Holiday Inn

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joplin Motel Management Company d/b/a Holiday Inn and Hotel, Motel, Restaurant and Cafeteria Employees and Bartenders Union, Local 437 affili- ated with Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO. Case 17-CA-6246 September 25, 1975 DECISION AND ORDER On June 13, 1975, Administrative Law Judge Rob- ert Cohn issued the attached Decision in this pro- ceeding. 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. 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.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Joplin Motel Manage- ment Company d/b/a Holiday Inn, Joplin, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. i 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. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: This case was heard before me in Joplin, Missouri, on February 18 and 19, 1975, upon a complaint and notice of hearing dated December 31, 1974, issued by the General Counsel of the National Labor Relations Board through the Regional Di- rector for Region 17.1 The principal issue raised by the i The original charge was filed October 7, 1974, and was amended on December 19, 1974 complaint is whether Joplin Motel Management Company d/b/a Holiday Inn (herein Respondent or Inn) unlawfully solicited its employees to withdraw from the Union,2 their collective-bargaining representative, and thereafter refused to bargain with said Union because it did not represent a majority of the employees in an appropriate unit. Respondent, by its duly filed answer, generally admitted the jurisdictional allegations of the complaint, and admit- ted that it refused to bargain with the Union on and after September 30, 1974,' but denied the commission of any unfair labor practices. At the hearing, all parties were represented, and were given full opportunity to present evidence relative to the issues, to examine and cross-examine witnesses, to argue orally on the record, and to file written briefs. Oral argu- ment was waived, but helpful, posthearing briefs have been received from counsel for the General Counsel and from counsel for the Respondent,4 which have been duly consid- ered. Upon the entire record in the case, including my obser- vation of the witnesses and their demeanor,5 and the entire record in the case, I make the following: FINDINGS AND CONCLUSIONS 6 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background At all times material, Respondent has owned and oper- ated a motel in Joplin, Missouri, known as the Holiday Inn. In 1963 or 1964, following an election, Respondent recognized the Union as the collective-bargaining agent for all its employees excepting office clerical employees and supervisors.7Since 1965, there have been successive 3-year 2 Hotel, Motel, Restaurant, and Cafeteria Employees and Bartenders Union, Local 437 affiliated with Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO. a All dates hereinafter refer to the calendar year 1974, unless otherwise indicated 4 Respondent also filed a motion to correct transcript in certain respects. No objection having been filed, the motion is hereby granted. 5 The testimony of all witnesses has been considered, which includes their demeanor while testifying. The absence of a statement of resolution of a conflict in specific testimony, or of an analysis of such testimony, does not mean that such resolution or analysis was not made . See Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161 (1966). 6 There is no issue as to the Board's jurisdiction, or of the status of the Union as a labor organization . The complaint alleges sufficient facts, which are admitted by answer, upon which I may, and do hereby, find that Re- spondent is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the National Labor Relations Act, as amended (herein the Act), and that the Union is a labor organization within the meaning of Sec. 2(5) of the Act r The complaint alleges the following unit description as constituting a unit appropriate for collective bargaining under the Act. Although this alle- gation is denied in Respondent's answer, it was not contested by evidence on the record, or in Respondent's brief. Accordingly, I find that the follow- ing constitutes a unit appropriate for collective bargaining within the mean- ing of Sec 9(b) of the Act: All employees employed at the Joplin, Missouri motel and restaurant of Respondent including maids, housemen, bellmen, porters, washers, extractors, feeder, shakers, markers, maintenance helpers, yardmen, waitresses, cashiers, busboys, bartenders, bar waitresses, cooks and cook's helpers, bakers, pantry workers and helpers, potwashers and 220 NLRB No. 106 HOLIDAY INN collective-bargaining agreements between the Company and the Union, the last such agreement running from Oc- tober 1971 to October 14, 1974. Specifically, as respects the term thereof, such agreement provides in article XXIII thereof, as follows: ARTICLE XXIII SCOPE AND TERMINATION OF AGREEMENT This agreement, which is a complete Agreement, and disposes of all matters subject to collective bar- gaining, except grievances, for its term, shall be in full force and effect from Oct. 17, 1971 to and including Oct. 14, 1974, and thereafter for successive one-year periods unless one of the parties hereto at least 60 days before any annual anniversary date shall notify the other party hereto in writing of its desire to modify or terminate the same. Pursuant to the foregoing article, the Respondent's man- ager (Innkeeper), R. L. VanDeWiele, on August 9, dis- patched a letter to Mrs. Reta Nelson, business agent of the Union, notifying the Union "of the Company's desire to terminate said labor agreement . . . . (and) . . . . offer- (ing) to meet and confer with appropriate union represen- tatives for the purpose of negotiating a new contract." 