Roney Plaza Apartments

RONEY PLAZA APARTMENTS Roney Plaza Apartments and Hotel, Motel, Restau- rant, Highrise Employees & Bartenders Union, Local 355, AFL-CIO. Cases 12-CA-7340, 12- CA-7351. 12-CA-7468, and 12-RC-5169 September 27, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 17, 1977, Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief' and has decided to affirm the rulings, findings, 2 and conclusions of the Administrative Law Judge, to modify his remedy 3 and to adopt his recommended Order.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Roney Plaza Apartments, Coral Gables, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties. 2 The Respondent has excepted to certain credibility findings made by the Administrative L aw Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. We adopt, pro forma, the Administrative Law Judge's dismissal of allegations to which no exceptions were filed. 3 In accordance with our decision in Florida Steel Corporation, 231 NI.RB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25. 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 4 Chairman Fanning adheres to his interpretation of N.LR.B. v. Gissel Packing Co.. Inc.. 395 U.s. 575 (1969). as expressed in his dissenting opinion in Steel Fab, Inc., 212 NLRB 363 (1974)., that in these circumstances Respondent violated Sec. 8(aX5) on August 25. 1976. the date that it refused to recognize and bargain with the Union supported by a majority of unit employees. The Respondent, by thereafter engaging in serious unfair labor practices, forfeited whatever rights it might otherwise have had to insist that majority status be proven by other means. 232 NLRB No. 66 DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge: The charges herein were filed on September 13 and 20 and November 10, respectively, by Hotel, Motel, Restaurant, Highrise Employees & Bartenders Union, Local 355, AFL- CIO, herein called the Union, and copies thereof were duly served on Roney Plaza Apartments, herein called the Respondent. On October 20, the Regional Director for Region 12 issued an order consolidating cases and complaint and notice of hearing in Cases 12-CA-7340 and 12-CA-7351 alleging violations of Section 8(a)(X) and (3) of the National Labor Relations Act, as amended, herein called the Act. Thereafter, on January 4, 1977, the Regional Director issued an order directing hearing and consolidating cases in which he indicated that certain specified objections to an election held in Case 12-RC- 5169 and issues raised by charges filed in Case 12-CA- 7468 were to be consolidated with Cases 12-CA-7340 and 12-CA-7351 for hearing. On January 6, 1977, the Regional Director issued an order consolidating cases and amended complaint and notice of hearing consolidating the above designated cases for hearing and alleging additional violations of Section 8(a)(1) and (5) of the Act based on the charges filed in Case 12-CA-7468. Respondent filed answers to the complaints denying the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held before me at Coral Gables, Florida, on January 31 and February I and 2, 1977. All parties appeared and were afforded full opportu- nity to participate, to introduce and to meet material evidence, and to engage in oral argument. Respondent and General Counsel filed posthearing briefs which have been carefully considered. Upon the entire record in the case, the argument of counsel, the briefs, and from my observations of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION As admitted, Respondent is a partnership engaged in the business of renting apartments and hotel rooms with its office and principal place of business located at 2301 Collins Avenue, Miami Beach, Florida. During the 12 months preceding January 6, 1977, a representative period, it had a gross volume of business in excess of $500,000 and during the same period it purchased goods and materials, which originated outside the State of Florida, in an amount exceeding $50,000. It was admitted and I find that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I All dates herein are in 1976 unless otherwise noted. 409 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED It was admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged 8(a)(1) Conduct Background A group of the employees in Respondent's maintenance, housekeeping, and porter departments contacted the Union on August 20 regarding possible representation. They were given some 40 union authorization cards and employees Renny Suarez, Jose Vigoa, and Raul Velasquez thereafter sought to have Respondent's employees sign the cards.2 Before they commenced their solicitation efforts, Suarez, Vigoa, and Velasquez discussed the technique they would use. Velasquez credibly testified they agreed they would: (I) tell employees they should sign to get better benefits and vacations; (2) tell each employee everyone else had already signed and he or she should sign; and (3) tell each employee they would not get the benefits if they did not sign. Since many of the employees were solicited during working time, they were asked to say they had signed outside the building. The technique utilized by the employee organizers was quite successful and the record reveals that all 29 cards used to support the Union's claim of majority status were obtained in 3 days, i.e., 25 on August 23; 3 on August 24; and I on August 25. 3 While the record does not reveal precisely when Respondent learned of the employees' interest in the Union, it was stipulated that Respondent's general manag- er, Terry Herman, contacted his labor counsel at the outset of the campaign, and Attorney Allen thereafter visited the premises and met with the general manager, the assistant manager, and all supervisory personnel to tell them what they could and could not lawfully do during a union organization campaign. Among other things, Allen in- formed those at the meeting that they could discuss their personal feelings about the Union with employees, but should refrain from calling them to an office for such purpose, and should avoid promising them benefits, threatening them, or interrogating them concerning their union activities or sentiments. The Union filed a petition for an election with the Board's Regional Office on August 25 and shortly thereafter General Manager Herman held a meeting with Respondent's employees, during which he informed them he had received a letter from the Union, and the 2 All three employee organizers testified at the hearing. The testimony of Suarez and Vigoa is most unreliable. Their demeanor while on the stand was not impressive and their denial that they engaged in activities attributed to them by a number of credible witnesses causes me to disregard their testimony which conflicts with the testimony of others. I am convinced Velasquez attempted to testify truthfully. :' See G.C. Exhs. 5 34. 