Louis Pappas' Homosassa Springs Restaurant, Inc.

LOUIS PAPPAS'. RESTAURANT Louis Pappas' Homosassa Springs Restaurant, Inc. and Hotel Employees and Restaurant Employ-, ees International Union, AFL-CIO-CLC. Case 12-CA-104313(3)(4) 27 August 1985 DECISION AND ORDER BY MEMBERS HUNTER, DENNIS, AND JOHANSEN On 7 June 1983 Administrative Law ' Judge George Norman issued the attached decision. The General Counsel and the Respondent filed, excep- tions and supporting briefs, and both these parties submitted answering briefs to the other's excep- tions. The National Labor Relations Board has delegat- ed 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, I and conclusions and to adopt the recommended Order. We agree with the judge's findings that the Re- spondent did not, as' alleged, violate Section 8(a)(3)' of the Act by refusing to hire Linda Locklear2 nor violate Section 8(a)(1) of the Act by a statement that Supervisor Juanita Bell made while employed by the Respondent's predecessor, Homosassa Springs, Inc. (HSI).3 While we also adopt the i The General Counsel has excepted to some of'the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d 'Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 2 In dismissing the 8 (a)(3) allegation involving Locklear, the judge relied in part on his finding that the Respondent 'hired another former HSI employee, Pam Mijewski, who also had been active in the. Union The judge failed to note , however, that Mijewski resigned her member- ship in the Union about 4 months before the Respondent commenced op- erations He also found that the Respondent relied on'recommendations made by four of HSI 's supervisors in deciding which HSI employees it would hire During the hearing, however , the parties stipulated that two of the employees making those recommendations;' Suzy Hibbard and, Mary Hines, were not supervisors as defined by the At The judge fur- ther noted in considering this issue ' that 14 of the 48 rank-and -file em- ployees that the Respondent hired were union , members Rather, the record shows that 16 of the Respondent 's newly hired employees had been on dues checkoff when they worked for HSI We find that correc- tion of these misstatements is insufficient to affect the judge 's conclusions 3 We agree with the judge that the Respondent was not responsible for the conduct of Juanita Bell which was alleged to violate Sec 8 (a)(1) We reach that conclusion , however, simply on the ground that the incident occurred before'the Respondent became a successor and the predecessor is not a respondent in this proceeding Member Hunter does not reach the issue of the Respondent's responsi- bility for Bell's alleged unlawful conduct Rather, Member Hunter finds that even assuming Bell was acting as the Respondent 's agent, she did not engage in unlawful conduct by telling employees before the Respondent's takeover of the restaurant "that she felt that there was no reason to feel that [under the new operation ] there would be a union, and there would be no union " Bell's remarks, in Member Hunter's view , merely constitut- ed her own opinion of what might happen when the Respondent com- 1519 judge's finding that the Respondent is a successor employer and violated Section 8(a)(5) by rejecting the Union's bargaining demand, we do so for the reasons that follow in addition to those set out. in the judge's decision. Until 1 November 1982,4 when..the• Respondent acquired certain HSI assets for $1 million, HSI op- erated the Homosassa Springs Restaurant and Lounge,, the Sportsmen 's Bar, a gift shop,- and two warehouses in Homosassa Springs, Florida. HSI, also conducted other operations valued in excess of - $10 million that serve the Florida tourist industry. The Union represented 216 of the 224 employees working at HSI's various facilities.5 Upon com- mencing operations in Homosassa Springs on 1 No- vember, - the Respondent hired 55 employees, in- cluding 4 supervisors, 3 office clericals, and a secu- rity guard, .of whom 50 formerly ,were HSI, em- ployees. On 2 November, the Union made a bar- gaining demand that the Respondent immediately rejected. In excepting to the judge's finding that it is a successor employer, the Respondent argues, inter alia, that he has completely ignored the changes that have taken place in the operational structure of the unit since the sale occurred. The "major thrust" of HSI's previous operations, according to the Respondent,' had been the hotels, attraction park, and bait store where 60 of the 216 unit' em- ployees worked.6 The Respondent notes, by con- trast, that it is principally engaged in operating ,a restaurant. Before the sale, in the Respondent's view, that, restaurant was only incidental to the other business activities that HSI conducted. Ac cordingly, the Respondent asserts that it is not en- gaged in substantially the, same operations' 'as it predecessor and thus under NLRB v. Burns Security Services, 406 U.S. 272 (1972), the administrative law judge's successorship finding was improper., It is well established, however, "that successor- ship obligations are not defeated by the 'mere fact that only a portion of a former union-represented operation is subject to the sale or transfer to a new owner,' so long as';the employees in the conveyed portion, constitute a separate appropriate unit, and' menced operations In so concluding , Member Hunter places no reliance on the judge 's finding that Bell was a low-level supervisor when she made that statement - ' All dates are 1982 unless otherwise noted s The unit excluded "all office clerical employees, watchmen , guards, and supervisors as defined in the Act " ' - 6 In finding the 8(a)(5) violation, the judge noted that only 20 of the bargaining unit employees that HSI employed did work at its hotels, at- traction park , and bait store different from that the Respondent 's employ- ees perform As the Respondent points out , however, the record shows that there were about 60 HSI employees engaged in such different activi- ties Again , we find that correction of this misstatement does not affect the judge's ultimate conclusions 275 NLRB No. 213 1520 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD they comprise a majority of the unit under the new operation."7 Here, the Union sought recognition in a unit of all employees, excluding office clericals, that the Respondent employed. As for the appro- priateness of that