiana, Inc., hereinafter called either Green Construction or Respondent Green Construction; against Robert E. Green; against Green Construction d/b/a Builders Mortgage Co. Inc ., and against Robert E. Green, d/b/a Builders Realty & Mortgage Co. Inc., all the foregoing being hereinafter collectively referred to as Respondents.' The amended complaint presented the questions of whether Respondents together constitute a single-integrated enterprise, and further whether jointly or separately (1) they violated Section 8(a)(3) and (1) of the Act by failing and refusing to employ certain employees of Ally Food Service, Inc. d/b/a Ramada Catering Service, herein called Ally, after they had (a) canceled a lease on June 28, 1968, pursuant to which Ally operated a restaurant, (b) purchased or otherwise received from Ally a substantial portion of the physical assets, goodwill, name, and other trade assets of Ally and (c) operated said restaurant since on or about June 28, 1968; and (2) violated Section 8(a)(5) and (1) of the Act by (a) refusing to bargain collectively with Culinary Alliance, Local No. 443, Hotel & Restaurant Employees and Bartenders International Un- ion, AFL-CIO, hereinafter called the Union, as the collective-bargaining representative of a unit of all the regular full-time and regular part-time employees of said restaurant, including office clericals, for which unit the Union had been certified as the collective-bargaining representative by the Board on March 1, 1968, and/or (b) by withdrawing recognition previously extended to the Union on or about July 2, 1968, as such exclusive bargaining representative of the aforesaid unit of employ- ees, and/or (c) by refusing to assume the collective- bargaining agreement executed by Ally and the Union on or about May 27, 1968, for a 2-year period with respect to the aforesaid unit of employees. Respondents deny that they constitute a single-integrated enterprise and each of them denies violating the Act in any respect alleged herein.2 I The original charge was filed on July 31, 1968; the first amended charge was filed on October 23, 1968; and the second amended charge was filed on December 6, 1968. 2 At the conclusion of the General Counsel's case in chief , counsel for Respondents moved to dismiss the amended complaint as to each Respondent herein. I granted so much of the motion as applied to (t) Robert E. Green, (2) Green Construction of Indiana , Inc. d/b/a Builders Realty & Mortgage Co., Inc., and (3) Robert E. Green. d/b/a Builders Realty & Mortgage Co., Inc.; I reserved ruling on that part of the motion relating to Green Construction of Indiana, Inc.; and I denied that part of the motion relating to Builders Realty & Mortgage Co., Inc. d/b/a 186 NLRB No. 87 RAMADA INN Upon the entire record,3 including my observation of the witnesses, including their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel and of Respondents,4 I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENTS The amended complaint alleges, and Respondent Builders admits, that it is an Indiana corporation engaged in the operation of a chain of motels and restaurants in Indiana, including a motel and restaurant at Terre Haute, Indiana, which is alone involved in this proceeding; that, during the past year it received gross revenues in excess of $500,000 from the operation of its chain of restaurants and motels; and also received goods from outside Indiana valued in excess of $10,000; and that at least 75 percent of the guests staying at these motels during the said period stayed for less than 30 days. The amended complaint also alleges, and Respondent Green Construction admits, that it is an Indiana corpora- tion engaged in the construction industry; and that, during the past year, it purchased and received directly from outside Indiana goods and materials valued in excess of $50,000. I find, upon the foregoing, as Respondent Builders and Respondent Green Construction, respectively, admit, that Respondent Builders and Respondent Green Construction are each engaged in commerce within the meaning of the Act. A. The Integrated Enterprise Issue As heretofore mentioned, the amended complaint alleges, and Respondent Builders and Respondent Green Con- struction each deny, that they, as well as the other Respondents as to whom I have heretofore dismissed the amended complaint, have been a single-integrated enter- prise engaged in the operation of the above-mentioned chain of motels and restaurants in Indiana, including the restaurant and motel in Terre Haute, Indiana, which is alone involved in this proceeding. Therefore, before determining the unfair labor practice issues herein, there remains the threshold question of whether Respondent Builders and Respondent Green Construction together constitute a single-integrated enterprise engaged in the motel and restaurant business in Indiana. The record discloses the following factual situation in this regard: Respondent Builders has been in existence since about 1963 and, so far as appears, Robert E. Green's significant Ramada Inn. In respect to the aforesaid dismissals , I concluded that the General Counsel had failed to make out a prima facie case against Robert E. Green, as an individual, nor had he made out a prima facie case that Green Construction of Indiana, Inc., was doing business as Builders Realty & Mortgage Co., Inc., or that Robert E. Green was doing business as Builders Realty & Mortgage Co., Inc. 3 As corrected by my Order Correcting Transcript dated February 25, 1969. 4 After the General Counsel and Respondents had filed their respective briefs herein, the General Counsel filed a motion with me for permission to file a reply brief, to which was attached such reply brief. Whereupon, Respondents filed a composite motion in opposition thereto and for 569 connection with this corporation dates from early August 1967, when he purchased a controlling interest therein and when shortly thereafter the officers and directors resigned at his request. Green has been president and treasurer of Respondent Builders since August 7, 1967, and also a director. Since December 26, 1967, the other directors have been Curtis V. Kimmel, the vice president of Respondent Builders; William M. McCarter, its secretary; and James W. Funk, its assistant treasurer and assistant secretary. Antedating August 1967 and since that time, Respondent Builders has been the owner of a chain of motels and restaurants in Indiana, namely at Vincennes, Evansville, and Terre Haute. There are currently about 225 employees at all three installations. At first, Respondent Builders operated the motel facilities at each installation, while Ally Food Services, Inc., operated the restaurant and bar attached thereto under leasehold arrangements with it. However, on November 27, 1967, Respondent Builders purchased the rights of Ally in the leases at two of these installations, i.e., Vincennes and Evansville, to be effective on that date, in return for $55,000 in cash, and the cancellation of all of Ally's indebtedness to Respondent Builders as to all three restaurant operations and of Ally's indebtedness to Green, personally. Respondent Builders, in turn, undertook to make Green whole for the moneys owed to him personally by Ally and which were being canceled as part of the transaction with Ally. Respondent Builders began operating the restaurants and bars at Vincennes and Evansville on November 27, 1967, with the personnel formerly employed by Ally. It has been operating these restaurants and bars ever since that time. The employees at these two installations have never been represented by a labor organization. By December 26, 1967, Green acquired all the stock of four of the remaining seven stockholders in Respondent Builders and was awaiting the assignment of all the stock of another stockholder to which he had become entitled, with the result that he has held, since that time, about 80 or 90 percent of the corporate stock.5 Green has also loaned Respondent Builders $459,000 in order to ward off receivership of Respondent Builders, in return for which he received a promissory note in that amount from Respondent Builders; in addition, he became guarantor of loans by Respondent Builders from three different banks totalling $1,600,000 and he received as security for his obligations as guarantor a second mortgage on the real estate holdings of Respondent Builders. As of the time of the hearing, Ally was no longer operating the restaurant and bar at the Terre Haute installation. Green testified credibly that, unlike the situation with respect to the Vincennes and Evansville operations, Respondent Builders, which alone, of all Respondents named herein, was the permission to file a reply brief to the original brief filed by the General Counsel and for permission to file an answering brief to the General Counsel's reply brief, both in the event the above motion of the General Counsel is granted. I thereafter denied the above motions for the reasons that there is no provision in the Board's Rules and Regulations for the filing of a reply brief before a Trial Examiner and also that no need appeared for further briefs herein. Contemporaneously with the issuance of the above ruling, I returned to the General Counsel the reply briefs improvidently attached to the motion for permission to file such a brief. I have not considered this brief in resolving the issues herein. 5 Curtis V. Kimmel and James W. Funk hold the rest of the stock. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lessor to Ally of the restaurant premises in all three instances, did not purchase the rights of Ally in its lease for the Terre Haute restaurants Rather does it appear, and I find, that Ally abandoned its lease and ceased to operate the Terre Haute restaurant and bar on June 28, 1968, because it was operating the restaurant and bar at a loss and was in financial difficulties.? Following this, after a hiatus of about 2 weeks, the Terre Haute restaurant was reopened on July 15 under the management of Joseph Bowlds, an employee of Respondent Builders,8 and he is still the manager. Bowlds was, prior thereto, the manager of the restaurant and bar at Respondent Builders' Vincennes installation. It does not appear that Respondent Builders has assumed any of Ally's liabilities or obligations incurred during the time Ally operated the Terre Haute restaurant and bar .9 Respondent Builders admittedly refused to recognize and bargain with the Union, which became the certified bargaining representative of the employees of Ally at the Terre Haute restaurant and bar on March 1, 1968. In this connection, as found hereinafter, the record fails to sustain the General Counsel's contention that Respondents extended recognition to the Union as the bargaining representative of the employees of the Terre Haute restaurant and bar on or about July 2, 1968, and thereafter withdrew such recognition. As to labor matters, however, it is apparent, and I find, that Green has the final say in labor relations matters relating to this installation. Thus, it is stipulated that many of the applications for employment at the Terre Haute restaurant and bar after June 28, 1968, were cleared with Green by Bowlds and initialed by Green before the applicants were hired.'° The record reveals that, during July and August 1968, Bowlds would consult with Green after he had satisfied himself as to the desirability of the applicants; and, after Green's approval, the applicants would be hired, without being interviewed by Green. Green personally hired Bowlds as manager, as he has done with all managers at all three installations. There is also record evidence that, with respect to vacations, Green has instructed his managers at that and the other two installations to adhere to the recommendations relating thereto in the Ramada Inn franchise. With regard to Respondent Green Construction, which is allegedly part of an integrated enterprise with Respondent Builders, the record reveals the following: It is engaged "primarily in the heavy construction business" and operates in five different States of the United States." It builds concrete and asphalt pavements, dams, airports, and other structures, and averages 600 to 700 employees on a 6 Under the leasehold arrangement, Ally paid as rent to Respondent Builders a percentage of its gross receipts. I Thus, Carl W. Eller, the business agent of the Union, testified credibly that (I) Joseph Traum, the general manager of Ally, told him during the week before June 28, 1968, during a discussion about returning to work those employees who had participated in the strike against Ally during April and May and who were still unemployed, that he, Traum, "was losing so much money that he couldn 't stand it and he was going to throw the keys down and walk out and leave the place"; and (2) that the restaurant operation closed on Friday, June 28 , at midnight, after the employees received their pay. In addition, the action of Ally on June 28 was explained in the credible testimony of Traum, as follows: "We were having financial troubles and it got too difficult to operate and so we decided not to go any further and closed it up." 8 According to the uncontradicted testimony of Green, which I credit, the franchise from Ramada Inns requires that any motel so franchised year-round basis. It is stipulated that since January 2, 1963, its officers have been Green, president and treasurer; Miller Gilmore, secretary; and Curtis V. Kimmel, vice president; and that Green is the sole shareholder. Labor relations of Respondent Green Construction