Holiday Inn of Dayton

674 DECISIONS OF NATIONAL .LABOR' RELATIONS BOARD Dayton'Motels, Inc. d/b/a,Holiday` Inn of Dayton and Bartenders, Motel, Hotel and Restaurant Worker's, Local „,Union No. -222, Hotel , and Restaurant Employees and Bartenders International Union, AFLr-CIO. Case 9-CA-583-7, August 16, 1971 DECISION I AND,. ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKmS On April 12, 1971, Trial Examiner Melvin Pollack issued his Decision in' the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and' desist therefrom ands`take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in other unfair `labor practices as alleged in the complaint and recommend- ed„ that those allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a's'upporting 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 Decisio'n,_'the exceptions and brief, and the entire record in `the case, and hereby adopts the findings,' conclusion's, and recommendations of the Trial Examiner.2 ORDER Pursuant to ' Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed order of the trial Examiner and hereby orders that Respondent; Dayton ]Motels, Inc. d/b/a Holiday Inn of Dayton,' Dayton, Ohio, yits-officers, agents, succes- sors, and assigns,-;shall' take the, action `set forth in the, Trial Examiner'„s,recommended Order. 1 While we agree with the Trial Examiner, as stated in fn. 22 of his Decision, that any loss of majority is attributable to the Respondent's unfair labor practices, we also note that mere failure to participate in a strike does not evidence rejection of union representation. 2 Respondent excepts to certain of the Trial Examiner's credibility resolutions. It is the Board's established policy, however, not to overrule a Trial Examiner's credibility findings unless, as is not the case here, the preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall' Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (CA. 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: This case was heard on February 1 and 2, 1971, at Dayton,' Ohio, pursuant to 'a charge filed on September 14,1970,`and a complaint issued on 'October 30, 1970, and amended at the hearing. 'The complaint alleges that' Respondent interfered with,.-re- strained, and, coerced its employees,in violation of Section 8(a)(1) of the National Labor Relations Act, as amended; it discriminatorily discharged Barbara Fennell1 in violation of Section 8(a)(3) and (1), of the Act; and it refused to bargain with the Charging Union in violation of Section 8(a)(5) and (1) of the Act. Upon the entire record in the case, the briefs filed by the parties and my observation of the witnesses as they testified, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, an Ohio,, corporation,-operates a motel for transient -guests at 2301 Wagoner Ford Road,, Dayton, Ohio. Respondent's annual gross revenues exceed $500,000, and its 'annual interstate purchases exceed $50,000. I_ find that Respondent `is an employer engaged in commerce within the meaning of Section 2(2),(6), and (7) of theAct. H. THE _ LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. , , I 1- III. THE UNFAIR LABOR PRACTICES A. The ,Refusal To Bargain Respondent pursuant to - a . card check recognized the- Union on August 21, 1967, as the bargaining ,agent, for its "housekeeping and maintenance department employees." On December 27, 1967, _ Respondent`_and the ;;Union executed a 3'-year union-security contract , effective from September 1'6, 1967, tto ' an , including September` 16,:,1070. On and after June ' 16, -1970,2' the Union ^ requested Respondent to bargain on a, new contract . Respondent refused to .meet with the, Union for that purpose and, .on September , 16, challenged , the Union's majority status and requested the Union to consent to an election . The Union responded ,by calling a , strike. Respondent employed about 39 employees in its housekeepmg_ and-`maintenance departments when the strike began "on `September 17.3 Nineteen of these employees,picketed during the strike, which wasstillin progress when this'casewas heard.` 1 Fennell was married after her discharge and testified as Barbara Roswell. 2 All dates hereafter are in 1970 unless otherwise stated. 3I have included Barbara Fennell who I find below was discriminatorily discharged on September 6. 192 NLRB No. 112 HOLIDAY INN OF DAYTON 675 B. .Interference, Restraint, and.Coercion 4 - John Frier is the innkeeper (manager) of the motel, Bonnie Knight is^ the executive housekeeper, and Novella Collins and' Kathaleen Branham are the assistant housekeepers.5 In August, Collins asked Carmella,Snyder if she would picket if 'there-was a strike. Snyder said she had not made up- her mind. ,A few days before Snyder started her vacation on September 6, Mrs. Knight told her in the housekeeping room that Collins "had something-.for [her] on-the other side." Snyder walked over to the newer part of the motel where she-found -Collins and two, other maids. Collins handed her a, piece of paper and said, "I figured you'd want' to look at this or sign it." Collins looked at the paper-,'and signed it.6 -Snyder: returned from her vacation on September 14. Assistant' housekeeper Branham took her to see Collins and left. Collins asked-Snyder would she go out on the picket line if there was a strike. Snyder said she had not yet made up her mind. Collins said, "Well, you do know thatthe girls that go-on the picket line Will eventually be fired." Snyder asked Collins if anyone would get hurt if there was a picket line. Collins took a book out of her pocket and"read some quotes from it," includirg'a passage that "it was against the law for [pickets] to throw bottles or rocks or anything else . at persons 'going in or out.