unit, the record shows that the Respondent's smaller warehouse, facility is adjacent to the building that houses the Homosassa Springs Restaurant and Lounge` as well as the gift shop. The Sportsmen's Bar is -located a short distance away on the same highway, and the other ware- house facility is situated about 400 feet west of the restaurant.'All the employees working at these fa- cilities, as the Respondent has conceded, perform functions directly related to the restaurant oper- ation. Under these circumstances, - we adopt the judge's finding that the overall unit in which the Union demanded recognition is appropriate for purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. Indeed, the Re- spondent does not contend otherwise. The Respondent further argues that the judge erred in determining the Union's majority status as of the date, 1 November, that its operations com- menced. It contends that the proper time for making this determination occurred when its work force had allegedly "stabilized," less than 4 months later, on 20 February 1983. By this date, the Re- spondent emphasizes, the Union no longer held ma- jority status in its expanded work force of 88 em- ployees. Contrary to the Respondent's argument, the Board has held that "bargaining rights and the in- terest of the former unit members now employed by the new employer, newly hired employees and the new employer are best accommodated and bal- anced by determining the majority status of the union as of the date the new employer began full- scale operations with a representative complement, even though the hoped for expansion of [oper- ations] had not been fully achieved."8 In this case, there was no hiatus in operations after the Re- spondent acquired the facilities from HSI. -Rather, as the judge found, the Respondent immediately commenced full-scale operations at the restaurant employing a majority of employees who formerly were unit members. Although the Respondent sub- sequently modified the menu that its predecessor had offered and remodeled the facilities, the changes noted by the Respondent were not so sig- nificant as to invalidate the judge's finding that the Respondent began operations with a representative See Stewart Granite Enterprises, 255 NLRB 569, 573 (1981), and cases cited therein 8 See Premium Foods, 260 NLRB 708, 718 (1982), enfd 709 F 2d 623 (9th Or 1983) complement of employees.9. For these reasons and those set out by the judge, we find that the Re- spondent was a successor employer and violated Section 8(a)(5) of the Act by rejecting the Union's bargaining demand. Accordingly, we shall affirm the judge's recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders - that the Respondent, Louis Pappas' Homosassa Springs Restaurant, Inc., Ho- mosassa Springs, Florida, its officers, agents,-suc- cessors, and assigns, shall take the action set forth in the Order, except that the attached notice is sub- stituted for that of the administrative law judge. s See Jeffries Lithograph Co, 265 NLRB 1499 (1982) 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 the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage. in any of these protected concerted activities. WE WILL NOT refuse to recognize or bargain in good faith with Hotel Employees and Restaurant Employees, International Union, AFL-CIO.-CLC over the terms and conditions of employment in the unit set forth below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by. Section 7 of the Act. WE WILL, on request, recognize ' and bargain with Hotel Employees and Restaurant Employees International Union , AFL-CIO-CLC as the exclu- sive representative of all employees 'in the appro- priate bargaining unit concerning rates of pay, hours of work , or other terms and conditions of employment and, -should any understanding or LOUIS PAPPAS' RESTAURANT agreements be reached, on request of the Union, embody the same in a. written and signed instru- ment. The appropriate unit is: All employees employed at Louis' Pappas' Ho- mosassa Springs Restaurant, Inc.'s facility; but excluding all office clerical employees, guards and supervisors as defined in the Act. LOUIS PAPPAS' HOMOSASSA SPRINGS RESTAURANT, INC. DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge This case was tried before me in Tampa , Florida, on May 2 and 3, 1983. The original charge was filed on November 17, 1982 . On February 18, 1983, amended charges were filed in both cases and on February 24, 1983, a second amended charge was filed in Case 12-CA-10431(4) A complaint and notice of hearing based on those charges was issued against Respondent Louis Pappas' Homosassa Springs Restaurant. Inc (Respondent) by the Regional Director for Region 12 on January 28, 1983, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act for refusing to hire Linda Locklear and Section 8(a)(5) of the Act for Respondent's refusal to bargain with the Hotel Employees and Restaurant Em- ployees, International Union, AFL-CIO-CLC (the Union). - On consideration of the entire record' and the briefs filed , and from my observation of the demeanor of each witness while testifying , I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, a Florida corporation with an office and place of business in Homosassa Springs, Florida, has been engaged in the operation of a public restaurant, lounge, and bar selling food and beverages. Based on a projection of its operations since about November 1, 1983, at which time Respondent commenced its oper- ations, Respondent, in the course and conduct of its.op- erations described above, will annually derive gross reve- nues in excess of $500,000 During that period, Respond- ent, in the course and conduct of-its operations, will pur- chase and receive at its Homosassa Springs, Florida facil- ity products, goods, and materials valued in excess of $50,000 from suppliers located within the State of Flori- da, which suppliers received, these products, goods, and materials directly from points located outside the State of Florida Respondent is` an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. I The General Counsel filed a motion to correct the transcript Re- spondent indicated it did not oppose said motion It is granted 1521 II. THE LABOR ORGANIZATION The Union is now, and has been at all rimes material hei•em , a labor organization within the meaning of Sec- tion 2(5) of the Act. III BACKGROUND On October 23, 1969, the • Regional