Hyatt Regency Memphis

HYATT REGENCY MEMPHIS 259 Hyatt Hotels Corporation, d/b/a Hyatt Regency Memphis and Highway and Local Motor Freight Employees Local Union No. 667, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Cases 26- CA-9352-1, 26-CA-9352-2, and 26-CA-9648 August 25, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 17, 1983, Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed cross-excep- tions, a supporting brief, and an answer to the Re- spondent's exceptions. The Respondent filed a reply brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has ' The name of the Teamsters in the caption has been amended to re- flect its affiliation with the AFL-CIO. 2 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 relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings The General Counsel filed exceptions to the judge's finding that the Respondent did not violate Sec 8(a)(1) of the Act by requesting that its employees give the new general manager a chance We have considered the General Counsel's argument and find it lacking in merit . According- ly, we deny the General Counsel's exception We find it unnecessary to pass on the judge's findings (1) that the re- marks of the Respondent 's housekeeping manager, Bruce Nelker, to em- ployee Levy Harrison about a month before the election contained an un- lawful threat of loss of benefits, or (2) that the Respondent's director of engineering, Robert Poole, made an unlawful promise of benefits to em- ployee Randy Blaylock We note that these findings are cumulative to other findings of unlawful threats and promises, which support the Board's Order In the absence of exceptions , we adopt the judge's findings that the conversation between Executive Housekeeper Nelker and employee Sey- mour, and between Assistant Comptroller Harmon and employee Tucker, did not violate Sec. 8(a)(1) of the Act. We agree with the judge's finding that the Respondent's unilateral dis- continuance of its wage increase adjustment plan violated Sec 8(a)(5) of the Act However, we find it unnecessary to rely on his discussion of what specific percentages should be applied to the wage and merit in- creases included in the recommended Order. We find that resolution of this issue is best left to the compliance stage of this proceeding where such percentages, as applicable, will be determined under established Board procedures. Accordingly, we deny the Respondent 's motion to reopen and/or to supplement the record decided to affirm the judge's rulings, findings,2 and conclusions3 as modified below.4 1. The judge found that the Respondent did not violate Section 8(a)(3) and (1) of the Act when it discharged employees Linda Shirley and Terry Seymour (September 28, 1981), Timothy Brooks (October 27, 1981), Bryant Gibbs (October 30, 1981), Phillip Valentine (November 23, 1981), Nate and James Gorman (December 2, 1981), Mozelle Payne (February 16, 1982), Andrew Ryan (March 30, 1982), and Stan Harris (April 14, 1982). The judge concluded that the General Counsel had failed to show that these 10 discriminatees would not have been discharged under the policy govern- ing the enforcement of the Respondent's sign- in/sign-out rules that were in effect before the elec- tion and thus, the General Counsel had not estab- lished a prima facie case under Wright Line, 251 NLRB 1083 (1980). The General Counsel has excepted, contending that these discharges resulted from the Respond- ent's enforcement of those work rules in a manner more stringent than its enforcement before the Union's election victory. The General Counsel as- serts that this more stringent enforcement policy constituted a unilateral change that was implement- 3 On the authority of Tri-Cast, Inc., 274 NLRB 377 (1985), we reverse the judge's findings that Executive Chef Pologruto and Executive House- keeper Nelker unlawfully threatened employees with the loss of the privi- lege of going directly to supervision with employee problems. As stated in Tn-Cast, statements of this kind concerning loss of access to manage- ment in the event of unionization do not constitute threats , but "simply [explicate] one of the changes which occur between employers and em- ployees when a statutory representative is selected ." 274 NLRB at 377 We note that in the following cases the Board has applied Tri-Cast not- withstanding the presence of substantial unfair labor practices . New Proc- ess Co., 290 NLRB 704, 707 (1988); Koons Ford of Annapolis, 282 NLRB 506 (1986); United Artists Theatre Circuit, 277 NLRB 115 (1985) As a result of this finding, the conclusions of law, Order, and notice have been modified accordingly Contrary to his colleagues, Member Higgins would adopt the judge's findings. The statements made by Pologruto and Nelker were made in the context of the Respondent's extensive unfair labor practice campaign against the Union Pologruto and Nelker's remarks were not an effort by an employer trying to "simply (explicate] one of the changes which occur[s] between employer and employees when a statutory representa- tive is selected." These circumstances make this case clearly distinguish- able from the Board's Tri-Cast policy, a policy with which Member Hig- gins concurs 4 The General Counsel has excepted to the judge's failure to find that Ruthie Myles' discharge constituted a violation of Sec 8(a)(4) in addition to his finding that it constituted a violation of Sec 8 (a)(3) of the Act We find merit in the General Counsel's exception It is clear that Myles was a highly visible supporter of the Union, and that her attendance at the rep- resentation hearing on behalf of the Union and her role as the Union's election day observer constituted two of the more "open and notorious" activities in which she engaged as such a supporter . Thus, we find that the Respondent's violation against Myles, engendered as it was by her active support of the Union, took into account her participation in these aspects of the Board's representation proceeding, as well as her other ac- tivities evidencing support for that labor organization Accordingly, we find that her discharge also violated Sec. 8(a)(4) and (1) of the Act Member Cracraft agrees that Myles' discharge violated Sec . 