Atlanta Hilton & Towers

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ACL Corporation d/b/a Atlanta Hilton & Towers and International Brotherhood of Firemen and Oilers, AFL-CIO Local 288. Case 10-CA- 20908 10 February 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 6 August 1985 Administrative Law Judge Hutton S. Brandon issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, fmdings,l and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended' Order of the administrative law judge and orders that the Respondent, ACL Cor- poration d/b/a Atlanta Hilton & Towers, Atlanta, Georgia, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. 1 We find it unnecessary to determine whether the three individuals classified as operators are guards under the Act because even if they are, the Respondent would not be justified in withdrawing recognition from the Union. Guards are excluded in the unit description, and if the Re- spondent believes that certain individuals should be excluded because of their guard status, the proper procedure for determining the issue is unit clarification, not withdrawal of recognition See Board's Rules and Regu- lations, Secs 102.60(b) and 102.61(d). Member Dennis would consider employee turnover a factor in deter- mining the existence of objective considerations sufficient to justify with- drawal of recognition. Under all circumstances of the instant case, how- ever, she does not find the turnover rate dispositive. Victor A. McLemore, Esq., for the General Counsel. John D. Marshall, Esq., of Atlanta, Georgia, for the Re- spondent. Mr. Edward R. Draper, for the Charging Party. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. This case was tried at Atlanta, Georgia, on 24 June 1985.1 The charge was filed by International Brother- hood of Firemen and Oilers, AFL-CIO Local 288 (the Union) on 19 April. The complaint based on the charge was issued by the Regional Director for Region 10 of the National Labor Relations Board on 24 May and I All dates are in 1985 unless otherwise stated amended on 3 June at the hearing. The issue raised by the complaint and the answer filed in response thereto is whether ACL Corporation d/b/a Atlanta Hilton & Towers (Respondent or the Company) violated Section 8(a)(5) and (1) of the National Labor Relations Act, when on or about 5 April it withdrew recognition from the Union and refused to bargain collectively with the Union as representative of certain employees in a bar- gaining unit alleged to be appropriate. Resolution of the issue turns first on ascertainment of the appropriate unit and then the validity of Respondent's asserted "good faith doubt" of the Union's majority status. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the arguments at hearing by the parties and the brief filed by Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Georgia corporation, maintains an office and place of business located in Atlanta, Georgia, where it is engaged in the operation of a hotel. During the cal- endar year preceding issuance of the complaint, Re- spondent in the course and conduct of its business re- ceived revenues in excess of $500,000 and purchased and received at its Atlanta, Georgia location goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia. The complaint alleges, Respond- ent's answer admits, and I find that Respondent is an em- ployer engaged incommerce within the meaning of Sec- tion 2(6) and (7) of the Act. The complaint further al- leges, Respondent further admits, and I further find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Undisputed Facts On 1 November 1979 the Union filed a petition, Case 10-RC-11941, seeking an election among employees of Respondent in a unit of Respondent's property oper- ations department. Such employees were engaged essen- tially in custodial and maintenance functions. On 16 No- vember 1-979 Respondent and the Union entered into a Stipulation for Certification Upon Consent Election agreement agreeing to an election in thefollowing unit: All full-time and regular part-time employees em- ployed by the employer at its Atlanta, Georgia fa- cility, in the Property Operations Department in- cluding electricians, TV technicians, mechanics, op- erators, plumbers helpers, carpenters, carpetmen, upholsterers, printers and locksmiths, but excluding all office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act. The agreement was approved by the Regional Director on 19 November 1979 and the election was held on 3 January 1980. The Union was selected by a majority of the unit employees but Respondent filed timely objec- tions to the election. The Regional Director's report 278 NLRB No. 76 ATLANTA HILTON 4 TOWERS 475 finding the objections to be without merit was sustained by the Board and the Union certified on 26 February 1980. Following certification, the Union and Respondent en- tered into negotiations and arrived at their first collec- tive-bargaining agreement which was made effective on 29 May 1980. Two successive bargaining agreements were negotiated, the last being effective from 1 June 1984 through the following 31 May. The Union, desiring to negotiate a new agreement to succeed the one expiring 31 May, sent Respondent a letter dated 25 March, signed by Edward R. Draper, International representative of the Union, asking that Re- spondent meet for negotiations. Respondent, through William Utnik, general manager of Respondent, by letter dated and mailed 28 March (but not received by the Union until 6 April) declined the Union's request stating: This is to advise you that [Respondent] wishes to terminate its agreement with your union , as of the expiration date of the current contract. Furthermore, [Respondent] can no longer recog- nize [the Union] as the exclusive representative of our Property Operations Department employees since it has a good faith doubt that your union has the support of a majority of those employees. In ad- dition, there is considerable doubt that the unit de- scribed in our contract with your union is an appro- priate one for collective bargaining. After receipt of Respondent's letter, Draper arranged a meeting with unit employees on 19 April. During the course of that meeting, Draper requested and obtained signatures of some 14 unit employees on a petition signi- fying their desire that the Union be their collective-bar- gaining representative. By 24 April, Robert Grey, a unit employee and the Union's shop steward, secured 5 other