Castaways Management, Inc.

954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Castaways Management, Inc. and Hotel, Motel, Restaurant & Hi-Rise Employees & Bartenders Union, 'Local, 355, AFL-CIO and Hotel, Resort Service Union, Local 3 of Greater Miami & South Florida Area. Cases 12-CA- 8831,' 12-CA-8985, 12-CA-9184, 12-CA- 9179,1 and 12-RC-5741 22 September 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION - BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 30 September 1982 Administrative Law Judge Elbert D. Gadsden issued the attached deci- sion.2 The Respondent and Hotel, Motel, - Restau- rant & Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO (Local 355) filed exceptions and supporting briefs, 3 the General Counsel filed cross-exceptions and a supporting brief, and the Respondent and Local 355 filed, answering briefs.4 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, 5 and i The caption is amended to include Case 12-CA-9179 which was in- advertently omitted from the caption by the administrative law judge. a On 13 October 1982 the judge issued an errata correcting certain in- advertent errors in the decision Local 355 has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the posi- tions of the parties 4' The Respondent excepts to the judge's failure to list Gary B. Sack, who made an appearance on behalf of Hotel, Resort Service Union, Local 3 of Greater Miami & South Florida Area (Local 3), in the head- ing of his decision and to serve him with a copy of that decision The Respondent asserts that the failure to serve Sack with the decision violat- ed due process The record shows that of the 8 days of hearing, Sack appeared at the hearing on only, one occasion, 16 November 1981 Indeed, on 10 August 1981, the first day of hearing, Armando Vasquez stated on the record that he was appearing as representative of Local 3 The affidavit of service of the judge's decision does not list Sack, but does establish that his principal, Local 3, was served with the decision. The record further shows that Sack received telegrams sent by the Exec- utive Secretary's Office extending the time for the filing of cross-excep- tions and briefs in the proceeding Sack has not objected to his failure to be served with the judge' s decision or alleged any resultant prejudice, nor has Local 3 so asserted In these circumstances, we cannot agree with the Respondent that the judge's failure to serve Sack, whose princi- pal was served and who had actual notice that the decision had issued through the receipt of telegrams relating to exceptions to that decision, violated due process 5 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. Specifically, the Respondent contends that the judge improperly dis- credited the testimony of the Respondent's comptroller, William Collins, that he did not see, or hear of, the Respondent' s general manager, Charles Rosen, engaging in any conduct violative of the Act as testified conclusions and to adopt the recommended Order as modified and set forth in full below.6 1. The judge did not find any of the unfair labor practice charges included in the complaints `to be time barred by Section 10(b) of the Act.7 The con- solidated complaint issued on 28 November 1980 was based on' charges filed in Cases 12-CA-8831, 12-CA-8985, and 12-CA-9184, The Respondent excepts to the judge's finding of violations based on charges in Cases 12-CA-8831 and 12-CA-8985, both of which were dismissed and subsequently re- instated by the General Counsel outside the limita- tions period. The Respondent also excepts to the judge's finding that an amendment to the charge in to by Manager James Donnelly We agree with the Respondent that the judge erroneously stated as a reason for discrediting Collins' testimony that Collins was still in the Respondent's employ, rather, the record re- veals that Collins left the Respondent's employ in December 1979, prior to his testimony at the hearing. However, we do not find this mistake to provide a sufficient basis for reversing the judge's credibility resolution in this regard as the judge cited other valid factors for choosing to credit Donnelly's testimony rather than that of Collins, i.e, that Collins was a part of management at the time' the underlying events occurred and that Donnelly's testimony was corroborated in substantial and pertinent part by three employees Under these circumstances, we will not disturb the judge's credibility resolution. In evaluating General Manager Rosen's credibility, the judge stated that Rosen had knowledge in October 1979 that a Board-conducted elec- tion was scheduled for 31 January 1980, Because the Regional Director's Decision and Direction of Election of that election did not issue until 2 January 1980, Rosen could not have known in October 1979 that the election was scheduled for that date. Rosen did, however, know in Octo- ber 1979 that an election would probably be held because a petition had been filed on 1 October 1979 We do not find this error of the judge to materially affect his assessment of Rosen's credibility As pointed out by the Respondent in its exceptions, the judge mis- spelled several employees' names in his decision. We correct these errors as follows: Diane Kolinski is Diane Karmska, Wilhe Vassar is Willy Vassor, Esther Noonez is Esther Nunez,'and Maximino Gill is Maximino Gil. 6 The judge inadvertently set forth an incorrect description of the bar- gaining unit involved in this case The correct unit description, which ap- pears in the Regional Director's Supplemental Decision on Objections, is as follows: All full-time and regular part-time housekeeping employees, coffee shop employees, maintenance employees, PBX operators, bellmen, bellhops, pool and beach service employees, and bar employees em- ployed at the employer's 16375 Collins Avenue, Miami Beach, Flori- da, facility, but excluding all office clerical employees, professional employees, managerial employees, liquor control clerks, guards, and supervisors as defined in the Act To assure a make-whole remedy, we shall provide an expunction remedy. See Sterling Sugars, 261 NLRB 472 (1982) Further, we agree with the judge that under the standards set forth in Hickmott Foods, 242 NLRB 1357 (1979), a broad order is appropriate , In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621. Interest on amounts ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 7 Sec 10(b) of the Act contains the proviso. That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge 285 NLRB No. 121 CASTAWAYS MANAGE _NT Case 12-CA-9184 relates back to the original charge and provides a basis for finding violations alleged in the amendment back to a date some 6 months prior to the filing of the original charge. We find merit to the Respondent's exceptions with respect to both these issues." The charge in Case 12-CA-8831, alleging that the Respondent unlawfully refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act since about 31 July 1979, was filed on 9 October 1979 and dismissed on 21 November 1979. An appeal of the dismissal was denied by the Gen- eral Counsel. The charge in Case 12-CA-8985, al- leging that the Respondent unlawfully assisted Local 3 in violation of Section 8(a)(2) of the Act by hiring Local 3 representatives as employees since about 21 January 1980, was filed on 25 Janu- ary 1980 and dismissed on 27 February 1980., An appeal of that dismissal was also denied by the General Counsel. Subsequently, on 28 November 1980, some 10 months following the occurrence of the misconduct alleged in the later-filed charge, the General Counsel issued a consolidated complaint, based in part on these two charges. We find that the General Counsel was foreclosed from reinstat- ing these dismissed charges outside the limitations period of Section 10(b). In Ducane Heating Corp., 273 NLRB 1389 (1985), the Board held that a dismissed charge may not be reinstated outside the 6-month limitations period, of Section 10(b) absent special circumstances in which a respondent fraudulently conceals the operative facts underlying the, violation alleged. The Board further held that, when there is a fraudulent con- cealment, the limitations period begins to run when the charging party knows or should have known of the concealed facts. We note that counsel for the General Counsel did assert, in oral arguments before the judge regarding representation and successorship issues, that evidence of illegal assist- ance to Local 3 related to the October 1979 refus- al-to-bargain charge was "secreted by the employer or fraudulently concealed and was not available to us until June, at which time we acted expeditiously and moved forward on those charges." Counsel did not, however, proffer any evidence in support of this assertion or further explicate the nature of the alleged fraudulent concealment. Nor does the Gen- eral Counsel renew such assertions or otherwise raise the issue of fraudulent concealment in cross- exceptions to the judge's decision in which the General Counsel contends that misconduct occur- s Although the Regional Director issued two complaints in the instant cases, the Respondent does not contest the validity of the complaint in Case 12-CA-9179, which alleged that the Respondent unlawfully dis- charged Maximmo Gil because of his activities on behalf of Local 3 955 ring prior to the October 1979 filing of Local 3's petition, which was found by the judge to exceed the 10(b) limitations period, actually falls within the 10(b) period of the charge in Case 12-CA- 8831. Counsel's bare assertion of fraudulent con- cealment made in arguments at the hearing without supporting facts or evidence does not warrant an extension of the limitations period under Ducane, supra.9 Accordingly, we shall not affirm any viola- tions based on these time-barred charges. In addition to its exceptions regarding the first two dismissed charges, the Respondent contends that a 23 June 1980 amendment to the 21 May 1980 charge filed in Case 12-CA-9184 does not relate to the original charge and cannot toll the limitations period. Thus, the Respondent argues that all illegal activities alleged in the 23 June 1980 amendment, including all discharges that occurred prior to 23 December 1979, are barred by Section 10(b). The 21 May 1980 charge alleged that the Re- spondent violated Section 8(a)(1) since about 1 De- cember 1979, and continuing to date, by threaten- ing to reduce wages and benefits if the employees selected Local 355 as their collective-bargaining representative. The charge form also contained the printed allegation that the charged party has inter- fered with, restrained, and coerced employees in the exercise of Section 7 rights by other, acts in ad- dition to those set forth elsewhere in the charge. The 23 June 1980 amendment to that charge al- leged further specific violations of Section 8(a)(1), {2), (3), (4), and (5) from various dates commencing in mid-September 1979. Illegal assistance to Local 3 was alleged from mid-September 1979; unlawful threats from 1 October 1979; numerous unlawful discharges from mid-October 1979; an unlawful dis- charge for giving an affidavit to the Board; and un- lawful discharges of all employees in the painting department, on 1 December 1979.10 A number of these allegations concerned misconduct of a con- tinuing nature. The judge concluded that the amendment to the charge was not time-barred, as it was sufficiently related to the original charge. In so finding, the judge discussed only 1 December 1979, the date on which the unlawful conduct is alleged to have commenced in the original charge, in considering the 10(b) issue. For the following reasons, we find that only the misconduct in violation of Section 8(a)(1), is sufficiently related to the original 8(a)(1) 9 The General Counsel's precise reasons for reinstating the charges are not apparent from the record, as there is no documentation of their rein- statement other than their inclusion in the 28 November 1980 complaint based, in part, on these charges 70 The 8(a)(4) portion of the charge was withdrawn on 9 July 1980, with the Regional Director's 14 July 1980 approval. 956 DECISIONS OF THE NATIONAL LABOR- RELATIONS BOARD charge to be encompassed by that charge,, and that all conduct in violation of other sections of the Act that occurred prior to 23 December 1979 is barred by Section 10(b). It is obvious that the amended charge itself, filed on 23 June 1980, serves as a proper basis for issu- ance of the complaint regarding alleged unfair labor practices encompassed within the language of the charge that occurred on or after 23 December 1979, the date 6 months prior to the filing of the charge. It is also obvious that the original charge, filed on 21 May 1980, served as a proper basis for issuance of the complaint regarding alleged unfair labor practices in violation of Section 8(a)(1), which occurred on or after 21 November 1979, the date 6 months prior to the filing of the original charge. That 8(a)(1) allegations contained in a corn- plaint are properly raised by the other acts allega- tion, set forth in a charge - alleging violations of Section 8(a)(1), and are not barred by Section 10(b), has recently been reaffirmed by the Board in G. W. Galloway Co., 281 NLRB 262 (1986). See also Clark Equipment Co., 278 NLRB 498 (1986). This holding derives from long-standing precedent to the effect that when the charge alleges, in gener- al language, that Section 8(a)(1) has been violated, even without particularizing the conduct alleged to be violative of Section 8(a)(1), the charge is suffi- cient to support specific allegations in the com- plaint of 8(a)(1) conduct during the 6-month period preceding the service of the original charge, and subsequent thereto. Texas Industries, 139 NLRB 365 (1962). This holding, however, applies only to 8(a)(1) misconduct. A charge alleging specific and general violations of Section 8(a)(1) of the Act does not support com- plaint allegations of violations of other sections of the Act occurring within the limitations period unless the allegations are sufficiently related to the subject matter covered in the charge. The touch- stone is whether the subject matter of the com- plaint is closely related to the subject matter of the charge on which the General Counsel bases the complaint. The complaint may contain allegations related to the- same subject matter as that covered in the charge, even though the alleged violation in- volves a different section of the Act. Thus, in Great Plains Steel Corp., 183 NLRB 968, 974 (1970), the Board held that a complaint alleging violations of Section 8(a)(3) of the Act as a result of withholding approved wage increases was ade- quately supported by a charge alleging violations of Section 8(a)(5), by promising an increase in pay to induce employees to vote against the Union. As noted there, the specific subject matter of the com- plaint-wage increases-was sufficiently related to the subject matter of the charge to comport with the requirements of Section 10(b). - Here, the original 21 May 1980 charge alleged a specific violation of Section 8(a)(1) by threatening to reduce wages and benefits if the employees se- lected Local 355 as their bargaining agent, as well as a general allegation that the, Respondent inter- fered with, restrained, and coerced employees in the exercise of Section 7 rights by other acts. Thus, this charge supports any independent violations of Section 8(a)(1) and violations of any other sections of the Act related to the subject matter of wages and benefits back to 21 November- 1979. It does not, however, provide a basis for finding violations of other sections of the Act unrelated to the sub- ject of wages and benefits back to that date, includ- ing any alleged unfair , discharges occurring be- tween 21 November 1979 and 23- December 1979. Based on the above, we find trial of the legality of the Respondent's discharges of Judith Blecker in August 1979, of Jack DeMayo in October 1979, and of Diane Karinska on 15 December 1979 to be barred by Section 10(b) and reverse the judge's findings of violations of Section 8(a)(3) and (1) based on these discharges. Although some of the activity that the judge found violative of Section 8(a)(2) and (1) first occurred prior to 23 December 1979 and 21 November 1979, respectively, it was repeated thereafter within the limitations period and we affirm the judge's findings of violations on the basis of this continuing misconduct . The only violation found that the record does not establish to have been repeated after these dates, other than findings reversed for other reasons infra, consists of the Respondent's September or October 1979 state- ments that employees would not have to take a polygraph test if Local 3 won the election. Ac- cordingly, we do not adopt the judge's finding of a violation concerning these statements. 