The Clarion Hotel-Marine; Colorado Marin Associates, A Joint Venture

CLARION HOTEL-MARIN Marin Operating, Inc. d/b/a The Clarion Hotel- Marin; Colorado Marin Associates, a Joint Venture and Freight Checkers, Clerical Em- ployees and Helpers Local 856 and Hotel Em- ployees & Restaurant Employees Union, Local 126. Cases 20-CA-19106 and 20-CA-19119 25 April 1986 DECISION AND ORDER BY MEMBERS DENNIS, BABSON, AND STEPHENS On 4 October 1985 Administrative Law Judge William L. Schmidt issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a limited cross- exception and an answering 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, findings, I and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Marin Operating, Inc. d/b/a The Clarion i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative 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 reversing the findings The judge found that assistant housekeeper Lamark was Respondent's agent when she substituted for Head Housekeeper Driscoll on 15 July 1984 The judge failed, however, to make any finding regarding the com- plaint allegation that Lamark coercively threatened employee Estrada when she shook her finger at Estrada and said, "Don't you dare talk about the Union " We find Lamark's conduct violated Sec 8(a)(1) of the Act, and we shall modify the judge's recommended Order and notice ac- cordingly We find it unnecessary to pass on the General Counsel's contention that Lamark and assistant housekeeper Malloway are statutory supervi- sors, or that Malloway unlawfully threatened employee Lucas on 18 July 1984 In so doing, we note that the finding of such a violation by Malloway would be cumulative No Party excepted to the judge's failure to find that the Respondent violated Sec 8(a)(1) of the Act by telling employees on 23 June 1984 that the Respondent did not want a Union, by admonishing employee Lucas on 19 July 1984 to "quit talking union"" and by posting a notice on 20 July 1984 prohibiting employees from picketing while wearing their work uniforms We find it unnecessary to determine whether the Respondent's 13 July 1984 issuance of a disciplinary warning to employee Estrada for handing out a union authorization card on worktime violated the Act as there was no allegation that the Respondent's no-solicitation rule or the warning were unlawful, and the issue was not fully litigated at the hearing Sec I,D, par 4 of the judge's decision contains an inaccurate reference to the year 1985 The correct year is 1984 481 Hotel-Marin; Colorado Marin Associates, a Joint Venture, San Rafael, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(e). "(e) Threatening employees if they engage in union activity." 2. Substitute the attached notice for that of the administrative law judge. 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, meet, and bargain with Hotel Employees & Restaurant Em- ployees Union, Local 126 and Freight Checkers, Clerical Employees and Helpers Local 856 in the following units represented by those labor organi- zations. The unit represented by Local 126 is: All cooks, preparation/breakfast cooks, pantry employees, dishwashers, dishwasher/porters, dishwasher/busboys, bartender service em- ployees, bartenders, cashiers/hostesses, wait- ers/waitresses, busboys, banquet waiters/wait- resses, and banquet set-up persons; excluding all other employees, guards and supervisors within the meaning of the Act. The unit represented by Local 856 is: All front desk clerks (including night clerks, front office room clerks and cashiers); office clerical employees (including file clerks, tele- phone operators, typist-clerks, TWX opera- tors, food and beverage clerks, reservation clerks, billing clerks, stenographers, accounts receivable/city ledger clerks, accounts payable clerks, bookkeeping machine operators, key- punch operators, city ledger bookkeepers, pay- roll clerks, general cashiers (secretaries); 279 NLRB No. 70 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD housekeeping employees (including maids, in- spectresses, housemen, maintenance/housemen, assistant housekeepers, combination linen/- laundry maids, seamstresses and bellmen); ex- cluding all other employees, guards and super- visors within the meaning of the Act. WE WILL NOT, if requested, refuse to restore your conditions of employment to those which ex- isted at the time Local 126 and Local 856 demand- ed recognition on 26 June and 22 June, respective- ly. WE WILL NOT issue written warnings, demote, or otherwise discriminate against any employee be- cause they engaged in any activities on behalf of Local 126 or Local 856 during nonwork hours in work uniforms. WE WILL NOT threaten employees for engaging in union activities. WE WILL NOT make statements suggesting that it would be futile for employees to support Local 126 or Local 856. 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 recognize and offer to meet and bar- gain with Local 126 and Local 856 as the exclusive representative of the employees in the respective units specified above concerning their wages, hours, and other terms and conditions of employ- ment and, if any agreement is reached, WE WILL sign a contract containing such agreement. WE WILL, on written request, restore any condi- tion of employment for employees in the above bargaining units to those which existed at the time Local 126 and Local 856 requested that we recog- nize and bargain with them as the appropriate em- ployee representative in the unit they represent. WE WILL offer immediate and full reinstatement to Lena Buza to the position of inspectress under the terms and conditions that existed prior to 18 July 1984 and WE WILL make her whole for any losses suffered as a result of her demotion from that position together with interest. WE WILL rescind and remove from the records of Lena Buza, Elizabeth Estrada, Gladys Johnston, Erlinda Lucas, Maria Spiers, and Dedena Wren, any written warnings or other notations or memo- randa reflecting the warnings issued to them for engaging in picketing while in their work uniforms and to the demotion of Lena Buza. WE WILL notify each of them, in writing, that this has been done and that evidence of our unlawful action against them will not be used as a basis for future disci- pline against them. MARIN OPERATING, INC. D/B/A THE CLARION HOTEL-MARIN; COLORADO MARIN ASSOCIATES, A JOINT VEN- TURE Andrew Baker and Lucile Rosen, Esqs., for the General Counsel. Gerald Tockman, Esq., of St. Louis, Missouri, for the Re- spondent. Franklin Silver and Albert Kutchins, Esqs. (Beeson, Tayer & Silbert), of San Francisco, California, for Local 856. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. This case was heard at San Francisco, California on 28- 30 January 1985. Case 20-CA-19106 was filed on 9 July,' by Freight Checkers, Clerical Employees and Helpers Local 856 (Local 856) and was amended on 20 July and 9 August. Case 20-CA-19119 was filed by Hotel Employees & Restaurant Employees Union, Local 126 (Local 126) on 16 July and was amended on 25 July and 14 August. On 17 August the Regional Director for Region 20 of the National Labor Relations Board (NLRB or Board) consolidated the two cases and issued a consolidated complaint alleging that Marin Operating, Inc. d/b/a The Clarion Hotel-Marin; Colorado Marin Associates. A Joint Venture; and Preferred Properties Fund 82, A Limited Partnership, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act follow- ing the acquisition of a hotel facility located in San Rafael, California, in June.2 This consolidated complaint was subsequently amended on 26 September, 15 January 1985, and at the hearing. Respondent filed timely an- swers to the consolidated complaint and the amendments wherein it admitted certain allegations and denied others including the alleged unfair labor practices. FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Pleadings and Issues The General Counsel alleges that Respondent's person- nel manager, Shirley Baxter, at various times between 18 and 27 July, unlawfully interrogated employees; threat- ened employees with discharge, discipline, and other re- prisals; and attempted to convince employees that it would be futile to continue their support of Locals 126 and 856. Respondent denied Baxter's status as its supervi- ' All dates refer to the 1984 calendar year unless otherwise shown 2 At the hearing , the General Counsel's unopposed motion to delete Preferred Properties Fund 82 as a party was granted Respondent here refers only to Mann Operating, Inc and Colorado Mann Associates Re- spondent is an employer engaged in commere within the meaning of Sec 2(2), (6), and (7) of the Act based on projected retail revenues exceeding $500,000 and direct inflow exceeding $5000 CLARION HOTEL-MARIN 483 sor and agent, the conduct attributed to her, and the con- clusionary allegation that such conduct violated Section 8(a)(1) of the Act. The General Counsel further alleges that Respondent's head housekeeper, Sue Driscoll, on 11 separate occasions between 20 June and 24 July, unlawfully interrogated employees; threatened employees with discharge, disci- pline, loss of overtime, or other unspecified reprisals; and attempted to convince employees that it would be futile to continue their support of Locals 126 and 856. Al- though Respondent's answer admits Driscoll is its super- visor and agent, it denies the conduct attributed to her, and the conclusion that such conduct violated Section 8(a)(1) of the Act. The General Counsel also alleges that Assistant Gener- al Manager Dan Dorazio and Supervisor Gloria Sver- check attempted to convince employees that it would be futile to continue their support of Locals 856 or 126 in the course of an employee meeting on 23 July. Respond- ent admits that both Dorazio and Svercheck are supervi- sors and agents but denies the conduct attributed to them and the conclusion that such conduct violated Section 8(a)(1) of the Act. The General Counsel alleges that on 18 July, Assistant Head Housekeeper Carmen Malloway threatened em- ployees with discharge if they selected a union. Respond- ent denies Malloway is a supervisor or agent, the con- duct attributed to her, and the conclusion that such con- duct violated Section 8(a)(1) of the Act. The General Counsel alleges that on 15 July, Assistant Head Housekeeper Kathy Lamark threatened employees with reprisals if they engaged in protected concerted ac- tivities. Respondent denies that Lamark is a supervisor or agent, the conduct attributed to her, and the conclusion that such conduct violated Section 8(a)(1) of the Act. The General Counsel further alleges that the Respond- ent