Treadway Inn

TREADWAY INN 51 Treadway Inn and Local 27, Hotel and Restaurant Employees and Bartenders Union Treadway Inn Binghamton and Hotel and Restaurant Employees & Bartenders International Union, Local Union No. 27, AFL-CIO, Petitioner. Cases 3-CA-5699 and 3-RC-6021 March 24, 1975 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND` PENELLO On November 13, 1974, Administrative Law Judge Samuel Ross issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel 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. 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, as modi- fied below, and to adopt his recommended Order. 1. The Administrative Law Judge found that "As- sistant Innkeeper Wilson by his own admission con- ducted a poll of about 15 or 20 employees in which he asked them what they `thought' about the campaign literature which the Respondent and the Union had distributed, and `how do you feel about the Union,"' thereby violating Section 8(a)(1) of the Act. In its ex- ceptions, Respondent contends that Wilson did not ad- mit to polling employees regarding their union sympa- thies and, therefore, the Administrative Law Judge's contrary findings and the violations based thereon should be reversed. We fmd merit to this contention insofar as it relates to Wilson's unlawfully polling 15 to 20 other employees, but we reject Respondent's conten- tion that Wilson did not unlawfully interrogate em- ployees Smith, Kilts, and Laurinaitis. Although the Administrative Law Judge credited the testimony of employees Smith, Kilts, and Laurinai- tis, over the partial denials of Wilson, that they were approached by Wilson individually and asked either how they felt about the Union or whether they were The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to over- rule 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 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. i going to vote for the Union , there is no evidence of record showing that any employees other than these three were asked such questions.2 To be sure, Wilson admitted asking 15 to 20 employees that same day "about receiving the literature and reading it and do they understand it and is there anything I could clarify that they didn't understand.' But he did not^admit in his testimony that he asked these 15 to 20 employees anything about their union sympathies or how they felt about the Union's literature. On this state of the record, it is clear, and we fmd, that Wilson did not admit to unlawfully polling all 15 to 20 of the employees he admitted to questioning that day. Consequently, we do not adopt these findings of the Administrative Law Judge. We do, however, affirm the findings and conclu- sion of the Administrative Law Judge that Respondent coercively interrogated employees Smith, Kilts, and Laurinaitis in violation of Section 8(a)(1) of the Act. 2. We find merit in General Counsel's exceptions to the Administrative Law Judge's refusal to find an 8(a)(1) violation with respect to certain remarks made to employees only a few days prior to the election by Head Banquet Waitress Estelle Ray, found -to be a supervisor. - - The Administrative Law Judge found , as set forth in the attached Decision, that a couple of days before the Board election a number of -banquet, waitresses and porters were eating their dinner and discussing the Union and the benefits it would- provide for banquet service employees, when one of the waitresses asked Mrs. Ray about the question of tips . In response, Mrs. Ray described how tips were allocated by Respondent and further stated that "`if the union were . . . voted into the house,' it would reduce the number of persons which each waitress would be permitted to serve, that the Respondent would therefore have to employ more waitresses to serve the functions, and the amount of tips which each waitress would get `would be less."' On those facts, the Administrative Law Judge con- cluded that Mrs. Ray was merely expressing her opin- ion as to what would result from what she believed to be the Union's policy, and that her remarks contained no suggestion that the Respondent would take any ac- tion to reduce the amount of waitresses ' tips if they designated the Union as their representative. Accord- ingly, he found no violation of Section 8(a)(1) of the Act based on this incident. We disagree. The standard to be used in evaluating employer pre- dictions as to the probable effects of unionization was reaffirmed by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., et a1.,3 where the Court stated: 2 Other than Smith, Kilts, and Laurinartis, no employees were called to testify to incidents involving Wilson. 3 395 U S 575, 618 (1969). 