Motel 6, Inc.

MOTEL 6, INC. 473 Motel 6, Inc. and Culinary Workers Local 226, Hotel & Restaurant Employees & Bartenders Interna- tional Union, AFL-CIO. Cases 31-CA-3459 and 31-RC-2278 November 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 25, 1973, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record' and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions, as modified herein, of the Adminis- trative Law Judge and to adopt his recommended Order.2 The Administrative Law Judge, relying on the principles set forth in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, found that Respondent violated Section 8(a)(5) of the Act and concluded that a bargaining order was warranted on the facts of this case. We agree. Immediately after refusing the Union's bargaining request, Respondent committed a series of unfair labor practices clearly designed to undermine its employees' organizational efforts. Such conduct included: (a) unlawful interrogations of employees; (b) creation of the impression of surveillance of employee union activity; (c) the imposition against employees of unlawful restrictions on their union activity; (d) threats of discharge against employees i Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and positions of the parties. 2 Respondent has filed a motion with the Board to reopen the record for the purpose of receiving evidence, unspecified in the motion, bearing on the issue of whether its employees were coerced into signing authorization cards for the Union.. As Respondent has made no showing that such evidence could not have been produced at the hearing already held, the motion is hereby denied. In its exceptions, Respondent asserts, inter aha, that a prounion employee used coercive tactics to obtain authorization card signatures from fellow employees. Record evidence on this issue , however, pertained to only one card signer, employee Charlotte Wolffe, and Respondent stipulated that the Union had signed authorizations from 37 of the 67 unit employees. Under these circumstances, we need not, and do not, find it necessary to pass on the validity of employee Wolffe's card as it could not affect the Union's majority. 3 For the 2 weeks immediately prior to the election , Respondent kept for engaging in lawful union activity; (e) the discharge of a leading union adherent because of his union activity; and (f) threats to a substantial number of employees that economic reprisals would be taken against them if the Union was successful in the election .3 All, but the last, of the above-noted unfair labor practices were directed against only two employees. But they were the principal union adherents in Respondent's employ and the effect of actions taken against such employees-particularly the outright discharge of one of them-is pervasive in its effect as it simultaneously restrains (or eliminates)' the organi- zational activity of those already committed to the Union, while warning others that dire consequences may attach to them if they come to the Union's support. Further, the threats of economic reprisal made directly against the maids-who constituted approximately 28 of the 67 unit employees-can be reasonably expected to have also had a pervasive effect as it gave the clear message that the employees? job security would be endangered if they selected a union to represent them. By the unfair labor practices set forth above, and in the Administrative Law Judge's Decision, the Res- pondent demonstrated to employees that it was prepared to oppose the Union by unlawful means destructive of their job security and their right to engage in organizational activity. In our opinion, this created a highly coercive atmosphere which tradi- tional remedies -cannot dissipate to the extent necessary to insure a fair and truly representative rerun election. Accordingly, we conclude that, in order to protect the statutory rights of the employees, to effectuate the policies of the Act, and to remedy the violations of Section S(a)(1), (3), and (5) committed, it is essential that a bargaining order issue.4 ORDER Pursuant to Section 10(c) of the National Labor posted in its maids' room a notice which indicated that the number of maids employed was to be severely reduced and that the number of hours worked, by maids who were retained, was to be increased. The notice was removed when the Union lost the election and its provisions were never put into effect We agree with the Administrative Law Judge 's findings that this notice constituted a threat of economic reprisal violative of Sec. 8(a)(1) of the Act and that the unlawful effects thereof were not dissipated by Respondent's oral assurances to its employees . Moreover, we not that although Respondent excepts to those findings , it has not offered any explanation for the text and timing of the notice which is inconsistent with the Administrative Law Judge 's conclusions. 4 N.LR.B. v Gissel Packing Co., supra; Kemton Trucking Company, inc.. 205 NLRB No. 174. While Chairman Miller agrees that a bargaining order is appropriate herein, he would, for the reasons stated in his separate concurrence in United Packing Company of Iowa, Inc, 187 NLRB 878. predicate this remedy solely on the serious 8(a)(1) and (3) violations found herein. 