unlawfully issued warnings to employees Lena Buza, Elizabeth Estrada, Gladys Johnston, Erlinda Lucas, Maria Spiers, and Dedena Wren between 18 and 20 July; that it demoted Buza on 18 July; and that it changed the work hours of Buza, Johnston, Lucas, and Spiers in the period between 18 and 22 July, all for discriminatory reasons. Respondent denies the conduct alleged and the conclusion that such conduct violated Section 8(a)(1) and (3) of the Act.3 Finally, the General Counsel alleges that Respondent, as a successor employer, was obliged to recognize and bargain with Locals 126 and 856, the representative of employees in units established during the ownership of the Hotel by Respondent's precedessors, and that Re- spondent refused to do so. Respondent's answer denies that it is a successor employer obliged to recognize Locals 126 and 856, that Locals 126 and 856 are labor organizations within the meaning of Section 2(5) of the Act, or that units represented by Local 126 and 856 are appropriate for bargaining under the Act. Respondent's answer further alleges affirmatively that Locals 126 and 856 have engaged in misconduct warranting the forfeit- 3 The General Counsel's unopposed motion to delete the complaint discrimination allegations pertaining to employees Rader and Ibarreta and the medical leave allegation pertaining to Lucas was granted ing of their recognition as well as their right to invoke the processes of the Act. The answer also denies the complaint's conclusion that by refusing to recognize and bargain with Locals 126 and 856, the Respondent violat- ed Section 8(a)(1) and (5) of the Act. The issues to be determined are whether: 1. Locals 126 and 856 are labor organization within the meaning of Section 2(5) of the Act. 2. Locals 126 and 856 have engaged in past miscon- duct warranting forfeiture of their status as labor organi- zations or the right to invoke the processes of the Act. 3. Baxter, Malloway, and Lamark are supervisors and agents of Respondent within the meaning of Section 2(11) and (13) of the Act. 4. Baxter, Driscoll, Dorazio, Svercheck, Malloway, and Lamark unlawfully interrogated and threatened em- ployees and attempted to convince employees of the fu- tility of supporting Locals 126 and 856 in violation of Section 8(a)(1) of the Act. 5. Respondent unlawfully disciplined, demoted, and changed employee work hours in violation of Section 8(a)(1) and (3) of the Act. 6. Respondent unlawfully refused to recognize and bargain with Locals 126 and 856 in violation of Section 8(a)(1) and (5) of the Act. B. Background The facility involved here is a combined hotel and res- taurant-bar (the Hotel) located at 1010 Northgate Drive, San Rafael, California. Before Respondent's ownership, the Hotel, operated as a Holiday Inn and was owned and operated by Holiday Holding, Inc. (HHI) and GIF Prop- erties, Inc. (GIFP). Since the early seventies, Local 856 has been recognized as the exclusive collective-bargain- ing representative of all front desk, office clerical, and housekeeping personnel (the hotel unit). The terms of employment for those employees were embodied in a series of successive collective-bargaining agreements, the most recent of which was effective from 1 May 1981 through 30 April 1984. Local 126 was recognized for a similar period as the exclusive bargaining representative of a unit of bartend- ers, waitresses, cashiers, and kitchen personnel (the res- taurant-bar unit). The most recent collective-bargaining agreement for the restaurant-bar was effective by its terms from 7 January 1981 through 7 January 1985. The circumstances surrounding the recognition of Locals 126 and 856 as the bargaining representatives for separate units lie at the heart of the Respondent's claim that those Unions engaged in misconduct warranting for- feiture of their status as labor organizations under the Act and their right to invoke the processes of the Act in this proceeding to compel Respondent to now recognize and bargain with them. Accordingly, a detailed review of the Hotel's early labor relations history is appropriate. C. The Hotel's Labor Relations History In June 1969, Marin Chitmar, Inc. (Chitmar), then the employer at the Hotel, and Local 126 executed a memo- randum agreement adopting the Marin County Tavern Owners Association collective-bargaining agreement to 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establish employment terms for the restaurant and bar employees. On 18 July 1969 Chitmar and Local 126 exe- cuted a supplement to that agreement which added cer- tain housemen and combination linen, laundry, and maid employees to the existing unit. On 20 August 1969 Local 126 filed a petition in Case 20-RC-8945 seeking an election among all front office clerical employees. Local 856 intervened in that case and an election was scheduled for 1 October 1969. In the meantime, Local 856 filed unfair labor practice charges against Chitmar on 8 August and 26 September 1969 in Cases 20-CA-5714 and 20-CA-5758 which re- sulted in the issuance of a complaint alleging that Chit- mar had violated Section 8(a)(1), (2), and (3) of the Act by, among other acts , entering into a collective-bargain- ing agreement containing a union-security provision with Local 126 at a time when the latter labor organization did not represent an uncoerced majority of the employ- ees covered by the disputed collective-bargaining agree- ment as supplemented . The election in Case 20-RC-8945 was postponed. On 25 January 1971 the Board adopted the decision of Administrative Law Judge Maurice Alex- andre, finding that Chitmar violated Section 8(a)(1) and (2) of the Act by recognizing Local 126 at a time when it did not represent the majority of the employees in the unit recognized in 1969. See Holiday Inn, 188 NLRB 68 (1971).4 The resulting order of the Board required Chit- mar to withdraw and withhold recognization "unless and until" Local 126 was certified as the employee represent- ative in a Board-conducted election . Chitmar undertook to comply with the terms of the Board's order. On 12 February 1971 Local 856 filed a petition in Case 20-RC-9820 seeking an election among Chitmar's "housekeeping, maintenance and laundry personnel." Five days later, Local 126 filed a petition for an election among Chitmar's employees in the "food, liquor and housekeeping departments." Subsequently , the three pending representation matters (Cases 20-RC-8945, 20- RC-9820, and 20-RC-9828) were consolidated for hear- ing. Thereafter, Local 856 filed Case 20-RC-10327 seek- ing an election among a unit of Chitmar's front desk PBX, and office clerical employees. This latter case was then consolidated with the previously mentioned three representation cases. Following a hearing, the Regional Director for Region 20 issued a Decision and .Direction of Election in two separate voting groups labeled A and B. Voting group A consisted of all waiters, waitresses, busboys, cashiers, the coffeeshop hostess, the maitre d', all kitchen employees, bartenders, cocktail waitresses, maids, housemen, and maintenance men. Voting group B consisted of all front desk employees, including account- ing department employees. Both voting groups contained the usual exclusions. The Regional Director's decision provided that if a majority of the employees in voting group B selected Local 856, they would deemed to have indicated their desire to constitute a separate bargaining unit and a separate certification would be issued to Local 856 for the front desk and accounting department em- * The facts in that case show that although Local 126 had substantial support in the unit, it fell slightly short of having signed authorizations from a majority of the unit employees ployees. The decision further provided that if a majority of the employees in voting group A elected to be repre- sented by Local 126 then a certification would issue in favor of Local 126 for the unit described in voting group A. The decision further provided that if a majority of the employees in voting group B did not vote for Local 856, then the votes of that group would be pooled with those in voting group A to determine the appropriate repre- sentative and that should either union obtain a majority in the overall unit, a certification would be issued for such a unit. In March 1972, the directed election was conducted by the Regional Director. Local 856 was successful in both voting groups and, accordingly, was certified as the representative for each group separately.5 Following the election, Chitmar and Local 856 com- menced negotiations for a collective-bargaining agree- ment. However, between the time of the election and October 1972, Local 856 was directed by its parent orga- nization to relinquish control of the employees in the res- taurant and bar to Local 126. According to Bob Rosa, vice president and business agent of Local 856, who par- ticipated in the 1972 negotiations, a protest was filed with Local 856's parent organization by Local 126's parent organization and the two Internationals reached an agreement which required Local 856 to cede junsdic- tion over the restaurant and bar employees to Local 126. Rosa suspects that Chitmar also protested about Local 856's representation of the restaurant and bar employees but no proof was supplied. Prior to ceding jurisdiction over the restaurant and bar employees, Local 856 called a meeting of the employees during which representatives of Local 856 explained to the employees that it had been directed by its International to cede jurisdiction over the restaurant and bar employees which it was willing to do because it had no experience in representing those em- ployees and would be unable to provide those employees with the effective services in the event they were laid off or terminated at the Hotel. During the course of this meeting a vote was taken among employees by a show of hands concerning the proposed transfer of jurisdiction over the restaurant and bar employees to Local 126. The employees overwhemingly approved that action. Subsequent to the transfer of jurisdiction by Local 856 to Local 126 for the restaurant and bar employees, Chit- mar and its successors negotiated successive collective- bargaining agreements with each Local over the next 12- year period covering the Hotel employees.6 There is no evidence that Chitmar or any employee ever protested the transfer of jurisdiction or any noncompliance with the Board's order that Chitmar withdraw and withhold recognization of Local 126 until it was certified by the Board. Indeed, the only evidence of any subsequent effort to invoke the Board's processes prior to the instant S