are handled as follows: Each project manager is initially responsible for the labor relations of his particular project, but he, in turn, reports to the superintendent of the project, and the latter, in turn, reports to Green. Collective-bargaining negotiations are conducted by the superintendent in cooperation with Green. There is no interrelation of operations between these two corporations, apart from the fact that they have some officers and directors in common, namely, Green and Kimmel, and some common ownership; the fact that Green, in effect, controls the labor relations of each; and the further fact that the same law firm is counsel to both corporations.12 Thus, Respondent Builders and Respon- dent Green Construction are two separate companies, performing widely, divergent operations with separate home offices, that of Respondent Builders being located at Vincennes and Evansville, Indiana, and that of Respondent Green Construction being located in Oaktown, Indiana. In addition, neither corporation performs the work of the other and there are no services performed by either corporation which are integrated with the operations of the other. Each corporation employs different classifications of employees, requiring different qualifications and skills. These different classifications perform different types of work and the rate of pay of the employees of Respondent Green Construction appears to be much higher. In their normal day to day operations, each corporation is separately operated and managed by different personnel. In the case of Respondent Builders, each installation is under the day-to-day control of a manager for its motel and of a manager for its restaurant and bar, the latter being subordinate to the former. And in the case of Respondent Green Construction, each construction project is under the day-to-day control of a project manager, who is, in turn, subordinate to the project superintendent. There are no common supervisors and there is no interchange or transfer of employees. It would also appear that each corporation maintains its own payroll, books of account and bank accounts and attends to its own business. In the latter connection, the record discloses that original leasehold arrangements, which antedated Green's purchase of a majority interest in Respondent Builders, were made by Ally with Respondent Builders and that all subsequent must have eating facilities, and, failing that, the franchise could be revoked. 9 Green categorically denied that he, individually, owned any stock in Ally or had any interest in Ally at the time of the hearing. And the record fails to disclose that he ever had any such interest. So far as appears, the dealings between Respondent Builders and Ally have been at arms length. 10 Green testified that this initialing was done "only during the period when we were trying to get opened," and when he was intent on keeping cost down. 11 During the winter months it overcomes the problem of bad weather by doing a lot of work in Georgia, South Carolina, and the Virginias. 12 The name of the law firm is Kimmel, Kimmel, and Funk. As already found, one of the members, namely, Curtis V. Kimmel is the vice president of both Respondent Builders and Respondent Green Construction; and another member, James W. Funk is assistant secretary and treasurer of Respondent Builders. RAMADA INN 571 dealings thereunder by Ally were with Respondent Builders; it also discloses that Respondent Green Construc- tion holds no Ramada Inn franchises. It is well established that the Board will treat separate corporations or entities as a single-integrated enterprise where the firms, despite their nominal separation, are highly integrated with respect to ownership and operation.13 However, it is apparent, and I find, from all the foregoing, that these two corporations, notwithstanding Green's role as president of each and his role in the labor relations of each, are not engaged in a common endeavor. Accordingly, I find that the General Counsel failed to establish by a preponderance of the evidence that Respondent Green Construction constitutes an integrated enterprise with Respondent Builders. Consequently, I find further that there is no warrant for holding Respondent Green Construction to be jointly responsible with Respon- dent Builders for the unfair labor practices alleged herein.14 I shall, therefore, grant the motion to dismiss the amended complaint as to Respondent Green Construction and shall proceed hereinafter to a determination of whether Respon- dent Builders committed the unfair labor practices, as alleged. II. THE LABOR ORGANIZATION INVOLVED Respondent Builders admits, and I find, that Culinary Alliance, Local No. 443, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts and Some Details as to the Issues Herein The events leading up to the operation of the restaurant and bar facility by Respondent Builders at the Terre Haute location were, briefly, as follows: Ally Food Service Company, Inc., d/b/a Ramada Catering Service, and Mae Traum and Joe Traum began operating this facility in 1965 under a lease arrangement with Respondent Builders for 5 years. The lease was actually entered into on October 16, 13 For the principal factors which the Board weighs in deciding whether integration exists, and the Court's endorsement thereof, see Sakrete of Northern California, Inc, 140 NLRB 765, enfd 332 F 2d 902, cert denied 379 U S 961 14 See Drivers, Chauffeurs, Helpers Local 639, etc (Poole's Warehousing Inc), 158 NLRB 1281, 1286 15 All dates hereinafter are in 1968, unless otherwise indicated 16 The strike settlement was, at first, memorialized by a short statement signed by Joe Traum, in behalf of Ally, and by Carl W Eller, in behalf of the Union, it read, as follows Contract agreement between Ally Food Service, Inc , and Culinary Alliance Local 443 has been agreed to this 27th of May 1968 The actual agreement was then prepared the same day and was appaiently fully executed by May 28 The parties are in dispute as to whether the document, in evidence as GC Exh 3, or another document, in evidence as Resp Exh 4, is the complete agreement between the parties The two documents differ only in that GC Exh 3 has attached to it 2 pages setting forth wage rates and other conditions of employment, whereas Resp Exh 4 has no such attachment However, these 2 pages, inter aha, bear date of April 17, 1968; are captioned, "Notice to All Terre Haute Ramada Restaurant Employees"; state in the preamble to the wage scale therein that, "the following base pay is suggested, and the employees determine whether or not they desire to work on a 5 or 6 day schedule", 1964, at a time when the motel, etc., were still under construction. The lease provided, in relevant part, that Respondent Builders was to supply all the fixtures and equipment necessary for the operation of the restaurant and bar, such as stoves, refrigerators, ice machines, coffee urns, sinks, dishwasher, tables, chairs, and the bar and attendant equipment. The lessee, in turn, was to furnish the food and liquor supplies, china, silverware, paper products, linen, glassware, and small cooking utensils. As rental, the lessee was to pay a percentage of the gross receipts and was to supply daily reports of sales when available and was to permit the lessor to audit its records from time to time. The lessee was also to be responsible for repairs on all equipment, for replacement of any equipment which became irreparable from normal use, or which was lost or which disappeared. Provision was made for the liquor license to be the property of the lessor, but to be paid for by the lessee; it was also agreed that the lease was not intended to create a joint venture or partnership between the contracting parties and that the payment of a percentage of gross sales by the lessee to the lessor was a reservation of rent. Also relevant herein is article XVIII of the lease which provided, in part, that if the lessee abandoned or vacated the premises during the term of the lease, "the lessor may terminate the lease and enter upon [the leased] premises and again have, repossess and enjoy the same as if this lease had not been made," subject to the lessor's right of action for rent, damage and legal costs. Ally's employees were apparently not represented by a labor organization until March 1, 1968.15 At that time, the Union was certified, after a Board election, as the exclusive bargaining representative of all regular full-time and regular part-time employees of Ally at the Terre Haute restaurant and bar, including office clerical employees. Contract negotiations began shortly thereafter but were interrupted by a strike and picketing. This strike lasted for nearly 5 weeks until the terms of a collective agreement were finalized.16 The above negotiations were between representatives of the Union or of Ally, at all times; Robert E. Green, president and treasurer of Respondent Builders, took no part in these negotiations either in person or through a representative. and the attachment concludes with, "the above proposals are subject to approval of company attorney " (General Manager Traum of Ally testified that this document embodied Ally's proposals with respect to a contract and it was given to employees "so the employees would also know what we were proposing ") In addition, the basic agreement deals with the rate of pay of waitresses and with many of the proposed conditions of employment set forth in these two pages , and nowhere in the basic agreement is there a reference to this attachment In these circumstances, I am unable to credit Eller's testimony that the items on the attachment are part of the collective-bargaining agreement reached by the parties Accordingly, I find that Resp Exh 4 rather than GC Exh 3 is the complete agreement between the Union and Ally Respondents also assert in their bnef that "the record in this case certainly establishes that the circumstances surrounding the negotiation of one or both or neither of these two exhibits support a finding that neither of these purported agreements were the result of good -faith bargaining between Ally Foods and the [Union I " Respondents point to nothing in the record to substantiate their claim Accordingly , in view of the presumption in favor of legality and regularity of a duly executed collective-bargaining contract, and, in the absence of any evidence that either Ally or the Union has ever repudiated this contract because it was not a bona fide agreement, I reject this contention as lacking in ment 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the strike was over, operations at the restaurant and bar were resumed, but with only part of the prestrike complement of employees. As to the others, a good number of them were never reinstated by Ally, because on June 28, Ally shut down the restaurant and bar operations and paid off all of its employees. The reason for the shutdown, and the attendant abandonment of the lease by Ally, was, as I have already found, made known to Eller, the business agent of the Union, about a week before June 28. Eller was then told that Ally was operating at a loss and was in financial difficulties and would have to shut down. Respondent Builders learned of the intended shut down on June 28.17 Apparently, acting to protect its Ramada Inn franchise which requires that any motel having such a franchise must have eating facilities, Respondent Builders took steps immediately to operate the eating facilities abandoned by Ally. However, as already found, a little more than 2 weeks elapsed before the restaurant and bar were formally reopened under the management of Joseph Bowlds, who was transferred from his post as manager of Respondent Builders restaurant and bar installation at Vincennes. A composite of the credible testimony of Bowlds and Curtis V. Kimmel, the vice president and a director of Respondent Builders and one of the attorneys for Respondents herein, establishes, I find, that the delay in reopening was due to (1) the need to repair or replace the broken or damaged cooking and dishwashing equipment in the kitchen; (2) the need to clean up the place, including removing the considerable grease spots and dirt from the carpeting in the restaurant, bar, and from the walls and floor of the kitchen; (3) the need to have the sewer unstopped; (4) the problem of arranging for the removal of the padlocks upon the doors of the restaurant and bar, placed there by the Internal Revenue Department of the State of Indiana and the United States Government, due to liens of these governmental bodies against Ally; (5) the detail of having the name on the liquor license transferred to Respondent Builders; and (6) finally, the delay incident to purchasing and stocking the premises with liquor, food supplies, linens, dishes, silverware, and glassware.18 During this hiatus, Respondent Builders proceeded to recruit a staff for the operation of these facilities. Such recruitment was made from among individuals who applied to Bowlds as the result of advertisements placed from time to time in the morning newspaper as well as the evening 17 Traum, the general manager of Ally, communicated this information to Curtis V. Kimmel and he, in turn, notified Green. 18 Bowlds testified, in this connection, that when the restaurant and bar opened on July 15, he did not use any of Ally's glassware, silverware, china, or linens. 