207 NLRB No. 67 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Motel 6, Inc., Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based on an original charge filed November 20, 1972, by Culinary Workers Local 226, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, hereinafter referred to as the Union, as amended on December 22, 1972, January 2, February 20 and 22, and March 9, 1973, the complaint in Case 31-CA-3459 was issued on March 14, 1973. Said complaint alleges that Motel 6, Inc., hereinafter referred to as the Company or the Respondent, violated Section 8(a)(1), (3), and (5) of the Act. Respondent by its answer denies that it violated the Act in any of the respects set forth. By order issued March 16, 1973, Case 31-RC-2278 was consolidated with Case 31-CA-3459 for a hearing on certain of the Union's objections to the election conducted among Respondent's employees on December 19, 1972. Pursuant to notice a hearing was held in Las Vegas, Nevada, on April 17 and 18, 1973, before me duly designated as the Administrative Law Judge. Appearances were entered on behalf of all of the parties and briefs were received from them within the time designated therefor. Upon the entire record in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT I. BUSINESS OF THE COMPANY Motel 6, Inc., is a Delaware corporation with its principal office located in Santa Barbara, California. It is, and at all times material herein has been, engaged in the operation of public motels in various States of the United States including a motel located in Las Vegas, Nevada, which is the operation of the Company involved in this proceeding. The Company, in the course of its business operations, annually receives gross revenues in excess of $500,000 and annually performs services outside the States of California and Nevada valued in excess of $50,000. As is admitted by the Company, it is now, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by the Company, the Union is, and has I As noted by the Regional Director in his report on the objections to the election : "The challenged ballot is insufficient to affect the results of the been at all times material herein, a labor organization within ,the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Background Information The bargaining unit involved in this proceeding is as follows: All porters, including light maintenance men, laundry workers, maids and head maids and desk clerks employed by Respondent at its Las Vegas motel; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. As is admitted by the Company, the above-described bargaining unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. On October 21, 1972, the organizational efforts on behalf of the Union were instituted with respect to the above- mentioned bargaining unit. It is stipulated that during the period between October 23 and 31, 1972, there were 67 employees in the above-described bargaining unit and that 37 (a majority) of them had signed cards authorizing the Union to represent them. On November 7, 1972, the Union filed a petition for an election in the aforesaid Case 31-RC-2278 and, in accordance with an agreement for consent election executed by the parties, an election was conducted by the Board on December 19, 1972, in the above-described appropriate bargaining unit. The tally of ballots "showed that of approximately 63 eligible voters, 46 cast ballots, of which 16 were for the Petitioner, 29 were against and 1 was challenged."I B. The Issues Following are the issues in Case 3l-CA-3459: (a) Whether or not Melvin Ray is a supervisor of Respondent within the meaning of the Act. (b) Whether or not Respondent by the conduct of Melvin Ray and Robert Marsh, its manager and admitted supervisor, interfered with, restrained, and coerced employees within the meaning of Section 8(a)(1) of the Act. (c) Whether or not Respondent by posting a notice in the maids' room concerning their employment which notice remained posted approximately the 2 weeks prior to the election constituted a violation of Section 8(a)(1) of the Act. (d) Whether or not employee Ronald Cole was discriminatorily discharged in violation of Section 8(a)(3) and (1) of the Act on November 8, 1972. (e) Whether a bargaining order is warranted. C. Resolution of the Issues 1. Ray is a supervisor It is clear from the record, particularly the testimony of election." MOTEL 6, INC. 475 Marsh, that Ray is a supervisor within the meaning of the Act. Marsh adopted as his testimony the following excerpt from his pretrial statement which was read into the record: W. KESSEL: Melvin Ray is paid a monthly salary. Works five day [sic] a week. He earns $450.00 per month. He cannot actually hire or fire. I would not act solely on Ray's word as to hiring and firing. I would investigate the matter first before I made my decision. Ray sees that the grass is cut, that the pool is clean, and the driveway is clean. He does minor repair work. I did not hire Ray. He was sent to us from California. He was on a monthly basis at that time. He directs the work of the other maintenance men. Ray had authority to grant time off for personal business or illness. On or about August 14th or 15th, Ray asked me if Helena could be rehired. I rehired her. Ray asked me to rehire Wanda Taylor. She was rehired. Ray's wife works in the laundry on an hourly basis. I would consider Melvin Ray to be a supervisor over maintenance and laundry. I rely on him to keep me informed as to help and supplies he needs. - Ray is over the laundry room. He sends boys to pick up the laundry. This is heavy work. He directs the work of the boys who handle the laundry bags. Ray is over about three boys and about five girls in the laundry. He makes sure the girls have supplies and the equipment is working properly. He has authority to have maids or other girls work in the laundry. It is noted that, although Respondent in its answer denies that Ray is a supervisor, it did not offer any argument in support of said denial in its brief. 