unit employees' signatures on the petition and 1, that of employee Allan Hampton, on a union authorization card, thus- indicating union support by 20 of the 32 unit em- ployees employed by Respondent on 24 April.2 The petition was returned to Draper by Grey about 26 April. Draper sent a copy of the petition and authoriza- tion,card to Respondent on 29 April. However, Re- spondent through a letter from its attorney on 22 May persisted in its refusal to bargain further with the Union claiming the'signatures on the petition had been obtained through threats, misrepresentation, - and coercion. The letter also asserted that, "[A]s mentioned, in Mr. Utnik's letter to you on March 28, 1985„ we, have some doubt about the appropriateness of the bargaining unit in view of the Board's decision about appropriate units in the At- lanta Hilton and Towers." Atlanta Hilton & Towers, 273 NLRB 87 (1,984). B. The General Counsel's Contentions Based on the foregoing facts, the General Counsel argues, and the complaint alleges, that Respondent was - not privileged to withdraw recognition, from the Union 2 A list of employees employed by Respondent at the relevant times herein was submitted in evidence by Respondent and to refuse to further bargain with it. Citing Carmi- chael 'Construction Co., 258 NLRB 226 (1981), the Gener- al Counsel contends that the existence of a valid collec- tive-bargaining agreement between Respondent and the Union gave rise to the presumption of the Union's major- ity representative status.-The Union's April petition con- taining the signatures of a majority of the unit employees are said to reinforce the presumption and dispute any actual loss of the Union's majority support. Assailing Re- spondent's evidence discussed, infra, the General Counsel asserts that no legitimate or valid objective basis existed to rebut the presumption regarding the Union's majority status or to substantiate Respondent's claim that objec- tive considerations provided a basis for its good-faith doubt of the Union's majority status. In short, according to the General Counsel, Respondent's actions constituted a breach of its collective-bargaining obligations in viola- tion of Section 8(a)(5) and (1) of the Act. As argued by the General Counsel, the existence of the unexpired collective-bargaining agreement between the parties at the time of Respondent's admitted refusal to bargain raises a dual presumption regarding the Union's majority representative status, the first being that the Union enjoyed majority status at the time the con- tract was executed and the second being that the majori- ty status continued through the term of the bargaining agreement. See Pioneer Inn, 228 NLRB 1263 (1977), enfd. 578 F.2d 835 (9th Cir. 1978). In 'view of this dual presumption arising from the bargaining agreement, lawful on its face, and in light of the presumptive appro- priateness of the collective-bargaining unit in which the Union was certified by the Board and covered by the collective-bargaining agreement, I conclude that the General Counsel has, on the undisputed facts related above, established a prima facie case of an unlawful re- fusal to bargain by Respondent. See Top Mfg. Co., 594 F,2d 223 (9th Cir. 1979).' The burden of rebutting the ex- istence of the violation under the circumstances is Re- spondent's. Carmichael Construction Co., supra; Pioneer Inn, supra. C. Respondent's Defense Respondent relies on a two pronged defense, the first premised on the contention that the unit in which the Union was certified was either inappropriate or improp- erly established so that no bargaining order may be issued requiring Respondent to bargain in such a unit, and the second premised on Respondent's asserted "good faith doubt" of the Union's majority representative status.3 More specifically, with respect to its unit argu- ment, Respondent contends that since the unit was deter- mined, as a result of agreement between the Union and Respondent as expressed in the Stipulation for Certifica- tion the Board never fulfilled its obligations under Sec- tion 9(b) of the Act which requires it to "decide in each case whether . . . the unit appropriate` for the purposes of collective bargaining shall be the employer unit, craft 3 "Majority representative status" as used herein refers to the desire of a "majority of employees in the unit ... to have the union as their rep- resentative for collective-bargaining purposes " Celanese Corp, 95 NLRB 664, 671-672 (1951) 1 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit, plant unit, or subdivision thereof . . . ." In support of this position, Respondent relies on NLRB v. Cheme- tron Corp., 699 F.2d 148 (3d Cir. 1983), which held that in determining an 8(a)(5) violation based on a subsequent refusal to bargain where voluntary recognition was ex- tended to a union in a unit agreed to by the parties, the Board must still determine that the unit is not contrary to the Act or Board policy before it may order the em- ployer to bargain in such unit. Respondent claims the Board has never determined the appropriateness of the unit involved in the instant case. Further, with respect to the unit argument, and as ex- pressed in Respondent's answer to the complaint, the unit involved herein is inappropriate for it is inconsistent with Board decisions regarding appropriate units in the hotel industry. In support of this argument, Respondent relies primarily on a recent Board decision involving Re- spondent and the Union's International organization, At- lanta Hilton & Towers, supra. In that case the Board re- fused to order Respondent to bargain in a previously cer- tified unit of housekeeping, laundry, public facility, and exhibit employees concluding that the union's certifica- tion in that unit should be revoked in light of the Board's determination at Respondent's urging that an overall unit of Respondent's employees (but excluding the property operations employees herein involved) was appropriate. Respondent contends herein that only an overall unit is appropriate, even including the property operations em- ployees. Finally, with respect to the unit, Respondent argues that it is inappropriate because it includes the "opera- tors" classification and operators, according to Respond- ent, are guards. Here, Respondent points out that Section 9(b)(3) of the Act prohibits the Board from deciding a unit is appropriate if it includes guards with other em- ployees. With regard to its