19 Thus (1) on July 3 and 4 an advertisement appeared in both daily newspapers for bar waitresses, bartenders, cooks, and salad girls; (2) on September 4, 7, 8, and 9 there appeared in daily or Sunday newspapers, as the case may be, an advertisement for cook and waitresses; (3) on September 24 through 30 there appeared in the daily or Sunday newspapers, as the case may be, an advertisement for day cook; (4) on October 4 through 21 there appeared in the daily or Sunday newspapers, as the case may be, an advertisement for waitress; (5) on October 23 there appeared in both daily newspapers an advertisement for a cook- clean-up man; and (6) on October 29 through November 4 there appeared in the daily or Sunday newspapers, as the case may be, an advertisement for cook. 20 Bowlds had worked for Ally for about a year before going to work for Respondent Builders in November 1967. During the summer of 1967, newspaper in Terre Haute, and in the single Sunday newspaper edition in that city,19 and from among former employees of Ally; and as to those recruited from the latter group, in most instances, according to the credible testimony of Bowlds, they had either worked for him in his capacity as manager, or their skill and work experience were otherwise known to him.20 There was also in Bowlds' possession on July 3, a letter of application addressed to him by the Union; in it the Union applied for work for 20 employees who were either working for Ally on June 28 or had not yet been reinstated,21 and for 3 employees who had been reinstated after the strike, but quit work at Ally on June 26.22 The text of the letter, apart from the list of 23 names mentioned above was, as follows: Dear Sir: Please be advised that the following is a list of Union and signed card members of Local #443 who were Employees at the Ramada Inn when it closed Friday Night, and signed card members who Quit and went to work on Wednesday, June 26th 1968 on other jobs. These Employees are ready and able to start to work when the Restaurant and Bar Reopens. Recruitment proceeded in this manner: By July 12, which was the end of the first biweekly payroll period since the shutdown, there were 13 employees actually working for Respondent Builders.23 This number progressed to 32 and then to 40 during the next two successive biweekly payroll periods. Thereafter and until approximately the time of the instant hearing, the complement vacillated between a high of 4324 and a low of 38. Among those hired before the peak was reached were 7 individuals of the 23 listed in the Union's letter of application set forth above, namely, Susan Montgomery (who began to work on July 15), Judith Crabb and Agnes Lyon (who began to work on August 13), Phyllis Alsop (who began to work on Septerber 17). Thereafter, during November. Respondent Builders employed Pat Rollings; she started to work regularly around December 2, In addition, Respondent Builders, during November and December, offered employment in their former jobs, with alseniority rights, to Madeline Tharp, Bertha Green, and Pamela Pershing. As of the time of the instant hearing, neither of these three individuals had accepted the offer of employment. Although as noted above, some of the individuals listed in the Union's letter of application were thereafter hired, the amended complaint he was detailed by Ally for 3 months to the restaurant and bar at Terre Haute where he served as manager. Thereafter, he worked for Ally as manager of the restaurant and bar at its Evansville installation. When Respondent Builders started operating the Evansville installation in November 1967, Bowlds continued in the same job with the title of catering manager. In May 1968, he became manager of the restaurant and bar at Respondent Builders' Vincennes installation. 21 Namely, Rosella Merk, Clara Allen, Joe Feuquay, Pat Rollings, Norma Atterson, Jim Fenoglio, Steve Wooley. Eleanor McCombs, Charles Smith, Helen Atkinson (she was listed as being on sick leave ), Edgar Vermuelen, Madeline Tharp. Bertha Green, Helen Sims, Susan Montgomery, Emmett Martin, Wilma Cox, Richard Carrithers, Pauline Hogue, and Pamela Pershing. 22 Namely, Judith Crabb, Agnes Lyon, and Phyllis Alsop. 23 It would appear that such work as was done was of the get-ready variety. Twelve of these individuals worked 26 hours or less and one, a maintenance man, worked 40 hours during this payroll period. 24 This peak was reached during the biweekly payroll period ending on October 4. RAMADA INN 573 alleges, and the General Councel contends in its brief herein, that all 23 so listed, as well as Mary Ann Akers, whose name was added to the list on July 16, were discriminated against either individually or as part of a mass discrimination against union-connected employees. I shall therefore deal with the allegations of discrimination insofar as they relate to each of these 24 employees, seriatim. During the hiatus between the shutdown of the restaurant and bar by Ally and the reopening thereof by Respondent Builders, the Union, through Eller, and through its counsel, Ross P. Walker, Esq., communicated by telephone and by letter with Respondent Builders, advising Respondent Builders of the Union's contract with Ally as to the employees of the Terre Haute restaurant and bar and requesting Respondent Builders to recognize and bargain with the Union. The details of what transpired between them is in controversy. Suffice it to say, at this point, that Respondent Builders has refused to recognize and bargain with the Union . The Union, as found hereinafter, in effect, concedes that it never had a majority among the employees of Respondent Builders at the Terre Haute restaurant and bar. However, the General Counsel contends that, even without a continuation of the majority which the Union formerly had among the employees of Ally, it was incumbent upon Respondent Builders , as successor to Ally, to recognize and bargain with the Union , and to assume the outstanding contract between Ally and it ; and this is so, also according to the General Counsel, because Respon- dent Builders discriminatorily refused to hire its predeces- sor's employees. It is thus apparent that central to the 8(a)(5) issue herein is the resolution of the allegations of 8(a)(3). B. The Alleged Violations of Section 8(a)(3) of the Act For the reasons hereinafter set forth, I am persuaded, and find, that the 8(a)(3) allegations of the amended complaint have not been sustained as to any individual encompassed thereby, whether their cases are considered separately or as part of the alleged mass discrimination. I shall, however, defer my analysis of the allegation of mass discrimination until I have treated with each alleged discriminatee separately and apart therefrom. 1. Clara Allen and Pauline Hogue Neither Clara Allen nor Pauline Hogue appeared as a witness in this case. However, the parties hereto stipulated that they were offered employment by Respondent Builders on July 2. And the payroll records, in evidence as General Counsel's Exhibit 28, show that both of them started working at the Terre Haute restaurant on July 15, the day on which Respondent Builders reopened it for business. It is clear that the offers of employment to Allen and Hogue antedated the receipt on July 3 by Respondent Builders of the Union's letter of application for 23 former employees of Ally. In these circumstances, I am persuaded, and find, that the record fails to reveal any tenable basis for finding that Respondent Builders discriminated in any manner or form against either Allen or Hogue. 2. Susan Montgomery According to Susan Montgomery, on July 1, 2, or 3, she spoke to Bowlds, manager of the Terre Haute restaurant and bar, about employment. Montgomery's version of the interview, which resulted in her going to work at this installation in early July,25 was as follows: At first, Bowlds said to her, "I hear you are having a little trouble." She thereupon inquired as to what kind of trouble Bowlds was referring, and Bowlds answered, "I hear you are mixed up in the Union."26 Montgomery could not recall what else she said, but she attributed to Bowlds the further remark that, "it made no difference to him personally but he was employed by Mr. Green and he did what Green told him to do . . . that Mr. Green didn't want to have anything to do with the Union." It was her further testimony that thereafter in "early July" she spoke on the phone to Norma Atterson, one of those listed in the Union's letter of application, about going back to work at the Terre Haute restaurant 27 However, in response to a question from me as to whether she told Atterson what had happened between Mr. Bowlds and her, Montgomery replied, "Nothing happened." Also when asked by counsel for the Union immediately thereafter, "what had been said by you and Mr. Bowlds at the time when you were hired?," her answer was, "I don't remember." In contrast to the foregoing, Bowlds testified that he had a conversation with Montgom- ery, in the presence of her husband on July 1 in the dining room and kitchen of the Terre Haute restaurant. According to him, the following took place : Susan Montgomery said that she was scared to death all the time about what was going on, that she had been abused and there was always someone calling the house, that she did not want to have anything to do with the Union, and that she just wanted to work and make a living. Whereupon, he said that "it didn't make any difference to [him] one way or the other." While Bowlds agreed that the name of Mr. Green was mentioned during the conversation, his version was that he merely told her that he now worked for Builders Realty owned by Mr. Green, and he specifically denied that he told Susan Montgomery that Mr. Green stated that he did not want anything to do with the Union. Bowlds apparently hired her at the close of this conversation to start work before the restaurant reopened formally on July 15. Bowlds explained that she had worked for him during the summer of 1967 during his stint as manager of this installation for Ally and that, in staffing in July 1968, he hired some of the people who had worked for him during the summer who were very good at their jobs. In all these circumstances, including the uncertain and 25 The . biweekly payroll record for the period ending July 12, in Ally. evidence as GC Exh. 27, shows that Montgomery worked for the first time 27 The conversation occurred during a telephone call from Atterson to on July 8 rather than July 4, as she testified. Montgomery. 26 Montgomery was a member of the Union during her employment by 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unconvincing testimony of Susan Montgomery, the ab- sence of any corroboration thereof,28 and the denial by Bowlds, I find that the evidence fails to preponderate in favor of a finding that Bowlds introduced the topic of the Union in the conversation or that Bowlds told Susan Montgomery that "Mr. Green didn't want to have anything to with the Union." Accordingly, I conclude and find that, here too, there exists no tenable basis for finding that Respondent Builders has discriminated against Susan Montgomery with respect to her hire or tenure of employment. 3. Judith Crabb Judith Crabb had worked as a waitress for Ally at the Terre Haute restaurant since February 1, 1967. She quit her employment with Ally a few days before Ally closed down this installation. on June 28, 1968. Although her name was included among those listed in the Union's letter of application for employment to Respondent Builders, she was designated thereon as a quit before the restaurant closed down. Crabb admittedly filed an application for employment with Respondent Builders on July 3. Thereaft- er, the following occurred, according to the testimony of Crabb: She telephoned Bowlds about July 10 and asked him if he had heard anything more about her getting her job back. Bowlds said he had not heard and promised to let her know. Bowlds then asked her "if [she ] could get a card back that she signed or a clearance of some kind." 29 Although Crabb testified, at one point, that she called Bowlds on the telephone, in all, 3 or 4 times, she did not know when the other occasions were. Subsequently, also on direct, Crabb testified that she did not make any telephone calls to Bowlds after the one described above. And then, during cross-examination, she varied her testimony again, by saying that "it could" have been two times that Bowlds asked her about the card or the clearance. In any event, Crabb never got her signed card back from the Union, and it is stipulated by all the parties that Crabb's first day of work at the Terre Haute restaurant was August 13. In regard to the foregoing, Bowlds fixed the date of Crabb's application for a job of morning waitress as July 5,30 at which time he had a conversation with Crabb. He testified further that Crabb told him that she had trouble with the Union and did not know whether she was still a member of the Union as she had crossed the picket line during the strike at Ally; that Crabb added that she did not think that she was still a union member and wanted to know "if that would be anything against her and keep her from getting her job"; and that he, in turn, said that, "it made no difference to us." Bowlds denied that he, at any time, instructed Crabb to try and get her application card back from the Union. In all the circumstances, including the fact that Crabb was hired by Respondent Builders, although she never got 28 I credit Bowlds' testimony that Susan Montgomery 's husband was present during this conversation . However, Mr. Montgomery did not appear as a witness at this proceeding and there is no showing that he was then unavailable. 