2. The organizational activity On October 21, Jon Wilk, a business representative of the, Union,, approached employees Cole and Helena Lagana and asked them if they were interested in union representation to which they responded in the affirmative. (Cole picked up soiled linen and distributed clean linen, while Lagana worked in the laundry room. Both worked under the supervision of Ray.)-On the evening of the same day Cole and Lagana met with Wilk and another union business representative at which time they were given union authorization cards to distribute among fellow employees. -Within the next 2 or 3 days Cole and Lagana solicited signed authorization cards and it appears that Cole obtained signed cards from some seven to nine employees. On October 23 or 24, Wilk called Marsh, identified himself, and requested a meeting with manage- ment to negotiate a contract. Marsh inquired whether or not Wilk had "gotten all his cards signed" and Wilk told him that he had. Marsh then told Wilk that he would have to contact his home office and to call back the next day. When Wilk called Marsh the following day, Marsh told him that he had contacted the home office, that "they refused to meet" with the union representatives, and "that 2 L. II, p 22 of the transcript is corrected as follows: "28th" is substituted for "21 th." It is clear from the context that the mistake in the they would wait until they had heard from the National Labor Relations Board." - 3. Conduct of Marsh on October 28 and November 5, 1972 Cole testified to a conversation that he had with Marsh on October 28. Cole's testimony as to the conversation, which is uncontradicted and is credited, ' is as follows: A. Yes; it happened in the afternoon while I was at work, around, I think it was-on October the 28th,2 was the date. I was doing my job; I was out collecting linen and he approached me in the hall-Bob Marsh did. Q. What did he say, if anything? A. He said-he asked me if I was representing the union and I told him I didn't know what he was talking about. Q. (Mr. Kessel) Please continue. A. And he told me that a couple of maids had brought cards that I had been passing out down to him and I said, you know, I asked him if he was accusing me of lying and he said, no, he wasn't doing that, but he told me he don't want me passing out any more union cards. And if I wanted to work a union house, I might as well go work somewhere else. Both Lagana and Cole testified to a conversation she had with Marsh later in the day of October 28, 1972. According to their uncontradicted, and credited testimony, Marsh asked Lagana in Cole's presence if she had gotten all of her cards passed out and then he turned to Cole and stated that he knew he had been passing out cards. On November 5, Wilk arranged with Cole to meet him during the latter's lunchbreak in Lagana's camper which she used for transportation and which was parked in the motel parking lot. While they were talking, Marsh entered the camper, stated to Wilk that he was not "playing by the rules" by conducting business in a camper on, motel property, and told Cole to go back to work. According to Cole's testimony, he was still on his lunchbreak. The above summarized testimony of the episode on November 5 is based on the credited testimony of the three witnesses to the incident. 4. Cole's termination Cole's employment was terminated about mid-day on November 8. General Counsel contends that he was discriminatorily discharged. Respondent contends that he voluntarily quit his employment. On November 7, according to Cole's uncontradicted and credited testimony, he had a quarrel with one of the maids, apparently over what he considered her dilatoriness in turning over to him the dirty linen from one of the rooms. The following day he was confronted by her husband (who was not an employee of the motel) and was accused by him of threatening his wife. It appears that there was very little, numeral was a typographical error. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if any, physical contact but that the verbal exchange was quite fiery. Cole went to the laundry room and told Ray's wife what had happened and she called Marsh. Following is Cole's testimony as to what then occurred: Then Bob Marsh came walking in and I showed him what the man had done to my shirt and how he had bruised up my neck a little bit and he said, "well, where is it ; who is it?" It was outside, so I took him outside where they were at and I said, I told Bob Marsh exactly what had happened and the people that were standing there told Bob that I was imagining the whole thing and told him that nothing like that had ever happened. I told Bob that they were lying and he said, "well, what can I say? There are three people here telling me this and I guess I will just have to believe them." So, I mean, there was nothing I could say. And he then told me, he said, "so, you go on home and can come back in a couple of weeks, cause we don't need you around here." And I knew-I said to him, "I am the only one can do my job. There won't be anybody else to take my place." He said, "Oh, it's slow-it's slowing down and we don't need you." And this was totally unexpected to me. I didn't have any money together or anything and I was thinking about