Sands Motel And Amm, Inc.

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harold Weine, David Weine, Kate Weine, Ruth Weine, Morris S. Brent, Phillip Nusholtz, Ger- trude Nusholtz, Sal Waldman, a co-partnership d/b/a Sands Motel and AMM, Inc. and Bruce M. Guthrie and Local 24, Hotel, Motel, Res- taurant Employees, Cooks & Bartenders Union, AFL-CIO. Cases 7-CA-19375, 7-CA-19558, and 7-CA-19559 30 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 29 September 1982 Administrative Law Judge Thomas R. Wilks issued the attached deci- sion. Counsel for the Joint Employers (the Re- spondents) 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, findings, I and conclusions2 and to adopt the recommended Order as modified.3 i The Respondents assert that the judge 's resolution of credibility is the result of bias. After a careful examination of the entire record, we are satisfied that this allegation is without ment. Furthermore, it is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions 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. 2 The judge found that the Respondents unilaterally decided to con- tract out the motel's laundry service for discriminatory reasons, in viola- tion of Sec. 8(a)(3) and (5) The subject of discriminatorily motivated contracting was specifically excluded from the Board's decision in Otis Elevator Co., 269 NLRB 891, 892 at fn. 4 (1984) Further, such a contracting decision for the (admitted) purpose of reducing labor costs constitutes a mandatory subject of bar- gaining under any test enunciated in Otis, supra 2 We shall extend and apply the recommended Order and notice to Respondent AMM, as well as to Respondent Sands . The complaint al- leged, the parties stipulated , the judge found, and we affirm that Re- spondent AMM and Respondent Sands are joint employers. Further, the judge found that Donald Nusholtz, an officer and the general manager of Respondent AMM, was an agent of Respondent Sands. Donald acted as management advisor to his son, Robert Nusholtz, Respondent Sands' manager; memoranda in personnel files of Respondent Sands reveal per- sonnel action directives attributed to Donald ; and he acted as an agent of Respondent Sands with respect to preelection activities , in the course of which he solicited grievances and threatened to "shut the doors" if the employees obtained union representation. Because an officer of AMM has acted as a management advisor to Joint Employer Sands and has also di- rectly engaged in some of the unlawful antiunion conduct, it is clearly appropriate to hold both Respondent Sands and Respondent AMM joint- ly and severally liable for remedying the unfair labor practices found, and we shall amend the Order accordingly. See Pacific Pollution Control, 227 NLRB 293 ( 1976); International Trailer Co, 133 NLRB 1527, 1530 (1961), enfd 307 F 2d 428, 431 (4th Cir. 1962) cert. denied 372 U S. 911 (1963) Compare Carrier Corp. v NLRB, 768 F.2d 778, 783 (6th Cir 1985) (no backpay liability for joint employer that was wholly innocent party) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondents, Harold Weine, David Weine, Kate Weine, Ruth Weine, Morris S. Brent, Phillip Nusholtz, Gertrude Nusholtz, Sal Waldman, a co-partnership d/b/a Sands Motel and AMM, Inc., Detroit, Michigan, their partners, agents, successors, and assigns, shall take the action set forth in the recommended Order as modified, and substitute the attached notice for that of the 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. Accordingly, we give you these assurances: WE WILL NOT coercively interrogate our em- ployees concerning their own and other employees' union activities, sympathies, and desires. WE WILL NOT threaten our employees with clo- sure of our operations if they select a union as their bargaining representative. WE WILL NOT solicit and impliedly promise to remedy employees' grievances and complaints con- cerning terms and conditions of employment in order to induce employees to reject union repre- sentation. WE WILL NOT coercively imply to our employ- ees the futility of selecting a union as a collective- bargaining representative by telling our employees that we will not allow them to have a union. WE WILL NOT restrict the movement and con- versation of our employees for the purpose of dis- couraging them from communicating with employ- ee union adherents in the absence of justifiable business reasons. 280 NLRB No. 13 SANDS MOTEL WE WILL NOT discriminate against our employ- ees in any way, including subcontracting bargain- ing unit work, removing job classifications from the bargaining unit, and rescinding any employee work benefit in retaliation for our employees' sup- port of and activities on behalf of Local 24, Hotel, Motel, Restaurant Employees, Cooks & Bartenders Union, AFL-CIO, or any other labor organization or to erode our employees' support of their desig- nated bargaining agent. WE WILL NOT fail and refuse to bargain, on re- quest, with Local 24, Hotel, Motel, Restaurant Em- ployees, Cooks & Bartenders Union, AFL-CIO, as the exclusive representative of employees in the ap- propriate bargaining unit, described below in this notice, concerning wages, hours, and other terms and conditions of employment, including the sub- contracting of bargaining unit work, the removal of job classifications from the bargaining unit, and the termination of work benefits. 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 reinstate our laundry facility as it exist- ed prior to 13 March 1981 at our facility on Michi- gan Avenue in Detroit, Michigan. WE WILL offer laundry employees Sharon By- siorek and Alice McKenzie immediate and full re- instatement to their former jobs without prejudice to their seniority or other rights and privileges pre- viously enjoyed and make them whole, with inter- est, for any loss they may have suffered as a result of the discriminatory and unilateral termination of laundry operations. WE WILL remove from our records any refer- ence to the work performance of Sharon Bysiorek as the cause of the subcontracting of our linen service and laundry operations and notify Sharon Bysiorek in writing that this has been done, and that her unlawful termination will not be used as a basis for future personnel actions against her. WE WILL reinstate the job classifications of desk clerks to the appropriate bargaining unit and re- scind the assignment to them of supervisory duties as defined in the Act. WE WILL restore to our employees their previ- ously enjoyed benefit of accrued vacation pay, check cashing privileges during working time, and pay to bargaining unit employees accrued vacation pay due them, with interest. WE WILL rescind the restrictions we imposed on employees which we instituted for the purpose of discouraging them from communicating with em- ployee adherents of the above-named Union, in- cluding restrictions placed on communications with 133 laundress Sharon Bysiorek, in the absence of justifi- able business reasons. WE WILL bargain in good faith with the above- named Union as the exclusive representative of the appropriate bargaining unit consisting of all full- time and regular part-time employees, including maids, maintenance persons, laundry employees, clerks and desk clerks, employed by us at our 9430 Michigan Avenue, Detroit, Michigan facility, but excluding all managers , supervisors and guards as defined by the Act, concerning wages, hours, and other terms and conditions of employment includ- ing any decision to subcontract bargaining unit work, any decision to remove job classifications from the bargaining unit, and any decision to termi- nate work benefits of employees. HAROLD WEINE, DAVID WEINE, KATE WEINE, RUTH WEINE , MORRIS S. BRENT, PHILLIP NUSHOLTZ, GER- TRUDE NUSHOLTZ, SAL WALDMAN, A CO-PARTNERSHIP D/B/A SANDS MOTEL AND AMM, INC. A. Bradley Howell, Esq., for the General Counsel. Sheldon G. Larkey, Esq. (Huller, Larkey, and Hoekenga), of Southfield, Michigan, for the Respondent. Donald F. Sugerman, Esq. (Miller, Cohen, Martens, and Sugerman), of Detroit, Michigan, for the Union. DECISION STATEMENT OF THE CASE THOMAS R. WILxs, Administrative Law Judge. Pur- saunt to unfair labor practice charges filed by Bruce M. Guthrie, an individual, and Local 24, Hotel Motel, Res- taurant Employees, Cooks & Bartenders Union, AFL- CIO (the Union), a complaint and a consolidated amend- ed complaint were issued by the Regional Director for Region 7 against Harold Weine, David Weine, Kate Weine, Morris S. Brent, Phillip Nusholtz, Gertrude Nu- sholtz, Sal Waldman, a co-partnership d/b/a Sands Motel (Respondent Sands), and AMM, Inc. (Respondent AMM and together with Respondent Sands collectively called Respondents) alleging violations of Section 8(a)(3) and (5) of the Act consisting of various acts of employee coercion, discriminatory termination of employment, and discriminatory subcontracting of bargaining unit work without bargaining about the decision to subcontract and the effects thereof and other discriminatorily motivated changes in terms and conditions of employment unilater- ally effectuated without bargaining with the Union.' Re- spondents duly filed an answer which denied the com- mission of unfair labor practices. The trial of this matter was held before me at Detroit, Michigan, on July 14 and 1 Respondents' names and identities and Respondent Sands' name and identity as reflected herein are in accord with uncontested record evi- dence and, in fact, the stipulations of the parties 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 