2. The judge found that the Respondent dis- charged 11 employees 'in violation of Section 8(a)(3). We have found three of those discharges to be barred by Section 10(b). The ' Respondent ex- cepts to the judge's finding that employee Kevin Porter was unlawfully discharged on the basis that Porter was not listed in the complaints . We find merit to this exception. Kevin Porter is not alleged in any charge or complaint to have been unlawful- ly discharged, and the record evidence does not es- tablish that he was wrongfully, discharged. Al- though Wreck Bar Manager - James Donnelly named Porter, along with several other employees, when asked at the hearing for the names of em- ployees who had been terminated before the elec- tion and rehired after the election, Donnelly went on to state that he was not sure if Porter was fired CASTAWAYS MANAGEMENT or not. There was no other evidence about Porter. We shall not, therefore, affirm the judge's finding that Porter was unlawfully discharged. The Respondent also contends that Irene Marzio, head hostess at the Wreck Bar, whose discharge was found by the judge to be violative of Section 8(a)(3), was a supervisor within the meaning of Section 2(11). The Respondent attached to its brief copies of several pages from the representation hearing in which the Respondent's general manag- er, Charles Rosen, testified, in a conclusory manner, that the head hostess in the Wreck Bar was a supervisor, that she kept charge of the cock- tail waitresses, and that she had the authority to hire or fire cocktail waitresses. We note, however, that when Rosen was asked directly by the judge in this proceeding whether Marzio was in charge of the waitresses, he responded, "No, she was the hostess, but she would give them stations on the floor." No determination that the Wreck Bar hos- tess was a supervisor was made in the Regional Di- rector's decision and direction of election as a result of the testimony adduced by the Respondent there. The Respondent offered no specific evidence of Marzio's supervisory authority in this proceed- ing. For example, it presented nothing to show that Marzio was ever informed that she had any such authority or that the employees allegedly under her were aware she had such authority. Nor is -there evidence of instances in which Marzio exercised any of these alleged supervisory functions. To the contrary, the evidence showed that Donnelly did the hiring and firing of all bar employees, including the cocktail waitresses. Under these circumstances, we find the evidence insufficient to establish that Marzio was a supervisor as defined in the Act, and we are thus unwilling to disturb the judge's treat- ment of her as an employee who is protected by the Act. Local 355 has excepted to the failure of the judge to find 16 additional discharges to be unlaw- ful. Concerning 2 of these additional 16 discharges, we find merit to Local 355s exception. The testi- mony of Donnelly, which the judge credited, es- tablished that pursuant to questioning by General Manager Rosen, Donnelly told Rosen that employ- ees Randy Feigin and Andrea Mignoli would vote for Local 355 in the 27 March 1980 election. Rosen ordered Donnelly to fire both employees because of their support for Local 355, and Donnelly there- after carried out Rosen's orders. In light of this credited testimony, and the Respondent's failure to establish through credible evidence that these two employees would have been discharged regardless of their union activities, we find the discharge of 957 Feigin on 29 December 1979 and Mignoli on 23 December 1979 violative of Section 8(a)(3).11 Concerning the remaining 14 discharges alleged by Local 355 to be unlawful, we find the evidence insufficient to establish that these employees were discharged for their union activities. Although Donnelly testified that he told Rosen that these 14 employees supported Local 355, there is no evi- dence, unlike the cases of Feigin and Mignoli, that Rosen told Donnelly to fire them because of this support and that Donnelly carried out Rosen's orders. 12 3. The judge found that the Respondent violated Section 8(a)(2) and (1) of the Act by instructing su- pervisors to discharge employees who favored Local 355, and by instructing supervisors to speak with employees and make such promises and/or threats as were necessary to persuade them to vote for Local 3 in a representation election. The judge additionally found that, between the months of De- cember 1979 and March 1980, Supervisor Donnelly carried out the Respondent's instructions in viola- tion of Section 8(a)(1), (2), and (3). We affirm the judge's finding that Supervisor Donnelly unlawful- ly carried out the Respondent's instructions. We disagree, however, with the judge's finding that General Manager Rosen's instructions to supervi- sors were unlawful in and of themselv6s.13 As recently explained in Resistance Technology, 280 NLRB 1004 (1986), action, taken in contempla- tion of committing unfair labor practices is not, without more, itself an unfair labor practice. The mere issuance of instructions to supervisors to per- 11 As these discharges occurred within the 6-month limitations period prior to the filing of the amended charge in Case 12-CA-9184 in which they were alleged, the 10(b) requirement has clearly been satisfied The Respondent contends in its brief that Mignoh quit rather than having been fired. The Respondent points to Mignoli's personnel file in which her termination notice states that Mignoli "Quit-Can't work the hours." That assertion is, however, rebutted by the testimony of Donnel- ly, who wrote the termination notice. Donnelly testified that Rosen in- structed him to fire Mignoli because she was going to vote for Local 355 and that Rosen told him to put down that it was because she could not work the hours. 12 In affirming the judge's finding that the Respondent discharged em- ployees in violation of Sec 8(a)(3) and (1), we disavow the judge's com- ment that the Respondent "rid itself of many, if not its entire complement of unit employees, in order to undermine Local 355, or all unionization of its business." Of over 100 employees in the bargaining unit, we have found the Respondent to have unlawfully discharged only 9 employees. We likewise disavow the ,fudge's statement that the Respondent did not offer any evidence to show that all the discharged employees, would have been discharged in any event, and that Wright Line, 251 NLRB 1083 (1980), is not applicable The Respondent did in fact offer testimony that certain of the employees would have been discharged for reasons irre- spective of their union activities That evidence, however, was not cred- ited by the judge, and thus the Respondent failed to establish that it would have taken the same action in the absence of the employees' union activities Accordingly, under the Wright Line analysis, the discharges were violative of Sec 8(a)(3) and (1) 18 Based on his and Member Stephens' separate opinion in Resistance Technology, 280 NLRB 1004 (1986), Member Babson does not pass on whether this conduct, without more, constitutes an additional violation 958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD form unlawful actions is not a violation if those in- structions are neither carried out nor-disclosed to the employees. In this case, it is clear that Donnel- ly both carried out the Respondent's instructions, as detailed in the judge's decision, and disclosed those instructions to unit employees. Employees Blenke, Grinon and Reisler, all of whom the judge found to be credible witnesses, testified to Donnel- ly's having told them of various instructions from Rosen. Reisler, for instance, testified that in, Janu- ary 1980 Donnelly told her he had been ordered by Rosen to fire Blenke and Grinon because they were for Local 355. Accordingly, we affirm those findings of the judge regarding Donnelly's carrying out of Rosen's instructions, but we shall delete from his recommended Order the requirements that the Respondent cease and ' desist from instructing supervisors to violate the Act, since instructions alone are not unlawful. We shall, however, add a provision requiring the Respondent to cease and desist from informing or indicating to employees, through its supervisors, that supervisors have been instructed by management to ascertain and report to management their union activities and sympa- thies, and to take retaliatory action based thereon. We shall also adopt those portions of the judge's Order requiring ' the Respondent to cease and desist from the unlawful actions actually carried out.14 4. The judge also found that the Respondent vio- lated Section 8(a)(5) by unilaterally discontinuing its deduction of employee dues to Local, 355 with- out notice to or consultation with Local 355. The Respondent excepts to this finding, contending that the judge was precluded from finding the violation as it was not alleged in the complaint. Without passing on the merits of the Respondent's conten- tion, we find, contrary to the judge, that the Re- spondent's action in this regard was lawful. - It is undisputed that on 28 June 1979, the ' Re- spondent purchased the Castaways Motel and con- tinued, without change, the operations and employ- ee complement of the motel. The Respondent ad- mitted that it is a successor of Castaways Motel. As the motel's employees were represented by Local 355 at the time of purchase, the ,Respondent had a duty to bargain with Local 355 over its em- ployees' terms and conditions of employment. However, as a successor employer, the Respondent had ' no duty to honor, nor did it agree to honor, the collective-bargaining agreement in effect be- tween the motel and Local 355 at the time of pur- 14 We, note that the judge, in the portion of his decision entitled "Re- spondent Rendered Aid and Assistance to Local 3," also found that the Respondent instructed its supervisors to find ways to stall Local 3 from negotiating a contract by helping Local 3 It is, apparent that this finding contained a typographical error, and that the judge meant that the Re- spondent instructed its supervisors to find ways to stall Local 355 chase. The Board has held that, -after the termina- tion of a collective-bargaining agreement, an em- ployer has no obligation to continue its compliance with the dues-checkoff provision in the agreement. Hassett Maintenance Corp., 260 NLRB 1211 (1982). Accordingly, we ' reverse the judge's, finding, to the contrary. 1 s 5. The appropriate remedy in this case is at issue. The judge found that any evidence, as to the validi- ty of the representation petition filed by Local 3 in Case 12-RC-5741 fell outside the 10(b) limitations period, thereby precluding a finding that the peti- tion was not valid. The judge, also found merit in Local 355's objections to the election that paral- leled the substantive violations found. The judge therefore re'commen'ded' that the election be set aside and a new election conducted. The judge also found that the Respondent made certain unlawful unilateral changes in violation of Section 8(a)(5), but did not fully' remedy these violations.16 The General Counsel and Local 355 except to the judge's failure to dismiss, the petition in Case 12- RC-5741, and the -Respondent excepts both to the holding of a new election and any bargaining order. The first issue to be addressed is whether the pe- tition 'filed by Local 3 in Case 12-RC-5741 is valid. We find that it'is. Any evidence of unlawful assist- ance to Local 3 prior to its 1 October 1979 filing of the representation petition is both barred by Sec- tion 10(b) and discredited by the judge. Thus, we have found misconduct occurring ' prior to 21 No- vember 1979, the -earliest date on which a valid charge could support the finding of unlawful assist- ance, to be barred by Section 10(b). Additionally, allegations that agents of 'Local 3 were escorted around the Respondent's premises and assisted by former Comptroller William Collins were specifi- cally discredited by the judge, whose credibility resolutions we have affirmed. We therefore find the election petition to be valid. We also agree with- the judge that the Respond- ent's January 1980 unilateral grant of a wage in- 15 The judge found, inter alia, that the Respondent violated Sec 8(a)(5) by granting employees a raise and thereafter rescinding the raise without notifying or consulting with Local 355 The record, however, does not support the finding that the raise was rescinded Rather, the record establishes that a wage increase, was given to the Respondent's waitresses in late December 1979, or early January 1980, and was not subsequently rescinded. A similar raise had been promised by the Re- spondent to its bartenders, but, before it went into effect, the Respondent rescinded the promise: Under these circumstances, we find that the Re- spondent did not unilaterally rescind the 9, January 1980 wage increase and we dismiss that allegation of the complaint 16 The judge's recommended Order contains no affirmative provision that the Respondent bargain with Local 355 over any unilateral changes However, his notice contains language that the Respondent bargain with Local 355 over terms and conditions of employment and embody in a signed agreement any understanding reached - CASTAWAYS MANAGEMENT crease to some unit employees without notice to or bargaining with the Union was violative of Section 8(a)(5). It is undisputed that on 28 June 1979, when the Respondent purchased the Castaways Motel, Local 355 was the exclusive bargaining representa- tive of the motel's employees and was party to a current collective-bargaining agreement with the motel. The Respondent, in its answer to the con- solidated complaint admitted, that, since the pur- chase, it has been "engaged in the same business operations, at the same location, selling