Howard Johnson Co.

HOWARD JOHNSON 763 Howard Johnson Company and Bartenders & Culinary Workers Union, Local 340, Hotel and Restaurant Employees & Bartenders International Union, AFL-CIO Howard Johnson Company and Freight Checkers, Clerical Employees & Helpers Union Local 856, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 20-CA-6449 and 20-CA-6441 August 8, 1972 DECISION AND ORDER On March 10, 1972, Trial Examiner James T. Rasbury issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, the Charging Party filed cross- exceptions and a supporting brief as well as an answering brief, and the General Counsel filed cross- exceptions with a supporting brief and an answering brief. Subsequently, Respondent filed a Motion To Dismiss, and the Charging Party and the General Counsel each filed a brief in opposition thereto. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions to the extent they are consistent herewith, in view of the Supreme Court's recent decision in N.L.R.B. v. Burns Interna- tional Security Service, Inc.2 1. The Trial Examiner found, and we agree, that Respondent is a successor to Pacific Gulf Develop- ment Corporation in the operation of its Howard Johnson Motor Lodge in Redwood City, California. 2. The Trial Examiner also found that Respon- dent's refusal to recognize and/or bargain with Bartenders & Culinary Workers Union, Local 340, or with Teamsters Local 856 violated Section 8(a)(5) and (1) of the Act, and he recommended that Respondent be ordered to bargain with these Unions upon request.3 Citing the Board's decision in Burns, he further recommended that Respondent be ordered to honor the contracts which were in effect at the time of the takeover.4 However, in light of the Supreme Court's holding in Burns that a successor employer is not required, as a matter of law, to assume the contractual obligations of the predeces- sor, we shall delete this portion of the Remedy. The facts show that at or about the time of the November 1, 1970, takeover, Paul Hower, regional manager of Respondent, held group meetings with the motel employees in which he introduced the new motel manager, informed the employees of the change in management, stated that Respondent would operate as a nonunion house, reassured the employees of their jobs, and advised them of the wages and employee benefits which they would receive from Respondent, comparing them to those they had been receiving pursuant to the predecessor's union contracts.5 The Trial Examiner found that this unilateral change of the terms and conditions of employment violated Section 8(a)(5) and (1) of the Act. While we agree that Respondent has violated Section 8(a)(5) and (1), we do go on the grounds explicated below. In Burns, the Supreme Court said that a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor since until it has hired a full complement of employees it will not be evident whether the union representing the prececessor's employees is also the majority representative of the successor's employees. However, the Court also indicated that "there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms."6 The present is just a case. As noted, Respondent's regional manager told the predecessor's employees that their employ- ment would continue after the change in ownership. This retention of all of the employees in the units obligated Respondent to bargain with the Unions before it fixed initial wages and terms of employ- ment, and we find that Respondent, by failing to do so, violated Section 8(a)(5) and (1) of the Act. To remedy these unfair labor practices, we shall in our Order require Respondent to make whole the employees in the units for any loss of pay or other benefits they may have suffered as a result of Respondent's initial implementation of wages and 1 The record discloses that on March 8 , 1971, Respondent's general manager assembled front desk employees in the lobby of the motel and asked each whether he was a member of Local 856 . While this conduct was not specifically alleged in the complaint to be unlawful , the evidence was uncontradicted and fully litigated at the hearing. Inasmuch as no explanation was offered for the interrogation, and no assurances were given that reprisals would not be taken against the employees because of their responses, we find, in agreement with the General Counsel's exception, that Respondent's conduct violated Sec. 8(a)(l) of the Act. See Struksnes Construction Company, 165 NLRB 1062 . Accordingly, we shall order that Respondent cease and desist from such unlawful activity and shall so provide in our Order and notice. 2 406 U.S. 272. 3 The Trial Examiner correctly held that the legality of the initial recognition of the Unions by the predecessor, some 2 years prior to the takeover, could not be litigated, citing Barrington Plaza & Tragniew, Inc., 185 NLRB 962. We therefore find that it was erroneous for him to comment that Pacific Gulf's recognition and acceptance of the union contracts was illegal at the time it occurred , and we do not adopt that statement. 4 At the time of the takeover, the predecessor, through an employer association, had a contract with Local 856 covering front desk employees and a contract with Local 340 covering housekeepers and bellmen. 5 This conduct was not alleged to be violative of the Act. 6 Burns, supra. 198 NLRB No. 98 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms and conditions of employment on November 1, 1970, with interest at 6 percent per annum, and to continue such payments until such time as Respon- dent negotiates in good faith with the Unions to agreement or impasse.? ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Howard Johnson Company, Redwood City, Califor- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Freight Checkers, Clerical Employees & Helpers Union Local 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the appropriate unit found above, by failing to recognize the Union as the majority representative of such employees, and by implementing rates of pay, wages, hours, and other terms and conditions of employment without consulting with the Union. (b) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Bartenders & Culi- nary Workers Union, Local 340, Hotel and Restau- rant Employees & Bartenders International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the appropriate unit found above, by failing to recognize the Union as the majority representative of such employees, and by implement- ing rates of pay, wages, hours, and other terms and conditions of employment without consulting with the Union. (c) Interrogating employees in violation of the Act with respect to their union membership. (d) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain with each of the above- named labor organizations as the exclusive bargain- ing representative of all employees in the respective aforesaid appropriate bargaining units with respect to rates of pay, wages, hours, and other terms and conditions of employment. (b) Make whole the employees in the appropriate units for any loss of pay or other benefits they may have suffered as a result of Respondent's unilateral implementation of rates of pay, wages, hours, and other terms and conditions of employment on November 1, 1970, with interest at 6 percent per annum, and continue such payments until such time as Respondent negotiates in good faith with the Unions to agreement or to impasse. (c) Post at its Howard Johnson Motor Lodge in Redwood City, California, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days of the date of this Order, what steps the Respondent has taken to comply herewith. 7 See Harold W. Hinson, d/b/a Hen House Market No. 3, 175 NLRB 596, enfd. 428 F.2d 133 (C.A. 8, 1970); Overnite Transportation Co., 157 NLRB 1153, enfd. 372 F.2d 765 (C.A. 4), cert. denied 389 U.S. 838. 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain collectively with Freight Checkers, Clerical Em- ployees & Helpers Union Local 856, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bargaining representative of the em- ployees in the following appropriate unit: All employees employed by Howard John-- son Company as front desk employees, excluding guards and supervisors as defined in the Act. WE WILL NOT refuse to recognize and bargain collectively with Bartenders & Culinary Workers Union, Local 340, Hotel and Restaurant Employ- ees & Bartenders International Union, AFL-CIO, as the exclusive bargaining representative of the employees in the following appropriate unit: All employees employed by Howard John- son Company in the housekeeping depart- ment and as bellmen, excluding guards and supervisors as defined in the Act. WE WILL NOT interrogate employees in viola- HOWARD JOHNSON 765 tion of the Act with respect to their union membership. WE WILL make whole all persons employed in each of the respective appropriate units described above for any loss of pay or other benefits they may have suffered as a result of our implementa- tion of rates of pay, wages, hours, and other terms and conditions of employment on November 1, 1970. WE WILL bargain with Local 340 as the exclusive bargaining representative of all employ- ees employed by us in the housekeeping depart- ment and as bellmen, exclusive of guards and supervisors as defined in the Act. WE WILL bargain with Local 856 as the exclusive representative of all employees em- ployed by us as front desk employees, exclusive of all guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce the employees in the exercise of their right to self-organization, to form, join, or assist unions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such right may be affected by an agreement requiring union mem- bership as a condition of employment, as author- ized in Section 8(a)(3) of the Act. HOWARD JOHNSON COMPANY (Employer) November 27, 1970, and complaint was issued on March 30, 1971. An order consolidating cases was issued on April 30, 1971. The complaints allege that prior to November 1, 1970, the Pacific Gulf Development Corporation, herein called Pacific Gulf, operated a motor lodge in Redwood City, California, known as the Howard Johnson Motor Lodge; Pacific Gulf was a member of the San Mateo County • Restaurant-Hotel Operators Association, here- inafter called Association; the front desk employees of the motor lodge were represented by the Freight Checkers, Clerical Employees and Helpers Union, Local No. 856, hereinafter referred to as Local No. 856 ; said Local 856 had executed a labor contract with the Association; the employees in the housekeeping department and those employees employed as bellmen were represented by the Bartenders & Culinary Workers Union, Local 340, here- inafter referred to as Local 340; Local 340 had executed a labor contract with the Association; and said labor contracts were binding on Pacific Gulf as a member of the Association . The complaints further allege that since November 1, 1970, the Howard Johnson Company, hereinafter referred to as Respondent , is a successor to Pacific Gulf in the ownership and operation of the Howard Johnson Motor Lodge in Redwood City, California, and has refused to recognize or bargain with either Local 340 or Local 856 ; and that Respondent's conduct in refusing to recognize or bargain with either of the aforesaid Unions is a violation of Section 8(a)(5) and (1) of the National Labor Relations Act, herein called the Act. The Respondent has filed answers admitting certain jurisdictional facts but denying the commission of any unfair labor practices. Briefs have been filed and have been carefully consid- ered. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 13018 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Trial Examiner : This case was heard in San Francisco, California, on December 16, 17, 18, and 20, 1971. The charge in Case 20-CA-6441 was filed on November 20, 1970, and complaint was issued on April 30, 1971. The charge in Case 20-CA-6449 was filed on Respondent is a Maryland corporation engaged in operating motor lodges in several States of the United States and in granting licenses to licensees to operate motor lodges under the name of Howard Johnson Motor Lodge. During the past year, in the course and conduct of its business operations, Respondent purchased and re- ceived goods and supplies at its California facilities valued in excess of $50,000 from points located outside the State of California, and, during the past year, Respondent's gross revenues have been in excess of $500,000. The complaint alleges, and the Respondent's answer as amend- ed at the hearing admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and I so find. II. THE LABOR ORGANIZATION The complaint alleges, and the answer admits, that the Bartenders & Culinary Workers Union, Local 340, Hotel and Restaurant Employees & Bartenders International Union, AFL-CIO; and the Freight Checkers, Clerical Employees & Helpers Union, Local No. 856, International Brotherhood of Teamsters, Chauffeurs , Warehousemen 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act, and I so find. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Is Respondent a successor to Pacific Gulf? 2. Has Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and/or bargain with either of the two unions involved by refusing to give affect to the labor contracts that were effective at the time of takeover by the Respondent? B. The Background Facts While Respondent contends it is not a successor to Pacific Gulf, there was little or no evidence presented that provides a basis for such a conclusion. Pacific Gulf began operating a motel under the name Howard Johnson Motor Lodge located in Redwood City, California, on or about June 1, 1968, under the terms of a license agreement executed by Respondent, as licensor, and Pacific Gulf, as licensee (see Resp. Exhs. 7 and 8). Pacific Gulf is a Texas corporation and Respondent is a Maryland corporation. These are two separate and distinct corporations, each with its board of directors and officers. On June 15, 1968, James Grisebaum, president of Pacific Gulf, signed two authorizations empowering the Associa- tion to negotiate and enter into collective-bargaining agreements with Local 340 and with Local 856 (see G.C. Exhs. 15 and 16). Mr. Andrew Castle, executive secretary of the Association, testified that Pacific Gulf was a member of the Association. The application for member- ship signed by James Grisebaum appears in the record as Respondent's Exhibit 30. On June 15, 1968, there was a labor agreement in effect between Local 340 and the Association effective for the period from January 1, 1967, through December 31, 1969. The preamble of said agreement states that the agreement was entered into "on behalf of all the members of the San Mateo County Restaurant-Hotel Owners Association, and all members who become such during the term of this agreement" and Local 340. Local 340 is recognized as the bargaining agent "for all the employees . . . . coming under the jurisdiction of the Union." While this language appears vague and uncertain, the complaint alleges the unit to be all employees in the housekeeping department and the bellmen. There was no evidence presented to indicate the parties hereto were in any way confused or misled as to which job classifications or employees were represented, or allegedly represented, by Local 340. The agreement contained a typical union-shop security clause. The agreement also contained a clause binding the terms thereof on "successors, transferees, licensees, or assigns." The aforementioned labor agreement between Local 340 and the Association (G.C. Exh. 2) was followed by an 1 There was some evidence adduced by Respondent through cross- examination tending to show that neither of the bargaining units herein involved was ever certified by a Board election. Over objections made and sustained, offers of proof were tendered by Respondent purporting to show that neither Local 340 nor Local 856 represented a majority of the employees at the Howard Johnson Motor Lodge at the time Pacific Gulf agreement dated January 21, 1970, to be effective for the period from January 1, 1970, until December 31, 1973 (G.C. Exh. 3). The pertinent contract language noted above remained unchanged in the latter agreement. On June 15, 1968, the date Pacific Gulf provided the Association with an authorization to represent it in collective-bargaining, there was in effect a labor agreement between Local 856 and the Association to be effective for the period from January 14, 1968, to