8 As a consequence of said letter, the first bargaining session was held between the parties on September 17. However, the only matter of importance which occurred at that meet- ing was that the Union presented the Company with its proposal for altering the existing agreement, and this pro- posal was briefly discussed without resolution of any is- sue? The second meeting between the parties took place at the Holiday Inn on September 23. Present for the Union were its business agent Reta Nelson and International Representative Paul Diles, both of whom had been present at the first meeting ; present for Respondent were VanDe- Wiele and Labor Counsel Allan Bioff. At that meeting, the Union proposed deletion of article II of the agreement as respects part-time workers.10 At that point, Bioff advised that Respondent had been approached by several employ- ees who apparently did not want to become members of the Union and therefore Respondent proposed substituting the union shop with a maintenance-of-membership clause in the contract. Diles objected to this proposal, pointing out to the company representatives that the employees had up to August 15 to file a decertification petition if they were unhappy with the Union, but that they had not done so. The remainder of the meeting was taken up with a dis- cussion of other articles in the proposal, but no agreement was had, and another meeting was scheduled for October dishwashers, EXCLUDING office clerical employees , guards and supervisors as defined in the Act s G.C. Exh. 3. 9 By prearrangement , the Company's principal negotiator, i.e., its labor counsel, was not present at the first meeting. 10 Art. 11 of the contract deals with union security and establishes a union shop at the Inn. That is to say, any new employee is required to become a member of the Union on the 31st day following his (or her) date of employ- ment or the effective date of the agreement, whichever occurs later Howev- er, it excluded part-time workers who worked less than 2 days per week 701 2. However, that meeting never took place because on Monday, September 30, Bioff informed Diles that on the preceding Friday, September 27, VanDeWiele had been presented with a petition signed by 24 employees stating that they no longer wanted to be represented by the Union; that this constituted a majority of the bargaining unit and therefore the Company was refusing to bargain from that point. Diles asked Bioff to reduce this position to writing, which was done by letter dated October 1. In such letter, the Company took the position that it would be in violation of the Act if it continued to bargain in the face of the filing of such petition by a majority of the unit employ- ees, and requested the Union to file a petition with the NLRB for an election. The Company promised to consent to an election to be held as promptly as possible under NLRB procedures." However, the Union, claiming that Respondent inspired and instigated the petition in an effort to undermine the Union status as collective-bargaining representative, filed the charge in the instant proceedings on October 7. Thus, it is the claim of the Union and of the General Counsel that during the spring and summer of 1974, Respondent, by its agents and supervisors, actively and unlawfully solicited its employees to renounce the Union, and having successfully secured such renunciation in the form of the aforesaid petition, declined to bargain further with the Union, in violation of Section 8(a)(1) and (5) of the Act. As previously noted, Respondent denies having engaged in any such conduct, and claims that its refusal to bargain was prompted solely by spontaneous and objective evidence indicating that its employees no longer desired the Union to represent them. We now come to an examination of the evidence respecting these issues. B. Alleged Interference, Restraint, and Coercion The first evidence in the record that Innkeeper VanDe- Wiele was giving serious thought to laying the ground work for raising a question concerning representation at the ex- piration of the current contract between the Company and the Union came through the testimony of Jean Ochsen- bein, the head hostess in the dining room, and of Barbara Walton, a waitress. Ochsenbein testified that VanDeWiele asked her if "we had anyone who would attend the union meetings and report back to him their strength and weak- ness and how they felt about having a union." She re- sponded that she thought she could find someone that would go, and mentioned the names of two employees, Barbara Walton and Judy Carder. Walton testified that in early spring VanDeWiele asked her what she thought about the Union and she replied that "she could take it or leave it." However, in latter May, VanDeWiele requested Walton to go to the June meeting of the Union and report back to him what occurred. She did so, having been al- lowed off from work with pay that evening, by Ochsenbein, for that purpose. According to her testimony, she returned to the Inn after the meeting and reported to VanDeWiele, as he requested. In early July, a conversation was held in the coffee shop at the Inn among Mr. and Mrs. VanDeWiele, Walton, and ii G.C. Exh. 6. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ochsenbein. At that meeting, VanDeWiele asked Walton if she would solicit employees to sign a petition to get rid of the Union. He told her that it would have to be done in such a way that VanDeWiele would not be connected with it, but that the Company would pay for a lawyer to repre- sent her. Walton said that she would consider the matter. On Sunday, July 14, VanDeWiele approached Walton and Ochsenbein in the hallway between the coffeeshop and the banquet room and advised that work would have to com- mence immediately on getting the petition signed because the contract with the Union would be expiring in about 90 days. However, Walton demurred, stating that if VanDe- Wiele would look around he would not see too many old faces (meaning that the older employees who were appar- ently against the Union had terminated their employment at the Inn) and she did not think that she could help him. 12 The foregoing conduct by an employer to procure an employee for the purpose of spying on the union activities of its employees, and circulating an antiunion petition, clearly constitutes interference , restraint, and coercion within the meaning of Section 8(a)(1) of the Act. I so find. Walton testified that in early July she was at work in the dining room "setting up her station," along with employee Sandra McGuirk, when VanDeWiele approached and stat- ed that if it was not for the damn union some of you girls that deserve higher wages would be getting them .13 I find that the foregoing statement constitutes an implied promise of benefits in return for refraining from union activities, in violation of Section 8(a)(1) of the Act. Around the end of June, Patricia Alsenz, a day barten- der, had a conversation with her supervisor, Vada Wick- man, concerning the former's vacation period. Wickman told Alsenz that the latter could take one week of her vaca- tion during the first week of July, but suggested that the second week of vacation be taken after September since "by that time the Union would be voted out, [and] Susan [Woolever] would no longer be with us and that in the future, there would be no trouble scheduling my vaca- tion." 14 I find the foregoing statement to constitute an implied promise of benefit to an employee in return for refraining from assisting and supporting the Union, in violation of Section 8(a)(1) of the Act. During the late afternoon or early evening of September 11 The foregoing findings are based on the testimony of Walton and Och- senbein, whom I credit over VanDeWiele's denial of ever having engaged in such conduct. Both employees impressed me on the stand as honest and candid persons, and I do not believe that either was fabricating her testimo- ny, although I have taken into consideration the fact that VanDeWiele discharged Ochsenbem in August. In addition to these considerations, I have taken into account the failure of Respondent to call as a witness Mrs. VanDeWiele who, the record shows , lived at the Inn with her husband, and was not shown to be unavailable as a witness. 13 Walton's testimony, which in this respect is corroborated by McGuirk, is credited over VanDeWiele's denial. 14 Testimony of Alsenz . Susan Woolever was president of the Union at the time . Although Wickman denied having such a conversation with Al- senz, I credit the latter. In addition to demeanor considerations, I note that Alsenz was an employee of Respondent at the time of the hearing, and was testifying adversely to the Respondent notwithstanding . See Georgia Rug Mill, 131 NLRB 1304, In . 2, enfd. as modified 308 F.2d 89 (C.A. 5, 1962); Astro-Systems, Inc., 203 NLRB 49 (1973); Federal Envelope Company, 147 NLRB 1030, 1036 (1964) 25, a small group of employees was gathered at the bar at the Inn at which time one or more of them signed a peti- tion which had as its purpose to decertify the Union as the representative of the employees at the company (of which more, anon). Present were employees Virginia Sheets, Sue Stone, Chris Griffin, and Supervisor Vada Wickman. At that time Vada Wickman stated that if the employees did not have a union they could make more money and be paid according to their individual capabilities. 151 find the foregoing statement of Wickman to constitute a promise of benefits to employees in return for refraining from sup- porting or assisting the Union, and therefore violative of Section 8(a)(1) of the Act. In late September, Janette Sweet (who was at that time employed as a maid at the Inn) had a conversation with her superior, Opal Edwards, respecting union activities such as a possible strike, picket lines, and union meetings. Sweet stated that she did not attend union meetings to which Edwards responded that that was "okay-anything she [Edwards] wanted to find out, she could find out by sending Grace Smith." 