-of the place on strike." Collins remarked,-"Tknow you don't want. that brand new car of yours damaged in any way. So if you want to come in and work we will have one of our company cars to come and pick you up and take you home at night." She asked Snyder again if she "would go out -on a picket line" and Snyder answered that she still had not, made up her mind. Collins asked Snyder to let her know, "when you do make up your mind either way." Later' that day, ; Snyder was in the linen room putting stationery into '.envelopes when the phone rang. She answered- the phone and was told that someone "on the phone upfront" wanted to -talk to Mr. Frier. Snyder, who "had just seen him go by the door," walked out' and saw Frier talking to Collins. She told Frier he was wanted up front and returned -to, work. Frier and Collins stopped in front of-the linen room door. Collins walked into the room, took Snyder's hand, and said to Frier, "Now, do these, look like the hands of-a maid?" Frier shook his head and Collins continued, "Don't you think she would make a pretty hostess?" -Frier said, "Either that or a desk clerk." He asked Snyder, "Would you like to be a desk clerk?" Snyder-said, - "I'll have. to think it over." Frier said "okay" and left.? Snyder asked Collins what a desk clerk was paid. Collins said she, did not know. Bonnie Knight, the -executive 4 The incidents described in this section are based on the credited testimony of Carmella Snyder, Dorothy North, and Anna Blevins. The throe women gave detailed and internally consistent testimony concerning these incidents and they impressed me as more reliable witnesses than Manager Frier or executive housekeeper Knight. Assistant housekeepers Collins and Branham-did not testify. ' S Frier and 'Knight `are supervisors under the Act. Col inland Branham issue work directions to the maids but the record does not warrant a finding that their-directions are other than routine orrequire the exercise of independent judgment. Both women were represented by the Union under the 1967 contract. I find that Collins and Branham are, not supervisors within the meaning ,of Sec. 2(11) of the Act. I find below, however, that Respondent is responsible for their participation in the antiunion . activity housekeeper, entered the room and was told that Frier had offered Snyder a job as a desk clerk. Knight said "that's really great" and "see what it gets you when you're on the right side." Knight was asked if she know what the salary, of a desk clerk would- be. Knight did not know but later on Collins gave Snyder a slip of paper showing the salary for a desk clerk. On September 3, between 8 and - 8:30 a.m., Knight entered a room which Dorothy North was cleaning- and asked her if she "had heard things-that were going around the, motel." North said, "no" and asked if she "had done something, [wrong].'- Knight said,, :"No; just to wait a minute?' Knight called Novella Collins. Collins entered the room and told North that "some of the girls didn't wish to be represented by the Union," that ,they were,-"signing a paper" because "the Union wasn't-doing,anything-to help us ..: [and} just took our, dues." Assistant housekeeper., Kathaleen Branham came into the room and told Collins to show her "the paper with the listof names." Collins showed North the paper and said the employees who had signed it did not wish' to be represented- by the Union.. She asked North to sign the paper. North said -she "didn't know- whether [to ] sign it or not." Knight and Branham-left and North asked Collins how much the, employees who signed the paper would make "if there was no union.' Collins said $1.75, an hour after a year. North said-she "didn't thinkthat that -was'very much"" and that to maids represented by the Union at the Imperial House were getting $1.80 an, hour and "they were making less than we were to begin with." 8 The phone rang and Collins answered it. She told North to get in touch with her or Knight if she wanted to sign the paper and left the room. Knight returned about- 15 minutes later. She talked to North about how she, had let her return to work "at $1.60 same seniority," and said she knew North needed her job and to let her or Collins know if she decided to sign - the paper- The next. day, while North- was - checking her vacant rooms, Knight came up and told -North she wanted to talk to her. The two women walked intoa room. Knight said she had heard the company would not sign a contract with the Union, that she knew North had, to support herself, and' that North -should sign the paper because -otherwise she "might not have a job." She reminded North that she had permitted her to- return to work without, loss of seniority and at the same pay,after North had taken a few weeks off in March without telling Knight she was going to be off.