Director for Region 12 issued a Decision and Direction of Election in Case .12-RC-3397 involving Norris Developing Compa- ny, a Division of -Norris Grain Company, Employer, and Laborers International Union of North America, Local 1207, AFL-CIO, as joint petitioners. The Regional Di- rector directed an election in a unit comprised of: All employees employed at Employer's Homosassa and Homosassa Springs, Florida, facilities, including its tourist attraction, restaurant, bars, gift shops, motel and hunting preserves; but excluding all office clerical employees, watchmen, guards, and supervisors as defined in the Act. On December 17, 1969, 110 employees were eligible to vote in the election held in Case 12-RC-3397 Of the eli- gible voters, 89 cast valid ballots, 48 in favor of union representation, and 41 opposed to such representation. On February 5, 1970, the Regional Director for Region 12 issued a Certification of Representatives certi- fying the joint petitioners described above as the collec- tive-bargaining representative of the employees in the unit also described above In March 1971, Laborers International Union of North America, Local 1207, AFL-CIO, assigned , with the con- sent of Norris Developing Company, its bargaining rep- resentative functions for the unit, to Local 512 of the La- borers International Union of North America. In 1972, Norris Developing Company, a Division of Norris Grain Company, sold its assets to Homosassa Springs, Inc., which continued the operations of the tourist attraction, restaurant, bars, gift shops, and motel. About this time, the operation of the hunting preserve was terminated From about March 1971 until 1979, the Laborers International Union of North America, Local 512, and Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO were the collective-bargaining representatives of Homosassa Springs employees in the bargaining unit and for that period of time the Unions were recognized as such representative by Homosassa Springs. During that period the parties entered into suc- cessive , collective-bargaining agreements, the last of which was effective until June 15, 1979. In 1979, the Laborers International Union of North America, Local 512, abandoned its claim as bargaining representative of the employees in the bargaining unit and, since 1979,. the Hotel Employees and Restaurant Employees International Union, AFL-CIO-CLC has been the exclusive collective-bargaining representative of the employees employed by Homosassa Springs in the bargaining unit and, since such date, the Union has been recognized as such representative by Homosassa Springs. Such recognition has resulted in the parties entering into 1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD successive collective-bargaining agreements, the most recent of which was effective by its terms for the period from June 15, '1982, to December 31, 1982. -On Decem- ber 29, 1982, Homosassa Springs and the Union entered into a collective-bargaining agreement which expires on June 30, 1983. On October 16, 1982, a letter from G A. Furgason, general manager of Homosassa Springs, was posted by the timeclock in the Springs Restaurant and elsewhere to: "All Employees of Homosassa Springs Attraction, Sheraton. Homosassa Springs Inn, Springs Restaurant and Lounge, Sportsmen's Bar and Warehouse," notifying them that effective November 1, 1983, Homosassa Springs would no longer be operating these facilities and the employees were all laid off as of that date. The name and address of the new owner of each of the facilities was contained in the memorandum as well as the infor- mation that "any employee desiring to seek employment with them may do so by contacting them at the follow- ing address " On November 1, 1982, Respondent began operations of Louis - Pappas' Homosassa Springs Restaurant, Lounge, Sportsmen's Bar, Warehouse and Gift Shop in the facilities purchased from Homosassa Springs. At the time of the sale on November 1, 1982, Homosassa Springs had in its employ 216 bargaining unit employees out of a total of 224 employees. The assets are valued at $11.5 inillion. The sale of Pappas was approximately for $1 million. Respondent is a Florida corporation formed on Oc'to- ber 5, 1982, for the purpose of purchasing certain assets from Homosassa Springs. Its shareholders are Michael L. Pappas, Jack ' L. Pappas, Lucas Pappas, .and Frank Zeiss. Frank Zeiss is the president of the corporation and its chief operating officer.-No officer or shareholder of Re- spondent had any prior connection to or involvement` in either Homosassa Springs or Norris Developin'g'-Compa- ny, a Division of Norris-Grain Company. Respondent is engaged in the sale of food, gifts, and liquors, 'as was its predecessor Homosassa Springs, Inc., in- the operation of the Springs Restaurant and Lounge, Sportsmen's Bar, and gift shop -Respondent began operating 'on November 1, 1982, when Homosassa Springs ceased its operations and con- trol of its Springs Restaurant and - Lounge, Sportsmen's Bar, and warehouse and gift shop. Respondent began its -operation with 55 individuals, including 4 supervisors, I security guard, and 3 office clericals. Of the 55.,individ- uals 50 were ' formerly -employed by Homosassa 'Springs. The' following is a comparison of working 'condition and benefits between Homosassa Springs' and Respond- ent: . Management structure: - .Under Homosassa Springs -. - President,' geiIeral manager; 19 depai•tments; 22.4 em- pl'oyee`s Under Luis Pappas: ' President and general manager; 1 department; 54 employees . _ =Wage increases: Homosassa Springs By collective bargaining negotiation on contract an- niversary by department and classifications Louis Pappas: Periodic by merit Seniority: Homosassa: By department based on date of hire for layoff, va- cation, selection, etc. Louis Pappas: None Vacation: Homosassa Springs: 1 week after 1 year 2 weeks after 3 years 3 -weeks after 8 years 4 weeks after 13 years Louis Pappas: 1 week after 1 year 2 weeks after 3 years from LP date of hire Holidays: Homosassa: 8 Louis Pappas: 6 Paid sick leave; Miry duty leave; funeral leave: Homosassa : By contract Louis Pappas: At employer discretion Uniforms: Homosassa : 3 provided Louis Pappas: None provided Health insurance: Homosassa: Family coverage paid by employer to union plan - Louis Pappas- Employer pays 1/2 employee cov- erage . Respondent purchased all food and beverage inventory on