29 At first, Crabb testified that, when Bowlds said that he would let her know, in response to her inquiry about whether he had heard about a job for her, "that was about the end of [the conversation I." And when asked whether she remembered anything else that was said in the conversation back her signed union card; the fact that her testimony, attributing to Bowlds' solicitation of her to get her card back, was elicited by a leading question; the fact that her testimony as to other telephone calls by her to Bowlds concerning employment, and as to another such solicitation by Bowlds was unsure and unconvincing ; and the further fact that Bowlds categorically denied ever engaging in such solicitation, I am satisfied, and find, that the General Counsel failed to establish by a preponderance of the evidence, as detailed above, that Bowlds solicited Crabb to get her card back from the Union at the time she applied for employment. Accordingly, I find, here too, that Respon- dent Builders has not discriminated against Judith Crabb with respect to her hire and tenure of employment. 4. Agnes Lyon and Phyllis Alsop Agnes Lyon did not appear as a witness in this case. However, Respondents admit that she filed an application for employment with Respondent Builders on July 3, and it is stipulated that her first day of work at the Terre Haute restaurant was August 13. Similarly, Phyllis Alsop did not appear as a witness herein. However, among the applications for employment filed with Respondent Builders are two of her applications, one for cocktail waitress dated July 5 and one for waitress dated September. It would appear, too, and I find, on the basis of Respondent Builders' biweekly payroll record for the period ending September 6, in evidence as General Counsel's Exhibit 31, that Alsop's first day of work for Respondent Builders at the Terre Haute restaurant was September 6, as waitress. The record fails to reveal anything untoward unionwise happening between either Lyon or Alsop, on the one hand, and any representative of Respondent Builders, on the other hand. Although it is evident that about 6 weeks elapsed from the time of Lyon's application for employ- ment and the day she began to work for Respondent Builders and that approximately 2 months elapsed in the case of Alsop from the time of the first application, it is clear, and I find, on the evidence detailed above, that no basis exists, in either situation, for finding that Respondent Builders discriminated as to their hire or tenure of employment in deferring their actual employment until August 13 and September 6, respectively.31 5. Joe Feuquay ; Jim Fenoglio, Madeline Tharp; Richard Carrithers ; Helen Atkinson, and Edgar Vermuelen Neither Joe Feuquay, Jim Fenoglio, Madeline Tharp, Richard Carrithers, Helen Atkinson, nor Edgar Vermuelen appeared as a witness herein. With specific reference to Atkinson and Vermuelen, there is testimony by Eller, the she answered in the negative . The above statement about cards was then elicited after a leading question by counsel for the General Counsel , to wit, "Was anything said about union membership or union cards?" 39 As heretofore indicated, Respondents admitted that the date was July 3 . 31 As heretofore found, Respondent Builders attained its peak employment at the Terre Haute restaurant during the payroll period ending October 4. RAMADA INN 575 union business agent, that Atkinson was ill and did not apply in person to Respondent Builders for employment,32 and that Vermuelen also did not apply in person. There is also uncontradicted testimony by Bowlds that none of the above-mentioned individuals filed an application with Respondent Builders. Nor does it appear that any of these individuals applied to Respondent Builders for employ- ment by telephone. As heretofore indicated, the names of all the above- mentioned individuals did appear on the Union's letter of application which was received by Respondent Builders on July 3. However, whether the list reflected the current desires of the listed individuals for employment by Respondent Builders is open to doubt. In this connection, Eller testified, in effect, that the paramount consideration in his placing a name on the list was that the individual involved was an obligated member of the Union 33 That this is so is apparent from the following: Eller listed thereon Helen Atkinson, who had apparently taken such leave before Ally shut down the installation, and was, as the listed clearly indicated, still sick and unable to work. He also listed thereon the names of Judith Crabb, Agnes Lyon, and Phyllis Alsop, designating them on the list as "card members who quit." Indeed, Eller testified that he was not applying for employment for the three who had quit, that they were working somewhere else at the time, and that Alsop told him that she was quitting and would not be back. And in regard to Joe Feuquay and Jim Fenoglio Eller acknowledged that, although the Union, in a letter dated June 17 to General Manager Traum of Ally, asked for the reinstatement of Joe Feuquay and Jim Fenoglio along with five other employees, all of whom were still to be reinstated after the strike against Ally, he made inconsistent handwritten notations on the letter, while in Traum's possession, about 3 days later, after speaking to Traum about these individuals. At that time Eller wrote "cannot do work" next to Feuquay's name and the word "quit" next to Fenoglio's name. In all these circumstances, I am convinced, and find, that the Union's letter of application falls short of being a reliable index of the current desires of the listed individuals for employment by Respondent Builders.34 Accordingly, as the Union's letter of application falls short of establishing that anyone of these six individuals was available for employment during the critical period herein, as there is absent any evidence that anything untoward unionwise occurred between any of these individuals, on the one hand, and representatives of Respondent Builders, on the other hand, I conclude, and find, that the evidence, as detailed above, fails to 32 The Union's letter of application to Respondent Builders discussed heretofore stated that Atkinson was "on sick leave " 33 Thus, when Eller was asked , on cross-examination , what criteria he used to select these individuals, he replied, "I simply conducted the duties of my office These people were signed, obligated members of the Union and I simply conducted my office in the best manner under law that I knew how in their behalf " 34 1 note, too, that the letter spoke only of the applicants being "ready and able to start work when the restaurant and bar opens ," giving no information as to the job or jobs sought by each applicant and his qualihcahons therefore-information which a prospective employer could rightfully insist upon having before considering an applicant for employment 35 The record discloses that, by letter dated November 26 from counsel preponderate in favor of a finding that Respondent Builders discriminated with respect to the hire and tenure of employment of either Joe Feuquay Jim Fenoglio, Madeline Tharp,35 Richard Carrithers, Helen Atkinson, or Edgar Vermuelen. 6. Norma Atterson Norma Atterson was working for Ally as a waitress at the time Ally closed down the Terre Haute restaurant and bar. Sometime during the first week of July she telephoned Bowlds at the above installation. Atterson testified that she told Bowlds of her employment by Ally and inquired whether she could have her job back, to which Bowlds replied that she would have to come in and fill out an application, as Mr. Green wanted to go over all the applications. Atterson admitted that she never filed an application with Respondent Builders, explaining that after July 15, when the Terre Haute restaurant was reopened, she spoke to Susan Montgomery and, as a result of this conversation, she elected not to file an application. Since Montgomery was then already an employee of Respondent Builders,36 since what Montgomery may have told her is, in no event, binding on Respondent Builders, and since I have heretofore found that nothing of a vulnerable nature under the Act occurred between Montgomery and Bowlds prior to the time that Montgomery was hired, I perceive no basis for finding that, in consequence of Atterson's telephone conversation with Montgomery, it would have been futile for Atterson to file an application, as requested by Bowlds. According to Atterson, the next time she spoke with Bowlds was around November 12; she came to the Terre Haute restaurant in response to a telephone call from Bowlds. She testified that they then discussed terms of employment and, during their conversation, Bowlds said that "he would have called [her] back sooner but he didn't want to get [her] in trouble with the Union"; and further that "he didn't care about the Union one way or the other." She testified also that she began working for Respondent Builders on November 18. In respect to the above, the parties hereto stipulated that Atterson was hired by Respondent Builders on November 11 and began working on that date as a night waitress. There was also testimony by Bowlds in this connection. Bowlds recalled having a telephone conversation with Atterson about this time.37 However, he testified that Atterson initiated the telephone call and asked about getting her job back; and that his response was that he had all the girls he needed on the night shift. Whereupon Atterson asked whether his not hiring her had anything to do with the Union and he answered in the for Respondent Builders, Tharp was offered employment in her former job with Ally, with full seniority rights, and that Tharp refused to accept the offer 36 As heretofore found, Montgomery began working at the Terre Haute restaurant on July 8 37 While it would appear from the way the question was put to Bowlds by counsel for Respondents that, in his answer thereto, Bowlds was fixing the date of this conversation as November 18, 1 am satisfied that this was engendered by counsel's use of the wrong date Thus, counsel asked, "Now Mr Bowlds turning your attention to November 18th, 1968 , did you have a conversation with Norma Atterson on that date?" and Bowlds replied, "She called me on the phone " I therefore find that Bowlds was referring to the same telephone conversation testified to by Atterson 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negative. He testified further that Atterson was employed by him pursuant to instructions from counsel for Respon- dents. Accordingly, in July, as Atterson failed to comply with the request of Bowlds to file a written application for employment, as no showing has been made that the filing of an application would have been futile, as the Union's letter of application was not a reliable index of her current desires for employment by Respondent Builders,38 and as nothing untoward unionwise occurred between Atterson and Bowlds during their telephone conversation, I find that the record fails to preponderate in favor of a finding that Respondent Builders discriminated against Atterson by not hiring her in July in response to her telephone call and the Union's letter of application. I have heretofore detailed the subsequent hiring of Atterson on November 11, and the conversation which preceded it. In this connection, I find more credible the testimony of Atterson, which Bowlds denied, that Bowlds made the overture to her about coming back to work. Supportive of her testimony, I find, is Bowlds' testimony that he hired Atterson at that time pursuant to instructions from counsel for Respondent Builders. However, I find it difficult to believe that, armed with such instructions to hire Atterson, Bowlds would have mentioned the Union during this conversation and would have volunteered to Atterson that he did not call her back sooner for union-connected reasons. In view of this, and in the light of Bowlds' testimony that Atterson raised the matter of the Union by asking whether his not hiring her before had anything to do with the Union, to which he entered a denial, I find that the logic and probabilities of the situation support Bowlds' testimony in this regard and I credit it. Accordingly, I find that the evidence, as detailed above, fails to preponderate in favor of a finding that Respondent discriminated against Norma Atterson with respect to her hire or tenure of employment by not hiring her before November 11. 7. Patricia Rollings Patricia Rollings had participated in the strike called by the Union in late April against Ally at the Terre Haute restaurant and bar and was among those employees of Ally who had not been reinstated as of June 28 when Ally closed down this Terre Haute installation. Rollings contacted Respondent Builders for the first time about November 2 in reference to a job at the Terre Haute restaurant. She testified that, upon learning that Bowlds had talked to Atterson, she wanted to see if Bowlds would hire her back. She reached Bowlds on the telephone and, as detailed in her testimony, the following took place: She identified herself and said that she understood that he, Bowlds, was hiring some of the union members back. To this, Bowlds replied, "not necessarily." Whereupon, she said that she was interested in her job, that she liked her job, and that she would like to have it back. Bowlds answered that he would call her. Bowlds did call her about 5 days later, and she was subsequently hired. Her first day of work on a regular basis was around December 2 .39 Bowlds' testimony as to this incident was merely that he had been told by counsel for Respondent Builders to hire Rollings. In all these circumstances, including my finding hereto- fore that the fact that an individual 's name appeared on the Union's letter of application, as was the case with Rollings, was not a reliable index of current availability for employment; the findings above that Rollings first applied for employment in November and was hired shortly thereafter ; the absence of evidence that a personal application before November would have been futile; and the absence of evidence that anything untoward unionwise occurred between Rollings, on the one hand, and Bowlds or other representatives of management, on the other hand, I also find here that the evidence, as detailed above, fails to preponderate in favor of a finding that Respondent has, at any time since July 3, discriminated against Patricia Rollings with respect to hire and tenure of employment. 