217 NLRB No. 15 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [A]n employer is free to communicate to his em- ployees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effect he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demon- strably probable consequences beyond his control We find Mrs. Ray's remarks do not satisfy this test. Nowhere in Mrs. Ray's remarks is it made clear that the diminution of tips will not be automatic upon the advent of the Union, but will necessarily be a subject of negotiation between the Union and Respondent and would only occur if the Union and Respondent agreed after bargaining.' Moreover, the Union had given no indication that it would make such a demand on Re- spondent at such time as it obtained bargaining rights, nor did Mrs. Ray refer in her remarks to any past conduct of the Union upon which she relied in coming to that conclusion.' We also note that Mrs. Ray's re- marks were communicated at a time when Respondent had already engaged in unlawful interrogations of em- ployees with respect to their union sympathies and had threatened certain employees with the loss of existing benefits upon the advent of the Union. In view of the above circumstances, we do not believe that Ray's remarks were "carefully phrased on the ba- sis of objective fact," but instead would reasonably be understood by the employees as implied threats of eco- nomic reprisals for the purpose of inducing them to vote against the Union in the forthcoming election. We accordingly find that Mrs. Ray's remarks interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act.' 3. With respect to the companion RC case, the Ad- ministrative Law Judge recommended that the election be set aside and a new election held at a time deemed appropriate by the Regional Director. Although we have modified the Administrative Law Judge's conclu- sions in certain respects, we have found that Respond- ent committed separate violations of Section 8(a)(1) of the Act by interrogating employees and, in two sepa- rate incidents, threatening employees with the loss of 4 See The Great Atlantic & Pacific Tea Co., Inc., 194 NLRB 774, 778 (1971), enfd. per curiam 80 LRRM 2902, 68 LC ¶ 3195 (C.A. 4, June 13, 1972). 5 See Georgia-Pacific Corporation, 204 NLRB 47 (1973) 6 In addition to the cases cited above, see Gilbert International, Inc, 213 NLRB 538 (1974), Blaser Tool & Mold Company, Inc, 196 NLRB 374 (1972), General Automation Manufacturing, Incorporated, 167 NLRB 502, 504 (1967), enfd. 408 F.2d 380 (CA. 6, 1969). existing benefits as reprisals if they selected the Union as their representative. In view of the nature and extent of these violations, we agree with the Administrative Law Judge that they likely interfered with and pre- cluded a free choice by employees in the election, held on June 14, 1974. Accordingly, we shall set aside that election and direct that a second election be held. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Treadway Inn, Binghamton, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Or- der. IT IS FURTHER ORDERED that the election in Case 3-RC-6021 held on June- 14, 1974, be, and it hereby is, set aside and that a new election be held as directed below. [Direction of Second Election and Excelsior footnote omitted from publication.] DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge: Case 3-CA-5699 is based on a charge filed by the, above-named Union on June 10, 1974, and on a complaint which issued thereon on July 30, 1974, against Treadway Inn (herein called Respondent) which alleges that during the period preceding a scheduled Board election to determine whether the Respon- dent's employees desired representation by the Union, the Respondent engaged in various acts of interference with and restraint and coercion of employees in, the exercise of rights guaranteed in Section 7 of the Act, 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 3-RC-6021 is based on a petition filed by the Union on April 17, 1974, for certification as the collective-bargain- ing representative of an appropriate unit of Respondent's Binghamton employees, and on a Stipulation for Certification Upon Consent Election approved on May 9, 1974, pursuant to which an election was conducted on June 14, 1974, which resulted in 34 votes for the Union, 95 against it, 1 void ballot, and 5 challenged ballots. On June 20, 1974, the Union filed timely objections to the Respondent's conduct affecting the results of the election. On July 30, 1974, the Regional Direc- tor concluded that the Union's Objections 1, 3, and 9 raised substantial issues of fact based on the same conduct as that which he charged as unfair labor practices in the complaint against Respondent in Case 3-CA-5699, and he accordingly issued an order consolidating the two cases for the purposes of hearing and decision. TREADWAY INN 53 ]Pursuant to due notice, these consolidated cases were tried before me in Binghamton, New York, on Septem- ber 19 and 20, 1974. Upon the entire record and on my observation of the witnesses and their demeanor, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent is a New York corporation which is en- gaged, inter alia, in the operation of a hotel at 8 Hawley Street, Binghamton, New York. During the past year, the Respondent received in excess of $500,000 in gross revenues from the operation of the said hotel, and it