Holiday Inn of Dayton

HOLIDAY INN OF DAYTON 553 Dayton Motels, Inc., d/b/a Holiday Inn of Dayton and Bartenders, Hotel, Motel and Restaurant Workers, Local Union No. 222, Hotel and Restaurant Employ- ees and Bartenders International Union, AFL-CIO. Case 9-CA-5837 The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' July 26, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 26, 1974, Administrative Law Judge George J. Bott issued the attached Supplemental De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. On August 16, 1971, the National Labor Relations Board issued a Decision and Order in this proceed- ing,' in which it found that the Respondent violated Section 8(a)(1), (3), and (5) of the Act, as amended, by interfering with, restraining, and coercing employees in the exercise of their Section 7 rights and by refusing to bargain with the Union, which it had voluntarily recognized, on the basis of a card check, on August 21, 1967. Subsequently, the Board filed with the Unit- ed States Court of Appeals for the Sixth Circuit an application for enforcement of its Order, to which Respondent filed an answer and crosspetition to re- view and set aside said Order. Thereafter, on Febru- ary 14, 1973, the court issued an order enforcing the Board's Order with respect to the 8(a)(1) violations found' and remanded the 8(a)(5) part of the case to the Board for further consideration in light of its opin- ion that the Board had erred in rejecting evidence regarding a supervisor's alleged assistance to the Union in 1967, if any, and Respondent's knowledge thereof, in order to determine whether Respondent had a good-faith doubt of the majority status of the Union. On November 2, 1973, the Board issued an order reopening the record and remanding the proceeding to the Regional Director for hearing. On March 26, 1974, Administrative Law Judge George J. Bott issued the attached Supplemental Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief. ' 192 NLRB 674 2 Respondent reinstated the discriminatee , posting appropriate notices, and enforcement was therefore not sought as to the violation of Section 8(a)(3) ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Dayton Motels, Inc., d/b/a Holiday Inn of Dayton, Dayton, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. CHAIRMAN MILLER, dissenting: The decision of the Administrative Law Judge, here affirmed by my colleagues, may conform to a literal reading of the court's remand order, which required us to receive evidence as to the supervisory assistance alleged to have contributed to the Union's initial "ma- jority status." The court also told us that, after receiv- ing and evaluating that evidence, we should consider it in determining whether Respondent had a "good- faith doubt" of the Union's majority status at the time of the withdrawal of recognition herein. The Administrative Law Judge below found that there was supervisory assistance, but that said assis- tance was not a part of Respondent's subjective con- siderations when it withdrew recognition. Thus he finds no "good-faith doubt" to have been created at the relevant time, and hence he affirms the Board's original finding of an 8(a)(5) violation. The syllogistic reasoning cannot be faulted. But the result is contrary to law, unless we are to put on, and carefully adjust, our blinders to conform to the literal language of the remand. If we take those blinders off, we must now perceive that the Union never had bona fide majority status, in that, as the Administrative Law Judge below found, the supervisory "assistance to the Union was substan- tial." Thus, if the Union never had bona fide majority status, the withdrawal of recognition cannot be un- lawful unless General Counsel had proved that major- ity status existed at the time of withdrawal, without 3 We agree with the Administrative Law Judge that the initial taint to the Union's majority was not a factor in Respondent's refusal to bargain with the Union . As recognized by the court, the only relevance the original taint has in this case is in determining whether Respondent relied on that fact in asserting its alleged "good-faith doubt" of the Union's majority status Inas- much as the record shows that Laut's assistance to the Union played no part whatsoever in Respondent's decision to withdraw recognition from the Union, her actions have no legal significance in our decision to reaffirm the bargaining order issued herein 212 NLRB No. 87 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefit of any presumptions flowing from the original recognition, since that original recognition no longer establishes anything about the independent desires of the employees . No such proof of majority at the time of withdrawal was made on this record . Looked at, therefore, in toto, the record will not support an 8(a)(5) finding. SUPPLEMENTAL DECISION STATEMENT OF THE CASE GEORGE J BoTT, Administrative Law Judge: This pro- ceeding was heard before me at Moraine, Ohio, on Febru- ary 1, 1974, with all parties represented, pursuant to remand by the United States Court of Appeals for the Sixth Circuit, as set forth in its opinion dated February 14, 1973 (474 F.2d 328), and an order of the National Labor Relations Board (herein the Board) dated November 2, 1973, reopening the record pursuant to the remand. The