January 14, 1971 (G.C. Exh. 17). Again this contract is less than crystal clear as to which job classifications or employees are included in the bargaining unit, but the job titles and rates of pay set forth are those of typical clerical or accounting employees that might be working in an office. The complaint alleges the unit to be front desk employees and there was no evidence adduced to indicate any misunderstanding or confusion between the parties as to which employees or job classifications were to be included under this contract. The contract did not contain a "successor or assigns" clause but did contain a typical union-shop security clause. While there is nothing contained within the labor agreement (G.C. Exh. 17) that would appear to bind Pacific Gulf, it is abundantly clear from the testimony of Mr. Castle, executive secretary of the Association, that Pacific Gulf, at the time of executing the bargaining authorizations and joining the Association, adopted the contract and agreed to be bound thereby.' Sometime prior to November 1, 1970, business differences arose between Respondent and Pacific Gulf. These differences concerned not only the motor lodge at Redwood City, but another lodge, or proposed lodge, in San Jose, California (see Resp. Exhs. 10 through 21). I find it unnecessary to burden this Decision with detailed analyses of these documents. Suffice it to say that their legal effect was to settle the differences between Pacific Gulf and Respondent and resulted in Pacific Gulf relinquishing its license agreement for the control and operation of the Howard Johnson Motor Lodge in Redwood City and disposing of their interest in said lodge to the Respondent. As a part of this settlement, Respon- dent made it clear to the attorneys representing Pacific Gulf that Respondent would not become a member of the Association or accept and recognize either of the two labor agreements between the Association and Local 856 and the Association and Local 340. By letter dated October 30, 1970, from James Grisebaum to A. F. Castle, Pacific Gulf advised the Association that it no longer would operate the motor lodge, terminated its membership in said Association, and withdrew all authori- zations previously given said Association to bargain with Local 340 (see Resp. Exh. 5). As of November 1, 1970, Respondent took control of the lodge. Mr. Fuqua, who had been manager of the lodge from the day it opened (June 1, 1968), was replaced by Mr. Delmar Poteete, an employee of Respondent. At or about the time of the official takeover of the lodge by Respondent, employee meetings were held at which time Mr. Poteete was introduced as the joined the Association and adopted the then current contracts between the respective unions and the Association . I excluded this evidence on the basis of the Board's decision and language in Barrington Plaza and Tragniew, Inc., 185 NLRB 962. By virtue of the limitations proviso of Sec. 10(b) of the Act, the legality of the Unions' initial recognition was no longer subject to direct attack under Sec. 8 of the Act at the time of the alleged refusals to bargain. HOWARD JOHNSON 767 new manager ; Mr. Paul Hower, the regional manager for Respondent, was present and was introduced to employ- ees. The employees were advised of the change in management ; told that Respondent would operate as a nonunion house ; invited to continue their employment relationship; advised of Respondent's managerial policies and employment benefit plans ; and generally shown the comparison of the Company wages , holidays, and employ- ee benefits with those that had been applied under the Union contracts prior to November 1, 1970. Employee questions were invited and answered . There were no independent acts or conduct committed by Respondent alleged to be violative of Section 8(a)(1). After November 1, most of the employees remained ; Mrs. LeNeve, the housekeeping supervisor, remained ; the services rendered from the same facilities remained unchanged ; the name of the lodge was unchanged. Prior to November 1, 1970, the employees' paychecks had been issued by the Pacific Gulf; after November 1, 1970, the employees' paychecks were issued by Respondent. By letter dated November 5, 1970 , V. E. Burks, vice president of industrial relations for Respondent, advised Local 340 that Respondent had purchased the lodge from Pacific Gulf and assumed operations on November 1, 1970; that Respondent did not recognize the agreement between the Association and Local 340 ; and that Respon- dent was not and never had been a member of the Association. The letter asserted that the employees of the lodge had never been given an opportunity to express their free choice and that Local 340 was an assisted and supported union in violation of the Act (G.C. Exh. 4). By letter dated March 1 , 1971, John Collins , president- organizer of Local 340, advised V. E. Burks that Respon- dent had not made timely reports or payment to the Health and Welfare Fund or to the Pension Fund as required by the labor agreement (G.C. Exh. 5). In response Mr. Burks advised Collins by letter dated March 10, 1971, that Respondent's position remained unchanged from that expressed in his November 5, 1970, letter (G.C. Exh. 6). Mr. George Kane, who is employed by the Associated Medical Plans, Inc., and is the administrator of the San Mateo Bartenders & Culinary Workers Welfare and Pension Fund, testified without contradiction that he had received funds from Pacific Gulf prior to November 1, 1970, but