the same service to substantially the same customers, and has, as a majority of its employees, individuals who were previously employees of the motel." The Re- spondent further admitted that it has "continued the employing entity and is a 'successor of Cast- aways Motel." Under these circumstances, it is well settled that as a successor employer, the Re- spondent, although having no obligation to assume the then-existing collective-bargaining agreement, had an obligation to recognize and bargain in good faith with Local 355. This bargaining obligation is not excused by Local 3's filing of the petition in Case 12-RC-5741 on 1 October 1979. The Board has held in RCA Del Caribe, 262 NLRB 963 (1982), that the mere filing of a representation petition by an outside, challenging union does not require or permit an employer to withdraw from bargaining or executing a contract with an incumbent union. Rather, the employer must continue to engage in good-faith bargaining with the incumbent and exe- cute any contract reached.17 Based on the record in the instant case we, are unwilling to find, nor has any party urged us to find, that, under the prin- ciples set forth in RCA Del Caribe, the Respondent violated Section 8(a)(5) by a general refusal to bar- gain in good faith with Local 355 in the face of a valid petition filed by Local 3. However, the Re- spondent was not free to make unilateral changes in employees' terms and conditions of employment merely because of the pendency of the petition. See, e.g., Grede Foundries, 235 NLRB 363, 377 (1978). Accordingly, we find that the Respondent violated Section 8(a)(5) by unilaterally granting certain employees a wage increase, and we shall provide that the Respondent affirmatively bargain, on request, with Local 355 over any changes in terms and conditions of employment.1 a 17 Chairman Dotson did not participate in RCA Del Caribe, above, and expresses no view here on whether that case was correctly decided. However, absent a majority to overrule it, the Chairman considers him- self institutionally bound to apply that precedent in appropriate cases. is Although we are not issuing a general bargaining order in this case, we emphasize again that the Respondent does indeed have a bargaining obligation with Local 355 that was not extinguished by the Local 3 peti- tion. 959 As we have found the petition in Case 12-RC- 5741 to be valid and as we agree with the judge for the reasons stated by him that Local 355's objec- tions to the election are meritorious, we shall set aside the election and direct the Regional Director to conduct a new election at such time as the Re- gional Director determines that the Respondent has fully complied with the Order.19 AMENDED CONCLUSIONS OF LAW 1. Delete the judge's Conclusion of Law 4. 2. Substitute the following for the judge's Con- clusion of Law 8. "8. By informing or indicating to employees, through its supervisors, that supervisors have been instructed by management to ascertain and report to management their union activities and sympa- thies, and to take retaliatory action based thereon, the Respondent violated Section 8(a)(1) of the Act." 3. Delete the judge's Conclusion of Law 13. 4. Substitute the following for the judge's Con- clusion of Law 14. "14. By granting employees a raise without noti- fying or bargaining with Local 355, the Respond- ent violated Section 8(a)(5)` of the Act." 5. Renumber the judge's Conclusions of Law.in accordance with the above modifications. ORDER The National Labor Relations Board orders that, the Respondent, Castaways Management, ` Inc., \ Miami, Florida, its officers, ,.agents, successors, and assigns, shall 1. Cease and desist from (a) Prohibiting representatives of Local 355 from coming onto its premises to organize its employees while at the same time permitting representatives of Local 3 to come onto the;,premises for the same purpose. (b) Permitting representatives of Local 3 to dis- tribute literature to employees during worktime while prohibiting representatives from Local 355 from distributing literature during employee work- time. 1B Although the tally of ballots of the election reveals that there were 15 challenged ballots, a sufficient number to affect the outcome of the election, the parties stipulated at the hearing that 5 of the challenged voters were ineligible to vote in the election As the remaining 10 chal- lenged ballots are insufficient in number to affect the election results, we set aside the election and disavow the judge's statement that the Regional Director may "in his discretion , consider what bearing the 5 individuals stipulated as ineligible to vote may have on his decision [to conduct a new election] " In listing the results of the 27 March 1980 election, the judge states that 207 ballots were cast. Based on the tally of ballots, only 114 ballots were cast. The judge's statement of the election results is otherwise cor- rect 960 DECISIONS OF THE NATIONAL- LABOR RELATIONS BOARD (c) Telling employees that Local 355'is not doing anything for them, while Local 3 can. (d) Threatening to revoke wage increases and/or to fire employees if they do not vote -for Local 3 in a representation election. '(e) Informing or indicating 'to employees, through its supervisors, that supervisors have been instructed by management to ascertain and report to management their union activities and sympa- thies, and to take retaliatory action based thereon. (f) Threatening-employees or making-promises to them in order to persuade them to vote for Local 3 in a representation election. (g) Attempting to avoid its,obligation to bargain with Local 355, by implementing plans to aid, sup- port, or assist Local 3 or any other labor organiza- tion in its organizing efforts. (h) Threatening to discharge, or in fact discharg- ing, employees in order to discourage membership in Local 355 or any other labor organization. (i) Discharging, employees because of their mem- bership in or activities on behalf of Local 3. 0) Granting employees a raise without notice to or bargaining with Local 355. (k) Discouraging membership in or, activities on behalf of Local 355, Local 3, or any other labor or- ganization by discharging or otherwise discriminat- ing against employees in any manner in respect ,to their tenure of employment- or any term or condi- tion of employment in violation of Section 8(a)(1) and (3). (1) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed in Section 7. 2. Take the following affirmative action -neces- sary to effectuate the policies of the Act. (a) Offer Grinon, Blenke, Downs, Linder, White, Marzio, Gil, Feigin, and Mignoli immediate and full reinstatement to their former jobs or, if, those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them, with interest, in the manner-set forth in the remedy section of the administrative law judge's decision. (b) Remove from its, files any reference -to the unlawful discharges of the discriminatees named herein, and notify the - employees in writing that this has been done and that the discharges will not be used-as a basis for future personnel action. (c) Bargain, on request, with Local 355 with re- spect to any changes in rates of pay, wages, hours of work, and other terms and conditions of eap- ployment. (d) Preserve and, on request, make available to ,the Board or-its agents for examination and copy- ing,, all payroll records, social security payment records, timecards, personnel records, and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Miami ,Beach, Florida facility copies of- the attached notice marked "Appen- dix.' "20 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed, by- the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that, the notices are not altered, defaced, or covered `by any other material. (f) Notify the ^ Regional Director in writing within 20 days from the date of this Order what steps the Respondent ha's taken to comply. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations-of the Act not found herein. IT IS FURTHER ORDERED that the election held in Case 12-RC-5741 be set aside and that the case be remanded to the Regional Director- for Region 12 for'the purpose of holding a second election. [Direction of Second Election omitted from pub- lication.] 20 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES, POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United- States Government The National Labor Relations Board has found that we violated the National Labor ' Relations Act and has ordered us to post and abide by this notice. WE WILL NOT prohibit representatives of Hotel, Motel, Restaurant & Hi-Rise Employees & Bar- tenders Union, Local 355, AFL-CIO from coming onto our premises to organize our employees while at the same time permitting representatives of Hotel, Resort Service Union , Local 3 of Greater Miami & South Florida Area to come onto our premises for the same purpose. CASTAWAYS MANAGEMENT 961 WE WILL NOT permit representatives of Local 3 to distribute literature to employees during work- time while prohibiting representatives of Local 355 from distributing literature during employee work- time. WE WILL NOT tell employees that Local 355 is not doing anything for them, while Local 3 can. WE WILL NOT threaten to revoke wage increases and/or to fire employees if they do not vote for Local 3 in a representation election. WE WILL NOT inform or indicate to employees that we are keeping records regarding their union sympathies and having our supervisors watch over and report to us regarding them. WE WILL NOT threaten employees or make promises to them in order to persuade them to vote for Local 3 in a representation election. WE WILL NOT attempt to avoid our obligation to bargain' with Local 355 by implementing ' plans to aid, support, or assist Local 3 or any other labor organization in its organizing efforts. WE WILL NOT threaten to discharge, or in fact discharge, employees in order to discourage mem- bership in Local 355 or any other labor organiza- tion. WE WILL NOT grant employees a raise ' without notifying or bargaining with Local 355; WE WILL NOT discourage membership in or ac- tivities on behalf of Local 355, Local 3, or any other labor organization, by discharging or other- wise discriminating against employees in any manner with respect to their tenure of employment or any term or condition of employment in viola- tion of Section 8(a)(1) and (3). WE WILL ' NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by Section 7 of the Act. WE WILL offer Joan Grinon, Kathleen Blenke, Kenneth Downs, Georgette Linder, Carol Lee White, Irene Marzio, Maximino Gil, Randy Feigin, and Andrea Mignoli immediate and full reinstate- ment to their former positions or, if such positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights previously enjoyed, and WE WILL make them whole for any loss of pay suffered by reason of the discrimination against them, with interest. WE WILL remove from our files any references to the discharges of the discriminatees named herein, and notify them in writing that this has been done and that evidence of these unlawful dis- charges will not be used as a basis for future per- sonnel action against them. WE WILL bargain, on request, with Local 355 with respect to any changes in rates of pay , wages, hours of work, and other terms and conditions of employment. CASTAWAYS MANAGEMENT, INC. Dolores Peer, Esq., for the General Counsel Joel I. Keller, Esq., of Washington, D.C., for the Re- spondent. Howard S. Susskind, Esq. and Steven Bloom, Esq. (Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro), of Miami, Florida, for Charging Party Local 355. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. On charges of unfair labor practices filed in Case 12-CA- 8831 on October 9, 1979, Case 12-CA-8985 on January 25, 1980, and Case 12-CA-9184 on May 21, 1980, amended on June 23, 1980, respectively, by Hotel, Res- taurant & Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO (Local 355), against Castaways Manage- ment, Inc. (Respondent), an order consolidating cases and the consolidated complaint and notice of hearing were issued by the Regional Director for Region 12, pursuant to Section 102.33 of the Rules and Regulations of the National Labor Relations Board on November 28, 1980. The consolidated complaint in substance alleges that on certain dates between August 1979 and March 1980, the Respondent, through its general manager, threatened employees by telling them that if Local 355 won the election their expected wage increase would be rescind- ed; that a supervisor told employees "if it were me, I would not vote in the election because the general man- ager would find out"; that if Local 355 won the election all of its bars would close; that if any employee showed up at the election to vote they would be fired; that the employees should vote "no" in the election or they would be fired; that Respondent rendered aid, assistance, and support to a competing union Local 3 by various interfering, restraining, and coercive ways specifically enumerated in the complaint, all in violation of Section 8(a)(1) and (2); that by terminating 61 employees because they joined, supported, or assisted Local 355 and en- gaged in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, Re- spondent violated Section 8(a)(3); and that since about July 31, 1979, Respondent had failed to recognize and bargain with Local 355 as the exclusive collective-bar- gaining representative of employees, and it granted a wage increase to certain employees and thereafter re- scinded the wage increase to the employees without giving notice to Local 355 and without affording Local 355 an opportunity to negotiate and bargain as the exclu- sive representative of its employees, in violation of Sec- tion 8(a)(5). Respondent timely filed an answer to the consolidated complaint on November 6 and December 22, 1980, deny- ing that it has engaged in any unfair labor practices as alleged in the complaint. The hearing in the above 962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD matter was held before me in Miami, Florida, on August 10-12, 1981, and November 16-20, 1981. Briefs have been received from the General Counsel, counsel for the Charging Party, and counsel for the Respondent, respec- tively, and they have been carefully considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT ' 1. JURISDICTION At all times material, the Respondent, a Florida corpo- ration, has had an office and principal place of business in Miami Beach, Florida, and has been engaged in the operation of a motel providing food and lodging for guests. In the course and conduct of its business operations during the past 12 months, Respondent derived gross revenues in excess of $500,000. During the same period of time, Respondent purchased and received at its Miami Beach, Florida facility goods, supplies, and materials valued in excess of $50,000, which were shipped directly to it-from points located outside the State of Florida. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7). II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that Hotel, Motel, Restaurant & Hi-Rise Employees & Bartenders Union Local 355, AFL-CIO, and Hotel, Resort Service Union, Local 3 of Greater Miami & South Florida Area are, and have been at all times mate- rial, labor organizations within the meaning of. Section 2(5). - A. Respondent's 10(b) Argument Counsel for the Respondent argued at the beginning of these proceedings and also in his brief, that the charge in Case 12-CA-9184 filed on May 21, 1980, merely' alleged an 8(a)(1) violation (since about December 1, 1979,, the Respondent made continuous threats to reduce employ- eeswages and benefits if they selected Local-355 as their collective-bargaining representative). More specifically, counsel argues that since more than 6 months has elasped since the onset (December 1, 1979) of the 8(a)(1) conduct alleged in the original charge filed May 21, 1980, and the amendment thereto, filed on June 23, 1980, the amended charge is barred by Section 10(b); and that the amend- ment is also barred because it contains new '8(a)(2), (3), (4), and (5) violations that are not related to the alleged $(a)(1) conduct set forth in the original charge, which was not repeated in the amendment. However, counsel' for Respondent's argument is not supported by controlling law, nor by the record. Section 10(b) of the Act provides in pertinent part, as follows. No complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the, person against whom such charge is made. . . The record ,shows that in the original May 21, 1980 charge, it is,essentially alleged that since about Decem- ber 1, 19'7,9, and continuing to date, the Respondent has threatened, restrained, and coerced employees by threat- ening to reduce wages and benefits if the employees se- lected the Charging Party as their collective-bargaining representative and did thereby violate Section 8(a)(1). A careful review of the language in the original charge, Case 12-CA-9184 filed on May 21, 1980, with the language in the amendment thereto filed June 23, 1980, clearly reveals that the language in paragraph 4 of the amended charge is essentially a repetition of the lan- guage in the original charge filed'on May 21, 1980. It is further noted that the alleged threat to reduce em- ployees' wages and benefits in the original charge was made on several dates between December 1, 1979, and May 21, 1980, which indicates that it continued up to the day of the election on March 27, 1980, and perhaps thereafter. The record does not show that such alleged threat was retracted by Respondent, but was allegedly repeated from time to time. Under the circumstances, it can,hardly be argued that the alleged 8(a)(1) conduct was a single and completed act, which ended, on Decem- ber 1, 1979, because the language says continuing to date since December 1, 1979, when the alleged unlawful con- duct first occurred. Concerning whether the language of Section 8(a)(1) and the language of the original May 21 8(a)(1) charge is broad enough for the inclusion in such charge of viola- tions of other sections of the Act, it is first noted how the Board and the courts have construed Section 10(b) in this regard. In Texas Industries v. NLRB, 336 F.2d 128, 132 (5th Cir. 1964), the court said: It is established that this section [10(b)] precludes the Board from issuing 'a complaint on its own initi- ative, and that a charge is a prerequisite to the insti- tution of proceedings before the Board . . . . How- ever, the charge is not a formal pleading, and its function is not to give notice to the respondent, of the exact nature of the charges against him ... . This is the function of the complaint. The charge rather, serves merely to set in motion the investigatory machinery of the Board. It is largely for the benefit of the Board, not the respondent, so that it may intelli- gently determine whether and to what extent an inves- tigation is warranted. Consequently, the Board has considerable leeway to found a complaint on events other than those specifically set forth in the charge, the only limitation being that the Board may not get "so completely outside . . . the charge that it may `be said to be initiating the proceeding on its own motion ... ." [Emphasis added.] Also, in North American Rockwell Corp. v. NLRB, 389 F. 2d, 866, 870 (10th Cir. 1968), the court said: The charge in the case at bar notified the petitioner that it was faced not only with the specific viola- tions alleged, but with "other acts and 'conduct" which "interfered with, restrained and coerced its employees in the exercise of rights guaranteed in CASTAWAYS 1VIANACEIIENT 963 Section 7 of the Act." This language is, to be sure, general, but it formed a sufficient basis for later spe- cific allegations. .. . It was noted in Indiana Metal Products Corp. v. NLRB, 202 F.2d 613, 619 (7th Cir. 1953), that "basing the complaint upon broad allega- tions in the charge-may well, at times, be unfair to an employer, but such interpretation is required by the broad language of Section 10(b)." Counsel for Respondent further argues that the allega- tions in the amended complaint do not relate to the 8(a)(1) allegations in the original May 21 charge. Howev- er, this contention is not supported by the law or the facts. More precisely in point here is the Board's decision in Great Plains Steel Corp., 183 NLRB 968, 974 (1970), cited by the General Counsel. There the Board held: With respect to the allegation of discrimination in violation of Section (a)(3) as a result of withholding approved wage increases although the charge was limited to allegations of violations of Section 8(a)(1) and (5), it is well settled that the complaint may contain allegations related to the same subject matter as that covered in the charge, even though the alleged violation involves a different section of the Act. As was recently reiterated by the Board, the applicable criteria are whether the allegations of the complaint are "related to and arose out of the same situation as that conduct alleged to be unlawful, in the timely filed charges." [Emphasis added.] Accordingly, I find that it may be reasonably con- strued from the language in the original May 21 charge that alleged threats by an employer to engage in the un- lawful conduct specified therein for the purpose of de- feating employees' right to freely select a collective-bar- gaining representative of their own ' choosing is broad enough to include other discriminatory, coercive, and re- straining acts by such an employer to prevent employees from selecting a representative of their own choosing. I further conclude and find that the 8(a)(2), (3), (4), and (5) allegations in the amended, charge, if substantiated, are sufficiently related to, and all arose out of, the same al- leged unlawful design by the Employer, as set forth in the May 8(a)(1) charge. Moreover, all such conduct is of a coercive and restraining character directed towards the same objective, to prevent employees from freely select- ing a collective-bargaining representative of their own choosing. - Consequently, I find on the foregoing documentary evidence, cited legal authority, and reasons that the al- leged 8(a)(2), (3), (4), and (5) violations in the amended charge were sufficiently related to the 8(a)(1) alleged violation in the original May 21 charge. I also find no evidence of abuse of discretion by the Regional Director for Region 12 in permitting the amended charge of June 23, 1980, or in issuing a consolidated complaint on the allegations in the amended charge, and neither were barred by Section 10(b) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts During these proceedings, Respondent stipulated in paragraph 2 of the consolidated complaint that about June 23, 1979, Respondent purchased the business entity known as Castaways Motel, and since that date has en- gaged in the same business operations, at the same loca- tion, selling the same service to substantially the same customers, and has as a majority of its employees indi- viduals who were previously employees of Castaways Motel. Consequently, I find that the Respondent has con- tinued the same business operations as a successorship to Castaways Motel. Prior to the purchase of Castaways Motel by Respond- ent, the unit employees, described below, were represen- tated by Local 355, and the evidence does not show that representation was interrupted or that Respondent doubt- ed its majority at any time prior or subsequent to Rosen becoming its general manager on July 27 or 29, 1979. In fact, the undisputed evidence shows that shortly after Rosen assumed his managerial duties, representatives of Local 355 requested him to negotiate with, them on sev- eral matters and Rosen told them he would get back with his attorney, but neglected to do so. Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 12 on Janu- ary 2, 1980, an election by secret ballot was conducted under the Regional Director's supervision on March 27, 1980, among the unit employees' of Respondent to de- termine whether they desired to be represented by Hotel, Motel, Restaurant & Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO (the Intervenor), Hotel, Resort Service Union, Local 3 of Greater Miami & South Florida (the Petitioner), or neither. The tally of ballots served on the parties subsequent to the election revealed that of approximately 199 eligible voters, 207 cast ballots. Of these, 39 were cast for the In- tervenor (Local 355), 2 for'the Petitioner (Local 3), and 52 against participating labor organizations; 15 ballots were challenged and 108 valid votes plus challenged bal- lots were counted, 6 ballots were' void, and 93 valid votes were counted. Consequently, the challenged ballots were sufficient in number to affect the results of the elec- tion. The ballots of 13 of the voters were challenged by Board agents conducting the election because their names did not appear on the eligibility list. One ballot was challenged by the Intervenor (Local 355) on the grounds that the person was a supervisor, and one ballot was challenged by the Employer on the same grounds. On June 19, 1980, Intervenor filed objections to the conduct of the election and properly served a copy on the Employer and the Petitioner. ' Employees constituting a unit appropriate for purposes of collective bargaining within the meaning of the Act are- All full-time and regular part-time housekeeping employees, coffee shop employees, maintenance employees, PBX operators, bellmen, bellhops, pool and beach service em- ployees, and bar employees, excluding all office clerical employees, pro- fessional employees, managerial employees, liquor control clerks, guards, and supervisors as defined in the Act. - 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In a letter dated June 26, 1980, Petitioner took the po- sition that none of the 15 challenged ballots should be counted. Based on the conflicting evidence of the eligibility of the challenged voters, it was the opinion of the Regional Director for Region 12 that the issues raised by the chal- lenged ballots could best be 'resolved after a hearing. On May 21 , Intervenor (Local 355) filed a charge alleging a violation of Section ' 8(a)(1), and on June 23, 1980, amended the charge alleging violations of Section 8(a)(2), (3), (4), and (5). Concluding that these charges had merit, the Regional Director for Region 12 ordered a hearing on the matters contained in the consolidated complaint in Cases 12-CA-8831, 12-CA-8985, 12-CA- 9184, 12-CA-9179, and 12-RC-5741. During the trial, the parties stipulated that the follow- ing named individuals were ineligible to `vote in the elec- tion conducted on March 27, 1980: 1. Ernesto Ramos 4. Esther Noonez 2. Willie Vassar 5. Ricardo Simon 3. Jose Prieto At all times material, the following named persons oc- cupied the positions set forth opposite their respective names, and are now or have been supervisors within the meaning of Section 2(11) and agents of Respondent within the meaning of Section 2(13): Charles Rosen General Manager Buzz Collins Comptroller Larry Cliff Public Relations Manager Dennis Keane Maintenance or Security Director James Donnelly Acting Manager of Beverage Department 11/15/79-11/25/79; Manager until 4/3/80.2 B. Union Activity on Respondent's Premises, Respondent's Involvement A composite of the essentially undisputed , corroborat- ed, and therefore credited testimony of bartenders or waitresses Kathy Blenke, Joan Grinon and Ronda Reisler established that the Respondent was purchased by new ownership about June 1979. There was no change in per- sonnel , nor in the mode of business operations . Prior to the change in ownership, the employees were represent- ed by Local 355 and there was no evidence that there was a change in representation at the time ownership changed. In August or early September 1979, Rosen called a company meeting of employees in which he in- troduced himself as general manager and Larry Cliff as manager of public relations. At that time, Gary Jackson was manager of the bars in the hotel and Blenke and other bartenders and waitresses worked under his super- vision. Donnelly was head bartender, but he did not have authority to hire and fire, and was not a supervisor at the time . In about mid-November 1979, Donnelly became acting manager of the beverage department 2 The facts set forth above are undisputed and are not in conflict in the record. (bars) and a memorandum from management was circu- lated directing employees under his supervision to re- spect him as such. About 7 to 10 days thereafter, Don- nelly testified that he was appointed manager of all bars by Rosen, and a notice -was posted to that effect . Thus, it would appear that Donnelly became beverage manager in about late November or early December 1979. Manag- er Rosen essentially corroborated Donnelly's testimony in this regard. As acting manager, Donnelly's duties included taking inventory of liquors and supplies for the bars, making out work schedules for the bartenders,- deciding when to close the bars in the absence of Jackson , and recom- mending or giving his opinion to Jackson on hiring and firing of personnel. Jackson always followed Donnelly's advice (specifically in discharging Michelle Daniels). After Donnelly became manager, he scheduled the work of all the beverage employees, porters, barboys, bar- maids, bartenders, doormen, hostesses and hosts, cashier, and ID checkers. He testified he hired and fired employ- ees and' he worked about 18 hours a day. According to the testimony of Donnelly, -after Rosen became general manager in July 1979 , employees were asked to complete an application -for employment (G.C. Exh. 10(s)(1)), the reverse of which read as follows: I agree that as a condition to and for employment that I will undergo a polygraph test before employ- ment or at any time during the course of employ- ment at any time selected by the Employer. In October 1979 Donnelly said Rosen told him all the employees who signed the above application (G.C. Exh. 10(s)(1)) would not have , to take a polygraph test if Local 3 won the upcoming election scheduled for- late January 1980. Joan Grinon corroborates that Donnelly told her about this, Donnelly further testified that he had seen representatives of Local 3 on the premises in Sep- tember 1979 talking to employees , and again in October distributing union cards. Blenke `undisputedly testified that after Rosen became manager, Respondent discontin- ued deducting union dues ' froth employees , pay, but Union Representative Menditto would nevertheless come on the premises and collect dues for Local 355. Blenke also