15, 1982, at which all parties were afforded the opportu- nity to adduce relevant and material evidence, to argue orally, and/or to submit written briefs. The General Counsel and Respondents declined to argue orally and explicitly indicated a preference for the filling of briefs. Only Respondents thereafter filed such brief. On the entire record in this case, including my obser- vation of the witnesses and their demeanor and in con- sideration of briefs, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondent Sands is a copartnership doing business under the trade name and style of Sands Motel. Re- spondent AMM is a corporation duly organized under, and existing by virtue of the laws of the State of Michi- gan. Respondent Sands maintains its only office and place of business, a motel, at 9430 Michigan Avenue, De- troit, Michigan, where it engaged in the providing of lodging and related services for paying guests. AMM maintains its principal office and place of business at 21170 Bridge Street, Southfield, Michigan, where it is engaged in the business of providing motel management services to various motels located in the Detroit, Michi- gan area. It is stipulated by the parties, and I find, that Respond- ent Sands and Respondent AMM are joint employers, as the Board uses that term, and that collectively Respond- ents meet the appropriate Board jurisdictional standard and that Respondents, collectively, are and have been at all material times an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is and has been at all material times a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. Facts 1. Certification of bargaining agent on February 26, 1981 On February 26, 1981, the Michigan Employment Re- lations Commission conducted an election in an appropri- ate bargaining unit consisting of Respondent Sands' maids, maintenance persons, laundry employees, clerks, and desk clerks, with the result that 11 votes were cast for the Union, 2 votes against the Union, and determina- tive challenges which were subsequently resolved. On April 27, 1981, the Union was certified as the exclusive bargaining agent for that unit, and it is admitted that by virtue of Section 9(a) of the Act the Union has been and is the exclusive bargaining representative for those em- ployees. 2. Precertification interference Interest in union representation for the employees of Respondent Sands' 47-unit motel located in the south- west industrial-residential area of Detroit commenced in early January 1981. The principal employee advocate of union representation was weekday laundress Sharon By- siorek. She had been hired in 1978 and was responsible for the laundering, drying, and folding of the motel bed- sheets, pillowcases, towels, and bedspreads in the laun- dry room located in the motel basement. She worked a 6- or 8-hour day on weekdays. On weekends her duties were performed by laundress Alice McKenzie. Shortly after the first of the year, i.e., 1981, Bysiorek solicited union support and obtained written union repre- sentation authorizations from all the bargaining unit em- ployees.2 She served as union observer at the state-con- ducted election on February 26. Shortly after she en- gaged in her organizing efforts, during the first or second week in January, she was engaged in conversa- tion concerning the Union with Respondent Sands' man- ager, Robert Nusholtz, and Respondent Sands' head housekeeper, Henrietta Vickstrom, both of whom are ad- mitted supervisors and agents of Respondent Sands. During the first week of January, at lunchtime, in the motel, while at the same table having lunch with By- siorek, maids Muriel Kowalczik and Bessie Lanier, refer- ence to the Union was made by Vickstrom who said she had heard rumors that union organizing efforts were un- derway at the motel. Vickstrom stated that in light of the employees' low wages they could not afford the Union's initiation fee, and that in any event union representation would accomplish nothing. Furthermore, Vickstrom stated that "they," i.e., Respondent Sands, would never permit the employees to be represented by a union.3 Vickstrom testified that she had heard about union ef- forts from the desk clerk and that a "guy" told her that union cards were being signed, and that she became "cu- rious." Therefore during this conversation, she testified that on her own initiative, she questioned the employees and attempted to discuss what they knew about the union organizing activities of the employees. Although both Lanier and Kowalczik had signed cards for By- siorek, all employees feigned ignorance.4 One of the other employees who signed a union au- thorization card for Bysiorek was Anna Durgeck. Vick- strom testified that Durgeck told her that she had signed a card at the request of a red-headed maid and that she was upset because she did not understand the substance of the card and wondered whether it was intended for "social security." Vickstrom testified that she thereafter in the second week of January telephoned the three maids who fitted the description, i.e., Bysiorek, Kowalc- S In January there were three day maids, one afternoon maid, one or two midnight maids, at least four desk clerks , and an mdetermmant number of maintenance persons and porters. 3 The foregoing is based on the credible testimony of Lamer and By- siorek. Vickstrom admitted portions of conversation and did not effec- tively deny the balance. She was extremely uncertain , hesitant, general- ized, and unconvincing as a witness. I thereby credit Lamer and Bysiorek wherever there is a conflict of testimony. 4 Bysiorek is Vickstrom's niece. Kowalczik is, by marriage, also a niece to Vickstrom SANDS MOTEL 135 zik, and Mckenzie, and questioned them whether they had asked Durgeck to sign a card. Kowalczik testified that Vickstrom did not specify what kind of card, but merely said it might be a social security card or "some kind of a card" and that Anna was upset. Kowalczik told her that she knew nothing of the incident. Bysiorek testi- fied that Vickstrom in the telephone conversation said that Durgeck had thought it was a social security card but that in fact it was a union card; to which Bysiorek responded with pretended ignorance. Vickstrom testified that she had no idea that Durgeck had signed a union card inasmuch as Vickstrom had no knowledge of the existence of such things and had acquired no such knowledge until the time of this trial. This is in direct contradiction to her explicit testimony that she had been informed that employees were signing "union cards." I credit Bysiorek. I conclude that Vickstrom, if not Dur- geck, was aware of not only the union organizational effort, but that it took the form of authorization card execution. I conclude that her questioning of the red- headed maid was in accord with her admitted interroga- tions about union activity and that it was therefore part of an effort to identify those involved in such activities. Although Vickstrom claimed to have received no in- structions from her superiors concerning the union ac- tivities of the employees, "curiosity" was clearly not lim- ited to her. Robert Nusholtz testified that in the second or third week of January, desk clerk Larry Schonseck told him that the Union was attempting to organize the employees. He further testified that: In walking around the motel and talking to various employees, I asked if they knew anything about it. He testified that they all responded negatively. He testi- fied that he asked Bysiorek whether she had signed a union card and that, he "believed," she responded nega- tively. According to Bysiorek's far more certain and de- tailed testimony which I credit, Robert Nusholtz encoun- tered her at her work station in the basement and asked her whether she had received a union card and on being told she had received it by mail and had signed and re- turned it, he asked her if she knew how other employees had received union cards. When she replied that she did not, he desisted and departed. Bessie Lanier, and to a lesser extent Muriel Kowalczik, testified about one such early encounter in January with Robert Nusholtz in the kitchen at the motel. While sev- eral employees and Vickstrom were present, Robert Nu- sholtz arrived and asked them whether they had seen anyone with union cards, or whether they had been ap- proached by anyone seeking union support. Kowalczik testified that a response was made but that there was more general discussion about a union. Lanier testified that she disclaimed any specific knowledge of it and that Nusholtz ended the conversation with the remark, "I have a feeling this situation is like the Norma Rae movie, everybody knew but yet nobody knew." Robert Nusholtz testified that he merely asked the em- ployees whether they had any knowledge of the Union and, on receiving a negative response, he dropped the subject. However, he admitted having a vague recollec- tion of referring to the movie, "Norma Rae." I credit the more certain and detailed recollection of Lanier in this regard. 