the premises it bought from Homosassa Springs, to- gether with, all kitchen, dining room, lounge, and gift shop _ "fixtures - aril equipment Respondent has added stoves and oyeris' to the kitchens as well as other •equip- ment, including new, logos, decorations, signs, and inven- tory. The Request for Bargaining ' • On November,2, 1982, the,Union through Hotel Em- ployees and, Restaurant Employees, International Union, Local 737, AFL-CIO; ;Secretary-Treasurer , and former Business Agent Harvey Totzke Jr. requested Respondent President and Operating Manager Frank Zeiss by tele- phone and by letter of the same date'to bargain with the Union as the certified representative of the employees in the employ of Respondent. LOUIS PAPPAS' RESTAURANT About November 2, 1982, Respondent refused to bar- gain with the Union on matters concerning wages , hours, working conditions, and other terms and conditions of employment, for the employees employed by Respond- ent. Since 1972, Hotel, .Motel, Restaurant Employees and Bartenders Union, Local 737, AFL-CIO has acted on behalf of the, Hotel Employees and Restaurant Employ- ees, International Union, AFL-CIO-CLC. The following is a list of assets owned or operated by Homosassa Springs prior to October 31, 1982: 1. Sheraton Homosassa Springs, Inc. 2. Springs Restaurant 3. Springs Lounge 4 Sportsmen's Bar 5. Springs Gift Shop .6 Springs Warehouse 7. Attraction Park and Boats 8. Yardarm Restaurant - 9. Ships (Captains) Lounge 10. Bait Store 11. Riverside Villas Motel 12. Riverside Gift Shop 13. Riverhaven Apartments 14. Crow Nest Restaurant 15 Riverside Warehouse On November 1, 1982, Attraction Park and Boats and the Sheraton Homosassa Springs were sold by Homo- sassa Springs, Inc. to two other parties. At the time of the sale 19 employees were employed at the hotel and 15 at the attraction. Homosassa Springs, Inc. retained its ownership, con- trol and operation of the Riverside Villas Motel, Bait Store, Yardarm Restaurant and Ships Lounge, Riverha- ven Apartments, Crows Nest Restaurant, and Riverside Villa Warehouse. IV THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent discriminated against Linda Locklear in hiring because of her union ac- tivity 2 In March 1982, Union Business Agent Harvey Totzke met with Troy Baker and Lucius Dyal Jr., counsel for Homosassa Springs (HSI),3 for the purpose of negotiat- ing an extension of the collective-bargaining agreement between the parties. The negotiators for the Union were Totzke, Shirley MacCourt (union president), and bar- _ gaining unit employees Linda K. Locklear, Margaret Hartung, Salley Stobaugh, and Pamela Mijewski. During the negotiations it was revealed that HSI was attempting to sell its assets. Totzke asked whether a new owner would assume the union contract or be willing to bargain with the Union. Attorney Dyal responded that HSI would not -obligate a prospective buyer to assume the contract, but -a prospective buyer would be "made aware of the fact that a contract did exisi." ' 2 At the commencement of the hearing the complaint was amended in several respects on motion of the General Counsel Those amendments 'are discussed in the transcript 3 Dyal is also counsel for Respondent 1523 In June or July, Frank Zeiss and several members of the Pappas family, which has owned a restaurant in Tarpon Springs, Florida, began discussions with -HSI concerning the purchase of certain HSI assets. In August 1982,4 the group decided to purchase the Springs Res- taurant and Lounge, Sportsmen's Bar, Gift Shop and Warehouse located at Homosassa Springs, Florida. The restaurant and lounge and gift shop were housed in the same building. The Sportsmen' s Bar is located a short distance away (also on U.S. Route 19). The warehouse is 400 feet west of the restaurant facility. A smaller ware- house is located adjacent to the restaurant facility. As previously indicated sale was consumated on November I and Respondent assumed control and began operating on that date.' Juanita Bell, food and beverage director for HSI, told Linda K Locklear, who was a union steward and wait- ress on the night shift, about the pending sale. Bell told Locklear to "make sure that everyone was working up to par." Bell also told Locklear that she doubted very se- riously if there would be a union. After that, Bell told a group of waitresses in the waitress area that the restau- rant was being sold to the Pappas, that there was no reason to feel that there would be a union. Linda Locklear was a steward, a negotiator for the Union, and an otherwise active member of the Union and everyone knew it. Business Agent Harvey D. Totzke testified that Locklear was a union steward and that she participated along with Pamela Milewski in the last union negotiations. Linda Locklear testified that Jack Pappas had told her, along with Pam Mijewski , and others, that everyone would be hired. She further testified that she thought she got along with Juanita Bell, Susan Hibbert, and Mary Hines. She also testified that she was a good waitress and a very active union member; that both Lottie Bresler and Pam Mijewski were hired by Respondent, but she was not. General Counsel's witnesses Jerry Lee and Lottie Bresler testified that Locklear was a good waitress and that Jack Pappas had assured the girls that everyone would be hired. Thus, the testimony shows that Linda Locklear was believed by the witnesses to be a good waitress and that she was an active union member. It was also established that Locklear, along with other Ho- mosassa employees , was assured by Jack Pappas that none of the girls had anything to worry about. Linda Locklear and eight other employees were not hired by Respondent. Of the 48 employees hired by Re- spondent, 14 were union members. However, the. Gener- al Counsel presented no direct testimony that Respond-, ent engaged in discrimination against Linda Locklear be- cause of her union activities.