In its brief, Respondent asserted that early documents referring to an entity known as Holiday Inn-Terra Linda was never explained by the General Counsel That is true Respondent's own examination of Local 856 Representative Rosa concerning the certification establishes that the Holiday Inn-Terra Linda was an early name used for the Hotel 6 It appears that HHI and CIFP succeeded Chitmar at some unspeci- fied time but there is no evidence concerning the complete chain of own- ership CLARION HOTEL-MARIN case appears to have occurred in the late 1970's when a local of the Operating Engineers filed a petition to repre- sent the heavy maintenance employees at the Hotel over whom neither Local claim jurisdiction. Neither Local 126 nor Local 856 sought to intervene in that proceeding which appears to have resulted in a majority of the main- tenance employees voting against representation. D. The 1984 Sale of the Hotel On 21 June 1984 the ownership of the Hotel was transferred and its operation transformed from a Holiday Inn Hotel to a Clarion Hotel. The players in the sale and subsequent operation of the Hotel are numerous and specialized. A step-by-step enu- meration of the players and their roles is essential in un- derstanding the present dispute. In the period immediately proceding the 1984 sale, the Hotel was owned by HHI. HHI leased the property to GIFP for the purpose of operating the Hotel. Both HHI and GIFP remained in the background as far as the day- to-day operations of the Hotel were concerned. GIFP contracted with the Breckenridge Hotel Corporation and Breckenridge Hotel Management Services, Inc. (Breck- enridge) to conduct the Hotel's operations. Under its agreement with GIFP, Breckenridge was obliged to op- erate the Hotel as a Holiday Inn. Breckenridge was em- powered to hire and manage all hotel employees and es- tablish their levels of compensation and benefits subject to certain minor limitations not pertinent here. On 7 June 1985 HHI and GIFP entered into a pur- chase and sale agreement (sale agreement) with Preferred Properties Fund 82 (Preferred) whereby the latter ac- quired certain assets of the former relating to the owner- ship and operation of the Hotel. The sale agreement de- tailed the assets and liabilities Preferred assumed and those that it did not Between the date of execution and the date of closing the sale agreement, Preferred assigned all its rights and obligations under the sale agreement to Colorado Marin Associates (Colorado Marm) In the meantime, Colorado Marin executed an operating lease with Marin Operating Inc (Marin Operating). Marin Operating's lease obliged it to enter into a management agreement with Associated Inns and Restaurants Inc. (AIRCOA). The operating lease further obliged Marin Operating to operate the Hotel in conformity with a license agreement between Colorado Marin and the Clarion Hotel Corporation.' The license agreement allowed the Hotel to be marketed to the public as a Clarion Hotel. Under the sale agreement, the seller was required to terminate all hotel employees and pay all accrued wages and benefits. The buyer was required to "cause AIRCOA to offer employment at the Hotel to all of the present employees" before the sale closing date. Pre- ferred did not assume any of the outstanding labor agree- 7 AIRCOA, Colorado Marin , Masm Operating, and Clarion are related business enterprises 485 ments and never agreed to recognize either Local 126 or 856.8 On 7 June Respondent hand-delivered notices of the sale to Local 126 and Local 856. Attached to those no- tices were copies of notices to employees posted throughout the Hotel that day advising them of the sale and notifying them that future employment would be of- fered. Thereafter, the parties closed the sale agreement on 21 June as scheduled. Just prior to the closing date, Shirley Baxter, person- nel manager for the Holiday Inn, met with Hotel em- ployees to explain the wages and benefit levels which the Respondent intended to implement. Nick Georgedes, a Local 126 representative, and Bob Rosa, a Local 856 representative, also attended this meeting. Many employ- ees expressed dissatisfaction with the inferior wage and benefit levels being offered by the Rspondent vis-a-vis the wages and benefits provided under the Locals' con- tracts and threatened to decline the employment Re- spondent proffered. Georgedes and Rosa both interceded and urged their employee-members to accept continued employment so that the Locals would have an opportu- nity to negotiate improved terms with the Respondent. At least some of the employees appeared to have heeded such advice. Utilizing the former Holiday Inn employees hired pursuant to the sale agreement, Respondent began operating the Hotel on 21 June without any operational hiatus. When Respondent took over the Hotel, its projections called for an hourly employee complement of 135 em- ployees. On 21 June Respondent employed 99 hourly employees; all 99 had previously been employed in the same or similiar positions by the Holiday Inn. By 30 July Respondent had reached its projected employee comple- ment of 135 hourly employees. Even then, a majority of the employees in each bargaining unit were former Holi- day Inn employees who had worked in the same or simi- lar positions. The number of new employees in each bar- gaining unit did not exceed the old until the payroll of 30 September. Respondent's inferior wage and benefit package contributed significantly to the exodus of some Holiday Inn employees, although other factors-such as the normal turnover in the industry-caused others to leave. Local 856 requested Respondent recognize it as the hotel unit representative on 22 June; Local 126 made a similar demand for the restaurant-bar unit on 26 June. Respondent declined on 2 July The Locals began pick- eting the Hotel on 18 July but did not call on employees to strike. E Respondent's Operation at the Hotel Respondent commenced to integrate the Hotel into the National Clarion Hotel chain and to operate it in accord with the standards and procedures of that chain. Admin- istratively, the Hotel came under the immediate jurisdic- tion of the vice president of AIRCOA's California region 8 As noted, Local 856's last agreement expired in April Negotiations for a successor agreement were in progress at the time of the sale Local 126's existing agreement was not due to expire until January 1985 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who was responsible for seven other hotel properties. Personnel direction was provided by the AIRCOA's re- gional director of personnel. Clarion's system and serv- ices supplanted those of the Holiday Inn in matters of reservations, marketing, and advertising, operating proce- dures and policies, accounting reports and standards, and capital improvement undertaking. Certain data process- ing, programming, purchasing, training, audit and ac- counting, and sales functions were provided by Clarion's corporate headquarters in Denver. Those labor relations responsibilities formerly vested in part in a local employ- ers' association by Holiday Inn were shifted to AIRCOA repesentatives. Respondent's witnesses and documentary evidence (not including subpoenaed written job descrip- tions which Respondent refused to produce on relevance grounds) describe a variety of standardized personnel policies, employee job classifications and functions, and job reorganizations which were implemented. Respond- ent contracted out certain services unrelated to the bar- gaining units, including the gift shop operation and the Hotel security service. All the Holiday Inn supervisory force was initially retained by the Respondent albeit titles and certain functions were altered in certain minor respects. The changes in job classifications, functions, and pro- cedures described by Respondent's witnesses and docu- mentary evidence was minimized by employee testimo- ny. Jean Benoit, a bellman at the Holiday Inn for 14 years continued to perform the same duties as the Clari- on valet. Benoit's supervisor, Betsy Wise, was called the front office manager by the Holiday Inn but became the director of guest services under the Clarion. Benoit said Wise continued to supervise the same front office clerks as before. Sue Driscroll remained as the head housekeeper over- seeing the assistant head housekeepers, inspectresses, maids, housemen, and laundry workers, all of whom she had supervised with the Holiday Inn. Carolyn Murphy, AIRCOA's regional personnel director, asserted that the Respondent had altogether eliminated the maid and laun- dry classifications, but Lena Buza, a maid, observed that the only change that affected her work was that she had to clean one additional room per day under the Clarion operation. Murphy cited the combining of the maid and laundry functions as a significant change Respondent im- plemented but some maids testified that the Holiday Inn often utilized maids to perform laundry work. Respondent attempted to transform the inspectress' po- sition into a supervisory position by changing the rate of pay from an hourly rate to a salary but the inspectresses continued to peform some maid and laundry work them- selves. The only authority vested in the inspectresses was the power to instruct maids and correct cleaning defi- ciencies, whereas the inspectresses formerly made the corrections themselves. Respondent also asserted that it made a variety of changes in the classifications and the managerial report- ing scheme in the bar, restaurant, and catering oper- ations. However, Local 126 shop steward, Denis Brown, a bartender, credibly testified that the employees in the bar and lounge continued to perform the same functions, wore the same uniforms, and were operating under the same supervision, i.e., Gloria Svercheck, the assistant food and beverage manager, and Dan Dorazio, the food and beverage director. The name of the restaurant was not changed. The catering and banquet department re- tained the same classifications of employees and re- mained under the banquet captain, Michael Smith. Al- though Respondent asserted that the catering department chain of responsibility was switched from the food and beverage director to the sales director, Brown testified that even under the Holiday Inn, the catering department often worked closely with the sales director. The kitchen remained under the supervision of the executive chef, Frank Monty. The evidence shows that many of the classification changes made in the kitchen amounted to little other than a renaming of the job classifications. Brown's testimony establishes that the actual work func- tions