16 I find the foregoing statement of Edwards to constitute the creation of an impression of sur- veillance of union activities, in violation of Section 8(a)(1) of the Act. C. The Circulation of the Antiunion Petitions From September 25 until September 27, a petition seek- ing dissolution of the Union was circulated among Respondent's workers by three employees: Sue Stone, San- dra McGuirk, and Rose Kime.17 The circulation of the pe- tition occurred in substantial part during the working hours of the employees, and when it was handed to Inn- keeper VanDeWiele by Sue Stone on the evening of Sep- tember 27, it contained the signatures of 24 employees. Approximately 1 week later, a second petition was circu- lated by the same three individuals, the purpose of which was to cancel union dues checkoff by Respondent.ls That petition was circulated in substantially the same manner as the first, and 28 names were secured on it. On the af- ternoon of October 5, Sue Stone attempted to serve this petition on Reta Nelson, the union's business agent, but the latter refused to accept it. Whereupon, Stone later left it in Nelson's mailbox. As previously noted, it is the contention of the General Counsel and of the Charging Party that VanDeWiele insti- 15 The foregoing finding is based on the testimony of Vriginia Sheets, who impressed me as an honest and candid witness. Griffin was not called as a witness and Sue Stone, who was called as a witness by Respondent, testified that she could not "say positively what was attributed to Wickman by Sheets because 'it became a bigjoke after a while."' The credibility of Stone as a witness will be discussed more fully, post. W The foregoing finding is based on the credited testimony of Sweet over the denial of Opal Edwards. Sweet did not impress me as a witness who would fabricate such a conversation. 17 The exact heading on the petition stated: "We the undersigned employ- ees of Holiday Inn feel that there is no necessity for a labor union in our organization and seek its dissolution" (G.C. Exh. 9). The exact language of the caption of that petition was: "We the undersigned employees of Holiday Inn wish to revoke the authorization we signed allowing union dues to be deducted from our weekly paychecks" (Resp. Exh. 5). HOLIDAY INN gated the promulgation and circulation of the petitions, and utilized the first one as a basis for calling off the collec- tive-bargaining negotiations then in progress between the Company and the Union . Respondent denies this, and contends that the petitions were spontaneously brought about by the extreme dissatisfaction of the employees with the Union. It argues vigorously in its brief that the sole evidence in support of the contention of the General Coun- sel and of the Charging Party was supplied by Sandra Mc- Guirk; that her testimony should not be credited because she admittedly lied under oath, and therefore the com- plaint cannot be sustained . After due consideration of all the evidence in the record, I cannot agree with 'Respondent's position. In the first place, the facts cannot be considered in isola- tion but in the context of the labor relations situation as it existed in latter September . I have found that in prior months, VanDeWiele had sought out an employee or em- ployees to circulate a petition, without success. Although VanDeWiele had apparently received several complaints by employees respecting union representation (or the lack thereof) including particularly the forced payment of union dues, he had no documentation thereof , and was no doubt advised by competent legal counsel that some sort of ob- jective evidence of such dissatisfaction was required before Respondent could legally question the Union's status as collective-bargaining representative. Accordingly, being aware on August 9 that the proper time for employees to file a decertification petition with the NLRB had almost expired, VanDeWiele "opened" the contract (which would have otherwise, according to its terms, renewed itself for a year in the absence of notification by the Union) and sub- sequently secured the employees to obtain the "evidence." Thus, Sandra McGuirk testified that, on or about Sep- tember 24, VanDeWiele asked Sue Stone and herself "to get a petition started to get the union out"; that he provid- ed them with a list of names of employees to solicit (and employees not to solicit) and promised that "if we needed any help, that his lawyer would be behind us"; 19 that both Vada Wickman and Opal Edwards, bar manager and housekeeper, respectively, knew about the circulation of the petition because they were present when some of the employees under their supervision signed it; and that dur- ing the 3-day period when signatures were being solicited, VanDeWiele inquired about its progress and advised that 24 to 25 names would be needed. Bar Manager Vada Wickman acknowledged that she was aware of the petition being signed during this period, but denied that she told VanDeWiele about it. However, in spite of all of this activity, VanDeWiele insisted that the first time he was aware of the circulation of the petition was when Sue Stone handed it to him on the evening of September 27. I believe this to be, in this small organiza- tion, highly improbable. Sue Stone denied the pertinent aspects of Sandra Mc- Guirk's testimony respecting VanDeWiele's knowledge of and participation in the circulation of the petition. Al- though deeply prejudiced against the Union since she had 19 The similarity of this remark to VanDeWiele's earlier statement to Barbara Walton is noted. 