had not received moneys for any funds from Respondent. By letter dated October 26, 1970, Rudy Tham, secretary of Local 856, gave the Association notice of its desire to terminate the existing contract and requested a meeting to commence negotiations on a new contract (G.C. Exh. 27a). By letter dated October 30, 1970, Pacific Gulf advised Local 856 that as of November 1, 1970, the operation of the motor lodge in Redwood City would be transferred to Respondent . The letter referred to the existing contract and advised that Respondent had been notified of the labor agreement prior to the transfer of the operation (G.C. Exh. 19). By letter dated November 6, 1970 , V. E. Burks advised Local 856 that Respondent had purchased the lodge and started operating it on November 1, 1970. The letter further stated that Respondent "is not . . . . and has never been a member" of the Association and does not recognize any agreement alleged to exist between the Association and Local 856. The letter further related that the employees of the lodge had never been given an opportunity to determine if a majority desired Local 856 as a bargaining representative and that the employees of Pacific Gulf had been unlawfully solicited, forced, and required to become members of Local 856 all in violation of the Act (G.C. Exh. 18). Mr. William Esmarch, business representative and organizer for Local 856, testified that after receipt of the aforementioned letter dated November 6, 1970 from V. E. Burks he telephoned Mr. Burks. Mr. Esmarch testified that he requested Mr. Burks to recognize and honor the existing contract. According to Mr. Esmarch, Mr. Burks, in essence, repeated the position taken in the November 6, 1970, letter. On February 8, 1971, Mr. Rudy Tham directed a letter to Respondent at Redwood City advising that negotiations for a new contract between Local 856 and the Association were in progress and enclosed a copy of the Union's new contract proposal. The letter noted that since Respondent had not given a "power of attorney" (meaning that Respondent was not a member of the Association), it requested a meeting with Respondent's labor relations representative to arrange a date for negotiations (G.C. Exh. 20). V. E. Burks responded on February 17, 1971, to Tham's letter, advising that Respondent had a good-faith doubt that Local 856 represented a majority of the employees and stated that he was filing an employer petition with the National Labor Relations Board requesting the majority issue to be decided by an election (G.C. Exh. 21). By letter dated March 4, 1971, Tham wrote directly to Burks and expressed again the willingness of Local 856 to bargain individually with the Respondent (G.C. Exh. 22). Upon these relatively uncomplicated and uncontroverted facts, what were Respondent's obligations toward Local 856 and Local 340? C. Respondent's Arguments 1. As to successorship Respondent argues that the takeover of the lodge was not entirely voluntary. This argument is rather shallow. No one compelled Respondent to take over the lodge. Termination of the license agreement with Pacific Gulf and the assumption of the operation of the lodge by Respon- dent undoubtedly appeared, at the time, to be the wisest solution to their business differences with Pacific Gulf. This is not uncommon in the everyday business world. Furthermore, this argument was unsuccessfully advanced in Interstate 65 Corporation, 186 NLRB No. 41. There, the respondent reacquired interest in a motel because the predecessor had defaulted in its debt obligations and the action of respondent was necessary to protect its invest- ment. The argument was made by the successor that its conduct in taking over the operation was not voluntary. Nevertheless the respondent was found by the Board to be a successor and in relevant part was sustained by the court of appeals, 453 F.2d 269 (C.A. 6). Respondent argues that it has never been and never intends to be a member of the Association. This argument has been considered and determined adversely for the Respondent by the Board in 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ranch-Way, Inc., 183 NLRB No. 116, enfd. 445 F.2d 625 (C.A. 10), Standard Plumbing & Heating Company, Inc., 185 NLRB 444, and Sacramento Automotive Association, 193 NLRB No. 117. Failure or refusal to become a member of the Association is not so unusual as to justify a finding of a different employing industry. On November 1, 1970, Respondent took over complete operation of the motel with no hiatus between the regime of Pacific Gulf and its own. The general manager was replaced but otherwise the supervision remained the same. There were seven employees in the front desk unit employed by the Pacific Gulf and they all continued after Respondent took over. There were 17 back-of-the-house employees and they all remained after Respondent took over.2 Apparently the employees were not asked to complete new job application forms, although the Respon- dent did have the employees complete an employee data form, a bonding application, a W-4 form, and an insurance enrollment card. The same services were continued by Respondent under the same name. As the Respondent argues, "the Board has not accorded controlling weight to any single factor, but has evaluated all the circumstances present in any given case in arriving at an ultimate conclusion." But having looked at all of the circumstances accompanying the transfer of ownership to determine if the employing industry has undergone a basic change, we