Anaheim Town And Country Inn

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D & D Development Co., Inc. d/b/a Anaheim Town and Country Inn and Hotel Employees and Res- taurant Employees Union, Local 681, AFL- CIO, Long Beach and Orange County , Califor- nia. Case 21-CA-24273-2 20 November 1986 DECISION AND ORDER amended charge were filed respectively on November 5 and December 11, 1985, by Hotel Employees and Res- taurant Employees Union, Local 681, AFL-CIO, Long Beach and Orange County, California (the Union). The complaint, which issued on December 24, 1985 , alleges that D & D Development Co., Inc. d/b/a Anaheim Town and Country Inn (Respondent or the Inn) violated Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act. BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 23 June 1986 Administrative Law Judge Richard D. Taplitz issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in reply to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951) We have carefully examined the record and find no basis for re- versing the findings In adopting the judge's finding that the Union did not represent an un- coerced majority at the time recognition was granted and the contract was executed, we find it unnecessary to pass on the judge's finding that General Manager Tihanyi's discussions with Union Business Agent Wilson concerning benefits constituted "negotiations " Further, we dis- avow the ,fudge's reliance on Head Housekeeper Barbosa's hearsay testi- mony that the employees told her they signed authorization cards "be- cause the manager was with the man from the Union." Lana Hill Parke, Esq., for the General Counsel. Kenneth R. Ballard and Stephen R. Lueke (Jackson, Lewis, Schnitzler & Krupman), of Los Angeles, Califor- nia, for Respondent.' Richard J. Cantrell, Esq. (Cantrell, Green, Pekich & Zaks), of Long Beach, California, for the Union. DECISION Issues The primary issues are: 1. Whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to honor a collective-bargain- ing agreement that was executed by its manager Otto C. Tihanyi and the Union. That issue turns in large part on whether Respondent has established that Otto Tihanyi rendered such assistance to the Union in obtaining au- thorization cards that the normal presumption of majori- ty status on behalf of the Union, which flows from the contract, has been rebutted. 2. Whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging Monique Tihanyi. That issue turns in large measure on whether Monique Ti- hanyi, who was Respondent's bookkeeper-assistant man- ager and the wife of Manager Otto Tihanyi, was an em- ployee within the meaning of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witneses, to argue orally, and to file briefs. Excel- lent briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Respond- ent. On the entire record2 of the case and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a California corporation, operates a hotel that provides lodging for guests in Anaheim, California. Respondent annually derives gross revenues in excess of $500,000 and annually purchases and receives goods valued in excess of $50,000 directly from suppliers locat- ed outside of California. It is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge. This case was tried in Los Angeles, California, on Febru- ary 19, 20, and 21, and March 4, 1986. The charge and i On April 30, 1986, Stephen Lueke of Ballard & Rosenberg filed a notice of appearance on behalf of Respondent 2 Respondent's unopposed motion to correct the transcript of the record is granted The motion has been added to Respondent's exhibits as R Exh. 39. The quality of the transcript is extremely poor, but in the absence of a further motion to correct it, no additional corrective action will be taken. 282 NLRB No. 34 ANAHEIM TOWN & COUNTRY INN 225 II. ALLEGED UNFAIR LABQR PRACTICES A. Alleged Refusal to Bargain 1. Background D & D Development Co,, Inc. is in the business of constructing and operating hotels. One of the hotels that it owns is the 122-room Anaheim Town & Country Inn. Prior to July 31, 1985, however, D & D Development contracted out the actual management of the Inn to a property management service called Pebble Beach Man- agement Company (Pebble Beach). On July 30, 1984, Pebble Beach hired Otto C. Tihanyi Sr. (0. Tihanyi) as general manager for the Inn. About the same date Moni- que G. Tihanyi (M. Tihanyi), 0. Tihanyi's wife, was hired by either O. Tihanyi or Pebble Beach as a book- keeper or accountant-assistant manager. O. Tihanyi was hired by a Pebble Beach supervisor named Wayne Rob- erts with the approval of D & D Development. Though he was hired by Pebble Beach as the agent of D & D Development Co., Inc., he was employed by D & D De- volopment Co. Inc. When Pebble Beach lost its manage- ment contract on July 31, 1985, O. and M. Tihanyi re- mained in the employment of D & D Devolopment and retained the same powers and duties they previously had. As general manager of the Inn, O^ Tihanyi was responsi- ble for its total 'operation. Ile had and exercised broad authority with regard to hiring and firing employees as well as to all other aspects of the Inn's operation and was a supervisor within the meaning of the Act. There was a great deal, of conflicting testimony with regard to M. Tihanyi's role at the Inn. The General Counsel con- tends that she was an employee within the meaning of the Act while Respondent maintains that she was not an employee entitled to protection under the Act. That issue is resolved below in the section involving M. Ti- hanyi's discharge. The immediate issue is whether Re- spondent violated Section 8(a)(5) and (1) of the Act by repudiating a collective-bargaining agreement that O. Ti- hanyi signed with the Union. 2. Sequence of events a. 0. Tihanyi contacts the Union About April 1, 1985, O. Tihanyi, the general manager of the Inn, called Don Wilson, a business agent and di- rector of organization of the Union, and spoke to him on the telephone.3 O. Tihanyi told Wilson that he was inter- ested in medical benefits and general benefits for the em- ployees at the Inn. They arranged a meeting and a few days later ` O.' Tihanyi went to the Orange County union office and spoke to Wilson. Wilson explained to O. Ti- hanyi some of the medical programs, coverages, and costs of coverage. O. Tihanyi said that he was research- ing medical,and dental benefits, that he had talked to other unions and insurance companies, and that he wanted to see what the Union could provide the employ- 1 O. Tthanyt made the initial telephone call but Wilson was not in, so he left a message. Later that day Wilson returned his call ees. Wilson explained the Union's program and O. Ti- hanyi said that he would be back in touch with him.4 On June 13, 1985, Pebble Beach sent a memo to all its property managers and property supervisors. A copy of that letter was sent to Lynda Poggenpohl who replaced Wayne Roberts as Pebble Beach's property supervisor for the Inn about November 1984. The memorandum stated that all contracts had to be authorized by the home office and they should all be sent to the home office for signature. O. Tihanyi testified that he never saw that memorandum. Poggenpohl averred that she spoke to O. Tihanyi about the memorandum and that he not only expressed familiarity with it but that he saw her copy it. As between Poggenpohl and O. Tihanyi, I unhe- sitatingly credit Poggenpohl. O. Tihanyi's demeanor as he testified was fully consistent with the substance of his testimony. Both led to the conclusion that he was totally unworthy of belief. In sworn testimony at an unemploy- ment insurance hearing he averred that he did not call the Union at all, testifying, "I did not make the call be- cause I didn't get in touch with the union through