testified that in or about September or Oc- tober she had a conversation with Supervisor Jackson about his asking employees to sign cards for ' another union (Local 3), which the employees were refusing to sign. She told Jackson she would represent the employ- ees as she desired and he told her she was no longer steward for Local 355 because there was no union on the premises and employees were representing themselves. Blenke told Jackson she did not believe that because Local 355 still had the contract. Donnelly, who was present during the conversation , told her she was crazy for doing so.3 Blenke further testified without, dispute 3 Jackson did not appear or testify in this proceeding but the parties stipulated that he was a supervisor al the times relevant to testimony ad- duced CASTAWAYS MANAGEMENT that Donnelly told her he did not want anyone soliciting membership for Local 355 and that representatives of Local 355 were not allowed on the premises. She said when Rosen came into the bar in mid-October 1979, she asked him about pay for her upcoming vacation because the other employees had received theirs under the previ- ous management. Rosen told her he felt that was unfair and that Local 355 was not doing its job for the employ- ees and he hoped Local 3 would win the election be- cause he thought they would do a better job. Rosen denied he made the latter statements. In December 1979 Marizo, in the presence of Grinon and Blenke, asked Manager Donnelly how should she vote in the election scheduled for late January. Donnelly said he would not vote if if were up to him because Rosen would be present at the polls and would know who voted; that Rosen was going to watch employees, threaten them. Donnelly also told them if Local 3 won the election, Rosen said management would pay the dues for them. As steward, Blenke said she responded, "that was unheard of, management paying dues. It shows who was working for whom." Grinon corroborated Blenke's testimony in this regard. Correspondingly, Grinon testified that in early January she asked Donnelly what would be a good time of day to vote, and Donnelly said any time would be a bad time because Rosen was going to have someone to see who is going to show up and take notes on those who appear and vote. Blenke testified that in January or February 1980, Donnelly asked her why she was still paying dues as there was no union; that she was crazy for doing so. On Friday night, February 29, 1980, Grinon testified undisputedly that Donnelly came to her and told her he needed her $300 bank and she gave it to him. That was the last night she worked. The next night, Blenke called her and told her Respondent would not allow her to go to work because she was fired. On the following Monday, Grinon stated she met with, Rosen and he showed her a letter (last f page of R. Exh. 3) and told her he did not have a choice, he could not go back on his word but would have to discharge her. Blenke testified that she was told by Rosen in late February or early, March she was discharged because of a customer's letter of complaint (last page of R. Exh. 3). Blenke admitted she had been previously suspended 3 days for insubordination because Supervisor Jackson had ordered her three times to serve a customer with a whis- key sour straight up,' and she failed to do it. She ac- knowledged she wrote on the unemployment compensa- tion form (R. Exh. 5) opposite discharge: "no special reason." The Union did not file a grievance about her suspension. Ronda Reisler testified that in January or February 1980, she heard Donnelly ask Keane "what was this about Local 3 coming all over the place?" Keane turned around and said, "Well, hey if that is what the man wants, leave it alone. We have no other choice." She later asked Donnelly to whom was Keane referring, and Donnelly said, "Charles Rosen." Reisler corroborated prior testimony that Respondent discontinued paying the dues to the Union in August and a representative for Local 355 came on the premises to collect dues. She cor- 965 roborated Grinon and Blenke's testimony that in late January or February 1980, Donnelly was talking to Grinon and Blenke about Local 355 and Local 3. Reisler also told how porters and other employees were quite disturbed because they were supporting Local 355 and learned that Local 355 representatives were not allowed on the premises, while a representative of Local 3 was on the premises soliciting. Reisler became a personal friend of Donnelly in Sep- tember 1979 and married him January 13, 1980. After her marriage to him, she asked him why Bucky Temperio, representative of Local 355, was coming to their house to see him, but Donnelly declined to answer her. Shortly after that, Donnelly told her he was going to distribute literature for Local 355 to help Temperio too. She told Donnelly she did not understand him talking about Local 3 and helping Local 355. Donnelly said Rosen instructed him to support Local 3. She asked why he was helping Local 355 and Donnelly said he did not want her in on anything. On request and orders from Rosen, Reisler served as an observer for the Respondent at the election held on March 27, 1980. Just before the election she overheard Donnelly tell Rosen that a lot of the employees may not show up at the election, and Rosen told Donnelly, "if they can't get here, then send a cab here, cab to their house. I want them at this election." Immediately after the election, Reisler said Rosen asked her how it went and she advised him that it did not look to good. Rosen told her, "I want a list from everyone in your depart- ment that did not show up." She told Rosen in the pres- ence of Donnelly that she felt the election was illegal be-, cause of noncompliance with the rules governing elec- tions; that there were conversations in progress among the voters and representatives of Local 355 and Local 3. She asked Rosen what would happen if Local 355 wins and somebody accuses him of promoting Local 3. Rosen threw up his arms and said, "It doesn't matter. I'm just going to deny everything." When the observers walked into the election, Donnelly, Rosen, Kyler, counsel for the Respondent, and Temperio of Local 355 were stand- ing outside. She does not know how long they remained outside. C. Testimony of Donnelly James (Jim) Donnelly testified that about October 1979 he attended a meeting in Rosen's office with Public Rela- tions Manager Larry Cliff and -Company Comptroller Dennis Keane at which time Manager Rosen carried on the following conversation- A. Started talking about Local 3 coming in and getting voted in as the union for the house, and how the benefits would be much better, and that he could sign his own ticket because the man who was the President of Local 3 was a personal friend of his, and if he could get him the hotel, if they could win the hotel, he could almost sign his own ticket, but that the workers wouldn't have to worry be- cause they would get better benefits and if he could 966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD arrange it somehow, the dues would be paid with- out it coming out of their own salaries . . . . Q. Do you recall 'anything being said in that meeting about any other labor organization? A. Only that if 355 was to be seen on the proper- ty that we should tell them that they had to leave the property, and if they didn't, get in touch with Mr. Rosen at once. Do not permit them to solicit any material or talk to people on the property. Rosen also told , them the employees would be able to take full advantage of a dental plan that he could get be- cause he was in charge of the insurance that the employ- ees would have all at the expense of the Company. Donnelly testified that he had many other such discus- sions, with Rosen, specifically in November when the conversation in Rosen's office was as follows: A. Rosen was talking about an election that was going to be coming up between Local 3 and Local 355, because they had received enough of percent- age of cards that they had to be signed. Both sides had received a great amount , and that there would be an election coming up, and that we would have to try to do everything possible to per- suade the people that work there to vote for Local 3, that we were supposed to tell them how the ben- efits would be better, how everything could work to their advantage if Local 3 got in, and that after we had tried and explained to them this way, what- ever people we were convinced were solid people then if we had to, -tell them that it could mean their jobs,-we were supposed to tell them that. Q. What else do you recall? A. Rosen started asking questions on how solid we thought different departments were, how many people and who they were, that , we would have to worry about... . THE WITNESs: Rosen asked us about the different people in our departments that was common knowl- edge that they were 355 people, who they were, and what could be done to convince them to vote for Local 3... . A. I told him people in the Beverage Department that we would have a problem with, that just by 'talking to them and telling them how good the ben- efits would be was not going to change their atti- tude towards-Local 355. 'Q. What, if anything, did he say in response to this? A. He would take the names and put them down on a piece of paper and build a list of the people that were going to be problem people. . . . Q. Did he give you any instructions on reporting things to him? A. Yes. Q. What did he say? A. To let him know how many people we could sway to go for Local 3, how many people we couldn't, and if we had any kind of solution we thought would be effective to make the people that would go for 355 change their, mind and go for Local 3.--. . . Q. What did he say -that you were to do? A. To keep him up-dated on what situation the hotel was in, as far as if an election was to take place on a given day, would we win or would we lose, what people would have to sway, and what could we do to sway them, what would we have to do. Donnelly testified that , he gave Rosen a report every , couple of days from that time until the day of the elec- tion on March 27, 1980. He said he would tell Rosen how, many people were going to vote Local 3, how many were going to vote Local 355, how many were not going to show up to vote, and the names of 'those per- sons he believed would not change their minds one way or the other. In one such report, Donnelly said he told Rosen that Grinon, Blenke, Downs, Marizo, Daniels, and Vitti were all solidly for Local 355; that Bobby Alailima may not vote if she thought she would lose her job; and perhaps he could persuade her not to vote at all. As he talked, Rosen was recording the names of the persons he called. Donnelly , continued to testify as follows: Q. What, if anything, did Mr. Rosen respond at that time? A. After I gave -him all the names, he said to me: Okay, we are going to have to decide what to do with them, whether we can talk to them, maybe I can talk to some of them, maybe you can talk to some of them, but something is going to have to be done because we can't lose this election. Donnelly further testified that he ,gave Rosen such a report in December 1979 when 'he gave him the-names of employees in other departments who were supporting, Local 355. In late December 4979 Donnelly testified that the fol- lowing occurred: A. I had told Mr. Rosen that people that I had already told him about, I had attempted to talk to them and try to sway them from voting 355, to vote Local 3, that it appeared that there was nothing that I could say to them to convince them, so he asked me: Is there anything that they are doing; wrong that we could fire them for, that wouldn't look like we are doing wrong that we could fire- them for, that wouldn't look like we are just firing them be- cause we know they are not- going to vote 355- they are not going to vote 3, Local 3. Donnelly said he gave Rosen information about cer- tain employees coming in late, failing to work at the bar as he directed them to, and people who were making other people constantly uncomfortable , as evidence of reasons to discipline them . Donnelly continued to testify as follows: He asked me, if, we went about-he asked' me ex- actly what could we do to get rid of Kathy and i CASTAWAYS MANAGEMENT 967 Joan Grinon behind the bar, so I told him that with Joan, we could get rid of her because she is always punching in late every day. .. . She was supposed to be in 9:00 o'clock every night. She was always punching in 9:03, 9:12, 9:11. I said I guess that is a technicality to get rid of her, so he said: Okay, what about Kathy? I said: I don't know what technicality you are going to use, but no matter what you use, I don't think that anybody is going to believe it, because she is the shop steward of the union, and it is going to be pretty obvious that we all ,know she is going 355, voting 355, and now it's out in the open that everybody knows you want, Local 3, that no matter what we do to get rid of her I don't think anybody is going to believe anything, and, at that time, Mr. Cliff, who was, his actual title was Sales Manager but he was Mr. Rosen's assistant, he said that he had alredy asked her twice about her personality with customers at the bar, that it was very poor, that we could use that as an excuse to get rid of her. Mr. Rosen nodded in agreement, and they asked me about the other people that I have given names to, and I suggested-they wanted to get rid of a gentleman by the name of Paul Vitti who had been a bartender there for about eighteen years and had a short period of time to go before retirement, but he was very strong with the Union, 355. 