Holiday Inn of Chicago-South

HOLIDAY INN OF CHICAGO-SOUTH Kay Corporation d/b/a Holiday Inn of Chicago-South, Harvey and Local 593, Hotel-Motel Service Work- ers, Drug Store, Sports Events & Industrial Cater- ing Employees Union, AFL-CIO. Cases 13-CA-12245 and 13-RC-12932 February 13, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By MEMBERS FANNING, KENNEDY, AND PENELLO On September 28, 1973, Administrative Law Judge Samuel Ross issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and Charging Party filed a brief in answer to Respondent's exceptions. 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 of the Administrative Law Judge as modified herein and to adopt his recom- mended Order. 1. We agree with the conclusions of the Adminis- trative Law Judge that the racially oriented state- ment made by Respondent was a violation of Section 8(a)(1), but we so find because it constituted a threat to the employees either that current part-time employees would be replaced by blacks if the Union won the election or that they would have to work alongside blacks, a condition which certain employ- ees might consider unpleasant. E.g., Bush Hog, Inc., 161 NLRB 1575, 1592-93, enfd. 405 F.2d 755 (C.A. 5); General Steel Products, Inc., 157 NLRB 636, 639-640, enfd. in relevant part 398 F.2d 339 (C.A. 4), reversed and remanded in other respects sub nom. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969). 2. We agree that Respondent's interrogation of employees as to their feelings about the Union or how they were going to vote in the pending election violated Section 8(a)(1), because we find that it far exceeded the permissible bounds of such inquiries. Furthermore, "even if the safeguards of Struksnes Construction Co., Inc., 165 NLRB 1062, and Blue Flash Express, Inc., 109 NLRB 591, 592 (no election pending) had been present, the questions would nevertheless have been violative of Section 8(a)(1) in that they could serve no valid purpose inasmuch as a Board-conducted election was already pending and Respondent, therefore, had no justification for such interrogation. E.g., Clark Printing Company, Inc., 146 11 NLRB 121, 122; C. W. Smith Engineering Co., 171 NLRB 1484, 1487.2 3. Finally, in adopting the finding that Respon- dent's interrogation of an employee regarding state- ments he made to an agent of the National Labor Relations Board violated Section 8(a)(1), we need not consider whether the employee was actually coerced thereby. Such questioning is inherently coercive; and hence is violative of the Act for the reasons set forth in Waggoner Corporation, 162 NLRB 1161, 1162-63, and Robertshaw Controls Company, 196 NLRB 449, ALJD, sec. III , subsets. 5 and 6. 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 Administrative Law Judge and hereby orders that Respondent, Kay Corporation d/b/a Holiday Inn of Chicago-South, Harvey, Harvey, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election held on March 2, 1973, in Case 13-RC-12932 be, and it hereby is, set aside, and that Case 13-RC-129 be, and it hereby is, remanded to the Regional Director for the purposes of conducting a new election. [Direction of Section Election and Excelsior foot- note omitted from publication.] I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings t Member Kennedy concurs that the interrogations violated Sec . 8(a)(l), but he does so because of Respondent's repeated and persistent questioning of employees regarding their union feelings and how they were going to vote in the representation election, and because in at least one instance the questioning was accompanied by a threat of a loss of an existing benefit e Federal Stainless Sink Div of Unarco Industries, Inc, 197 NLRB 487, cf C V Uranga, 173 NLRB 635,639 DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge: Case 13-CA-12245 is based on a charge filed by the above- named Union on March 28, 1973, and a complaint which issued on June 1, 1973, against Kay Corporation d/b/a Holiday Inn of Chicago-South, Harvey (herein called Respondent), which allege that during the period preceding a scheduled Board election to determine whether or not Respondent's employees desired representation by the Union, Respondent engaged in various acts of interference with, and restraint and coercion of, its employees in the exercise of their rights guaranteed in Section 7 of the Act, 209 NLRB No. 7 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and thereby violated Section 8(a)(1) of the Act The Respondent filed an answer to the complaint which denies its substantive allegations and the commission of unfair labor practices. Case 13-RC-12932 is based on a petition filed by the Union on January 11, 1973, and a stipulation for certification upon consent election approved on February 20, 1973, pursuant to which an election was conducted on March 2, 1973, which resulted in 15 votes for the Union, 18 against it, and 5 challenged ballots. On March 9, 1973, the Union filed timely objections to the Respondent's conduct affecting the results of the election. On June 6, 1973, the Regional Director determined that the Union's objections were based on more or less the same conduct as that charged as unfair labor practices in the complaint in Case 13-CA-12245 against Respondent, and he accordingly issued an order consolidating the two cases and the issues raised by the challenged ballots for hearing and decision. Pursuant to due notice, these consolidated cases were tried before me in Chicago, Illinois, on July 11 and 12, 1973.1 Upon the entire record and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed by all the