my money and I needed the bread, so I just-I said to him, "well, what about my money?" And he said, right away, he said, "okay, if you are demanding your money that means you have terminat- ed yourself; that means you are quitting." I said, "No, wait a minute, I am not quitting; I am not terminating myself. I just want my money." And he said, "No, right here I have witnesses who are witnesses to the fact that you just said that you wanted to quite, [sic] that you terminated yourself. He said, "so, if you want your money, you come on down to the office and I will fill out your termination slip." Since I needed the money, I was willing to fill out the slip. Not because I quite, [sic] but I just needed the money. So, he filled out my termination slip; gave it to me; then while I was in his office he just started talking to me about how I shouldn't lie to my next employer. I told him I didn't know what he was talking about and he told me, he said, "you know, you shouldn't lie to your next employer, because he is going to come in to me and inquire to me about how you need money and I am your friend and I lent you money and then you turn around and stab me in the back." I said, "I don't know what you are talking about." And he goes, "well, the maids brought in the cards and said that you were the one representing the union and handing out the cards." I said, "I don't know what you are talking about." And that was it. He didn't want to talk any more and I left. Marsh's testimony as to what occurred is as follows: When I got to the laundry room on the east side-the south side of the laundry room, Mr. Cole, Mrs. Georgette Dunlap, Mrs. Muriel Shultz and Mrs. Shultz's husband was standing out there and Mrs. Ray. They told me there had been some trouble and I didn't see no trouble . The only thing that I talked to Ron and he was showing me his shirt, something about his shirt and I told him that I couldn't do anything about that and we talked a little bit. I asked Mr. Cole to-business had dropped a little bit, we had dropped approximately 20 percent in occupancy-that I would prefer, I request him to take a few days off to cool off and he demanded his pay immediately. He didn't want no part time work and I asked him to come down to the office and he said, "I don't want to talk to you." He pushed me aside. He said, "I am going to talk to your mouthpiece." He referred to Mr. Wright. He said-I don't understand what he was saying-he said, "would you explain to me what he meant?" JUDGE: I don't quite understand who is saying this? Who is saying this? THE WITNESS: Mr. Cole told Mr. Wright that he didn't understand what I was talking about and he wished for him to explain to him what had happened and he said if you demand you [sic] money now you are terminating yourself and there was no way we could give him his money if he comes down and fills out a slip for the money, which he did. He isgned [sic] it and I got his money for him. It is noted that with respect to the above-quoted testimony of Marsh that there is no explanation in the record as to who Mr. Wright is. It is further noted that according to the credited testimony of Marsh the pay period ran from November I to 15 and the payment for that period would have normally been made on November 20. The so-called termination slip which Cole signed recited as the reason for the personnel action that he was "laid off" for "lack of work" and further recited as an explanation: "Refused Part time Employment due to lack of Business demanded Pay in full." It is noted that the record fails to support the assertion in Marsh's testimony that there was a 20-percent drop in occupancy or the statement in the termination slip that there was a drop in business. On the contrary it appears that there was no change in the normal fluctuation in the rate of occupancy. While there is considerable variation between the testimony of Marsh and Cole with respect to the latter's termination, there is a direct contradiction with respect to the period of time which Marsh told Cole to "take off." Marsh stated that he told him to take a few days off whereas Cole testified that he told him to take a "couple of weeks." Although Marsh's testimony on this point is corroborated by the daughter of the man with whom he had had the quarrel, nevertheless Cole was the more convincing witness and all of his above-quoted testimony relating to his termination is credited. While Cole does not mention it in his testimony, Marsh testified that Cole refused to work "part time." This is inconsistent with Cole's credited testimony that he stated that he was not quitting and, therefore, is not credited. MOTEL 6, INC. 477 5. Ray's conduct on November 9 Lagana who had been off work on November 7 and 8 returned to work on November 9. On that day she had a conversation with Ray. Her credited testimony as to what Ray stated to her is as follows: A. That Mr. Cole was no longer with us due to union activities and that if I wanted to keep my job not to have anything to do with the union activities between 8 and 4 in the afternoon. It is noted that Ray in testifying with respect to the incident corroborated her testimony as to the ban on her talking about the Union to the employees until after work hours and failed to deny her testimony of his statement as to the reason for Cole's termination. 