the phone at all. I just went to the union to see them when I signed. I had no reason to be with the union, in tele- phone contact or whatever." At the trial in the instant case he openly acknowledged that the first contact with the Union was through his telephone call to the Union. He also acknowledged that he went to the union office on two separate occasions and that it was only on the second occasion that he signed the contract. His efforts to reconcile his testimony with the testimony of the un- employment insurance hearing was so unpersuasive that it further undermined his credibility. In general his testi- mony was replete with contradictions and unbelievable assertions, and his demeanor during testimony made it difficult to believe him. In sum I am unprepared to credit anything that O. Tihanyi testified to unless it is support- ed by independent evidence. Poggenpohl's conversation with O. Tihanyi was during the first week in July 1985. At that time they dis- cussed the June 13, 1985 memo and Poggenpohl told O. Tihanyi that Pebble Beach was not going to be managing the Inn much longer and that all agreements had to be discussed with Lamont Smith who was in contact with the owners. In July 1985, sometime after Poggenpohl's conversa- tion with O. Tihanyi, O. Tihanyi spoke to Ligia Barbosa, the head housekeeper at the Inn.5 O. Tihanyi told Bar- bosa that there was going to be a different management company for the hotel because Pebble Beach would no longer be there. He said that he was going to call the Union because the girls needed a union. O. Tihanyi also told Barbosa that the new management people were going to be worse than Pebble Beach and the girls needed to have someone to protect them. ' These findings are based on the credited testimony of Wilson. 0. Ti- hanyt's testimony was in substantial agreement with that of Wilson. When 0. Tihanyi's testimony differs from that of Wilson, I credit Wilson and discredit G. Tihanyi As is set forth in more detail below, I believe that 0. Tihanyt was a totally unreliable witness S The parties agree and I find that Barbosa was a supervisor within the meaning of the Act. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the last part of July, O. Tihanyi again called Don Wilson, the Union's business agent -and director of ,organization. Wilson had previously left messages asking 0. Tihanyi to call. O. Tihanyi told Wilson that he was impressed with the union benefits and he asked how to go about being Union. Wilson said that if O. Tihanyi was interested in the benefits as they were, Wilson would be back in touch with him and that he had to seek authori- zation of the Inn's, employees to represent them. O. Ti- hanyi asked what he should do and Wilson said that O. Tihanyi should do nothing and that the Union would take care of the authorizations. Wilson also said that he would put a business agent in the hotel to talk to the em- ployees and see if they could get representation. During this conversation O. Tihanyi told Wilson there were 27 or 28 employees and Wilson told ' O. Tihanyi that Ti- hanyi could be covered by the union insurance as an ex- ecutive.6 Sometime after his conversation with O. Tihanyi, Wilson told union organizer Carlos Proa to check in at the Inn and organize the employees. Though Proa had the title of union organizer, he had never organized a hotel previously. Apparently his duties related to enforc- ing contracts rather than organizing. b. Proa obtains authorization cards Proa checked in as a guest 'at the Inn and on Monday, August 5, 1985, he met with O. Tihanyi, who took him to the housekeeping room where they met Sandra De Lara, one of the housekeepers. O. Tihanyi told De Lara that Proa was from the Union. O. Tihanyi said, "Go and tell all the girls and gather them up because this man wants to talk to you. And he has good benefits for you." De Lara then went throughout the Inn calling all the maids to the housekeeping room. She told them that the manager had someone who wanted to talk to them. At the time that they were called, the maids were working. About 5 minutes later all the maids gathered in the housekeeping room. By then O. Tihanyi had left. Proa told them the benefits they would have if they joined the Union. He mentioned a medical card, paid holidays, paid vacations, and 8 hours' pay if they worked 4 hours. Seven or eight maids were present. He told them "that the ones in the office will also enter in the Union because the manager was in agreement with it." All the maids signed the cards. ' There was some question as to the date and hour at which the meeting occurred, as Proa apparently met with employees on both Monday, August 5, and on the following Monday, August 12. De Lara credibly testified that cards were signed at the meeting she testified to. As is set forth in more detail below, O. Tihanyi signed the union contract on August 8, 1985, on the basis of author- ization cards that had been signed previously. No cards were signed at the second meeting. It thus appears that De Lara was testifying about the first meeting that Proa had with the maids as the second meeting occurred after cards had been signed and the Union had been recog- 6 These findings are based on the credited testimony of Wilson. To the extent that 0 Tihanyi's testimony differs from that of Wilson, I credit Wilson. nized. De Lara placed the meeting at 12:30 p.m. that day and other witnesses placed it in the morning. Though the time was not critical, I believe that De Lara's testimony concerning what was said by O. Tihanyi and Proa was fully credible. The above findings are based on that testi- mony. O. Tihanyi in his testimony acknowledged that he took Proa to the housekeeping room. He testified that at that time he did not know who Proa was and he as- sumed Proa was a guest who needed something from the housekeeping department. He denied that he did any- thing other than lead Proa to the door of the housekeep- ing room. As discussed above I am unable to give any credence to O. Tihanyi's testimony. Proa in his testimo- ny flatly denied that he saw, O. Tihanyi at all during that visit to the .Inn. He averred that he received directions to the housekeeping room from someone he thought was a gardener but that he did not see O. Tihanyi' until his second visit to the Inn when he recognized him because he had been told what he looked like. Proa testified that he, simply told the employees about' union benefits and solicited union authorization cards. I do not believe that Proa was a credible witness. His testimony was vague; he denied things that even O. Tihanyi admitted (that Ti- hanyi showed him the way to the housekeeping room); he denied'matters that he most likely would have known (he averred that until the time of the trial he did not know that a contract had been signed);- and his testimoni- al demeanor was such as to cast doubt on his veracity. De Lara was a fully credible witness and I credit her tes- timony when it differs from that of O. Tihanyi and Proa.7 After the meeting De Lara went to the first floor and met with O. Tihanyi. He asked her if they had all signed cards and she said that they did. O. Tihanyi said that it was well done because there were many, good benefits for everyone. From the meeting in the housekeeping room, Proa went to the Inn's office where he- spoke to M. Tihanyi. She was the bookkeeper-assistant manager, and as found below in the section of this decision dealing with her dis- charge, she was a supervisor within the meaning of the Act. Proa outlined the benefits dealing with pay scale, hospitalization, and sick time. He solicited and obtained a union authorization card from her. During that conversa- tion she told Proa that she was the accountant and assist- ant manager. Proa also solicited and obtained