court of appeals en- forced the Board's Order with respect to the 8(a)(1) viola- tion found,' but remanded the 8(a)(5) part of the case to the Board for further proceedings in light of its opinion that the Board had erred in rejecting evidence regarding a supervisor's assistance to the Union in 1967 and the Company's assertion that the supervisor's activities did not come to its attention until a year or more after an agreement with the Union had been signed. The court directed the Board "to receive evidence on the circumstances surround- ing the procurement of union authorization cards in 1967, and to consider such evidence, along with other events sub- sequent thereto, on the issue of whether the Company did in fact have a good-faith doubt as to the majority status of the Union."2 The Board's order reopening the record and remanding the proceeding for further hearing provided that the Admin- istrative Law Judge3 should "permit the parties to adduce evidence as to: (I) the circumstances surrounding the pro- curement of union authorization cards in 1967 by the al- 192 NLRB 674 2 474 F 2d at 335 3 Administrative Law Judge Melvin Pollack, who heard the original case. retired on June 30, 1973 Although he was "unavailable" to the Agency within the meaning of Section 5 of the Administrative Procedure Act, the Board's order reopening the record and remanding the proceeding errone- ously directed that the additional hearing be held before Judge Pollack Because of Judge Pollack's unavailability, Chief Administrative Law Judge Eugene G Goslee designated me to conduct the hearing in his place Respon- dent contends that it has been deprived of due process by having two judges participate in the whole proceeding, but I fail to see how it has been preju- diced The issues before me were not the issues before Judge Pollack, and I have not been handicapped in any way in making credibility findings by not having presided at the earlier heanng For example, the six maid witnesses presented by Respondent at the remand hearing on the question of assistance to the union did not testify at the original hearing it also appears that General Manager Geurdat testified before me on some matters that he was not permitted to testify about in the original hearing, and where he touched on other subjects, his testimony was consistent with his testimony in the first hearing Finally , as will appear, even if all of Respondent's witnesses are fully credited, Geurdat's own testimony establishes that Supervisor Laut's assis- tance to the Union, prior to recognition, did not enter into Respondent's decision to refuse continued recognition to the Union at the expiration of the collective-bargaining contract leged supervisor who purportedly rendered assistance to the Union; (2) whether the said supervisor was, at all times material, in fact a supervisor within the meaning of the Act; and (3) when and how Respondent acquired knowledge of the alleged supervisor's assistance, if any, to the Union." Subsequent to the hearing, General Counsel and Respon- dent filed briefs which have been considered. Upon the basis of the entire record, including the opinion of the court of appeals, and from my observation of the witnesses who testified before me, I make the following findings of fact, conclusions of law, and recommendations: FINDINGS OF FACT A. Supervisory Status of Mary Laut It was stipulated at the reopened hearing that Executive Housekeeper Mary Laut was a supervisor within the mean- ing of the Act at all material times B. Lout's Activities in Connection with the Procurement of Union Authorization Cards Housekeeper Laut was the immediate supervisor of the approximately 25 maids Respondent employed in July and August 1967 Although all witnesses had some difficulty remembering what had happened just prior to August 21, 1967, when Respondent, on the basis of signed authoriza- tion cards, agreed to recognize the Union as collective- bargaining agent of the maids, I find that Laut played a significant role in getting the union campaign underway and in encouraging employees to sign authorization cards. Former employee Brineqar, now retired, remembered a meeting in a guest room at the motel in 1967 where "we all decided to join" the Union. Although somewhat uncertain about it, she said she "believed" that Laut was present in the room. Sometime later she went to a union meeting at a bowling alley in a car driven by Laut. Marjorie Elliott, also retired, was also at the gathering of maids in a guest room in 1967 before the Union was recog- nized. She testified credibly that Laut notified them of the meeting and attended it. She recalled Laut stating at the meeting that a union would be to their benefit, because it would get them raises and intervene with management on their behalf in case of discharge She said that Laut did not tell them to sign or not to sign union authorization cards, but "advised" them that it would benefit them if they did. Elliott also went to the meeting at the bowling alley. Laut was present, and I credit Elliott's testimony that Laut trans- ported some maids to the meeting in her car. Employee Robinson testified credibly that Laut spoke to the maids at a meeting in a guest room in 1967 and advised 4 them that it would be better for them if they had a union Laut testified that it was her