parties, I make the following: FINDINGS OF FACT I. COMMERCE The Respondent is an Illinois corporation which is engaged in the operation of a Holiday Inn motel at 17100 South Halsted, Harvey, Illinois. During the past 12 months, a representative period, the Respondent had gross revenues in excess of $500,000 and it purchased and received goods valued in excess of $20,000 from places located outside the State of Illinois. Accordingly i find that the Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is not disputed, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. TFIF UNFAIR LABOR PRACTICES A. The Issues Presented The Respondent is charged in this case with coercively interrogating employees regarding their union sympathies and as to how they intended to vote at the Board election, and with threatening employees with discharge if they participate in a strike, and with less pay and inferior working conditions if the Union won the election. The Respondent is further charged with appeals to the racial prejudices of some of its employees, with promises of increased benefits to two employees, and with statements to employees implying the futility of representation by the Union. All of the foregoing, it is charged, was engaged in by the Respondent to discourage support of the Union at At the opening of the hearing, the five challenges to ballots were withdrawn by the consent of all the parties and the challenged ballots were counted The revised tally of ballots disclosed 17 votes for the Union and 21 the Board election. In addition to the foregoing, the Union's objections to the election also allege that the Respondent "engaged in unlawful surveillance of [its employees'] union and protected concerted activities," and that it "conferred money and other benefits on certain employees as an inducement to secure their support in the election." The testimony adduced in support of the complaint is, for the most part, all denied by Jules Zlogar, the Respondent's "assistant inkeeper" and its only witness. There is thus presented for resolution primarily a question of the credibility of witnesses and their testimony. There is, of course, also presented for determination the issue of whether the testimony as credited is sufficient to establish the charged unfair labor practices, and/or to sustain the Union's objections, and whether it requires the setting aside of the results of the election. B. Preliminary Observations Regarding the Credibility of the Testimony In support of the allegations of the complaint, the General Counsel adduced testimony from five witnesses, three of whom, Millie Thurman, Leona Pittman, and Timothy Wood, formerly worked for Respondent, and two, Louise Seay and Scott Bernard, who still work for it. In respect to the three former employees, only Timothy Wood terminated his employment under circumstances which disclose an animus towards Respondent. I therefore regard former employees Thurman and Pittman as witnesses who have no especial interest in the outcome of these proceedings. Conversely, Wood, a 16-year old high school boy who formerly worked part-time for the Respondent as a porter, admittedly "do[es] not like" Jules Zlogar, the Respondent's assistant innkeeper, and he quit his job under circumstances which warranted, and to forestall, his discharge.2 In addition, Wood signed an affidavit for a Board agent in which he admittedly stated falsely that he worked for Respondent 40 hours "almost every week." Under all the circumstances, including his quite apparent immaturity, I regard Wood's testimony as unreliable for the most part, and I credit it mainly when it accords or is consistent with other testimony which I regard as reliable. Thurman, Pittman, and Seay were and/or are house- keepers who clean the rooms and make up the beds in the Inn. They quite obviously had little formal education and possess only a limited English vocabulary. Accordingly, although the testimony of all three impressed me as being honest and forthright, its accuracy nevertheless will be assessed in the light of their limited literacy. Bernard Scott, the General Counsel's fifth and final witness, is a 17-year-old high school student who works for the Respondent as a part-time porter. His answers to questions were frank, candid, and forthright, and I also am persuaded by his serious and sincere demeanor that his testimony is generally reliable. This leaves for consideration the credibility of the testimony of Jules Zlogar, the Respondent' s assistant innkeeper and its only witness. Zlogar is a 24-year-old votes against representation by it 2 See Resp. Exh 3, p. 3. admittedly written by Wood HOLIDAY INN OF CHICAGO-SOUTH 13 college graduate who has a Bachelor of Science degree "in business administration, emphasis in management" While in college, he took a course in "collective bargaining." Since Zlogar's graduation from college about a year ago, he has worked for the Respondent. In the interval between the filing of the Union's petition for certification as the representative of a unit of Respondent's employees and the election on March 2,8 Zlogar admittedly conducted an active campaign on behalf of the Respondent and spoke daily to its employees to dissuade them from supporting the Umon at the election. The alleged violations of the Respondent in this case are based solely on Zlogar's statements to employees. Zlogar's testimony for the most part controverts that of all five of the witnesses who testified for the General Counsel. As explicated in greater detail hereinafter, I regard Zlogar's testimony as evasive on some occasions, self-contradictory in