Rosdev Hospitality, Secaucus, LP

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 20 202 Rosdev Hospitality, Secaucus, LP and La Plaza, Se- caucus, LLC and UNITE HERE, Local 69. Cases 22–CA–26794 and 22–CA–26922 January 31, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW The principal issue presented in this case is whether a “perfectly clear” successor employer1 has unlawfully unilaterally changed the terms and conditions of em- ployment by implementing a leave-accrual policy that conflicted with the predecessor employer’s actual past practice, but arguably not with the predecessor’s collec- tive-bargaining agreement (which the successor did not assume).2 We agree with the judge that the Respondent violated Section 8(a)(5) of the Act by unilaterally depart- ing from its predecessor’s practice concerning leave ac- crual.3 1 “Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropri- ate to have him initially consult with the employees’ bargaining repre- sentative before he fixes terms.” NLRB v. Burns Security Services, 406 U.S. 272, 294–295 (1972); see also Spruce-Up Corp., 209 NLRB 194, 195 (1974), enfd. mem. 529 F.2d 516 (4th Cir. 1975). 2 On July 28, 2006, Administrative Law Judge Mindy E. Landow is- sued the attached decision. The Respondent filed exceptions and a supporting brief. The Charging Party filed an answering brief, and the Respondent filed a reply. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order. Some of the Respondent’s exceptions imply that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satis- fied that the Respondent’s contentions are without merit. 3 We also agree with the judge that the Respondent violated Sec. 8(a)(1) of the Act when Supervisor Duran told employee Gisela Figue- roa that the Respondent was going to “get rid of the union.” The Re- spondent did not except to the judge’s application of Passavant Memo- rial Area Hospital, 237 NLRB 138, 139 (1978), in finding that the Respondent did not effectively repudiate Duran’s statement. In any event, there was no repudiation of any kind; after hearing Duran’s statement, Supervisor Nanajara merely implored him not to bother Figueroa because she was “sensitive about the union.” If anything, Nanajara’s statement confirms the coercive character of Duran’s re- mark. Without necessarily agreeing with all the elements of Passavant, see, e.g., Champion International Corp., 339 NLRB 672 fn. 6 (2003), Chairman Battista agrees that Nanajara’s reproach failed to effectively repudiate Duran’s statement. Evergreen America Corp., 348 NLRB 178, 180–181 fn. 9 (2006). I. The Respondent, Rosdev Hospitality, Secaucus, LP and La Plaza, Secaucus, LLC, has operated the Crown Plaza Hotel & Exhibition Center since purchasing the hotel in December 2004. The previous owner, Felcor Suites, LP, d/b/a Crown Plaza Meadowlands (Felcor) was party to a collective-bargaining agreement with UNITE HERE, Local 69 (the Union). That agreement, which the Respondent did not agree to adopt, provided that “hotel seniority” would be measured by length of tenure with “the Employer” (defined as Felcor).4 Felcor had purchased the hotel in 1997. The record establishes, however, that in practice Felcor awarded more employee leave than was provided for in the contract. It was employee Tommie Wilson’s undis- puted testimony that under Felcor’s management, em- ployee leave accrual was actually determined by the par- ticular employee’s tenure at the hotel and not his or her tenure with Felcor itself, as stated in the contract. The rate at which Wilson and employees Milan Petesic, Ed- mund Bermudez, and Maria Ortiz accrued annual leave prior to December 2004 corroborates Wilson’s testi- mony. As stated in the judge’s decision, those employ- ees accrued more annual leave than was provided in the contract. The amounts accrued were consistent with a practice in which leave accrual was based on tenure at the hotel, including tenure accrued before Felcor pur- chased the facility in 1997. The Respondent presented no evidence to the contrary. As the judge found, the Respondent never told the former Felcor employees, either when it was soliciting their employment applications or when it assumed con- trol of the hotel in December 2004, that there would be any change in the terms and conditions of employment under the new management. Indeed, in the first 2 months after taking over the facility, the Respondent did not change any terms and conditions of employment. On February 23, 2005, however, the Respondent told the Union for the first time that it would compute leave time based on an employee’s tenure with Rosdev, and not on tenure at the hotel. Consistent with this an- nouncement, the Respondent reduced the amount of leave employees Petesic, Bermudez, Wilson, and Ortiz earned. Those employees accrued vacation leave at a rate of 3 to 5 weeks per year under Felcor, but presently accrue vacation leave at a rate of 1 week per year. 4 The contract stated that “hotel seniority [defined as the length of continuous service with the Employer] shall be used to determine length of service for vacation and pension benefits” and that “all em- ployees covered by this Agreement who have been continuously em- ployed by the Employer for a period of at least one (1) year shall be entitled to five (5) days sick leave with pay.” ROSDEV HOSPITALITY, SECAUCUS, LP 203 II. It is undisputed that the Respondent is a successor em- ployer to Felcor and, as such, has a duty to recognize and bargain with the Union. Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 42–46 (1987). Furthermore, the Respondent “failed to clearly announce its intent to es- tablish a new set of conditions prior to inviting former employees to accept employment,” and it was “perfectly clear” within the meaning of Burns that it intended to retain all the employees in the unit.5 The Respondent therefore was obligated to consult with the Union about changes in the terms and conditions of employment, in- cluding the manner in which leave accrues.6 A successor employer in Respondent’s position may not unilaterally change the terms and conditions of employment, whether they were established by a previous collective-bargaining agreement or by the predecessor’s past practices. Blitz Maintenance, 297 NLRB 1005, 1008–1009 (1990), enfd. mem. 919 F.2d 141 (6th Cir. 1990). We agree with the judge’s finding that Felcor’s past practice was to measure seniority for purposes of leave accrual by an employee’s tenure at the hotel. Thus we reject the Respondent’s argument that its policy regard- ing employee leave accrual embodied a continuation of the terms and conditions of employment under Felcor because it tracked the literal terms of Felcor’s collective- bargaining agreement with the Union. For purposes of measuring seniority for the accrual of leave, the relevant terms and conditions of employment were those estab- lished by Felcor’s actual practice, not those contained in the expired contract but not followed in practice. Blitz Maintenance, supra, 297 NLRB at 1008–1009. Accord- ingly, we adopt the judge’s finding that the Respondent unilaterally changed this established practice, thereby violating Section 8(a)(1) and (5). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent Rosdev Hospitality, Secau- cus, LP and La Plaza, Secaucus, LLC, Secaucus, New Jersey, its officers, agents, successors, and assigns, shall take the actions set forth in the Order. 5 Spruce-Up Corp., supra; see Chelsea Place, 336 NLRB 1050 (2001). 6 Id. Bernard S. Mintz, Esq., for the General Counsel. Norman R. Buchsbaum, Esq. (Law Offices of Norman S. Buchsbaum), of Baltimore, Maryland, for the Respondent. Christopher G. Gant (Kennedy, Jennik, & Murray, P.C.), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE MINDY E. LANDOW, Administrative Law Judge. Based on a charge and an amended charge filed on February 24 and March 21, 2005,1 respectively, in Case 22–CA–26794 by UNITE HERE, Local 69 (the Union), and based on a charge filed by the Union in Case 22–CA–26922 on May 25, a complaint was filed and was issued on November 28, against Rosdev Hospital- ity, Secaucus, LP (Rosdev) and La Plaza, Secaucus, LLC2 (La Plaza) (Respondent). The complaint alleges that Respondent is a successor employer to Felcor Suites, LP, d/b/a Crowne Plaza Meadowlands (Felcor). The complaint, as amended at hearing,3 alleges in essence that Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally changing how employee seniority is determined thereby resulting in a change in the accrual of employee benefits such as vacation and sick leave. The com- plaint also alleges that Respondent violated Section 8(a)(1) when a supervisor informed employees that Respondent was going to get rid of the Union.4 Respondent’s answer, amended at hearing, denied the material allegations of the complaint, and on March 21 and 22, and April 5 and 6, 2006, a hearing was held before me in Newark, New Jersey.5 On the entire record,6 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the parties, I make the following 1 All dates hereafter are in 2005, unless otherwise specified. 