practice while employed by Employees Edwards, Shirley, and Donna Strine had little or nothing to offer in the way of reliable evidence about Laut's activities Edwards placed Laut at the bowling alley meeting, which Laut admitted attending, but al- though she remembered Laut driving to the meeting, she did not say that she had any employee passengers with her The Strive sisters were hired in July and August 1967, respectively Shirley Strine was in all probability referring in her testimony to a time after recognition when she saw Laut and two union officials talking in the motel, and, in any case, she did not hear what they HOLIDAY INN OF DAYTON 555 Respondent to hold meetings with the maids regularly to discuss work problems or to air their grievances. She re- called such a meeting in July 1967, she said, at which the employees asked her what she thought of the union move- ment. She said she advised them to be patient until Respon- dent gave them some indication about what it intended to do to better their working conditions. Laut admitted attending a meeting of Respondent's em- ployees at the Pastimes Bowling Alley at which the employ- ees signed union cards. The meeting was conducted by Mike Zinaich, one of the Union's officials, but Laut said that she sat 25 feet away from the employees and made no remarks. She said that Zinaich first spoke to the employees about the advantages of being unionized, and that she left the meeting while the employees were signing union author- ization cards. Laut denied that she had taken any of the employees to the meeting in her car. Zinaich testified, without contradiction, that he arranged for the meeting of Respondent's maids at the Pastimes Bowling Alley after a maid, who later became the union steward, advised him that the employees would like to meet with him. He conducted the meeting, and he and another official of the Union distributed and had returned to them signed authorization cards, which he later presented to Re- spondent in support of his claim that the Union represented a majority in the appropriate unit. All the cards he presented were obtained at the meeting at the bowling alley. He admit- ted that Laut was at the meeting, but he said she did not speak. He said he had known Laut's husband for 25 or more years, but had met Mrs. Laut for the first time when he visited the Respondent's premises in an attempt to organize the employees. Although it is possible that time has also dimmed Laut's vision of her part in the Union's 1967 organizational activi- ties, I am convinced that she has played down the degree of her activity and influence. As indicated, I credit the employ- ee witnesses, and I find that Laut's assistance to the Union was substantial. More specifically, I find that before any employee had signed a union authorization card or had been to an official union meeting, Laut gathered the maids together and spoke favorably to them about joining the Union. Not long thereafter, Laut again indicated approval and encouragement of employee leanings in the Union's direction by driving at least one employee to the meeting at the bowling alley where all the Union's cards were signed and by remaining in the meeting room until the employees were all signing the cards used by the Union to obtain recognition .5 were talking about. Donna Strine testified that Laut "seemed" to be for the Union, but she apparently was confused when she placed Laut in a "linen" room meeting with employees, attended by two officials of the Union She could not fix the time of this meeting, but it took place after the bowling alley meeting, which she did not attend because it occurred before she was hired. My reconstruction is that she was probably referring to a third meeting. which took place after recognition, at which a contract was considered. 5 Additional evidence that Laut was closer to the Union than she remem- bers is the fact that the Union's records reflect a payment to her, on or about October 2, 1967, of $47.30, after deductions, to compensate her for "help she rendered" the Union in connection with a strike at another motel in Dayton, Ohio. C. When and How Respondent Acquired Knowledge of Laut's Activities None of the six witnesses presented by Respondent on the issue of Laut's participation in union activities communicat- ed whatever information they had in that regard to Respon- dent until shortly before the remand hearing. Innkeeper Wilkens, however, testified that about a year after the Union was recognized, "one of the maintenance workers and a maid or two told [him] that the housekeeper had known about the union." Wilkens added that "these people told [him] that she did influence and helped them join the Union." He was unable to remember who the two maids were, and he stated that Roberts, the maintenance employ- ee, no longer worked for Respondent, but that no effort had been made to reach him. Wilkens testified that he immediately reported to General Manager Geurdat what he had learned about Laut and that Geurdat instructed him to terminate her, which he did. He said that he had also become dissatisfied with Laut's perfor- mance prior to that time and that this entered into the decision to discharge her. When he advised Laut of her separation, he did not mention the fact that she had assisted the Union, but gave as