703 been employed at the Inn for approximately 1-1/2 years, and having talked about doing something actively to break it during that period, she had not taken any such action (even to the extent of talking to VanDeWiele about her dissatisfaction) prior to September 24, when, according to her testimony, she prepared the petition and, with the assis- tance of McGuirk and Kime, circulated it. She further tes- tified that the language of the caption of the petition was her own since she sought no information from any other person as to how to "get rid of a union";20 that she typed the caption of the petition on the typewriter of the secre- tary to VanDeWiele during a coffeebreak, but that the lat- ter did not know the purpose or content of the document typed;21 that she is unaware of any list that VanDeWiele gave in connection with the petition, although she had a list made up from names that she knew which was added to by McGuirk and Kime; and that the reason for circulating Petition No. 2 was not, as McGuirk claimed-i.e., because VanDeWiele suggested it-but because she (Stone) had gone to a union meeting after the circulation of Petition No. 1 and she determined that she did not want to contin- ue giving the Union $3.50 a month. It is true, as Respondent argues, that Sandra McGuirk admittedly lied on her testimony during the course of this proceeding. That is to say, in the first affidavit given to a Board agent during the course of the investigation of the charge, she stated that no one in the management of Re- spondent "suggested the petitions or helped us get the em- ployees' signatures on the petition." 22 That affidavit is dat- ed November 20, and was given to the Board agent while McGuirk was an employee of the Inn, and she was given permission by VanDeWiele and his attorney to supply the Board with such a statement. McGuirk was terminated in December for visiting the lounge at the Inn while off duty, which was against Respondent's rules. Subsequently, on February 2, 1975, McGuirk gave a second statement to the Board agent in which she recanted that much of the first statement above referred to. In the second statement, she said that as VanDeWiele released her to give the first state- ment, he said privately, "make sure you keep me out of jail." 23 The remainder of that statement appears substan- tially consistent with her testimony given at the hearing. Although the giving of inconsistent statements is clearly a significant factor in determining credibility of witnesses, it is only one factor. I have considered that in the context of Respondent's commission of serious unfair labor prac- tices described above, it should not be considered unex- pected for an employee to give testimony which she consid- ered to be favorable to Respondent's position, particularly where Respondent's manager has made such a direct re- quest immediately prior to her giving the statement. After she has become released from economic dependence upon such an employer, it would seem natural for an honest person to want to cleanse herself for having engaged in such wrongful conduct, although I am not blind to the contention that she may have harbored some ill will toward 20 She did not go to the NLRB because she felt the people there were not unbiased 21 The secretary was not called as a witness at the hearing. 22 Rasp Exh. 8(b) 23 Resp Exh. 8(a). 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent for the discharge . Nevertheless, there appears to be no evidence of such animosity in her second affidavit since she acknowledges that the rule which she broke was "usually enforced pretty strictly." On the other hand, there are glaring contradictions, in- consistencies, and improbabilities in the narrative told by Stone and VanDeWiele, some of which have been above adverted to. One ponders why a person so clearly rabid in her antiunion views as was Stone did not at any time ex- press such views to VanDeWiele during her 1-1/2 year em- ployment at the Inn, but at a particular time in latter Sep- tember suddenly decide, on her own, and without assistance from any person, to commence the circulation of a petition to dissolve the Union. Although she character- ized herself as a "not unintelligent person," she admittedly had no instruction or information as to what legal effect such a petition would have, and made no effort to find out. This seems patently incredible in view of her enormous desire to be "unrepresented" by a union in her employ- ment. Moreover, if the petition was not desired by VanDe- Wiele at the particular time for the purpose of foreclosing further negotiations, it was not disclosed why Stone sud- denly ceased soliciting names .24 She did not claim that she had exhausted all possibilities, or even had contacted all the employees.25 Moreover, it seems highly improbable that Stone would have drawn up and circulated the second petition to revoke the checkoff of union dues merely from having attended a union meeting. She had been complaining about the com- pulsory payment of union dues since the inception of her employment with Respondent. Furthermore, I find it high- ly improbable, given the time and energy spent by Stone in circulating the petition, that she made little effort thereaf- ter to inquire of VanDeWiele what became of it. Although she admittedly had several conversations with him con- cerning the matter, she was quite vague and uncertain as to the time and content of such conversations. VanDeWiele was also careful to testify that he never attempted to con- tact Sue Stone after she handed him the petition-that Sue Stone "did mention, a few days later, something about the petition but I don't recall what the conversation was." 26 In short, it appears that these two persons were making every effort to keep the distance between them as far as possible on this subject matter. Finally, I consider it highly unlikely for Vada Wickman, who concededly was aware of the cir- culation of the petition, not to have advised VanDeWiele of the circumstance unless she was aware that he already knew about it. Accordingly, on the basis of all of the foregoing, I credit McGuirk's testimony at the hearing respecting the promul- gation and circulation of the petitions, and VanDeWiele's participating in those events. The record further confirms this conclusion through the testimony of Janette Sweet who stated that on September 25 her supervisor, Opal Ed- 241t will be recalled that McGuirk testified that VanDeWiele stated that 24 to 25 names were needed. 