2 The name of the Respondent appears as amended at hearing. 3 During the hearing, numerous allegations of the complaint were withdrawn by counsel for the General Counsel. 4 As discussed below, Respondent’s motion to strike this paragraph of the complaint is denied. 5 The case has some additional procedural history. On December 6, Respondent filed a motion for a bill of particulars and a Motion for Summary Judgment. On December 15, counsel for the General Coun- sel filed a response to Respondent’s motion for a bill of particulars. On December 19, Associate Chief Administrative Law Judge Joel P. Biblowitz issued an Order ruling on Respondent’s motion for a bill of particulars. On January 12, 2006, counsel for the General Counsel filed an opposition to Respondent’s Motion for Summary Judgment, and on January 17, 2006, Respondent filed a reply to General Counsel’s Oppo- sition to its Motion for Summary Judgment. On January 30, 2006, the Board issued an Order denying Respondent’s Motion for Summary Judgment. 6 Respondent’s unopposed motion to correct the transcript dated May 15, 2006, is granted and received in evidence as R. Exh. 13. Addition- ally, on the same date, Respondent filed a motion to reopen record to receive newly-available evidence (motion to reopen the record), which was opposed by counsel for the General Counsel. The evidence prof- fered by Respondent involves documents relating to a civil action filed in the Southern District of New York by the Union on May 5, approxi- mately 1 month after the close of the record in the instant case. This lawsuit involves the Charging Party’s claim that in connection with the purchase of Felcor’s assets, Respondent committed itself to be bound by the terms of the collective-bargaining agreement between Felcor and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204 FINDINGS OF FACT I. JURISDICTION Respondent, which is comprised of Rosdev, a limited part- nership and La Plaza, a limited liability corporation, has an office and place of business located in Secaucus, New Jersey, where it is engaged in the operation of a hotel and a restaurant (the Crowne Plaza or Hotel). Respondent admits that Rosdev and La Plaza are joint employers.7 During the calendar year commencing on December 23, 2004, Respondent derived gross revenues in excess of $500,000 and purchased goods valued in excess of $5000 directly from points outside the State of New Jersey. Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Respondent admits and I find that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Background The Crowne Plaza Hotel & Exhibition Center, located in Se- caucus, New Jersey, was formerly owned by Felcor Suites, LP (Felcor) and managed and operated on behalf of Felcor by Bris- tol Hotels, a division of Intercontinental Hotel Group. Certain of the former Felcor employees, subsequently hired by Respondent, are represented by the Union in the following unit: All bellmen/valets, bartenders, bar assistants, tournant cooks, cooks I, cooks II, pantry workers, room attendants, housemen, pot washers, stewards, night cleaners, cafeteria attendants, hosts-hostesses/cashiers, servers, bus persons, storeroom em- ployees, and linen employees [employed at the Employer’s the Union. Appended to the complaint filed in that matter is a substan- tially redacted copy of the sales agreement between Felcor and Rosdev, a document which the General Counsel had sought to obtain through a subpoena duces tecum issued in connection with the hearing in this case. According to Respondent, these documents are relevant because they “show the bad faith of the Charging Party” and reflect on the Gen- eral Counsel who sought to obtain this document while a redacted copy was in the Union’s possession, and failed to disclose this fact. Upon consideration, I find that the “evidence” proffered by Respondent is not relevant to the issues before me. I note that, notwithstanding the Un- ion’s lawsuit and its apparent position to the contrary, the General Counsel has not alleged, and is not contending, that Respondent volun- tarily assumed its predecessor’s collective-bargaining agreement. In this regard, it is well settled that the General Counsel controls the the- ory of the case, and the administrative law judge cannot consider theo- ries for violations argued by the charging party that substantially differ from the General Counsel’s, Zurn/N.E.P.C.O., 329 NLRB 484 (1999). Moreover, even assuming that the General Counsel was aware that the Union was in possession of a redacted copy of the Felcor sales agree- ment, the fact that it may have sought to obtain through subpoena a complete copy of this agreement sheds no light on the issues before me. Accordingly, Respondent’s Motion to Reopen the Record is denied. 7 The complaint alleges that Rosdev and La Plaza are a single em- ployer; however, it appears from counsel for the General Counsel’s brief that he has accepted Respondent’s representation that the named entities are joint employers, and I so find. Hotel in Secaucus, New Jersey] excluding office clerical em- ployees, confidential employees, executives, guards and su- pervisors as defined in the Act. Respondent denies that this is an appropriate unit, alleging that during bargaining, the Union agreed to two units: one con- sisting of food and beverage employees employed by La Plaza and one of housekeeping employees, employed by Rosdev. In this regard, it appears that in response to a proposal put forth by Respondent, the Union stated that it was willing to discuss ne- gotiating two separate collective-bargaining agreements. How- ever, to date, the parties have not entered into a collective- bargaining agreement covering any of the enumerated employ- ees or any other agreement redefining the scope of the extant collective-bargaining unit. As this historically has been the unit represented by the Union, I find that it is an appropriate unit. Felcor and the Union were parties to a collective-bargaining agreement which expired on September 30, 2003 (the Felcor agreement). On September 30, 2004, counsel for the Crowne Plaza sent a letter to the Union providing, in relevant part: As you know, the collective bargaining agreement (“Agreement”) between UNITE HERE Local 69 (Local 96), and the Crowne Plaza Meadowlands Hotel (“Hotel”), was set to expire by its terms on September 30, 2003 and has been extended. Subsequent negotiations have been held regarding a Successor Agreement. As we have ad- vised you, the Hotel is scheduled to be sold to Rosdev Ho- tel Management Services, Inc. (“Rosdev”); the anticipated closing date for this sale is October 26, 2004. We have previously agreed to meet for the purpose of discussing “effects” bargaining issues on October 8, at 1:00 p.m. . . . . This is to further confirm that the current Agreement shall be extended and shall continue in full force and ef- fect unless either party gives the other ten (10) days writ- ten notice of intent to terminate said Agreement. This letter was subsequently executed by representatives of both the Crowne Plaza and the Union.8 B. Respondent Assumes Operations at the Hotel On December 23, 2004, Felcor completed an asset sale of the Hotel to Respondent. Peter Valenzuela was hired as a consult- 8 This document was entered into evidence over the objection of counsel for Respondent, who notes that the complaint alleges that the “most recent” collective-bargaining agreement was one which expired by its terms on September 30, 2003. Respondent maintains that there was no agreement in existence at the time it assumed operations of the Hotel. In this regard, on January 4, counsel for Respondent wrote to the Union asserting that, “[i]t has been brought to my attention that there was no agreement in effect between the seller of the Crowne Plaza and the Union at the time of its