authorization cards from Front Desk Manager Michele 'Freidin and Shift Su- pervisor Brian Keyes. Both were supervisors within the meaning of the Act. Michele Freidin is the daughter of O. and M. Tihanyi. M. Tihanyi acknowledged in her testimony that Michele did scheduling and was responsible for the front desk. Rhonda Barton credibly testified that Michele Freidin ' Bertha Alica Contreras also testified about the August 5, 1985 meet- ing in the housekeeping room. However, her testimony was so confused as to be meaningless. At one point she testified that Proa did not say any- thing about the office, at another point she appeared to be testifying that the office told her to sign and yet at another point she appeared to be testifying that the office told her not to sign. As her testimony was very confused, and as De Lara's testimony was straightforward and credible, I credit De Lara when their testimony is in conflict. ANAHEIM TOWN & COUNTRY INN 227 was the only person at the Inn who interviewed her and that Michele Freidin hired her. She also testified that Freidin filled out the schedule and posted it weekly and that if there were problems at the front desk, they were referred to Freidin. Employee Mary Kay Louis Foy tes- tified that Freidin wrote up the schedule and told her what to do I do not credit the testimony of O. and M, Tihanyi to the effect that O. Tihanyi made all superviso- ry decisions and that Freidin had no independent author- ity. I specifically discredit O. Tihanyi's testimony to the effect that he hired Barton. I find that Freidin inter- viewed and hired an employee on her own authority and that she used independent judgment in assigning employ- ees and in directing them. She was a supervisor within the meaning of Section 2(11) of the Act. Brian Keyes acknowledged in his testimony that he was a shift supervisor on duty when the front desk man- ager was gone. O. Tihanyi told Keyes that he could give warnings to employees. O. and M. Tihanyi did not work on Saturdays and Sundays even though Poggenpohl, the property supervisor for Pebble Beach, told them that she wanted them to cover the Inn on weekends Instead, O. Tihanyi made Keyes a supervisor in charge of Saturdays and Sundays. Although Keyes could call O. and M. Ti- hanyi at home during the weekends, he was in overall charge during their absence. An inference is warranted that he had independent judgment to direct the work force for substantial periods in the absence of the Tihan- yis. He also had power to warn employees. I find that he was a supervisor within the meaning of Section 2(11) of the Act. Proa solicited a card from Brian Keyes in Ti- hanyis' office while they were present.8 Ligia Barbosa, the head housekeeper,9 was not at work on August 5 when Proa spoke to the maids. When she returned to work, some of the maids told her that a man had come from the Union and that they had signed union cards. The maids asked her whether she was going to sign and she said that she was not The maids then told her that they had signed because the manager was with the man from the Union Barbosa then went to the front office and told O. Tihanyi that the Union had been there. O. Tihanyi said, "That's good. They need it." On Tuesday, August 6, 1985, Proa returned to the Inn and spoke to Barbosa in her office. Proa said he was working for the Union and that he had been there the day before. He told her that everyone had already signed cards and he asked her to sign. She refused to do so. Proa said that he did not understand why she would not sign because the Tihanyis and everyone in the front office had already signed. 10 On Monday, August 12, 1985, Proa returned to the Inn. He averred he came back at that time to keep in touch with the workers and he told them that everything was okay and that pretty soon they would be getting a a 0 Tihinyi's testimony to the effect that he did not know there was a union organizational drive going on until August 8, 1985, the day he signed the contract , is simply incredible 6 As found above, it was stipulated that Barbosa was a supervisor within the meaning of the Act 10 These findings are based on the credited testimony of Barbosa To the extent that Proa's testimony differs from that of Barbosa, I credit Bar- bosa contract. In fact, the contract had already been signed. Maria Isabella Ramos was one of the maids who attend- ed that meeting. Before that meeting she had been told by other maids that Head Housekeeper Barbosa did not want anything to do with the Union. When Proa ad- dressed the maids on August 12, he told them that when they signed for the Union they had the right to an in- crease in pay. Ramos, who had not signed, said that she would not sign anything because the other girls had told her that Barbosa was not in agreement. Ramos also asked how it was that Proa was there. Proa replied, "I'm here because they allow me from the office so that I can enter here." c. Card check After obtaining the authorization cards, Proa gave them to the Union's business agent and director of orga- nization, Don Wilson. There were 17 cards including those from the supervisors. Wilson called O. Tihanyi and said that he had authorization cards from a majority of the employees and that he needed to have the authoriza- tion cards verified. He told O. Tihanyi that an outside party such as a priest or a representative from the hotel could verify the signatures against the W-4 forms or other hotel records O. Tihanyi said that he would have three of his employees verify the cards. 0 Tihanyi chose his wife, M. Tihanyi, his daughter, Shelley Freidin, and Brian Keyes, to authenticate the cards. i i As noted above all three were supervisors within the meaning of the Act. On August 8, 1985, M. Tihanyi, Freidin, and Keyes went to the union office and verified the authorization cards against W-4 forms that M. Tihanyi brought with her. They all signed a certificate that stated under the authority vested in them by the Employer and the Union they had determined that a majority of the employees in the appropriate unit had designated the Union as their exclusive representative for the purpose of bargaining. On the same day Wilson called O. Tihanyi and said that the signatures had been verified.12 Later that day O. Ti- hanyi came to the union office and signed a document entitled "Recognition Agreement," which was in fact an agreement to have a card check. Immediately after O. Tihanyi signed the "Recognition Agreement," Wilson showed him a standard union agreement. Wilson went over the agreement and explained the contents to O. Ti- hanyi. Wilson then asked O. Tihanyi to sign the agree- ment and he did so. Under the contract the Inn recog- nized the Union as the sole bargaining agent for its em- ployees working in the classifications set forth in the contract. i 3 The contract is effective by its terms from I1 These findings are based on the credited testimony of Wilson To the extent that the testimony of 0 and M Tihanyi and Brian Keyes is inconsistent with that of Wilson, I credit Wilson 12 M Tihanyi testified that she told 0 Tihanyi that 18 of 24 or 25 people wanted representation As indicated below I have no confidence in M Tihanyi's veracity and I do not credit her assertions with regard to what she told her husband or with regard to the number of employees 13 The complaint describes the appropriate unit as All hotel service and maintenance employees, including house- keeping employees, front desk employees and accounting employees Continued 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 9, 1985, through February 28, 1988. It provides for a number of health and other benefits that are to be paid for by the Employer. The president of the Union, David Shultz, signed the contract on the following day, August 9, 