8. Charles Smith Charles Smith had worked as a cook for about 20 years. His employment by Ally at the Terre Haute restaurant covered the period from September 1967 until June 28, 1968, when Ally closed down the installation. He was employed by Ally as a dinner cook and his job just prior to the shutdown was as "swing cook," relieving all the other cooks. He did not work continuously during his tenure, as he was discharged by Ally on December 4, 1967, and was thereafter reinstated with backpay in March 1968. The parties stipulated that Smith filed an application with Respondent Builders during the first week of July, sometime after July 3. Smith testified credibly, as follows: He applied at that time on instructions from Eller, the Union's business agent. There was no mention made of a union when he filed his application with Bowlds. He also applied four more times thereafter either by phone or in person. Each of these four times, he applied the day after having seen in the evening newspaper an advertisement for a cook at the Terre Haute restaurant. He fixed these four times as twice in September, once in October, and once in November. As heretofore found, there were, in fact, two such advertisements in September-one early in September for a cook and waitresses, and one late in September for a day cook; there was one in late October for a cook, clean up man; 40 and there was one in early November for a cook. Also, according to Smith, on each of these occasions he spoke to Bowlds and Bowlds told him that he had just hired somebody. In respect to the above, Bowlds testified only that when Smith appeared at the Terre Haute restaurant early in July asking for a "shift job," at between $90 to $100 per week,41 he asked Smith to fill out an application and Smith did so. At that time, according to Bowlds, he had already, on July 1, contacted one Joe Salooki, whose work as a cook he had observed during the summer of 1967 at another Terre Haute restaurant operated by Ally,42 and 38 See the findings, above, as to Joe Feuquay and others . not sought. 39 The biweekly payroll record, for the period ending November 29, in 41 Smith testified that he asked for $98 per week. evidence, shows that Rollings worked for 6 1/2 hours during that period, 42 Ally's payroll for the biweekly period ending June 28 shows that on November 18. Salooki worked 78 1/2 hours at the Terre Haute restaurant and earned 40 According to Bowlds' credible testimony, in this instance a cook was gross pay of $149.15. RAMADA INN 577 Salooki had accepted his offer of employment as head cook at night at this installation. In addition, he had, on July 1, contacted Shirley Scott whom he hired as a cook. In this connection, the biweekly payroll records of Respondent Builders, in evidence, show that Salooki began to work at the Terre Haute restaurant on July 8 and that Scott began on July 13. These records also reveal that on July 15 and 16 four more were added to the payroll in the cook classification, i.e., Camelia Williams, Emma Eaton, and Elsie Gore began on July 15 and Thelma Granger began on July 16. These records reveal further that the complement of employees classified as cooks during the next 10- biweekly payroll periods, in evidence, which would encompass the period up to several weeks before the instant hearing, varied between 5 and 7. Four of the complement, namely Salooki, Scott, Gore, and Williams were employed throughout this entire period. Salooki, Scott, and Gore started at a wage which was within the range of that requested by Smith, while Williams started at considerably less, and was receiving $1.55 per hour during the most recent biweekly payroll period, in evidence. It would also appear that, except for one Robert Still, the others who were hired as cooks during these 10-payroll periods were paid no more than Williams. Still was hired during the payroll period ending October 4 at $2 per hour and continued to be so employed thereafter. His rate of pay was considerably less than what Smith testified he was requesting per week. Bowlds testified further that the job of a dinner cook which, as already indicated, Smith had for virtually the entire period he worked for Ally, varies with the manager in charge of the restaurant; that, if he had a dinner cook, he would have him make up the dinner for the buffet; and that he has not served a dinner buffet at the Terre Haute restaurant since its opening on July 15.43 Bowlds' explanation as to why he never hired Smith, who had about 20 years of experience as a cook, was unconvincing and I do not credit his testimony in this regard. However, while the matter is not free from doubt, in the absence of evidence showing that anything untoward unionwise occurred between Smith and Bowlds, or between Smith and any other representative of Respondent Builders, and in the absence of any evidence herein warranting an inference that Respondent Builders was motivated by antiunion reasons in not hiring Smith, I am unable to find that the evidence, as detailed above, preponderates in favor of a finding that Respondent has since early July discriminated against Charles Smith with respect to hire or tenure of employment. 9. Emmett Martin Emmett Martin did not appear as a witness in this proceeding. However, his written application, dated July 3, for a job as bartender with Respondent Builders is in evidence as part of General Counsel's Exhibit 26. According to the testimony of Bowlds, Martin worked as a day bartender at the Terre Haute installation during the summer of 1967 when he, Bowlds, was detailed to that restaurant and bar by Ally as manager. Bowlds testified that Martin drank on the job and "as night wears on he drinks more than he sells"; that he had to send Martin home one Friday night for drinking too much on the job; and that he had to send Martin home one Saturday night because he judged from Martin's looks and demeanor that Martin had had too much to drink. Bowlds testified further that he filled the day bartender's job on June 30 or July 1 by hiring Dolores Medlin who had also worked in the bar at the Terre Haute installation during the summer of 1967 while he was manager. According to Bowlds, he telephoned Medlin and offered her the job and she accepted. In all these circumstances, including Bowlds' uncontro- verted testimony as to Martin's work habits and work performance while he, Bowlds, managed the restaurant and bar during the summer of 1967; and in the absence of any showing that anything untoward unionwise occurred between Martin, on the one hand, and Bowlds or any representative of Respondent Builders, on the other hand; and in the absence of any evidence warranting an inference that Respondent Builders was motivated by antiunion reasons in not hiring Martin, I am unable to find that the evidence, as detailed above, preponderates in favor of a finding that Respondent Builders discriminated against Martin with respect to his hire or tenure of employment. 10. Helen Sims Helen Sims was employed as a day bartender by Ally at the time Ally closed down the Terre Haute restaurant and bar. According to Sims, she had conversations with Bowlds early in July about getting back her job as day bartender, i.e., about July 2, 5, and 10. Her testimony detailed the events of those 3 days, as follows: On the first occasion, Bowlds told her that he had heard a lot of nice things about her and that "they weren't ready yet." Bowlds told her to be back the following morning at 9 o'clock, but said nothing about filling out an application. Later that day, she heard from Rosella Merk44 that "we were all supposed to be to work" the next morning at 9, and she was asked to tell that to everyone. The following morning, about six employees of Ally, including Merk and her were present at the restaurant, and they were all told by Bowlds to fill out applications. They filled out their applications and handed them either to Bowlds or Mr. Abel, the new manager of the motel, to which the restaurant and bar were attached, and were told by either Bowlds or Abel that Robert E. Green (president of Respondent Builders) would be back in an hour and they would be able to talk to him at that time. However, they never did get to talk to Green and were told by Abel to go home and that they would be called when needed. She next appeared at the restaurant on July 5 and asked for her old job again, and Bowlds replied that "there wasn't anything he could do about it." She then asked whether this was due to the fact that her name was on the list of names 45 Whereupon, Bowlds smiled and said, "Well, your name was on that list." To this, she answered that she had joined the Union so she could hold on to her job and that she needed her job back badly. And Bowlds replied that, "he was just 43 Ally did serve such a buffet. before the closing of the Terre Haute restaurant. 44 Merk had been made an assistant manager by Ally about 2 months 45 The reference was, I find , to the Union's letter of application. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sorry but that was the way it was." Her last appearance at the restaurant was about July 10. At that time, Bowlds told her that he had already hired someone for the day bartender's job, that he could not let that individual go because of her, but that he might be able to work something out for her in another part of the restaurant. Her answer was that she was not interested in any other job and that the day bartender's job was the only one she could handle. Before she left, she spoke to Abel and he suggested that she write a letter to Green. She made this known to Bowlds and he thought that it would be a good idea. It does not appear that she ever sent such a letter to Green. With respect to the above, Bowlds testified only that he recalled that Sims came to the Terre Haute restaurant with Eller on July 5 or 6, and that, during the conversation with Sims that followed, she asked him if it would do her any good to send a letter to Green and that his response was that he "really didn't know if it would or not." He denied that he ever told her during a conversation that "her name was on this list." It is apparent from" the testimony of Sims that Bowlds refused to hire her as a day bartender on the ground that he had already filled the job, but offered, on July 10, to work something out for her in another part of the restaurant, and that she refused to work at any other job. Since the fact that he had already filled the job is, I find, sustained by the record, her case must rise or fall on whether Bowlds made the selection on a discriminatory basis. The General Counsel appears to rely, in this connection, on Sims' testimony concerning Bowlds' reply to her question as to whether she was not getting the day bartender's job because her name was among those listed in the Union's letter of application. According to Sims, Bowlds smiled and said, "Well, your name was on the list." In view of the fact that Sims' version discloses that she was the one who introduced the subject of the list and, as it would require a strained interpretation of the answer she attributed to Bowlds and of the entire conversation to find that Bowlds' answer did more than acknowledge that her name was on the list, I am unable to find that Bowlds thereby clearly manifested that he would not hire Sims because of her union membership or her connection with the Union. Furthermore, he did thereafter offer to find a job for her elsewhere in the restaurant, according to Sims. Accordingly, on the basis of the entire record, I am unable to find that the evidence preponderates in favor of a finding that Respondent Builders has since early July discriminated against Helen Sims with respect to her hire or tenure of employment. 11. Bertha Green Bertha Green did not appear as a witness in this case. The only evidence pertaining to her is her application of July 3 to Respondent Builders for a job as breakfast cook and her inclusion among those listed on the Union's letter of application. It is clear that Green was never hired by Respondent Builders. In all these circumstances, including the absence of any evidence that anything untoward unionwise occurred between Green, on the one hand, and a representative of Respondent Builders, on the other hand, and in the absence of convincing evidence warranting an inference that Respondent Builders was motivated by antiunion reasons in not hiring her, I find that the evidence, as detailed above, does not preponderate in favor of a finding that Respon- dent Builders discriminated against Bertha Green with respect to her hire or tenure of employment. 