5 In addition to the preelection conduct of Supervisor Vickstrom and Respondent Manager Nusholtz, the Gen- eral Counsel also alleges an unlawful interference with employee rights, the conduct of Respondent AMM offi- cer and general manager, former Respondent Sands' partnership interest trustee, brother of a Respondent Sands' partner, husband of Respondent Sands' partner, and father of Robert Nusholtz, i.e., Donald Nusholtz. Shortly prior to the election, Vickstrom summoned the day employees, except Bysiorek, to a meeting at the motel at which they were, in her presence, addressed by Donald Nusholtz.6 Prior to that meeting she had told at least one employee that Donald Nusholtz was present and conducting a meeting and that if the employees had any complaints that it was the time to present such com- plaints. Vickstrom admitted in her testimony that the purpose of the meeting was for the solicitation of com- plaints or grievances. At the meeting, Donald Nusholtz commenced by stat- ing, "I hear you girls are trying to get a union?" Kowalczik responded, "I didn't start it." Donald Nu- sholtz stated, "I'm not interested in who started it, but I wasn't aware that you had problems; what is the prob- lem?" To this, the employees responded with their com- plaints. Bessie Lanier referred to her longstanding griev- ance concerning vacation pay.7 Lanier claimed that union representation might obtain 3 weeks' paid vacation for employees of 5 years' tenure. Donald Nusholtz re- sponded that he agreed that an employee of 5 years' tenure was entitled to 3 weeks' paid vacation and that perhaps his secretary had "overlooked" it. It is Lannier's uncontested testimony that in 1979 Donald Nusholtz in- structed Lanier that Respondent Sands did not provide an additional third week of paid vacation. The evidence indicated that employees in fact did not receive a third week of vacation. Lanier protested and reminded Donald Nusholtz of that earlier telephone conversation, and he responded that an employee of 5 years' tenure is entitled to 3 weeks of paid vacation. He thereafter said that maybe something would be done about it but that he failed to understand why the employees wanted union representation. Kowalczik testified that Donald Nusholtz then stated that if employees obtained union representa- tion he would have to "shut the doors" because he could not afford to pay employees more than he was paying at that time.8 Although this was not corroborated by 5 When asked whether he asked Lamer if she saw anyone signing union cards, Nusholtz responded hesitantly, "No, I don' t remember asking that question." 6 Although Bysiorek was on duty, she was not invited. Vickstrom, in her testimony, could offer no explanation for her failure to mvite By- storek v Lamer had long claimed that the employees were entitled to an addi- tional week of vacation pay, i e., 3 weeks after 5 years of employment pursuant to an unfulfilled promise of a prior manager 8 Although Donald Nusholtz' status as agent for Respondent Sands was not admitted, I conclude that, based on his relationship to the Sands partnership, his admitted role of management advisor to Robert Nusholtz, the presence of memoranda in personnel files of Respondent Sands re- Continued 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lanier, it was not denied by Donald Nusholtz who did not testify about this incident. Vickstrom's testimony about the meeting was confused , uncertain, and, in part, contradictory . I therefore discredit her generalized denial that Donald Nusholtz threatened the employees, and I discredit her testimony when it conflicts with Lanier or Kowalczik. On the day before or day after the election , Vickstrom engaged Lanier in a conversation while they were alone in the linen room at the motel . She asked Lanier what the employees "really wanted," to which Lanier re- sponded that their basic desire was to achieve seniority rights and vacation pay and added that each employee would not have to service as many rooms as presently serviced bacause the Union would obtain a lower limit on that number. Lanier testified concerning to Vick- strom's response. And, she said they will never let you all do that be- cause they wouldn't let us all do that small a number of rooms. 3. Isolation of the laundress On February 26, Bysiorek served as the union election observer. On March 9, Bysiorek in the course of her work duties had placed the motel laundry into the wash cycle in the basement washing machine, and found her- self with 30 minutes of unoccupied time as she waited for the next laundering machine cycle. As she had fre- quently done in the past, she went upstairs and visited with a day maid who was in the process of servicing a room. These visits were done openly in full view of Vickstrom who made no objections. On this occasion she visited with Lanier in room 11. In room 14 were Vick- strom, Donald Nusholtz, and a maintenance employee at- tending to some maintenance problem. Nusholtz hap- pened to view Bysiorek in room 11 sitting on a bed talk- ing to Lanier who was servicing the room. Nusholtz tes- tified that he instructed Vickstrom to order Bysiorek to "remove herself from the room and either go on her break or go back to work." He testified that he did so, "Because the maid was supposed to be cleaning the room and not socializing." There is no evidence that the maid was inhibited in the performance of her duties by Bysior- ek's presence. When directed to testimony that such past behavior was knowingly tolerated, Nusholtz responded evasively that in the past "the motel was more profita- ble." When I asked whether he was by his answer ad- mitting that such visiting was permitted, he responded vaguely and hesitantly, "I really wasn't aware of people visiting in the rooms while the maids were working in the past." According to Nusholtz, thereafter Bysiorek was not permitted to visit the maids while they per- formed their work. This prohibition included Bysiorek's breaktime as Nusholtz testified, in an apparent attempt at explanation, that he unilaterally determined where his vealing personnel action directives attributed to him, his past role as to vacation policy, and Respondent Sands' ostensible sponsorship of his preelection employee meeting, he in fact acted as agent of Respondent Sands with respect to preelection activities. 9 A clear nonsegwtur as there is no demonstrated connection between profits and whether a maid performs her duties in solitude employees must take their breaks . He claimed his moti- vation was based on economics, but gave no explanation about what relationship existed between profits and loca- tion of employee breaks. In the past, Bysiorek, even during the performance of her duties, had occasion to visit the upstairs to deliver linen and cleaning supplies. It was never demonstrated by Respondent Sands how her visits upstairs tended to disrupt or interfere with any housekeeping functions. Nusholtz disclaimed any antiun- ion motivation for his instructions, claiming that he was unaware of Bysiorek's union sympathies. On cross-exami- nation, however, he admitted that he became aware on February 26 that she had been the union election observ- er and from that fact he assumed then that at the least she was a union supporter. Vickstrom testified, somewhat differently, that on March 9, Robert Nusholtz instructed her to tell Bysiorek to "go downstaris to do her work" and "it's not her job to be in the room with the maid, its her job to be in the basement doing her laundry work." Thereafter Vick- strom went to room 11 and ejected Bysiorek without in- quiring whether she had any immediate duties to attend, or without ascertaining whether there had been any slowdown or disruption of the work of the maid. Ac- cording to the testimony of Bysiorek whom I find to have been a far more certain , detailed, responsive, con- sistent, convincing, and more credible witness than Vicksdtrom, she was not only ordered on March 9 by Vickstrom to return to the basement and to refrain from visiting with the maids upstairs any more, but also on March 13 ordered by Vickstrom not to talk to the maids or anyone else when they had occasion to come to the basement. In the past, employees had frequent occasion to visit the supply room which is located immediately adjacent to the laundry room and in so doing exchange pleasantries with Bysiorek, often in full view of Vick- strom who at no previous time had voiced any objec- tions. Lanier credibily testified that on March 13 she had been in the basement obtaining linen supplies and after having spoken to Bysiorek, she was confronted by Vick- strom who told her that she was not to talk to Bysiorek but was to obtain her supplies and leave immediately. Vickstrom testified that she instructed the maids to visit with Bysiorek in the basement on those occasions when they obtained supplies, because "they were supposed to be working and not visiting." When reminded by counsel for Respondents of the testimony with respect to the prior permissive motel policy and asked, "Why the change," she responded in a hesitant, uncertain, and con- fused demeanor, "I don't know-I guess they [the maids] were taking too much time." She testified that she acted on instructions by Robert Nusholtz, which were given to her without explanation. On direct examination Robert Nusholtz' total testimony regarding the March 13 inci- dent is as follows: Q. (By Mr. Larkey) Did you ever have an occa- sion, and I want to switch to the basement situation to instruct anybody concerning Sharon [Bysiorek] not talking with other employees while she was working in the laundry? SANDS MOTEL A. No. There was a comment for the maids when not cleaning a room to be in the laundry room help- ing [her] with the laundry, either sorting or folding. I never asked anyone to segregate her. Q. (By Mr. Larkey) Did you ever give instruc- tions to anybody that Sharon [Bysiorek] was-that the maids were not to talk with Sharon when she was down in the basement? A. No. There was certainly no palpable reason for Vickstrom to have manufactured her testimony. I conclude that she had been instructed by Robert Nusholtz to deviate from past practice and therefore she ordered Bysiorek not to visit with other maids on duty upstairs, nor to converse with maids while on errand to the basement, and that she ordered maids not to speak to Bysiorek when they vis- ited the basement. I further conclude that such deviation from past practice was not shown to have been premised on any demonstrable business reason. 