some respects, and implausible in others. Based thereon, as well as on demeanor, I consider his testimony to be unreliable for the most part. C. The Conduct of Respondent on Which the Complaint is Based 1. The appeal to racial prejudice Paragraph VI (a) of the complaint alleges that on about February 21, "Respondent, by Jules Zlogar, threatened to displace employees with Blacks and to enforce association with Blacks if [the] employees selected the Union as their representative for purposes of collective bargaining." The testimony adduced in support of this allegation was as follows: The Respondent employs a number of teenage high school students to work after school as part-time porters. On February 21, Assistant Innkeeper Zlogar had a conversation about the Union with three of these young porters in Innkeeper Stanley Brum's office.4 In the course of that conversation, Zlogar asked the three boys whether they would like to work "with niggers," Wood and Sullivan replied that they would not, and Bernard asked, "What has that got to do with it [the Union]?" Zlogar replied, "Well. if the Union gets in, the things will have to be racially balanced, there is no way I can keep blacks out as porters." 5 The Respondent urges that in any event, "since Bernard claimed that he was not anti-black . . . the statement [of Zlogar] would not have had a coercive effect upon Bernard or interfere with [his] free exercise of employee rights under the Act."6 I regard this contention as devoid of 3 The appropriate unit stipulated by the parties was All housekeeping employees, linen and laundry employees, porters and housemen, but excluding all front desk employees, maintenance men, kitchen employees, dining room employees, clerical employees, guards and superiisors as defined in the Act and all other employees * Scott Bernard, Timothy Wood, and Jim Sullivan The findings above are based on the credited testimony of Bernard and Wood which were mutually corroborative Zlogar denied making the statements attributed to him by Bernard and Wood, and he also denied that the term "niggers" is part of his lexicon According to Zlogar, the subject of working with black porters was raised by Wood when he asked "if the union got in here, would we have to work with niggers--soul brothers"" Zlogar testified that he replied, "that there was no prejudice in my hiring, I hire for the quality of the individual and as the position needs to be filled." merit. Wood's and Sullivan's negative responses to Zlogar's question as to whether they would like "to work with niggers," and Bernard's credited testimony that Wood was "anti-black," clearly disclosed the existence of a racial prejudice which was available for exploitation by Zlogar. In that context, the latter's statement that a union victory would require the maintenance of a racial balance among the Respondent's porters quite obviously was a not too subtle appeal to racial bigotry, and it thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and transgressed Section 8(a)(1).7 2. The alleged threat to discharge employees who engaged in a strike There is no probative evidence in the record of this case that the Union ever threatened to strike the Respondent or to picket its premises. According to Zlogar, however, on an undisclosed date in mid-February, he received a telephone call from Respondent's counsel "that the Union had made a statement that they might-they would possibly have a picket strike." Zlogar thereupon admittedly "went through the building and gathered the employees from floor to floor," and told them about the Union's "threat of pulling a picket strike," that they did "not have to walk out," and that "if needed," police protection would be provided for them.8 The complaint (paragraph VI(b)) alleges that Zlogar "threatened that employees who might engage in strike would be discharged." The testimony adduced in support of this allegation was as follows: a. Millie Thurman, who then worked for Respondent as a housekeeper but has since quit, testified that Zlogar told her in the presence of several other employees that "the union was going to picket the next day ... and there was going to be a strike." Thurman further testified that Zlogar also said, "if everybody strike [sic] they would be fired," and he added, "I am sure you want your job." Thurman also testified that later that same day she asked Zlogar, "who told you it was going to be [sic] a strike," and that Zlogar replied, "I can't tell you." b. Leona Pittman, another former housekeeper who worked for the Respondent during the preelection period, testified that on a Thursday in February while she was working in one of the guest rooms, Zlogar came in and told her that the Union was going to strike and picket the Inn on the next day. Pittman advised Zlogar that she would not go "out there on a picket line," and Zlogar then assured According to Zlogar, this exchange occurred before Bernard came into Brum's office and joined in the discussion. The Respondent urges that Zlogar's testimony in this regard should be credited, and that of Bernard and Wood be discredited as unworthy of belief As noted above, however, the only one of these three witnesses whose testimony I regard as reliable is Bernard, and I credit his version of this conversation . And, inasmuch as Wood's testimony was substantially similar to that of Bernard. I credit him in this respect notwithstanding my general view that he is not a reliable witness 6 Br,p II r Bush Hog, Inc, 161 NLRB 1575, 1592-93, cf Sewell Manufacturing Company, 138 NLRB 66,71-72 The quotes above are from Zlogar's testimony which is