1985. It was a 27-page document covering wages and working conditions. d. Renunciation of the contract As noted above on July 31, 1985, Pebble Beach lost its contract to manage the Inn. The previous day, Brad Hutton, the vice president of the hotel division of D & D Development, held a meeting with O. and M. Tihanyi, Freidin, Keyes, Barbosa, and Lamont Smith, who is a consultant used by D & D Development. He introduced himself and said that he would be living on the property for the coming month to evaluate the operation and that he had an open-door policy. O. Tihanyi asked what the Company's intentions were with regard to insuarance, medical, dental, and hourly wages. Hutton replied that Pebble Beach was out and that his intentions were to provide a package comparable to that in the area, but at that point he was there to observe, and he did not want to make any changes. He said that if there were any problems to let him know and he wanted to be involved in the process so that he could understand how the hotel worked. Though Hutton was on the premises in August, O. Ti- hanyi kept him in the dark about the Union's organiza- tional drive, and the signing of the contract. About August 14, 1985, the Union's president, Shultz, came to the Inn and introduced himself to Hutton. Shultz showed Hutton the contract, which had been signed by O. Ti- hanyi on August 8, and said that the Union could cover management individuals of the hotel for health and wel- fare. Hutton replied that that was the first he had heard of a contract and he needed time to look into it. Another meeting was scheduled ' for the following day. At that meeting Hutton told Shultz that O. Tihanyi had exceed- ed his authority in signing the contract,14 that the Com- pany thought management was involved in putting the thing together, and that they had reason to believe that the contract was not valid. They agreed to have a meet- ing with their 'attorneys. That meeting was held on August 22, 1985. Respondent took the position that O. Tihanyi did not have authority to sign and that manage- ment was improperly involved in obtaining the contract. Hutton asked for a Board election., The Union took the position that it had a contract and that was the end of it. On October 28, 1985,, Respondent's attorney sent a letter to the Union stating that the "recognition" ex- tended to the Union was in violation of law and there- fore invalid. After stating Respondent's position in more details the letter went on as follows: employed by Respondent at the Anaheim Town & Country Inn Respondent's answer denies that , allegation 14 This finding is based on the credited testimony of Hutton Shultz testified that to his knowledge Hutton did not raise the issue of 0. Tihan- yi's authority I believe that Hutton's recollection was more accurate than Shultz'. In view of the foregoing and in accordance with applicable law, the Employer hereby repudiates and rescinds the "collective-bargaining agreement." Fur- ther, the unlawful "recognition" extended to your organization is hereby revoked. 3. Analysis and conclusions A contract that is valid on its face raises a presumption that a union represented a majority of the employees at the time the contract was entered into. As the Board held in, Bartenders Assn. of Pocatello, 213 NLRB 651, 652 (1974), a contract lawful on its face "raises a dual pre- sumption of majority-a presumption that the union was a majority representative at the time the contract was ex- ecuted, and a presumption that its majority continued at least through the life of the contract." In the instant case, the contract is lawful on its face and the presumption of a majority attaches. However, at least during the 6- month period after a contract is executed,15 a respondent can defend against an allegation that it refused to bargain with a union by proving that the union did not represent an uncoerced majority of the employees at the time of the signing. Cf. Jim Kelly's Tahoe Nugget, 227 NLRB ,357 (1976), enfd. 584 F.2d 293 (9th Cir. 1978); Metropol Res- taurant, 247 NLRB 132 (1980). Such a defense may be raised even though the issues litigated in the defense amount to another violation of the Act and that violation is not encompassed in a complaint. Cf. Hotel & Restau- rant Employees Local 274 (Warwick Caterers), 269 NLRB 482 (1984). In the instant case Respondent has timely raised a defense alleging that the Union did not represent an uncoerced majority of the employees at the time that recognition was granted and the contract was executed. When a company extends recognition, even in good faith, to a union that does not represent an uncoerced majority of employees in an appropriate unit, that recog- nition and any contract flowing from it constitute unlaw- ful interference with employee rights and violate Section 8(a)(1) of the Act. It is also an unlawful support to the union in violation of Section 8(a)(2) of the Act. The union's acceptance of exclusive bargaining authority under such circumstances constitutes a violation of Sec- tion 8(b)(1)(A) of the Act. Any resulting agreement is void and unenforceable in its entirety. Garment Workers v. NLRB, 366 U.S. 731 (1961). If a union secures its ma- jority status through the unlawful assistance of a compa- ny, the employees cannot be said to have freely selected the union and the union does not represent an uncoerced majority of the employees. Hollander Home Fashion Corp., 255 NLRB 1098, 1101-1102 (1981); Bassick Co., 127 NLRB 1552, 1562 (1960). Section 7 of the Act pro- tects the right of employees to either join or to refrain from joining a union and Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with those rights. Though an employer is free to provide in- formation to employees, it cannot actively solicit em- ployees' signatures on either union authorization cards or antiunion petitions under circumstances when that solici- tation will tend to make employees feel imperiled if they 15 Sec 10(b) of the Act provides for a 6-month statute of limitations. ANAHEIM TOWN & COUNTRY INN 229 do not do as their employer wishes. Cf. Erickson's Sentry of Bend, 273 NLRB 63 (1984). The general legal framework to be applied in cases such as this was succinctly set out in Longchamps, Inc., 205 NLRB 1025, 1031 (1973), in which the Board adopt- ed the part of the administrative law judge 's decision that read: While it is clear that an employer may not render unlawful assistance to the formation of a union by its employees, it is also clear-and the Board has so held with court approval-that a certain amount of employer cooperation with the efforts of a union to organize is insufficient to constitute unlawful assist- ance. The quantum of employer cooperation which surpasses the line and becomes unlawful support is not susceptible to precise measurement. Each case must stand or fall on its own particular facts. [Foot- notes omitted.] In that case the Board held that an employer had not crossed the line into unlawful asssistance when it provid- ed the union with an opportunity to address a meeting of its employees on company property and time and when it directed four other employees to go into a room where a union representative would speak to them. In the in- stant case the Employer went much further than that. On April 1, 1985, Respondent's general manager O. Tihanyi called Wilson, the Union's director of organiza- tion, and inquired about benefits. All the subsequent or- ganizational activity flowed from that phone call. That call initiated the organizational drive. 