4. Unilateral changes After the designation of the Union as bargaining agent of the employees, Respondents admittedly engaged in a series of unilateral actions which affected terms and con- ditions of employment without prior notification to and bargaining with the Union. On March 13, 1981, Respondent Sands terminated the linen service and laundry operation and laid off Bysiorek and McKenzie. On March 15 Respondent Sands subcon- tracted that work to an outside linen supply company. In March the practice of permitting, during worktime, an employee to leave the premises and cash the paychecks of several employees was henceforth discontinued. About April 1, 1981, Respondents announced the discon- tinuation of all vacation pay. In May the desk clerk clas- sification was removed from the bargaining unit and re- classified as a supervisory position. Respondents contend that all such actions were not discriminatorily motivated but were based on business reasons, and were done uni- laterally because it believed that the Union was not enti- tled to participate in the making of such business deci- sions. A dispute exists whether Respondents bargained with the Union about the effects of these decisions. With respect to the subcontracting of the laundry work, Robert Nusholtz testified that he had entertained the possibility of contracting with a linen supply compa- ny to replace his own linens and laundry operation in August 1980. He testified to several expensive ($1200) re- pairs to the 17-year old motel washer, which had a high breakdown predictability, and to its propensity to deposit lint in the sewer which in turn caused three basement floods in 1980 and to the high $6000-10,000 cost of a new washer.' ° Nusholtz testified that in 1980 he contact- ed several linen supply companies and inquired of costs, and discussed the subject with Vickstrom in August 1980. When reminded by Respondents' counsel of Vick- strom's testimony that such conversation occurred around Christmas 1980, he then testified that there were two such conversations, and that he raised it again in 10 A cutoff valve was installed in 1980 to prevent future flooding 137 December because business had declined and the price of supplies had increased.'' He could recall no details of the conversation except that Vickstrom opined that there was no difference in quality between the two methods. Vickstrom's recollection was even more obscure. She only recalled the December conversation, and only that it contained some reference to the linen service as "cheaper." She had no recollection of mechanical prob- lems with the washer, and she only recalled the flooding on counsel for Respondents' leading question.' 2 Nusholtz testified that no decision was made with re- spect to the laundry operation because of a desire to use up the existing ample supplies of linens and cleaning sup- plies, and a desire to "reconcile," the past year's $1200 expenditures in laundry machine repairs. The decision to eliminate the laundry operation occurred in March after the Union was certified as bargaining agent. Nusholtz testified that business had declined to the extent that he did not need a full-time laundress 7 days a week, and that it was more economical to contract with a linen supply service that would provide all linens at $1.60 per set of linen per room than to bear the cost of $4.50 per linen set per room incurred by maintaining his own linens and laundry operation. Nusholtz testified that when the decision was made, a "majority" of the old linens had become due for replacement, and that he needed to replace about $2000 worth of linen.'s Nusholtz' testimony with respect to the comparative costs involved in the two different linen service systems was conclusionary and generalized. He testified that he no longer possessed the original notations and calcula- tions he made with respect to the in-house laundry oper- ation. He could not even recall what portion of the $4.50 cost was attributable to labor, nor what part was due to the cost of water, electricity, gas, detergents, and bleach. There was no testimony about the average linen replace- ment cost, nor the frequency of replacement of linens, towels, and bedsheets. The actual absolute costs of either operation cannot be determined by the evidence adduced in the record.14 Although there are 47 units in the Sands motel, an indeterminant number of some of the rooms have a turnover in occupants, two or three times a day. On the basis of an average of 47 units, i.e., the 47 sets of linen per day at $1.60 per set per day the linen supply cost for a 7-day week would amount to $526.40. The weekday laundress appears to have been paid at $3.55 per hour. Assuming that the laundresses earned the same rate, and together worked 7 days a week, 56 hours a week, the total labor cost would be only about $198 per week whereas the $4.50 total cost per set per day would 11 December is the low point in the season. 12 Robert Nusholtz' pretrial affidavit indicates that he first contacted American Linen Supply, the subcontractee , and other linen suppliers for estimates at the end of February or early March 1981 Neither the Gener- al Counsel nor the Respondents adduced testimony of American Linen or any other company, however. 18 He later admitted on cross-examination that the linens do not nor. mally all wear out at the same time at the same rate 14 Neither Respondents nor the General Counsel sought to adduce records or other evidence concerning the expenditures for electricity, supplies, replacement linen costs, etc. Nor was any evidence adduced re. gardmg average washing machine investment and repair costs per year, month, or week over the life of a machine, 1 e, 17 years or more 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount to a weekly total cost of $1480.50 per 47 sets. Respondent Sands' average weekly gross income from all sources in 1980 was $8145. If Robert Nusholtz' con- clusionary testimony is truthful, an unusually high per- centage of total income was consumed by the costs of in- house linen maintenance, and an extraordinary high per- centage of that cost was due to nonlabor factors. How- ever, the General Counsel sought to adduce no rebutting evidence about the comparative costs. Additionally, the testimony of Robert Nusholtz reveals that the low point of Respondent Sands' "somewhat" seasonal sales occurs in December and that beginning in January, sales usually improve, but that 1981 revealed a steady decline from a December 1980 gross monthly income level of $33,56216 to a January 1982 gross monthly income level of $10,088.16 Thus Robert Nu- sholtz was faced in 1981 with a January gross income of $30,996, a February gross income of $29,592, and a March gross income of $25,066. His testimony therefore must be credited that at the time of the decision to engage the services of a linen supply company, he was faced with the beginnings of a downward trend in sales. However, there was no evidence that Robert Nusholtz foresaw the ultimate depths or that trend when he decid- ed to subcontract. In rebuttal, Bysiorek testified about her work level in January and February 1981, i.e., 4 days a week at 6 or 8 hours a day doing laundry for 47 rooms a day "give or take." There was no testimony, however, concerning what her prior work hours and prior workload was like, and no evidence concerning how many sets of linens she laundered prior to January or thereafter. Also, there was no evidence regarding the workload of the weekend laundress. Accordingly, I do not find a basis to discredit Robert Nusholtz' testimony that the need for a full-time laundress for a full workweek declined with the decline in income which, on its face, accords with common sense. Although Respondents could have reduced its costs by reducing the hours of the laundress, and neces- sarily would have reduced its costs by using less supplies and buying fewer replacement linens, etc., as a result of lower linen usage, it also would have experienced at least a comparative reduction in linen company usage, which, according to the generalized undocumented, suspicious, but uncontroverted testimony of Robert Nusholtz, was substantially lower in costs than in-house linen service costs. Robert Nusholtz testified that the layoff of Bysiorek was unrelated to her work performance as such because the decision to terminate the laundry operation was solely economically motivated. Respondents, however, opposed Bysiorek's attempt to obtain unemployment compensation by representing to the Michigan Employ- ment Security Commission that Bysiorek was terminated because her performance was so poor that Respondent Sands was necessarily induced "to seek relief with an in- 15 The total 1980 gross income was $423,555, with an average monthly income of $35,397. 16 The total 1981 gross income level was $246,708, with a monthly av- erage of $20,559 dependent contractor." 