asserted good-faith doubt of the Union's majority status, Respondent relies on the testi- mony of James H. Parsons, Respondent's human re- sources manager, John Duffey, manager of Respondent's property operations department, and Donnie Chaney, a supervisor in the operations department. Parsons testified that he participated along with General Manager Utnik in the decision to refuse to bargain with the Union reached on 26 March. That decision was based, accord- ing to Parsons, on the decline in authorizations executed by employees for the checkoff of union dues over the past 3 years, the general turnover of employees in the property operations department during 1984 and early 1985, and statements by a number of unit employees prior to the refusal to bargain indicating their nonsupport of the Union. More particularly in connection with the employee statements, Parsons testified that in August or September 1984, two employees of Respondent, Richard Myers and Jerry Millwood, approached him and stated they were disenchanted with the Union and no longer wished for it to represent them. Parsons explained resig- nation procedures to them and gave them the time frame within which they could revoke their checkoff authoriza- tions. Subsequently, on 5 April, Myers and Millwood wrote separate typed letters to the Union stating they were "canceling my `Dues Deduction Authorization."' The Union replied by letter dated 9 April stating that the revocations were untimely under the terms of authoriza- tion signed by them.4 Parsons also testified that unit employee Granville Graham had made several complaints to him beginning in 1981 that the Union was keeping his salary down. Graham's latest remark about the Union, according to Parsons, was in February when Graham remarked that he hoped there would be no interruption in business "this year" by the Union because everybody could make quite a bit of money since the hotel was very busy. Graham's remark was an apparent allusion to a strike by the Union at Respondent's hotel in 1981. Similar remarks were at- tributed to Graham by Chaney. According to Chaney, Graham, who was never a union member, repeatedly complained about the Union. According to Parsons, employee Victor Blanco, who left Respondent's employment on 4 April, told Parsons in February or March that he did not like the Union and said it was "no good for any of us," and added that he hoped he could get out of it. Parsons related that the previous fall, probably in September, he had been told by unit employee James Beasley that Beasley had attend- ed a union meeting, and that he had announced at the meeting that the Union "can't do anything for me." Par- sons added that Beasley said he was told by a union offi- cial that he better leave. Beasley further told Parsons that another employee whom Beasley did not identify told him he had better watch his step or the Union would get him fired like it had another unit employee who had been fired for writing obscenities on a locker room wall. Another employee had been discharged for such an offense and the implication of the remark to Beasley was that it was a frameup. Chaney testified concerning a similar incident related to him by Beasley. He related Beasley told him around the first of the year that employees John Noird and Jerry Akins had told Beasley that if he did not support the Union he would be terminated, because they had man- agement people say that once the Union was out, Beas- ley would be the first one to be fired. In February or March, Beasley and unit employee Forrest Holland were brought to Parsons by Chaney. They explained, according to Parsons, that they had exe- cuted checkoff authorizations and joined the Union on the basis of representations concerning certain benefits, that they found the representations false, and wanted to cancel their dues-deduction authorizations. Both Beasley and Holland on 1 March executed separate but identical letters to the Union requesting to "remove and with- draw" their requests to join the Union. The letters did not specifically refer to the checkoff authorizations each executed on 16 January, nor does the record show a spe- cific response by the Union to these letters. On the other hand, Beasley and Holland continued to be listed on the checkoff sheets sent by the Union to Respondent through May. Holland by a typed letter to the Union 4 Millwood sent a similar revocation letter to the Union on 15 May subsequent to Respondent's refusal to bargain. Myers left employment of Respondent on 26 April. ATLANTA HILTON & TOWERS 477 dated 15 May advised the Union that he was canceling his dues-checkoff authorization. There were two final checkoff revocations produced by Respondent. These were separate but identically typed letters signed by unit employees Barry Thurmond and Allen Hampton stating simply that they were by the letter "canceling" their "dues deduction authorizations." Both letters were dated 15 May after the withdrawal of recognition of the Union. There is no evidence that Hampton had ever signed a dues-checkoff authorization. He had, however, as already noted herein, signed a union authorization card dated 22 April. While equivocal about the exact time, Parsons testified that before the decision to withdraw recognition from the Union on March 28, he received an undated letter from unit employee Don Upton in which Upton related he had been invited to a union meeting to find out more about the Union and added: The meeting was held at a local bar and beings [sic] that I do not drink I did not attend. I did try to obtain as much information about the union through talking with other employees and reading all available written material. Unfortunately, I was not able to find out very much. From what was available I could find no viable reason to join. From the information that I could gather I Do Not feel that this union is representative of myself or my fellow employees. My reason for saying this is that only about 5 of tis [sic] members take an active role in the union and 2 of those only when they are in trouble. It was told to me by the shop steward that only three people showed up at the last meeting and that attendance is allways [sic] low at the meetings. My reason for writting [sic] this letter is to ask you to contact the proper authorities to investigate this union's effectiveness as I feel that it may be more of a henderance [sic] than a help in advancing with the Hilton. In response to this