1 didn't think that they should let him go, be- cause he was there for so many years, and I felt that one vote in the end wouldn't hurt us, as far as him. Mr. Rosen was very strong on getting rid of him, because he figured he could use the excuse of his age, because he was very old, that his age was cost- ing us money, that if he had put somebody younger behind there we would make more money, to say that he couldn't keep up with his job any more. I tried to convince him that he shouldn't get rid of him, because one vote wouldn't matter. Subsequently, from late December 1979 through Janu- ary 13, 1980, Donnelly testified that he talked to Rosen daily about the employee's attitude towards Local 355 or Local 3. His conversations with Rosen were of the same character as their prior conversations, except Rosen said the Company had to do something fast because the elec- tion date was approaching. During the same period, late December to January 13, Donnelly said he received an Excelsior list from Rosen and one from Buck Temperio of Local 355. He said he gave the list he received from Temperio to Rosen. He stated he had been assisting Temperio in soliciting cards for Local 355 since about mid-October 1979. He told Rosen how Temperio had re- quested his assistance because they knew he was non- union, and he could influence other nonunion employees in the beverage department. Their conversation contin- ued as follows: Mr. Rosen said to me: Well, I guess the only way you are going to be able to obtain their faith and trust is to help them to a certain extent, so I asked him: Well, what do you think I ought to do? He said: Go along, and do what they are asking you to do, but don't do it to the capacity that we are going to lose people. Rosen told him not to take the people he had already convinced not to vote for Local 355, leave them alone, and work on the ones who are holding steadfast to Local 355. Donnelly had taken a list (G.C. Exhs. 12(a), (b), (c)) of employees from the desk of Rosen in February 1980 that he gave to the attorney for Local 355 in June 1980. About 98 of the names on the list had been checked with an X and/or had 355 or 3 opposite them. Donnelly held discussions with Rosen about the names on the list be- tween October 1979 and February 1980, during which times he identified the names of those persons on the list who were in favor of Local 355. In order to persuade or force employees to abandon Local 355 and vote for Local 3, Donnelly and Rosen engaged in numerous strat- egy conferences about how best to accomplish their ob- jective. According to Donnelly, they resorted to some of the following: 1. To tell an employee the only way he or she could keep his job was not to show, up and vote. If the person said no, an X and 355 was placed oppo- site his or her name. On some occasions Donnelly told Mr. Rosen to fire an employee who was a strong supporter of 355 (Downs). In February 1980, upon Donnelly's recommendation, Mr. Rosen told him to fire Downs and Donnelly fired Downs. On other occasions, Donnelly and Rosen agreed to fire other employees, such as Grinon who was a member of 355 and in Respondent's employ 6 years. She was fired in February of 1980. Donnelly acknowledged he told Blenke and Grinon it did not matter if Local 355 won the election because none of them would be working the day after that. When Blenke and Grinon asked him why, Donnelly said: "Because Mr. Rosen guaranteed me that if 355 wins the election that I could guarantee every barmaid and every bartender and every waitress and every beverage person in the hotel that not one bar would be opened the next day. He would close them down rather than turn the hotel back over to 355." Other employees were threat- ened by Donnelly that they would be demoted, receive a reduction in salary, cut in working hours, transferred, or actually fired, if they did not vote for Local 3 or refused to show up and vote on election day. Donnelly testified that the persons he identified as the clique who should be fired were as follows: Joan Grinon, Katheline Blenke, Irene Marzio, Paul Vitti, and Kenneth Downs; all of whom were supporters of Local 355. Except for Vitti, they were all fired either by Donnelly or Rosen in accordance with the plan before the election held on March 27, 1980. Donnelly also testified that on the day before the elec- tion (March 26, 1980) Rosen held the following conver- sation with him in the presence of Dennis Keane: t 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. "Mr. Rosen said to me: Jimmy, there's been a change in plans. -1 said: What's the matter now? He said: Nothing's the matter, but I need for you to tell me something. I said: What is it? He said: If I told- you now that we don't want Local 3 no more, that I want you to change the whole election around so that we win it completely, the house wins, could you do it? I said: I don't know. You want-you are giving me less than twenty-four hours. You know, you are almost asking, I've got to go crazy running around. He said: Tell me what you think. Do you think you can do it? I I said : I think I got thirty-eight solid' people that will follow me whatever I tell them to do. If you want to trust that I am telling you they will follow me, then I think we can pull the elec- tion whatever way you want to pull it, but people are going to wonder what is going on now, because they do want some kind of representation, but I am telling you they will follow me, on my word that they are going to keep their jobs and that they will get pay raises. He said: Okay, start to do it. I left the_ office and started to do it. Whenever Donnelly made his reports to Rosen regard- ing the disposition of employees towards Local 3 or Local 355, Rosen would make recordations of-the names of the persons Donnelly told him were problems on a yellow pad. He said Rosen would record Strong 355 'alks to Bucky Temperio frequently Signing up people for, Has been member of 355 Still paying dues to 355. 355 Donnelly admitted he suggested some form of adverse action for employees who would not 'vote as he told them. Pursuant to strategy devised by Rosen, he fired Diane Kolinski, who has been a long-time member of Local 355. He fired Georgette Linder, in accordance, with his agreement with Rosen, on the grounds that she left work without him knowing about, it. He also fired the best waitress, Carol Lee' White, who was a strong member of Local 355. Judith Blecker was fired by Rosen because he did not like her attitude and she was for 'Local 355. Kenneth Downs, Carol White, and Kevin, Porter were fired before the election, but were rehired after the election. Some employees were not fired but were threatened with loss of jobs or reduction in work hours. Donnelly also testified that he first saw Max Gill with Buzz Collins distributing union literature, in September 1979. He asked Rosen why Gill was hanging around so much and Rosen told him he was on the payroll. Collins was comptroller of the hotel although he was never in- troduced to the employees and had. little to do with them. Collins did attend management meetings., Gill worked from 4 to 12 p.m. Donnelly said Rosen directed him td hire Angelo Brito to, open a service bar and it did not matter whether Brito worked or not because Rosen had to put him in there. He further directed Donnelly to just send the waitresses in and out of there so Brito, who was from Local 3, could talk to them. In September 1979 Donnelly said Rosen told, him if Local 3 gets 30 percent of the house that would be enough to stop the house from negotiating with Local 355. Donnelly said he has personally observed Keane, head of security, as well as Rosen, ask representatives of 355 to leave the property. Charles Rosen, now project director for Respondent, testified that he succeeded Hart and his former assistant, Edith Cooper, as general manager for Respondent from about July' 28,' 1979, until March 1989. He said he gave employees a raise only for the purpose of inducing them' to work at the hotel because of its location. He acknowl- edged he was aware that prior management had a collective- bargaining agreement with Local 355 at the time he as- sumed his duties in July 1979. He acknowledged he did not have any discussions with Local 355 before or after he gave the raise to employees because there was no need to do so. He said he -did not have any contractual obligation with Local 355. He acknowledged that he did not ask for a copy of the contract but did receive' a copy thereof in a meeting with representatives of Local 355 before the petition for an election was filed'by Local 3. Before that date, he said he had heard that Local 3 was trying to or- ganize his employees. Rosen stated that he gave orders that no representatives of any union were to be permit- ted on the premises for the purpose of ,organizing em- ployees after the petition was filed by Local 3. He denied he called Gonzalez at home and told him he would call Vazquez at home and tell him to stay out of the hotel. Maximino, (Max) Gill was employed by Respondent (Nancy) as a houseman, in early 1980 until he, was dis- charged 5 or 6 days before the election on March 27. Gill testified that although he had accompanied Armand Vazquez to Repondent's premises about September 1979 (before he was hired) and solicited employees for Local 3, he did not engage in solicitation for Local' 3 while he was employed by Respondent because he needed the job. Vazquez understood this. The most he did while em- ployed by Respondent was express his favor for Local 3 among employees. On the day of his discharge, Rosen sent for him and said, "I am sorry. I have' to let you go. So I have no choice." In ' a later discussion with Rosen the latter told him he was sorry he had to let him go and mentioned the Union and Gonzalez. Gill acknowledged he` was the right-hand man for Vazquez of Local 3 and that he was recognized as such by Respondent's unit em- ployees. Rosen acknowledged, that he had a discussion with Vazquez about Rosen's discharge of Gill when he told Vazquez, "I'm getting "a lot of calls, a lot of pressure, and I've got to score some points with Gonzalez." Vaz- quez said, "so to protect yourself and score some points with Gonzalez you're going to fuck me." He told Vaz- quez he had fired Gill and he would have to stay off the CASTAWAYS MANAGEMENT property. Vazquez then said, "Boy you are fucking me," and walked out of the room. When asked why he fired Gill, Rosen said he was a friend of Bucky Temperio of Local 355, who told him that Respondent had in its employ one Gill, who was related to Vazquez and was helping the latter to organize employees for Local 3. Rosen said he did not know Gill at the time and he denied the accusation. After checking it out, he found that Gill was employed, he believed, in the housekeeping department. When he found Gill in another department where he was not supposed to be, he informed Gill that he was on the property working as an organizer for Local 3 and he would not have it. He thereupon fired 'him. Rosen acknowledged that he designated Donnelly acting manager of the wreck bar and subsequently desig- nated him manager of wreck bar in February or March 1980. He said Donnelly did not have the authority to hire and fire while he was acting or serving as manager. Rosen further testified that Collins was his comptroller but had no supervision over employees. He acknowl- edged he created the incentive plan for waitresses be- cause they could not give everybody a raise of 15 cents on each drink sold. He stated the Company continued the same health benefits, vacation, and pension plan. He denied he told supervisors to, discharge employees who favored Local 355 or that Local 355 could do anything for them. Rosen said he terminated Grinon because she was abusive to customers and had many complaints against her . He said he terminated Blenke for the same reasons as Grinon. He terminated Marizo because of the turnover rate of girls working under her supervision. She did not get along with the persons she supervised. Rosen denied he saw or authorized the making of a list of employees who favored Local 355. With respect to the General Counsel's Exhibit 9, he said he does not recall ever seeing it but admits he did see a list but he did not know what kind it was, Excelsior or otherwise. According to the transcript in the representation hearing held on December 14, 1979 Rosen said Donnelly, as acting manager, had authority to hire and fire. When Donnelly reported to work on April 3, 1980, Dennis Keane, comptroller for the Respondent, advised him that he was suspended for 2 weeks because a sum, of money was missing. Donnelly asked why was he sus- pended when Keane knew that the money passed through the hands of several other people. He refused to accept the suspension because he said it would be tanta- mount to an admission that he was responsible for the in- cident, and he handed Keane the key to the business, and advised him that he quit and, would report to Rosen in the morning. On the next morning, April 4, Donnelly met with Rosen, Cliff, and Keane. After a conference with Cliff in Cliff's office, Rosen returned and informed Donnelly that, due to the status of things and pressure from the owners, he had to let him go.4 4 At the trial, counsel for the Respondent informed the bench he wanted to challenge Donnelly's credibility by establishing that Donnelly had been convicted for the crime with which he had been charged by Respondent Because Donnelly did not enter a plea of guilty but, instead, entered a plea of nolo contendre , and there was no evidence of a final judgment of conviction for a crime punishable by death or imprisonment 969 Counsel for Respondent also tried to challenge Don- nelly's credibility by having its own manager, Keane, tes- tify about Donnelly's reputation for trustworthiness in the community. I was not satisfied that a sufficient foun- dation for knowledge was established for Keane-to have known what subjects about Donnelly were discussed by members of the community and the conclusion of such members on such discussions in accordance with Fed.R.Evid. 803 (21). An attempt to establish what one individual related to Keane, alone, about a personal expe- rience with Donnelly would not have satisfied this re- quirement. Moreover, even if Keane, alone, had related information in accordance with Fed.R.Evid. 803 (21), 1 would have attributed practically no weight to such tes- timony because Keane was and still is a part of manage- ment, and his credibility on this and other matters is evaluated consistently as being partial in favor of man- agement, infra. Jack DeMayo testified that he was employed as a painter by Respondent for 7 years, and had been a member of Painters Local 1925 until 1980, when Comp- troller Collins told him Respondent was going nonunion and, directed him to see Julio. He went to Julio, chief en- gineer of Respondent, who told him, "I'm sorry it had to happen this way, but we're going nonunion. . . . I don't want any union or antics, and you have to leave." All other union-affiliated painters were terminated by the Respondent. DeMayo said Julio had authority to hire be- cause he had sent Julio about 12 painters (nonunion) on different occasions and they were hired. While working under Julio's supervision, DeMayo said Julio as his su- pervisor told him where and when to report to work. Comptroller Collins denied escorting agents of Local 3 around the premises or soliciting on behalf of Local 3, as Donnelly testified. He also denied he told Jack DeMayo to talk to Julio or that he had anything to do with De- Mayo's discharge. 