credited in these respects 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her that he would "graduate [sic] [accompany]" Pittman to her car "to keep [her] from getting hurt."9 c. Louise Seay, a housekeeper still employed by the Respondent, testified that during the second week in February, while she was working in one of the rooms at the Inn, Zlogar came in and told her (and several other employees who were present) that "the union was trying to get in," that "they [the Union] was going [sic] to be out there to picket the place, and they would probably be trying to call us out, you know, keep us from coming to work, and if we did stay off from work, then they [Respondent] could replace us with someone, and . . . if we wanted to come back after this was over, then we would have to wait, you know until they have an opening or something, and come in." d. The final testimony adduced by the General Counsel regarding Zlogar's alleged threats to discharge employees who strike was that of the teenage part-time porter, Timothy Wood. Wood testified that on February 21, during Zlogar's conversation with him, Sullivan and Scott Bernard in Brum's office, Bernard asked Zlogar "what would happen if we went on strike," and Zlogar said, "while you were out there walking around they [Respon- dent] would hire somebody in your place; that it would be just more or less like getting fired." Zlogar specifically denied telling Thurman, Pittman, Seay, Wood, Bernard, or any other employee, "that they would be fired if they went out on strike." Zlogar testified in this regard that when he told the employees about the strike which the Union assertedly had threatened, he also told them that "if they did go [out on strike], that they would not lose their job [sic]; we could as a business replace them with temporary employees, but at this point, when they wanted to come back they could come back." Although I regard Zlogar's testimony as generally unreliable, I credit his testimony in this regard principally because it accords with that of Seay, a witness for the General Counsel whose testimony I regard as reliable. Significantly, only Thurman clearly testified that Zlogar threatened to discharge employees who engaged in a strike. However, although I regard Thurman as an honest and forthright witness, Seay's testimony persuades me that Thurman, in the light of her limited literacy, undoubtedly misunderstood the import of Zlogar's statement to her. I note in this regard that neither Pittman nor Bernard testified to any such threat by Zlogar that he would discharge employees who struck. Moreover, even assuming that I credited Wood's uncorroborated testimony (Bernard assertedly was present at the time), I do not regard the statement which he attributed to Zlogar as an unambigu- ous threat to discharge employees who went out on strike. To the contrary I regard Wood's testimony of what Zlogar said as a correct statement of the law in respect to an 9 Pittman stayed home the next day. 1o The findings above are based on Bernard's credited testimony which was corroborated by Wood whom I also credit in this regard Zlogar denied telling the part-time employees that the Union would not represent their interests, or that they could not be in the Union According to Zlogar, the three boys asked him "if their jobs would still be there" if the Union did come in." Zlogar testified that he told them that he "could not say, I did not have the knowledge," and that "I would find out and inform them " As previously noted, I regard Zlogar's testimony as generally unworthy of employer's right to replace economic strikers, and I consider the latter part of Wood's testimony, "that it would be just more or less like getting fired," as Wood's erroneous conclusion regarding the meaning of Zlogar's statement. I conclude from all the foregoing that the evidence is insufficient to establish that Respondent threatened to discharge employees who engaged in a strike, and I therefore will recommend dismissal of this allegation of the complaint. 3. The appeal to the futility of union representation On February 21, in the course of Zlogar's conversation in Brum's office about the Union with teenage part-time porters Wood, Sullivan, and Bernard, Zlogar asked them how many hours they were scheduled to work. Sullivan replied 22, Wood said 28, and Bernard said 30. Zlogar then said, "See, that is part-time. Hasn't anyone ever told you that unions don't like part-time workers?" Bernard said, "no," and Zlogar continued, "Well, they don't. They are out to protect the full-time adult employees. Any teenagers working part-time jobs could be taking jobs away from adults. Now 22, 28 hours a week is part-time. The Union doesn't like part-time employees." Sullivan and Wood protested, "Yes, but we work 30 or 35 hours a week." Zlogar replied, "That doesn't matter, you are scheduled for 22 and 28." Zlogar then told Bernard that inasmuch as he was scheduled to work 30 hours, "I might be considered full-time, so it might not affect me." io Based on the foregoing testimony, the complaint alleges in paragraph VI(c) that Zlogar "told part-time employees that the Union would not represent their interests and that they could not be in the Union, rendering futile any interest they might have in the Union," and that thereby the Respondent violated Section 8(a)(1) of the Act. The General Counsel and the Union contend that Zlogar's statements conveyed to these young employees a "message of [the] futility" of their representation by the Umon, and that it therefore "necessarily" interfered with, restrained and coerced them in the exercise