- Frank Zeiss, president and chief operating officer of Respondent, asked Bell for recommendations on who to hire. He said he did this because he had the final author- ity but did not know any of the employee applicants. Bell, in turn , asked her three supervisors for recommen- dations concerning who to hire and who not to hire. All 4 All events herein occurred in 1982 unless otherwise specified 1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three supervisors had recommended that Locklear not be hired, as- did Bell, who also recommended to Zeiss that eight others also not be hired. Zeiss accepted the recom- mendations and none of the nine was hired. On the issue of whether Linda Locklear's union activi- ties had anything-to do with the recommendations that she not be hired, Bell testified that Frank Zeiss and she had not discussed Locklear's union activity nor that of any other employee not hired. Bell also testified that she did not resent either Locklear's complaints about, her or her union activities. She said that her union activities had nothing to do with her recommendations nor was the fact that Linda Locklear was a union steward even men- tioned in her discussions with Zeiss or the supervisors concerned. Bell, on the other hand, recommended that Dottie Bresler and Pam Milewski, both of whom were active in the Union, be hired. Of the three supervisors who made recommendations, Hibbert, Hines, and Holmes, Hibbert testified that she did not recommended Locklear for hiring because she was "argumentative, disruptive, had a poor attitude and disrupted the other girls." Hines testified that she did not recommended Locklear for hire because of hei "poor at- titude, loudness, and her argumentative nature." Holmes did not testify. Supervisor Hines recommended Pam Mi- jewski, who she thought at the time was a union stew- ard, thus revealing that she did not hold the union activi- ties against Locklear, nor considered them in her recom- mended for employment. Frank Zeiss -testified, consistent with the other ° wit- nesses of Respondent, that his decision not to hire' Linda Locklear was not based on union activities: In fact,'Zeiss said that at the time he made his decision not to hire her he could not tell apart from the other applicants. Respondent's witnesses Zeiss, Bell, Hibbert , and Hines all testified credibly, consistently, and without hesitation. I am convinced that Respondent did not hire-Locklear because she was a below average employee who -was ar- gumentative and disruptive, had a poor attitude, and was unable to get along with her fellow employees: None of these-reasons are based on her union activity. I find that the General Counsel has not shown by a preponderance of the evidence that Linda Locklear was not hired be- cause of her union activity, in violation of Section 8(a)(1) and (3) of the Act I, therefore will recommend dismissal of those allegations of the complaint - A., The Separate 8(a)(1) Allegation : Section 6 of the complaint alleges that Respondent violated Section 8(a)(l)-of the Act by the following con- duct: ' that about October 24,-1982,, Respondent, acting .through Marion Juanita Bell, ,at Respondent's facility, ex pressed to -an employee the futility of 'supporting a labor - ' ' organization. In-support of that allegation the-General 'Counsel of--- fered- the following evidence: Marion 'Juanita Bell, ac- cording to'the-testimony of Linda'Locklear, told a group of waitresses in the -waitress area-that the restaurant was being sold to'the Pappas and "that she felt that there was, no reason to'feel that there would be a union, and there would be no union." Lottie Bresler testified that between I and 2 weeks-before the sale, Bell asked Bresler if she would like to go on the morning shift if she were hired by the Pappas, or if she could work during the times that she had had off to attend church. Bresler 'replied that she would prefer to "play-it by eat,"'but would work morn- ings if she had to do so. At that point, Bell informed Bresler, "there would be no union : those were the words, dust out of the"blue . there would be no union." - Bell; on the other hand, testified-that although she did not recall telling employees that there would not be a union, she adniitted that she "might have said that with a new company there is usually not a union'or something like that." Do these remarks by Bell constitute a violation of the employee's Section 7 rights and therefore a violation of Section 8(a)(1) of the Act? It is clear that Juanita Bell had no actual or apparent authority to decide for Re- spondent whether there would be a union or not, consid- ering the fact that her own employment status at the time was not definite Moreover, there is not any evi- dence that she may have been.,privy to or participated in Respondent's decision to refuse to recognize and bargain with the Union Given those circumstances, her remarks are an expression of her own opinion and nothing more Consequently, I do not-consider the remarks as either in- tended to be or in fact were an interference with the em- ployees' Section 7 • rights. There-is no evidence, that Bell had any knowledge whether Respondent would recog- nize the Union at the time she made them. Moreover, it was not definite at that time that she would become a permanent employee of Respondent Thus, in the ab- sence of a showing of union-animus on Bell's part, an in- ference can hardly be drawn concerning her motives The General Counsel cites Love's Barbeque Restaurant No. 62, 245 NLRB 78 (1979), to support her contention that a violation of Section 8(a)(1). occurred by Bell's statements. Ih the Love's case the Board found that tell- ing employees that it will not be operating a unionized restaurant and -taking pictures of employees who have been engaging in picketing or other protected concerted activities was a violation of Section 8(a)(1) The remarks were made by the respondent's owner Karl Kallmann, who unquestionably had the authority to decide whether the union would be recognized, and not from an unau- thorized, uniformed low-level supervisory employee who presumably, according to the facts adduced, at the time was neither a part-owner nor certain to remain an em- ployee of the new employer, respondent. In, my judg-, ment, Love's Barbeque Restaurant No. 62 is distinguish- able. The General Counsel : also cited Marathon Metallic Building Co; 224 NLRB 121. (1976), to support a finding of'an 8(a)(1) violation. There, the plant manager made a speech advising 'employees that the company' did not want the union and that it would not be good for them The Board found that the message - intended and con- veyed was that by the union's filing a petition-for an election, the employees were being :deprived of benefits they might otherwise have received and that these bene- fits would be restored immediately if the union lost the election. Conversely the