of these employees remained essentially the same. F. Evidence of Coercion and Discrimination The complaint charges that six of the Respondent's su- pervisors engaged in various acts after 20 June which constitutes unalawful coercion and discrimination in vio- lation of Section 8(a)(1) and (3) of the Act. Respondent admitted that three of those individuals-Sue Driscoll, Dan Dorazio, and Gloria Svercheck-are supervisors within the meaning of Section 2(11) of the Act. Accord- ingly, to the extent that I find that any one of these three individuals engaged in unlawful conduct in the course of their employment by the Respondent, that conduct is chargeable to the Respondent. See Aladdin Industries, 147 NLRB 1392 (1964). Respondent denies that three other individuals-Shir- ley Baxter, Kathy Lamark, and Carmen Malloway-are supervisors. In the interest of brevity, I will first consider and resolve their status. Among other duties, Baxter served as the personnel di- rector at the Hotel prior to the sale. Respondent claims that Baxter was retained only as a clerical employee when it took over the Hotel. Baxter signed her approval to several post-20 June warning notices issued by Re- spondent's supervisors using the title of personnel direc- tor. In one instance, Baxter transmitted the warning to the disciplined employee and in another instance Baxter spoke with a disciplined employee who had declined to sign the warning notice for her supervisor. Baxter spoke at a 23 July meeting of the bar employees, discussed more fully below, and reinforced warnings and admoni- tions made by admitted Supervisors Dorazio and Sver- check. Respondent adduced no evidence that any em- ployee was ever advised of a change in Baxter's status and no change was made in Baxter's office trappings which would otherwise indicate the loss of status under the Respondent. Following Baxter's departure, Respond- ent hired another individual who, Respondent concedes, serves as its on-site personnel director. Moreover, when pressed for particulars about matters which related to Baxter's status, both Warren Wilkie, the AIRCOA re- gional manager, and Murphy were vague, marginally re- sponsive, and most unconvincing. Accordingly, I do not credit their testimony concerning Baxter's status. Hence, I find that at all times related to the complaint, Baxter CLARION HOTEL-MARIN was a Section 2(11) supervisor and a Section 2(13) agent, as alleged in the complaint. Lamark and Malloway are employed as assistant exec- utive housekeepers under Driscoll, the executive house- keeper. Wilkie admitted that Driscoll has authority to hire, discharge, and discipline employees, and that when Driscoll is absent, either Lamark or Malloway serve in her place and are empowered to exercise Driscoll's au- thority. Driscoll is normally absent from work on Satur- days and Sundays, except on those weekends when she serves as the "manager on duty." When not serving in Driscoll's stead, Lamark and Malloway either oversee the inspectresses or work as inspectresses themselves. The General Counsel adduced no evidence to show either Lamark or Malloway exercised any independent judgment in the direction of the inspectresses. Accord- ingly, except in those instances where the General Coun- sel has adduced evidence to show that Lamark and Malloway made statements attributed to them in the complaint a times when they were acting as the execu- tive housekeeper in Driscoll's absence, I find Respondent is not responsible for their actions as the General Coun- sel has failed to prove that Lamark and Malloway are full-time Section 2(11) supervisors or Section 2(13) agents. Absent the showing specified above, the allega- tions pertaining to Lamark and Malloway will be dis- missed. The General Counsel called six employee witnesses to testify concerning the 8(a)(1) and (3) allegations. Re- spondent failed to call any rebutting witnesses and argues in its brief that I should discredit the uncontradicted tes- timony of the employee-witnesses. No sound basis exists for me to do so. While they were testifying, each em- ployee-witness impressed me that they were making a sincere and honest effort to recount facts as well as their memories permitted. Moreover, their testimony when considered in the context of undisputed events is entirely plausible. Although I agree with Respondent that Gladys Johnston was prone to volunteer testimony and was often argumentative in responding to questions, I am sat- isfied that her testimony concerning matters within her personal knowledge is credible. Accordingly, I have fully credited all of the employees' testimony which pro- vides the basis for the events described below. 1. Dennis Brown Brown, a bartender, attended a meeting of bar employ- ees on 23 July addressed by four of Respondent's super- visors. The supervisors discussed primarily the standards and procedures Respondent expected the bar employees to follow. The tone of the supervisors' remarks strongly suggest that Respondent's managers were far from satis- fied with the bar operation. The bar employees were put on notice that improvement in their performance was ex- pected. Three supervisors-Dorazio, Svercheck, and Baxter-in their separate remarks to the bar employees told them in effect that they could not expect the union to protect them as it would be a year or two, if ever, before the union returned. 2. Lena Buza 487 Buza worked as a maid for Respondent in the initial days after it acquired the Hotel. Just before leaving for a vacation period at the end of June, Driscoll asked Buza to accept an inspectress' position. Buza agreed, but only if she was permitted to work a 4-day schedule. Driscoll and Buza bickered over Buza's requested schedule for a few days and, finally, Driscoll conceded to Buza's re- quest. Buza began work as a inspectress on 12 July. On 18 July, the day the picketing commenced at the Hotel, Driscoll summoned Buza and another inspectress to her office, informed them that they were now supervi- sors and directed them to "quit the union." Although neither woman appears to have argued with Driscoll at the time, Buza joined the picket line after she completed her work day on 18 July. When Buza reported for work the following day, she was again summoned to Driscoll's office. Dorazio and Baxter were present. Driscoll began with: "Why, oh why, Lena did you go on the picket line? I told you that you could not be in the union if you wanted to be a supervisor." Driscoll then, in effect, re- scinded the earlier authorization for Buza's 4-day sched- ule and insisted that she work 5 days as Respondent re- quired of employees. Buza argued that she had never been informed of any such requirement, but Driscoll per- sisted in her demand that Buza work a 5-day week. Fi- nally, Buza agreed on the condition that she be allowed to return to work as a maid. Although Driscoll acqui- esced, no work was available for Buza for the next 2 days, so Buza was sent home with credit for 4-hours pay. Apart from the schedule change outlined above, Buza provided no evidence of any further schedule changes. On 20 July Buza was issued a written warning by Baxter for picketing on 18 and 19 July while in her work uniform. 9 Buza, like all others who were warned for this offense, regularly wore her uniform to and from work and participated in the picketing immediately before and after work hours. Buza was never informed before the warning that she was prohibited from wearing her uni- form while engaged in incidental nonwork activity while going to and from work. 3. Elizabeth Estrada On 23 June Estrada was in the lunchroom with a group of other employees. Driscoll entered the room with a woman named Janet, identified only as the room director, and told the employees that she did not want them talking about the Union anymore because it no longer existed . Driscoll added that AIRCOA was a new company running the Hotel and that it did not want a union. When Estrada asked what would happen if the employees wanted the Union again , Driscoll told her "you might get fired if you keep talking about the 9 Specifically the warning stated With the title of inspectress/- supervisor, Lena was participating in a union picket line while wearing a Clarion Hotel uniform which is unacceptable to AIRCOA She has been removed from her position as supervisor and will work full-time as room cleaner/laundry If she wears her uniform again on the picket line, she will be subject to further disciplinary action which may result in termina- tion " 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union." 10 Later, on 13 July, Estrada was issued a warn- ing by Baxter for giving Malloway a union authorization card on worktime . On this occasion Baxter told Estrada that there was "no way you are going to put the union back." On 15 July, Lamark, who was then serving as the ex- ecutive housekeeper in Driscoll's absence, approached Estrada and shaking her finger at Estrada's face said: "Don't you dare talk about the union ... !" At the time Estrada was alone tending to her work. On 18 July Estrada was not scheduled to work so she joined the picket line that day in her clothes . On the fol- lowing day, Estrada arrived at work early and joined the picket line until she was scheduled for duty wearing her work uniform which had initially been issued to her while she worked for Holiday Inn. In addition Estrada was wearing her own hip-length outer jacket which cov- ered a substantial portion of the uniforms. When she re- ported to work that day, Estrada was given a written warning for engaging in picketing while in uniform. i i Estrada, who normally wore her uniforms to and from work, had never before been told of any restriction on nonwork activities while in uniform. 4. Gladys Johnston Johnston, a linen person during the relevant period, was responsible for restocking linen closets . Maids gener- ally obtained linens from this location for use in the guest rooms . When Respondent acquired the Hotel, a severe shortage of linen developed and certain maids began surreptitiously taking their linens directly from the laundry, a practice which angered Johnson because it interfered with her work. When Johnston first enlisted Driscoll's assistance in putting an end to that practice, Driscoll was supportive. However, Driscoll's order that the maids cease getting linens directly from the laundry did not produce immediate results . When Johnston next discovered maids in the laundry, she-in her words- began ranting. Driscoll was unsympathic this time; she called Johnston a "trouble-maker," told her that she did not have the Union to back her anymore, and that if she did not do as she was told, she would be given a warn- ing. After work on 18 July Johnston joined the picket line. She was still wearing her work uniform . The following day, Driscoll issued Johnston a written warning for pick- eting while in uniform. Johnston regularly wore her work uniform to and from work and usually laundered her own uniforms. 