12. Wilma Marie Cox Wilma Marie Cox was employed by Ally as a waitress at the Terre Haute restaurant from March 1967,46 until the time Ally closed down the restaurant on June 28. Her name was thereafter included among those listed on the Union's letter of application, and she personally filed an application with Bowlds for a job as waitress on July 25. On the latter date, according to the testimony of Cox, the following occurred: She asked Bowlds to hire her back and he replied that he was not hiring at that time and that he would let her know at a later date if he needed her. At that point, Mary McCord, a hostess at the installation, spoke to Bowlds, in her presence, and said that "Frances Bentley" 47 had wanted him to hire Eula back, that Eula had been a waitress there before the Union came in, and she was a good waitress, and that he should hire her back. On her way out of the restaurant she saw Eula, and about a week or two later, she observed Eula going into work wearing a uniform of a waitress. The parties stipulated that counsel for Respondent Builders, by letter dated November 9, which Cox received on November 15, offered her a job as waitress. Cox refused this offer. It is Cox's further testimony that, prior thereto, on November 5, in a telephone conversation with counsel for Respondent Builders, counsel offered her the same rate of pay as at Ally and "all her privileges"; that she asked about backpay; and that counsel indicated that he could not offer her any backpay. Bowlds did not testify concerning the above conversa- tion. Granting that a conversation between Cox and Bowlds about Cox's employment as a waitress did occur on July 25, I am not persuaded that she testified credibly with respect to the attendant circumstances involving the remarks by McCord both as to Bentley wanting Bowlds to hire one, Eula, and as to Eula "[having] been a waitress there before the Union came in." Eula is not otherwise identified in the record. However, in seeming contradiction to Cox's testimony that Eula was thereafter hired as a waitress are Respondent Builders' payroll records, in evidence, which show that one Eula Alexander started to work as a waitress at the Terre Haute restaurant on July 20 and was so employed on July 25 and for sometime thereafter. And so far as appears from the payroll records, in evidence, Respondent Builders has never employed at the Terre Haute restaurant any other individual whose first or last name was Eula. Accordingly, in view of this apparent discrepancy, I do not credit Cox's testimony in this regard. In all these circumstances, including the absence of evidence that anything untoward unionwise occurred between Cox on the one hand, and Bowlds or any other 46 As already found, Bowids was detailed by Ally to this installation as 47 Bentley is listed as a hostess on the biweekly payroll ending July 26, manager during the summer of 1967 . in evidence as GC Exh. 28. RAMADA INN representative of Respondent Builders on the other hand, and in the absence of any evidence warranting an inference that Respondent Builders was motivated by antiunion reasons in not offering her employment as a waitress before November 5 or thereabouts, I find that the evidence, as detailed above, does not preponderate in favor of a finding that Respondent Builders discriminated against Wilma Marie Cox with respect to her hire or tenure of employment. 13. Eleanor McCombs Eleanor McCombs had participated in the strike called by the Union against Ally at the Terre Haute restaurant and bar and was among those employees at Ally who had not been reinstated as of June 28 when Ally closed down this Terre Haute, installation.48 McCombs contacted Respondent Builders for the first time on August 1 and applied for a job at the Terre Haute restaurant 49 McCombs testified as follows with respect to her efforts to obtain employment with Respondent Builders as a waitress: She spoke to Bowlds in the lobby of the restaurant. Bowlds looked over her application and said that he would have to get Green to approve it. When she commented about her experience as a waitress, Bowlds replied that he had no doubt that she was a good waitress. Bowlds then told her to call him the following week and, in the interim, he would get Green to look over her application. The following week, she telephoned Bowlds, as directed, but was told by Bowlds that he had not had a chance to talk to Green about her application and that she should keep in touch with him. Subsequently, on August 27, she inquired from Bowlds on the telephone as to whether he had any openings for a waitress and he replied in the negative but volunteered that he had an opening for a dishwasher. After several attempts to reach Bowlds again on the telephone, she reached him in November. She posed the same question to Bowlds as on August 27, and he replied in the negative. Bowlds did not testify concerning any of the foregoing, and I credit McCombs' uncontroverted testimony as to her unsuccessful efforts to secure employment with Respon- dent Builders as a waitress . However, in the absence of evidence that anything untoward unionwise occurred between McCombs on the one hand, and Bowlds or any other representative of Respondent Builders on the other hand, and in the absence of any evidence warranting an inference that Respondent Builders was motivated by antiunion reasons in not offering her employment as a waitress, I find that the evidence, as detailed above, does not preponderate in favor of a finding that Respondent Builders discriminated against Eleanor. McCombs with respect to her hire or tenure of employment. 48 According to McCombs, during the first part of June, Ally offered her employment as a waitress on the night shift, although she had worked on the day shift before the strike , and she refused the offer. 49 McCombs was also one of those listed on the Union's letter of application. 50 The biweekly payroll for the period ending November 15, in evidence as GC Exh. 36, shows that she started work on Wednesday, November 13, as a hostess-cashier. 14. Rosella Merk 579 Rosella Merk had been working for Ally for about 3 years at the time Ally closed the Terre Haute restaurant. She started as a waitress, progressed to hostess and cashier, and was made assistant manager a week before the strike. She testified that she did not walk the picket line during the strike because she was told by management of Ally that she "didn't have to." She continued to function as assistant manager both during the strike and until the shutdown. Thereafter, she applied to Respondent Builders for work at the Terre Haute restaurant. Merk detailed her experience in this respect, as follows: In response to a telephone call from Frances Bentley, a former hostess and cashier at Ally, she appeared at the Terre Haute restaurant about the first or second of July and spoke to Bowlds. When Bowlds told her that he already had a hostess, she said, "Good, [she] didn't want that job anyway [she] would rather be a waitress." Bowlds answered "OK." Whereupon she gave him her telephone number. During this conversation, Bowlds asked her to call employees who had worked for Ally to come to the restaurant and bar the following morning about 9 o'clock in order to clean up. That evening she contacted Agnes Lyon, Bertha Green, Helen Sims, and Mary Miller about the clean-up work. Also during the above conversa- tion, Bowlds spoke to her about a party which was to be held that Friday or Saturday night, and he indicated that Montgomery, Miller, and she might work at that party and that he would let them know. The following morning at 9 o'clock she, and the ones she had called, appeared and met Bowlds. He gave them applications and told them to go home and that they would be contacted. She did not engage Bowlds in any conversation and nothing further was said by Bowlds about working at the party. The next time she was in conversation with Bowlds was November 11 or 12. At that time, Bowlds telephoned and asked if she wanted to come back to work. She accepted and started to work for Respondent Builders on the following Wednesday or Thursday.5o Bowlds did not testify concerning the foregoing and I credit Merk's uncontroverted testimony as to her unsuc- cessful effort to obtain employment as a waitress when she applied for that position in July. While she was employed about 4 months later as a hostess-cashier, the burden of the General Counsel's case with respect to her appears to be that Respondent Builders delayed in employing her for discriminatory reasons. However, in the absence of evidence that anything untoward unionwise occurred between Merk on the one hand, or Bowlds or any representative of Respondent Builders, on the other hand; and in the absence of any evidence warranting an inference that Respondent Builders was motivated by antiunion reasons in not hiring Merk until November 12 or 13,51 I find that the evidence, as detailed above, does not sr 1 am cognizant, in this connection, that Bowlds apparently changed his mind about assigning clean-up work to Merk and others whom Merk had contacted in his behalf, and that Bowlds never did call Merk and other named individuals to work at a party in the Terre Haute restaurant that Friday or Saturday, although Bowlds had indicated to Merk that he might call them in that regard . However, these incidents, when considered in the total context and on the basis of the entire record, raise, at best, only a suspicion of wrongful conduct by Respondent Builders. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preponderate in favor of a finding that Respondent Builders discriminated against Rosella Merk with respect to her hire or tenure of employment 52 15. Pamela Pershing and Mary Ann Akers Neither Pamela Pershing nor Mary Ann Akers appeared as a witness in this case. The record does show that they were both listed on the Union's letter of application, and that the parties stipulated that Pershing was offered employment by Respondent Builders on or about Novem- ber 5, 1968.53 So far as appears Pershing did not accept the offer. In all these circumstances, including my finding hereto- fore that the fact that an individual's name appeared on the Union's letter of application was not a reliable index of current availability for employment, and also including the absence of any evidence that anything untoward unionwise occurred between Pershing or Akers on the one hand, and a representative of Respondent Builders on the other hand, I perceive no warrant for finding, on the basis of the evidence detailed above, that Respondent Builders discriminated against either Pershing or Akers with respect to hire or tenure of employment. The Alleged Mass Discrimination The General Counsel contends , in effect, that Respon- dent Builders' conduct affecting the hire and tenure of employment of each of the individuals discussed above was part of a pattern of mass discrimination against employees of Ally who were members of the Union and, consequently, the case of each alleged discriminatee must be viewed in the context of the events relating to the other discrimination alleged herein. One of the contentions advanced is that Respondent Builders "ignored its practice of retaining the predecessor's employees, a practice followed at the two unorganized restaurants (namely, at Vincennes and at Evansville); and reversed its obvious intention of pursuing the same course at the Terre Haute restaurant on the very day on which the union activity became apparent." I have found heretofore, in effect, that Bowlds had made overtures to Merk, and, through her, to others whom she could contact, about doing clean-up work on July 3, but failed to engage them for that special job when they appeared about 9 a.m. on July 3; and that Bowlds also told Merk during such overtures that he might employ her, and some named individuals who had worked for Ally for a party that Friday or Saturday but that nothing eventuated .54 However, these overtures , I find, fall short of being a declaration of intention by Bowids to hire these individuals as part of the regular staff of the Terre Haute restaurant . And while it is stipulated that, on July 3, 52 In view of the above, I need not reach, and do not pass upon, the contention in the brief of Respondents that "there can be no finding of discrimination or any inference drawn with respect to mass discrimination on the failure to hire a supervisor who had that status at the time that Ally Foods went out of business, and she was employed by Ally Foods as a supervisor at that time." 53 This was confirmed by letter dated December 3 from counsel for Respondent Builders to Pershing. 54 The record fails to disclose whether such a party did materialize. 