most recent acquisition.” On January 6, the Union responded with its assertion that the collective- bargaining agreement had not expired, enclosing a copy of the letter described above. As has been previously noted, whether or not there was a current collective-bargaining agreement in existence at the time of the sale, counsel for the General Counsel does not contend that Re- spondent agreed to adopt any such agreement between its predecessor and the Union. ROSDEV HOSPITALITY, SECAUCUS, LP 205 ant to Respondent in early December 2004, prior to the sales transaction. Valenzuela arrived at the facility on about Decem- ber 10, and was provided with an office at the Hotel. Valenzuela spent 3 or 4 days a week at the facility, reviewing profit and loss statements, consulting with Herre and familiariz- ing himself with the operations of the Hotel. Valenzuela testi- fied that the sales contract between Felcor and Respondent obligated Respondent to hire 66, two thirds percent of the Ho- tel’s work force. He further stated that he made the decision on December 22 to hire all of the predecessor’s hourly employees, with the exception of the bartenders, due to Respondent’s lack of a liquor license. Beginning in early December 2004, Awilda Maldonado, who at the time was Felcor’s assistant director of human resources,9 began distributing employment applications to employees which named “Rosdev” as the employer. Maldonado testified that Herre told her that Felcor planned to remove its personnel records after the sale and instructed her to obtain employment applications from another Rosdev facility located in Connecti- cut and have employees complete the applications for Respon- dent’s files. Maldonado distributed the applications to employ- ees in small groups over a period of several days. As she did so, various employees asked her questions about whether there would be changes when Rosdev took over. Maldonado admit- ted that she told employees that things would remain the same after the takeover, but when testifying herein stated that that she understood those statements to refer to job classifications and positions. When asked what she told employees regarding issues such as paid vacations and sick leave, Maldonado testi- fied, “I said paid time off would be—seniority would be hon- ored for scheduling reasons—scheduling purposes—but I didn’t know what was going to happen with vacations, meaning paid time off and things like that. It would have to be negoti- ated with the Union and the new owner. But my opinion was it was not going to be honored.” According to Maldonado, she made clear that this was her opinion. She further testified that her instructions relating to the distribution of the employment applications to employees came from Felcor, and she was not authorized by Respondent to make representations to employ- ees regarding terms and conditions of employment, including paid vacation and sick leave policy. A number of employees called by counsel for the General Counsel testified that, in their interactions with Maldonado, they were assured, in essence, that everything would remain the same. This testimony was echoed by Union Representative Rebecca Perez, who was present for a period of time while the applications were being completed. Employees Tommie Wil- son, Milan Petesic, and Maria Ortiz additionally testified that Maldonado’s assurances extended to specific questions con- cerning paid vacation and sick leave. According to Edmund Bermudez, Maldonado told him that she thought seniority would be honored for scheduling, but she didn’t know about vacations. 9 Maldonado was retained as Respondent’s human resources direc- tor. At the time of the hearing, Maldonado was no longer employed by Respondent. Respondent assumed operations of the Hotel on December 23, 2004. Virtually all the predecessor’s employees were hired (with the exception of four or five bartenders, as noted above). There was no hiatus in operations, no substantial change in business operations or services offered to the general public. After the sale was completed, in January 2005, Maldonado distributed additional employment applications to food and beverage employees naming La Plaza as the employer. Valenzuela testified that he did not meet with Maldonado un- til after Respondent assumed operations at the Hotel. He ad- mitted that he did not communicate, either orally or in writing, any changes to the terms and conditions of unit employees prior to or upon the assumption of operations, and he was not aware that any other representative or agent of Respondent had done so either. Valenzuela testified, and Union Assistant Trustee Robert Demand confirmed, that prior to the takeover, the Union did not provide Respondent with any information regarding past practices or special interpretations with respect to the Fel- cor agreement. On or about February 5, Valenzuela held an employee luncheon where he introduced himself and told employees that he had an “open door” should they have any concerns. He testified that he told employees, “[t]hat we’re a successor, even though I’m not sure I used those words, but basically that things in terms of salaries, that we’re not going to change any wage rates, or that we’re going to continue with the same rates, the same working conditions that I understood from this, we’re continuing on.” He also told employees that Respondent would “follow” the contract. When the sales transaction was completed and Respondent took over the operation of the Hotel, Felcor paid out to employ- ees their accrued but unused vacation benefits.10 C. The Relevant Contractual Provisions The preamble to the Felcor agreement defines Felcor as the “Employer.” Article 12 of the agreement provides as follows: For purpose of this Agreement, employees shall have two (2) types of seniority: A. (1) Hotel Seniority is defined as the length of con- tinuous service with the Employer, measured from the most recent date of hire. (2) Department Seniority is defined as the length of service in a job classification measured from the date the employee is regularly assigned to that job. B. (1) Hotel Seniority shall be used to determine length of service for vacation and pension benefits. (2) Department Seniority shall be used to deter- mine order of selection of vacation periods, scheduling of days off, order of layoff and recall, order of employee call- in and preferences on leaves of absence. 10 Valenzuela testified that at some point prior to Respondent’s as- sumption of operations he was shown a letter from Felcor addressed to union-represented employees. This letter provides, among other things, for a payout of accrued vacation time. There is no evidence, however, that employees were ever sent this letter, and it does not appear that Respondent contends that it was ever distributed to employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206 Section 14(A) of the Felcor agreement provides for paid va- cations, as follows: All regular scheduled full time employees covered by this Agreement who shall have been employed continuously for the period specified below shall receive the following annual vacations with pay: One year but less than two years . . . . . one week Two years but less than five years . . . . two weeks Five years but less than ten years . . . . . three weeks Ten years but less than twenty . . . . . . . four weeks Twenty years or more . . . . . . . . . . . . . . five weeks Section 28 of the agreement provides for paid sick time as follows: “All employees covered by this Agreement who have been continuously employed by the Employer for a period of at least one (1) year shall be entitled to five (5) days sick leave with pay.” D. The Alleged Unilateral Changes Respondent and the Union first met to bargain on February 23. Demand had heard from employees that their respective supervisors had told them that Respondent was planning to treat them as new hires. At the bargaining table, Respondent with- drew a written proposal previously given to the Union, explain- ing that it had not been cleared by Respondent’s financial advi- sors, and stated that it would present a written proposal at the next meeting. The Union went through their initial proposal for a 3-year agreement and, during the course of the discussion, Respondent’s attorney, Norman Buchsbaum, advised the Union that as one of the steps it was taking to improve the economic situation at the Hotel Respondent would not recognize years of service with any other employer for crediting the amount of vacation time earned by employees. Respondent was going to treat its workers as new employees,11 and while it would con- sider seniority accrued with Felcor for purposes of layoff and recall, it would not count toward paid time off. Respondent asserted that its position was in accordance with article 12 of the Felcor agreement, which defined employees’ seniority in this regard as service with “the Employer.” Respondent as- serted that under the contract this meant service with Felcor and not service at the Hotel. Thereafter, at a bargaining session held on March 8, Respondent submitted a written proposal to the Union seeking to interpret the phrase “hotel seniority” as to refer to employment with Rosdev and La Plaza rather than Felcor: Seniority shall be determined by departments and classifica- tions with the departments. Seniority shall govern vacation preference as well as layoffs. Hotel seniority refers to the length of service with Rosdev in the bargaining unit position and shall apply in determining eligibility for fringe benefits provided under this Agreement. 