12 Respondent-according to John- 10 Although AIRCOA employee handbook contains a prohibition against soliciting on worktime, it explicitly exempts breaks and meal pen- ods. 11 Estrada's warning stated "Eliz was participating in a union picket line while wearing a Clarion Hotel uniform which is unacceptable to AIRCOA Corp If this happens again, Eliz will be sub to further disci- plinary action which may include termination " The warnings issued to other employees discussed below bear nearly identical language 12 Johnston disputed Respondent's claim that it provided uniform laun- dry service, which together with employee lockers, made it unnecessary to wear uniforms off premises Once, after Respondent took over the Hotel, Johnston took her uniform to the Hotel because she felt she could no longer afford to launder it herself in view of the Respondent's reduc- tion in employees wages However, Johnston was told by the laundry ston-posted a notice the day after she received a warn- ing stating that there was to be no more picketing in uni- form. Sometime later, Driscoll angrily told Johnston that the maids put her in a bad light by picketing and that John- ston would never get another day of overtime . In addi- tion, Johnston's schedule was changed after she was warned about picketing in uniform so that she no longer had weekends off. However, this change appears to have resulted from a systematic alternation of the Respond- ent's scheduling system . According to Johnston, Re- spondent began assigning schedules in alphabetical order of employees' first names and, as a consequence, the schedule of numerous employees were affected . No other evidence of a schedule change affecting Johnston was adduced. 5. Erlinda Lucas Lucas, a linen person at the Hotel, joined the picket line on 18 July after her scheduled workday. She wore her work uniform but removed her name tag. On 19 July Driscoll gave Lucas a written warning for picketing in uniform . Lucas continued to picket after that , but not in uniform, and has since received no further warnings On another occasion at some unspecified date after Driscoll's warning to Lucas, Driscoll told Lucas that there was no sense in picketing because it could be a year or two before the union returned. Yet later, Driscoll approached Lucas as she was speak- ing to fellow employees in Tagalog-their native lan- guage-about a work matter. On this occasion, Driscoll pointed her finger at Lucas and admonished "Quit talk- ing union!" Lucas was shocked at the charge. Lucas' schedule was changed about the time the pick- eting began. She felt the change was intended to reduce both her regular and overtime hours The record fails to establish whether this change was a part of the overall change Johnston mentioned in her testimony or some- thing else. 6. Maria Spiers On the day that the picketing commenced , Driscoll told Spiers, a maid employee, that she did not want Spiers to picket because she would hate to see Spiers lose her job and her reputation as a maid . Nevertheless, after work that evening , Spiers joined the picket line still dressed in her work uniform minus her name tag. The following day, Driscoll issued a written warning to Spiers for picketing while in uniform. Driscoll asked Spiers why she had let people tell her what to do after Driscoll had told her not to picket . Spiers declined Dris- coll's demand that she sign the written warning without speaking to a union representative . Driscoll responded that there was no union . When Spiers persisted in the re- fusal to sign the warning , Driscoll called Malloway and Baxter to her office . Baxter reiterated Driscoll's earlier remarks that there was no union and added that it might be a year before the union is back . No one had ever said employees that the Respondent did not launder uniforms and hers was unceremoniously dispatched to the floor CLARION HOTEL-MARIN anything to Spiers about wearing the uniform before or after work prior to the warning. That same day Spiers noticed that her schedules had been changed; her free days were switched from Satur- day and Sunday to Tuesday and Wednesday. Spiers no- ticed numerous other employee schedules were changed at the same time. Spiers commenced a sick leave on July 28. A couple of days earlier, Driscoll issued a written warning to Spiers for careless work. Again, Spiers refused to sign the warning, and steadfastly asserted that she had not been careless. Driscoll ordered Spiers to speak with Baxter. Baxter refused Spiers' request to have Lena Buza present for their conversation. After the Buza matter was disposed of, Baxter told Spiers that everything changed the day she went on the picket line. Baxter added that the Company was not going to be Union and, although she knew it would be back, it would not happen for over a year. By then, Baxter told Spiers she would have a very bad reputation. Finally, Spiers agreed to sign the warning and begin to speak to Baxter about "the next time " Baxter interrupted to say that there would be no next time, as Spiers would be fired. 7. Dedena Wren Wren, a Clarion maid, was warned for picketing in uniforms on 18 and 19 July. Wren acknowledged that she had been in uniform on those occasions but that she had removed her badge. G. The Contentions The General Counsel argues that Respondent is a suc- cessor-employer obliged to recognize and bargain with the Locals for the employees in the historical bargaining units. This is so, the General Counsel argues, because Respondent purchased the Hotel, made no substantial changes in the employing entity, hired a majority of the predecessor's employees, and advanced no legimate basis for doubting either Local's majority status. The General Counsel asserts that Respondent should be estopped from asserting the illegimate birth of separate bargaining units in 1972 in defense of any bargaining obligation especially when, as here, no prior attempt was made by any prede- cessor employer or labor organization to upset the pri- vate accommodation made nearly 13 years ago. Finally, the General Counsel argues that the statements by Re- spondent's supervisors to employees were coercive and that the disciplining of employees for picketing in uni- form constitutes unlawful discrimination Respondent argues that it is not a successor employer obliged to recognize and bargain with the locals for sev- eral reasons. First, Respondent argues that the units are no longer appropriate-if they ever were-because of the changes it made in the operational structure and em- ployee job classifications. Instead, Respondent asserts that the only appropriate unit is one comprised of em- ployees at all "six (6) California facilities" operated by AIRCOA or, at a minimum, a "wall-to-wall" unit of em- ployees at the Hotel. Second, Respondent contends that it did not employ a majority of the predecessor's em- ployees in either bargaining unit when it assembled sub- 489 stantial and representative complement of employees in each of the historical units which, at the earliest, was 30 September. Third, Respondent avers that an order com- pelling it to bargain with the locals would serve to per- petuate the flaunting of the 1972 Board order and certifi- cation. So far as the purported coercive supervisors statements are concerned, Respondent urges that I reject the General Counsel's position because: (1) the bulk of the testimony in this regard is not credible; (2) the state- ments attributed to Baxter and Lamark were not coer- cive because the General Counsel did not show that they were supervisors or agents; and (3) the General Counsel failed to show that admitted Supervisors Driscoll, Dora- zio, and Svercheck were agents or that their remarks to employees about the unions were coercive. Finally, Re- spondent argues that the disciplining of employees for picketing in uniforms was motivated by its legitmate business interest related to the enforcement of a valid prohibition against wearing work uniforms while en- gaged in nonwork activities. H. Conclusions 1. The 8(a)(5) allegations A successor employer has a legal duty to recognize and bargain with the labor organization which represents employees employed in appropriate units if (1) the em- ployer conducts essentially the same business as its pred- ecessor, and (2) a majority of the successor employer's work force is comprised of former employees of the em- ploying enterprise. Love's Barbeque Restaurant No. 62 v. NLRB, 640 F.2d 1094 (9th Cir. 1981). Both prongs of the successorship test are fact questions which are de- pendent on the particular circumstances in each case. Electrical Workers IBEW (White- Westinghouse) v. NLRB, 604 F.2d 689 (D.C. Cir. 1979). Continuity of the employing enterprise is indicated by the presence of a number of factors including the degree of continuity in operation, location, work force, working conditions, supervision, machinery and equipment, meth- ods of production, and products. Spencer Foods, 268 NLRB 1483, 1485, and the cases cited in fn. 6 (1984); Crawford Container, 234 NLRB 851 (1978). In consider- ing the foregoing factors, the "touchstone" is not wheth- er there is a continuity of the business structure in gener- al, but whether there was an essential change in the busi- ness that would have affected employee attitudes toward representation. NLRB v. Jeffries Lithograph Co., 752 F.2d 459 at 464 (9th Cir. 1985). And see Food & Commercial Workers Local 52 (Spencer Foods) v NLRB, 768 F.2d 1463 (D.C. Cir. 1985). A successor employer must bargain with the employee representative when it becomes clear that the successor has hired its full complement of employees and that the union represents a majority of those employees. NLRB v. Burns Security Services, 406 U.S. 272 (1972). Until that time, an employer is free to establish the initial terms on which it will hire the predecessor's employees. Burns, supra. But "[w]hen it is perfectly clear the employer in- tends to hire a majority of its work force in a unit repre- sented by a union from the ranks of its predecessor, his 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duty to bargain with the [u]nion commences immediate- ly." Bellingham Frozen Foods v. NLRB , 626 F.2d 674 (9th Cir. 1980); Harbor Cartage, 269 NLRB 927 (1984). And in "instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit" it may be appropriate to require the successor-employer to "initially consult with the employees ' bargaining rep- resentative before he fixes even the initial terms." See Burns, supra at 294. I have concluded that the Respondent continued the employing enterprise substantially intact after it assumed ownership and control of the Hotel on 21 June. Obvious- ly, the enterprise remained at the same location and con- tinued to function as a hotel, restaurant, and bar without any interruption in servicing the general public. Al- though the Respondent's plan is to focus its sales efforts on commercial and convention clients , as opposed to the individual or family focus of its predecessor, this change is of little or no significance to its represented work force as Respondent will continue to have guests requir- ing check-in and check-out services, room cleaning and related laundry services, meals and banquet services, and bar needs. Respondent was able to continue the uninter- rupted operation of the Hotel in a large measure by agreeing to employ and offering employment to the entire work force of its predecessor, from the general manager on down. The fact that some employees de- clined the Respondent's offer or accepted it begrudging- ly does not distract at all from my conclusion that the work force factor to be considered in determining the Respondent's successorship status cuts strongly in favor of finding successorship . Nor has the Respondent's tin- kering with the job duties, job names, cross training and other similiar actions affected the fundamental nature of the jobs which must be performed in order to operate the Hotel. Whatever they are called, Respondent has an ongoing need for employees to perform the full range of services the bargaining unit employees have always pro- vided. Likewise, Respondent continued after 20 June with its predecessor's supervisory staff intact. The evidence that the Respondent is slowly refurbish- ing the property is likewise insufficient to affect the con- clusion I have reached that the Respondent continued the Hotel's operation using the same equipment. Al- though legally there was an overnight transition of the Hotel from a Holiday Inn to a Clarion Hotel , the Hotel's trappings were not changed nearly so rapidly . The Holi- day Inn sign visible from the adjacent freeway remained in place for months until arrangements could be made for its removal and replacement . Even the paraphenalia provided in the guest rooms was slowly changed over to those bearing the Clarion logo and the alteration of the decorating schemes reflecting the Clarion operation was still in progress at the time of the hearing . Certain changes reflected in the Respondent 's exhibit pertaining to the alternations it has made since taking over at the Hotel-such as replacing a certain number of television sets in the guest rooms-are of an ambiguous variety sus- ceptible to the conclusion that their replacement was dic- tated by their expendable nature and not the change in ownership. Other factors such as contracting out certain services-none of which related to the represented em- ployees-and otherwise altering the business procedures at the Hotel are, in the main, void of any direct impact on the represented employees . Accordingly, I conclude that Respondent, commencing 21 June, engaged in sub- stantially the same business as its predecessor at the Hotel. I further conclude that as of 21 June Respondent's entire work force at the Hotel-supervisors and employ- ees alike-were former employees of its predecessor. As Wilkie testified, Respondent agreed in the sale agreement documents with its predecessor to offer employment to all the predecessor's employees . Although Respondent planned to expand its work force roughly 30 percent (from 99 employees hired from its predecessor to 135 employees), even when this was accomplished by 30 July, the majority of the employees in each bargaining unit were former employees of the predecessor. Re- spondent nonetheless suggests that it would be inappro- priate to consider the majority question until at least 30 September when the 90-day probation period it unilatera- ly imposed on the predecessor's employees expired or perhaps as late as 15 October when, according to Wilkie, the on-site management indicated to him that the proper- ty met AIRCOA's "commercially acceptable level of op- eration." I find no basis for delaying resolution of the majority question for such an extended period. Case precedent lends no support for such delay. See, e.g., Jef- fries Lithograph Co., supra; Bellingham Frozen Foods, supra; NLRB v. Hudson River Aggregates, 639 F.2d 865 (2d Cir. 1981); Harbor Cartage, supra. Logic likewise lends no support for Respondent's position . On the con- trary, the record here suggests the likelihood that the Respondent's conduct in substantially reducing employee wages and benefits, refusing to recognize the Locals, and engaging in the unfair labor practices found below made a significant contribution to the Locals' lack of majority standing by 30 September . Moreover, as Wilkie's testi- mony makes clear, the AIRCOA concept of the "com- mercially acceptable level of operation" has little if any- thing to do with employment levels. Accordingly, use of the date the Hotel achieved the so -called "commercially acceptable level of operation" as the date to resolve the majority issue would be little other than an aribitrary stab designed to produce a particular result. When, as here, Respondent agreed to employ its predecessor's entire work force to conduct substantially the same busi- ness without interruption, I find the predicate was estab- lished for requiring the Respondent to promptly recog- nize and bargain with the representatives of its employ- ees upon demand. Remaining for consideration is the question concerning whether Respondent is obliged to recognize the locals in view of the labor relations history at the Hotel. The principal argument advanced by the Respondent pertains to the recognition of the Locals in 1972 as the representatives of the respective units alleged in the com- plaint. Certainly Local 856's ceding of jurisdiction to Local 126 over a portion of the unit for which it was certified in 1972 contravenes the outstanding certifica- tions and merits their revocation. See Setzer's Supermar- kets of Georgia, 145 NLRB 1500 (1964). My recommend- CLARION HOTEL-MARIN ed Order will provide for that revocation. However, as the circumstances here are nearly identical to those in Setzer's, I find no basis exists to deny the Locals access to the Act as Respondent demands or to conclude that the Locals are not labor organizations within the mean- ing of Section 2(5) of the Act when, as here, the evi- dence supports such a finding. The gravaman of the Respondent's defense is that a bargaining order should now be withheld on the ground that Chitmar unlawfully recognized the Locals in sepa- rate units in 1972. In Tahoe Nugget, 227 NLRB 357 (1976), enfd. 584 F.2d 293 (9th Cir. 1978), the Board re- jected a similiar defense for the following reason: The Board has held, in light of the Supreme Court's decision in Bryan Manufacturing Co.,3 that a respondent may not defend against a refusal-to-bar- gain allegation on the ground that original recogni- tion, occurring more than 6 months before charges had been filed in the proceeding raising the issue, was unlawful.4 Any such defense is barred by Sec- tion 10(b) of the Act, which, as the Court explained in Bryan, was specifically intended by Congress to apply to agreements with minority unions in order to stabilize bargaining relationships. 9 Local Lodge No 1424, International Association of Machinists, AFL-CIO (Bryan Manufacturing Co) v NLRB, 362 US 411 (1960) 4 North Bros Ford, Inc, 220 NLRB 1021 ( 1975), and cases cited therein I am satisfied that Respondent's defense is precluded by the foregoing holding in Tahoe Nugget and the cases noted therein in footnote 4. However, the following ob- servations are in order. The record shows that when the separate units were established in 1972, the employer, the employees, and the Locals were fully aware of the steps taken. No charges or petitions were filed by anyone and the end result was the establishment of a successful col- lective-bargaining relationship lasting until the Respond- ent's appearance on the scene 12 years later. Over that 12-year period, a succession of collective-bargaining agreements came and went without any party utilizing the open period at the conclusion of each agreement to raise a question concerning representation.13 Additional- ly, this record suggests that HHI and GIFP succeeded Chitmar as the employer at the Hotel and continued the existing collective-bargaining relationship without inter- ruption. Hence, even though evidence of employee ac- quiesecence in the 1972 arrangement by some formal electoral means is lacking, the complete lack of activity in attacking the collective-bargaining relationship as es- tablished, strongly suggests that the split into two units at that time comported with employee desires. Moreover, the history and the outcome of the litiga- tion between 1969 and 1972 suggests that the 1972 unit split was a less-than-surprising outcome. A reasonable in- 13 Under existing precedent, a question concerning representation could have been raised by the employees, the employer, or any labor or- ganization in the 30-day period between 90 and 60 days prior to the expi- ration of any of the collective-bargaining agreements Leonard Wholesale Meats, 136 NLRB 1000 (1962) 491 terperation of the litigation history is that Local 856 filed the 8(a)(2) charge against Chitmar in the first instance as a means of clearing the path to obtain representation rights for a portion of the unit ultimately certified. How- ever, that success only brought a further problem as the Regional Director's Decision and Direction of Election compelled Local 856 to compete in both voting groups to obtain recognition as the representative of those em- ployees compatible with its desires and experience. When Local 856 was again successful in the election, the end result was a situation neither the Employer nor the Locals had ever sought in the first instance. By reaching an acceptable accord, the parties put an end to 3 years of litigation and enjoyed 12 years of labor peace. In these circumtances, I see no compelling purpose or policy in the Act which would be served by now declaring that accord to be illegitimate ab initio. The remainder of the Respondent's arguments can be disposed of