Holiday Inn Downtown

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Motor Inns d/b/a Holiday Inn Downtown and Bartenders, Hotel, Restaurant and Cafeteria Employees Union Local No. 36, affiliated with Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO. Cases 5-CA-6378 and 5- RC-8690 July 31, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On March 15, 1974, Administrative Law Judge Jo- seph I. Nachman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the General Counsel filed lim- ited cross-exceptions and a supporting brief, and the Charging Party filed a brief in support of the Admin- istrative Law Judge's Decision. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Unlike the Administrative Law Judge, we find no threat implicit in Innkeeper Wall's remark to employ- ees, in which he asked, "Are you aware that this is the same union that represented employees at the Emer- son Hotel and the Belvedere-are you aware that this is the same union that is seeking to represent you?" Even though it was well known that both of these hotels ceased operating, nothing in the Respondent's rhetorical question suggests either that the named ho- tels had closed down in retaliation against the union- ization of their employees or that Respondent would do so. Nor is it reasonable to assume that Respondent's employees would have so construed the question, since, in the same speech, the Respondent made it quite clear that it contemplated continuing in business and discussed the matter of its intention to continue to operate, even in the event of a strike. In these circumstances, the Respondent's appeal to em- ployees to consider the past performance of the Union at other locations in making their decision on union representation cannot reasonably be equated with a threat that Respondent would take action to frustrate employees' desire for representation. Accordingly, as the Respondent's speech did not constitute a violation of Section 8(a)(1) of the Act or interfere with the conduct of the election, we shall dismiss the complaint, and certify the results of the election.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Bartenders, Hotel, Res- taurant and Cafeteria Employees Union Local No. 36, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and that said labor organization is not the exclusive repre- sentative of all the employees, in the unit herein in- volved, within the meaning of Section 9(a) of the National Relations Act, as amended. ' We find no merit in General Counsel's cross-execptions requesting that the case be remanded to the Administrative Law Judge for credibility resolu- tions, since we find that such resolutions were made and the General Counsel's witnesses discredited DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This pro- ceeding tried before me at Baltimore, Maryland, on January 9 and 10, 1974, with all parties present and represented by counsel, involves a complaint' pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), which alleges in substance that during the course of an organizational campaign by Bartenders, Hotel, Restaurant & Cafeteria Employees Union Local No. 36, a/w Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (herein the Union), among the employees of American Motor Inns, doing business as Holiday Inn Downtown (herein Respondent or Company), the latter in- terfered with, coerced, and restrained its employees in the exercise of their rights under Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. By answer, Respondent admitted certain allegations of the complaint, but denied the commission of any unfair labor practice. Consolidated for hearing with the unfair labor practice complaint were objections filed by the Union to conduct affecting the re- sults of an election conducted by the Board among Respondent's employees on a representation petition filed by the Union.2 For reasons hereafter stated, I find certain ' Issued December 3 on a charge filed and served October 19 Both dates, as well as all dates hereafter mentioned are 1973 2 The relevant events in the representation case are August 27, petition 212 NLRB No. 103 HOLIDAY INN DOWNTOWN allegations of the complaint sustained by the evidence, which also affected the results of the election, and recom- mend that the same be set aside and a new election conduct- ed At the trial all parties were afforded full opportunity to introduce relevant and material evidence, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the General Counsel, Respondent and the Charging Union, respectively, have been duly consid- ered. Upon the pleadings, stipulations of counsel, the evi- dence, and the entire record in the case, I make the following: FINDINGS OF FACT 3 The Alleged Interference, Restraint, and Coercion The parties stipulated that following the filing of the rep- resentation petition and before the election held October 11, Charles Wall, an admitted supervisor, spoke at meetings with employees held on September 26 and October 4 and 10. The General Counsel and charging Union contend that at these meetings, and at other times during the union cam- paign, Wall and other officials of Respondent engaged in conduct violative of Section 8(a)(1) of the Act, and which constituted conduct affecting the results of the election. To prove the allegations of the complaint, the General Counsel called four witnesses, all employed as maids or inspectors at the Inn. Although I feel that these witnesses were trying to honestly give the facts as they understood them, their testimony was, to say the least, confusing, and leaves me in some doubt as to what portion of that testimo- ny is fact, and what portion is the product of their imagina- tion." Virtually all of the testimony given by these witnesses is contradicted by Innkeeper Wall, and in most instances he is corroborated by other witnesses who are connected with the management of the Inn. However, with respect to one incident Wall admitted that he made a certain statement which I find violative of Section 8(a)(1) of the Act,5 and, as it occurred during the campaign, was conduct affecting the results of the election. Accordingly, I predicate my decision on that incident. Employee Latimer testified that at the final meeting with the employees held on October 10, Innkeeper Wall stated that a union would do them no good; that it would be like filed, September 18, stipulation for certification upon consent election agree- ment ; October 1 1, election conducted, tally of ballots shows 15 votes for the Union, 18 against , October 17, objections to conduct affecting results of election , December 12, Regional Director's report on objections , and Janu- ary 7, 1974, Regional