of their Section 7 rights. Notwithstanding my credibility resolution and my fording above that Zlogar, in fact, made the statements attributed to him by Bernard and Wood, I perceive therein no violation of the Act. Section 8(c) of the Act protects the right of an employer to express his views about a union and to thereby dissuade his employees from voting for a union, provided that "such expression contains no threat of reprisal or force or promise of benefit." Zlogar's statements to the three young porters on February 21 that because of their part-time employee status, support of the Umon would not be in their best interests, was accompanied by no threat of reprisal or promise of benefit. I conclude that this credence I similarly regard his version of this conversation as patently implausible Zlogar, a college graduate in management who took a course in collective bargaining , quite obviously knew that the continued employment of these boys by the Respondent could neither be dependent on. nor related to, the success or failure of the Union at the Board election. His asserted ignorance of the answer to the question allegedly posed to him by the young porters is thus, in my view. obviously incredible , and I do not believe his testimony in these respects. HOLIDAY INN OF CHICAGO-SOUTH statement constituted protected free speech under Section 8(c) of the Act, and thus is not "evidence of an unfair labor practice under the provisions of the Act." I will according- ly recommend dismissal of paragraph VI(c) of the complaint. 4. The interrogation of employees regarding their union sympathies According to the credited testimony of Louise Seay, on the day after Zlogar told her and Respondent's other employees that the Union was going to picket the Inn and call the employees out on strike, Zlogar asked "everybody [the employees] what . . . they thought about the union." Seay further testified that "most every day or two" thereafter, and "until the [Board] election," Zlogar continued to ask her "how did I feel about the Union." On one such occasion, Seay told Zlogar that "it [the Union] would be a help," and Zlogar answered that "if the union get[s] in," she would "be losing some of the benefits." Seay asked, "what kind of a benefit?" Zlogar answered that Seay, who because of babysitter problems sometimes took off on scheduled workdays, would no longer be permitted to do so, because when "the union got in, well the union was going to cut that out." In a like vein , Scott Bernard credibly testified that on February 19, Zlogar asked him, "You're voting against the union, aren't you, Scott?," and Bernard replied, "Well, I don't really know." Zlogar continued, "You mean there's a chance you might vote for it?" Bernard answered, "Well, I really don't know too much about the union." According to Bernard, on the following evening, Zlogar again asked him, "Have you decided how you are going to vote, Scott?," and when he replied, "no, youZlogar said, "Scott you are thinking too much again. It comes down to, do you want me to bargain for you or do you want them to bargain for you?" Bernard further testified that on February 22, the day after Zlogar's meeting with the three young porters in Brum's office, Zlogar asked him, "Scott, how are you gomg to vote?," and Bernard replied, "Well, Jules, you talked to us yesterday, and I realize the union really doesn't have much to offer me." 11 In the context of the Respondent's open hostility to the representation of its employees by the Union, and the absence of assurances that no reprisal would take place, I find that Zlogar's interrogation of employees as to how they felt about the Union and how they would vote at the then pending Board election constituted interference with, and restraint and coercion of employees in the exercise of rights guaranteed by the Act, and that it violated Section 8(a)(1). 11 Timothy Wood similarly testified that on at least two occasions, Zlogar asked him how he was going to vote at the Board election, and that he told Zlogar that he would vote against the Union. Zlogar denied that he asked Seay, or any other employee, how they felt about the Union, and he also denied that he asked Bernard, Wood, or any other employee, how he or she was going to vote at the election. In addition, contrary to Seay, Zlogar testified that it was she who asked him whether, "if the union came in," "her days off would be changed to meet a schedule," and that he replied that "her days off would be as they were when she was working, I would not change her days off" I place no credence in Zlogar's denials or his testimony in these respects for the following reasons in addition to my previously expressed views regarding the unreliability of his testimony Zlogar first admitted, albeit reluctantly and after equivocating, that he was 15 I similarly regard Zlogar's statement to Seay, that if the Union won the election, she would no longer be able to take off from work on days other than her scheduled off days, as coercive of employee rights. Although Zlogar put the onus for the elimination of this existing privilege enjoyed by Seay on the Union, it is quite obvious that this was a practice controlled solely by the Respondent to which the Union would not likely object. Zlogar's statement thus was not a prediction of the probable consequences of union representation which was beyond the Respondent's control, and clearly was not free speech protected by Section 8(c) of the Act.12 I find that by this statement of Zlogar, Respondent threatened to eliminate an existing benefit of Seay's employment and thereby further violated