- Knight asked North not to tell anyone she had been talking to her.9 Knight then-asked North if she was going to the union, meeting that night. North said she-did not know and. described in the text. 6 Resp. Exh. 6-A is dated September 3, reads "We the undersigned do not wish to be represented by a union," and is signed by 20'employees, including Snyder. Resp. Exh. 6-B is dated September 6, contains the same, statement, and is signed by seven employees. The name "Edith Bowling" appears on both exhibits. 7 Frier recalled the incident but denied that he'had promised Snyder a job. He said Snyder's husband called him, that afternoon and that he told Mr. Snyder she, would be considered for a job up frontif anything opened UP- 8 North at this time was making $1.60,an hour. 9 North said Knight made the same request in their' conversation on September 3 because "she could get in trouble." 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Knight,remarked that "she didn't see any use in going if [North] hadn't been going before; that it would just be like all the'other meetings." On September 9,- Collins entered -,a room which- Anna Blevins ' was cleaning. She -told Blevins, who had just returned from her vacation, that ' she would give her "a fair choice" between the Company and the Union, and that she could show her that 26 girls'had voted for the Company and against the Union.'°, About a week later, Knight asked Blevins if she was going to walk ,the picket line. -Blevins said she did not know,,and Knight said she was sorry for the employees who would picket because `she had heard they would be automatically fired." - - On September 16, the day before the strike began, Blevins was crying,while cleaning a room., Frier entered the room and asked ,her if she was "coming in tomorrow.:"Blevins said that she did not know what, to do because she was afraid,- that -there had been violence at a place where her husband had worked, and that she did not think her, husband would let her cross the picket line. IT give you -a room, a double room, free meals, .plus a baby- sitter." Blevins .said she would have to ask her husband and Frier said if her'husband would not let her stay at themotel, that he would pick her up at home. Blevins repeated that she would have to, ask, herhusband and Frier saidzthat if she came in he would make sure that she got the job she wanted in the laundry room.]] C. The Discharge of Feih'tell Barbara Fennell started to work for Respondent as a maid on February 17. Early in September, Collins asked Fennell to sign' a paper to get the union out of there." " She said it did not matter if Fennell signed "because everybody else had already signed it" but if she signed "it would' look better . . . in the eyes of ... the company.... " Fennell replied that "the rest of the girls could sign it if they wanted to but I just couldn't sign it" Collins told- Fennell not to mention their conversation to Juanita Waites, the union stewardess. On Saturday, September 5, just before quitting time, Fennell , and three ,-other maids were in the linen room. Fennell noticed-that Edith Bowling 12 was crying, She asked Bowling what was the matter . Bowling said she was upset because of "everybody - arguing" and she did not know "whether to sign that paper or not to [because ] if she signed it then'the girls were mad at her and if she didn't sign it then Bonnie and Novella and everybody would be mad at her." Fennell told'her she -ought to decide the way she felt about the Union "and if anybody got mad at her for it then piss 10 The record shows that '26 employees signed a statement against union representation. At a union meeting on September 4, eight of these employees signed a statement to the effect that they repudiated this action. ii According ' to"Blevin's pretrial statement, Frier said, "Well, think about it and I'llmake sure you get the job you want." Blevins testified that she had asked Knight" for the laundry" on September 15. 1s' Fennell, incorrectly identified this maid as Edith Bowman. 13 Frier' testified that he"overheard some loud voices' and "poked [his l head in" and heard Fennell say, "Piss on them. Goddammit, piss on them." Frier turned around and walked out According to Fennell, Barbara Whitehead told her after Frier left "Didn't you notice that I was poking you... I was trying to tell you that [Frierl was standing behind you." on them." Meanwhile, Frier- had entered the room and was standing behind Fennell.13 He said nothing to the maids and left. .The next day, Fennell, had cleaned, a room and, was "walking down the sidewalk." She was stopped by Frier, Knight, Collins, and union=,stewardess,Waites.14.,Waites said they wanted to talk to her. They went into a room-and Waites asked Fennell if it was true she had said "Piss" in the linen room the day before, Fennell saidit was,true and Waites asked her if she was "aware .that it was,=in our contract that you could be let go for saying that "15 Fennell said she was aware of it. Collins asked Fennellforher key, Fennell" gaveher the key, got her things, and went home.i8, On Tuesday, September 8, after talking to