purchased and received goods, supplies , and materials valued in excess of $50,000 which were transported to the hotel from states of the United States other than the State of New York. Based on the foregoing, 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. III. THE UNFAIR LABOR PRACTICES A. The Issues Presented 8-hour day, and the Respondent permitted them to go home when they properly completed their work in the rooms to which they were assigned by Bond.' It is not disputed that most of the maids regarded their ability to go home when their work was completed as "an important advantage." The Respondent furnished uniforms which the housemaids were required to wear, it provided them with free meals during their working hours, and it gave them six paid holidays each year. Upon the completion of their room cleaning assignments at 2 p.m. or 2.30 p.m. each day, the Respondent's housemaids customarily gathered in Housekeeper Bond's office and waited there before going home until the inspectors reported that their "rooms were done right," and that they "didn't have to go and do anything over." On one such occasion in late April 1974, Patricia Sager, who then was employed by the Respondent as a housemaid ,2 and four other housekeep- ing employees were in Bond's office "talking about the Union,"3 when they were told by Housekeeper Bond that "if the Union got in, we would lose our free meals, our paid holidays and [would have to] buy our own uniforms." Penny Clapper replied that " we [now] wash our own uniforms," and left the room. A few minutes later, Sager commented that she "was tired at the end of the day." Bond retorted, "if you're tired now, if the Union gets in, you're going to work eight hours a day," and she added that the maids would be required to clean a specified number (sixteen to eighteen) rooms in each 8-hour day. This evoked the comment by Housemaid Gladys Kahn,- a slower worker, that she "didn't want the Union to get in because she couldn't do the rooms she had to do now."' The complaint and the Union's objections to conduct af- fecting the results of the election charge the Respondent with unlawfully interrogating employees regarding their union sympathies and desires, and with threatening employees with loss of existing benefits if the Union won the Board-con- ducted election. The testimony adduced in support of the complaint and the Union's objections is, to a great extent, controverted by the Respondent's witnesses . There is thus presented for resolution primarily a question of the credibility of the witnesses' testimony . There is also presented for deter- mination the issue of whether the testimony as credited is sufficient to establish the alleged unfair labor practices and the Union's objections, and if so, whether the Respondent's conduct requires the setting aside of the results of the elec- tion . Another issue which requires determination is whether Estelle Ray, the Respondent's head banquet waitress, is a supervisor for whose statements the Respondent can be held responsible pursuant to Section 2(11) and (13) of the Act. B. The Alleged Threats to Withdraw Existing Benefits 1. The threats by Housekeeper Irene Bond The unit for which the Union seeks representative status includes the Respondent's housekeeping employees. At the times material herein, the Respondent employed about 25 or 30 housemaids to clean, make up beds, change the linens, et cetera, who worked under the supervision of Housekeeper Irene Bond. The maids were not required to work a full ' The Respondent also employed inspectors who checked the rooms after the maids completed their work to see that the rooms had been properly serviced 2 She quit on May 3, 1974 , because of her advanced pregnancy 3 The other four were Penny Clapper , Gladys Kahn, Corrinne Herron, and Betty Hisington 4 The findings above are based on the testimony of Sager and Clapper whom I regard as reliable and credit in these respects, notwithstanding that they could not recall other aspects of the conversation which took place in Bond's office that day. Clapper, like Sager, quit her job of room inspector for the Respondent in late May because of pregnancy and problems at home There is no evidence, nor any indication by their demeanor, that either Sager or Clapper, have any animus towards Bond or the Respondent, and they both impressed me as truthful witnesses The Respondent contends that Sager's testimony should not be credited, inter ale, because she testi- fied at the hearing that she told "a lot of people" what Bond had said, and her affidavit in this respect stated that other than telling two employees, she had "no knowledge that any other maids (sic) would have-found out what Bond said in her office." In respect to this conflict, Sager admitted that her affidavit was incorrect, and she explained to my satisfaction that on later reflection on "what happened exactly," she recalled that she had discussed this event with "a lot of other maids ." I am persuaded by Sager's explana- tion, her demeanor, and the absence