4 Suarez restified the maids' lunch hour is from 12 noon to 12:30 p.m. and that Caraballa acknowledged such at the time of the incident. Nichles testified the maids go to lunch after 12:30 p.m. Vigoa testified he was Respondent's position was that it did not want the Union and would oppose it in every lawful way. I. The solicitation situation General Counsel contends that Respondent promulgated and enforced an unlawful no-solicitation rule on and after August 27 and that it promulgated and enforced an unlawful no-access rule on and after September 17. Additionally, he alleges that Respondent's general manag- er unlawfully threatened employees with discharge on September 7 and 18 if they continued to talk about the Union. The evidence offered to support the allegations is summarized below. Prior to the union organizational campaign, Respondent had no written no-solicitation rule. Herman testified employees were permitted to discuss any subject on the job and that Respondent did not attempt to curtail discussion if it did not interfere with work. He cited no instances wherein discussion had been curtailed because it interfered with the work of employees. Shortly after he received authorization cards, Suarez asked Respondent's assistant chief engineer, Felix Llibre, if he would sign a card. Llibre declined the request as he did not know whether he was considered to be a supervisor, and at a later time he informed Suarez that the chief engineer, Mendez, had told him he was going to tell the general manager the employees were interested in the Union. About the same time, Mendez confronted Suarez and told him he had an order from Assistant Manager Descalzo that "we could not talk with any employee." Herman testified that several supervisors, including Mendez and Llibre, reported to him prior to September 7 that Suarez was interfering with the work of others by soliciting for and discussing the Union while they were working. Herman sought the advise of counsel as to what he should do and was advised to do nothing as the situation might clear up by itself. Shortly thereafter, on September 6, Respondent's housekeeper, Maria Nichles, experienced difficulty with Suarez while he was discussing the Union with a maid, Sophia Caraballa. Nichles credibly testified she heard Suarez and Caraballa talking about the Union in the hall outside her office at 12:10 p.m. and she went to them and asked Suarez to refrain from talking to the maids during the time they were working. Suarez replied he was on his lunch and Caraballa was too. Nichles informed him Caraballa was not on her lunch and Suarez walked away shouting the maids got no lunch - that Maria would give the maids no lunch.4 Nichles reported the above-described incident to Herman, and on Septem- ber 7 Herman, accompanied by Descalzo who interpreted for him, reprimanded Suarez as follows: 5 present during the incident and corroborated Suarez. I credit Nichles' version, including her testimony that Vigoa was not present. Caraballa who was called by General Counsel gave no testimony concerning the incident. I infer her testimony would have been adverse to General Counsel. I Suarez testified he was told, infer aia, "there are rumors you are talking to employees about the Union . . . if I continue this way he [Herman I was going to let me go." Vigoa testified he was present and heard Herman tell Suarez "he had heard a rumor he was talking about the Union in the building and if he heard of him talking union in the building he was going to 410 RONEY PLAZA APARTMENTS I told him that he could not and should not talk to the employees while they were working and that he could talk to the employees anytime he wanted to during the lunch hour or break hours but that I did not want him to stop my employees from working by stopping and talking to them and harassing them and making speeches so that they would stop what they were doing. * * I told him that I wanted him to stop and desist that practice and if he didn't I would have to take further action. * * If you continue talking about the union during the working time and disrupting these people, stopping them from work, that you would be fired, you would be terminated. Without specifically fixing the time of the conversation, :mployee Velasquez testified, without contradiction, that Herman told him he could not propaganda in favor of the Union during working hours. He admitted Herman qualified the statement by saying he could engage in such activity during lunch or breaks. The circumstances indi- zate, and I find, that this conversation occurred on or near September 7. On September 15, Suarez, Velasquez, and an unnamed porter were in one of Respondent's elevators when Karen Miller, a maid, got on the elevator. While they were descending, Suarez asked Miller to join the Union and discussed the advantages with her.6 She left the elevator and reported the incident to Nichles who in turn reported it to Herman. The next morning, Herman, again accompa- nied by Descalzo, sought out Suarez. When Herman asked Suarez about the incident and Suarez evaded the inquiry, Herman discharged him as will be discussed more fully hereinafter. Vigoa testified, without contradiction, that Mendez approached him while he was in the barber shop located in the public area of Respondent's premises on September 17 at 4:30 p.m. and told him he would have to leave because he had instructions that none of the employees was to be in the building after 4:30 p.m. Vigoa testified someone had remained at the building until all employees had left from that time until the day of the hearing. Subsequent to its August and September attempts to control prounion solicitation, Respondent, in October, hired Henry Garcia who testified he was hired "to speak about the unions." Garcia campaigned against the Union at Respondent's premises by discussing the subject with employees during working hours during October and November. On occasion, employees were sent to talk to him in an art room where tenants painted pictures. Details of his discussions with employees which are alleged to have violated the Act are set forth hereinafter. be fired." I credit Herman's version and credit his testimony that Velasquez was present but Vigoa was not. 6 Miller had previously signed a card at Suarez' urging. Suarez denied he Analysis In Walton Manufacturing Company, 126 NLRB 697, 698 (1960), the Board set forth the general rule to be observed in situations involving promulgation and enforcement of no-solicitation rules applicable to working time: 2. No-solicitation or no-distribution rules which prohibit union solicitation or distribution of union literature by employees during working time are presumptively valid as to their promulgation, in the absence of evidence that the rule was adopted for a discriminatory purpose; and are presumptively valid as to their enforcement, in the absence of evidence that the rule was unfairly applied. Subsequent to formulation of the general rule set forth above, the Board considered the issue involving the nature of the evidence required to establish discriminatory motive in adopting or enforcing a no-solicitation rule in Star-Brite Industries, Inc., 127 NLRB 1008 (1960). In that case the Board concluded that evidence (which revealed the rule was limited to union solicitation, was orally promulgated at the time of the Union's appearance, was applied to two employees who were interrogated concerning, and warned of discipline for engaging in further distribution of union cards) was insufficient to overcome the presumption of validity of the rule. Subsequently, however, the Board overruled the Star-Brite case in The Wm H. Block Company, 150 NLRB 341, 343 (1964) where it held: Under these circumstances [solicitation not involving the union was permitted], the enforcement of Respon- dent's rule against solicitation in order to preclude only discussions concerning the Union was clearly an unjustified restriction of the employees' right of self- organization and violated Section 8(a)(X) of the Act. General Counsel contends the evidence in this case reveals that Respondent