Mike Zinaich, the Union's secretary-treasurer, Fennell called, Knight and asked her. if: she still had a job. Knight referred her to, Frier who said he was undecided and had to talk to "some other people." Frier said,he would call her and let her know, "one, way or the other." Frier did not call her. Richard Branch, the Union's business agent, testified that he and Zinaich, upon hearing from Fennell, "immediately went out" and asked Frier ;why Fennell, had been discharged. Frier replied, "Well, I don't know why. 1 didn't discharge her. Her steward did; Zinaich said, "Our stewards ' have no authority to" hire or, fire." Frier said, "We'll ask Juanita.", The three men walked over to the laundry room where Waite, was working. Zinaich asked her, "Did you discharge Barbara Fennell? Waites said she had not and Zinaich turned to Frier and asked him, "Well, who did discharge her?" Frier said, "Well, I don't know. I'll have to check and find out who fired her." Zinaich said he would rather Frier put Fennell, back to work until Frier found out who fired her and why. Frier said, "You call me tomorrow and I'll give you my answer." Zinaich called Frier the next day. Frier said he wouldhavei to "present a grievance" on Fennell's discharge. Zinaich said there was no need .,for a written grievance because --"this- was a personal grievance and we made apersonal-contact with you on it." The next day, Zinaich and- Branch "went out-to check again" if Fennell was going to be put back to- work. Frier told them,that Fennell had been discharged "because of, the language that she had used" and that be,-would have to check "with some; higher authority to see if she was going to be reemployed. On December 1, Frier, offered Fennell of job as a maid "without loss of your company seniority." Fennell ,on December 7 accepted the offer of reinstatement but reserved her rights "before the National- Labor Relations Board," and her right to participate "in the lawful' strike, now in effect" against Respondent. 14 Frier testified that, in the presence of Collins and Knight, he-asked Waites if 'she knew the bad work that Fennell had been doing and Waites replied she was aware of it He next asked Waitea'if she heard what had happened in the laundry room. Waites said "yes" .and agreed with Frier that Fennell i should be discharged. The group then,wa*ed over to a room Fennell was cleaning. - 15 Under',the contract, an employee may be discharged for various reasons, including "offensive language or conduct"-to Respondent its customers, or other employees. 16 Frier and Knight testified that Waites told ^Tennell she was discharged and that Collins then asked Fennell for her key., HOLIDAY INN OF DAYTON 677 D. Analysis and Conclusions 1. Interference, restraint, and coercion a. Knight On the morning of September 3, in the presence of executive housekeeper Knight, who had summoned her, assistant housekeepers Collins and Branham solicited Dorothy North to' sign a statement dated September 3 against continued representation by the Union. North did not sign the statement. The next day Knight urged North to sign the statement, saying' that Respondent would not sign a contract with the Union and that North might lose her job if she faded to sign. Knight also asked North if she was going to a union meeting that night and encouraged her not to attend.'About' this time; Knight told Carmella Snyder that Collins "had something for [her ] on the other side." Snyder saw Collins, who gave her the statement to sign. Before the strike, Knight asked Anna Blevins if she was going to walk the picket line and said she was sorry for the pickets becauseshe had heard they would be discharged I find-that Knight violated Section 8(axl) of the Act by participating in. the solicitation of North and, Snyder to sign the antiunion statement; by threatening North- with discharge if she did not sign the statement; by interrogating her about, and encouraging her not to attend, a union meeting;, and by asking Blevins if she was going to picket, and by telling her that Respondent, would not sign, a contract with the union andmight discharge employees, whopicketed b. Collins and Branham Snyder said she would have to think it-over. Frier-said "okay" and left. Knight entered the room and upon being told that Frier had offered Snyder a job-as -a desk clerk expressed her delight and said, "See what it gets you when you're on the right side:' Knight was asked but did not know what the salary of a desk clerk would .be. Later on Collins gave Snyder a slip of paper showing the salary for a desk clerk. Collins asked Barbara Fennell to ,sign the antiunion statement before Fennell's discharge on September 6 and, on September 9, asked Blevins to sign the statement. Knight sent Snyder to Collins so that Collins could solicit her to sign the- antiunion statement :`- Knight similarly participated 'in' the solicitation of North by ' Collins and Branham to sign the antiunion statement :' Alter ' North refused to sign, Collins told her to getin touch with herself or Knight if she changed her mind Knight told North she risked discharge if she did not sign. Knight`told Blevins that pickets would be discharged and Collins: made a similar statement to