6. The notice posted in the maids' room For a period of approximately 2 weeks immediately prior to the election a notice remained posted in the maids' room which, among other things, indicated that the number of maids would be reduced and the hours of the remaining maids would be, increased. It further appears from the timing of the notice that the maids reasonably construed the notice as indicating that the changes would be effected because of the advent of the Union. Frank Sherer, area supervisor for the Respondent, testified that he talked to employees on three occasions between October 20 and December 15 to assure them that regardless of the outcome of the election no one would be fired. Lena Jones, a head maid, testified that she accompanied Sherer and verified his testimony. However, Jones further credibly testified as follows: A. Well, I am very well acquainted with all the maids there. They came to me and talked to me and I assured all of them that nobody would be fired and they were very well satisfied. They didn't talk too much about it. It is found that the talks by Sherer did not dissipate the effect of the aforesaid notice in view of the fact that the notice remained posted and that Jones apparently found it necessary to assure the maids that they would not be fired. Her testimony that "they were very well satisfied" with her assurances is not credited. It is noted that the notice was removed after the election and that the changes set forth therein were not put into effect. There is no explanation in the record why the changes were not put into effect which adds support to the conclusion that the notice was posted to discourage adherence to the Union and was not predicated on economic considerations. CONCLUDING FINDINGS In appraising the incidents set forth hereinabove, I have considered them in context with each other and the total record, since it appears that they are interrelated in their impact on employees and are relevant to determining the motive for Respondent's conduct in the termination of Cole. Also, I have taken into consideration that Cole and Lagana, particularly the former, were the leaders among the employees in the Union's organizational drive, that the Respondent was aware of that fact, and that, except for the above-mentioned notice posted in the maids' room, all of the above-outlined conduct of Respondent alleged to be unlawful was directed against Cole and Lagana. In addition, it is noted that the aforesaid conduct commenced shortly after the Union made its demand for recognition and bargaining. Based on the above considerations, it is found that, in his conversation with Cole on October 28, Marsh unlawfully interrogated him, unlawfully banned him from soliciting authorization cards, and unlawfully suggested that if he wanted to work for a union house he might as well work somewhere else. Each of these three acts constituted interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act.3 It is also found that later in the day on October 28 Respondent unlawfully interrogated Lagana by asking her if she had gotten all of her cards passed out. In addition, Respondent unlawfully created the impression of surveil- lance of protected activities by Marsh's above question and by his contemporaneous statement to Cole that he (Marsh) knew that Cole had been passing out cards. Thus, the above-described conduct constituted interference, re- straint, and coercion within the meaning of Section 8(a)(1) of the Act. With respect to the incident on November 5, when Marsh interrupted the conversation between Cole and Wilk in Lagana's camper, the General Counsel contends that by telling Cole to go back to work (although it was during his lunchbreak) Marsh violated Section 8(a)(1) of the Act. However, the sole thrust of Marsh's interference in the conversation was directed at Wilk for engaging in organizational activity on the Company's property, and, there being no showing of the need for it, it is concluded that Marsh's action was not in violation of Section 8(a)(1) of the Act. S. E. Nichols of Ohio, inc., 200 NLRB No. 161. However, this incident serves to buttress the finding that Respondent had knowledge of Cole's leadership in the activity on behalf of the Union. With respect to the termination of Cole's employment, it does not appear to be appropriate to conclude that Cole "voluntarily quit" as contended by Respondent. It is evident that Marsh bore considerable animosity toward Cole because of Cole's activity in soliciting authorization cards and his "lying" to him (Marsh) when asked about such activities. There does not appear to be any basis for finding a reasonable need for Marsh to tell Cole to take a couple of weeks off. Marsh advanced as the reason for his doing so that it would give Cole an opportunity to "cool off" and that business had dropped 20 percent. Cole's argument was with a man who was not an employee and the record fails to disclose a satisfactory explanation why Marsh deemed it necessary that Cole lose employment, even for, a few days, to cool off. While Marsh testified that he told Cole to take a few days off because business had 3 It is well established that interrogation of an employee as to his union of working hours. Further, it is a violation of Sec. 8(a)(1) of the Act to activity, without certain safeguards absent herein, is unlawful, as is a ban suggest to an employee that if he wants to work in a union house that he against employees engaging in the solicitation of authorization cards outside work somewhere else Ramar Dress Corp., 175 NLRB 320,327. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dropped approximately 20 percent, it is evident that this justification is not supported by the record. Rather, it appears that Marsh seized upon the situation as an opportunity to remove a strong proponent of the Union from the motel for a period of a couple of weeks, and also in reprisal for Cole's activity on behalf of the Union. It is further concluded from Cole's credited testimony that when he (Cole) insisted on being paid Marsh seized upon this request as a means of inducing him to sign a termination slip. At the most, it could be argued that by so signing Cole technically indicated that he was terminating his employment. However, it was apparent to Marsh that Cole was not voluntarily quitting but merely signing the slip in order to obtain the money, for Cole stated to him that he was not quitting. While Respondent might very well argue that Cole could have withdrawn his request for the money and not signed the slip, equally it can be argued that Respondent could have refused to give him his money in view of Cole's statement that he was not quitting. In effect, Respondent offered Cole the alternative of either accepting a 2-week suspension without getting his pay (for the period he worked) until the regular payday on November 20, or signing a termination notice and obtaining the pay due him immediately. It appears that the reasons for his termination, "refused part time employ- ment" and "lack of business," were not supported by the record and were pretexts supplied by Respondent to afford a nondiscriminatory basis for Cole's termination. Conse- quently, it is concluded that Cole's termination constituted an unlawful discharge within the meaning of Section 8(a)(3) of the Act .4 This conclusion is buttressed by the statement Ray made to Lagana on November 9 that Cole was discharged because of his union activity. It is concluded also that Ray's said statement to Lagana constituted a threat to discharge employees who engage in union activity in violation of Section 8(a)(1) of the Act. Furthermore, Ray violated Section 8(a)(1) of the Act by threatening Lagana with discharge if she engaged in union activity "between 8 and 4 in the afternoon." This constituted an unlawful prohibition of solicitation on behalf of the Union in violation of Section 8(a)(1) of the Act. It having been found that, in effect, the notice posted in the maids' room for the 2 weeks prior to the election constituted threat of economic reprisal in the event the Union was successful in organizational campaign, it follows that the posting of said notice was violative of Section 8(a)(1) of the Act. D. The Refusal To Bargain As stated hereinabove, the Respondent was requested to bargain with the Union on or about October 23 or 24 and, as found hereinabove, Respondent thereafter engaged in a number of violations of the Act including the unlawful discharge of Cole. Furthermore, it is found that a substantial portion of the work force were maids and that they were threatened that their number would be reduced and their hours lengthened in the event the Union should be successful in its organizational efforts. In the circum- stances, it appears that the majority which the Union enjoyed in the period between October 23 and 31 was dissipated by the unfair labor practices of the Respondent. Based on the principles set forth in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), and Tower Enterprises, Inc., d/b/a Tower Records, 182 NLRB 382, 385, it appears appropriate to find that Respondent violated Section 8(a)(5) and (1) of the Act and that a bargaining order is warranted. IV. THE OBJECTIONS TO THE ELECTION The three incidents which fall within the period of November 7 (when the petition was filed) to the date of the election (December 19, 1972) which apply to the objections to the election are the discriminatory discharge of Cole on November 8, the unfair labor practices committed by Ray on November 9, and the unlawful posting of the notice in the maids' room during the 2 weeks preceding the election. It appears that these incidents support a finding that the Petitioner has filed meritorious objections to the election. In view of the above finding that a bargaining order is warranted, it will be provided in the recommended Order that the election in Case 31-RC-2278 be set aside and the petition therein be withdrawn. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. As stated hereinabove, an order is warranted herein requiring Respondent to bargain with the Union as the exclusive representative of the appropriate bargaining unit described hereinabove. Therefore, it will be recommended that Respondent bargain with said Union with respect to the aforesaid bargaining unit upon the Union's request. It havingbeen found that Ronald Cole was discriminator- ily discharged, it will be recommended that Respondent be ordered to offer him immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. It will be further recommended that Respondent be ordered to reimburse him for any loss of pay he may have suffered as a result of his discriminatory discharge in the manner set forth in F. + Although no case has been found with sufficiently similar facts to somewhat analogous situation in Ross Porta-Plant, Inc., 166 NLRB 494, afford a precedent for this conclusion, a similar conclusion is reached in a 516. MOTEL 6, INC. W. Woolworth Company, 90 NLRB 289, 291-293, together with 6-percent interest thereon in accordance with Isis Plumbing & Heating Co., 13S NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by unlawful interrogation, by unlawfully banning employees' solicitation of authorization cards during nonworking time, by unlawfully suggesting to an employee that he work elsewhere if he wants to work for a union house, by unlawfully creating the impression of surveillance of employees' protected activity, by threatening economic reprisal for union activity, and by threatening economic reprisals should the Union be successful in its organiza- tional efforts. 