letter, Parsons met with Upton and answered Upton's questions about how he and other em- ployees, apparently unnamed, could get, out from under the Union. Parsons told Upton he could not take an active role in the matter but Upton could contact the Board "and/or get a petition signed by those employees who were not interested in being represented by the Union." There was no evidence presented that Upton did either of these things. On the contrary, Upton signed the Union's petition designating the Union as his bargain- ing representative on 24 April. Chaney testified, however, that Upton on several oc- casions during the first part of the year and up through March said he felt like the Union was not representing the department and that he did not feel like he should be a member "and why other guys would because they didn't offer additional benefits and stuff." Chaney, who reported Upton's remarks to higher management when he heard them, testified he was surprised when Upton apparently reversed his position on the Union and signed the April "petition." Finally, Chaney testified that he heard several people express dissatisfaction with the wages they received in the union contract negotiated in 1984. He failed to speci- fy exactly how many or identify any specific complainer. Department Manager Duffey testified, but only gener- ally, that he heard comments of dissatisfaction about the Union from several employees. These comments were made over a period of 5 years, but Duffey said they in- creased in the latter part of 1984 and the first part of 1985. He related that he recalled Union Steward Grey once complain that the Union did not communicate with the employees like it should. As a result, he asked Par- sons if there was a way that management could inform employees when the time frame was up for them so they could "withdraw" from the Union. According to Duffey, Parsons made a list of people on checkoff and the dates when they could revoke their checkoffs. As the, employees became eligible to revoke their checkoffs, Duffey told them he had the information regarding checkoff revocation if they were interested. He specifi- cally recalled passing such information to employees Millwood, Myers, Sandy Brown, and Victor Blanco. However, only Millwood and- Myers of this group ap- pears to have used it. With respect to employee turnover in the unit, Re- spondent produced records that reflected that over the calendar year 1984, out of a unit ranging from about 31 to 45 employees, there was a turnover of about 21 em- ployees. For the first months of 1985, there was a turn- over of only three employees in the unit. With regard to the reduction of employees on checkoff over the years, Respondent's records reflect that the first checkoff list, January 1981, revealed 21 names. In subsequent months and years, the number of employees on checkoff fluctu- ated. In December 1983, the number was at 21 again, and over 1984 it ranged downward from 21 to 15 ending with 16 in December. In 1985, it remained at 16 in Janu- ary and February, increased to 17 in March, and dropped to 135 in April. In defense of Respondent's adherence to its decision to refuse to bargain with the Union in the face of receipt of the Union's April petition, Parsons testified that Re- spondent discounted the list because there were people on the list who had previously expressed dissatisfaction with the Union, specifically Beasley, Upton, and one other employee whose name he could not recall. Fur- ther, Parsons testified that Respondent had heard of union propaganda going around regarding what Re- spondent would do upon expiration of the bargaining agreement. More specifically, he said the propaganda was to the effect that employees would not have any representation, that the grievance procedure would be withdrawn, that wages would be cut, that employees would lose benefits, and that a hit list had been devel- oped of employees to be fired. Parsons testified he heard of this propaganda through Supervisor Ed Gooden. Gooden was not called to testify herein. 5 This number excludes employees Beasley, Holland, Millwood, and Myers, who had submitted checkoff revocations on or before 5 April, and employees Blanco and Hansen, whose employment with Respondent ended during April. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Analysis and Conclusions 1. The unit issue While it is clear that Section 9(b) requires the Board to decide the appropriate bargaining unit "in each case," the Board has followed a long established , practice of permitting parties in a representation case to stipulate to the appropriateness of the unit and to various inclusions and exclusions so long as "the agreement does not vio- late any express statutory provisions or established Board policies." SCM Corp., 270 NLRB 885 (1984). This prac- tice was justified and explained in Tribune Co., 190 NLRB 398 (1971), where the Board, responding to argu- ments of a dissenter that the Act gives the Board exclu- sive responsibility to determine the appropriateness of a unit and questioning whether the function of the Board in determining voting eligibility should be any different in stipulated unit cases than in other cases where the Board initially determined the unit, stated: Parties that come before the Board have a special interest in securing the speedy resolution of ques- tions concerning representation.' To this end, we permit parties to stipulate to the appropriateness of the unit, and to various inclusions and exclusions, so long as (a) their agreement is approved by the Re- gional Director, and (b) their agreement does not violate any express statutory provisions or estab- lished Board policies . Were we later, to review their stipulation de novo, and make our own findings, we would be undercutting the very agreement which served as the basis for conducting the election. The view of our dissenting colleague has been specifical- ly rejected by reviewing courts. In one case,2 the Court of Appeals for the Second Circuit said, with respect to the Board's exclusion of an employee on the basis of "community of interest": In our view no established Board policy or goal of the Act is contravened by including [the employee]. We view community of interest as a doctrine useful in drawing borders of an appro- priate bargaining unit, a function well within the discretion of the Board. But we do not conclude that the doctrine remains as an established Board policy sufficient to override the parties' intent when the Board, in the interests of furthering consent elections, allows the parties to fix the unit. Other courts have said essentially the same thing.3 In stipulated unit cases,, the Board's function is to ascertain the parties' intent with regard to the dis- puted employee and then to determine whether such intent is inconsistent with any statutory, provi- sion or established Board policy. ' See, e.g., Amalgamated Clothing Workers of America, AFL- CIO v. NLRB (Sagamore Shirt Co.), 365 F.2d 898, 902, 905 (C.A.D.C). 