Snyder. She encouraged Snyder t to- strike by offering her company transportation durinTa strike.kr She initiated a conversation which, as, I find ,below, led to an offer of a desk-clerk job by Frier if Snyder ivould.work, during the strike. I find from these facts thatthe antiunion conduct of Collins- .and Branham is attributable to Respondent and, accordingly, that Respondent violated Section 8(a)(1) of the At by Collins' and Branham's solicitation of North and Snyder, and by Collins' solicita- tion of Blevins and Fennell to sign the antiunion statement, and by Collins' asking Snyder ifshe was going to picket and telling her that pickets would be discharged78 c. Frier As stated ,above, Knight summoned Collins to a room being cleaned by North. Collins told North that some of the, girls- were signing a paper against the Union and assistant housekeeper Branham, who had come into the room, told Collins to show North "the paper with the list of names." After Knight and Branham left the room, North asked Collins howmuch the etiployeeawould get "if there was "no union." " Collins said $1.75 an hour after a year and North replied that was not very much. North did not sign the antiunion statement and Collins asked her to get in touch with her or Knight if she wanted to sign. About September 3 or 4, Collins obtained Carmella' Snyder's- signature to the antiunion statement when Knight sent Snyder' to- her -for' that purpose. On September 14, Collins asked Snyder if she would picket and- told her the pickets would be fired. Snyder asked Collins if anyone would get hurt if, there was a picket line. Collins answered in effect ,that it was against the law for pickets to engage in act of violence but that if Snyder was afraid of damage to her new car that a company car would pick her up and take her-home at night. She again-asked Snyder if she was going to picket and Snyder said she had not made up her mind. Later that day, in Manager Frier'S presence, Collins took Snyder's hand and asked Frier if he did not think she would make a pretty hostess.- Frier said either that or a desk clerk and asked Snyder if she would like to be a desk clerk. 17 Manager Frier made a similar offer to Blevins. u I find no violation in Collins' offer of company transportation if On September 14, Collins asked Snyder,, who had just returned from her vacation, whether she would picket if there was a strike. Snyder refused to commit herself despite Collins' statement that pickets would be fired and her offer of `a company car to take Snyder to and from work. Later that day, Frier, prompted by Collins' remark, that Snyder would make a pretty hostess, asked Snyder if she would like to be a desk clerk. Snyder'said She Would have to think it over and Frier said "okay " Collins and Snyder told Knight that Frier had offered Snyder a job as"a desk clerk. Knight commented "that's really great" and "see what it gets you when you're on the right side:" Later that day, Collins gave Snyder a slip of paper showing the salary of a deskclerk. I- find in these , circumstances that Frier promisedSnyder a desk clerk job if she would work during-the strike. _ , On September 16, the day before thetstrike, began, Frier told Blevins if she came in he would make sure she got the job she wanted in the laundry room. J find that Frier violated Section 8(aX1), of the Act by asking Blevins if she was going to picket and,bypromising Blevins and Snyder more desirable jobs if they would work during the strike. 2. The discharge of Fennell On September 3 or 4, Collins asked Fennell to sign the Snyder would work during the strike. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD antiunion statement., x •Fennell refused to do so., On September 5, -Fennell advised Edith i Bowling, who was upset and crying, that she ought to make up her own mind whether. or not to"" sign the antiunion= statement "and if anybody got mad` at' her for it then piss' on them." Frier overheard Fennell's remarks-,to Bowling but said nothing to the maids°and left. The next day, Frier, Knight, Collins, and the Union's stewardess, Juanita Waites, confronted Fen- nell. Waiter asked 'Fennell if it was true that she had said "piss" in "the'linen room the day.,before, and if she was aware that she could be fired under the union contract`for saying that. Fennell gave affirmative answers to- both questions and Collins asked Fennell', for her key. ' Fennell gave, Collins the key and left for home. Union Representa- tives Branch, and Zinaich talked ; to Frier several,times about Fennell's discharge. Frier first said that Waites and not he had; fired, Fennell. Zinaich said the Union's stewards had no power, to hire or, fire. The three men spoke to Waites, who said she had, not fired Fennell. Firer said he would find out who fired her. Two days later, after an interim telephone conversation, - Frier advised the union representatives that Fennell had been discharged "because' of-thelanguage that she had`used." Frier testified that he discharged Fennellfor cursing and poor work. Fennell credibly, testified that, she, was never warned about poor work, is and that nothing was said to her about " poor, work 'when,,she , was discharged. Frier overheard Fennell