11 Demand testified that when this was first brought to his attention during negotiations, he asked the employee members of the bargaining committee whether they had ever been told that their employment was going to be terminated. These employees denied that they had ever been so informed. On April 11, the Union submitted a revised bargaining pro- posal seeking changes to the language of section 12 as follows: The Union is modifying its Section A(1) to read as follows: Hotel Seniority is defined as the length of service at the hotel, measured from their original date of hire. [Emphasis in origi- nal.] To date the parties have reached no agreement regarding how hotel seniority is to be computed. The record fails to con- tain evidence regarding any subsequent negotiations concerning this issue. E. Employee Seniority and Leave Eligibility Prior to December 23 and Thereafter Felcor had purchased the Hotel in 1997. It appears from the record, however, that Felcor honored the employees’ prior ser- vice at the Hotel for purposes of determining paid vacation leave. For example, Milan Petesic has worked at the Hotel for 29 years. In 2004, under Felcor, he earned 5 weeks’ paid vaca- tion, which he would only be entitled to after 20 years of ser- vice, as noted above. Edmund Bermudez worked at the hotel for 21 years, except for a 3-month period in 1987. In 2004, he earned 4 weeks’ paid vacation. Similarly Tommie Wilson, a 13-year employee at the Hotel, earned 4 weeks of paid vacation in 2004, as did Debra Sullivan, also a 13-year employee and Maria Ortiz, a 12-year employee. All of these employees re- ceived no paid vacation time for the first year after Rosdev assumed operations. Valenzuela testified that the policy Respondent followed since it took over operations at the Hotel was to accord em- ployees no paid vacation or sick leave during the first year they worked for Respondent. Thereafter, employees would receive 1 week of paid vacation after 1 to 2 years of service with Ros- dev or La Plaza, and an additional week for service from 2 to 5 years. Valenzuela could not recall the schedule for additional periods. Valenzuela additionally acknowledged that employees were required to work 1500 hours during the year to obtain seniority credit for that year.12 F. The Alleged 8(a)(1) Violation Gisela Figueroa, who is employed as a hostess/cashier in the Hotel restaurant, testified that she first met Housekeeping Su- pervisor Jonathan Duran during a break in the smoke room in early March 2005. At this point in time Duran, who was em- ployed with Respondent from late February to July 2005, had been with the Hotel only a short period of time.13 On this occasion, Figueroa was on a break and was convers- ing with Banquet Captain Mario Taboada and Chef/Kitchen Manager Boris Nanajara.14 Figueroa was an employee-member of the union bargaining committee and Taboada and Nanajara 12 This requirement does not appear in the Felcor agreement. How- ever, as noted above, there is a requirement that employees be “con- tinuously employed” to be eligible to receive credit toward their vaca- tion or sick leave for any particular year. 13 The parties stipulated that Duran is a supervisor within the mean- ing of the Act. 14 In his brief, counsel for Respondent characterizes the chef/kitchen manager as a managerial employee. ROSDEV HOSPITALITY, SECAUCUS, LP 207 were “making fun of the union and our contract and they were joking around.” Duran entered the room, and Figueroa testified that she understood that he had just left a manager’s meeting.15 According to Figueroa, Duran advised Figueroa to get the Company’s health insurance. He went on to state that, “I think it is a good deal because I just heard upstairs that they’re going to get rid of the Union.” Nanajara, who had also recently come from the meeting, then told Duran to leave Figueroa alone be- cause she was very sensitive about the Union. Duran, who is no longer employed by Respondent, did not testify, nor did Taboada or Nanajara. On cross-examination, counsel for Respondent elicited tes- timony that Figueroa did not complain to anyone in manage- ment about Duran’s comments. She did inform her union rep- resentative, Katie Conner, but stated that Conner “let it drop” and no grievance was filed. The record does establish, how- ever, that Demand learned of the comment, although he did not attribute it to anyone in particular, and at a bargaining meeting requested assurances that Respondent was going to continue bargaining with the Union. IV. ANALYSIS AND CONCLUSIONS A. Applicable Legal Principles The Board’s traditional test for determining if a purchaser has a duty to continue the bargaining relationship established by its predecessor is whether there is a substantial continuity in the employing enterprise. A comparison of business opera- tions, plant, work force, jobs, working conditions, supervisors, machinery, equipment, production methods, and product of service is made to ascertain if continuity exists. Fall River Dying Corp. v. NLRB, 482 U.S. 27, 42–46 (1987). In the in- stant case, there is no doubt, and Respondent admits, that it is a successor employer. Respondent continued providing the same service to its customers without any hiatus, at the same loca- tion, and using the same supervisory and nonsupervisory staff. As the Supreme Court has held: Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially con- sult with the employees’ bargaining representative before he fixes terms. NLRB v. Burns Security Services, 406 U.S. 272, 294–295 (1972). In Spruce-Up Corp., 209 NLRB 194, 195 (1974), enfd. 529 F.2d 516 (4th Cir. 1975), the Board stated that the “perfectly clear” caveat should: be restricted to circumstances in which the new employer has either actively or, by tacit inference, misled employees into believing that they would all be retained without change in their wages, hours, or conditions of employment, or at least to circumstances where the new employer . . . has failed to 15 According to Figueroa, the manager’s meeting was held between 9 and 10 a.m. The discussion at issue took place at about 9:45. clearly announce its intent to establish a new set of conditions prior to inviting former employees to accept employment. Moreover, under Spruce-Up and its progeny, any potential announcement in terms and conditions of employment must be clearly set forth prior to or upon takeover. The successor em- ployer is free to set new initial terms and conditions of em- ployment up until the moment when it offers employment to the predecessor employer’s employees, but not after. Arden’s 211 NLRB 510, 512 (1974). See also Canteen Co., 317 NLRB 1052 (1995), enfd. 103 F.3d 1355 (7th Cir. 1977), where a suc- cessor employer made “perfectly clear” to the union representa- tive that all employees would be hired, a wage reduction an- nounced to employees the next day, prior to formal offers of employment being extended, was found to be an unlawful uni- lateral change. Moreover, even if an employer announces some changes in terms and conditions of employment, it is not thereafter privi- leged to make other changes that are not specifically announced to employees before the takeover. 