the reason for her termination an apparent "lack of communication" between them. Geurdat, who is general manager of a number of Holiday Inns in the area and Wilkens' superior, testified that after Respondent had signed a contract with the Union, Wilkens informed him that Laut had participated in "getting the Union in," because "she had tried to form the girls-into joining a union." He said that he instructed Wilkens to discharge Laut because she had acted contrary to Respondent's policy. He also said that management was having "a little trouble with" Laut in regard to her work before she was discharged. Wilkens' and Geurdat's scanty and somewhat vague testi- mony on this issue does not inspire confidence in its accura- cy. The failure to identify the sources of Wilkens' information is disturbing, but that can conceivably be ex- plained by the amount of time which has elapsed. What is more difficult to accept, however, is their lack of precision about exactly what Laut was supposed to have done. Wilk- ens was only able to say that Laut "had known about the Union" and had "influenced" and "helped" unidentified maids to join. Geurdat's testimony was no more precise than Wilkens'. The fact that Laut was not told that her participation in union activities was behind her termination also raises a question about the reliability of the testimony, as does the suggestion that Laut's discharge was based, in part, on her unsatisfactory performance as an employee, for I credit her testimony that she was frequently complimented on her work by Wilkens. Finally, Respondent's other ac- tions were inconsistent with prior knowledge of the kind and extent of Laut's activities in helping to organize em- ployees, because when Respondent withdrew recognition from the Union, it did not cite Laut's conduct as a basis for it. In view of the above considerations, and even though the testimony is uncontradicted, I am only able to find that at some uncertain time after the Union obtained recognition, Respondent learned that Laut had participated in some 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undefined way in the Union 's organizing efforts. D. Whether Respondent 's Knowledge of Laut's Assistance to the Union Entered into its Decision to Refuse to Bargain with the Union in June 1970 It is clear from the testimony of Respondent's General Manager, Geurdat, that even if Respondent learned in late 1968 that Laut had assisted the Union to the extent found above, her conduct in no way entered into Respondent's decision in June 1970 to withdraw recognition from the Union and refuse to bargain with it. Geurdat was twice asked if Laut 's participation in getting the Union in affected his decision to refuse to negotiate a contract with the Union in 1970, and twice he answered that it did not, adding that the maids had told Respondent that they did not want the Union . Then asked if there was any factor other than the maids not wanting the Union to repre- sent them that entered into his decision to stop bargaining with the Union, he replied that the maids' attitude "was the only reason," and that he believed that if the maids did not want representation , recognition could be withdrawn. I agree, as General Counsel points out, that Geurdat's refer- ence to the maids not wanting the Union any longer is to the "petition" which the Board and court found Respon- dent had sponsored in violation of Section 8(a)(1) of the Act.' E. Analysis and Conclusions If, as Geurdat testified and I have found, the only reason Respondent discontinued bargaining with the Union in 6 192 NLRB 674, 678-679 June 1970 was because the maids had advised Respondent that they did not want the Union to represent them, then Laut's participation in the Union's organizing campaign in 1967 is out of the case, for Respondent did not rely on it to support its purported good-faith doubt that the Union con- tinued to represent a majority of the employees. The court of appeals instructed the Board to consider evidence of Laut's participation in union affairs, along with other events subsequent thereto, on the issue of whether or not the Re- spondent did in fact have a good-faith doubt as to the majority status of the Union. Since the Respondent did not base its asserted doubt on Laut's activities, the only "event subsequent thereto" of any substance left to support the claim of a good-faith doubt regarding majority is Respondent's receipt of an antiunion petition from employ- ees is September 1970, a matter in which the Board found the Respondent to be substantially involved in violation of the Act,7 and which, therefore, it could not rely on to sup- port its contention that it had valid grounds on which to doubt the Union's majority status.8 Since all of the factors which influenced Respondent's decision to withdraw recognition from the Union were fully litigated in the original proceeding and found legally inade- quate, I conclude, for the same reasons the Board did, that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union in June 1970. RECOMMENDATION I recommend that the Board reaffirm its Decision and Order of August 16, 1971, in this case. 7 The Board also noted that Respondent had cited no episode indicating union disaffection among employees except for the signing of the antiunion petition 192 NLRB at 679. s /bid