17 Furthermore, Respondents' personnel records concerning Bysiorek contain a memo- randum bearing the inscription: Protest any benefits paid to this employee. Employ- ee flagrantly neglected her duties to the point that employer had to seek relief with an independent laundry contractor. Had to lay off Employee Mgr. Donald Nusholtz 5/7/81 With respect to the termination of vacation pay, the amended complaint alleges that on April 1, Robert Nu- sholtz posted a sign at the motel which addressed the employees and stated that no accrued vacation pay would be given to employees during the course of nego- tiations with the Union. The evidence in the record es- tablishes that the April notice to employees posted by Vickstrom per Robert Nusholtz' order simply stated, "Until further notice, there will be no vacation pay." No evidence was adduced by the General Counsel to estab- lish that this notice was the Respondents' only communi- cation with employees concerning vacation pay or the suspension of vacation pay. Robert Nusholtz testified that the motivation for Respondents' cancellation of ac- crued vacation pay, although decided unilaterally, was purely economic and in no way retaliatory. He testified that as of April 1, "1 didn't have the money to pay vaca- tion pay." Respondent Sands' gross income for March 1981 was $25,066, compared to $33,5762 for December 1980, and the 1980 monthly average of $35,297. Robert Nusholtz testified without controversion that income had declined to the point where he forfeited his own pay- check in March. Thus the evidence indicates that the suspension of vacation pay coincided with the fourth straight month of falling revenues. At the same time sev- eral employees were laid off. No evidence was adduced on which I can conclude that the suspension of vacation pay or such announce- ment was, on April 1, premature in light of scheduled vacations. Concerning the decision to reclassify the desk clerks as supervisors as of May 1, 1981, Robert Nusholtz testified that he made that decision because he was spending only several hours a day at the motel and "there had to be somebody on the premises to make managerial decisions [and] since the desk clerk was in charge of the money and was for all practical purposes running the motel, they were just given that prerogative." There is no evi- dence that this was a new situation. The General Coun- sel and Respondents stipulated that after May 1, 1981, the desk clerks were invested with supervisory authority as defined in the Act. After a series of layoffs and other voluntary and invol- untary terminations prior to May 1, Respondent Sands employed after May I a remainder of three maids and 17 This is based on a report to that state agency which I infer from the circumstances herein authored and signed by Robert Nusholtz and deliv- ered to that agency I discredit Robert Nusholtz' evasive, patently disin- genuous testimony to the effect that he did not recall signing the docu- ment, or that it was not read by him. SANDS MOTEL one maintenance man in the bargaining unit. Thus in ad- dition to Robert Nusholtz and Henrietta Vickstrom, Re- spondents added four desk clerks to its supervisory staff with a result of six supervisors for four unit employees. That proportion is, of course, not as outrageous as it ap- pears at first impression because no four desk clerks are on duty at the same time, Vickstrom is not on duty 24 hours a day, and Robert Nusholtz is only present several hours a day. However, in any event, the ratio ultimately resulting appears to be at the least one supervisor for every unit employee, if not on occasion more, inasmuch as it is unlikely that all unit employees worked 24 hours a day. Other than Robert Nusholtz' generalized testimo- ny set forth above, no explanation was set forth for the business need for such a ratio. Finally, with respect to the change in check-cashing privileges, no explanation was given by Respondent Sands. 5. Bargaining about the effects After the certification of the Union as bargaining agent, two bargaining sessions occurred in May and June or July 1981 between Union Agent Jo Jacob and Re- spondent Sands' bargaining representative, Herb Gross- berg, a labor relations consultant. At the first meeting the Union submitted a written list of demands, including, inter alia, a request for reinstatement of employees, a res- toration of the status quo for specifically named items, including the laundry room, but none of which referred to the desk clerk classification or check-cashing privi- leges, and finally a proposed vacation pay schedule. According to the cryptic testimony of Jacob, at the first negotiation session she stated that the outside linen supply service was not operated "as expected," i.e., there was a shortage of linens at times. Jacob's testimony did not set for the context of details of that conversation, nor Grossberg's immediate response. Later, Jacob testified that there was no discussion about subcontracting. Jacob testified that she asked for the reinstatement of the em- ployees named in her demand, which included therein the laundress. Grossberg responded that Respondents would reinstate those employees "under no circum- stances," and stated that Bysiorek in particular was "too much trouble." With respect to the subject of the desk clerks, Jacob recalled vaguely that she made some "conversation" re- garding the reclassification of desk clerks and that Gross- berg said he would "get back" to her. She failed to testi- fy about the substance of this conversation. She recalled no discussion about the termination of check-cashing privileges, of which she was aware, as she was the other unilateral actions, on notification by the employees. The second session occurred in June or July 1981. When asked by counsel for the General Counsel whether there was any discussion "about the issue of the laundry service," she answered that Grossberg reiterated Re- spondents' intention of refusing to reinstate any employ- ee and was opposed to reinstating the status quo. I can only conclude from the uncontradicted but skele- tal testimony of Union Agent Jacob that Respondents re- fused to rescind its admitted unilateral action . I cannot conclude that the Union made any meaningful demands 139 to negotiate about the "effects" of those unilaterial ac- tions except insofar as the effect of the linen service sub- contract. In that respect the Union made only one demand, i.e., that the laundresses be reinstated . 18 That demand was refused . Thus there was a demand and re- fusal. After that refusal it does not appear that the Union had anything further to say about its demand, and I cannot conclude that it had made a meaningful demand to negotiate further on the subject. The one major significance of Jacob's entire testimony is her uncontradicted and therefore credited testimony that Grossberg, an admitted agent of Respondents, stated Respondents' position that it was opposed to Bysiorek's reinstatement because she was "too much trouble." This stated position is in accord with its representation to the Michigan Employment Security Commission, and con- tradicts Robert Nusholtz' testimony regarding the rea- sons for Bysiorek's termination and the reasons for the subcontracting of the laundry operation. B. Analysis and Conclusions 1. The 8(a)(1) allegations Respondents in their brief points to a vast array of gross interference that Respondent Sands did not engage in. Certainly an evaluation of the allegations of unlawful interference takes into account the context in which the conduct occurs. However, coercion may be inferred even though the conduct engaged in is not of blatant and starkly vindictive nature. When Vickstrom in early January interrogated em- ployees concerning their knowledge of union activities at the outset of union organizing efforts prior to any demand for recognition, she did so without any justifi- able basis, and without advising the employees why she was interrogating them, and without giving them assur- ances against reprisals. By impressing on the employees the futility of organizing efforts, Vickstrom revealed that her purpose was to discourage their efforts to obtain union representation. Such conduct by an admitted su- pervisor, the housekeeper, tends to interfere with the em- ployees' rights, freely and without inhibition to engage in union activities . Cf. Century Moving & Storage, 251 NLRB 671 (1980), enfd. in pertinent part 683 F.2d 1087 (7th Cir. 1982). The fact that Vickstrom was Bysiorek's aunt and relat- ed by marriage to Kowalczik does not detract from the fact that she was the supervisor of these employees as well as the others to whom she was not related and, as such, held authority over them and spoke, by virtue of her agency status, as Respondents ' spokesperson. Noth- ing in the circumstances of the interrogation suggests that she was voicing to the employees merely her own personal opinion. This conclusion is enhanced when she forcefully and unqualifiedly told the employees that Re- spondent Sands would not allow its employees to have union representation. This statement dispelled any notion that she was acting out of personal curiosity or that she 18 it is not clear whether the Union suggested that Bysiorek be rein- stated to any other position. 