301 Holdings, LLC, 340 NLRB 366, 367 (2003) (posttakeover termination of fringe benefits unlawful because successor failed to announce them prior to takeover); Specialty Envelopes Co., 321 NLRB 828, 832 (1996) (although Burns successor lawfully announced cer- tain changes prior to takeover, unannounced change in atten- dance policy 1 month later was unlawful). This is the case, even where the change occurs shortly after the respondent as- sumes operations. See, e.g., Bronx Health Plan, 326 NLRB 810, 813 (1998). Moreover, generalized or speculative state- ments that a successor employer may make future unspecified changes are not sufficient to put employees on notice. See, e.g., East Belden Corp., 239 NLRB 776, 793 (1987). Similarly, discussion of possible changes, even if in specific terms, is not sufficient to put employees on notice. See, e.g., Fremont Ford, supra, where the successor employer told the unions that it had doubts about the retention of only a few unit employees, its stated desire to change seniority and institute a flat rate was found to be insufficient to indicate its intent to establish new conditions of employment. Thus, to the extent an employer’s pretakeover announcement contains ambiguities regarding the terms and conditions of employment offered to employees, such ambiguities will be resolved against the employer. Applying these principles to the facts of the instant case, I find that the “perfectly clear” caveat is applicable herein. Thus, as discussed above, the Respondent solicited employment ap- plications from its employees beginning in early December 2004. Respondent has acknowledged that was no clear an- nouncement at this time or by the time it assumed operations on December 23, that Respondent intended to establish new terms and conditions of employment.16 16 During the hearing a considerable amount of testimony was ad- duced, over Respondent’s continuing objection, regarding comments that Maldonado allegedly made to employees at the time she distributed employment applications in early December. Counsel for the General Counsel contends that the evidence establishes that Maldonado acted with apparent authority on behalf of Respondent and, as its agent, as- sured employees that their terms and conditions of employment would remain the same. Respondent contends that Maldonado was acting on DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208 B. The Alleged Unilateral Changes The complaint alleges that after it assumed operations Re- spondent announced for the first time that, for the purposes of benefits including vacation accrual and sick leave accrual, it considered employees’ seniority to commence on the date Re- spondent began its operations at the Hotel and that as a result of these actions, Respondent reduced employees’ vacation accrual rate and sick leave accrual rate. Respondent does not deny that it has done so, but argues that its actions were privileged by the terms of the Felcor agreement. While Respondent asserts, ap- parently with the concurrence of the General Counsel, that it did not assume or adopt the Felcor agreement, Respondent maintains that it looked to this document to understand and maintain the status quo as it negotiated a new contract with the Union. In particular, Respondent argues that it determined the status quo of employees’ seniority for purposes of vacation and sick leave calculation as defined by section 12. As Respondent states in its brief: [T]he plain language of Section 12 of the predecessor’s Agreement with the Union supports Respondent’s actions. Respondents maintained the employees’ terms according to the plain language to which the Union had previously agreed . . . [which] defines employee seniority for purposes of calcu- lation of vacation and sick leave benefits to employment ser- vice with a named Employer, here Felcor, the “Employer” defined in the preamble, definitional paragraph of the Felcor Agreement; and not service to the hotel. [Emphasis in origi- nal.]17 Respondent maintains that the plain language of section 12 of the Felcor agreement demonstrates that the Union previously agreed that a change of employer at the Hotel necessarily would change employees’ seniority for purposes of vacation and sick leave calculation. In this regard, Respondent contends that the Union’s April counterproposal, seeking to redefine the method by which hotel seniority would be calculated, consti- tutes an admission against interest that the language in the Fel- cor agreement supports Respondent’s interpretation of the con- tract. Respondent further argues that it did not effect a unilat- eral change because the plain language of the Felcor agreement preempts resort to past practice for its interpretation.18 In its instructions from Felcor, as a Felcor employee, and that she was viewed as such by the employees in question. The Charging Party also takes the position that Maldonado was not acting as an agent of Re- spondent at the time. On consideration, I find that under the circum- stances of this case, Maldonado’s agency status is irrelevant to a deter- mination of the issue of whether Respondent is a “perfectly clear” successor herein. The evidence establishes that Maldonado did not announce new terms of employment to employees but rather responded to employee questions with her opinion, in an ad hoc manner. Such comments are not sufficient to constitute the sort of clear and unambi- guous announcement of new terms that is required by the Board. 17 Respondent further argues that had it been compelled to assume the Felcor agreement the term “Employer” would have applied to Re- spondent and the plain language of sec. 12 would have defined the employees’ seniority for purposes of vacation and sick leave calcula- tion to their hire date by Respondent, i.e., December 23, 2004. 18 In support of this contention, Respondent cites to a treatise on ar- bitration law, Elkouri and Elkouri, How Arbitration Works, Sixth Edi- brief, Respondent maintains that where the predecessor’s con- tract has expired, Board law does not require a successor em- ployer to adopt the predecessor’s past practices: (“One reason it undoubtedly takes this posture is how would a successor dis- cern what those practices were? What would happen if there was a dispute about the contents of the applicability of an al- leged past practice?”) In support of its contentions, Respondent cites Ameristeel Corp. v. Teamsters, 297 F.3d 264, (3d Cir. 2001),19 quoting Pick-Mt. Laurel Corp. v. NLRB, 625 F.2d 476 (3d Cir. 1980), where the Third Circuit held “that a successor does not stand in the same shoes as its predecessor because it will not be bound to the previously bargained for terms, [and] the [Supreme] Court construed the relevant policies to prevent imposing on the successor an obligation to be bound by past events and arrangements.” Id. at 484. When read in context, however, it is apparent that the foregoing discussion relates to the question of whether a successor can be bound to the prede- cessor’s collective-bargaining agreement (an issue not before me), and not to whether past practices constitute terms of em- ployment that a successor is obliged to honor. Respondent also cites, among other cases, Made 4 Film, Inc., 337 NLRB 1152 (2002), where the Board, quoting R.E.C. Corp., 296 NLRB 1293 (1989), held that, “Generally, an em- ployer has a statutory obligation to follow the terms and condi- tions in an expired contract until a new agreement is concluded or good faith bargaining leads to impasse.” That case, which involved an employer’s continuing obligation to make benefit fund contributions beyond the expiration date of a contract, addresses issues which are not directly relevant herein. It is well settled that a successor employer, like any other, violates Section 8(a)(5) by making unilateral changes to terms of employment which are mandatory subjects of bargaining. NLRB v. Katz, 369 U.S. 736 (1962). Even in circumstances where an employer has set certain initial terms, employers still have an ongoing obligation to bargain with a union over any subsequent changes to terms and conditions of employment. 301 Holdings, LLC, supra; Specialty Envelopes, supra. Under Board law, in the absence of any initial announcement of new terms and conditions of employment, a successor em- ployer must maintain the status quo regardless of whether it adopts a predecessor’s collective-bargaining agreement. More- over, an employer’s past practices and unwritten policies which involve the application of terms and conditions of employment are viewed as mandatory subjects of bargaining which are pro- tected from unilateral change. Peerless Food Products, 236 tion, p. 627 fn. 120, and various arbitration cases referred to therein. According to Respondent, this authority stands for the proposition that where there is a conflict between the clear and unambiguous language of a contract and an asserted past practice an arbitrator is required to follow the language of the contract. 