0. Tihanyi met Wilson at the union office and dis- cussed benefits and the costs of coverage. That constitut- ed negotiation over the terms of a contract. It occurred before the Union even began any organizational activity and at a time when it represented none of Respondent's employees. In July 1985 O. Tihanyi told the head housekeeper, Ligia Barbosa, that the new management people would be worse than the ones being replaced and that he was going to call the Union. That statement made it clear that O. Tihanyi intended to continue active pursuit of union organization. In late July 1985 O. Tihanyi spoke to Wilson and said that he was impressed with the benefits. There was talk of organizing the employees. In effect O. Tihanyi was giving tentative approval to an agreement that would give benefits to the employees that would be paid for by the Inn. That continuation of the negotiating process also took place when the Union represented no one. On August 5, 1985, O. Tihanyi took Proa, the union representative , to the housekeeping room at the Inn and introduced him to employee De Lara O. Tihanyi intro- duced Proa to De Lara and said, "Go and tell all the girls and gather them up because this man wants to talk to you. And he has good benefits for you." It is apparent from the context of that remark that the "good benefits" that the Union had for the employees were those that O. Tihanyi had negotiated with the Union before the Union even began its organizational drive. Those benefits could be given only if the Inn agreed to pay for them and 0 Tihanyi's statement "he has good benefits for you" con- stituted an implied promise that the Inn would grant those benefits if the employees did as the Union request- ed and joined the Union. That constituted a promise of benefits by O. Tihanyi if the employees joined the Union. De Lara told the employees that the manager had someone who wanted to talk to them. Passing on that in- formation from O. Tihanyi to the employees, the em- ployees were clearly given the signal that O. Tihanyi ap- proved of what the Union was going to tell them. Proa told the employees the benefits they would re- ceive if they joined the Union. He mentioned medical benefits, holidays, and vacations . Those were not internal union benefits but were collective-bargaining matters that required negotiation and for which the Inn would pay. Proa's statement that the employees would get those benefits if they joined the Union was not simply union campaigning. It reenforced O. Tihanyi's remark to De Lara that Proa had good benefits for them. They were being told in effect that a deal had already been struck and that all they needed to do was join the Union. Proa was not hesitant with regard to O. Tihanyi's support for the Union. He told the employees that the ones in the office would also enter into the Union because the man- ager was in agreement with it. After the meeting O. Tihanyi asked De Lara if they had all signed cards. That interrogation was a part of a pattern of O. Tihanyi's assistance to the Union and in that context, it was coercive. De Lara said that they had all signed and O. Tihanyi indicated his support for the Union by saying that it was well done because there were many benefits for everyone Once again he was im- pliedly promising benefits that the Inn would bestow be- cause the employees joined the Union. Such promises of benefit are coercive Proa solicited cards from Supervisors M. Tihanyi, Freidin , and Keyes. Keyes' card was solicited in the presence of O. and M. Tihanyi. After the meeting employees told Supervisor Barbosa that they had signed because the manager was with the man from the Union. In a meeting with Barbosa, Proa told her that every- one in the front office had already signed. In another meeting with the employees, Proa told one of the em- ployees, who was reluctant to sign, that he was there be- cause the office allowed him to be there. The cards were checked by three supervisors and 0 Tihanyi summarily signed the agreement without any meaningful bargaining. It is apparent that O. Tihanyi went well beyond any ministerial help to the Union or any benign cooperation in the union effort. He actively participated in the union organizational drive from start to finish. He called in the Union; he negotiated with the Union before it even began its organizational activity; he imphedly promised benefits to the employees if they joined the Union; he coercively interrogated an employee concerning whether they signed cards; he used supervisors to check the cards; and he precipitously executed a collective-bargain- 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing agreement without any meaningful negotiations. Under those circumstances, ' 6 I believe that the cards the Union obtained were tainted and that the Union did not represent an uncoerced majority at the time recognition was granted and the contract was executed .''' The con- tract was therefore void and unenforceable . The Inn's re- fusal to honor such a contract could not constitute a re- fusal to bargain in violation of Section 8(a)(5) of the Act. I therefore recommend that those portions of the com- plaint that allege such a violation be dismissed.18 B. Discharge of M. Tihanyi 1. Reason for the discharge On August 13, 1985, Brad Hutton, Respondent's vice president of the hotel division, discharged O. and M. Ti- hanyi. He told them that the Union had been voted in the previous week and that he wanted the Tihanyis out right away. The Tihanyis were discharged on August 13, 1985. Brad Hutton and Union President David Shultz testified that they had their meeting on August 14, 1985. Whatever the exact date of the meeting was, it was clear that Hutton knew about the Tihanyis' union activity when he discharged them. That is evident from Re- spondent's letter to the State Unemployment Insurance Appeal Board in which Respondent's attorney stated that 0. and M. Tihanyi were discharged because they deliber- ately disregarded their duty to inform, consult with, and receive authorization from their employer before enter- ing into a collective-bargaining agreement. Respondent has in effect admitted that M. Tihanyi was discharged because of her involvement with the Union. Respondent contends, however, among other things, that M. Tihanyis' activities were not protected by the Act be- cause she was a supervisor rather than an employee. 16 In evaluating the degree of employer support to the Union I have considered the entire pattern of conduct. However, even if none of O. Tihanyi's conduct after the August 5 meeting at which cards were signed is considered, the cards would have been tainted As the maids told Bar- bosa, they signed because the manager was with the man from the Union 11 The General Counsel in her brief cites a number of cases when the Board held that an employer's cooperation with a union during an orga- nizational drive did not constitute a violation of the Act. However, in those cases the employer's conduct could have been labeled "coopera- tion" while in the instant case the employer gave overt support and_ as- sistance to the union in a way that can only be considered coercive. Cf. Coamo Knitting Mills, 150 NLRB 579 (1964); Kroger Co., 275 NLRB 1478 fn 3 (1985); Longchamps, Inc., 205 NLRB 1025 (1973) I believe that many of the cases cited by the Respondent in its brief were closer to the mark. See for example Monford of Colorado, 256 NLRB 612 (1981), enfd. 683 F 2d 305 (9th Cir 1982), Bassick Co., 127 NLRB 1552 (1960); Verni- tron Electrical Components, 221 NLRB 464 (1975), enfd 548 F.2d 24 (1st Cir 1977); Franklin Convalescent Center, 223 NLRB 1298, 1306-1309 (1976); Hollander Home Fashion Corp, 255 NLRB 1098 (1981); Central Casket Co, 225 NLRB 362, 401 (1976). 