adopted its no-solicitation rule for a discriminatory purpose and cites as authority, inter alia, State Chemical Company, 166 NLRB 455 (1967) where the Board reiterated the general rule and then held General Counsel had rebutted the presumption of validity by proving: (1) the ban was promulgated at a time of intensive union activity and was specifically directed in the first instance at a known union adherent; (2) the Respondent permitted solicitations of other kinds during worktime; and (3) the Respondent was hostile to union organizational efforts, as reflected by its conduct found violative of Section 8(a)(1) and (3). Respondent contends in this case that it does not have a no-solicitation rule and employees are permitted to talk about anything on the job so long as their activity does not interfere with work. In this case, upon the advent of the union activity, Respondent promulgated a rule which prohibited solicita- tion on behalf of the Union and indicated the penalty for violation was discharge. Furthermore, the rule was point- was on the elevator at the time in question 10:30 a.m. - but Velasquez and Miller testified he was. I credit Velasquez and Miller. 411 DECISIONS OF NATIONAL LABOR RELATIONS BOARD edly brought to the attention of Suarez and Velasquez who were known to have been actively soliciting on behalf of the Union. While Respondent sought to prove that the activities of Suarez in particular interfered with the work of Caraballa and Miller, I note an§ interference with Caraballa's work was minimal and Suarez was not shown to have interfered with Miller's work at all as she had no job functions to perform in the elevator. Moreover, Herman revealed during his testimony that Suarez was carrying out a "vendetta' against him and characterized his solicitaion of Miller in the elevator as "harassment." Herman was describing Suarez' solicitation efforts rather than his interference with the work of others when he uttered such comments. Further, while I do not pass on the legality of Respondent conduct consisting of antiunion solicitation while prohibiting the employees from soliciting for the Union (all on company time), I note that Respondent was not concerned with interference with the work of employees which was caused by Garcia's extensive antiunion discussions with them.7 In sum, even though I find that Herman orally promulgated what could be a lawful no-solicitation rule in his discussions with Suarez and Velasquez, I find he did so for an unlawful purpose since his intent was to interfere with the right of the employees to engage in union activity, rather than to prevent interference with the work of employees. Accord- ingly, I find that the no-solicitation rule promulgated on September 7 and thereafter enforced was promulgated and enforced in violation of Section 8(a)(1) of the Act. As the rule was invalid, I find that Herman's warnings to Suarez and Velasquez that they would be disciplined if they violated the rule also constituted violations of Section 8(a)(1) of the Act. 2. Alleged violations by Mendez Suarez testified that Mendez told him in late August that Assistant Manager Descalzo had said "we [employees] cannot talk to any employee." The record does not reveal the remainder of the conversation, if any, and no testimony was adduced to reveal the circumstances in which the remark was made. Vigoa testified that on September 17 he was in the barbershop on Respondent's premises when Mendez appeared and told him he should leave because all employees were supposed to be out of the building by 4:30 p.m. Vigoa protested that he was in a public area and was permitted to remain until his hair was cut. He testified from that time until the date of the hearing someone remained at the building until all employees had left the building. Mendez was not called as a witness to rebut the described testimony. Analysis I find no merit in General Counsel's contention that Mendez announced an unlawful no-solicitation rule in late August. Obviously, Suarez lifted a comment made by Mendez from context and the record fails to reveal the remainder of the conversation or the circumstances at the 1 Conduct of such discussions was Garcia's full-time duty and he talked with all of Respondent's Spanish-speaking employees which numbered about 20 employees. time of the utterance. I deem the fragmentary evidence insufficient to establish the violation alleged and recom- mend that paragraph 10(a) of the complaint be dismissed. By refraining from calling Mendez as a witness, Respon- dent failed to furnish any justification for Mendez' September 17 attempt to evict Vigoa from the barbershop after working hours. As the Board found in Tri-County Medical Center, Inc. 222 NLRB 1089 (1976), a no-access rule is valid only if it (1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity. As Respondent promulgated its no-access rule during the union campaign immediately after discharging Suarez for soliciting and it failed to show that Mendez' attempt to evict Vigoa from a public and nonworking area of the premises was justified by business reasons, I infer that the rule was promulgated to prevent employees from exercising their statutory rights at the premises when they were lawfully on the premises. It follows, and I find, that Respondent violated Section 8(a)(1) of the Act by promul- gating and enforcing the no-access rule in question. 3. Alleged interrogation by Herman General Counsel contends that Herman unlawfully interrogated an employee "concerning the Union activities, desires, and sympathies of its other employees" on September 18. During the hearing, General Counsel indicated that he had intended to prove the allegation through employee Velasquez. Velasquez gave no testimony which would reveal that such an interrogation occurred. Consequently, at the close of the General Counsel's case, I granted Respondent's motion to dismiss paragraph 9(b)(i). In his brief, General Counsel contends that Herman admitted, while Respondent was presenting its case, that he unlawfully interrogated Velasquez. I find this contention to be without merit. Herman testified on direct that after he terminated Suarez on September 16 he went to Velasquez and asked if he knew anything about an incident involving Suarez and Miller on an elevator. Velasquez reportedly said no. During cross-examination the following occurred: Q. (by Mr. Cruz) In your investigation of the incident in the elevator with Suarez and Miss Miller did you ask Velasquez whether he had seen Renny doing this and he denied it, was that your testimony? A. No. Q. What was your testimony? A. My testimony was, did he know anything about the incident with Renny and Karen [Miller]. Q. With Renny trying to show her a card or whatever? A. Right. Analysis Apparently, General Counsel concluded that Herman admitted by his response to the last question in the quoted 412 RONEY PLAZA APARTMENTS testimony that he had asked Velasquez if Renny Suarez was trying to show Miller a card in the elevator. When the question was asked and the answer was given, I understood Herman had merely agreed that counsel had correctly designated the incident, not that Herman was admitting he asked Velasquez whether he saw Renny trying to show her (Miller) a card. As the testimony is ambiguous, I conclude it does not establish the admission urged by General Counsel. In my view, Herman did not engage in coercive interrogation by merely asking Velasquez if he knew anything about the elevator incident. The question called for a yes or a no answer. When Velasquez answered no, the inquiry ceased. Accordingly, I find General Counsel has failed to prove that Respondent coercively interrogated an employee on September 18 and recommend that the allegation in question be dismissed. 