19 In that case, a steel manufacturer bought an existing plant and ex- pressly refused in the purchase agreement to be bound by the predeces- sor’s collective-bargaining agreement. It thereafter sought an injunc- tion to prevent the arbitration of disputes with the union pertaining to the agreement. In granting the injunction, the court found the successor could not be forced to arbitrate the extent of its obligations under that agreement, because it had none, and any arbitration award would be unenforceable. ROSDEV HOSPITALITY, SECAUCUS, LP 209 NLRB 161 (1978), citing Granite City Steel Co., 167 NLRB 310 (1967). Contrary to the assertions of Respondent, Board law requires that a successor employer who is obliged to main- tain the terms and conditions of employment of its predecessor must also maintain its past practices and unwritten policies. Once the duty to bargain has attached, the successor is pre- cluded from unilaterally changing those terms and conditions of employment. Blitz Maintenance, 297 NLRB 1005, 1008 (1990), enfd. 919 F.2d 141 (6th Cir. 1990); Likra, Inc., 321 NLRB 134, 137 (1996). Moreover, it is undisputed that paid vacation and sick leave are mandatory subjects of bargaining. See Pine Brook Care Center, 322 NLRB 740, 748 (1996) (and cases cited therein). Unilateral changes made in the manner in which such benefits are accrued are violative of the Act, as are unilateral changes in employee seniority. This is true even in situations where em- ployee entitlement to such benefits and status stems from the predecessor’s past practice, rather than any contractual obliga- tion. In Hilton’s Environmental, 320 NLRB 437, 439 (1995), the Board, reversing the administrative law judge, found that a successor employer could not lawfully claim to rely on contrac- tual provisions to support the unilateral imposition of a new probationary period for employees. The predecessor’s agree- ment, which the successor there adopted, called for a 60-day probationary period for new or rehired employees. The judge found that the respondent had effectively hired or rehired the employees when it commenced operations and could lawfully impose a new probationary period. In rejecting the judge’s analysis, the Board found that the imposition of a new proba- tionary period was inconsistent with an established past prac- tice of the predecessor and was not authorized by the collec- tive-bargaining agreement. In Stephenson Haus, 279 NLRB 998, 1003 (1986), as here, the General Counsel did not contend that the respondent had adopted its predecessor’s collective- bargaining agreement. In that case, the administrative law judge, affirmed by the Board, found that the respondent vio- lated Section 8(a)(1) and (5) of the Act when it changed the manner in which waitresses were assigned to work at banquets, thereby unilaterally discontinuing crediting for seniority any service by an employee to the employing industry rendered prior to the date the respondent assumed operations and creat- ing a situation whereby almost every employee had identical seniority.20 And, in Kirby’s Restaurant, 295 NLRB 897, 901 (1989), cited by counsel for the General Counsel, the Board found an employer’s unilateral elimination of seniority credit earned during employment with predecessor employers which was used for purposes of determining vacation pay entitlement violated Section 8(a)(1) and (5) of the Act.21 In that case, the 20 As part of the remedy therein, the respondent was ordered to as- sign its waitresses to serve banquets on the basis of seniority accrued since their original date of hire at the facility in question. 21 In that case, the relevant contractual provision provided, inter alia, that “[t]he period of service for the purpose of earning a vacation with pay shall begin with the date of employment with the particular em- ployer.” (Emphasis added.) respondent unsuccessfully argued, as Respondent does here, that its employees were new hires.22 Reviewing the above noted precedent, I do not find any sup- port for Respondent’s argument that the contractual language of the Felcor agreement privileges it to unilaterally eliminate years of employee seniority, or alter the method by which vacation and sick leave is accrued.23 As the Board has long held: “al- though the policy does not derive from the express terms of the collective bargaining agreement, the past practice elevates it to a term of employment not susceptible to unilateral change.” Peerless Products, supra at 161.24 With respect to Respondent’s argument that it was not fur- nished with any written accounting of past practices or special interpretations of the Felcor agreement, I note that Respondent has not argued, and there is no evidence, that it was unaware of past practices regarding seniority or the accrual of paid vacation 22 Respondent’s argument that Felcor terminated the employment of its employees, and that they were all initially hired by Respondent on the date it assumed operations is a semantic distinction without a dif- ference. Obviously, at some point in time Felcor ceased to be the em- ployer of the employees in question, and they were transferred to Re- spondent’s payroll. There is no evidence, however, that employees were ever notified that their employment was being terminated, that any steps were taken to implement such a personnel action or that there was any hiatus in operations. What is significant for the purposes of this case is whether employees were told that should they continue on with the new employing entity, such employment would continue under changed circumstances. In this case, it is apparent that they were not so apprised. Moreover, as discussed above, such an argument has been considered, and rejected in similar contexts. See Kirby’s Restaurant, supra at 900; Hilton’s Environmental, supra at 439. 23 In this regard, I do not concur with Respondent’s apparent argu- ment that the language of the Felcor agreement constitutes a waiver of the Union’s right to bargain over this issue. As is well-settled, employ- ees’ rights to their vested benefits cannot be divested without an effec- tive waiver from their bargaining representative. The Board, and the courts, have repeatedly held that waivers of statutory rights “are not to be lightly inferred, but instead must be ‘clear and unmistakable.’” Georgia Power Co., 325 NLRB 420 (1998), enfd. mem. 176 F.2d 494 (11th Cir. 1999), citing Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). “Either the contract language relied upon must be specific or the employer must show that the issue was fully discussed and consciously explored and that the Union consciously yielded or clearly and unmistakably waived its interest in the matter.” Georgia Power Co., 325 NLRB at 420–421. In considering the waiver, the Board also considers extrinsic evidence bearing on the parties’ intent, including bargaining history and past practice under the contract. See Indianapolis Power & Light Co., 291 NLRB 1039, 1040–1041 (1988), enfd. 898 F.2d 524 (7th Cir. 1990). In the instant case, I find that the contractual language relied upon, viewed in conjunction with an estab- lished past practice of crediting seniority earned with prior employers not only fails to meet this exacting standard but strongly militates in favor of the conclusion that there was no waiver. In this regard, I do not find the Union’s April bargaining proposal to constitute any sort of “admission against interest,” as Respondent suggests, but rather con- strue it as further evidence that the Union never “consciously yielded” its interest in this matter. 24 The fact that Felcor paid employees for their accrued time as of the date it ceased operations does not relieve Respondent of its continu- ing obligation to honor the method previously employed to determine the amount of paid vacation and sick leave owed to employees on an annual, ongoing basis. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 210 and sick leave. In this regard, Valenzuela testified that he spent some 2 weeks reviewing Felcor records, including profit-and loss-statements. I find it unlikely that under these circum- stances he would not have familiarized himself with Respon- dent’s paid time off policies. Moreover, I note that the Board has rejected the contention that a successor’s initial ignorance of a past practice would serve to excuse a subsequent unilateral decision to terminate that practice. See Pepsi-Cola Distributing Co. of Knoxville, Tenn., 241 NLRB 869, 970 (1979) (em- ployer’s unilateral discontinuation of practice of paying a year- end bonus to salesmen not excused by fact that it was unaware of the practice at the time it purchased the business or an- nounced to employees that working conditions would remain the same). Accordingly, I find that Respondent’s unilateral change in seniority for unit employees and concomitant changes in the manner in which paid vacation and sick leave is accrued vio- lated Section 8(a)(1) and (5) as alleged. C. The Alleged Violation of Section 8(a)(1) The complaint alleges that Respondent violated Section 8(a)(1) when its supervisor, Jonathan Duran, informed employ- ees that the Employer is going to get rid of the Union.25 At the hearing, and in its brief, Respondent moved to strike this alle- gation of the complaint insofar as it asserts that the Regional Office failed to conduct a proper investigation and, in particu- lar, never provided it with an opportunity to present evidence to rebut the allegation. I note, however, that the first amended charge in Case 22–CA–26794 specifically alleges that “the Employer has told employees that there will be no Union at the Hotel, and that management is getting out of the Union.” Moreover, it is well settled that “it is not the function of the charge . . . to give notice to a respondent of the specific claims made against him. Rather, that is the function of the com- plaint.” Redd-I, Inc., 290 NLRB 1115, 1116–1117 (1988) (em- phasis in original). I further note that when Respondent filed its motion for a bill of particulars it requested information about the location where the comment was allegedly made, but did not request to be advised of the surname of the agent involved, identified in the complaint as Jonathan (last name unknown).26 I conclude therefore, that irregardless of any alleged deficien- cies in the investigatory process, Respondent was sufficiently put on notice by the complaint of both the identity of this indi- vidual as well as the nature of the alleged violation and had a full opportunity to garner and present evidence to rebut the allegations contained therein. Where, as here, a respondent has 25 The complaint as issued identifies this individual as a housekeep- ing supervisor named Jonathan (last name unknown). I note that in Respondent’s motion for a bill of particulars, Respondent requested information regarding where the alleged statement was made to em- ployees (which was supplied by counsel for the General Counsel), but did not request the General Counsel to identify the supervisor allegedly making such comments by surname. At the hearing, this individual was identified as Jonathan Duran, and Respondent admitted that he was a supervisor of Respondent during his employment. 26 At the hearing, the parties stipulated that Duran is the individual referred to in the applicable paragraph of the complaint and that Duran was a supervisor within the meaning of the Act. ample opportunity to defend against an allegation of unlawful conduct, the requirements of procedural due process are satis- fied. Redd-I, supra at 1117. Accordingly, I deny Respondent’s motion to dismiss this allegation of the complaint. As a substantive matter, Respondent contends that, even if such a comment was made, this type of stray remark standing alone is not the sort that coerces, restrains, or interferes with the exercise of employees’ Section 7 rights. In support of this ar- gument, Respondent describes Duran as a new employee and low-level supervisor27 who did not have any supervisory au- thority over Figueroa and who was simply joining in a smoke- break conversation. Respondent argues that Duran made no threat to Figueroa, nor did he promise her a benefit and notes that he was remonstrated by the chef/kitchen manager for his remark. Respondent characterizes Duran’s comment to Figue- roa as “hearsay” and states that there is no evidence that Duran knew what he was talking about, or had heard any purported comment correctly. Respondent denies that Duran had agency status as his comment was not made in furtherance of any offi- cial agenda or policy of Respondent, and notes that the Board has held that a person may be an agent of an employer for one purpose, but not another.28 Respondent further argues that it is obvious that the Union did not take Duran’s purported com- ment seriously, as it did not choose to pursue the matter. Moreover, Respondent maintains, there is no allegation or evi- dence that it had any antiunion animus, and points to the fact that as a successor employer it immediately recognized and commenced bargaining with the Union. All the above circum- stances, it is contended, support a finding that Duran’s conduct was not a violation of the Act. The basic test for an 8(a)(1) violation is whether the em- ployer engaged in conduct, regardless of intent, which reasona- bly tends to interfere with the free exercise of employee rights under the Act. American Freightways Co., 124 NLRB 146, 147 (1959). In this regard, the Board, in varying contexts, has held that supervisory statements to employees to the effect that an employer is planning to “get rid” of a union are violative of the Act. See, e.g., Hotel Roanoke, 293 NLRB 182, 189 (1989); L. W. LeFort Co., 290 NLRB 344, 349 (1988). See also Basic Metal & Salvage Co., 322 NLRB 462, 464 (1996). With regard to the issue of Duran’s agency status, the Board has held that “an employer is bound by the acts and statements of its supervisors whether specifically authorized or not.” Dobbs International Services, 335 NLRB 972, 973 (2001). See also Grouse Mountain Lodge, 333 NLRB 1322, 1328 fn. 7 (2001), enfd. 56 Fed. Appx. 811 (9th Cir. 2003). This is true 27 The only evidence in the record pertaining to the scope of Duran’s supervisory responsibilities is a memorandum issued on July 1 citing deficiencies in the accuracy his daily reports regarding departures and vacant clean rooms. 28 In support of this position, Respondent cites Sea Mar Community Health Centers, 345 NLRB 947 (2005) (quoting Pan Olston Co., 336 NLRB 305, 306 (2001)). In that case, the Board found the respondent did not violate the Act when it unilaterally closed a dental lab which had been established by a supervisor albeit without authorization and directly contrary to the wishes of the respondent’s highest management. In that instance, the Board found that the supervisor acted outside the scope of his agency. ROSDEV HOSPITALITY, SECAUCUS, LP 211 even where the supervisor’s acts are contrary to the employer’s instructions. Id. See also Dixie Broadcasting Co., 150 NLRB 1054, 1079 (1965). In support of its argument that Duran’s comment did not rise to a violation of the Act, Respondent relies on Awrey Bakeries, 335 NLRB 138 (2001). In that case, a first-line supervisor attempted to prevent an employee-member of the union govern- ing committee from attending a meeting with management, clearly within the scope of his responsibilities, and threatening him with discipline if he did so. The evidence established that the supervisor in question was under a misapprehension about what the employee could do by way of union activities during the workday. The employee, who was more familiar with his rights than the supervisor, attended the meeting without conse- quence. Shortly thereafter, a managerial employee informed the supervisor about the scope of union activities which the employee was authorized to enter into during the workday and there were no further problems. The administrative law judge found that in the “context of a long and apparently good bar- gaining relationship, it would be illogical and inequitable to find that this momentary misunderstanding, promptly amelio- rated, constituted a refusal to bargain.” The judge further found that the supervisor’s threat of discipline was not an independent violation of Section 8(a)(1). In the instant case, an employee-member of the union bar- gaining committee was told by a member of Respondent’s su- pervisory staff that she should obtain