5 Based on the foregoing credited testimony and other circumstantial and credited evidence of record, I con- clude and find that Respondent discriminatorily dis- in excess of 1 year, the Respondent failed to satisfy the requirements of Fed.R Evid. 803 (22) Consequently, all evidence concerning the charge of grand larceny is disregarded in evaluating Donnelly's credibility Counsel for the Respondent argues that Donnelly's conviction was in effect expunged and cites Richards v US., 192 F 2d 602 (D.C. Cir 1951), which held that a pardon in itself does not prevent the use of a convic- tion to impeach credibility I do not question the propriety of the court's decision in Richards because a conviction was established in that case and, of course, as a general rule a pardon is generally extended when there has been a conviction In the instant case the Respondent was unable to establish that Donnelly had been considered convicted under Florida law or in accordance with the proper rules of evidence Even if a conviction of Donnelly had been established, I nonetheless would remain persuaded that he was telling the truth on this occasion , as found herein 5 I credit DeMayo's testimonial account and discredit Collins denial in reference to DeMayo because, not only was I persuaded by DeMayo's demeanor that he was testifying truthfully , but his account is consistent with all the credited evidence of Respondent's unlawful conduct I also do not find that DeMayo's testimony is in any material way inconsistent with his statement in his affidavit (R Exh 7) To any extent that it is inconsistent, I am satisfied that DeMayo's explanation was reasonable and truthful. Although I discredit Collins' testimony with respect to DeMayo, I nevertheless credit his denial that he escorted agents of Local 3 or so- licited on behalf of Local 3 because Donnelly's testimony in this regard is not supported by other testimony or other evidence 970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charged.DeMayo because he was a member of a union and the Respondent was trying to assist Local 3 or free its business. of unionization. In doing so, 3the Respondent violated Section 8(a)(1) and (3). Because the testimonial account of Gill and Manager Rosen are essentially consistent and uncontroverted, it is unequivocally clear that Respondent terminated Gill be- cause he was a member of Local 3, because he is the "right-hand-man" of the president of Local 3, and be- cause his friend with Local 355 wanted' Gill off the premises during the election campaign . In any event, such termination because he was a member of Local 3 was clearly discriminatorily motivated and in violation of Section 8(a)(1) and (3). D. Respondent Rendered Aid and Assistance to Local 3 I also find on the above-credited evidence that since December 1979 the Respondent, through its General Manager Rosen, instructed its supervisors to carry' out the following: 1. To allow representatives of Local 3 to come on its premises and campaign for Local 3, but to prohibit rep- resentatives of Local 355 from coming on its premises to campaign. 2. To discharge employees favoring Local 355. 3. To tell employees that Local 355 could not' do any- thing for the employees while Local 3 could. 4. The Respondent told its employees their raises would be revoked if they voted for Local 355. 51. The Respondent told its employees they would be fired if they did not vote for Local 3. 6. The Respondent requested its supervisors to report the names of employees who were for Local 355 and to inform it of ways to fire them. 7. The Respondent instructed its supervisors to talk to the employees and try to persuade them to vote for Local 3. 8. The Respondent instructed its supervisors to tell employees they would not have to take a polygraph test if Local 3 won the election. 9. The Respondent instructed its supervisors to tell employees if Local 3 won the election Respondent would pay their union dues. 10. The Respondent instructed its supervisors to tell its employees if Local 3 was voted in they would not have to pay for their health and dental benefits. 11. The Respondent instructed its supervisors to find ways to stall Local 3 from negotiating a contract by helping Local 3. 12. During the month of December 1979 Respondent, through its supervisor, told employees not, to pay Local 355 dues because Local 355 would not do anything for them, while Local 3 could do a better job for them. 13. Between the months of December 1979 and March 1980, Respondent's supervisor, Donnelly, carried out all instructions of Respondent , all in violation of Section 8(a)(1), (2), and (3). The following employees of the Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b): All full-time and regular part-time housekeeping, employees, coffee shop-employees;- maintenance em- ployees, PBX operators, bellmen, bellhop's,' pool and beach service employees, professional employ- ees, managerial employees, liquor control clerks, guards, and supervisors as defined in the Act. 14. On January 9 , 1980, the Respondent granted a wage increase to certain employees in the above-de- scribed unit. " 15. On April 1, 1980, the Respondent rescinded the wage increase granted on January 9, 1980 , which was given to the same employees. 16. The Respondent granted the wage increase and re- scinded the wage increase without , giving prior notice to Local 355 and without having afforded Local 355 an op- portunity^ to bargain thereon , as the exclusive representa- tive of the employees. 17. During the month of December 1979, Respondent, through its supervisor, Donnelly, told employees if Local 355 was voted in, a wage raise would be taken from them. 18. During the month of January 1980, , Respondent told employees if Local 355 won the election all bars in the hotel would close. 19. During January 1980, Respondent told employees that any - employees who were for Local 355 would be fired if they showed up to vote. 20. In late March 1980, Respondent told employees to vote "no" in the election or else they would be fired. 21. Supervisor Donnelly complied with all, the, Re- spondent's instructions (orders). IV. ANALYSIS AND CONCLUSIONS A determination of the validity of the allegations with which the Respondent is charged and the corresponding defenses asserted by it in response, depends almost solely , on a determination of the veracity of several witnesses of the General Counsel , -as opposed to the several witnesses of the Respondent, which is highly conflicting. Although it is difficult in such instances to resolve such vexed questions of fact to which only the parties bear witness, I have nevertheless resolved such questions by considering the relationship of each witness to the party on whose behalf he or she testified (related by blood or in-law, fellow unit employees, fellow managerial or supervisory personnel, currently or formerly employed by the Re- spondent, and reasons for separation from employment), how readily responsive, nonselective, nonexaggerating, consistent, and straightforward manner in which he or she testified, as well as the reasonableness of efforts made by the parties to bring essential witnesses and appropri- ate documentary evidence before the court , and how such testimony or other evidence relates to the logical consistency of all the evidence of record and ' the se- quence of events as they transpired. -Accordingly, it is first noted that the chief witness for the General Counsel, Donnelly, former supervisor of Re- spondent's beverage department during nearly all times material, was involved in an ongoing triangle of misrep- resentation and deceit with Local 355 and Local 3, pur- CASTAWAYS MANAGEMENT portedly on behalf of the Respondent. Assuming for the moment that Donnelly was not in fact acting pursuant to a directive on behalf of Respondent in assisting the orga- nizational efforts of both Local 3 and Local 355, while withholding his deceitful activities from his own wife for a time, any reasonably prudent person would in all prob- ability conclude, as I do, that witness Donnelly is not very sensitive to moral principles and personal integrity. With just these facts and the aforestated assumption in mind, Donnelly's testimony is very carefully reviewed. Further assuming Donnelly was in fact genuinely acting pursuant to a directive from Manager Rosen, as he testi- fied he was, perhaps his conduct can at least be under- stood on the premise that as a matter of common knowl- edge some people will subvert principle and personal honesty to satisfy their employer with the hopes of se- curing their job standing, with the employer. Under these circumstances, there is room in Donnelly's testimony for much truth and some fiction. Correspondingly, it is likewise observed that whether Donnelly's testimony is truthful in its entirety, the record evidence is uncontroverted that Donnelly was highly trusted by management until about March 26, 1980, as Rosen admits. As chief witness for the Respondent, Gen- eral Manager Rosen flatly denied essentially all testimo- ny adverse to Respondent's' interest. Most of his denials and controverted testimonial versions do not logically coincide with much of the conflicting testimony and the voluminous circumstantial evidence of record. More spe- cifically, Manager Rosen admitted or did not deny the following: (1) That he had knowledge in August 1979 that Local 355 was the exclusive collective-bargaining representa- tive of Respondent's unit employees. (2) That he had knowledge in August and September 1979, that Local 3 was engaged in organizing activities on the premises. (3) That he did not notify or consult with Local 355 before or after he granted unit employees a raise in De- cember 1979 and he did not notify or consult with Local 355 before or after he rescinded the same raise. (4) That he discontinued collecting union dues for Local 355 in August 1979. (5) That he had knowledge in October 1979 that a Board-conducted election was scheduled for January 31, 1980, although it was subsequently canceled a few days prior thereto. (6) That he had knowledge that another election was scheduled for March 27, 1980. (7) That he ordered Local 355 representatives off the premises, but testified that he gave orders to keep all union representatives off the premises. (8) That he requested Ronda Reissler, who was for- merly a supporter of Local 355 and wife of Donnelly, to serve as an observer for Respondent at the March 27 election. When the above essentially undisputed factors are taken into consideration along with Manager Rosen's nu- merous discredited denials, infra, and the fact that he contradicted his testimony in a prior Board representa- tion proceeding, in which he said Donnelly had author- ity to hire and fire as acting manager, but testified in the 971 instant proceeding that Donnelly did not have such au- thority, it becomes clear from the record evidence that Manager Rosen is 'not elevated quite to the same level for truthfulness as Donnelly at this juncture. In fact, while neither Donnelly nor Manager Rosen conveys the best image for verasity, their testimony will be consid- ered in conjunction with the testimony of supporting credited witnesses, as well as with the credited and/or discredited testimony of other witnesses for both parties, in light of the total probative circumstantial evidence of record as a whole. In evaluating the testimony of Blenke, Grinon, and Rhonda Reisler-Donnelly, I considered their relationship to Local 355 and how much weight to attribute to Blenke's testimony in view of her disciplinary record (in- cluding discharge). Similarly, I considered how much weight to attribute to the testimony of Grinon in view of her discharge by the Respondent and the testimony of Reisler, in view of her marriage to Supervisor Donnelly. I was nevertheless persuaded by their demeanor and the circumstantial evidence of record that the truthfulness of their testimony was not affected by the above consider- ations and that they were testifying truthfully. I was fur- ther persuaded that any discrepancy in their testimony with respect to dates on which certain incidents oc- curred were due solely to honest memory estimates and not to untruthfulness on their part. Although I gave a little less weight to the testimony of Reisler because of her marital relationship to Donnelly, when her testimoni- al version is considered in conjunction with the circum- stantial and other credited evidence of record, I credit her version as well as the respective versions of Blenke and Grinon in their entirety. Respondent Comptroller Collins and Maintenance Su- pervisor Keane, both still in the employ of the Respond- ent, testified on behalf of the Respondent. Maintenance Supervisor Keane either testified that he was not present during any of the meetings during which Donnelly held discussions with Manager Rosen about the subjects of the complaint, or he denied Rosen held any such discus- sions.6 Since the credited testimonial versions of Grinon, Blenke, and Reisler all corroborate Supervisor Donnel- ly's testimony in substantial and pertinent part (with re- spect to the Local 3 activity of former Supervisor Jerry Jackson and the Local 3 and Local 355 activity of Don- nelly, as well as his revelations to them of what Manager Rosen would do if they did or did not support Local 3), I I do not credit Supervisor Keane's testimony. Not only was I not persuaded by his demeanor that he was not testifying truthfully, but also because his version would suggest that Donnelly engaged in such wide- spread Local 3 and Local 355 activity on the premises during worktime, for a period of approximately 4-1/2 months, without the blessings or au- thorization of management I find such a denial or evasion inconceivable and common experience discredits it Moreover, because Supervisor Keane is still in the employ of the Respondent, I received the distinct impression that he was testifying favorably on behalf of the Respondent because of his (continued) loyalty to Respondent Similarly, Comptroller Collins also denied hearing or seeing any of the conduct attributed to Rosen by. Donnelly However, I received the same impression from his demeanor as he testified that he was not testifying objectively because he is still in Respondent's employ and was a part of management, as was Keane, at the times to which Donnelly made reference 972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Donnelly's testimony in these respects in supported, cor- roborated, and therefore credited. The Respondent made a"valiant effort at the trial to es- tablish Donnelly as a triple-dealing, many-faced liar who, for some unknown reason, contrived and carried out the well-established - pyramid of -unlawful conduct over a period of several months, without any knowledge or as- sistance from the 'Respondent. It is obvious from the evi- dence of record and common experience that in order for Donnelly to `ha'e'independently carried out activities of such dimensions, he would almost have had to have been general manager himself. Instead, the record evi- dence clearly shows that Supervisor Donnelly was a confidant `of Manager' Rosen; and that Donnelly, work- ing'in close concert with Manager Rosen, with the con- currence 'and/or' `acquiescence of managerial personnel Keane, 'Collins, and Cliff,' faithfully carried out the wishes and plan of management . When, for some un- known reason, a breach occurred in the Respondent's well-trusted relationship with Donnelly on or the day before 'the election, Donnelly on or the day before the 'election, pi obitbly' When `counsel for` the Respondent ad- visedRosen 'not to trust Donnelly, or after Donnelly's emhlbyment'tertniinated-on"April 3 or 4, Donnelly aban- d'dned'all loyalty to' Respondent and proceeded to tell it all. In these proceedings, ^ Donnelly told it all. As I ob- served him 'te'stifying,' he most persuasively told it as though 'he were reliving the entire experience. If he were in fact untruthful, he as testifying on this occasion as very predominently truthful. Moreover, When the sudden and numerous discharges df `many longstanding employ- ees over so short a period of time (less than 4-1/2 months) is'considered to have occurred during the pend- enby, ' of a' scheduled. election, the -Respondent's discrimi- natory motive for supporting Local 3 or the nonunioni- -zation- of its 'eniploydes mray reasonably be inferred there- from: However, even` if ;Donnelly were not acting pursu- 'ant' to orders from Manager Rosen, he was nevertheless a. supervisor- and his actions are actions of the Respond- ent, - I conclude and find on, a composite of the foregoing credited, testimony that commencing in December 1979 through' February : 1980, the Respondent ' (Manager Rosen), `through a plan of threatening, interfering, re- strainnng, and coercive 'conduct carried out by Supervi- sor -Donnelly, aided, supported, and assisted Local 3' in trying to organize its employees on the one hand, and discouraging employees' membership in Local 355, on the other. The interfering,, restraining, and coercive con- duct included promises to grant increased wages, addi- tional work hours, health benefits, and threats to termi- nate, demote, transfer, to give less work hours or unde- sirable work, to reduce salary or to withhold promised raises, and to close down its beverage operation, in viola- tion of Section 8(a)(1), and in fact termination of unit employees, in violation of Section 8(a)(3). Because it is well established on the supported and corroborated testimony of Donnelly that the Respondent embarked on the above-described unlawful conduct during the months of December 1979 through January and February 1980, there is no reason to believe that Re- spondent voluntarily discontinued its unlawful motive and conduct before the,March 27 election. I am 'there- fore persuaded by Respondent's conduct during prior months, by the consistent events that followed subse- quent thereto, and the demeanor of Donnelly as he testi- fied, that Donnelly's independent testimony regarding Respondent's other restraining, coercive, and discrimina- tory conduct during February through, March 1980 was also truthful. I further conclude and find on -the, credited testimony of Donnelly that in order to carry out its plan of per- suading employees to,renounce membership-in Local 355 and support Local 3, the i Respondent ordered Donnelly to make inquiries about employees' union preferences, to try to persuade them to renounce Local 355 ,and ,support Local 3, and 'to report to him periodically (every 2, or 3 days) on the results ofhis efforts.;'When Donnelly made his reports concerning the specific union preferences of the unit employees, the Respondent made and retained a check list by which it recorded the,position of the re- spective employee - regarding their, union preferences, sympathies, and their , vulnerability toy 'be- persuaded to vote as directed'by. 