140 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD was voicing personal views. Moreover, that statement itself manifested an inherent tendency to frustrate further employee engagement in protected activities by implying to the employees that Respondent Sands would take ac- tions lawful or unlawful to frustrate and make futile such efforts. Therefore I find that in early January 1981 Vick- strom engaged in coercive conduct in violation of Sec- tion 8(a)(1) of the Act by interrogating employees con- cerning employees' union activities and by telling them that Respondent Sands would not allow them to have union representation. I discredit Vickstrom's testimony that she acted inde- pendently and without consultation with Manager Robert Nusholtz regarding the union organizing efforts. Clearly, her conduct was in accord with that of Robert Nusholtz himself. Conversely, the fact that Robert Nu- sholtz systematically interrogated employees about the Union as he visited them throughout the motel enhanced Vickstrom's image as an authoritative spokesperson as she engaged in similar conduct. For the same reasons, I fmd coercive and violative of Section 8(a)(1) Manager Robert Nusholtz' January and February 1981 interroga- tions of employees' knowledge concerning their own and other employees' union activities, and the origin of the union organizing campaign . No assurances against repris- als were afforded to the interrogated employees and no demonstrated justifiable reason existed at that time for such interrogation nor was any such explanation given to the employees. Indeed, it is inconceivable that any reason existed for the need to know the source and ori- gins of the union effort. Such questioning implicitly sug- gests to the employee that Respondents was attempting to ascertain the identity of responsible employees for no other reasons bit retribution and/or the frustration of further such efforts. The natural tendency of such con- duct palpably tended to interfere with employees' par- ticipation in or support of union activities. I further conclude that because Vickstrom's telephone interrogation of the red-headed maid was concurrent with a systematic effort to ascertain the identity of em- ployee union organizers that such conduct was also vio- lative of Section 8(a)(1) of the Act. Regarding the conduct of Respondents' manager and Respondent Sands' agent Donald Nusholtz at the em- ployee meeting prior to the election, I conclude that by such conduct Respondent Sands interrogated employees concerning their reasons for seeking union representation and solicited employee complaints and grievances con- cerning working conditions and implied that Respond- ents would remedy those grievances and complaints to discourage the employees from designating the Union as bargaining agent. By such conduct, I conclude that Re- spondent Sands violated Section 8(a)(1) of the Act. Montgomery Ward & Co., 225 NLRB 112, 118 (1976), and cases cited therein. I further conclude that Donald Nusholtz' threat at the aforesaid employee meeting to "shut down the doors" if the employees obtained union representation constituted a veiled threat inasmuch as there was no factual basis to support the implied prediction that the Union would ada- mantly demand economic concessions that would de- stroy Respondent Sands' profitability. Cf. Jimmy-Richard Co.; 210 NLRB 802, 804 (1974), enfd. 527 F.2d 803 (D.C. Cir. 1975); Marathon Letourneau Co., 208 NLRB 213, 222-223 (1974). The complaint alleges that Respondent Sands placed restrictions on employees to prevent them from speaking to a "known adherent" of the Union by the institution of a new rule which restricted the movements and conduct of employees to prevent conversations with laundress, i.e., Sharon Bysiorek. I conclude that on the basis of the foregoing conduct found violative of the Act, Respondents were adverse to the unionization of their employees and sought to dis- courage such activity. I also conclude that it also evi- dences a desire to ascertain the identity of employee union advocates. The only purpose for such objective is retribution. Bysiorek's adherence to the union cause became manifested by her fuctioning as the union ob- server at the election. In view of the absence of any jus- tifiable business reason for deviating from past practice and 'putting restrictions on employees calculated to pre- vent them from coversing with Bysiorek even at times when it did not affect the performance of work func- tions, I conclude that the purpose of such restriction was to punish Bysiorek because she had openly engaged in union activities and to discourage other employees from extending further support to the Union and thus erode the Union's basis of support in future contract negotia- tions. I find that by such conduct Respondents violated Section 8(a)(1) of the Act.19 With respect to the allegation of 8(a)(1) conduct con- cerning the posting of the notice terminating vacation pay, the General Counsel did not establish that the notice was phrased as alleged in the complaint or worded to suggest to employees that they were being pe- nalized for selecting the Union as bargaining agent. Al- though the timing of posting is suspicious, the facts indi- cate that Respondent Sands eliminated vacation pay be- cause it was faced with a substantial loss of business for 4 successive months. The fact that employees were being laid off at this time reinforced Respondent Sands' eco- nomic defense. 2 ° The General Counsel did not establish that the em- ployees were given no explanation for the suspension of vacation pay or that Respondents' posting was premature in light of vacation schedules. Therefore, I cannot con- clude that the posting of the notice, concurrent with other unlawful conduct, but also concurrent with an eco- nomic downturn necessarily evident to the employees, was calculated to give the employees the impression that they were being penalized for union activities. 1 9 The complaint did not allege such conduct to be violative of Sec. 8(aX5) or (3) 20 The complaint alleges the suspension of vacation pay to be an 8(aX3) and (5) violation. I conclude that the General Counsel has not es- tablished an 8(a)(3) violation. The suspension of vacation pay was admit- tedly unilateral. See further analysis below. SANDS MOTEL 2. The 8(a)(3) allegations a. Cessation of laundry operations I have concluded above that Respondent Sands was possessed of union animus and that it sought to punish and isolate from the other employees Sharon Bysiorek, who was a known union adherent and who in fact was the chief union protagonist. Respondents' proffered rea- sons for the termination are shifting and contradictory. Before this Agency, Respondents contend Bysiorek was terminated as the result of a dispassionate economic deci- sion to subtract its laundry and linen service and that therefore her merit as a worker is unrelated to her termi- nation. To an agency of the State of Michigan, and in its personnel files, Respondents represent Bysiorek as a fla- grantly negligent employee whose poor performance was the cause of the subcontracting. To the Union, during negotiations, Bysiorek was represented as a source of trouble and an employee it would reinstate "under no circumstances." Respondent Sands contends herein that the termination of the laundry operation was the result of an economical- ly motivated decision. That contention is undermined by the foregoing contradictions, and by Respondent Sands' adamant refusal to consider reinstatement for Bysiorek under any circumstances. The hostility to Bysiorek can only be accounted for by her union advocacy, of which under the full context of this case, I must infer that Re- spondent Sands had full awareness.21 Respondent Sands premises its economic defense on the conclusionary, gen- eralized, and undocumented testimony of Donald Nu- sholtz. Having reviewed his entire testimony, I find him to be a most untrustworthy witness. His demeanor at times was uncertain, and at times calculating and often unresponsive. His testimony is replete with evasions, in- consistencies, and contradictions. I therefore find his un- supported oral testimony about the comparative costs of in-house laundry operation and outside linen supply serv- ice to be of probative value and I find the economic de- fense to be pretextual. Furthermore, even if Robert Nu- sholtz' testimony as to the enormous difference in costs were creditable, there is no adequate cogent explanation why Respondent Sands tolerated those differences only until the Union was designated as bargaining agent through the efforts of the chief laundress. The 1981 eco- nomic downward trend was only in its incipient stages, but the laundry termination precisely coincided with Re- spondent Sands' unlawful efforts to isolate Bysiorek the chief laundress. However, assuming arguendo that evidence establishes the existence of economic motivation as well as an an- tiunion motivation, the question arises whether the Gen- eral Counsel has sustained the burden of proof. In Wright Line, 251 NLRB 1083, 1089 (1980), the Board in reevaluating the burden of proof in dual-moti- 21 Knowledge of union activity can be inferred from the circum- stances, e g., prevalence of rumors in the plant , size of unit, timing of the discharge, and pretextual nature of the reason proffered for the discharge Wiese Plow Welding Co., 123 NLRB 616 (1969); Famet, Inc., 202 NLRB 409 (1973); Tayko Industries, 214 NLRB 84, 99 (1974), Huntington Hospi- tal, 229 NLRB 253 (1977), Speed-O-Lith Offset Co., 241 NLRB 928 (1979); Baja's Place, Inc, 263 NLRB 881 (1982). 