benefits would :not be' restored for an indefinite period of time if the union won the elec- LOUIS PAPPAS' RESTAURANT tion The Board thus concluded that the respondent thereby coerced, restrained, and interfered with the em- ployees' right to a free choice in violation of Section 8(a)(l) of the Act No such factual situation exists in this case As.for Magnolia Manor Nursing Home, 260 NLRB 377,. (1982), also relied on by the General Counsel, the specific matter contained in the administrative law judge's decision wherein he found an 8(a)(1) violation is as follows- (5) Futility of union support- On May 2 and May 3, respectively,,. Jewell told employees Holloman and Tucker on different occasions that the Union was not, going to tell him what,to pay employees or how he should run the nursing home. [The judge cited Marathon Metallic Building Co., 224 NLRB 121, discussed above, among other cases in that footnote I I do not consider, the Magnolia Manor Nursing Home de- cision ' in point either. In the first place, Kenneth 'Jewell was the owner of the nursing home and not just a'super- visory employee when he ' made those remarks, and as such was speaking for the respondent. The remarks were more than an expression of an opinion as to whether or not a succesor was going to bargain with the union. It amounted to a real threat that he would not bargain with the union. As previously indicated, Supervisor Bell had no au- thority to speak for her new employer and was merely expressing an opinion as to whether or not the new em- ployer would recognize the Union. As it turned out, the new employer refused to recognize and bargain with the Union which conduct resulted in 'the 8(a)(5) charge which is in issue in the instant case. B. The Successorship Issue Factors to be considered in reaching a conclusion as to whether an employer is a successor are: (1) whether there has been a substantial continuity of the same busi- ness operations ; (2) whether the new employer. uses. the same plant; (3) whether the alleged successor has the same or substantially the same work force; (4) whether he employs the same supervisors, (5) whether he uses-the same machinery , equipment , and methods of production; and (6) whether he manufacturers the same products or offers the same services . Stewart Granite Enterprises, 255 NLRB 569 (1981 ), Not all of the above factors need be present to find a successorship , however . Jeffries Litho- graph Co., 265 NLRB 1499 ( 1982). In the instant case Respondent is engaged in substan- tially the same business operations producing similar goods and services (food and liquor service and gift sales). In addition, Respondent uses the same facilities and essentially the same equipment as did its predecessor Even though Respondent installed ' newer and more effi- cient equipment , including a new refrigerator, cooler, broilers, and ovens, such equipment is the same type-as used by the predecessor The alteration of .the menu to emphasize Greek food is not the type of change that alters the nature of the employing industry.. Food was served before and food is now served by Respondent. 1525 Although the working conditions were changed by Respondent -on taking over, i.e., the changes in benefits including sick, jury duty, and funeral leave, those changes have no effect on the kind of work being per- formed or the skills required to perform the work. When Respondent began its operations all but two of the new Pappas employees had been bargaining unit em- ployees in the employ of HSI before the takeover Thus, 95.8 percent of Respondent's employees were former HSI employees. Respondent retained a clear majority of the bargaining unit when it took over the HSI oper- ations The fact that Respondent increased its comple- ment of employees to a point where 3 months later it more than doubled the original complement, is not con- trolling. In- addition , five out of six of the supervisors employed by Respondent on November 1 had been working for HSI doing essentially the same type of work: The sixth, Frank Zeiss, president and operating of- ficer of Respondent, had not been employed by HSI. Also of significance is the fact that there is no evidence to suggest that the employees' desires concerning con- tinuing to be represented by the Union have changed as a result' of_ the transition. Ranch-way, Inc., 183 NLRB 1168 (1970). Respondent purchased only part of HSI's assets. Indeed, approximately a month after the sale to Re- spondent, HSI entered into a new contract with the Union with a termination date of December 1983. Even though only part of the. employees of the unit remained with HSI after the sale to Respondent the contract refers to the unit described in the Board's certification. Thus, we are confronted .with a situation in which only a portion of the predecessor employer's operations was purchased and less than half of the number of em- ployess in the former unit were employed by the Re- spondent Although Respondent employs. fewer employ- ees in. its operation than were employed by HSI before the sale, that in itself is not determinative of whether the smaller unit is appropriate. However, .if coupled with a smaller number of. employees -there is a change in the size and structure of the new employer that may.consti- tute a change in the nature of the employing industry which might render a finding of successorship improper. All the factors must be examined in order to resolve the issue. In Atlantic Technical Services Corp., 202 NLRB 169 (1973), enfd. 498 F 2d 680 (D C. Cir.