of any motive for her to dissemble, that her testimony at the hearing was truthful and worthy of credence. Housekeeper Irene Bond , who quit the Respondent's employ on July 13, 1974, categorically denied that she told any housekeeping employee that if the Union got in, she would have to buy her own uniforms, or would lose her free meals and paid holidays Bond admitted that she discussed the possibility that under , the Union, the housemaids might have to work an 8-hour day and a 40-hour week Her version of this discussion was that she told the maids that the girls at the Sheraton Hotel, a union establishment, usually worked an 8-hour day and a 40-hour week, and that if the Union got in at the Respondent's premises, she did not know whether "it would be a forty hour week or [an] eight hour day or split up," she "would have to wait" until the Union told her "what I [Bond] had to do " I do not credit either Bond's denials or her version of what she said about longer working hours, Continued 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Contentions and conclusions in respect to Bond's threats - - As found above, Bond told a group of housekeeping em- ployees that if the Union got in , the employees would have to buy their own uniforms, they would lose their free meals and paid holidays , and they would have to work longer hours. These statements clearly were not merely predictions of the effects of unionization beyond the Respondent's control, but rather were threats of reprisal action which the Respondent would take if the employees designated the Union as their collective-bargaining representative.' They thus clearly con- stituted - interference with, restraint, and coercion of em- ployees in the exercise of rights guaranteed by Section 7 of the Act, and the Respondent thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. The Respondent contends that these threats do not war- rant a remedial order because they were made "at least six weeks prior to the election," they were "rectified" by its innkeeper's explanations of "the collective bargaining pro- cess," at meetings with the employees, and because there is no evidence "that Bond's statements had any effect upon the conduct of the election."6 I regard this contention as devoid of merit. There is no evidence that the Respondent at any time repudiated the threats made byi Bond , or "rectified" the unfair labor practices which she committed on its behalf. To the contrary, the Respondent's literature told the employees that: Bargaining on a Union contract does not start from a base of your present wages and benefits. All present wages and benefits are as much a subject of negotiations as are any increases' [Emphasis supplied.] The Respondent thus emphasized that selection of the Union by the employees as their representative might, as Bond had threatened, result in the loss of current benefits. Inasmuch as the Respondent's unfair labor practices committed by Bond prior to the election have never been repudiated, rectified, or remedied, I regard a remedial order to be necessary. 3. The supervisory status of Head Banquet Waitress Estelle Ray The Respondent employs eight or nine full-time banquet waitresses, and four to six part-time banquet waitresses, to. for I regard her testimony as lacking in candor, occasionally inconsistent and self-contradictory, and generally unreliable. For example, on cross- examination, after first conceding that Housemaid Gladys Kahn was a slower worker "right around that time," and was "maybe a couple of rooms behind [other employees]," she then categorically denied that Kahn was one of the slower workers. Similarly, after categorically denying that she "ever had any discussions with these employees regarding paid holidays," she subsequently testified that she told "the girls" that she "wouldn't know until after the election" whether "they would be still getting their paid holidays " Bond also first denied participating in meetings "with management people about the union before the election," and then immediately thereafter, ad- mitted attending a meeting at which the subject was discussed. Based on all the foregoing, as well as her demeanor, I credit Bond's testimony only to the extent that it accords with that of Sager and Clapper credited above 5 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-620(1969). 6 Resp brief, pp 9-12. 