Section 8(a)(1) of the Act. 5. The threats of less pay and stricter rules under union representation a. According to former housekeeper, Leona Pittman, at the same time that Zlogar spread the false tale that the Union was going to strike and picket the Inn on the next day, Zlogar told Pittman, "If the Union get [sic] in here, you all be getting [sic] less pay." Pittman replied, "Well, hows [sic] can we get less pay? The Union pay [sic] more, you don't pay but $1.70 an hour. When I get my check, it ain't but for $58.25." Zlogar admitted that he had a separate meeting with Pittman in which the subjects of pay and benefits were discussed if the Union "came in." Zlogar's version of this conversation was that Pittman "was concerned [that] if the union did come in, since she realized she was the only union party in the building, she wondered about her job security." Zlogar testified, "I told her there was no worry whatsoever, she was a good employee and she had nothing to worry about on that." Zlogar further testified that Pittman "also asked me what the situation would be with benefits and pay, and again I told her that in the union events [sic] it all goes into negotiations and I could make no positive statement at that time, just that it is in negotiations." I place no credence in Zlogar's version of this conversa- tion with Pittman, not only because I regard his testimony as generally unreliable, but also that in this respect, I consider it quite patently implausible. Thus, I cannot believe that Pittman, a union adherent, would be con- cerned about her job security if the Union achieved representative status, or that she would ask assurances from her employer, who openly opposed the Union, that her job tenure was safe. Moreover, I consider Pittman who "interested in." and made "attempts to find out the relative strength of the union before the election." He then was asked. "How did you go about doing than," and gave the incredible reply, "By discussions with my lawyer. Mr Kal Grove" Then, when pressed again for the means by which he sought that information, Zoglar testified, "Just by my discussions and my dealings with the individuals [employees] and their basic attitude toward the whole situation " On further questioning, Zoglar finally denied that he mane "any effort at all" to dind out the Union' s "relative strength" among his employees I am persuaded by the foregoing evasive, implausible, and self- contradictory testimony. and by his demeanor, that Zoglar's denials of the testimony of Seay, Wood, and Bernard are worthy of no credence whatsoever 12 ,4' L R B v. Gissel Packing Co, Inc, 395 U S. 575, 618 (1969). 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no longer is employed by Respondent as a disinterested witness. I therefore credit her testimony in these regards. b. According to Timothy Wood, on February 21, during Zlogar's conversation about the Union with the part-time teenage porters in Brum's office, Zlogar told Wood and Sullivan, inter alia, that under the Union, they would have "to answer" to union stewards instead of Zlogar for failure to complete work assignments and for coming to work late. Wood testified that in this regard Zlogar said: If you are late or you have car trouble and you come in late, or if something happens where you are late and you can't get the work done, the steward makes you stay there and get the work done, and if it continues to happen that you are late or you don't get the work done, you could be fired by the steward. According to Wood, Zlogar further said that he, to the contrary "was like a tree, he swayed back and forth, like if you were late, he understood if for some reason you didn't get the work done." 13 Zlogar's threat to employee Pittman that employees would get less pay under union representation clearly constituted a threat of reprisal and interference, restraint. and coercion within the meaning of the Act. I find that thereby, the Respondent engaged in further unfair labor practices within the meaning of Section 8(a)(1) of the Act. I likewise so regard Zlogar's statement to Wood and Sullivan that under the Union they would have "to answer" to a union steward for lateness and for failure to complete work assignments. Supervision of tardiness and productivity of employees clearly are matters which are controlled by management, and not unions, and Zlogar's statement thus was not a prediction of the probable consequences of union representation which was beyond the control of Respondent.i4 I therefore find that by this statement of Zlogar to Wood and Sullivan, the Respondent engaged in further unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The alleged promise of a raise According to Timothy Wood, on the evening of February 21 or 22 (he could not remember which), as he and Sullivan were cleaning the swimming pool at the Inn, Zlogar came over and told them that he had "put in for a dime raise for [them] you," and cautioned them not to say anything about it because he could "get in trouble." According to Zlogar, the discussion of a pay raise for Wood occurred on February 22. Zlogar's version of this conversation was that while at the pool, Wood asked him when he would be receiving a raise, and that Zlogar replied that "with the situation we had with the union matter, that no raise was being given out other than the normal progression." In addition Zlogar specifically denied the statements about a raise attributed to him by Wood. 13 Zlogar, after equivocating, conceded in effect that he told these employees that he could "bend like a tree " in the wind and that it was "possible" that