`1974), cited by both the General Counsel and Respondent, the court, on. en- forcing the Board order, recognized that although a ma- jority or 27 out of 41 accepted positions with Atlantic Technical Services Corp., the 41 employees (who .consti-, tuted the entire work force in the distinct and functional- ly separate operation of mailing and distributing items throughout a large installation) had been added by accre- tion to an established bargaining unit of some 1100 other employees of the TWA Space Center. The acceptance as an accretion to the unit had been accomplished sometime. before by mutual informal agreement of TWA and the .union, apparently without opportunity for a vote on the part of the 41 persons thus- added to the bargaining unit. No occasion arose then or thereafter for a formal certifi- 1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - cation proceeding or determination of majority support. The court said that "the fact that the Union had repre- sented these employees in the past has less evidentiary weight than it would after Board certification." The circumstances in the Atlantic case, supra, wherein the accretion to the unit of the 41 employees by consent of the employer and the union without an opportunity for the employees to express whether or not they wanted to be represented by the union, distinguished that case from the line of cases recognizing at least a presumption of majority, support for the union, the leading case of which is NLRB v. Burns Security Services, 406 U.S. 272 (1972). In enforcing the Board order, the court upheld the Board's findings that the duty to bargain arose after Atlantic polled the employees and found that a majority wished to be represented by the union. Thus, at that point, and not by virtue of successorship, did an obliga- tion-to recognize and bargain with the union arise. The Board found there was no basis to conclude that Atlantic was a successor-employer to TWA because=of the failure of any of the 41 employees to have expressed support for the union at any time prior to the takeover by Atlantic, and thus a presumption of majority could not have ap- plied since there was no expression of majority support for the union by these employees in the first place. Only after they were given an opportunity by Atlantic to ex- press their wishes did a majority of the employees dis- close a desire to be represented by the union. Thus arose the bargaining obligation and riot by virtue of the doc- trine of successor-employer discussed and construed in Burns. In the instant case the certification occurred several years before the takeover by Respondent • But in the ab- sence of-any unusual circumstances, such as accretion to .the unit by agreement of the parties without participation of the affected employees, as in Atlantic, supra, the pre- sumption of majority status continues after the takeover by respondent. Respondent argues that -the burden of demonstrating some basis for majority status in the unit sought'is on the General Counsel. I disagree. The burden of overcoming the presumption' of continuing majority status is on the Respondent. C. The Unit Respondent argues that there has been a major change in the unit and thus under Burns, supra, it cannot be found to be a successor. The unit began 'in 1969 and `included a tourist- attrac- tion, a restaurant, a bar, gift shops, a motel, and a hunt- ing presevere.' The unit had an employee complement of 110. As the, years passed, the employer and the Union changed but ' the new employer ` (HSI) ' recognized, the Union '(the Laborers Union dropped out of the 'picture). However, the unit did not change in the' sense that it changed in the Atlantic case Over the years, it did in- crease in size so that on October 31, 1982, there were 216 unit employees 5 5 Although there was an elimination of a portion of the original unit and the inclusion of a new hotel in the unit, the employees concerned - were employees of operations which were in place when the original cer- tification occurred and thus were in jobs that were in existence at the On the question of recency of certification, the admin- istrative law judge in Stewart Granite Enterprises, 255 NLRB 569 (1981),;m referring to the "recency of certifi- cation" as was the case in Burns noted that it had been repeatedly held that when other factors favoring treating an employer as a successor are present , it is of no signs= fance that the union may not h ave been "recently" certi- fied, citing Alondra Nursing Home, 242 NLRB 595 (1979), and other cases In arguing that it is not a successor within the meaning of Burns, Respondent states that a radical change in man- agement structure occurred , the old unit had 19 diverse departments interacting together with hotels , attractions, and other activities , while Pappas has only 1 department; the restaurant bought by Pappas was changed radically; the theme of the restaurant is now Greek, not coven- tional; new logos, equipment, decor, menus, supervisory structures, products, and hours of operation were insti- tuted; and finally in the 3 months time it took to take over, enough new employees were hired to swing the percentage of former HSI employees to below the 50- pecent mark Respondent contends further that this was all part . of its preconceived plan to change the operation to a new and different kind of place. They did continue to sell food , gifts, and liquor, but the similarity stopped there. They no longer sold boat rides , fish shows, animial acts, river rides, or hotel rooms . They no longer had the same customers nor did they have the same kind of oper- ation. Respondent relies on Atlantic Technical Services Corp., -supra, to support its position and concludes that this is a case in which the Union must assert and prove its majority. The General Counsel , on the other hand , points out that although it is true that HSI, in its total operations, operated restaurants, lounges, gift shops, warehouses, hotel rooms, a bait store, and an attraction park , and al- though there were more job classifications and depart- ments under HSI operation , Respondent , like HSI, oper- ates a restaurant, lounge, gift shop, and warehouse An insignificant number-of employees , only 20 of the 180 in the bargaining unit , were engaged in HSI 's operations of the hotel rooms , bait store, and attraction park.6 The General Counsel concludes that except for this- insignifi- cant portion of the business , HSI and Respondent were engaged in the same operations, the only difference being that Respondent is operating on a smaller scale than was HSI before the sale. Although Respondent contends that it had not achieved a substantial compliment of employees at the time the bargaining demand was made, the Respondent did assume ' an ongoing business without a hiatus in oper- ation and began its operations with 'a majority of the former 'bargaining unit employees . Although the hoped- for expansion of business had not been fully achieved, the bargaining rights ,and the interests of the former unit members and the , new employees and those of the em- time of the original certification They were never part of a distinct and functionally separate operation that was added by "accretion" as was the case in the Atlantic, supra 6 The