'Donnelly. I further find that, the lle- spondent continued to carry out -its. coercive and re- straining conduct, through-Donnelly and General Man-. ager Rosen, by implementing its threats in terminating Local 355 employees. Grinon, -Blenke, Marzio, ° .and Downs, who were all earmarked for aterrnination if they did not renounce- Local 355 +and , support Local 3. Ac- cording to Donnelly's credited testimony the, Respondent also terminated Diane Kolinski, Georgette Linder, Carol Lee White, Judith Blecker, ,and. Kevin Porter for the same reasons. Donnelly also testified and the General - Counsel con- tends that, Respondent '(Manager'Rosen) 'terminated 52 other employees- identified - in- paragraph 8, of 'the com- plaint. However, - it is-' particularly' noted that- except - for Gill and DeMayo, the -General Counsel' did not produce any of the other -52- employees identified in -paragraph 8 of the complaint to testify. Donnelly, did not, specifically identify the circumstances underlining termination of the employees, and ' the actual, reason '•for, their separation from the Respondent's employ is highly conjectural and speculative `and, therefore, - unsubstantiated by --the evi- dence of record. Although` Respondent' General -Manager Rosen offered various reasons why employees' Grinon and ' Kathy Blenke were terminated' other than for manifesting their union preference or unwillingness to vote as directed by Respondent (Supervisor Donnelly), I do not credit his testimony in this-regard. Rather, I credit Donnelly's tes- timony that all the aforenamed employees terminated by the Respondent were terminated ^ by himself and/or Rosen because they were unwilling and refused to vote as directed by Donnelly pursuant to orders from Manag- er Rosen. Consequently, I find that Respondent's dis- charge of Grinon, Blenke, Marzio, Downs, Kolinski, Linder, White, Blecker, and Porter were discriminatorily motivated and in violation of Section 8(a)(1) and (3). Additionally, the record is replete? with ° credited and probative evidence of one of the most coercive and ille- 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial order, I shall rec- ommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights by threatening employees with var- ious forms of reprisal if they failed to renounce member- ship in and support for Local 355, threatening and prom- ising them- a raise and other benefits if they voted for Local 3, threatening employees with reprisal if they ap- peared and voted in the upcoming election , and numer- ous other coercive and restraining conduct, in violation of Section 8(a)(1); by refusing to recognize and bargain with the exclusive bargaining representative (Local 355) of its unit employees, in violation of Section 8(a)(5); by rendering assistance to competing Union Local 3, in vio- lation of Section 8(a)(2); and by discriminatorily with- drawing a wage increase and discharging employees for either failing to support or vote for Local 3 and/or fail- ure to appear and vote in the election, the Respondent discriminated against its employees in violation of Sec- tion 8(a)(3), the recommended Order will provide that the Respondent cease and desist from engaging in such conduct, and that it make discharged employees whole for any loss of earnings within the meaning of and in accord with the Board's decision in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977), 7 except as specifically modified by the word- ing of such recommended Order. Because of the character of the unfair labor practices, the recommended Order will provide that Respondent cease and desist from or in any manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7. NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). On the basis of the above findings of fact, and on the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Castaways Management, Inc. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Motel, Restauraunt & Hi-Rise Employees and Bartenders Union, Local 355, AFL-CIO and Hotel, Resort Service Union, Local 3 of Greater Miami and South Florida Area are, and have been at all times mate- rial, labor organizations within the meaning of Section 2(5). 3. By permitting representatives of Local 3 to come on to its premises to organize its employees, while at the same time prohibiting representatives of Local 355 from coming onto its premises for the same purpose, Respond- 7 See generally Isis Plumbing Co, 138 NLRB 716 (1962) ent rendered aid, support, and assistance to Local 3, in violation of Section 8(a)(1) and (2). 4. By instructing is supervisors to discharge employees who favored Local 355, the Respondent rendered aid, support, and/or assistance to Local 3, in violation of Sec- tion 8(a)(1) and (2). 5. By permitting representatives of Local 3 to distrib- ute literature to employees during worktime, while pro- hibiting representatives of Local 355 the same privilege, the Respondent aided, supported, or assisted Local 3, in violation of Section 8(a)(1) and (2). 6. By telling employees that Local 355 is not doing anything for them, while Local 3 can, the Respondent rendered aid, support, or assistance to Local 3, in viola- tion of Section 8(a)(1) and (2). 7. By threatening to revoke wage increases and/or to fire employees if they do not vote for Local 3 in a repre- sentation election, Respondent rendered aid, support, or assistance to Local 3, in violation of Section 8(a)(1) and (2). 8. By instructing supervisors to speak with employees and make such promises and/or threats as are necessary to persuade them to vote for Local 3 in a representation election, the Respondent rendered aid, support, or assist- ance to Local 3, in violation of Section 8(a)(1) and (2). 9. By threatening employees or making promises to them in order to persuade them to vote for Local 3 in a representative election, Respondent rendered aid, sup- port, or assistance to Local 3, in violation of Section 8(a)(1) and (2). 10. By attempting to avoid its obligation to bargain with Local 355, by devising and implementing plans to aid, support, or assist Local 3 in its organizing efforts, Respondent violated Section 8(a)(1) and (2). 11. By threatening to discharge, and in fact discharg- ing, employees in order to discourage membership in Local 355, the Respondent violated Section 8(a)(1) and (3) . 12. By discharging employees because of their mem- bership in or activities on behalf of Local 3, Respondent violated Section 8(a)(1) and (3). 13. By unilaterally discontinuing dues checkoffs with- out notifying or consulting with Local 355, Respondent violated Section 8(a)(5). 14. By granting employees a raise and thereafter re- scinding said raise without notifying or consulting with the Union on either occasion, Respondent violated Sec- tion 8(a)(5). 15. All full-time and regular part-time housekeeping employees, coffee shop employees, maintenance employ- ees, PBX operators, bellmen, bellhop, pool and beach service employees, and bar employees; excluding all office clerical employees, professional employees, mana- gerial employees, liquor control clerks, guards, and su- pervisors as defined in the Act, constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9(b). 16. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] CASTAWAYS MANAGEMENT gal designs utilized by an Employer to rid itself of many, if not its entire complement, of'unit employees, in order to undermine Local 355, or all unionization of its busi- ness. Respondent did not offer any credited objective economic reason for the sudden turnover of 61 employ- ees within 4 months during .the pendancy of a scheduled representation election. Nor did the Respondent offer any evidence,to show that all the 11 discharged employ- ees would have been discharged,in any event, irrespec- tive of their union interest or' the exercise of their right to select a bargaining representative of their, own choos- ing. Consequently, Wright Line, 251 NLRB 1083 (1980), cited by counsel, for the Respondent, is not applicable to the facts as found. A. Validity of Petition for Representation Although some testimony was adduced by the General Counsel that Respondent engaged in unlawful assistance to Local 3 prior to the filing of the petition for represen- tation about October 1, 1979, no such conduct was al- leged in the amended charge of June 23, 1980. The amended charge 'alleged such unlawful conduct com- menced December 1,1979. Because testimony about un- lawful conduct by the Respondent before December 1979 would exceed the 10(b) period, as Respondent argued, no finding of unlawful assistance to Local 3 has been established to have occurred prior to and during the filing of the petition for representation and the peti- tion was not tainted and invalid as the General Counsel contends. Massey Ferguson, Inc., 184 NLRB 640 (1970), enfd. 78 LRRM 2289 (7th Cir. 1971); Skaggs Drug Cen- ters, 176 NLRB 753 (1969), and Docorel Corp., 163 NLRB 146 (1967). Based on the above enumerated findings 1 through 13 and 17 through 20, I find that during the period Decem- ber 1, 1979, through March 27, 1980, the Respondent rendered aid and assistance to Local 3 in violation of Section 8(a)(2). Grede Foundries, 235 NLRB 363 (1978). B. Respondent Withdraws Recognition of Local 355 Finally, I ,conclude ,that when Respondent became suc- cessor to Castaways Motel,in June 1979, when Rosen as- sumed general managerial responsibilities of business op- erations on July 28, 1979, Local 355 was already the ex- clusive bargaining representative of its unchanged appro- priate unit employees. Representatives, of Local 355 almost immediately requested to meet with General Manager Rosen, who promised he would meet with them along with his attorney at a later date, but thereaf- ter, neglected to do do. Nevertheless, without notifying Local 355, the Respondent immediately discontinued de- ducting employees dues for Local 355; it proceeded to tell employees Local 355 was no longer the Union on its premises; while the petition for representation was pend- ing, the Respondent, without notifying or consulting with the Union, unilaterally granted employees a raise on January 9, 1980; and that on April 1, 1980, the Respond- ent, without notifying or consulting with the Union, uni- laterally rescinded the wage granted to employees on January 9, 1980, depriving the Union of an opportunity to bargain on its action in either case. Such"conduct by 973 the Respondent was violative of Section 8(a)(1) and (5). Grede Foundries, above. C. Local 355s Objections to the Election The question presented for -determination is whether the established unfair labor practices committed by the Respondent during the organizing campaign of its em- ployees were of such consequential magnitude, as to have interfered with the election processes by dissipating the Union's (Local 355) majority status and precluding the holding of a fair election. The record evidence shows that the challenged ballots were sufficient in number-to affect the results of the elec- tion. The Respondent has not presented any evidence showing that Local 355 had in fact lost- its majority status or that it had a good-faith doubt that Local 355 lacked the majority status either before or subsequent to the filing of the petition for representation. Although ac- knowledging that it had knowledge that Local 355 repre- sented its employees in,July and August 1979, the Re- spondent nevertheless engaged in numerous and perva- sive unfair labor practices established, by the evidence. In view thereof, I conclude and find that Respondent's aforefound unlawful conduct constituted the commission of independent, substantial, and pervasive unfair labor practices disruptive of election conditions or processes, which prevented a free election and undermined the ma- jority status of Local 355. Accordingly, I recommend that the election in Case 12-RC-5741 beset aside and that the Regional Director for Region 12 be directed to direct and supervise the conduct of an election at such time as the Regional Di- rector determines that a -free election can be held, when compliance with the Order can be voluntarily achieved, after the elapses of the posting period; and should the Respondent fail to comply, with the provisions in the De- cision and Order and it is necessary to enforce the Order by a decree of the United States court of,appeals, then, on the Respondent's full compliance with such decree. The Regional Director may also, in his discretion, con- sider what bearing the five individuals stipulated as ineli- gible to vote may have on his decisions. The election shall be conducted among employees at the Castaways Management hotel facilities of employees in the following unit tha f is appropriate' for purposes of collective bargaining within the meaning of Section, 9(b): All full-time and regular part-time housekeeping employees, coffee shop employees, maintenance em- ployees, PBX operators, bellmen, bellhops, pool and beach service employees, professional employees, managerial employees, liquor control clerks, guards and supervisors as defined in the Act. V. THE EFFECT OF UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and_ tend to