2 Tidewater Oil Co. v. NLRB, 358 F.2d 363, 366. s NLRB v. J.J. Collins Sons, 332 F.2d 523 (C.A 7), NLRB v The Jochn Manufacturing Co., 314 F.2d 627 (C A. 2). In approving the stipulated unit in the underlying rep- resentation case which culminated in the Union 's certifi- cation, it is clear that the Regional Director concluded that the unit did not violate any express statutory provi- sion or established Board policy. And nothing appears on the face of the unit description which would in any way hint that it was inconsistent with law or Board policy. On the contrary, it appears on its face to be a departmen- tal unit which without ' more would not necessarily be considered inappropriate. Indeed, Respondent not only agreed to the unit but, following the Union 's certifica- tion, bargained concerning employees in that unit for more than 4 years. It ill behooves Respondent to now claim that the unit is in fact inappropriate or that the Board breached its statutory obligation in acceding to the parties' stipulated unit. Respondent's reliance on Chemetron Corp., supra, is misplaced for it is easily distinguished . In that case an employer prior to negotiating a collective -bargaining agreement refused to bargain with a union it had initially voluntarily recognized. Its defense was that the unit was inappropriate. In considering the legality of the refusal to bargain, the Board rejected the employer's attempt to re- pudiate the voluntary recognition and in doing so found it unnecessary to decide whether it would have found the unit involved in the recognition an appropriate one. 258 NLRB 1202 (1981). The court, however, reversed ,and remanded the case to the Board to determine the ap- propriate unit on the premise that the Board was re- quired by Section 9(b) to determine the appropriate unit and that it could not simply defer to a voluntary agree- ment between an employer and a union without making any assessment that the unit identified within the agree- ment.was proper. In contrast to the situation in Cheme- tron, and although the unit in the instant case was a product of the parties' agreement, the Board had ap- proved of the appropriateness of the unit by virtue of the Regional Director's initial approval of the stipulation sig- nifying that the unit was not contrary to statutory provi- sions of the Act or established Board policy. Respondent here made no attempt to test the appropriateness of the unit or the Union's certification before entering negotia- tions with the Union. The instant case is also distinguishable from Chemetron in that here the unit, whether or not initially inappropri- ate, has been buttressed and justified by a collective-bar- gaining history reflected in three successive bargaining agreements over a 5-year period. In this regard, the case is more analogous to the situation prevailing in Interna- tional Telephone & Telegraph Corp. v. NLRB, 382 F.2d 366 (3d Cir. 1967), where the same court that decided Chemetron concluded that while a Board unit determina- tion resulting in the union's certification in That case may have been initially improper, the parties continued over a period of 13 years to engage voluntarily in collective bargaining so that any error in the original determination of the bargaining unit or any breach of the Board's obli- gation under Section 9(b) could not justify the employ- er's refusal to bargain. See also Oklahoma Osteopathic Hospital v. NLRB, 618 F.2d 633 (10th Cir. 1980). ATLANTA HILTON & TOWERS 479 Finally, still with respect to Chemetron, the Board in accepting the court's remand in that case acknowledged the court's opinion as establishing the law of that case only. 268 NLRB 335 (1983). In so doing the Board did not indicate that it was reversing its policy outlined in Tribune Co., supra., On the contrary, the Board recently indicated its adherence to the policy and principles con- tained in Tribune Co., and that line of cases, in Hollywood Medical Center, 275 NLRB 307 (1985). An administrative law judge is bound to follow announced Board policy and precedent until modified or reversed by the Board itself or the Supreme Court. See Waco, Inc., 273 NLRB 746 (1984); Consolidated Casinos Corp., 266 NLRB 988, 993 (1983). The Board's initial certification of the Union in the unit set forth herein is binding upon me. I there- fore find no merit to Respondent's arguments based on Board noncompliance with Section 9(b). With respect to Respondent's contention that the unit is inappropriate under hotel standards, it is to be noted that the Board determines units in the hotel industry based on the community of employee interests reflected in the facts peculiar to each case. 77 Operating Co., 160 NLRB 927 (1966), enfd. 387 F.2d 646 (4th Cir. 1967). In short, a finding of a hotelwide employee unit is in no sense automatic. It is also true, as found by the Board in Atlanta Hilton & Towers, supra, that there is a substantial integration of employee functions and an existent com- munity of interest among employees of Respondent on a hotelwide basis.6 However, in that case, although finding no basis for separate units of housekeeping, laundr,y public facility, and exhibit employees on the one hand, and food and beverage employees on the other hand, the Board still expressly excluded the property operations employees herein involved from any larger unit. Wheth- er it did so on the basis of the Union's certification in the property operations unit, the bargaining history, or Re- spondent's acquiescence in such exclusion is not clear. But it is clear the property operations employees were excluded thus indicating the appropriateness of a proper- ty operations employee unit notwithstanding factors pe- culiar to Respondent's operations outlined in Atlanta Hilton & Towers or prevailing in the hotel industry gener- ally which might have warranted their inclusion in a larger unit initially. Accordingly, I