stipulated facts indicate that 19 were employed at the hotel and 15 at the attraction park - LOUIS PAPPAS' RESTAURANT -ployer are best accommodated and balanced by deter- mining the majority status of the Union as of the-date the new employer began operations with a representative complement, even though the hoped-for expansion of customers and operating • personnel had not been fully achieved Premium Foods, 260 NLRB 708 (1982). As' pointed out by the General Counsel, Respondent's busiest season of the year extends from the end of De- cember until Easter. Therefore, Respondent needed a larger work force during February than it did in Novem- ber when it assumed operations of the facilities. In addi- tion, the nature of the restaurant business is such that it is not unusual to have a higher. turnover of employees. Thus, the use of the peak period as a determining point would permit Respondent to unjustly benefit from having on its rolls a large number of employees to ac- commodate the peak season, which employees probably would not have been retained by Respondent when the peak season ended. In these circumstances, it would seem that the unit size should be determined not during the peak season when the rolls are inflated (about 3 months of the year) but during the nonpeak times. The unit size should be based on the number employed for the greater part of the year. Nor does Respondent's argument that it had good-faith doubt as to the Union's majority status as of November 2 have merit. Even though only one of the employees who voted in the representation election remained an employ- ee at the time of the takeover, and only a part of the former HSI employees employed by Respondent were on dues checkoff, those factors, alone do ,not establish good-faith doubt. Membership in or financial support of a labor organization does not establish the number of em- ployees who still desire union representation. Premium Foods, supra, 260 NLRB 708 (1982); Orion Corp., 210 NLRB 633 (1974). An employer's good-faith doubt of a union's continued status as representative of the majority of its unit employees is, not established `merely by show- ing that a majority of employees do not belong to the union. The employer must show 'sufficient evidence to support the reasonable good-faith doubt upon which the refusal to bargain 'is based. B & B Gallo Pest'Control ,Serv- ices, 265 NLRB 535 (1982), Here Respondent has pre- sented no evidence to support a good-faith doubt of the Union's majority status, either at the' time 'of the Union's demand, or in February 1983 The burden is not-on the General Counsel to show Respondent's-lack of a good- faith doubt of majority status, but on the Respondent to prove'a good-faith doubt:of majority status. I' conclude, therefore, that Respondent is a successor- employer and as sucli violated Section 8(a)(5) and (1) of 'tlie `Act by refusing `to bargain with' the. Union in-re- sponse to the Union's demand for'bargaining` on Novem- ber' 2 CONCLUSIONS'OF'LAW - 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2' The Union is labor organization within the meaning of Section 2(5) of the Act 3.1 An appropriate unit ' for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act is: 1527 All employees employed' at Louis Pappas' Homo- sassa Springs Restaurant, Inc.'s facilities; excluding all office clerical employees, guards and supervisors as defined in the Act. 4. At all times material herein, the Union has been the 'exclusive collective-bargaining representative of the em- ployees in the above-described unit. 5. Respondent is a legal successor for labor relations purposes to Homosassa Springs Incorporated's operations of the Springs Restaurant and Lounge, Sportsmen's Bar, gift shop, and warehouse. 6.' Since about November 2, 1982, and at all times thereafter, Respondent has failed and refused to recog- nize and bargain collectively in good faith the Union as the exclusive representative of Respondent's employees in the above-described unit and has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) and Section 8(d) and, derivatively, Sec- tion 8(a)(1) of the Act Respondent did not violate any provision of the Act by not hiring employee Linda K. Locklear nor by any remarks made by Respondent Supervisor Marion Juanita Bell. Insofar as the complaint alleges that Respondent, by not hiring Linda K. Locklear, is in violation of Section 8(a)(3) and (1) of the Act, the complaint is pro tanto dis- missed. Insofar as the complaint alleges that Respondent, through Marion Juanita Bell, violated Section 8(a)(1) of the Act by remarks made to any employee concerning the futility of•supporting a .labor organization, the com- plaint is pro tanto dismissed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ` ORDER The Respondent, Louis Pappas' Homosassa Springs Restaurant, Inc., Homosassa Springs, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing - to recognize and to bargain collectively in good faith with the Union, Hotel Employ- ees and Restaurant Employees, International Union, AFL-CIO-CLC as the exclusive collective-bargaining representative of Respondent's employees in the- unit 'found appropriate. - ' ' (b) In 'any like or related manner interfering 'with, re- straining, ` or coercing employees ' iii the exercise 'of the rights' guaranteed them by Section`7 of the'Act. 2.' Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and on request bargain in-go- -faith With the' Union as the -exclusive` collective-bargaining representative of its employees in'the' "unit found appro 7 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all'bbjections to them shall'be deemed'waived for all pur- poses 1528 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate respecting rates -of pay, hours of work, or other terms and conditions of employment; and, should any un- derstanding or agreements be reached, on request of the Union, embody the same in a written and signed instru- ment. (b) Post at- its Homosassa Springs, Florida restaurant copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional 8 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 Judgment of the United States Court of Appeals. Enforcing an Order of the Nation- al Labor Relations Board " Director for Region 12, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. - (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the 'Re- spondent has taken to comply. - - - - -