25 The parties stipulated that as of September 30 there were 56 employees in the bargaining unit It was further stipulated that there were a total of approximately 34 employees whose union dues were checked off in Septem- ber and October 26 Testimony of VanDeWiele wards, interrupted her work to get Sweet to sign a piece of paper for the purpose of getting "rid of the Union." Sweet signed the paper, but did not read it; however, she noticed the name of May Carr on the petition, and the record re- flects that the name of May Carr appears directly above that of Janette Sweet on the first petition (G.C. Exh. 9). About 2 weeks later, according to Sweet's testimony, Ed- wards advised her that "a couple of girls from up front" would be coming around with a piece of paper to "keep us from paying union dues out of our checks." On both occa- sions Edwards advised Sweet to be "closed mouth" about the petitions. 27 Based on all of the foregoing, I find and conclude that the evidence sustains the allegation in the complaint, as amended, that the petitions were instigated by Respondent, and that the solicitation of employee signatures was ac- complished with its knowledge and support. Such being the case, they could certainly not be utilized for the purpose of legally questioning the Union's majority status. There being no other legitimate evidence to furnish a sufficient foundation for such questioning, I find, in accordance with the allegations of the complaint, that since on or about September 30 Respondent has unlawfully refused to bar- gain with the Union concerning the terms and conditions of employment with respect to the employees in the above described appropriate unit." D. The Change of Wage Rates and Hours of Employment The complaint alleges that, on or about October 9, Re- spondent changed the wage rates and hours of employment of certain of its employees in the unit without prior notice to or consultation with the Union. The facts show that on or about such date Respondent experienced a fire in its kitchen which resulted in the closure of the restaurant for a period of approximately 32 days. There were approximate- ly 15 to 18 employees employed in the restaurant at that time. Rather than lay off such employees, VanDeWiele as- signed them to other functions such as clean-up work. Since the waitresses would be earning no tips performing such work, Respondent raised their rate of pay from 95 cents per hour to $1.90 per hour, which was the minimum wage . VanDeWiele admittedly did not notify the Union of these changes. Since I have found above that the Union was, during such time, the exclusive collective-bargaining representa- tives of the employees and that Respondent had unlawfully refused to recognize the Union since September 30, I find and conclude that Respondent unlawfully made unilateral changes in the working conditions of its employees without notification to or bargaining with the Union concerning such matters, in violation of Section 8(a)(5) of the Act.29 27 Testimony of Sweet. 28 Wanda Petroleum, Division of Dow Chemical Company, 217 NLRB No. 62 (1975). In view of the finding that it was Respondent's misconduct which gave rise to the petition upon which Respondent based its refusal to bar- gain , the cases cited by Respondent in support of its position are inapposite. As the Board has stated : "the assertion of doubt must be raised 'in a context free of unfair labor practices"' Terrell Machine Company, 173 NLRB 1480, 1480-81 enfd 427 F.2d 1088 (C.A. 4, 1970); cited with approval in Barten- ders, etc. Assn of Pocatello, Idaho, 213 NLRB 651 (1974), and in Eastern Washington Distributing Co, Inc ., 216 NLRB No. 186 (1975) 29 Wanda Petroleum, supra. HOLIDAY INN 705 11. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with the interstate opera- tions of Respondent, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW bargaining representative of its employees in an appropri- ate unit, I shall recommend that Respondent be ordered to recognize and, upon request, bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in the appropriate unit, with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment.30 Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, the Union has been the exclusive bargaining representative of Respondent's em- ployees in the following appropriate unit: All employees employed at the Joplin, Missouri motel and restaurant of Respondent including maids, house- men, bellmen, porters, washers, extractors, feeder, shakers, markers, cashiers, busboys, bartenders, bar waitresses, cooks and cook's helpers, bakers, pantry workers and helpers, potwashers and dishwashers, Ex- CLUDING office clerical