the union steward would not be as flexible as he was in dealing with the "problems" of employees . In the light of Zlogar's reluctant admissions in this regard , I credit wood's testimony regarding this phase of Based on Wood's testimony, paragraph VI(f) of the complaint alleges that the "Respondent, by Jules Zlogar, promised employee benefits if they rejected the Union in a forthcoming representation election." As previously noted in section 111, B, of this Decision, I regard Wood's testimony "as unreliable for the most part." As found above, I also consider Zlogar's testimony as worthy of very little, if any, credence. In the light of my view of the lack of credibility of both these witnesses, and the absence of any corroboration of either of them, I find myself unable to determine who is telling the truth in this regard. Under these circumstances, I conclude that the General Counsel has not sustained the violation alleged in paragraph Vi(f) of the complaint by the "preponderance of testimony required by Section 10(c) of the Act, and I will recommend its dismissal.15 7. Interrogation about visits to employees by agents of the Board In connection with the investigation of the charge filed against the Respondent in the instant case, an agent of the Board contacted the teenage porter, Scott Bernard, and obtained a statement from him. Thereafter on Sunday, May 27, Zlogar asked Bernard whether "some lady from the Government" had "came and talked to him this past week." Bernard, who had been contacted prior to the "past week," truthfully answered "no." Zlogar then said, "Well, that's strange, they have contacted everyone else." Bernard then prevaricated and told Zlogar that he was not at home when the Board agent called on him, and that she had indicated that she would try and get in touch with him the following Saturday. Zlogar then asked Bernard, "I didn't say anything about blacks, did I?" Bernard responded (untruthfully), "Well, Jules, you know, it was a couple of months ago, that's a long time. I really don't remember." Zlogar said, "I don't think 1 did." He then asked Bernard, "Did I ever ask you how you were going to vote?" Bernard replied, "Yes, I remember, you did." Zlogar then said, "I think I was covering myself with something like, `you don't have to tell me if you don't want to.' " Bernard responded, "I don't remember that." That ended this conversation.16 About a week later, according to Bernard's credited testimony, Zlogar asked Bernard, "Scott, what did you say in your affidavit?" Bernard replied, "Well, Jules, I made my affidavit a couple of months ago, and I don't really remember what I talked about." Zlogar then asked Bernard whether "I [Bernard] said anything [in the affidavit] about him [Zlogar] saying anything about blacks." Bernard answered that he "didn't recall," al- though he admittedly "remembered." Bernard also told Zlogar that he told the Board agent that Zlogar had asked him how he was going to vote. Bernard asked Zlogar, "Will this get you into any trouble or anything?" Zlogar their conversation in Brum's office 11 N LR.B v Gissel Packing Co, supra " Cf. Blue Flash Express, Inc, 109 NLRB 591. 16 The findings above are based on the testimony of Bernard whom I regard as a reliable witness and credit in these and most respects HOLIDAY INN OF CHICAGO-SOUTH 17 answered, "No, not really, it was just kind of technically wrong for me to ask you that." 17 The complaint as amended at the opening of the hearing in this case (par. Vi(g)) alleges that Respondent further violated Section 8(a)(1) of the Act by Zlogar's interroga- tion of employees as to what they told Board agents orally and in their affidavits. Zlogar's interrogation of Bernard quite obviously coerced the latter as evidenced by Bernard's false responses to Zlogar's questions. I conclude therefrom that the Respondent thereby engaged in further interference, restraint, and coercion of employees within the meaning of Section 8(a)(1) of the Act.18 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and subtantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following. CONCLUSIONS OF LAw 1. Kay Corporation d/b/a Holiday Inn of Chicago- South, Harvey, is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 593, Hotel-Motel Service Workers, Drug Store, Sports Events & Industrial Catering Employees Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees regarding their union sympathies and desires, and about what they said orally and in their affidavits to a Board agent, by 17 Zlogar denied that he asked Bernard whether "any lady from the Government had come to see him at his house," and he also denied that he asked Bernard what "he had said in his affidavit that he had given to the Government." Zlogar admitted, however, that he had a conversation with Bernard on May 27 relative to a possible visit which Bernard might receive from a government agent Zlogar's version of this incident was as follows. One of his four porters (whose name Zlogar could not remember) allegedly had reported to Zlogar that a government agent had 'sought [him I out at school to take a statement from the porter" Based on this alleged report from the unnamed porter Zlogar professedly did not ask Bernard whether he had been similarly so approached Instead, he allegedly merely told Bernard what he had been told by the unnamed porter, and he "questioned Scott to the fact that if there is any time that anybody is causing you undue harassment or undue inconvenience, to let me know" On cross-examination, Zlogar was asked whether he considered a request by a government agent for information