18 Respondent raises alternate defenses One is that O. Tihanyi lacked authority to execute a binding contract The other is that the number of cards the Union obtained from nonsupervisory personnel did not consti- tute a majority in the appropriate unit In view of the above disposition of the refusal-to-bargain allegation, those defenses need not be consid- ered 2. Supervisory issue a. Contentions of O. and M. Tihanyi M. Tihanyi testified at great length concerning her duties. She averred that she wore many hats at the Com- pany; that she did bookkeeping, secretarial, and front desk work; that she typed documents that went into the personnel files and assisted with personnel files; that she had custody of hotel records; and that at times she passed on O. Tihanyi's policies to employees. She ac- knowledged that she wrote directions in a logbook tell- ing employees what office procedures to follow. Howev- er, she testified that she only did that pursuant to O. Ti- hanyi's instructions. In sum, her testimony indicated that she performed the normal work of a bookkeeper, that she was a jack-of-all-trades who performed many em- ployee functions pursuant to assignments from O. Ti- hanyi, and that though she often passed on instructions from O. Tihanyi, she had no authority on her own over other employees. She acknowledged that she had the title of accountant-assistant manager but contended that the "assistant manager" designation was empty of con- tent and gave her no authority over other employees. She also acknowledged that she used her own name on a number of different documents including reports on un- employment insurance, letters to the jury commissioners, and instructions to front desk clerks in the Inn's log. However, she maintained that all her actions were based on specific instructions from O. Tihanyi and that she was simply passing along his decisions. With regard to letters of recommendation, she averred that she wrote them on a personal basis. She testified that in making entries on a log for petty cash, she again simply 'followed O. Tihanyi's decisions. 0. Tihanyi's testimony corroborated that of M. Ti- hanyi. In effect he testified that he was " the boss" and that M. Tihanyi was a bookkeeper who had no authority with regard to other employees except to pass on his orders. As indicated in detail below, I have absolutely no con- fidence in O. Tihanyis' credibility. My opinion is much the same with regard to M. Tihanyi. After observing her testimonial demeanor over a substantial length of time and after carefully reviewing the substance of her testi- mony, I am persuaded that her testimony cannot be relied on. Her garrulous answers to questions were uni- formly so evasive as to indicate that she was trying to hide the truth rather than elicit it. Instead of trying hon- estly to answer questions, she appeared to be making quick decisions about what answers might be in her in- terest and then obfuscating in reply to matters that she thought would hurt her case.' 9 In some instances written documents signed by her contradicted her testimony. Thus she averred that she did not interview applicants for employment. She admitted, however, that on 'the em- ployment application of Brian Keyes, she signed next to the box that said, "Interviewed by." Her attempts to ex- plain away that matter were totally unconvincing. More 19 Typical of these evasions were her answers to questions dealing with her daughter's duties in regard to assigning front desk work. ANAHEIM TOWN & COUNTRY INN 231 important, as is indicated in detail,,below, much"of,,her critical testimony was credibly contradicted by witnesses who were fully believable. In sum, I believe that O. and M. Tihanyi were both unreliable witnesses and I do not credit their assertions with regard to M. Tihanyi's duties and responsibilities. 2 o The General Counsel has not established through the testimony 'of the Tihanyis that M. Tihanyi was an em- ployee within the meaning of the Act. However, the General Counsel has no obligation to do so. It is the Re- spondent who contends that M. Tihanyi is not an em- ployee and, as the General Counsel correctly points out in her brief, the burden of proof with regard to the al- leged supervisory status is on the Respondent. Soil Engi- neering, 269 NLRB 55 (1984). As indicated below, Re- spondent had more than met that burden. b. Testimony ofPoggenpohl Lynda K. Poggenpohl was Pebble Beach's property supervisor in charge of the l!nn from about November 1984 until Pebble Beach lost its management contract at the end of July 1985. As property supervisor in charge of the Inn for Pebble Beach, Poggenpohl had authority over the Tihanyis. It was part of her responsibility to know what the Tihanyis' duties and responsibilities were and how they carried them out. They were under her direct supervision. She had telephone `contact with M. Tihanyi every 2 or, 3 days. When M. Tihanyi was not there, she spoke to O. Tihanyi. She visited the Inn about every 2 weeks and she spoke to both 0. and M. Tihanyi. Each visit lasted about 8 or 9 hours and most of the time was spent with M. Tihanyi going over operational mat- ters that included financial information, front desk poli- cies, housekeeping room inspection, payroll costs, and accounts receivable. She spolke to O. Tihanyi about sales matters. Pebble Beach does not have any current relationship with D & D Development and Poggenpohl did not appear to have any interest in the proceedings that could bias her testimony. Neither she nor Pebble Beach was accused of any wrongdoing and she was not attempting to justify any, of her conduct. She was simply testifying about contacts she had with the Tihanyis that would in- dicate their duties and she appeared to have no reason to be other than, candid, in addition, she appeared to be an intelligent person with a good memory and her demean- or on the stand reflected well on her credibility. She was a fully believable witness and I credit her testimony and discredit the testimony of, the Tihanyis when it conflicts with it. The findings set forth below are based on her testimony. 0. Tihanyi's responsibilities related primarily to sales while M. Tihanyi's responsibilities were operational. She 20 Mary Kay Louis Foy, a front desk clerk at the Inn, testified that she never, saw M. Tihanyi work at anything but accounting and bookkeeping procedures She also testified that M Tihanyi never told her what to do. She averred that she considered herself a friend of the Tihanyis, She averred that she was positive that M. Tihanyi did not have the title of assistant manager. She was positively wrong M. Tihanyi as well as ev- eryone else involved acknowledged that she had that title. I do not be- lieve that Foy was an observant or a iehable witness and I,do not credit her testimony with regard to M. Tihanyl's duties. -ran- the day-to-day-,r peration, scheduled the help, and dealt with personnel problems. About 75-80 precent of 0. Tihanyi's time was taken with sales and marketing matters. Much of the remaining time was spent running errands, picking up supplies, driving the shuttle, and doing similar chores. When Poggenpohl visited the Inn, she discussed personnel problems with M. Tihanyi and then recapped them in discussions with O. Tihanyi. O. Tihanyi received a salary of $1800 a month, M. Tihanyi $1200, and their daughter Michele Freidin $975. Those were the three highest paid persons at the Inn. Both O. and M. Tihanyi had authority to sign account payable vouchers and some were signed by M. Tihanyi under the designation "manager." The Inn had to send a monthly budget report to Pebble Beach and the manager's signa- ture was required. That report was always signed by M. Tihanyi. M. Tihanyi was responsible for the petty cash account of about $1500 that was kept in the safe. O. and M. Tihanyi both had the combination to the safe, M. Tiahnyi had authority to set up direct billing accounts and she was fully in charge of accounts receivable. In general the Tihanyis operated the motel as a husband and wife team and