4. The activities of Henry Garcia General Counsel sought through employee witnesses Vigoa, Caraballa, and Gonzalo Garcia to prove that Henry Garcia, an individual hired by Respondent for the specific purpose of persuading Spanish-speaking employees to vote against the Union at the election, unlawfully interrogated, threatened, and intimidated employees through systematic private interviews during the month of October. Vigoa testified Garcia asked him 5 days before the election how he was going to vote. He asserts that he told Garcia he was with the Union and was going to vote for it and Garcia replied he did not think "we [it] was going to win." Vigoa testified Garcia then asked him why they brought the Union to the building and explained that he was there because the owner of the building wanted such information. Caraballa testified Garcia spoke with her on three occasions, i.e., October 29 and November 3 and 4. She said he asked her why she got into the Union and told her the Union was no good. She claims she told him she got into the Union because the Union helps the employee and, secondly, because she was a maid and was very much mistreated by the housekeeper by the name of Maria. She claims Garcia showed her a piece of paper showing how one could buy a late model car with money they could save and claimed he made comments indicating one could buy steak and do things one likes to do with money which would go to a union. Caraballa testified Garcia told her on November 4 that if the Union lost and the Company won the election they would throw out the employees three by three. Gonzalo Garcia testified that on a unspecified date he spoke with an unidentified man in the room where tenants paint pictures and during the conversation the man asked why employees were asking for the Union. Henry Garcia testified he was a lawyer and a judge in Cuba, and is presently a law student in Miami. He testified he was hired to discuss the Union with employees and that he was briefed by Respondent's counsel. In general, he said Respondent's counsel told him, "I cannot make questions, I cannot make promise, I cannot threaten nobody." Before he talked to employees he said he was given a booklet which he read two or three times. Henry Garcia admitted he spoke with Vigoa. He said 90 percent of their discussion concerned Cuban matters and the Cuban revolution, and the balance of the time was spent talking about unions. Garcia described the discussion of the Union stating, "I talked to him about facts, about the facts that the unions was doing in Cuba and now here in the United States and the wages and salaries that the employees got with the Union and without the union." He specifically denied asking Vigoa how he was going to vote or why he was trying to bring the Union into the building. Garcia acknowledged talking to Caraballa and he described their discussion regarding her country origin and her religion. He did not describe any conversation with her concerning the Union, and claimed she told him if the Union lost the election that Roney was going to fire them three by three. While Henry Garcia did not admit or deny he talked to Gonzalo Garcia, he admitted he spoke with all Respon- dent's Spanish-speaking employees. I make no findings regarding this incident because Gonzalo Garcia did not identify the person who spoke with him. Obviously, the conflicting testimony of Caraballa, Vigoa, and Garcia necessitates a credible resolution. I credit the employee assertions that Garcia asked them how they were going to vote and why they had joined or supported the Union. In addition to the fact that I was favorably impressed by Caraballa's demeanor while she testified, I am persuaded she and Vigoa testified truthfully regarding the interrogations under discussion as Garcia was admit- tedly hired by Respondent for the sole purpose of campaigning against the Union for Respondent. Garcia's denial that he interrogated these two employees was not convincing since he made no attempt to relate his best recollection of the portions of the conversations which related to the Union. I am not convinced, and refrain from finding, that Garcia told Caraballa Respondent would fire the employees three by three if the Union lost the election. By uttering such a prediction, Garcia would have been encouraging rather than discouraging employees from voting for the Union. Suarez and Vigoa were predicting Respondent would fire employees if the Union lost the election and I am convinced Caraballa heard the comment in question from a source other than Garcia. Analysis General Counsel contends that Garcia unlawfully inter- rogated employees, unlawfully threatened them, and systematically conducted private interviews in an atmo- sphere designed and calculated to intimidate them. I find that Garcia asked Vigoa how he was going to vote and asked him why they brought the Union to the building. Additionally, I find that he asked Caraballa why she got into the Union and told her it was no good. Through this conduct, Respondent violated Section 8(aX 1) of the Act as alleged. As indicated above, I find that Garcia did not tell Caraballa Respondent would discharge employees three by three if the Union lost the election. Additionally, I find the record does not reveal that Garcia systematically inter- viewed employees in an unlawful manner. Accordingly, for the reasons stated I find General Counsel has not proved the allegations set forth in paragraphs 9(cXii) and (iii) by a 413 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preponderance of the credible evidence and I recommend that such allegations be dismissed. B. The Discharge of Renny Suarez Renny Suarez was hired by Respondent in April or May 1975. He worked in the maintenance department and was supervised by Louis Mendez, chief engineer. The record reveals Suarez was the Union's most active membership solicitor during its campaign at Respondent. Shortly after the cards were obtained on August 20, Suarez asked Felix Llibre, assistant chief engineer, to sign a card. Llibre refused to sign until he learned whether he was considered by Respondent to be a supervisor and several days after Suarez had solicited him he told Suarez it was Mendez' duty to tell the Company the employees wanted the Union. Herman admitted he learned soon after the union campaign began that Suarez was soliciting for the Union. As previously indicated about September 7 Herman warned Suarez not to solicit on company time. On September 16, Herman terminated the employee. Admit- tedly, part of the motivation for the discharge was the fact that it had been reported to Herman that Suarez had solicited employee Karen Miller in an elevator on the day of the discharge. Herman defended his decision to discharge Suarez by claiming, in effect, that Suarez had been an unsatisfactory employee throughout his employment and the Miller incident, following his earlier reprimand concerning the Caraballa incident, was the "straw that broke the camel's back." Thus he testified that Mendez had terminated Suarez about 7 months prior to September 16 because the supervisor claimed Suarez refused to perform a work assignment. Herman countermanded the early discharge action and Suarez continued to work. Herman testified that, when the union campaign began, he received reports from numerous supervisors which indicated Suarez was interrupting the work of others by soliciting for the Union. While nothing was done at first, the Caraballa incident caused Herman to reprimand the employee. About the same time, Herman testified that word reached him that Suarez had refused to put chemicals in the apartment's water system. Herman called him to the office and agreed to furnish certain safety equipment to cause the employee to continue to perform this task, which he had regularly performed in the past. Herman testified that, on the day Suarez was discharged, Respondent's counsel, Norton, conducted a meeting attended by employees and Suarez interrupted Norton four or five times by snickering, laughing, and carrying on.8 Finally, after the meeting with employees, Herman received a report that Suarez, Velas- quez, and a porter were in an elevator with Karen Miller and that Miller became disturbed when the men spoke to her concerning the advantages of joining the Union. 