summarily. The units alleged in the com- plaint are the historically recognized units which, save for the reason considered above, contravene no basic policy under the Act. See Sheraton Motor Inn, 210 NLRB 790 (1974). Such historical units are accorded great weight by the Board in fashioning appropriate units. Buffalo Broadcasting Co., 242 NLRB 1105 (1979). For this reason, Respondent's claim that a single multilo- cation unit comprised of all hotels in AIRCOA's Califor- nia region, or in the alternative a wall-to-wall unit at the Hotel, are the only appropriate units, also lacks merit.14 Similiarly, the minor changes in job content made by Re- spondent is insufficient to affect the appropriateness of the historical units. Thus, the minor job function changes which the Respondent has implemented have not result- ed in any instance where jobs from each unit have been combined into a single hybrid classification. Even Re- spondent's attempt to convert the inspectresses to super- visors has been inadequate to permit the conclusion that the inspectresses are supervisors under the Act and, thus, no longer within the unit.1 s Finally, Respondent's claim that the Locals had refused to represent certain mainte- nance personnel even though they were included in the 1972 certification also lacks merit. That such employees were never part of the certified units seems evident from the fact that a separate election was conducted without the participation of either Local in the late 1970s among 14 Respondent's claim that an AIRCOA regionwide unit is appropriate is untenable for another fundamental reason The record shows only that AIRCOA operates the eight hotels in the region and does not show common ownership or an agreement of separate owners to be bound to- gether for bargaining purposes Absent such a showing, a regionwide unit would not be apropriate Greenhoot. Inc, 205 NLRB 250 (1973) is Respondent vested inspectresses only with the authority to instruct the room cleaners to correct deficiencies found by the inspectresses The inspectresses' qualification to perform such work is derived mainly from their experience as room cleaners themselves There is no evidence that inspectresses exercise any independent judgment in disciplining room cleaners for their deficiencies or that they otherwise exercise any supervi- sory authority specified in Sec 2(11) of the Act For these reasons, it is my conclusion that the inspectresses, even though they are called super- visors and are paid a salary, are not supervisors within the meaning of the Act It is noteworthy also that Respondent denied that the assistant executive housekeepers who purportedly oversee the inspectresses are su- pervisors 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unrepresented maintenance employees in which they re- jected the repesentation by the Operating Engineers. Accordingly, I find that the units alleged in the com- plaint are appropriate as they are the historical collec- tive-bargaining units in existence at the Hotel at the time the Respondent acquired the Hotel. As I have found that the Respondent is a successor employer whose entire work force was comprised of employees employed by its predecessor at the time the Locals requested recognition on 22 and 26 June, Respondent was obliged to recognize and bargain with the Locals as the representative of the employees in the historical units. By its refusal to do so, Respondent violated Section 8(a)(1) and (5) of the Act. NLRB v. Burns Security Services, supra; NLRB v. Jeffries Lithograph Co., supra; Harbor Cartage, supra. 2. The 8(a)(1) and (3) allegations The evidence is insufficient to establish any unlawful interrogation. Although the General Counsel did estab- lish that questions were posed to employees Buza and Spiers about their union activity, the context of those questions demonstrates that they were plainly rhetorical in nature and were not intended to probe for information about employee union activity. Accordingly, the interro- gation allegations will be dismissed. Additionally, the evidence is insufficient to show that Respondent discriminated against Buza, Johnston, Lucas, and Spiers by changing their scheduled hours. Although these employees testified that their scheduled hours were changed on or about the time that they were issued writ- ten warnings for picketing in uniform, other evidence shows that schedules of numerous other employees were changed at the same time . This latter fact, and the fact that there is no direct evidence concerning the motive for the schedule change, mitigate against any finding of discriminatory conduct directed at those four employees based on the schedule changes.16 I find that Respondent's supervisors unlawfully threat- ened employees. Specifically, Driscoll's 23 June retort to Estrada that she might get fired if she kept talking about the Union, her statement that Johnston would never get another day of overtime because the maids had embar- rassed her by picketing, and her 18 July remark to Spiers that she would hate to see Spiers lose her job and reputa- tion by picketing are plainly coercive. I have also carefully weighed Baxter's remarks to Spiers at the time Spiers was warned for careless work in late July for their threatening character. On the one hand Baxter's remarks are susceptible to the interpreta- tion that Respondent intended to ruin Spiers reputation because she had picketed. On the other hand, her re- marks are susceptible to the interpretation that Spiers' at- titude toward her work had changed after she began picketing. As neither interpretation outweighs the other, I have concluded that a real ambiguity exists. Because the burden is on the General Counsel to prove the com- plaint allegations by a preponderance of the evidence, I have concluded that the requisite proof of coercion is 16 This conclusion is not intended to preclude bargaining about such changes required to remedy Respondent 's 8(a)(5 ) violation lacking and, hence, no violation can be found in this in- stance. Respondent's supervisors violated the Act by the re- peated statements suggesting that employee support for the Union would be futile. Viewed in isolation, the often- repeated remark of the supervisors that employees could not count on their union for assistance because the unions were, in effect, frozen out for a year or two, if not longer, do not appear coercive. However, in the con- text of Respondent's unlawful refusal to recognize the Locals, its subsequent unilateral actions affecting employ- ees working conditions, and the unlawful threats and dis- ciplinary warnings found herein, the supervisors futility statements take on a wholly different character. In the total context, the futility statements disclose a broad campaign following the Respondent's unlawful refusal to bargain designed to disparage the Locals and to induce employees to abandon their support of the Locals. This conclusion supported by the fact that Respondent's su- pervisors emphasized the lack of union representation on numerous occasions even when they were issuing legiti- mate work-related instuctions to employees. By doing so, the supervisors were obviously driving home the notion that it would be futile for employees to rely on the Locals for any assistance. I find, therefore, that such statements reinforced Respondent's other unlawful con- duct and thereby violated Section 8(a)(1) of the Act. I also find that the warnings issued to the six employ- ees for picketing in their work uniforms were unlawful. Respondent failed to establish that it had a preexisting rule prohibiting employees from engaging in outside ac- tivities while in uniforms. It is fair to infer, as I have, that Respondent's supervisors observed employees arriv- ing for work and leaving work in their uniforms and could logically deduce that those employees engaged in a broad spectrum of off-duty activities in uniforms. Re- spondent never questioned any employee conduct in uni- form until the employees chose to picket as they arrived for and left work. By issuing the written warnings to the six employees for this conduct without first establishing a legitimate rule concerning the wearing of uniforms while engaged in off-duty activities, Respondent singled out protected union activity as a basis for discipline. I con- clude, therefore, that by engaging in this form of dis- criminatory conduct, Respondent violated Section 8(a)(1) and (3) of the Act. Respondent engaged in further unlawful discrimination against Buza. As the inspectresses had no discernable su- pervisory authority, Respondent could not lawfully insist, as it did in Buza's instance, that the inspectresses refrain from the union activity. Buza ignored those de- mands that she do so and joined the picket line. Dris- coll's response was to rescind Buza's authorization to work a 4-day week. When faced with the dual condition that she work 5 days a week and that she get out of the Union, both of which were unlawful, Buza elected to return to work as a maid. On these facts, I find that the Respondent constructively demoted Buza for resisting Respondent's demands that she refrain from protected union activity as an inspectress. By doing so, Respondent violated Section 8(a)(1) and (3) of the Act CLARION HOTEL-MARIN 493 IV. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above oc- curring in connection with its operations at the Hotel have a close, initimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce or an in- dustry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Locals are each labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent is a successor employer to HHI and GIFP in its operation of the Hotel. 4. At all material times Local 126 has been the the ma- jority representative of the employees in the appropriate unit set forth below, and pursuant to Section 9(a) of the Act, is the exclusive representative of such employees for the purposes of collective bargaining. The appropri- ate unit represented by Local 126 is: ognize and bargain with it concerning the employees in the appropriate unit set forth in paragraph 5 above. 7. By refusing to recognize and bargain with Locals 126 and 856 at all times since 26 and 22 June, respective- ly, Respondent has violated Section 8(a)(1) and (5) of the Act. 8. By its supervisors' statements threatening employees if they engaged in union activity and suggesting to em- ployees that it would be futile to continue their support of Locals 126 and 856, Respondent violated Section 8(a)(1) of the Act. 9. By issuing written warnings to employees Buza, Es- trada, Johnston, Lucas, Spiers, and Wren for engaging in picketing activities on 18 and 19 July 1984, and by con- structively demoting Buza from her position as an in- spectress or the same reason , Respondent has violated Section 8(a)(1) and (3) of the Act. 10. Except as specified above, the General Counsel has failed to prove by a preponderance of credible evidence that Respondent engaged in any other unfair labor prac- tices. 