use` the words "piss on them" in a conversation witl'irEdith Bowling. As,Fennellused these words in the linen room and in the course of advising another maid to make up, her own mind about the signing of the antiunion statement, Frier had no reason to believe that Fennell was -deliberately creating a disturbance or using-abusive language to Bowling. Frier, in fact, said nothing to' Fennell' and-walked away. It does not appear that ,Respondent had had any `occasion to warn Fennell about course language,20 or that, Respondent ever, dis- charged anyone else for such language. Respondent contends` in its brief that, if Frier had, been motivated by antiunion considerations; he-would not have sought "counsel and .advice'' from stewardess Wakes and that he would not have acceded to the, objections- of the Union's- representatives and offeredl~ennell reinstatement. I, see , no, reason to speculate why Frier sought Waites' "advice,", before discharging, Fennell. As Fennell was not offered reinstatement until 2 months after the issuance' of the complaint, I see no merit in Respondent's contention that it, acceded to the Union's objections to Fennell's discharge. Urider'all the circumstances, I reject' Frier's explanation for the' discharge'and find that Respondent-discharged: Fennell as part of its campaign to discourage support of the Union, thereby violating Section 8(a)(3) and'(1) of the Act. is Frier testified that -Knight told him she had warned Fennell twice about poor work. Knight herself did not so testify. 20 Fennell testified that the maids frequently used four,-letter_words and that Knight used such words but not very often . Dorothy North testified that Collins and Branham, but not the other maids, used bad language all the time and that if Knight was around "she'd just laugh it off and go on." 3. The- refusal to bargain A prior contract, lawful on its face, raises a presumption that the contracting union was the majority representative at the time the contract was executed, during the life of the contract, and thereafter. Barrington Plaza and Tragniew, Inc., 185 NLRB No. 1132. An em'ployer',, however, may defend a `refusal to bargain on the terms °of a new cointr`,act if' it can"demonstrate by,objective considerations that it has some.,reasonable grounds for believzngthat the union has lost its, majority status." United States Gypsum Company, 157 NLRB 652, 656. Respondent contends that -no presumption, of majority status attaches to ifs 1967 contract with the Union because-, 'Respondent,-' in`recognizing the Union on the basis of .a card check, was unaware that the cards had been -solicited by- the executive housekeeper it then, employed, and because the contract itself contains neither a recognition clause nor a clause defining' he bargaining unit. The -Board, in an analogous case has held.that events time-barred by the limitations provision of Section 10(b) of the Act21 may not be used to overcome the presumption of majority status, raised' by-a contract valid: on.-its',face. Barrington Plaza and-Tragniew, Inc., No. 132. As the legality of the Union's initial recognition Wag -no -longer subject to direct : attack under, the Act at, the, time of Respondent's refusal to bargain with the.Union,I find that Respondent may not defend such refusal by an attack on its initial recognition'of the Union.,. Although the 1967 contract contained no recognition or unit clauses, the record shows and Respondent concedes that it recognized the Union before execution of the contract as the bargaining agent for its "housekeeping and maintenance department employees." The contract con- , tains'wage schedules and union-security provision's; applica- bte only to employees,- in these ' departments ,and `Respon- dent makes no claim, that the contract was ever applied to other employees. I therefore find that the 1967 'contract, despite the absence of expressrecbgnitionandunit`clauses, was- a valid collective-bargaining agreement` giving rise to 'a preumption of majority status. "Respondent further contends that any presumption of continuing' majority is rebutted by the facts of tl'ie case. Ray Geurdat, Respondent's general manager;', testified, that Frier's predecessor and executive ,housekeeper,Knight told him, before the Union on, June 16 requested, bargaining ,on a new contract, that the, employees in the bargaining unit did' not-want to be represented by the Union, and that Frier advised him in September that he hadreceived a `petition" from the ,employees who did not want,the Union:. Frier, testified that it was "a known-fact that the majority didn't want the Union" and that he was told. after he became, the innkeeper that everybody„was "at each other's throat and very unhappy." He further testified at about 1-1/2 or 2 weeks before the, strike, employees that McMillan, Knight was asked if she occasionally `told a dirty joke "around with the girls," and conceded= "I might have said something thatdidn't-sound very, good,-- 21 Sec. 10(b) provides in pertinent part that "no complaint shall issue based upon any unfair labor practice occurring more than.sii months `prior to the .fi ling of the charge with the Board."' HOLIDAY INN OF DAYTON, Dailey, Branham, and Collins gave