9 When this matter was reported to Herman, he had Miller identify Suarez, Velasquez, and a porter. The next day Herman, accompanied by Descalzo, went to talk to Suarez. 8 Suarez denied that he intended to interrupt the meeting. I credit Herman's testimony. 9 Miller had already signed a card. Velasquez credibly testified he too was trying to get Miller to sign a card in the elevator. Suarez' version of the discharge conversation is that Herman asked him if he was filling out a card of one of the employees "of elevator boys" the day before. He claims he asked Herman which elevator, elevator A or B, and that Herman replied, "It doesn't matter. Is it true or false." Suarez allegedly told him it was not true and Herman said, "Well, I am going to throw you out now." Herman's original version of the conversation was that he asked Suarez if he had accosted Karen Miller in the elevator and Suarez denied it. Herman testified he then had Descalzo ask the same question in Spanish and Suarez again denied it. Herman then told Suarez he was through. Suarez testified at the hearing that he could not have solicited Miller as claimed because he was working in the "chiller" room with Supervisor Felix Llibre when the incident occurred. 10 Analysis Patently, Renny Suarez would not have been terminated by Respondent on September 16 if he had not solicited Miller to sign a union card in the elevator on the previous day. While Herman indicated Suarez had engaged in previous conduct which revealed he was not an entirely desirable employer, his investigation of the elevator incident prior to his September 16 discussion with Suarez reveals he wanted to be sure of his ground before he confronted Suarez. His testimony leaves no doubt that the incident led to the discharge. Thus, the legality or illegality of the discharge turns on whether the September 15 solicitation was protected or unprotected activity. As neither Suarez nor Miller was on break or lunch at the time, the inquiry must be narrowed to whether the solicitation which occurred during working time was protected activity. In The J.L Hudson Company, 198 NLRB 172 (1972), the Board reversed a Trail Examiner's finding that an employ- ee guilty of worktime solicitation was lawfully terminated, observing: In a recent case similar to this case, the Board reversed a Trial Examiner who had similarly found that a discharge for worktime solicitation of union cards was lawful, stating: The Trial Examiner's rationale presumes that, despite the absence of a valid rule, employers may terminate employee organizers who engage in work-time union solicitation even though the activities of the employees entail no interference with production or plant discipline. In our opinion, the question of whether work-time solicitation is protected or unprotected activity cannot be determined on an absolute basis. On the contrary, the result must turn on the delicate balance that must be maintained between the employee's right to engage in organizational activity and the employer's responsibility for the io Velasquez credibly testified he was in the elevator with Suarez when the incident occurred. I credit Velasquez who corroborates Miller's version of the incident. 414 RONEY PLAZA APARTMENTS maintenance of rules necessary to efficient opera- tion of the plant. This balance must be adminis- tered in a fashion ensuring that reprisals are not taken against the principal in-plant organizers where legitimate interests of employers are not involved. A discharge based on work-time distribution of cards in the absence of a valid rule is suggestive that the employer was reacting to the protected aspect of the employee's conduct, rather than considerations of plant efficiency. Accordingly, in Selwyn Shoe Manufacturing Corporation, it was held that in the absence of such a rule it was not a sufficient defense that the dischargee's activities (in that case, antiunion activities) "impinged on working time." The Board said: "There must also be a showing that the discharge flowed from [the employee's] abdica- tion of her working duties rather than from the fact that she engaged in solicitation against the union." Respondent has not shown in this case that Suarez' discharge flowed from abdication of his work duties or actual interference with the work of Miller. Indeed, the incident which provoked the termination occurred when both employees were "waiting to work" while they rode in an elevator. Had that discussion concerned the weather, a ball game, or any subject other than the Union, it is clear that it would not have been deemed prohibited and Suarez would not have been discharged. Moreover, the record in this case reveals that Respondent was not concerned with interference with the work of employees if the interference was caused by antiunion discussion. Garcia was admittedly hired to engage in antiunion discussion with employees during their worktime and he did so in October and November. Considering all the circumstances, I find that Respondent discharged Suarez on September 16 in reprisal for his union activity rather than in the interests of maintaining production and discipline. Accordingly, I find that Respondent thereby violated Section 8(a)(X) and (3) of the Act. C. The Alleged 8(a)(5) Violation I. The appropriate unit On August 25, 1976, the Union filed the petition in Case 12-RC-5169 requesting a bargaining unit including em- ployees in the maintenance department, housekeeping department, and porter department and excluding office clerical employees, guards, and supervisors as defined in the Act. The Regional Director for Region 12 issued his Decision and Direction of Election in the representation case on October 7 and therein found the appropriate unit to be: " The J. L. Hudson Company, supra, and cases cited therein. :2 See Sec. 102.67(f) of the Board's Rules and Regulations; Detroit Plastic Molding Co., 228 NLRB 1030 (1977). la I note the Board may reconsider and modify its prior finding as to the appropriate bargaining unit if it deems the present one to be incorrect. All maintenance department, housekeeping department and porter department employees employed by the Employer at its apartment and hotel complex located at 2301 Collins Avenue, Miami Beach, Florida, excluding front door employees, front desk employees, lifeguards, office clerical employees, guards and supervisors as defined in the Act. After