M. Tihanyi was a comanager. Pog- genpohl regularly spoke to M. Tihanyi about personnel matters and it was M. Tihanyi's responsibility to correct problems that' Poggenpohl pointed out. Some of the problems that Poggenpohl discussed with M. Tihanyi re- lated to the appearance of an employee, the ability of an employee to speak English to guests, the failure of em- ployees to answer the telephone quickly, and perform- ance problems with maids. M. Tihanyi acted on each of the problems and reported back to Poggenpohl. They also discussed problems concerning the training of front desk employees. M. Tihanyi was responsible for labor costs at the Inn and- she was permitted to give raises with Poggenpohl's approval. The practice was that M. Tihanyi would come to Poggenpohl and ask for a raise for an individual; Poggenpohl would ask M. Tihanyi to evaluate the employee; and when M. Tihanyi felt that the person was entitled to a raise, that person would re- ceive it. On one occasion Poggenpohl told M. Tihanyi that she suspected that an' employee had a drinking prob- lem. Poggenpohl told M. Tihanyi that if the problem continued, she expected M. Tihanyi to,terminate the em- ployee. Mrs. Tihanyi said that she would terminate the ,employee if the problem did not get resolved. On an- other occasion Poggenpohl was dissatisfied with the per- sonal appearance of an employee. She told M. Tihanyi to talk to that employee and that if M. Tihanyi could not get him straightened out to terminate him. Later M. Ti- hanyi replied that she had talked to the individual and she felt that the matter was under control. ' M. Tihanyi also said that if the individual did not come to work dressed properly, she would terminate him. Poggenpohl, spoke to M. Tihanyi about a number of specific individ- uals concerning raises. Pebble Beach had to approve all wage increases but when M. Tihanyi made a request for an increase, it was always granted.-On one occasion M. Tihanyi told Poggenpohl that Brian Keyes was doing a good job and that she was going to .give him a raise. Poggenpohl agreed. On another occasion 'M. Tihanyi 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Poggenpohl that Ligia Bargosa was doing an excel- lent job and they wanted to make sure that they kept her incentive going. Poggenpohl agreed to the raise. At an- other time M. Tihanyi told Poggenpohl that Sandra De Lara had come a long way and that she wanted to give her a raise. Poggenpohl again agreed.21 c. M. Tihanyi's role in discharging employees Maintenance man Dennis Jones was interviewed and hired by ,O. Tihanyi in February 1985. At that time O. Tihanyi gave him a paging beeper and keys to the Inn for him to keep with him when he was away from work. He carried the paging beeper because he had to be avail- able for emergencies such as broken water pipes when he was off work. A few days later M. Tihanyi told him that he could not take the beeper, or the keys home. Later Jones went to O. Tihanyi and said that M. Tihanyi wanted him to leave the keys and the beeper on the premises. O. Tihanyi simply shrugged his shoulders. Ap- parently M. Tihanyi had the ability to overrule O. Ti- hanyi on such matters. On one occasion while Jones was working, M. Tihanyi told him to wash the van. He told her that such work was usually the housekeeper's job. She just said, "wash it" and he did. About a month after Jones was hired, M. Tihanyi called him into her office and said that she no longer needed his services because he was too slow. He said that he would like to talk to O. Tihanyi about that, and she replied that he did not have to talk to O. Tihanyi, and that she was firing him. She then gave him a check and he left.22 21 Brian Keyes testified that he received two wage increases, that he never discussed them with M. Tihanyi and that he was told of the in- creases by 0. Tihanyi. That testimony is not necessarily inconsistent with anything that Poggenpohl testified to. M Tihanyi may well have raised the question of raises for employees to Poggenpohl without the request or knowledge of the employee. Respondent stated in a letter to the California Unemployment Insur- ance Appeals Board that 0. Tihanyi had primary responsibility for the entire operation of the Inn, and that M. Tihanyi was the Inn's accountant. That is not necessarily inconsistent with the testimony of Poggenpohl to the effect that the Tihanyis divided the supervisory functions between themselves. 22 These findings are based on the credited testimony of Dennis Jones 0. and M. Tihanyi's testimony to the effect that he and not she fired Jones is not credited Front desk clerk Mary Kay Louise Foy also testi- fied about the incident. She averred that she was present at the front desk when she saw Jones go toward 0. Tihanyi's office, that she heard the office door close, and that she saw Jones leave with a check She testified that M. Tihanyi did not fire Jones. As indicated in fn 20 above, I do not believe Foy was a reliable witness She testified in a very positive manner about things that she could not have been sure of As noted in that foot- note, she was positive that M Tihanyi did not have the title of assistant manager. Yet she had that title. Her testimony was quite confusing re- garding whether M. Tihanyi was or was not in the office at the time of Jones' discharge. She inferred that she knew what was happening behind closed doors in 0. Tihanyi's office and she said that Jones left with a check. 0 Tihanyi testified that he told Jones to pick up his check from M. Tiaanyi and that Jones did so. Later in his testimony he averred that lie was not certain that Jones picked up his check Even claiming that Foy was trying to be accurate in the description of the events she saw from the front desk, it is difficult to believe that she would have had a detailed recollection of an incidental matter over which she had no ap- parent interest that had occurred about a year before her testimony Jones was testifying about a matter that was important enough to him to impress itself on his memory and I believe he was fully credible. When Foy's testimony is inconsistent with that of Jones, I credit Jones. Rhonda Barton was a front desk clerk who was inter- viewed and hired by Freidin, the daughter of the Tihanyis. The work schedule for the front desk clerks was filled out by Freidin and posted weekly. Schedule changes were made by Freidin or M. Tihanyi. At one point Barton asked Freidin and M. Tihanyi to change her schedule. They agreed but M. Tihanyi looked dis- pleased. Later her schedule was changed again in a manner that Barton was displeased with. She spoke to other employees about the change in her schedule. M. Tihanyi approached Barton and told her that she had heard that Barton was complaining behind her back. Sometime thereafter M. Tihanyi spoke to her in the back office and told her that they were letting her go. M. Ti- hanyi said, "We have decided to let you go." They dis- cussed schedule problems and M. Tihanyi said that she thought Barton's attitude was going down.23 d. M. Tihanyi's direction of the workforce Although M. Tihanyi testified at length that she had no power over other employees, there was a great deal of testimony to indicate that from the perception of em- ployees, and even other supervisors, she was considered a person who had to be obeyed. Ligia Barbosa, the head housekeeper, was an admitted supervisor within the meaning of the Act. She credibly testified that the Tihanyis were the managers and that M. Tihanyi was the one who told her when her schedule changed. She also credibly testified to one incident that indicated her attitude toward M. Tihanyi's authority. She received a call from Freidin saying that Barbosa had to go to a room to wash a guest's clothes because the clothes had been in the bathtub with water that had ants swimming in it. Barbosa said that she would send some- one to do that work. Freidin told her that she had to do it personally because M. Tihanyi wanted her to. Barbosa was upset because she did not do that type of work at home and she did not want to do it at the Inn. She did the work anyway, however, and testified that she did it because M. Tihanyi said she had to. Freidin herself was a supervisor and she was passing on instructions to Bar- bosa who was another supervisor. Freidin did not use her own authority but invoked a higher authority, that of M. Tihanyi, to require Barbosa to do work that she did not want to do. As found above Brian Keyes was the shift supervisor who was in charge of the Inn on weekends, when the Ti- hanyis were not present. He also was found to be a su- pervisor within the meaning of the Act. He often wrote entries in the logbook directing employees how to do their work., In many entries he wrote "per Monique" (M. Tihanyi) because M. Tihanyi told him to make those en- tries. He averred that M. Tihanyi acted as a liaison be- zs These findings are based on the credited testimony of Barton. 