141 vation cases had recently explicated and announced the following causation test for cases alleging violations of Section 8(a)(3) or (1) turning on employer motivation: First, [the Board] shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected activity. I conclude that the General Counsel has adduced suffi- cient evidence in the nature of antiunion animus , shifting and contradictory proffered reasons for the termination of Bysiorek, and the timing of adverse action to support an inference that Respondent 's desire to punish Bysiorek for her union activities and to erode support for the Union was at least a motivating factor. I conclude that the General Counsel had sustained the burden of estab- lishing a prima facie case of discriminatory termination, and subcontracting, and that Respondent had failed to adduce sufficient cogent and probative evidence that By- siorek would have been terminated and the laundry work subcontracted regardless of the existence of an inferred unlawful motivation . I therefore conclude that the Gen- eral Counsel has sustained the burden of proof and find that Respondent Sands violated Section 8(a)(1) and (3) of the Act by subcontracting unit work to retaliate against the chief employee union adherent and to erode employ- ee support of the designated bargaining agent . I further conclude that the termination of the weekend laundress was the necessary result of the discriminatory subcon- tracting, and that therefore the termination of Alice McKenzie was violative of Section 8(a)(1) and (3) of the Act. b. Elimination of work benefit With respect to the elimination of check-cashing privi- leges, such conduct, like the other unilateral changes, came on the heels of the Union's designation as bargain- ning agent and was instituted for no proffered business reason. Accordingly, I conclude that in light of Re- spondent's other unfair labor practices, such conduct was discriminatorily motivated and was violative of Section 8(a)(1) and (3) of the Act. c. Reclassification of desk clerk position With respect to the reclassification of desk clerks to supervisory positions , this conduct, coupled with the subcontracting of the laundry operation and coinciding with economic and other layoffs , effectuated a decima- tion of the unit. The evidence discloses no justifiable reason for such conduct . I conclude that the General Counsel has proven a prima facie case of discriminatory intent by establishing union animus, and timing, and that Respondent was obliged to demonstrate economic justifi- cation for such conduct and that it failed to do so. Therefore I find that by such conduct Respondent violat- ed Section 8(a)(1) and (3) of the Act. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, I conclude that under the circumstances of this case, by its unilateral conduct, Respondent has en- gaged in conduct which is inherently destructive of em- ployee interests, e.g., subcontracting of unit work and re- arrangement of unit employees , suspension of employee privileges immediately following the employees' designa- tion of the Union as bargaining agent, and therefore that Respondent was obliged to demonstrate that such con- duct was economically motivated. Great Dane Trailers, 388 U.S. 26, 33-34 (1967); Smyth Mfg. Co., 247 NLRB 1139, 1169-1171 (1980). Respondent having failed to adduce cogent probative evidence of justifiable business reasons, I conclude that the General Counsel has estab- lished that Respondent violated Section 8 (a)(3) of the Act by the above unilateral conduct.22 3. The 8(a)(5) allegations The 8(a)(5) allegations of the complaint are based on the theory of unilateral changes of terms and conditions of employment without having notified and bargained with the Union. Section 8(d) of the Act provides that "to bargain col- lectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment. . . ." Although the parties are free to bargain about any lawful subject, the obligation does not extend to all subjects, nor to all areas of interest or con- cern to the parties, nor to all matters on which agree- ment may directly or indirectly effectuate industrial peace. The statutory language imposing the bargaining duty has been defined and understood to limit the range of obligatory bargaining to subjects of "wages, hours, and other terms and conditions of employment." NLRB v. Borg-Warner Corp., 365 U.S. 342, 349 (1958). The limi- tation neccessitates that "only issues that settle an aspect of the relationship between the employer and the em- ployees" are to be mandated as topics of bargaining. Allied Chemical Workers Local I v. Pittsburgh Glass Co., 404 U.S. 157, 178 (1971). Section 8(a)(5) and (1) of the Act obliges an employer to notify and consult with the designated exclusive bar- gaining agent concerning changes in wages, hours, and other terms and conditions of employment NLRB v. Katz, 369 U.S. 736 (1962). On notice of such proposed change, the employees' bargaining agent must act with due diligence in requesting bargaining , otherwise it may be deemed to have waived its right to bargaining. City Hospital of East Liverpool, Ohio, 234 NLRB 58 (1978); Citizens Bank of Willmar, 245 NLRB 196 (1979). Ac- cordingly, it is essential to an 8(a)(5) theory of violation that the managerial decisions involved in this case con- cerned mandatory bargaining subjects. Respondent Sands takes the position that the unilateral actions that it had engaged in were not mandatory bar- gaining subjects, but were rather exercises of managerial prerogative in running a business to which the Union has ss I exclude from their conclusion this conclusion the cessation of ac- crued vacation pay for the reasons discussed above. no right to participate as a "partner." Respondent relies on First National Corp. v. NLRB, 452 U.S. 666 (1981). The Supreme Court, in deciding First National Corp., concluded that an employer's decision to shut down part of its business solely for economic reasons was not a mandatory subject of bargaining. It did so after it had concluded that the harm that might be done to an em- ployer's need to operate freely outweighed the benefits that might occur from a union's participation in the for- mulation of that decision. In the discussion of the issue in that case, the Court limited the nature of mandatory bar- gaining subjects and concluded that to be such, the sub- ject must be one which is "amenable to resolution through the bargaining process." The Court observed (452 U.S. at 678-679): Management must be free from the constraints of the bargaining process to the extent essential for the running of a profitable business. It also must have some degree of certainty beforehand about when it may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice. Congress did not explicitly state what issues of mutual concern to union and management it intended to exclude from mandatory bargaining. Nonetheless, in view of an employer's need for un- encumbered decision making, bargaining over man- agement decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, out- weighs the burden placed on the conduct of the business. The Court then construed the decision in Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), as having implicity involved the same analysis. In Fibreboard, it was held that an employer was obliged to bargain about the subcontracting of unit work. In First National Corp., the Court observed that in Fibre- board the subject matter, i.e., a desire to reduce labor costs is a matter "peculiarly suitable for resolution within the collective-bargaining framework." The Court distin- guished the facts in First National Corp. from Fibreboard and pointedly instructed about the limitations of its hold- ing, i.e., the employer therein had no intention to replace employees or to relocate the operation, the employer's purpose was to reduce economic losses, the economic losses were attributable to factors over which the union had no control, and the union was not designated as bar- gaining agent until after the employer's economic adver- sities arose. The Court finally equated the partial closing of business to a "significant change in the employer's op- erations, a change not unlike opening a new line of busi- ness or going out of business entirely." In a footnote caveat, the Court further instructed that it was not inti- mating its view concerning other types of managerial de- cisions including, in part, work relocation, citing, inter alia, Weltronic Co. v. NLRB, 419 F.2d 1120 (6th Cir. 1969), wherein such decision was held to be a mandatory bargaining subject. The Court stated that these other SANDS MOTEL types of managerial decisions "are to be considered on their particular facts." 