issuance of the Decision and Direction of Election, Respondent filed a request for review with the Board and, by telegram dated November 5, the Board ruled: Having duly considered Employer's Request for Re- view of Regional Director's Decision and Direction of Election the Board concluded that a substantial issue is raised concerning the unit placement of pool employ- ees. However, the Board is of the opinion that such issue can best be resolved through the challenge procedure. Employer's Request for Review is denied but the Decision is amended to permit pool employees to vote under challenge. By Direction of the Board, Member Jenkins dissenting. An election was held on November 5 and the tally of ballots revealed that of approximately 43 eligible voters 13 votes were cast for Petitioner, 21 votes were cast against Petitioner, 7 ballots were challenged, and I ballot was voided. As challenges were not determinative of the results of the election, the eligibility of pool employees and/or lifeguards was not determined. Respondent contended at the instant hearing that I should consider the issue concerning unit placement of pool employees. I refrain from considering such issue as I conclude the Regional Director's decision is not reviewable by an Administrative Law Judge.'2 Being bound by the Regional Director's unit finding, I find, as alleged, that the bargaining unit found appropriate by the Regional Direc- tor, which is set forth above and in paragraph 4 of the complaint, constitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act.13 2. The Union's majority status It was stipulated, and I find, that the 40 individuals named in General Counsel's Exhibit 4 constituted the employee complement in Respondent's maintenance, housekeeping, and porter departments on August 25, 1976. General Counsel placed 29 union authorization cards in evidence to prove the complaint allegation that the Union represented a majority of Respondent's employees in an appropriate unit on August 25, 1976. The testimony of employees Suarez and Vigoa reveals that 24 of the 29 persons were told before they executed their cards that the purpose in signing the card was to cause the Union to represent them.14 The cards executed by Suarez and Vigoa were received when they indicated they were aware of the purpose of the cards when they signed them. Two cards American Broadcasting Company, a Division of American Broadcasting- Paramount Theatres, Inc., 134 NLRB 1458 (1961). '4 G.C. Exhs. 2-25 and 27-30. Respondent objected to the receipt of the 24 cards obtained by Suarez and Vigoa because the evidence revealed (Continued) 415 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were authenticated through the testimony of Union Representative Antonio Fernandez who testified that he told employees Guillermo Celorio and Marta Rodriquez that the purpose of signing a card was to obtain union representation and that he witnessed Celorio's signature; he also testified that Rodriquez signed her card elsewhere and returned it to him the next day.15 The last card was introduced into evidence through the testimony of Sophia Caraballa, who testified she could not read the English wording on the card but executed it to cause the Union to represent her. I find Caraballa was sufficiently aware of the purpose of the card and that her card is not invalidated due to the fact that she could not read it. Alleged Misrepresentations That Everyone Else Had Signed Respondent contends that the authorization cards placed in evidence by General Counsel cannot be relied on to prove majority status because the employee union organiz- ers decided before soliciting cards that they would seek to cause employees to sign by making false representations and by threatening the employees. They adduced evidence through Organizer Velasquez and 10 employee witnesses in support of their claim. The testimony is summarized below. Raul Velasquez testified that he, Suarez, and Vigoa discussed the tactics they should utilize to cause employees to sign authorization cards before solicitation began. He claimed they agreed they would tell employees that (I) the salaries would be improved and they would have more paid vacations; (2) everyone else had signed and they should sign; and (3) if they did not sign they would not get the benefits.' 6 Additionally, Velasquez testified that he heard Suarez and Vigoa state to groups of employees at various times in the lunchroom that if they did not vote for the Union and Respondent lost the election they would be fired. The record reveals that 25 of the cards relied on by General Counsel were signed on August 23, that 3 were signed on August 24, and I was signed on August 25. Respondent argues strenuously that the fact that the bulk of the signatures were obtained in I day lends much support to its contention that the employees were induced to sign by the employee organizers' false representation that everyone else had already signed. The type of false representation utilized in this case was treated by the Board in Marie Phillips, Inc., 178 NLRB 340 (1969), where the Board stated: We continue to believe that a showing, without more, of a misrepresentation as to the number of others who have signed is insufficient to invalidate a clear and unequivocal designation card signed by an employee. This is so because such a card must be presumed to express the individual intent of the signer regardless of the wishes of others. Fernandez dated most of the cards. As the cards were clearly signed between August 20 and 25 and were delivered to the Board's office on the later date, I find Respondent's objection is without merit. 1S The cards are in evidence as G.C. Exhs. 32 and 33. The Rodriquez card was objected to as she was not called as a witness to authenticate the Where the objective facts, as evidenced by events contemporaneous with the signing, clearly demonstrate that the misrepresentation was the decisive factor in causing an employee to sign a card, we shall not count such card in determining the union's majority. How- ever, . . where the only indication of reliance is the signer's subsequent testimony as to his subjective state of mind when signing the card, such showing is insufficient to invalidate the card. The only evidence offered by Respondent in this case which can fairly be deemed to be objective evidence relating to the misrepresentation issue is that evidence which reveals all 29 card signers executed their cards during a 3-day period, with 25 signing on I day, and evidence which reveals the employee organizers decided before beginning their solicitation efforts to intentionally mislead the employees. As I read Marie Phillips, Inc., supra, the objective evidence offered must prove rather than suggest that employees signed cards in reliance on false representations. While some of the employees among the 29 employees in question undoubtedly would not have signed union authorization cards but for the false represen- tations made to them by Suarez and Vigoa, the record in its present state does not permit me to determine which employees would not have signed. Accordingly, I find that Respondent has not offered sufficient objective evidence to invalidate the cards of employees on the sole ground that they were told everyone else had signed. Such cards are to be counted as evidence of majority status should such be the only evidence offered to vitiate them; Having generally stated by conclusions regarding the false representations, I turn