4. Respondent violated Section 8(a)(3) and (1) of the Act by the termination of Ronald Cole. 5. Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union upon its request as the exclusive representative of the following appropriate bargaining unit: All porters, including light maintenance men, laundry workers, maids and head maids and desk clerks employed by Respondent at its Las Vegas motel; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. Upon the foregoing findings of fact, conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Motel 6, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees with respect to their union activities. (b) Banning the solicitation of union authorization cards during nonworking time. (c) Suggesting to employees that they work elsewhere if they want to work for a union house. (d) Unlawfully creating the impression of surveillance of employees' protected activities. (e) Threatening employees with economic reprisals for union activity. (f) Threatening employees with economic reprisals should Culinary Workers Local 226, Hotel & Restaurant Employees & Bartenders International, AFL-CIO, or any other labor organization, be successful in its organizational efforts. (g) Discouraging membership in the aforesaid Union, or any other labor organization, by discriminating against its 479 employees in regard to hire or tenure of employment or any other term or condition of employment. (h) Refusing to bargain with the aforesaid Union upon its request as the exclusive representative of the following appropriate bargaining unit: All porters, including light maintenance men, laundry workers, maids and head maids and desk clerks employed by Respondent at its Las Vegas motel; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Ronald Cole immediate and full reinstate- ment to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Cole whole for any loss of pay suffered by him by reason of his discriminatory discharge in the manner set forth in the section hereinabove entitled "The Remedy." (c) Upon request, bargain collectively with the aforesaid Union as the exclusive representative of the employees in the above-described appropriate unit and embody in a signed agreement any understanding reached. (d) Upon request, make available to the Board or its agents, for examination and copying, all payroll and other records containing information concerning its backpay obligation under this recommended Order. (e) Post at its motel in Las Vegas, Nevada, copies of the attached notice marked "Appendix.116 Copies of said notice on forms to be furnished by the Regional Director for Region 31, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election in Case 31-RC-2278, conducted on December 19, 1972, be set aside and the petition therein be withdrawn. 5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 6 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " DECISIONS OF NATIONAL 480 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate employees with respect to their union activities. WE WILL NOT ban the solicitation of union authori- zation cards during nonworking time. WE WILL NOT suggest to employees that they work elsewhere if they want to work for a union house. WE WILL NOT unlawfully create the impression of surveillance of employees' protected activities. WE WILL NOT threaten employees with economic reprisals for union activity. WE WILL NOT threaten employees with economic reprisals should Culinary Workers Local 226, Hotel & Restaurant Employees & Bartenders International, AFL-CIO, or any other labor organization, be success- ful in its organizational efforts. WE WILL NOT discourage membership in the afore- said Union, or any other labor organization, by discriminating against our employees in regard to hire or tenure of employment or any other term or condition of employment. WE WILL NOT refuse to bargain with the aforesaid Union, upon its request, as the exclusive representative of the following appropriate bargaining unit: All porters, including light maintenance men, laundry workers, maids and head maids and desk clerks employed at our Las Vegas motel; exclud- ing all office clerical employees, professional LABOR RELATIONS BOARD employees, guards and supervisors as defined in the At. WE WILII. NOT in any other manner interfere with, restrain , ori coerce employees in the exercise of rights under Section 7 of the Act. WE WILL offer to Ronald Cole immediate and full reinstatement to his former job or, if his job no longer exists, to a, substantially equivalent position , without prejudice to his seniority or other rights and privileges. WE WILL make Cole whole for any loss of pay suffered by him by reason of his discriminatory discharge. WE WILL, upon request, bargain collectively with the aforesaid Union as the exclusive representative of the employees in the above-described appropriate unit and embody in a signed agreement any understanding reached. Dated By MOTEL 6, INC. (Employer) (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 ny other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7357.