employees, guards and supervi- sors as defined in the Act. 4. By refusing to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the aforesaid appropriate unit, and by altering the work- ing conditions of some of the employees in the unit without notification to or bargaining with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By soliciting employees to sign petitions for the pur- pose of ousting the Union as the collective-bargaining rep- resentative of the employees, by soliciting employees to sign a petition for the purpose of canceling union dues- deduction authorizations, by promising employees benefits in order to dissuade them from engaging in union activities or supporting the Union, by soliciting employees to spy upon union activities, and by creating the impression of surveillance of union activities of employees, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. It having been found that Respondent refused to recog- nize and bargain with the Union as the exclusive collective- ORDER31 Joplin Motel Management Company d/b/a Holiday Inn, Joplin, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with the Union as the exclusive collective-bargaining represen- tative of its employees in the above-described appropriate unit concerning wages, hours, rates of pay, and other terms and conditions of employment. (b) Making unilateral changes in the wages, hours, rates of pay, and other terms and conditions of employment without first consulting and bargaining with the Union as the exclusive bargaining representative of its employees in the aforesaid appropriate unit. (c) Interfering with, restraining, or coercing its employ- ees by soliciting them to sign petitions to oust the Union as the collective-bargaining representative or to cancel the au- thorized checkoff of union dues, by soliciting employees to spy upon the union activities of other employees, by prom- ising employees benefits to dissuade them from engaging in activities on behalf of the Union, and by creating the im- pression of surveillance of union activities. (d) In any like or related manner interfering, restraining, or coercing its employees in the exercises of rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Recognize and, upon request, bargain with the Union as the exclusive bargaining representative of the em- ployees in the aforesaid appropriate unit with respect to wages, hours, rates of pay, and other terms and conditions of employment and, if an understanding is reached, em- body the terms of such understanding in a written agree- ment. (b) Post at its motel located at Joplin, Missouri, copies 30 Although the record is not entirely clear on the point, it is presumed that the unilateral changes made in the wages and other working conditions of the waitresses in the restaurant were revoked following the resumption in restaurant operations , and that the status quo ante was restored. Under such circumstances , I shall not recommend that the unilateral changes be re- voked since they were temporary in nature. Cf. Dust-Tex Service, Inc., 214 NLRB No. 60 (1974) 31 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. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the attached notice marked "Appendix." 32 Copies of said notices, on forms provided by the Regional Director for Region 17, shall, after being duly signed by Respondent's authorized representative, be posted immedi- ately upon receipt thereof, and maintained by it for 60 consecutive days thereafter , in conspicuous places, includ- ing 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. (c) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 32 In the event that the Board 's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Ho- tel, Motel, Restaurant and Cafeteria Employees and Bartenders Union, Local 437, affiliated with Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, as the exclusive representa- tive of our employees in the following appropriate bar- gaining unit: All employees employed at the Joplin, Missouri mo- tel and restaurant of Respondent including maids, housemen, bellmen, porters, washers, extractors, feeder, shakers, markers, cashiers, busboys, barten- ders, bar waitresses , cooks and cook's helpers, bak- ers, pantry workers and helpers, potwashers and dishwashers, EXCLUDING office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT unilaterally alter the wages, hours, or working conditions of our employees without notice to and bargaining with the above -named union. WE WILL NOT solicit our employees to decertify , dissolve, or oust the above-named union as their collective -bargaining representative for purposes of collective bargaining, or solicit them to cancel their authorizations for the checkoff of union dues. WE WILL NOT promise employees benefits to dissuade them from engaging in union activities or supporting the above-named union. WE WILL NOT solicit employees to spy upon the union activities of other employees. WE WILL NOT create the impression of surveillance of union activities of employees. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of rights guaranteed under Section 7 of the Act. WE WILL recognize and, upon request, bargain col- lectively with the aforesaid union as the exclusive rep- resentative of all the employees in the appropriate unit, described above, with respect to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. JOPLIN MOTEL MANAGEMENT COMPANY d/b/a HOLIDAY INN