him the "petition" and that he so advised Geurdat. ` Respondent cites no episode indicating -union disaffection among the - employees -except for the signing of the antiunion statement. As shown above, Respondent was substantially involved in the solicitation of employees to sign this -statement: Respondent therefore cannot rely on the antiunion statement to sustain its assertion that it had valid grounds for doubting the Union's majority status. Daisy's Original's, Inc., of Miami, 187 NLRB, No. 15. I find, accordingly, that Respondent .had no reasonable grounds for doubting the Union's continuing majority status. I have found that - the Union at all- relevant times represented a majority of the employees in the housekeep- ing . and - maintenance departments . In view of the bargaining history, and the lack of any evidence warranting a,, contrary finding, I , find further that these employees constitute a- unit- appropriate for purposes of ' collective bargaining. I conclude, accordingly, that Respondent on or about June ,I6, 1970, and, thereafter, has refused to bargain with the Union:in violation of Section 8(a)(5) and (1) of the Act.22 CONCLUSIONS OF LAW 1. The Respondent , is an , employer engaged in com- merce within the meaning of tile-,Act. - 2. The Union - is a - labor , organization within the meaning of Section 2(5) of the Act. - 3. By interfering with, restraining, and coercing em- ployees,in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices in violation,of Section 8(aXl) of the Act. 4. By discharging,Barbara Fennell Roswell on Septem- ber .6,, 1970, Respondent has discouraged union member- ship by -discriminating in regard to tenure of employment, thereby. engaging in unfair -labor practices in violation of Sec on,8(ax3) and (1) of. theAct. - 5.t by refusing to `bargain"' with the Union on or about June 16,, and thereafter,, Respondent has violated Section 8(ax5) and (I),of the Act.,,. - 6. The strike which began on September 17, 1970, was an unfair labor practice strike. 7. The aforesaid unfair labor practices affect commerce within the meaning of.Section 2(6) and (7) of the Act. The Remedy Having found that Respondent has engaged in unfair labor practices it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Barbara Fennell Roswell on September 6, 1970, in violation of Section 8(ax3) and (1) of the Act, the Recommended Order ,will provide that Respondent make her whole for loss of earnings from -the time of the discharge This conclusion is not affected because a majority of the employees may not have joined the strike, as`any loss of majority is properly ascribed to- Respondent's unfair labor practices. as In the event no exceptionsare filed as, provided bySec. 102A6 of the Rules and Regulations of the National Labor Relations Board, the 679 until December 1, 1970, when Respondent offered her reinstatement. Backpay shall be computed in accord, with F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716. As the strike, which began on September 17, 1970, is attributable to Respondent's unfair labor practices, it will be recommended that Respondent reinstate all unfair labor practice strikers, including ;Barbara Fennell Roswell,-upon their unconditional,,application. - - Because of-, he character of the unfair labor practices herein found, -the Recommended Order, will provide that Respondent cease and desist from the specific unfair labor practices found, and that it cease and-desist-from in any other manner interfering- with, restrannilig and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. ' - Upon the foregoing findings"of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 23 ORDER Respondent, Dayton Motels, Inc. d/b/a Holiday Inn of Dayton, its officers, agents, successors, and assigns, shall: 1. Cease and desist from:- (a) Interfering with, restraining, or coercing employees in the exercise of their right to self-organization, by soliciting employees to sign antiunion statements, by-,threats of discharge or other reprisals, by' promises of economic benefits, and by, coercively interrogating employees as'to union activities-or sentiments. (b) Discharging- or - otherwise discriminating -against employees in regard to hire or tenure of employment, or any term or condition of -`employment, in order to discourage membership in any labor organization. (c) Refusing to bargain with the Union. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act 2. Take the following affirmative' action which it is found will effectuate the policies of the Act: (a) Make Barbara Fennell Roswell whole-for any loss of pay suffered by reason of the discrimination against her, in the manner described in the''Remedy section of the Trial Examiner's Decision. (b) Preserve and, upon request, make available to the Board or' its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Reinstate the unfair labor practice, strikers, including Barbara Fennell Roswell, upon their unconditional -appli- cations, to their former jobs or, if such jobs are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges of findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and ,Order, and allobjections thereto shall be deemed waived for all purposes. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment, discharging, if necessary, any replacements hired during the strike. (d) Upon 'request, bargain collectively with the Union as the exclusive bargaining representative of all employees in the unit found appropriate herein with respect to wages, hours, rates of pay, and all other terms- and conditions of employment and, if understanding is reached , embody the terms of such understanding in a written agreement. (e) Post at its motel at 2301 ' Wagoner Ford Road, Dayton, Ohio, copies of the attached -notice , marked "Appendix." '2 Copies,of. said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's, authorized representative, -shall be,posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in, conspicuous places, including all places where notices to employees are customarily posted. Reasonable ,steps shall be taken by Respondent to -ensure , that said notices are not altered, defaced, or covered by. any other material. (€) Mail a copy of the attached notice to each of the unfair labor practice strikers to hi0or her last known address. (g) Notify the Regional ector for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 25 IT `'IS' FURTHER ORDERED that the allegations of the complaint not specifically found herein to constitute violations of the Act be dismissed. 24 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals,,the word=d he notice reading "Posted by Oder of the National-Labor Relations " shall be changed to read `Posted Puisuant to a Judgment of the United States Courts of Appeals Enforcing an Order of the National Labor Relations Board." 2e1nthe event , that this recommended, Order is adopted by the Board, after ,exceptions have been filed, this provision shalt be modified to read: "Nofty the Regional Director for Region 9, in writing; within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 'WE WILL NOT solicit our employees to sign antiunion statements,"threaten' our' employees with discharge ' or other economic reprisals because 'of their , union activities, 'promise them "better jobs to discourage support of any labor organization, or, coercively interrogate ` them' as to 'their union activities 'or sentiments. WE WILL `NOT discharge,or otherwise discriminate against our employees in regard to hire or tenure' of employment, or any term or condition of employment, 'in order to discourage membership in any labor organization. WE' wILL make Barbara Fennell Roswell whole for any loss of pay-suffered by reason of thediscrimination against her. WE , WILL .-NOT refuse, ^upon request, to bargain collectivelywith'the Union as the exclusive, representative of our employees in the unit' found appropriate herein concerning wages, •hours,, rates of pay, and other terms and conditions of employment. WE wm.L, NOT jn any other.manner interfere with, restrain, or coerce our employees in the exercise of their right to , self-organization; to form, join, or assist Bartenders, Motel, Hotel and Restaurant Workers, Local UnionNo. 222, Hotel and Restaurant-Employees and Bartenders International Union, AFL-CIO, ;or any other labor organization, to bargain ', collectively through representatives of their own choosing, or to engage in other concerted activities for. the purpose of collective bargaining or other mutual aid or-protection, or to refrain from any or all such activities. WE wlzl: reinstate the unfair labor practice strikers, including Barbara Fennell Roswell, upon their uncondi- tional applications, to their former jobs or,,if such jobs are no longer available, to substantially equivalent positions, without prejudice to their seniority or =other rights and privileges' of employment; discharging,` 'if necessary, anyreplacementshired during the strike. WE WILL,=upon 'request',.bargain collectively with-the Union as the exclusive bargaining agent of all employees in the appropriate unit with respect to wages, hours, rates of pay, and all other terms and conditions of employment and, if understanding is reached, embody the terms of such understanding in a written agreement. The appropriate bargaining unit is: All housekeeping -and- maintenance department employees at 2301 Wagoner Ford Road, Dayton, Ohio excluding" all - office clerical employees, guards and supervisors, as defined in the Act, and all other employees. WE WILL notify the unfair labor practice, strikers, -including Barbara Fennell Roswell, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon' application in'^accordance with the Selective - Service ,Act and , the ,' Universal Military Training and Service Act,' as amended, after discharge from the Armed Forces. - WE wit: mail a copy of this 'notice to each of the unfair labor practice strikers addressed to his or her, last known address. Dated By, DAYTON MOTBLs,, INC. D/B/A HOLIDAY ' 114N OF DAYTON (Employer) (Representative) (libe) This is anofficial notice and must not be defaced by anyone. This notice must remain, posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material: - Any questions concerning this notice or compliance with its provisions may be,,,directed toih'e Board'sOffice, Room 2407 Federal OffceBuilding, 550 4lainrStreet,,Cincinnati, Ohio 45202, Telephone°513-684-3686.="