and/or a statement from a prospective witness to be "harassment " He answered that he did not so consider it. In the light of that answer, Zlogar was asked why then he asked Bernard to let turn know when he was unduly harassed or inconvenienced in response, Zlogar equivocated, evaded and never did answer the question Based on threats of loss of existing privileges, less pay, and stricter enforcement of attendance if the employees designated the above-named Union as their representative, and by appeals to racial prejudices, all to discourage and under- mine union membership and/or support by its employees, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By its conduct set forth above (with one exception), the Respondent also has interfered with the exercise of a free and untrammeled choice in the Board election held on March 2, 1973.i9 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Recommendations Respecting Case 13-RC-12932 I have found above that between the date of the filing of the representation proceeding and the election, the Respondent engaged in unfair labor practices which precluded a free choice by employees at the Board election which was conducted on March 2, 1973. To the extent that the Union's objections to conduct affecting the results of the election are based on the said unfair labor practices, the objections are sustained, and I recommend that the election be set aside, and that the representation proceed- ing he remanded to the Regional Director for the purpose of conducting a new election at such time as he deems circumstances permit free choice of a bargaining represent- ative. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDER 20 Respondent, Kay Corporation, d/h/a Holiday Inn of Chicago-South, Harvey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees regarding their the foregoing, and my general assessment of his testimony. I regard Zlogar's version of this incident as implausible and worthy of no credence, and 1 do not credit his denials of Bernard 's contrary testimony which I have credited above IN Genial Srencih, Inc , 178 NLRB 108, enfd in this respect 483 F 2d 894, 898 (C A 2), Federal Slainlesr Sink Division of Onarco Industries, Inc, 197 NLRB 487 In view of my finding that Zlogar s interrogation of Bernard violated Section 8(a)(1) of the ALL I deem it unnecessary to consider or resolve the conflicting testimony regarding the allegedly like interrogation of Wood by Zlogar regarding i') Obviously, the Respondent's interrogation of employees after the election as to what they told the Board's agent, could not have and did not interfere with the election results xi In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions. recommendations. and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations , automatically become the findings, conclusions, decision, and order of the Board, and all objections thereto shall be deemed waived for all purposes 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union sympathies or desires, or regarding what they told Board agents orally or in their affidavits. (b) Threatening employees by appeals to racial prejudice, or with reduction in pay, loss of existing privileges, or with stricter enforcement of rules, to discourage union member- ship or support. (c) In any like or related manner interfering with, restraining or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 593, Hotel-Motel Service Workers, Drug Store, Sports Events & Industrial Catering Employ- ees Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its premises located in Harvey, Illinois, copies of the attached notice marked "Appendix."21 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent, shall be posted by it for a period of 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. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith. IT 1S FURTHER ORDERED that the Union's objections in Case 13-RC-12932 are sustained to the extent indicated above, and that a new election he held at a time and place to be determined by the Regional Director. I FURTHER ORDER that the complaint herein be dismissed insofar as it alleges violations of the Act other than those found above. 21 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 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 OP THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the Order of the Board. The Act gives all employees these rights: To engage in self-organization To form, join or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT coercively interrogate you regarding your union sympathies or desires, or what you tell agents of the National Labor Relations Board. WE WILL NOT threaten you by appeals to racial prejudice, or with reduction in pay, loss of existing benefits and privileges, or with stricter enforcement of our rules, in order to discourage union membership or support. WE WILL respect your rights to self-organization, to form, join or assist any labor organization, or to bargain collectively in respect to any term or condition of employment through Local 593, Hotel-Motel Service Workers, Drug Store, Sports Events & Industrial Catering Employees Union, AFL-CIO or any repre- sentative of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights. You, and all our employees, are free to become members of any labor organization, or to refrain from doing so. Dated By KAY CORPORATION D/B/A HOLIDAY INN OF CHICAGO- SOUTH, HARVEY (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 any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Bldg., Room 881 , 219 S. Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.