11. The unfair labor practices specified above affect commerce within the meaning of Section 2(6) and (7) of the Act. All cooks, preparation/breakfast cooks, pantry em- ployees, dishwashers, dishwasher/porters, dishwash- er/busboys, bartender service employees, bartend- ers, cashiers/hostesses, waiters/waitresses, busboys, banquet waiters/waitresses, and banquet set-up per- sons, excluding all other employees, guards and su- pervisors within the meaning of the Act. 5. At all material times Local 856 has been the majori- ty representative of the employees in the appropriate unit set forth below and is the exclusive representative within the meaning of Section 9(a) of the Act for purposes of collective bargaining concerning those employees. The appropriate unit represented by Local 856 is: All front desk clerks (including night clerks, front office room clerks and cashiers); office clerical em- ployes (including file clerks, telephone operators, typist-clerks, TWX operators, food and beverage clerks, reservation clerks, billing clerks, stenogra- phers, accounts receivable/city ledger clerks, ac- counts payable clerks, bookkeeping machine opera- tors, keypunch operators, city ledger bookkeepers, payroll clerks, general cashiers (secretaries)); house- keeping employees (including maids, inspectresses, housemen, maintenance/housemen, assistant house- keepers, combination linen/laundry maids, seam- stresses and bellmen); excluding all other employ- ees, guards and supervisors within the meaning of the Act. 6. At all times since 26 June 1984 Local 126 has de- manded that the Respondent recognize and bargain with it concerning the employees in the appropriate unit set forth in paragraph 4 above; at all times since 22 June 1984 Local 856 has demanded that the Respondent rec- THE REMEDY Having found that the Respondent has engaged in the above unfair labor practices, it will be required to cease and desist therefrom and take certain affirmative action described below which is designed to effectuate the poli- cies of the Act. As Locals 126 and 856 have already demanded that Respondent recognize and bargain with them in the re- spective units they represent, Respondent will be re- quired to rescind its 2 July refusal to recognize and to offer to meet with representatives of the Locals at rea- sonable times for the purpose of engaging in collective bargaining. The evidence here discloses that the Re- spondent agreed to offer employment to its predecessor's entire work force and that its entire initial complement of employees consisted of persons hired from its prede- cessor's rolls who accepted employment on the basis of terms offered initially by Respondent. Hence, Respond- ent has no obligation to bargain over the initial terms of its employment offer. NLRB v. Burns Security Services, supra; Arden's Shops, 211 NLRB 501 (1974); Spruce Up Corp., 209 NLRB 194 (1974). There is, however, evi- dence that Respondent continued to alter the employees' terms and conditions of employment after the Locals de- manded recognition and bargaining. In order to restore the status quo ante and to accord the Locals further op- portunity to bargain regarding those changes subsequent to the time they demanded recognition, Respondent will be required to rescind any such changes on the written request of the appropriate Local until such time as the parties have reached an agreement concerning any such change or a good-faith impasse in negotiations has been reached. In all other respects, Respondent will be re- quired to bargain with the Locals in the manner required by Section 8(d) of the Act. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent will further be required to rescind the warning notices issued to employees Lena Buza, Eliza- beth Estrada, Gladys Johnston, Erlinda Lucas, Maria Spiers, and Dedena Wren. Additionally, Respondent will be required to offer Buza immediate and full reinstate- ment to the position of inspectress on the same terms and conditions available to her prior to 18 July and to make Buza whole for any loss of earnings resulting from her demotion. In accord with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), Respondent will be re- quired to remove from its records any reference to the unlawful warnings and demotions found herein and it shall notify each such employee in writing that it has done so and that such action will not be considered in any future personnel action involving them. Any back- pay due Buza shall be computed in the manner specified by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon provided by the Board in Olympic Medical Corp., 250 NLRB 146 (1980); and Flori- da Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Any necessary trust fund reimbursement shall be made in accord with the procedures proscribed by the Board in Merryweather Optical Co., 240 NLRB 1213 (1979). Finally, Respondent will be required to post the notice to employees in order to fully inform employees of their rights and the out- come of this matter. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed17 ORDER The Respondent, Marin Operating, Inc. d/b/a The Clarion Hotel-Marin; Colorado Marin Associates, a Joint Venture, San Rafael, California, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize, meet, and bargain with Freight Checkers, Clerical Employees and Helpers Local 856 and Hotel Employees & Restaurant Employees Union, Local 126, as the exclusive bargaining representa- tive of all employees in the following appropriate collec- tive-bargaining units concerning the respective wages, hours, and other terms and conditions of employment of employees employed in the units. The appropriate, unit of employees represented by Local 856 is: All front desk clerks (including night clerks, front office room clerks and cashiers); office clerical em- ployees (including file clerks, telephone operators, typist-clerks, TWX operators, food and beverage clerks, reservation clerks, billing clerks, stenogra- phers, accounts receivable/city ledger clerks, ac- counts payable clerks, bookkeeping machine opera- tors, keypunch operators, city ledger bookkeeping, payroll clerks, general cashiers (secretaries)); house- keeping employees (including maids, inspectresses, 17 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 housemen, maintenance/housemen, assistant house- keepers, combination linen/laundry maids, seam- stresses and bellmen); excluding all other employ- ees, guards and supervisors within the meaning of the Act. The appropriate collective-bargaining unit represented by Local 126 is: All cooks, preparation/breakfast cooks, pantry em- ployees, dishwashers, dishwasher/porters, dishwash- er/busboys, bartender service employees, bartenders cashiers/hostesses, waiters/waitresses, busboys, ban- quet wasters/waitresses, and banquet set-up persons; excluding all other employees, guards and supervi- sors within the meaning of the Act. (b) Refusing to restore the terms and conditions of em- ployment which existed at the time of the demands for recognition made by Local 126 and Local 856 on 26 June and 22 June, respectively, in the manner specified in the remedy portion of this decision. (c) Discriminating against employees by issuing warn- ing notices for picketing at the Respondent's facility in Marin County while in uniform in the absence of a legiti- mately adopted rule prohibiting employees from wearing their work uniforms while engaging in nonwork activi- ties. (d) Demoting employees because they have engaged in activities on behalf of Locals 126 and 856. (e) Threatening employees with discharge or loss of overtime because they engaged in activities on behalf of Local 126 or 856. (f) Making statements to employees suggesting that it would be futile for employees to support Local 126 or 856. (g) 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) Recognize and offer to meet and bargain collec- tively with Locals 126 and 856 as the exclusive repre- sentatives of the employees in the appropriate units de- scribed above concerning their wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody such an understanding in a signed agreement. (b) On written request, restore the terms and condi- tions of employment of the employees in the appropriate units described above to those which existed at the time the appropriate Local requested recognition and maintain such conditions in effect until an agreement is reached concerning any such changes or a good-faith impasse in bargaining is reached. (c) Offer immediate and full reinstatement to Lena Buza to the position of inspectress under the terms and conditions existing prior to 18 July 1984 and make Buza whole for the losses she suffered by reason of her demo- tion from that position in the manner specified in the remedy section above. CLARION HOTEL-MARIN 495 (d) Rescind and remove from its files any reference to the unlawful warnings issued to Lena Buza , Elizabeth Estrada, Gladys Johnston, Erlinda Lucas, Maria Spiers, and Dedena Wren and to the demotion of Lena Buza, and notify each of them in writing that this has been done and that evidence concerning their unlawful warn- ing or demotion will not be considered in any future per- sonnel actions. (e) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary or useful for determination of the amount of back- pay and interest due Buza, the propriety of any offer of reinstatement to or reinstatement of Buza , and its compli- ance with paragraph 2(d) of this Order. (f) Post at its Marin County hotel facility copies of the attached notice marked "Appendix." 18 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent at its Marin County hotel 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 Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that all allegations of the complaint other than those found above to have merit be dismissed. IT IS ALSO FURTHER RECOMMENDED that the certifica- tions issued to Local 856 on 22 March 1972 in Cases 20- RC-8945, 20-RC-9820, 20-RC-9828, and 20-RC-10327 be revoked. ' 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- the United States Court of Appeals Enforcing an Order of the National al Labor Relations Board" shall read "Posted Pursuant to a Judgment of Labor Relations Board " 1