7 Resp Exh 1, p 2. serve special group breakfasts, luncheons, and dinners which are held "almost every day" at-the hotel. The Respondent also utilizes five or six porters for these affairs whose duties include setting up the special dining room, the tables, and chairs. These employees work under the general supervision of Mr. Dillon, the Respondent's banquet manager, and Rob- ert Earl, his assistant. In August 1973, Innkeeper Frank Monforte appointed Banquet Waitress Estelle Ray to be Head Banquet Waitress, and he raised her pay at that time from $1.35, which the other waitresses received, to $1.50 per hour.' As previously noted, the General Counsel contends that Mrs. Ray is a supervisor of the Respondent and its agent for whose statements it is responsible under Section 2(11) and 2(13) of the Act. According to Mrs. Ray's. uncontroverted testimony which is credited in these respects, her job is to coordinate the work of the other banquet waitresses, to "make sure they report for work," to see that they get the displays and supplies they need, that salvageable food stuffs which can spoil, such as butter'and cream, is properly re- turned to the kitchen for refrigeration when the meal is over, and that the banquet room and area are cleaned before the waitresses leave. The assignment ' of waitresses to work is made by Banquet Manager Dillon. If a girl so appointed is ill and cannot work, the procedure requires her to call either Mr. Dillon or Mr. Pannella,9 but if neither of them is avail- able, Mrs. Ray "replaces her with another-girl that was not scheduled to work that party." On four or five occasions since her promotion to head banquet waitress, Mrs. Ray has inter- viewed applicants for the job of banquet waitress, and based upon her favorable recommendation after such interviews, applicants have been hired by Banquet Manager Dillon. Ray has also, in emergency situations when Dillon was not availa- ble, allowed banquet waitresses to leave work early. Mrs. Ray attends the Respondent's weekly staff meetings of its depart- ment heads. No other banquet waitresses are invited to attend these meetings. All of the foregoing persuades me that Mrs. Ray has been invested by the Respondent with at least some of the indicia of a supervisor set forth in Section 2(11) of the Act, and inasmuch as the attributes of supervisory status described in that section are in the disjunctive, I find that Mrs. Ray is a supervisor within the meaning of the Act for whose state- ments the Respondent is responsible. 4. The alleged threat by Head Banquet Waitress Estelle Ray The Respondent adds 15 percent to its bills for banquet functions for gratuities to the employees who service the affairs. Seventy-two percent of the amount of such gratuities is divided among the waitresses who served the meal, 5 per- cent goes to the porters, and the rest is given to the banquet manager. A couple of days before the Board election held on June 14, 1974, after serving a dinner function at the hotel , a number of banquet waitresses and porters sat down to eat their meal, B The hourly rate of the waitresses represents only about one third of the compensation for their work. The other two thirds comes from gratuities which they receive as described infra. 9 The record does not disclose Pannella's title or status with Respondent. TREADWAY INN and they discussed the Union and the benefits it would pro- vide for banquet service employees, "and what the hotel gave as fir as the benefits."10 One of the waitresses asked Head Banquet Waitress Estelle Ray about "the question of tips," and after stating how tips were allocated by the Respondent, Mrs. Ray said that "if the union were (sic) voted into the house," it would reduce the number persons which each wait- ress would be permitted to serve, that the Respondent would therefore have to employ more waitresses to serve the func- tions, and the amount of the tips which each waitress would get "would be less."11 5. Contentions and concluding findings in respect to Mrs. Ray's alleged threat The complaint alleges and the General Counsel contends that Mrs. Ray's statement to the banquet waitresses and port- ers "threatened employees with loss of benefits and other reprisals if they supported , gave assistance to, or joined the Union," and that the Respondent thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act,12 I perceive no merit in this allegation. The statement of Mrs. Ray contained no suggestion that the Respondent would take any action to reduce the amount of the waitresses' tips if they designated the Union as their representative. To the contrary, Mrs. Ray merely expressed her opinion as to what would result from what she believed to be the Union's policy, and no testimony was adduced that Mrs. Ray's statement was a misrepresentation of that policy. Under the circumstances, I do riot regard her statement to be either a threat of reprisal by the Respondent, coercive, or misrepresentative of union policy. I therefore will recommend dismissal of the complaint to the extent that it is based on Mrs. Ray's statement to the waitresses. C. The Interrogation of Employees Regarding Their Union Sympathies Three employees testified that while they were working at the Respondent's hotel, they were interrogated by Assistant Innkeeper Theodore Wilson regarding their union sympa- 10 In a circular dated May 30, 1974 (Resp. Exh. 2), the Union had stated that its contract with the Treadway Inn of Chicopee, Massachusetts, pro- vided' that Banquet waiters and waitresses are paid by the function . Breakfasts and luncheons $7.50, droners and banquets $7.20, dances $10 00; the gratuity, 15% of total bill goes to serving people only, 12% to