find no merit to Re- spondent's assertion that the property operations unit is inappropriate as not conforming with hotel industry unit standards. Considering next, Respondent's contention that the unit is inappropriate because it contains employees em- ployed as guards, it is to be initially noted based on the 6 At the request of Respondent I have also taken official notice of an- other representation case involving Respondent's employees, Case 10- RC-12182. The petition in that case was filed by International Brother- hood of Firemen and Oilers, AFL-CIO, on 31 July 1980, seeking an elec- tion in a unit of Pax operators in Respondent's communications depart- ment. Respondent opposed the unit claiming only a larger unit of all hotel employees less statutory exclusions and the property operations em- ployees who were already separately represented was appropriate. After a hearing on 21 August 1980 the Regional Director's decision and order in the case issued on 30 September 1980. The Regional Director agreed with Respondent's position and dismissed the petition relying primarily upon the significant role of the communications department in the total integrated operations of the hotel. undisputed and credible testimony of Union Representa- tive Draper that Respondent never raised such, a conten- tion with the Union at anytime prior to the refusal to bargain, Indeed, even in its letter announcing its refusal to bargain no reference was made to the present guard contention. And Respondent counsel's letter of 22 May did not mention such an issue. This failure suggests the specious nature of Respondent's contention, and I fmd the record confirms the absence of evidence establishing that operators are guards. Such evidence reveals that Re- spondent employs three individuals classified as "opera- tors." They work in what is referred to as the "alpha room" where their function is to monitor control systems and panels, which indicate faults or problems in Respond- ent's mechanical systems. One panel pinpoints the loca- tion of any fires within the hotel. Upon indication of a fire, the operator by telephone advises Respondent's se- curity employees of its location.7 In addition, operators monitor control panels which indicate intrusions through certain hotel doors. When an intrusion is noted it is re- ported to the security guards by the operators. Other panels or instruments monitored by operators give alarms for intrusions at certain safes and cashier locations. Where an alarm is noted, the operators telephone the se- curity department. Operators are also directed to bar en- trance into the alpha room -by unauthorized persons in- cluding employees. However, it does not appear that the alpha room doors are locked at all times or at any par- ticular time or that operators have keys to the room. If an unauthorized person refuses to leave the alpha room, the operators may take no action on their own and are required to refer the matter to security guards. It is undisputed that operators are not armed or depu- tized as are Respondent's security personnel. Nor do they wear the uniform of security personnel. They ap- parently have no guard functions outside the alpha room and other than barring access of unauthorized employees to the alpha room, they have no rule enforcement duties with respect to other employees., As stated by the Board in Deluxe General Inc., 241 NLRB 229 (1979): Review of the legislative history [of] Section 9(b)(3) reveals that Congress drafted that provision in order to minimize the danger of divided loyalty that may arise when a guard is called upon to en- force the rules of his employer against a fellow union member. Although the Board has construed Section 9(b)(3) to encompass nonplant guards, it has not departed from that section's strict requirements that employees found to be guards are those who "enforce against employees and other persons rules to-protect property of the employer or to protect the safety of persons on the employer's premises." [Footnotes omitted] In the instant case it is clear that operators are not en- trusted with the protection of Respondent's premises nor the safety of persons on its premises. Respondent has a 7 Security employees independently monitor a separate fire alarm system which indicates the existence of a fire but not its location. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD security division and undisputed guards for these pur- poses. The fact that the operators monitor, as part of their duties, panels or equipment which provide fire pro- tection and building security information does not estab- lish them as guards. See American District Telegraph Co., 160 NLRB 1130, 1138 (1966).8 Nor does the authority of the operators to bar other employees from the alpha room make them guards where it is clear that they had no special police powers to observe, report, or enforce rules against employees generally. Further, operators run no special risks of confrontation with possible intruders. Under these circumstances, I find no risk of divided loyalties which was the congressional concern in enacting Section 9(b)(3). Rather, I conclude that the operators are essentially maintenance-type em- ployees with no more responsibility for protection of Re- spondent's property than any other unit employee ob- serving unauthorized personnel, employee or otherwise, in a restricted work area. I find the operators are not guards, and I therefore find the unit involved in this case is not inappropriate due to the inclusion of the operator classification. From the foregoing I find that the unit in which the Union was certified is not inappropriate for any of the reasons asserted by Respondent herein. were 17 employees on checkoff out of a unit of 34 em- ployees. This excludes two individuals from the checkoff list, Beasley and Holland, who had submitted checkoff revocations on 1 March.9 It includes two employees, one hired on 28 March, who were serving a 30-day proba- tionary period for new employees provided for under the bargaining agreement, even though it is improbable that the Union had sought to enlist their membership due to their probationary status. These circumstances raise grave doubts regarding the genuiness of Respondent's good faith where it relied on checkoff numbers as justi- fying its 28 March decision. That doubt was increased by Parsons' incredible inability to recall on examination the number of employees in the unit when