55 The case of Piasecki Aircraft Corporation, 123 NLRB 348, relied upon Respondent Builders received by certified mail the Union's letter of application, which included, as applicants, Merk and the other individuals referred to above, there is no warrant in this record for inferring that Respondent Builders was aware of this union activity about 9 a.m. on July 3 in advance of Bowlds' apparent change of mind as to the clean-up work. Indeed, Bowlds testified that he received the Union's letter around II a.m. that day. Nor does it follow that an adverse inference based on disparate action is warranted against Respondent Builders for failing to employ all of Ally's employees when the Terre Haute restaurant became a going business again after the shutdown by Ally. This is so because Respondent Builders acquired going businesses when it purchased the two leases from Ally covering the restaurant and bar at Vincennes and at Evansville, respectively, whereas it was confronted with a clearly distinguishable situation in respect to the Terre Haute restaurant, in that it stepped in to restore a business which had been abandoned and shutdown by Ally and which was not then in an operable condition.55 Moreover, it follows, from the above, that to derive any conclusion adverse to Respondent Builders from the evidence adduced in support of this contention would require mounting inference upon inference, an approach which I deem lacking in probative force. The General Counsel also contends that proof of unlawful motivation as to the alleged discriminatees is to be found in the record evidence that: (1) between June 28 and October 31, the date of the issuance of the complaint herein, Respondent Builders hired over 100 different persons whereas only 7 of the 23 individuals listed on the Union's letter of application were offered work; 56 (2) as to a number of those hired, who had not theretofore been employed by Ally, their applications for employment, in evidence, show that they either had no work experience or had work experience in unrelated areas ; 57 and (3) a pattern of aversion to union employees is shown by Respondent Builders' employment action vis a vis McCombs, Charles Smith, and Wilma Cox. With respect to (1) above, the record does show that, between June 28 and October 31 Respondent Builders hired about 100 persons, and that, of those appearing on the Union's letter of application, Respondent Builders offered employment to, and hired, prior to October 31, the 7 individuals mentioned by the General Counsel. However, the significance of these figures is minimized when considered in the following context: Only 23 names were listed on the Union's letter; yet Respondent Builders was, as matters developed, to acquire a complement of close to 40 employees. In addition, I have heretofore found that the listing of an individual's name on the Union's letter of application was not a reliable index of his availability, at the time, for employment. And, among those listed, neither by the General Counsel in support of a contrary result, is distinguishable on its facts. 56 According to the General Counsel, these seven are Allen, Hogue, and Montgomery who were hired in July; Lyon and Crabb who were hired in August; and Wooley and Alsop who were hired in September . He contends further that Allen and Hogue were offered employment before Respondent Builders received the Union's letter of application and that Montgomery's employment may also have come before. 51 The General Counsel does not list the employees he has in mind by name and/or classification. RAMADA INN 581 Joe Feuquay, Jim Fenoglio, Madeline Tharp, Richard Carrithers, Helen Atkinson, Edgar Vermuelen, Pamela Pershing, nor Patricia Rollings, made a personal written or telephone application making known their availability for employment by Respondent Builders during the period in question, and it does not appear that it would have been futile for them to do so.58 Further, no finding of current availability is warranted on this record with respect to Norma Atterson. While Atterson did apply by telephone to Respondent Builders, she, in effect, nullified her applica- tion by not filing a written application, as requested by Bowlds during this telephone conversation, although it does not appear that it would have been futile for her to do so. In light of these findings as to the above 9 individuals, I am satisfied, and find further, that, at best, the record shows that 14 of the 23 listed individuals effectively established with Respondent Builders their availability for employment during the period between July 3 and October 31. Accordingly, since Respondent Builders was under no duty to hire "en masse" or "as a group," the entire work force of Ally's employees,59 and since Respondent Builders did offer employment to, and did hire, 7 of these 14 individuals,60 I am unable to find that Respondent Builders is vulnerable to a charge of mass discrimination on mere numbers.61 With respect to (2) above, the significance of this contention is also minimized by the fact that a majority of those hired by Respondent Builders who had not thereto- fore been employed by Ally and whose applications either showed no work experience or unrelated experience, were employees in such classifications as busboy, porter, and dishwasher, wherein neither special skills nor prior experience seems to be a prerequisite. And finally with respect to (3) above, I have heretofore found that nothing untoward unionwise occurred between McCombs, Smith, or Cox on the one hand, and Bowlds or other representatives of Respondent Builders on the other hand. It therefore follows that, contrary to the position of the General Counsel, no pattern of aversion to union employees by Respondent Builders derives from its employment action against these individuals.62 There is also testimony in the record by Eller attributing antiunion remarks to Bowlds on July 3, between I and 2 p.m., when he met Bowlds for the first time in the lobby of the Terre Haute installation. Eller testified, in substance, as follows: He introduced himself as the representative of the Union, pointed out that the Union had "a contract with the establishment," and asked whether Bowlds would like to go to the office and talk. Bowlds replied that "he wouldn't have no union employees in the place," that "you couldn't get any work out of [union employees]," and that "the Union itself had never done anything for employers." Whereupon, he rejoined with, "you're right on both counts, we are concerned with the people and not the company"; 58 In this connection, I credit Bowlds' testimony over Eller's denial that when Eller handed him the Union's letter of application he told Eller to have the individuals listed on the letter fill out an application. 59 See Tri State Maintenance Corp. v. N.LR. B., 409 F.2d 171 enfg. as modified 167 NLRB 933. 60 The seven who indicated their current availability during this period and were not hired were Emmett Martin , Bertha Green, Rosella Merk, Charles Smith, Wilma Cox, Helen Sims, and Eleanor McCombs. and the conversation terminated when Bowlds, in answer to his inquiry, told him to get in touch with Curtis V. Kimmel. Bowlds, in turn, admitted having a conversation with Eller at the time and place mentioned. However, his version was at variance with that of Eller. Bowlds testified, in substance, that when Eller introduced himself, Eller gave him a document and said that the employees listed thereon were the ones he had to put back to work.63 To this, he replied that the individuals should come in and fill out an application; and he also told Eller that he would take the document to Kimmel. Bowlds testified further that Eller did not respond and the conversation terminated. Bowlds specifically denied that he said to Eller that he would have no union employees in the place or that the unions themselves were not any good. In view of all the foregoing, including the fact that Eller did not impress me as reporting accurately what had occurred in this instance; the fact that I have not credited Eller in some other respects herein; the fact that Bowlds did thereafter hire individuals who were on the list in the Union's letter of application; and the further fact that Bowlds denied the attributions by Eller to him concerning the hiring of union employees and concerning whether the Union was good for employers, I find that Eller did not testify credibly in imputing the above antiunion remarks to Bowlds. Accordingly, I credit Bowlds' version of the July 3 conversation and find that he made no antiunion remarks to Eller at that time. In the light of all the foregoing, and the entire record, I am unable to infer or find that the evidence preponderates in favor of a finding that Respondent Builders engaged in mass discrimination in violation of Section 8(a)(3) of the Act. It follows, therefore, that my findings heretofore as to each alleged discriminatee, independently of the issue of mass discrimination, are dispositive of the 8(a)(3)'s alleged in the amended complaint. C. The Alleged 8(a)(5) Violation 1. The allegations of 8(a)(5) in the amended complaint The relevant part of the amended complaint alleges, in substance, that Respondent Builders has, since July 2, refused to bargain with the Union as to all regular full-time and regular part-time employees at the Terre Haute restaurant and bar, including office clerical employees, in that Respondent Builders (1) refused to bargain notwith- standing that the Union was, at the time, the duly designated exclusive bargaining representative of the employees in the above unit; (2) withdrew recognition of the Union as the exclusive representative in the above unit after such recognition had been extended by it previously on or about July 2; and (3) refused to assume the collective- bargaining agreement as to the above employees which was 61 Tennsco Corp., 141 NLRB 296, 304. 62 In so finding, I am cognizant of the fact, as contended by the General Counsel, that five waitresses were hired by Respondent Builders after August 1 and that one of them, namely Sheila Booker, had no prior experience as a waitress. 63 1 find that the document which was handed to him by Eller was the Union's letter of application which, as heretofore found , listed 23 names. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entered into between Ally and the Union on or about May 27, 1968, for a 2-year period ending May 27, 1970. 2. The appropriate unit The amended complaint alleges, and Respondents deny, that all regular full-time employees and regular part-time employees at the Terre Haute restaurant and bar, including office clerical employees, but excluding all professional employees, guards, and all 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. This unit conforms in all respects to the unit found appropriate by the Regional Director for Region 25 of the Board in Case 25-RC-3674. Accordingly, I find this unit to be appropriate herein. 3. The majority issue The record shows, and I find, that the Union was selected in an election conducted on or about February 21, 1968, under the supervision of the above-mentioned Regional Director, as the majority representative of the employees of Ally in the above unit and was thereafter certified by said Regional Director as the exclusive bargaining agent in said unit. 4. The refusal to bargain Respondents admit, in their answer, that they have refused to bargain with the Union as the exclusive bargaining agent of the employees in the appropriate unit, but deny that they extended recognition to the Union as such exclusive bargaining agent on or about July 2 and then withdrew recognition. As to the latter, the record evidence discloses the following: Eller, the business agent of the Union, testified that, on the advice of Bowlds, he telephoned Curtis V. Kimmel64 on July 3 and made a bargaining request upon him; that he then asked Kimmel "for a meeting to discuss our contract here and our proposition"; that Kimmel said that "they would recognize us and bargain with us, but he wouldn't accept the contract"; and that Kimmel undertook to call him back the following morning as to a date "to discuss the bargaining and recognition," but that he never received a telephone call from Kimmel. Kimmel testified, in respect to the above, that he had a telephone conversation with Eller either a day before or a few days after July 3; and that, during this conversation, Eller told him that Eller's local had a contract with Ally "for hiring personnel" and inquired as to "what we were going to do here." Whereupon, he answered that the place was shut down and there was no contract extant between him and Eller's union or between him and Ally, and that Ally's contract with Eller's union "would not be binding on him.because Ally had cancelled its lease." To this, Eller suggested that he call Ross P. Walker, his lawyer, and he, Kimmel, replied that he would. Kimmel denied that he extended recognition to the 64 As already found, Kimmel is vice president and a director of Respondent Builders and is a member of the law firm which counsels Respondent Builders. 65 The letter indicates that copies were sent to Eller and Kimmel. 