8(a)(3). Member Cracraft does not pass on the question of whether the discharge also violated Sec 8(a)(4). 296 NLRB No. 36 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed in retaliation for the Respondent's employees' selection of the Union. The General Counsel also excepts to the judge's conclusion that he did not meet the evidentiary burden imposed on him by Wright Line. Thus, the General Counsel argues that he made out a prima facie case that the discharges were unlawfully mo- tivated, and the burden was then the Respondent's to show that it would have taken the same action regardless of the employees' union activities. In this regard, the General Counsel asserts that the Re- spondent has failed to explain the change in its en- forcement policy that led to the discharge of these 10 employees. Accordingly, the General Counsel contends that the initial burden of proof imposed by Wright Line has in fact been satisfied , and that the Respondent has failed either to rebut the Gen- eral Counsel's case or to establish a Wright Line de- fense. Therefore, the General Counsel urges, em- ployees Shirley, Seymour, Brooks, Gibbs, J. Gorman, N. Gorman, Valentine, Payne, Ryan, and Harris should be found to have been discriminatori- ly discharged and should be reinstated to their former positions with backpay. For the following reasons, we find merit in the General Counsel's exceptions. The causation test, articulated in Wright Line, requires that the Gener- al Counsel "make a prima facie showing sufficient to support the inference that protected [concerted] conduct was a `motivating' [or `substantial'] `factor' [in a respondent's decision to discharge an employ- ee.]" Once the General Counsel has made out a prima facie case, the burden shifts to the respond- ent to demonstrate that the same action would have taken place even in the absence of the pro- tected conduct.5 As we stated in Roure Bertrand Dupont, Inc., 271 NLRB 443 (1981): Following the issuance of our Wright Line decision certain courts of appeals held that the burden shifted to an employer once the Gener- al Counsel's prima facie case is demonstrated is one of production, i.e., that an employer can rebut the General Counsel's prima facie case by simply producing evidence that a legitimate reason for the action existed . The Supreme Court rejected that position, however, in S As we noted in Wright Line, 251 NLRB at 1089 In. 14 (emphasis added): [I]n those instances where , after all the evidence has been submitted, the employer has been unable to carry its burden , we will not seek to quantitatively analyze the effect of the unlawful cause once it has been found It is enough that the employees' protected activities are causally related to the employer action which is the basis of the complaint. Whether that "cause" was the straw that broke the camel's back or a bullet between the eyes, if it were enough to deter- mine events, it is enough to come within the proscription of the Act. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Thus, it is now clear that in rebutting the General Counsel's prima facie case-that the protected conduct was a "moti- vating factor" in the employer's decision-an employer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the ab- sence of the protected conduct. [Footnote omitted.] Thus, we disagree with the judge's assessment that in the instant case a prima facie case could not be made out absent a specific showing by the Gen- eral Counsel that the 10 alleged discriminatees would not have been discharged under the enforce- ment policy in effect before the election . Under the burdens imposed by Wright Line, all the General Counsel was required to establish was that the em- ployees' protected activity-that is the selection of the Union as their collective-bargaining representa- tive-was a "motivating or substantial factor" in the Respondent's decision to discharge the 10 al- leged discriminatees. Once that is established, the burden shifts to the Respondent to show it would have taken the same action against the employees regardless of their union or other protected activi- ties. We now proceed to examine the judge 's factual findings, which we find no need to disturb, to de- termine whether the respective burdens imposed by Wright Line have been met. In making this determi- nation, we assess the record as a whole , including the weight of the evidence, the inherent probabil- ities, and the reasonable inferences to be drawn therefrom. It is undisputed that before and after the Union's election, the Respondent had in effect a rule regu- lating the signing in and out on its timesheets.6 By its terms, the rule advised the Respondent's em- ployees that falsifications constituted grounds for "immediate disciplinary action." The rule did not, however, specify the nature of disciplinary action that would be imposed . Moreover, as discussed below, the record discloses a stark contrast be- tween the Respondent's preelection and postelec- tion enforcement of this rule. This contrast is re- flected in both the frequency of enforcement and the nature of the disciplinary action taken. 