to consideration of the testimony of the 10 employee witnesses offered by Respondent. Ramero Cal: Cal testified that when Suarez solicited him he said "that everybody had already signed. To sign it so that we could receive more benefits. That if I did not sign it I would not receive benefits and I could lose my job." On cross-examination, Cal testified he was told that without a union he would have less benefits and less job security. While Respondent contends Cal was threatened with loss of benefits and loss of his job if he did not sign a card, I find such was not the case and conclude that Cal's card should be counted. Pedro Marrero: Marrero testified he was solicited by Suarez who told him he was the only one left to sign and, if the card was not signed and the Union were to lose, then "we people could lose our jobs." Marrero testified during direct examination that Suarez did not threaten him. As was the case with Cal, I find Suarez merely predicted that Respondent might fire employees if the Union lost the election and that nothing was said which would vitiate Marrero's card, which shall be counted. card. I find the objection without merit. Black Angus of Lauderhill, Inc., 213 NLRB 425, 430 at fn. 6 (1974). 16 Suarez and Vigoa denied that they approached employees in this manner. The record reveals they did and I credit Velasquez' testimony concerning their presolicitation agreement. 416 RONEY PLAZA APARTMENTS Hector Dencas: Dencas testified Suarez called him on the phone and he then told him he did not want to have anything to do with anything about a union, that he did not like anything about that Union. According to Dencas, he was subsequently told by Suarez that he was the last to sign and he then signed "Because everybody else had signed cards and I didn't want to be the last one left behind." Subsequent to the time he signed, Dencas testified he heard Vigoa state in the presence of Velasquez, Suarez, and several other maintenance employees whose names he could not recall that if they did not all sign cards they would all be out. I find the evidence reveals objectively that Dencas signed a card because Suarez falsely represented to him that everyone else had signed and that his card is not to be counted. Karen Miller: Miller testified Suarez solicited her stating, "if I sign the card that I couldn't get fired but if I didn't I could," and "that all the other maids had signed the card." Miller testified she signed the card because she did not want to get fired. I find Suarez threatened Miller when soliciting her signature and that her card is invalid and is not to be counted.' 7 Arturo Rodriquez, Rafael Callado, Andrew Jaras, Ansel- mo Saytayana, Jose Mosquera, and Matias Llanos each testified that Suarez or Vigoa Jose Mosquera, and Matias Llanos each testified that Suarez or Vigoa solicited their signature by stating everyone else had signed and they should sign and they signed cards because they did not want to be left out of the group. Callado added that he never wanted the Union. I find this subjective testimony insufficient to vitiate the cards and they shall be counted. In view of the foregoing, I find that on August 25 the appropriate bargaining unit consisted of 40 employees and that General Counsel has proved that 26 cards should be counted to determine the Union's majority status at that time. Accordingly, I find the Union enjoyed majority status in an appropriate unit on August 25. 3. The demand and refusal By letter dated August 25, the Union advised Respon- dent as follows: This is to advise you that the majority of your employees have indicated that they desire the Hotel, Motel, Restaurant, Highrise Employees, and Bartend- ers Union, Local 355 to be their collective bargaining agent. We would appreciate having a meeting with you at your earliest convenience to discuss recognition and conditions. On the same day, the Union filed the petition in Case 12- RC-5169, requesting the unit described in the section of this Decision entitled "The appropriate unit." Respondent 1" Miller testified Suarez subsequently solicited employee Paulette Millien by saying the same things he said to her and that Millien signed a card. As Millien did not testify and the record does not reveal why she signed, I refrain from invalidating her card. Respondent contends in brief that, as several employees were shown to have been threatened while being solicited to sign a card, I should infer that others were threatened. Absent specific evidence. I am unwilling to engage in such speculation. contended the appropriate unit should include, in addition to employees in the maintenance, housekeeping, and porter department, the front door employees, the front desk employees, and lifeguards. As previously indicated, the Regional Director found the unit requested by the Union to be an appropriate unit. At the hearing in this case Respondent contended its refusal to bargain with the Union is justified by the fact that the unit is inappropriate and assuming arguendo, that the unit is appropriate, the Union has never enjoyed majority status. For the reasons previously set forth above, I find Respondent's contention to be without merit. Commencing September 7, 1976, Respondent engaged in the commission of serious unfair labor practices which included the promulgation and enforcement of invalid no- solicitation and no-access rules adopted during the union campaign to deter employees in the exercise of their Section 7 rights; it coercively interrogated employees; and it fired the principal employee organizer on September 16 because of his union activities and sentiments. I conclude that such conduct made the holding of a fair election unlikely and undermined the Union's majority. Additional- ly, I find that these unfair labor practices "are of such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had." ts Finally, I find that the possibility of erasing the effects of the unfair labor practices and of insuring a fair rerun election by use of traditional remedies, though present, is slight, and that employee sentiment as reflected by their execution of union authorization cards during the period August 23 to 25, 1976, would, on balance, be better protected by a bargaining order, Gissel, supra at 614. For the reasons stated, I find that Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union on and after September 7, 1976.19 IV. THE OBJECTIONS The conduct herein found to be unlawful was alleged as objectionable conduct in paragraphs 3, 4, 5, 6, 7, and 8 of the Union's objections. As the conduct occurred between the time the petition was filed and the date the election was held, I find it interfered with the employees' exercise of a free and untrammeled choice in the election and I recommend that the results of the election held on November 5, 1976, be set aside. As I have recommended issuance of a bargaining order, I recommend the petition in Case 12-RC-5169 be dismissed. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section 1, above, have a close, intimate, and iR N.LR.B. v. Gissel Packing Co., Inc., U.S. 575, 614 (C.A. 4, 1968). 19 Herman first promulgated and announced the invalid no-solicitation rule on this date. In accordance with Trading Porr, Inc.. 219 NLRB 298, 301 (1971), the unlawful refusal to bargain occurred when Respondent embarked on a clear course of unlawful conduct, which I find to have occurred on September 7, 1976. 