waitresses and waiters, 3% busboys 11 The findings and quotes in the preceding paragraph are based on the testimony of Thomas Gdovin, a former banquet porter of the Respondent, whom I regard as a truthful witness and credit in these respects . Mrs. Ray admitted that a discussion of tips , took place after a dinner function at the hotel the night before the Board election According to Mrs Ray , however, she told the employees only how the Respondent divides the gratuities, and she denied that she said that with the advent of the Union, more waitresses would be required , and the share of each in the tips would thus be less I regard Gdovin's testimony in these respects as more reliable than Ray's and I thei efore credit her testimony about this incident only to the extent that it accords with that of Gdovin. i2 See par. VI(a) and VII of the complaint The Union bases its Obi. 9 to the conduct of the election on the same conduct. 55 thies. According to Julie Kilts, one of the Respondent's housemaids whose testimony I credit, in the latter part of May 1974, Assistant Innkeeper Wilson came into one of the bedrooms on the fifth floor which she was cleaning, and said, "I would like to ask you some questions." He then asked Kilts, "Are you for the Union or against the Union?" Kilts replied, "I am undecided." Wilson then put a cipher in the column marked "undecided" on a piece of paper which was on a clipboard which he was carrying, and left. Kilts further credibly testified that there were two additional columns on the paper on which Wilson made his notation, one marked "yes" and another marked "no," and that there were some ciphers in each column. Karen Laurinaitis, a former "chambermaid" employed by the Respondent, credibly testified that in about the middle of May, while she was cleaning one of the rooms on the fifth floor of the hotel, Assistant Innkeeper Wilson came into the room'holding a clipboard, and asked her, "How are you going to vote for the union, answer yes or no?" Laurinaitis replied, "that is my personal business." Wilson asked "You're unde- cided then?" Laurinaitis responded, "Yes, I am undecided," and Wilson left. Donald Smith, who now works in the Respondent's main- tenance department, credibly testified that in late May 1974, while he was working in a room on the fifth floor of the hotel, Assistant Innkeeper Theodore Wilson came into the room, told him "that he [Wilson] was taking his own poll," and asked Smith what he "thought about the Union," and whether he was "for it [the Union] or against it or unde- cided?" Smith answered that he was undecided. Smith fur- ther credibly testified that Wilson "made a motion as [if] to write something down," but that he was not sure whether Wilson "wrote anything." Assistant Innkeeper Wilson admitted that he questioned not only the three employees "on the upper floors" who testified as found above, but also employees in the "kitchen," "the dishwasher," "the dining room," "a couple of banquet porters," about "fifteen or twenty people." Wilson first de- nied that he asked any employee either how he or she was going to vote, or whether they were for or against the Union. He then testified that he merely asked them what they thought about the literature which the Respondent and the Union had distributed to them during the preelection period. In respect to Julie Ann Kilts, Wilson testified that he asked her, "Have you received the hotel literature that we have been sending for the last couple of months; how do you feel about the Union?" and that she replied, "I don't think I have to tell you anything." In respect to Laurinaitis, Wilson first admit- ted that he asked her "how she was going to vote," and then later denied that he did so, and testified that he merely asked her, "what do you think about the literature that you have been receiving from the hotel and the Union? Do you have any advice on it?" According to Wilson, Laurinaitis replied, "I am undecided." Wilson also admitted that he carried a clipboard with him during his interrogation of the employees about their views of the campaign literature, but he denied that he recorded their responses thereon, and he testified that he only put down the room number in which the questioning occurred. I regard Wilson's testimony about his interrogation of employees as self-contradictory in some respects, patently implausible in others, and in general unreliable, and_I there- 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore credit it only to the extent that it constitutes an admis- sion against the Respondent's interest, and when it accords with that of Kilts, Laurinaitis, and Smith credited above. D. Concluding Findings Regarding the Interrogation of Employees As found, above, Assistant Innkeeper Wilson by his own admission conducted a poll of about 15 or 20 employees in which he asked them what they "thought" about the cam- paign literature which the Respondent and the Union had distributed, and "how do you feel about the Union."13 These questions were asked in the context