0. Tihanyi testified that he decided to fire Barton and that he asked M. Ti- hanyi to inform Barton that he had made that decision He averred that M. Tiahnyi did not recommend the discharge M Tihanyi testified that she had nothing to do with the decision to fire Barton and 'that she simply gave -Barton her final paycheck at 0 Tihanyi's instructions. Where Barton's testimony differs from that of the Tihanyis', I credit Barton and I do not credit the Tihanyis. ANAHEIM TOWN & COUNTRY INN tween O. Tihanyi and the staff ate'" many instructions came from O. Tihanyi through her. However, he used M. Tihanyi's name for the authoritative voice rather than 0. Tihanyi's. On March 3, 1985, on M. Tihanyi's instruc- tions, Keyes wrote in the log: "Per Monique [M. Ti- hanyi] all staff are to work their scheduled hours wheth- er a lunch break is taken or not. Unless approved by Shelley [Freidin] or Monique [M. Tihanyi] or O. T. [0. Tihanyi]." Keyes was himself a supervisor but he used M. Tihanyi's authority rather than his own to give weight to that order. He testified that with such log items he used M. Tihanyi's name because people would listen to her. By that entry M. Tihanyi was making it clear to employees that she was one of the three people who could authorize employees to leave work during scheduled hours. The logbook has numerous entries by M. Tihanyi her- self, which can only be construed as her directions to the work force concerning how they were to perform their work. Typical of those entries were: "11/12/84-All front desk, all procedures must be followed. If you refer to your procedure manual, you can not fail in followup. Consequently, errors, loss of revenue will not occur. M."; "11/16/84-No one is authorized to give or make adjustments on charges at any time. Please adhere to. See first page of procedures." As the General Counsel correctly points out in her brief, a number of employees also made entries in the logbook. They commented on different work problems and made requests of other employees. However, none of them had the tone of command that was present in M. Tihanyi's entries. In addition, M. Tihanyi put her own limits on what employees could say in the log. On No- vember 26, 1984, she wrote in the log "All clerks, this book is not to be used for lengthy comments to manage- ment. Put your comments on a sheet of paper and place in a green folder on counter. This applies for complaints, supplies as well. Effective Immediately." I do not credit M. Tihanyi's assertion that her entries in the log were merely messages that she was transmit- ting for O. Tihanyi. e. Analysis and conclusions Section 2(11) of the Act states: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judg- ment. As the supervisory indicia are set forth disjunctively, a person is a supervisor if he or she meets any of those in- dicia. NLRB v. Budd Mfg. Co., 169 F.2d 571 (6th Cir. 1948), cert. denied 335 U.S. 908 (1949); Big Rivers Elec- tric Corp., 266 NLRB 380, 382 (1983). A person is a su- pervisor if he or she has any of the authority described 233 'in The = statute' whether that authority is actually exer- cised. Redi-Serve Foods, 226 NLRB 636, 637 (1976). Many of the cases cited in the briefs of the General Counsel and Respondent relate to borderline situations when an individual has limited authority and there is a real question concerning whether he or she uses inde- pendent judgment. However, this is not a borderline case. M. Tihanyi was a top level, supervisor with a great deal of independent authority. The credited evidence es- tablishes that she had the authority to use independent judgment with almost all the supervisory powers set out in the Act. As part of a husband and wife managerial team, M. Tiahnyi was primarily responsible for the oper- ational aspects of the Inn. She ran the day-to-day oper- ation, scheduled the help, and dealt with personnel prob- lems. She was responsible for labor costs and gave raises with the approval of the property supervisor. Her rec- ommendations on raises were uniformly followed. She was given authority by her property supervisor to decide whether two employees had overcome personal prob- lems and also to decide whether they should be fired. She actually did fire two employees (not the ones she had discussed with her property supervisor). She had au- thority over supervisors as well as employees. She gave instructions that Supervisor Barbosa do certain work that Barbosa did not want to do. Barbosa did it because it was M. Tihanyi who said that she had to do it . Mainte- nance man Jones was told by O. Tihanyi to take a beeper and keys away from work. M. Tihanyi overruled those instructions and when O. Tihanyi was told of it, he merely shrugged his shoulders. Supervisor Keyes used M. Tihanyi's name when giving instructions to employ- ees in the logbook because people would, listen to her. Her own entries and entries she had put in the logbook by others showed that she was very much in charge of the operation of the Inn. One entry showed that she had authority to let employees leave work. In sum I find that M. Tihanyi was a supervisor within the meaning of the Act. She did engage in union activity, but that activity was not protected by the Act. As the Board held in Parker-Robb Chevrolet, 262 NLRB 402, 404 (1982), enfd. 711 F.2d 383 (D.C. Cir. 1983):24 The discharge of supervisors as a result of their participation in union or concerted activity-either by themselves or when allied with rank-and-file em- ployees-is not unlawful for the simple reason that employees, but not supervisors, have,rights protect- ed by the Act. It follows that Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging M. Tihanyi and I therefore recommend that that allegation of the com- plaint be dismissed.25 24 See also Bentley Hedges Travel Service, 263 NLRB 1408, 1409 (1982); Reeves Bros, 277 NLRB 1568 (1986). 25 Respondent has raised alternate defenses relating to the claim that M. Tihanyi was a managerial or confidential employee. In view of the above disposition, those matters need not be considered. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAw , ORDER The General Counsel has not established by a prepon- The complaint is dismissed in its entirety. derance of the credible evidence that Respondent violat- ed that Act as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed26 Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the as If no exceptions are filed as provided by Sec. 102 46 of the Board' s Board and all objections to them shall be deemed waived for all pur- Rules and Regulations, the findings, conclusions, and recommended poses