the Company’s health insurance because Respondent was planning to “get rid” of the Union. This statement was made in the context of bargaining for an initial contract, and in the face of substantial unilateral changes implemented by Respondent subsequent to its assump- tion of operations at the Hotel. In addition, these comments were made to Figueroa apparently within moments of a meeting of managerial personnel, and were placed in that context by Duran (who reported what he had heard “upstairs”). Under these circumstances, I find that Duran’s comments to Figueroa were not of a negligible nature.29 While it is true that another managerial employee intervened to stop the discussion from going forward, there was nothing by way of “prompt ameliora- tion” of the impact of such comments. The Board has long held that while an employer can sometimes relieve itself of liability for unlawful conduct by repudiating such conduct, effective repudiation requires that it be timely, unambiguous, specific to the coercive conduct, free from other unfair labor practices, adequately published to employees, and containing assurances that no further interference with Section 7 rights will occur. Passavant Memorial Hospital, 237 NLRB 138, 139 (1978). Such criteria have not been met here. Under these circum- stances, I conclude Respondent has violated Section 8(a)(1) of the Act, as alleged.30 29 Respondent’s argument that the Union did not take the comment seriously is belied by the fact that Demand specifically asked for assur- ances that Respondent was going to continue bargaining with the Un- ion. 30 I note that Respondent additionally challenges Figueroa’s credibil- ity. I found, however, that she testified in a forthright and credible manner. Moreover, her testimony on this issue is unrebutted. I note that Duran is no longer employed by Respondent. However, Respon- CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. UNITE, HERE Local 69 is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All bellmen/valets, bartenders, bar assistants, tournant cooks, cooks I, cooks II, pantry workers, room attendants, housemen, pot washers, stewards, night cleaners, cafeteria attendants, hosts-hostesses/cashiers, servers, bus persons, storeroom em- ployees, and linen employees employed by Rosdev Hospital- ity, Secaucus LP and La Plaza, Secaucus, LLC, at its facility located in Secaucus, New Jersey, excluding office clerical employees, confidential employees, executives, guards and supervisors as defined in the Act. 4. At all material times, the Union has been the exclusive representative of the employees in the above-described appro- priate unit, for the purposes of collective bargaining with re- spect to wages, rates of pay, hours of employment, and other terms and conditions of employment. 5. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act by: (a) Unilaterally, without notice to or consultation with the Union, announcing that for purposes of benefits including vaca- tion leave and sick leave accrual, employees’ seniority would commence on December 23, 2004. (b) Unilaterally, without notice to or consultation with the Union, reducing the accrual rate of vacation leave and sick leave for employees in the unit. 6. Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, and has thereby engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by informing its em- ployees that Respondent is going to get rid of the Union. 7. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Having found that Respondent uni- laterally changed the manner in which seniority is determined and unilaterally changed the accrual rate of vacation leave and sick leave of its unit employees, I shall recommend that Re- spondent cease and desist from making unilateral changes in the wages, hours, and other terms and conditions of employ- ment in the appropriate unit herein, and that Respondent make dent presented no testimony from Nanajara, an admitted manager, to refute her account. Nor has Respondent explained why it could not do so. I conclude that its unexplained failure to adduce testimony on this issue gives rise to an inference that, had Respondent called this witness to testify, such testimony would have been adverse to Respondent. GATX Logistics, 323 NLRB 328, 331 fn. 9 (1997); Asarco, Inc., 316 NLRB 636, 640 (1995). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 212 whole the employees for any loss of pay or other benefits they may have suffered as a result of Respondent’s unilateral changes with interest as set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). I shall also recommend that Respon- dent rescind its unilateral changes and restore the seniority policy and rates of accrual of vacation leave and sick leave as was in effect prior to December 23, 2004, until such time as Respondent negotiates in good faith with the Union to impasse, or agreement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended31 ORDER The Respondent, Rosdev Hospitality, Secaucus, LP and La Plaza, Secaucus, LLC, Secaucus, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally, without notice to or consultation with the Union, announcing that for purposes of benefits including vaca- tion leave and sick leave accrual, employees’ seniority would commence on December 23, 2004. (b) Unilaterally, without notice to or consultation with the Union, reducing the accrual rate of vacation leave and sick leave for employees in the unit. (c) Telling employees that Respondent will get rid of the Un- ion. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Rescind the unilateral changes made in wages, hours, and other terms and conditions of employment of the employees in the above-described unit, and continue the wages, hours, and other terms and conditions of employment in effect prior to December 23, 2004, until such time as Respondent negotiates in good faith with the Union to agreement or impasse. (b) Make whole the employees in the appropriate unit for any loss of pay or other benefits they may have suffered as a result of the above-described unilateral changes, in the manner set forth in the remedy section of this decision. (c) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its fa- cility in Secaucus, New Jersey, copies of the attached notice 31 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. marked “Appendix”32 in both English and Spanish. Copies of the notice, on forms provided by the Regional Director for Re- gion 22 after being signed by the Respondent’s authorized rep- resentative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these pro- ceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since February 23, 2005. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT unilaterally and without notice to or consulta- tion with the Union make changes in the wages, hours, and other terms and conditions of employment, including changes in seniority and the rate of accrual of vacation leave and sick leave for our employees in the following unit: All bellmen/valets, bartenders, bar assistants, tournant cooks, cooks I, cooks II, pantry workers, room attendants, housemen, pot washers, stewards, night cleaners, cafeteria attendants, hosts-hostesses/cashiers, servers, bus persons, storeroom em- ployees, and linen employees employed by Rosdev Hospital- ity, Secaucus, LP and La Plaza, Secaucus, LLC, at its facility located in Secaucus, New Jersey, excluding office clerical employees, confidential employees, executives, guards and supervisors as defined in the Act. WE WILL NOT tell our employees that we are going to get rid of the Union. 32 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ROSDEV HOSPITALITY, SECAUCUS, LP 213 WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind changes in the wages, hours, and other terms and conditions of employment, including changes in seniority and the rate of accrual of vacation leave and sick leave for our employees and WE WILL restore the wages, hours, and other terms and conditions of employment of our employees in the above-described unit in effect prior to December 23, 2004, until such time as we negotiate in good faith with the Union to agreement or to impasse. WE WILL make whole the employees in the above-described unit for any loss of pay or other benefits they may have suf- fered as a result of our unilateral changes in seniority and the rate of accrual of vacation leave and sick leave. ROSDEV HOSPITALITY, SECAUCUS, LP AND LA PLAZA, SECAUCUS, LLC