Director's report approved by the Board No issue of commerce or labor organization is presented The complaint alleges and the answer admits facts which establish these jurisdictional ele- ments I find those facts to be as pleaded Additionally. in the stipulation for certification on consent election, facts establishing the Board 's jurisdiction were stipulated Without going into detail , some witnesses were obviously confused re- garding the meeting at which certain statements were made, who was present, and exactly what was said Although each witness attended all the meetings, they do not in many instances corroborate each other , some saying that a particular statement testified to by another was not said 5 Although not alleged in the complaint , the incident was fully litigated at the trial without objection from anyone Although the parties were asked to fully brief all issues litigated , none of the briefs deal with this issue 705 the Lord Baltimore and Belvedere (local hotels), both of which had a union and that is why they are out of business. Wall admitted that at the meeting referred to he, in the form of a question, said, "are you aware that this is the same union that represented the employees at the Emerson Hotel and the Belvedere-are you aware that this is the same union that is asking to represent you?" Wall also admitted that "it is a well known fact that the hotels referred to are no longer in operation." Wall testified that he made no statement concerning a strike at the Emerson or the Belved- ere, or that those hotels closed because of the Union-and I do not find that he made such statement. Nonetheless, I find and conclude that in context, the words he admittedly used constituted a violation of Section 8(a)(1). Although an employer faced with a union campaign to organize his employees may lawfully communicate to his employees his general views about unionism, or his specific views about a particular union (N.L.R B. v. Gissel Packing Co., 395 U.S. 595, 618), he may do so only so long as his communications "do not contain a threat of reprisal or promise of benefit," and the Board has consistently held that a statement that the plant will close if the employees select union representation is not a mere prediction or ex- pression of opinion, but a threat to retaliate against employ- ees because of their assistance to a union. As the Supreme Court stated in Gissel, supra at 619, quoting from Cox, Law and the National Labor Policy, 44 (1960), whether a particu- lar statement falls on one side of the line or other is de- termining by deciding "what did the speaker intend and the listener understand." Given the premise that the closing of the Emerson and the Belvedere was well known; that Wall was addressing them on the subject of the Union and said that this was the same Union that represented the employ- ees in those establishments; the employees could reasonably conclude, as witness Latimer did, that Wall was by implica- tion telling them that the advent of the Union might result in the closing of Respondent's Baltimore establishment, even though those words were not in fact used. In this posture Wall's statement constituted a threat of plant clo- sure, and violated Section 8(a)(1) of the Act. See also Cleve- land Woolens Division of Burlington Industries, 140 NLRB 87, 93. Moreover, I am convinced, and therefore find and conclude, that Wall made his statement with the intent and purpose that the employees construe his statement as a threat of plant closure. If he did not so intend, it is difficult to understand why he made the statement at all, or why he did not tell the employees that he did not so intend. It is reasonable to infer, as I do, that Wall failed to make this clear to the employees because to do so would destroy the inference he wanted them to know. As the Supreme Court said in Gissel, supra at 620, an employer that engages in "brinkmanship" cannot be heard to complain if it is found that he "overstep(ed) and tumble(d) into the brink," and that at the very least "he can avoid coercive speech simply by avoiding conscious overstatements he has reason to be- lieve will mislead his employees." CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act, and is engaged in commerce within the 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. By the conduct found herein, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practic- es proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found the Respondent interfered with, coerced, and restrained its employees in the exercise of rights guaran- teed them by Section 7 of the Act, it will be recommended that it be required to cease and desist therefrom and to take certain affirmative action designed and found necessary to effectuate the policies of the Act. The unfair labor practices found being of the kind which go to the very heart of the Act, a broad order requiring Respondent to cease and desist from in any manner interfering with, restraining, or coerc- ing its employees in the exercise of rights guaranteed them by Section 7 of the Act, is justified. N.L.R B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California Lingerie, Inc., 129 NLRB 912, 915. Report on Objections to Conduct Affecting the Results of the Election. Having found that during the critical period 6 Respon- dent, by the conduct set forth in Conclusion of Law 3, violated Section 8(a)(1) of the Act, it follows that the elec- tion conducted on October 11 must be set aside, and I so recommend. Dal-Tel Optical Company, Inc., 137 NLRB 1782; Reas & McVitty, Incorporated, 155 NLRB 389; L. B. Foster Company, 168 NLRB 83, enfd. 418 F.2d 1 (C.A. 9, 1969) cert. denied 397 U.S. 990 (1970); Kaiser Agricultural Chemicals, etc , 187 NLRB 661, enfd. 473 F.2d 374 (C.A. 5, 1973). As the General Counsel does not contend that a bargaining order is appropriate under the facts of this case,7 it will be recommended that the election held October 11 in Case 5-RC-8690 be set aside, and that said case be remand- ed to the Regional Director for Region 5 with directions to conduct a new election at an appropriate time. [Recommended Order omitted from publication.] 6 The Board regards as the critical period the time between the filing of the representation petition and the date of the election. Ideal Electric Compa- ny, 134 NLRB 1275, 1278 In the instant case the petition was filed August 27, and the election was conducted on October II The conduct herein found to be violative of the Act occurred on October 10 Indeed, as the Union's majority status at any material time has not been established, a bargaining order appears to be inappropriate J P Stevens and Co, Inc, 157 NLRB 869, 877