the decision was made. Nevertheless, if execution of a checkoff authoriza- tion was a prerequisite to establishing majority support then perhaps the Union did not have majority support on 28 March. However, the Board has long held with court approval that majority support is not to be confused with majority union membership. Thomas Industries, 255 NLRB 646 (1981); Petroleum Contractors, 250 NLRB 604 (1980); Barrington Plaza & Tragniew, 185 NLRB 962 (1970). And in Terrell Machine Co. Y. NLRB, 427 F.2d 1088 (4th Cir. 1970), enfg. 173 NLRB 1480 (1969), the Fourth Circuit said at 1090: 2. Respondent's good-faith doubt defense In light of the General Counsel's prima facie case, Re- spondent must establish its good-faith doubt of the Union's majority status. There are two prerequisites for sustaining such a defense. First, the doubt must be based on objective considerations and, secondly, they must be raised in a context free of unfair labor practices. See Car- michael Construction Co., supra; Club Cal-Neva, 231 NLRB 22 (1977); Pioneer Inn, supra: Notwithstanding suggestions in the record that Respondent's assistance to certain employees in revoking their dues-checkoff au- thorizations may not have been' altogether lawful, there were no complaint allegations on the point nor did the General Counsel argue unlawful assistance by Respond- ent to employees in revoking checkoff authorizations or resigning from the Union. Aside from the refusal to bar- gain, the complaint alleges no other unfair labor prac- tices by Respondent. Accordingly, it must be concluded that Respondent's asserted good-faith doubt has been raised in a context free of unfair labor practices. There- fore, only the objective basis of Respondent's doubt herein need be considered. At the outset, it is clear that Respondent has not estab- lished that the Union did not in fact lack majority em- ployee support on 28 March when Respondent decided to refuse'to bargain' with the Union and initially deposit- ed in the mail a letter to the Union to that effect. At best, Respondent's records reflected that in March there 8 But see Aeroguild, Inc., 119 NLRB 329 (1957), cited in Respondent's brief where the Board found an employee to be a guard where the em- ployee was initially apprised of unauthorized plant entry by a burglar alarm system. However, the case is distinguishable on the basis that the employee had specific instructions and authority to bar all plant entry. It may be further distinguished on the premise that the record in that case contained evidence that the employee also had investigative duties when- ever the alarm system sounded. A showing that less than a majority of the employ- ees in the bargaining unit were members of the union or paid union dues [is] not the equivalent of showing lack of union support. Manifestly .. . many employees are content neither to join the union nor to give it financial support but to enjoy the benefits of its representation. Nonetheless, the union may enjoy their support, and they may desire continued representation by it. Thus, the absence of a majority of employees from a checkoff list does not establish a lack of majority union support. This principle, I conclude, applies whether or not the number of employees on checkoff at the time of the refusal to bargain results from a sharp decline or a gradual one. Certainly, the wisdom of the principle is demonstrated by the majority support of the Union re- vealed in the Union's April "petition" which was signed by Beasley who had earlier sought to resign from the Union and revoke his checkoff authorization, and Upton who had earlier been critical of the Union.1 ° According- ly, I find the bare absence of a majority of employees on checkoff at the time of Respondent's refusal to bargain does not establish an objective basis for Respondent's doubt of the Union's representation status. I likewise conclude that Respondent's other evidence fails to establish, either the Union's actual loss of majority 9 This number also excludes one employee, Bennie Thurmond, whose absence from the Union's March and April checkoff lists was unexplained although his name was on the February and May lists. His checkoff au- thorization was forwarded with the February list. There was no evidence that Thurmond sought to revoke the authorization before 15 May when he did send a revocation to the Umon canceling the checkoff io I find no probative evidence on the record herein that establishes any misconduct on the part of the Umon in connection with obtaining signatures on the "petition." ATLANTA HILTON & TOWERS 481 status or the basis for objective considerations justifying Respondent's claimed good-faith doubt. Viewing such other evidence outlined herein in the light most favor- able to Respondent reveals that only two employees, Myers and Millwood, told management officials that they did not wish for the Union to represent them any longer. The comments and actions attributed by Re- spondent to other unit employees, Blanco, Graham, ,Beasley, Holland, and Upton, are less clear as a total re- jection of the Union as bargaining representative as op- posed to rejection of membership in the Union. Clearly, the remarks attributed to Graham, who had never been a union member, amounted to no more than general criti- cism of the Union which the Board has held does not in- dicate a rejection of the union as collective-bargaining representative, See Thomas Industries, supra; Retired Per- sons Pharmacy, 210 NLRB 443, 446 (1974), enfd. 519 F.2d 486 (2d Cir. 1975). But even assuming that the re- marks attributed to all seven" of the foregoing employ- ees did constitute their personal rejection of the Union as collective-bargaining representative, they compromise only a small minority of the unit employees. Rejection of union representation by a small minority of unit employ- ees is not sufficient to support a reasonable doubt of the Union's continuing majority status. Odd Fellows Rebekah Home, 233 NLRB 143 (1977). In sum,, Respondent has shown only that in a unit of never less than 31 employ- ees, a total of 9 employees either expressed dissatisfaction with the Union and/or revoked their checkoff authoriza- tion cards and resigned from the Union. Nor do any of the statements attributed to unit em- ployees by Respondent establish that a majority of other unit employees rejected the Union. Upton's letter to Par- sons to the effect he did not feel the Union was repre- sentative