must conclude that in this case it has not. Respondent's reliance on N.L.R.B. v. Alamo White Truck Service, Inc., 273 F.2d 238 (C.A. 5), is not valid. There the successor retained none of the predecessor's employees and the nature and purpose of the business operation was changed from that of a manufacturer and seller of trucks to one which was primarily a service operation. The finding of successorship involves a judgment that the employing industry has remained essentially the same despite the change in ownership. I find under all the circumstances in this case that the employing industry remained essentially unchanged and Respondent is a successor to Pacific Gulf. 2. Has Respondent violated Section 8(a)(5) and (1) of the Act? Respondent argues in its brief that the Burns case3 is distinguishable because in Burns the union had been certified as the collective-bargaining representative. Board certification is not the only method of establishing a bona fide collective-bargaining relationship. It is only one method provided by statute to which the parties may resort if they are not otherwise able to settle their differences. Respondent next argues in his brief that because both Local 340 and Local 856 were assisted and supported through the acts and conduct of Pacific Gulf at the time Pacific Gulf joined the Association and adopted the then existing labor contracts covering the employees herein involved, the employees were coerced in violation of the Act. The brief of Respondent cites Lunardi-Central 2 While some of these employees only remained a short time after November 1, 1970, there was no evidence presented to indicate any drastic change in either the size of the work force or any change in the type of work performed by these employees . I am satisfied that all the work force remained intact after Respondent took over and those employees who Distributing Co., Inc., 161 NLRB 1443, and Meyers Bros. of Missouri, Inc., 151 NLRB 889. While these cases stand for the argument advanced, they are inapposite. In the instant case the recognition and acceptance of the union contracts by Respondent's predecessor, albeit illegal at that point in time, occurred more than 2 years prior to the change in ownership of the lodge and is not now subject to attack by Respondent. In excluding much of Respondent's proffered testimony on this subject, I cited Barrington Plaza and Tragniew, supra, wherein this language is used by the Board: "As the Supreme Court has noted, the 10(b) proviso reflects, in part, the manifestation of a congression- al policy `to stabilize existing bargaining relationships' by preventing the resurrection of legally defunct unfair labor practices." [Citing Local Lodge No. 1424 (Bryan Mfg. Co. ) v. N.LR.B., 362 U.S. 411, 419, 428.] That statutory policy is subverted no less when a legally defunct unfair labor practice is used as a shield than when it is used as a sword, if the effect of its use is to disrupt an established bargaining relationship." Realistically such a determination may seem harsh in this case, but it is the law and, until changed, I am bound thereby. I find no merit to Respondent's argument that Local 340 and Local 856 were assisted. The evidence submitted by Respondent in connection with the election petition (see G.C. Exh. 21(a) and (b) and Resp. Exh. 33) is tainted, because the Board has held that the majority issue must not have been raised by the employer in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the union, or under circumstances indicating that in raising the majority issue the employer was merely seeking to gain some time in which to undermine the union.4 Next the Respondent argues that this case is different from Burns because there is no 8(d) allegation in the instant case. I have carefully read both the complaint and the Trial Examiner's decision in Burns and nowhere can I find reference to an 8(d) allegation. Section 8(d) is first mentioned in the Burns case by the Board in its explication of the 8(a)(5) violation. This is logical because it is in Section 8(d) that Congress defined in some detail the duty of the parties to bargain collectively. Again Respondent's argument is without merit. The Respondent's conduct in refusing to recognize and/or bargain with Local 340 or Local 856 at a time when the Association and these unions had negotiated effective labor contracts binding on the predecessor was violative of Section 8(a)(5) and (1) of the Act. As the Board said in Ranch-Way, supra, "It would seem that no special case can be pleaded for the greater right of a successor, as opposed to his predecessor, to raise a doubt of the Union's representative status and be immune from liability under the Act. The similarity of the applicable considerations dictate that the same policy should be applied to the old and the new employer alike. There seems to be no sound distinction arguing in favor of allowing the latter to introduce uncertainty into the plant's labor picture, by refusing to bargain during the term of the contract, while forbidding the former to do so." terminated did so voluntarily. 3 William J. Burns International Detective Agency, Inc., 182 NLRB 348; 441 F.2d 911 (C.A. 2); certiorari granted 404 U.S. 822 (1972). 