of a vigorous cam- paign in which the Respondent let the employees know, as it had a right to do, that it was opposed to the Union. Wilson's questions clearly were designed to induce employees to reveal their views about the Union.14 In the light of the pendency of the representation proceeding, and the imminence of the Board election, the Respondent had no legitimate need to ascertain whether a majority of the employees desired repre- sentation by the Union. Wilson did not convey to the em- ployees the purpose of his poll, nor did he give them any assurance against reprisals. In the light of the foregoing, even by his own testimony, Wilson's poll was coercive of employee rights, even if he didn't ask them how they were going to vote at the election, which I have found that he did.15 Accordingly, I find that by Wilson's interrogation of em- ployees regarding what they thought of the Union, and how they were going to vote, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and engaged in further unfair labor practices within the meaning of Section 8(a)(1) of the Act.16 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 I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and com- merce 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. 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. 2. Local 27, Hotel and Restaurant Employees and Bartend- ers Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By coercively interrogating employees regarding their union sympathies, desires, and voting intentions, and by threatening loss of existing privileges and benefits if the em- ployees designated the Union as their representative, all to discourage support of the Union, the Respondent has inter- fered 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 the conduct set forth above, the Respondent also has interfered with and precluded the exercise of a free and un- trammeled choice in the Board election held on June 14, 1974. 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 3-RC-6021 I have found above that between the date of the filing of the representation proceeding and the election, the Respond- ent engaged in unfair labor practices which interfered with and precluded a free choice by employees at the Board elec- tion which was conducted on June 14, 1974. 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 (1 and 3) are sustained, and I recommend that the election be set aside, and that the representation proceeding be remanded to the Regional Director for the purpose of conducting a new election at such time that he deems circum- stances permit free choice of a bargaining representative. Upon the basis of the foregoing findings of fact and conclu- sions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDER" Respondent, Treadway Inn, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees regarding their union sympathies, desires, or voting intentions. (b) Threatening employees with loss of existing privileges or benefits, or with other reprisals, to discourage union mem- bership or support. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their right to 13 These quotes are from Wilson's testimony 14 Spartus Corporation, 195 NLRB 134 (1972). 15 Struksnes Construction Co., Inc, 165 NLRB 1062 (1967) 16 Kay Corporation d/b/a Holiday Inn of Chicago-South, Harvey, 209 NLRB 11 (1974); Spartus Corporation, supra; Struksnes Construction Co., supra. / 17 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. TREADWAY INN self-organization, to form labor organizations, to join or assist Local 27, Hotel and Restaurant Employees and Bartenders Union, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights maybe affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its premises located in Binghamton, New York, copies of the notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Re- gion 3, after being duly signed by Respondent, shall be posted by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 3, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the Union's objections to con- duct affecting i the results of the election in Case 3-RC-602l are sustained to the extent indicated above, and that a new election be held at a time and place to be deter- mined by the Regional Director. 18 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 OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 57 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 representative of their own choosing To act together for collective bargaining or other mutual aid or protection and 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, desires, or voting intentions. WE WILL NOT threaten you with loss of existing bene- fits and privileges, or other reprisals, in order to discour- age 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 em- ployment through Local 27, Hotel and Restaurant Em- ployees and Bartenders Union, or any representative of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our em- ployees 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. TREADWAY INN