of himself and the other unit employees was nothing more than conjecture and opinion. It was not based on an actual survey by Upton. Upton's opinion and the factors he relied on do not, I conclude, provide a valid objective basis for Respondent's doubt of the Union's majority status. Lack of interest in union activi- ties or a disinclination to join the union does not imply opposition to the union as bargaining representative. Re- tired Persons Pharmacy, supra, 519 F.2d 486, 490. Finally, with respect to Respondent's argument re- garding turnover as contributing to Respondent's doubt of the Union's majority status, the Board has held that there is a presumption that "new employees will support the union in the same proportion as those employees with more seniority." Pioneer Inn, supra at 1266. That presumption has not been rebutted here. Moreover, and in any event, turnover in the instant case was confined to a relatively small group of unit employees. Close exami- nation of the employee list entered into evidence by Re- spondent and showing dates of hire reveals that 24 of the 34 employees in the unit on 28 March had been em- ployed prior to the effective date of the latest bargaining agreement, 1 June 1984. Thus, the turnover was among 11 It should be noted that four of the same seven, Myers, Millwood, Beasley, and Holland revoked or attempted to revoke their checkoff au- thorizations As noted the two additional employees who sought to revoke checkoff authorizations, Thurmond and Hampton, did not do so until May after the refusal to bargain roughly 10 employees in the unit, a small minority. To Respondent's knowledge 16 of the 24 employees not af- fected by turnover were on dues checkoff. Selection of the Union for representation by only 2 employees replac- ing any of the 10 affected by turnover would be suffi- cient to continue the Union's majority status. Any pre- sumption by Respondent that 9 or more of this 10 would not desire union representation would appear to be based more on wishful thinking than any reasonably based ex- pectation. Accordingly, I find the turnover here to be in- sufficient to constitute a factor substantiating a good- faith doubt of the Union's majority status. Considering all the foregoing factors relied on by Re- spondent in its defense, both individually and collective- ly, I find no reasonable objective basis to support Re- spondent's good-faith doubt of the Union's majority status when it withdrew recognition from the Union and refused to bargain with it. I therefore find that Respond- ent violated Section 8(a)(5) and (1) of the Act as alleged. CONCLUSIONS OF LAW 1. The Respondent, ACL Corporation d/b/a Atlanta Hilton & Towers, is an employer within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Firemen and Oilers, AFL-CIO Local 288 is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is now and has been at all material times the exclusive majority representative of all employees in the following bargaining unit found to be appropriate: All full-time and regular part-time employees em- ployed by the employer at its Atlanta, Georgia fa- cility, in the Property Operations Department in- cluding electricians, TV technicians, mechanics, op- erators, plumbers helpers, carpenters, carpet-men, upholsterers, printers and locksmiths, but excluding all office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act. 4. By withdrawing recognition from the Union, and by refusing thereafter to bargain with the Union on'request, Respondent has refused to bargain collectively with the Union as the exclusive collective-bargaining representa- tive of its employees in violation of Section 8(a)(5) of the Act. 5. By the conduct set forth in Conclusion of Law 4 above, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaran- teed them in Section 8(a)(l) of the Act. 6. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist therefrom. Respondent will be required to recognize and, on request, bargain with the Union and to post an appropriate notice to employ- ees. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed13 (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. ORDER The Respondent, ACL Corporation d/b/a Atlanta Hilton & Towers, Atlanta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition from, and refusing to bar- gain collectively with, the Union as the exclusive bar- gaining representative of employees in the following ap- propriate unit: All full-time and regular part-time employees em- ployed by the employer at its Atlanta, Georgia fa- cility, in the Property Operations Department in- cluding electricians, TV technicians, mechanics, op- erators, plumbers helpers, carpenters, carpet-men, upholsterers, printers and locksmiths, but excluding all office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, 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 effectuate the policies of the Act. (a) On request bargain collectively with International Brotherhood of Firemen and Oilers, AFL-CIO Local 288, as the exclusive bargaining representative of its em- ployees in the aforesaid unit and, if an understanding is reached; embody the same in a signed agreement. (b) Post at its Atlanta, Georgia facility copies of the attached notice marked "Appendix."13 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's au- thorized representative; shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 12 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 objections to them shall be deemed waived for all pur- poses. 13 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT withdraw recognition from or refuse to bargain with International Brotherhood of Firemen and Oilers, AFL-CIO Local 288 as the exclusive representa- tive of employees in the following appropriate unit: All full-time and regular part-time employees em- ployed by the employer at its Atlanta, Georgia fa- cility, in the Property Operations Department in- cluding electricians, TV technicians, mechanics, op- erators, plumbers helpers, carpenters, carpet-men, upholsterers, printers and locksmiths, but excluding all office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain collec- tively with the aforesaid Union as the exclusive repre- sentative of all the employees in the appropriate unit de- scribed above with regard to rates of pay, hours of em- ployment, and others terms and conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement. ACL CORPORATION D/B/A ATLANTA HILTON & TOWERS