4 Celanese Corporation of America, 95 NLRB 664. HOWARD JOHNSON I find, therefore, that the normal presumption of union majority status which attaches during the term of a contract executed by the predecessor applies equally to the successor and that the successor may not, during the life of the contract, assert a doubt as to its obligation to bargain with an incumbent union. Accordingly, I find that Respondent, by unilaterally changing the contract terms and conditions of employment and by refusing to recognize and bargain with Local 340 and/or Local 856, violated Section 8(a)(5) and (1) of the Act. There remains one aspect of this case to be briefly discussed because the status of the two union contracts involved is different. Pacific Gulf, the predecessor, effec- tively terminated its membership in the Association and withdrew its bargaining authorizations on October 30, 1970, a date prior to any bargaining negotiations between the Association and Local 856 for a new contract although at a time following notice by the union of its desire to terminate the existing agreement and open discussions for a new contract. The labor contract between Local 856 and the Association expired on January 14, 1971. Respondent has never joined the Association or granted bargaining authority to the multiemployer group. Thus, it is clear that the withdrawal from the multiemployer group by the predecessor was valid and timely as it effected the bargaining relationship with Local 856. Under these circumstances, had the ownership and control of the lodge remained unchanged Pacific Gulf would have been bound by the terms of the contract only until January 14, 1971. Following the expiration of the contract Pacific Gulf would have been obligated to bargain in good faith with Local 856 on behalf of the front desk employees. The successor's obligation should be the same and I shall so direct in the remedy and order. The contract between Local 340 and the Association was agreed to on January 21, 1970, to be effective from January 1, 1970, until December 31, 1973.. The withdrawal by the predecessor from the multiemployer bargaining unit was untimely and illegal insofar as altering the successor's obligations to honor the contract between Local 340 and the Association covering the housekeeping department and the bellmen. I shall, therefore, find Respondent obligated to honor the terms of the current agreement with Local 340 which agreement will expire on December 31, 1973. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Unions are labor organizations within the meaning of the Act. 2. The front desk employees (office clericals) at the Howard Johnson Motor Lodge in Redwood City, Califor- nia, excluding supervisors and guards as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The housekeeping department employees and the bellmen at Howard Johnson Motor Lodge in Redwood City, California, excluding supervisors and guards as defined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Freight Checkers, Clerical Employees and Helpers Union , Local No. 856, International Brotherhood 769 of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been and is the exclusive representative of all employees in the aforesaid appropriate unit of the front desk employees for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. The Bartenders & Culinary Workers Union, Local 340, Hotel and Restaurant Employees & Bartenders International Union, AFL-CIO, has been and is the exclusive representative of all employees in the aforesaid appropriate unit for the housekeeping department and the bellmen for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. On November 1, 1970, and at all times since, by unilaterally changing the wages, working condition, and other terms and conditions of employment of employees in each of the two appropriate bargaining units set forth above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By refusing on or about November 6, 1970, and at all times thereafter, to bargain collectively with the above- named labor organizations as the exclusive representative of all the employees in the heretofore described appropri- ate units, and by refusing to honor and abide by the existing collective-bargaining contracts, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. By refusing since on or about February 8, 1971, a date occurring shortly after the contract between Local 856 and the Association expired, and at all times thereafter, to bargain collectively with Local 856 as the exclusive representative of all the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 9. The aforesaid unfair labor practices are labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found the contract between Local 340 and the Association to be a valid contract binding on Respondent, I shall recommend that Respondent honor, adopt, and enforce the contract. Having found the contract between Local 856 and the Association to be binding on the Respondent until its expiration on January 14, 1971, I shall recommend that Respondent honor, adopt, and enforce that contract until its normal expiration date. Having found that Respondent unlawfully refused to recognize or bargain with Local 856 following the expiration of the aforesaid contract, I shall recommend that Respondent bargain with Local 856 and, if any understanding is reached, embody such understanding in a signed agree- ment. I shall also recommend that Respondent give retroactive effect to all the clauses of each of the two contracts heretofore mentioned and make employees 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole, with 6 percent interest , for any losses suffered by [Recommended Order omitted from publication.] reason of Respondent's refusal to adopt, honor, and enforce the agreements.