66 Walker was not clear as to their sequence, saying only that he wrote Union through either Eller at the time or through Walker thereafter. The next development was a letter from Walker to Bowlds65 and a telephone call from Walker to Kimmel66 The letter bears the date of July 9 and calls attention to the Union's certification and the unit covered thereby, and states that the Union is requesting that "as successor employer . . . you meet and bargain concerning wages, hours and other working conditions to the above unit within the next fourteen days." As to the telephone conversation, Walker testified, as follows: he told Kimmel that he represented the Union in regard to the Terre Haute restaurant and bar. Kimmel acknowledged that he, Kimmel, represented the employer at this installation. He then asked when they could meet concerning the collective- bargaining agreement and Kimmel replied that he could not meet, that the Terre Haute restaurant and bar was not in operation, and that this was due to the fact that it was unable to obtain a liquor license because Traum's name was on the liquor license and he, Kimmel, was unable to locate Traum.67 He next asked Kimmel when they could meet as to a collective-bargaining agreement and Kimmel replied that "it could be no sooner than 2 weeks." Kimmel's version of this telephone conversation was that Walker wanted to know if "we were going to bargain with him"; and that he told Walker that they were not even in business at the time; that the place was closed down; that they could not open the place until such time as they obtained a liquor permit and he did not know when that would be; and that "if the employees that we had designated . . . his agency as a bargaining agent that we would bargain with them." Kimmel denied that he had made an appointment to meet with Walker some 2 weeks thereafter. The record shows that this was followed by an exchange of letters between Walker and Bowlds with respect to the matter. Thus, on October 2, Walker addressed a letter to Bowlds as manager of the Terre Haute restaurant and bar, again alluding to the Union's certification and the unit covered thereby, and asserting that the Union was renewing its previous request to bargain and asking for a meeting for that purpose within 5 days. The final sentence said, in relevant part, "a failure to meet will be considered a continuation of your refusal to bargain." (Emphasis sup- plied.) The answering letter from Bowlds, which was dated October 8, denied, in effect, that the Union was the bargaining representative of Respondent Builders' employ- ees at the Terre Haute restaurant and bar by virtue of the Union's certification when Ally operated this facility, and also refused to meet within 5 days, as requested by Walker. As a reason for this refusal, the letter added that Bowlds was informed by counsel that it would be a violation of the Act to bargain with the Union concerning Respondent Builders' employees at this facility if, in fact, the Union does not represent a majority of those employees; and further that, on the basis of information supplied by Eller, the Union was not such majority representative. I am satisfied, and find, for the reasons given hereinafter, the letter "on or about the day of the conversation." 67 Apparently, what was involved was a change in the license, which was owned by Respondent Builders, to show that Respondent Builders rather than Ally was operating the restaurant and bar in question. RAMADA INN 583 that recognition was never extended by Kimmel to the Union either through Eller or through Walker. Thus, although Ellis testified that during his telephone conversa- tion with Kimmel, Kimmel said that "they would recognize us and bargain with us," Ellis testified immediately thereafter, in contradiction of the above, that Kimmel indicated that he would call back the following morning as to a date "to discuss the bargaining and recognition." Clearly, if recognition was still to be discussed at a subsequent meeting, it follows that the Union was not accorded recognition during this telephone conversation. Accordingly, in view of the above, and in light of Kimmel's denial that he extended recognition to the Union through Eller, I do not credit Eller's version of the telephone conversation and find, instead, that the conversation on the telephone was as testified to by Kimmel, and that recognition was not extended by him to the Union during that conversation. And as to Walker's testimony, I find that, in the light of the entire record, it falls far short of establishing that Kimmel extended recognition to the Union during their telephone conversation. Thus, while there is an implication of such recognition in Walker's testimony that he asked Kimmel when they could meet as to a collective-bargaining agreement and Kimmel replied that "it could be no sooner than 2 weeks," his letter of October 2, directed to the attention of Bowids, negates such an implication. Thus, as indicated above, the subsequent letter from Walker to Bowlds requesting bargaining and a meeting for that purpose within 5 days said, "a failure to meet will be considered a continuation of your refusal to bargain. " (Emphasis supplied.) This quoted language, in the absence of any mention therein of withdrawal of recogni- tion previously granted, and in the absence of record evidence of an express withdrawal of recognition already granted by Kimmel or by Respondent Builders, implies, and I so find, that such recognition was never extended and that Respondent Builders had theretofore consistently refused to bargain. Accordingly, I find that Kimmel's version of what occurred during his telephone conversation with Walker is the more reliable, and I credit that version. 5. The successorship issue and conclusions as to the 8(a)(5) allegations It is evident from my findings above that Respondent Builders, like Ally, is operating a restaurant and bar business at the same location ; is serving the same type of food and beverages in essentially the same way; is opei ating under the same franchise , which was at all times the property of Respondent Builders; is utilizing the very fixtures and equipment which Respondent Builders itself provided to Ally under their lease arrangement; and is employing essentially the same classifications of employees. Notwithstanding the foregoing, Respondents contend that there has been a substantial change in the employing industry because ( 1) they had to purchase, without reimbursement by Ally, equipment, food, liquor, dishes, and silverware ; (2) they had to purchase cleaning services for the carpeting, and had to purchase services to clean its sewer in order to begin operation of the restaurant and bar; (3) they did not retain the same supervisory hierarchy; (4) they had no financial dealings with Ally either before or after June 28, 1968, with respect to Respondents' operation of the Terre Haute restaurant and bar; (5) they did not purchase or, in fact, receive a substantial portion of the physical assets, good will, name, or other trade assets of Ally; (6) they did not purchase or take over a going concern and did not assume any of the liabilities of a going concern; instead Ally had ceased operating the restaurant and bar on June 28 and had gone out of business, and there followed a distinct hiatus before Respondents took over, but without taking over a cohesive, identifiable group of employees who continued to function as a separate group. With respect to (1) and (2) above, while it is true that the food and liquor supply of Ally were at a low ebb, and that dishes, glassware, and silverware had to be replaced, the latter are items which would, in the normal course of operations, have to be supplemented or replaced from time to time, and the former are items which would normally require replenishing on a rather frequent basis. And as regards equipment, I have heretofore found that the capital equipment and fixtures of the Terre Haute restaurant and bar had always belonged to Respondent Builders. As to (3), while Respondent Builders did not retain Joe Traum as manager of the Terre Haute restaurant and bar, it replaced him with Bowlds who was then employed at its Vincennes installation, but had served as Ally's manager of the Terre Haute restaurant and bar during the summer of 1967.68 As to (4), it is true that Respondents had no financial dealings with Ally either before or after June 28, 1968, with respect to Respondents' operation of the restaurant and bar. However, after June 28, such dealings for the operation of the premises by Respondent Builders as a restaurant and bar were, in these peculiar circumstances, obviated by the lease between Respondent Builders and Ally as to these premises. Thus, as heretofore found, article XVIII of the lease provided, in part, that if the lessee abandoned or vacated the premises during the term of the lease, "the lessor may terminate the lease and enter upon [the leased] premises and again have, repossess and enjoy the same as if this lease had never been made," subject to the lessor's right of action for rent, damages and legal costs. As to (5), since the capital equipment and fixtures were already owned by Respondent Builders, the physical assets of Ally consisted, in the main, of dishes, glassware, silverware, tablecloths, napkins, and food and liquor supplies, and, so far as appears, so much of these items as were on hand were left behind by Ally when it closed down the restaurant and bar. And insofar as Ally's good will, name, or trade assets are concerned, much of this was inherent in (1) the franchise itself which Respondent Builders continued in effect by operating the restaurant and bar as a franchised Ramada Inn installation,69 and in (2) the liquor license, which was owned at all times by Respondent Builders. Finally, as to most of (6), while it is true that there was a hiatus of about 16 days between the time Ally shut down 68 Traum was at the time of the hearing herein and since July 20 or 25, 69 Ally did business as "Ramada Catering Services Inc " while employed by Respondent Builders at its restaurant and bar in Evansville Respondent Builders did business as "Ramada Inn." 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Terre Haute restaurant and bar and the time when Respondent Builders formally reopened it, some of the delay, it would appear, was engendered by Respondent Builders' election not to take over as a group the employees who had worked for Ally prior to the shutdown and to recruit a staff of employees on its own. In any event, since a period of interruption of 16 days in a business due to a transfer of ownership by sale or purchase to a new owner would, I find, not militate against a finding that the employing industry remained the same, I am unable to find that the interruption of the restaurant and bar business here caused by the shutdown by Ally and the takeover thereafter by Respondent Builders further supports the contention that there was a substantial change in the employing industry. Respondents' argument, in the last mentioned conten- tion, that they did not take over a cohesive group of employees from Ally who continued to function as a separate group, raises indirectly the question of whether the fact, as found below, that the Union's majority status among the employees at Ally did not continue once Respondent Builders began to operate the Terre Haute restaurant 70 militates against a finding here of a substantial continuity of the employment industry. In this connection, the General Counsel contends, in effect, in its brief, that the fact that the Union's majority status among the employees of Ally at the Terre Haute restaurant and bar did not continue once Respondent Builders began to operate this restaurant and bar is not controlling here if, as it also contends, Respondent Builder discriminatorily refused to hire its predecessor's employees.71 As I agree with the General Counsel as to his statement of the law, deriving from the Board's decisions in the Tallakson Ford and the Thomas Cadillac cases, and prior cases,72 and as I have heretofore found that Respondent Builders has not committed any violations of Section 8(a)(3) herein, I conclude, and find, that the fact that the Union's majority status did not continue once Respondent Builders began to operate the Terre Haute restaurant and bar precludes a finding of a substantial continuity of the employment industry. And, I find further that it follows therefrom (1) that Respondent Builders is not a successor to Ally and was under no obligation to bargain with the Union upon request as to the employees at the Terre Haute restaurant and bar, or to assume the collective-bargaining agreement between the Union and Ally; and (2) that the 8(a)(5) allegations of the amended complaint have not been sustained. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Builders Realty & Mortgage Co. Inc. d/b/a Ramada Inn, and Green Construction of Indiana, Inc., are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Neither Robert E. Green, nor Green Construction of Indiana, Inc. d/b/a Builders Realty & Mortgage Co. Inc., nor Robert E. Green d/b/a Builders Realty & Mortgage Co. Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Union is a labor organization within the meaning of Section 2(5) of the Act. 4. Respondents have neither jointly nor separately engaged in unfair labor practices within the meaning of Section 8(a)(5), (3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the amended complaint herein be dismissed. 70 Eller, the business agent of the Union, testified that those listed on the Union's letter of application plus Mary Ann Akers, whose name was added thereto by telegram, represented the entire membership of the Union at Ally on June 28, the day Ally closed down this operation; and that he has made no attempt to secure membership applications from any of the employees at this facility since that time. In view of the fact that Respondent Builders hired only 7 of the above 24 listed individuals as of October 31 , the date of the issuance of the complaint, and since the employee complement at Respondent Builders consisted of about 32 employees at the time of the formal opening of this facility by Respondent Builders and was thereafter higher, it follows, and I find , that, at no time material herein, did the Union represent a majority of the employees of Respondent Builders in the appropriate unit. 71 The General Counsel notes that the recent cases of Tallakson Fort, Inc., 171 NLRB No. 67, and Thomas Cadillac, Inc., 170 NLRB No. 92, support the proposition that successorship will be found , without a continuation of a majority of the predecessor's employees, only where the successor discriminatorily refused to hire such predecessor's employees. 72 E.g. Johnson Ready Mix Co., 142 NLRB 437; Maintenance, Incorporated, 148 NLRB 1299; Chemrock Corporation, 151 NLRB 1074.