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW I. Respondent is 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. Respondent violated Section 8(aXI) of the Act by interrogating employees concerning their union activities and by promulgating and enforcing invalid no-solicitation and no-access rules designed to impede employees in the exercise of their Section 7 rights. 4. Respondent violated Section 8(a)(1) and (3) of the Act by discharging Renny Suarez because of his union activities or sentiments. 5. All maintenance department, housekeeping depart- ment, and porter department employees employed by Respondent at its apartment and hotel complex located at 2301 Collins Avenue, Miami Beach, Florida, excluding front door employees, front desk employees, lifeguards, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. On or about August 25, 1976, and at all material times thereafter, the Union represented a majority of employees in the appropriate unit, and has been the exclusive representative of said employees for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 7. Respondent has refused to bargain with the Union in violation of Section 8(a)5) of the Act since September 7, 1976. 8. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not committed any other unfair labor practices alleged in the complaint. REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has unlawfully refused to bargain collectively with the Union, I shall recommend that it be ordered to bargain collectively with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment for the employees in the appropriate unit described below. I shall also recommend that any understanding that 20 In the event no exceptions are filed as provided in 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. the parties may reach shall be embodied in a signed agreement. Respondent will be required to offer Renny Suarez reinstatement to his former position of employment or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority, or other rights and privileges, dismissing, if necessary, anyone who may have been hired to perform the work which he had been performing. Additionally, Respondent will be ordered to make this employee whole for any loss of earnings he may have suffered by reason of his unlawful termination, with backpay to be computed on a quarterly basis, making deductions for interim earnings, and with interest to be paid at a rate of 6 percent per annum. F W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Upon the foregoing findings of fact and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 20 The Respondent, Roney Plaza Apartments, Coral Ga- bles, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities and sentiments. (b) Threatening employees with discharge because of their union activities or sentiments and or because they engage in solicitation on behalf of a union under circum- stances wherein such activity is protected by the Act. (c) Promulgating, enforcing, or giving effect to a rule which prohibits employees from soliciting on behalf of the Union in circumstances wherein such rule is utilized to deter employees in the exercise of their Section 7 rights rather than for legitimate business purposes. (d) Prohibiting access of employees to nonwork areas during their nonworktime for the purpose of union solicitation, unless such prohibition is demonstrably neces- sary to maintain production and discipline. (e) Discharging, threatening to discharge, or otherwise discriminating against any employees for the purpose of discouraging employees from engaging in concerted activi- ty for their mutual aid or protection. (f) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Hotel, Motel, Restaurant, Highrise Employees and Bartenders Union, Local 355, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All maintenance department, housekeeping department and porter department employees employed by the Employer at its apartment and hotel complex located at 2301 Collins Avenue, Miami Beach, Florida, excluding front door employees, front desk employees, lifeguards, 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. 418 RONEY PLAZA APARTMENTS office clerical employees, guards and supervisors as defined in the Act. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act; or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Renny Suarez immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay due to the violation against him in accordance with the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Upon request, bargain collectively with Hotel, Motel, Restaurant, Highrise Employees and Bartenders Union, Local 355, AFL-CIO, as the representative of its mainte- nance department, housekeeping department, and porter department employees employed at its Miami Beach, Florida, operation, but excluding front door employees, front desk employees, lifeguards, office clerical employees, guards, and supervisors as defined in the Act, and, if a contract is reached, sign same. (d) Post at its place of business in Miami Beach, Florida, copies of the attached notice marked "Appendix."2 ' Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps it is taking to comply herewith. 21 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall 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 interrogate our employees concerning their union activities or sentiments. WE WILL NOT threaten employees with discharge because of their union activities or sentiments and or because they engage in solicitation on behalf of a union under circumstances wherein such activity is protected by the Act. WE WILL NOT promulgate, enforce, or give effect to a rule which prohibits employees from soliciting on behalf of a union in circumstances wherein such rule is utilized to deter employees in the exercise of their Section 7 rights rather than for legitimate business purposes. WE WILL NOT prohibit access of employees to nonwork areas during their nonworktime for the purpose of union solicitation unless such prohibition is demonstrably necessary to maintain production and discipline. WE WILL NOT discharge or otherwise discriminate against our employees in regard to their hire or tenure, or any term or condition of employment, because they become members of or engage in activities on behalf of Hotel, Motel, Restaurant, Highrise Employees and Bartenders Union, Local 355, AFL-CIO, or any other labor organization, or because they engage in concerted activities protected by Section 7 of the Act. WE WILL offer Renny Suarez immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL, upon request, recognize and bargain collectively in good faith with Hotel, Motel, Restau- rant, Highrise Employees and Bartenders Union, AFL- CIO, for the unit described herein with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and WE WILL, upon request, embody in a signed agreement any understanding reached. The bargaining unit is: All maintenance department, housekeeping de- partment and porter department employees em- ployed by the Employer at its apartment and hotel complex located at 2301 Collins Avenue, Miami Beach, Florida, excluding front door employees, front desk employees, lifeguards, office clerical employees, guards and supervisors as defined in the Act. 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in or to refrain from engaging in any or all activities specified in Section 7 of the Act. These activities include the right to self-organization, the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. RONEY PLAZA APARTMENTS 420