452 U.S. at 686. Prior to the aforesaid decision by the Supreme Court in First National Corp., it could be argued that the law was well settled on the mandatory bargaining nature of a decision to relocate unit work, e.g., Weltronic, supra. In view of the Court's own self-expressed limitations of the First National Corp., decision, I conclude that Fibreboard and Weltronic and their progency remain controlling. However, if the Court intended to apply a balancing test with respect to all cases of unit work relocation deci- sions, that test applied to the fact herein led me to con- clude that Respondent's decision was a mandatory sub- ject of bargaining. The facts are clearly distinguishable from First National Corp. The prime issue herein is the cost of labor, a factor manifestly within the control of the Union. Respondents herein was not changing the scope or direction of his enterprise. The linen service re- mained essential to its business . The work of the desk clerk remained, but was removed from the unit by un- necessary assignment of supervisory authority to the desk clerks. The elimination of bargaining unit work clearly impacted working conditions as did, to a lesser extent, the suspension of check-cashing privileges. Re- spondents' economic adversity of 1981 was only in its be- ginning stages. There is no evidence of urgency to any of the unilateral actions, and they were clearly amenable to negotiations. Moreover, as I have concluded above, the unilateral actions were, unlike First National Corp., discriminatory motivated and not shown to have been ef- fectuated for economic reasons except the cessation of vacation pay, and all were coupled with other unfair labor practices. The Court carefully distinguished cases involving other unfair labor practices, citing, 452 U.S. at 684, inter alia, Smyth Mfg., supra, which encompassed discriminatory, unilateral subcontracting. Accordingly, I conclude that the relocation of unit work effectuated by subcontracting and job reclassifica- tion and the suspension of accrued vacation pay and check-cashing privileges constituted mandatory subjects of bargaining, and that by failing to notify and provide the Union with an opportunity to bargain over these matters, Respondents violated Section 8(a)(5) and (1) of the Act. In view of the factual finding herein, I conclude that the evidence is insufficient to establish that Respondents refused to bargain about the effects of its unilateral con- duct. CONCLUSIONS OF LAW 1. Respondents constitute a joint employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, a labor organization withing the mean- ing of Section 2(5) of the Act, had at all times since Feb- ruary 26, 1981, been the representative for purposes of collective bargaining of a majority of the employees in the appropriate unit consisting of all full-time and regular part-time employees, including maids, maintenance per- sons, laundry employees, clerks and desk clerks, em- ployed by Respondent Sands at its facility located at 143 9430 Michigan Avenue, Detroit, Michigan, but excluding guards as defined by the Act. 3. Respondent Sands has engaged in unfair labor prac- tices, as set forth above in the section of this decision en- titled "Analysis and Conclusions," which have a substan- tial impact on interstate commerce. THE REMEDY It having been found that Respondents engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that Re- spondents cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Having found that the termination of laundresses Sharon Bysiorek and Alice McKenzie were the result of the discriminatory and unilateral subcontracting of linen service and laundry operations , I shall recommend that Respondent Sands be ordered to reinstate its linen serv- ice and laundry operation and reinstate those laundresses to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earn- ings they may have suffered by reason of the discrimina- tion against them. Any backpay or other moneys found due herein shall be computed in accordance with the for- mula set forth in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).23 It shall also be recommended that Respondent Sands remove from its records any reference to the work per- formance of Sharon Bysiorek as the cause of the subcon- tracting of linen service and laundry operation, and to notify Bysiorek in writing that this has been done, and that her unlawful termination will not be used as a basis for future personnel actions against her. Having also found that Respondent Sands discrimina- torily and unilaterally removed the job classification of desk clerk from the unit, and terminated employee check-cashing privileges, and unilaterally suspended ac- crued vacation pay, I shall recommend that Respondent Sands be ordered to rescind the assignment of superviso- ry duties to the desk clerks and reinstate the classifica- tion of desk clerks to the bargaining unit, and restore to employees their previously enjoyed benefits of accrued vacation pay and check-cashing privileges during work- time; and to pay bargaining unit employees accrued va- cation pay due them . In making recommendations of the status quo ante, I am cognizant of the downturn of Re- spondent Sands' sale through the first month of 1982. However, Respondents did not argue, nor was evidence adduced, that such remedy , which is the normal remedy for discriminatory conduct, would endanger Respondent Sands' continued viability . Accordingly, I conclude that such remedy is appropriate . Cf. Smyth Mfg. Co., supra; Beacon Industries, supra. It will be further recommended that Respondent Sands be ordered to bargain in good faith with the Union con- cerning the wages, hours, and terms and conditions of employment of unit employees, including subcontracting 23 See generally Ism Plumbing Co., 138 NLRB 716 (1962). 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of unit work, supervisory reclassification of unit employ- ees, and suspension of accrued vacation pay and check- cashing privileges, and to post an appropriate notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 ORDER The Respondent, Harold Weine, David Weine, Kate Weine, Ruth Weine, Morris S. Brent, Phillip Nusholtz, Gertrude Nusholtz, Sal Waldman, a co-partnership d/b/a Sands Motel, Detroit, Michigan, their partners, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating its employees concerning their own and other employees' union activities, sympa- thies, and desires. (b) Threatening its employees with closure of its oper- ations if they select a union as their bargaining represent- ative. (c) Soliciting and impliedly promising to remedy em- ployees' grievances and complaints concerning terms and conditions of employment in order to induce employees to reject union representation. (d) Coercively implying to its employees the futility of selecting a union as a collective-bargaining representative by telling its employees it will not allow them to have a union. (e) Restricting the movement and conversation of em- ployees for the purpose of discouraging them from com- municating with employee union adherents in the ab- sence of justifiable business reasons. (f) Discriminating against employees in any way in- cluding subcontracting bargaining unit work, removing any job classification from the unit, or rescinding any work benefit in retaliation for its employees' support of and activities on behalf of the Union or any other labor organization or to erode its employees' support of their designated bargaining agent. (g) Failing and refusing to bargain with the Union as the exclusive representative of employees in the appro- priate bargaining unit concerning wages, hours, and other terms and conditions of employment, including the subcontracting of bargaining unit work, the removal of job classification from the bargaining unit, and the termi- nation of work benefits. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Reinstate its laundry facility as it existed prior to March 13, 1981, at its Michigan Avenue facility in De- troit, Michigan. 24 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. (b) Offer laundry employees Sharon Bysiorek and Alice McKenzie immediate and full reinstatement to their former jobs without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any losses they may have suffered as a result of the discriminatory and unilateral termination of laundry operations in the manner set forth above in the remedy section of the decision. (c) Remove from its records any reference to the work performance of Sharon Bysiorek as the cause of the sub- contracting of its linen service and laundry operations and notify Sharon Bysiorek in writing that this has been done, and that her unlawful termination will not be used as a basis for future personnel actions against her. (d) Reinstate the job classification of desk clerk to the appropriate bargaining unit and rescind the assignment to the desk clerks of supervisory duties as defined in the Act. (e) Restore to its employees their previously enjoyed benefits of accrued vacation pay and check-cashing privi- leges during working time; and pay to bargaining unit employees accrued vacation pay due them in the manner as set forth in the remedy section of the decision. (f) Rescind the restrictions imposed on employees, which it instituted for the purpose of discouraging them from communicating with employee adherents of the Union, including restrictions placed on communications with laundress Sharon Bysiorek, in the absence of justifi- able business reasons. (g) Bargain in good faith with the Union as the exclu- sive representative of employees in the appropriate bar- gaining unit, on request, concerning wages, hours, and other terms and conditions of employment, including any decision to subcontract bargaining unit work , the deci- sion to remove job classifications from the bargaining unit, and the decision to terminate work benefits of em- ployees. (h) 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 to analyze the amount of backpay due under the terms of this Order. (i) Post at its facility in Detroit, Michigan, copies of the attached notice marked "Appendix."2 s Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive 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. 25 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 " SANDS MOTEL 145 (j) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that the complaint be dis- days from the date of this Order what steps the Re- missed concerning any alleged violations of the Act not spondent has taken to comply. found herein.