6 The Respondent computed its hourly employees' wages on the basis of daily timesheets . Subject to the following rule, each employee was re- sponsible for signing in and out on these sheets: [Y]ou may not alter or falsify any control card or time sheet, nor pull another employee's control card, or knowingly allow another employee to pull your card or fill in your time on the sign in sheet Violation of this rule will be cause for immediate disciplinary action HYATT REGENCY MEMPHIS 261 The Respondent commenced operation in 1975, and in its 6-1/2 years of operation between 1975 and the Union's election in September 1981, the Respondent disciplined a total of 18 employees for various violations of its sign-in/sign-out rules.7 The record shows that 5 of the 18 had committed prior violations and received warnings from the Re- spondent before termination; 2 of the 18 were dis- charged for other reasons;8 10 were discharged for their first violation of the rules ; and 1 was suspend- ed for his violation of the rules.9 Despite the above instances of earlier enforce- ment of the sign-in/sign-out rules, the record estab- lishes that, before the election, the Respondent's su- pervisors routinely ignored various infractions of these rules. At best, the enforcement of the rules was lax and sporadic, and at times it was nonexist- ent. In this last regard, for the 7 months just before the election no discipline of any kind was imposed on employees who violated the rules, regardless of the nature of the violation . Further, in the 6 years of its existence preceding those 7 months , the evi- dence shows that the Respondent frequently im- posed no discipline on its employees for recording a false time. And until Levy Harrison's discharge on September 28, 1981 (found unlawful by the judge), no employee had ever been disciplined, let alone discharged, for failing to personally sign out on the timesheets; similarly, before the election no employee had ever been disciplined for merely signing out other employees . Nor is this absence of preelection discipline for these two infractions at- tributable to full compliance with the personal sign-in/sign-out aspects of the rules. On the con- trary, the record is replete with evidence that the rules were broken in this regard with the Respond- ent's knowledge and acquiescence . For example, several employees, including Myles and Harrison, gave unrebutted testimony that it was common practice for employees to sign in or out for each other in the presence of their supervisors, who did not discipline or otherwise admonish them. Indeed, the record shows that before the elec- tion, supervisors not only condoned employee abuse of the rules, but also participated in varying degrees in their breach. Thus, when Executive Chef Pologruto discovered an error on the time- sheets in his department , he regularly corrected the ' Falsification of company records included failure to accurately record sign-in/sign-out times and signing in early for work. a One employee who had several warnings based on falsifications of his timesheets was terminated because he abandoned his job; and the other employee who had several instances of falsifications was terminated be- cause he failed to follow a number of the Employer 's policies and proce- dures a The Respondent 's personnel manager, Taggert , testified that this em- ployee, Nelson, was later terminated, but for a reason other than failure to obey the sign-in/sign-out rules. error without disciplining the employee .10 Like- wise, employee Scott's timesheet was changed 10- 15 times by his supervisor , Goosman, because he signed in the wrong time . Yet Scott was never dis- ciplined for these infractions of the rules. Finally, the Respondent's assistant chief engineer, Morgan, in addition to routinely ignoring violations of the sign-in/sign-out rules, instructed employee Monson and other employees to falsify their timesheets, os- tensibly to minimize problems for the bookkeeping department . All this evidence belies the Respond- ent's claim that falsification of timesheets automati- cally resulted in an employee's termination," and indeed plainly establishes that the Respondent's en- forcement of its sign-in/sign-out rules before the election was, in fact, inconsistent and often non- existent. At the same time in the immediate preelection period that the Respondent was effectively sus- pending enforcement of its sign-in/sign-out policy, its supervisors made it plain to employees that they enjoyed lax enforcement of company rules because there was no union, and that things would change if they voted the Union in. Thus, Executive Chef Pologruto pointed out to employee Myles that "if the union comes in here it is going to be a lot changes made around here." He observed that em- ployees "had been getting away with a lot of things," and he asserted as an example his view that Myles "got to come to work when [she] got ready to." Similarly, Executive Sous Chef Reuben Criswell, who caught employee Mary Lott eating while setting up for lunch , told her that once they "got the union and [they] got caught eating on the line" they would be "automatically fired." Finally, on the day of the election, in banter-carrying omi- nous overtones, the Respondent's assistant director of housing, Dannye Chapman, replied, to the joking question by two employees whether he wanted them to vote for the Union, "yes," since it "would make it easier to kick them out the door." Following the Union's successful election bid on September 9, however, the Respondent's enforce- ment policy of the sign-in/sign-out rules changed dramatically, in accordance with the threats. In the 8 months that followed, the Respondent discharged the 12 employees alleged in the complaint as discri- minatees, all of whom were fired for first-time vio- lations of the rules . Thus, in those 8 months the 10 Thus, when employee Sheila Porter continued to sign in before her scheduled starting time, Pologruto simply changed the timesheet in spite of the fact that he had instructed Porter to cease doing so. It is undis- puted that if Pologruto had not caught these "errors," Porter would have been paid for the time she had wrongly signed in i i Both Supervisors Pologruto and Nelker testified that discharge was a "possible" disciplinary measure for falsifying one's timesheet, not that it was automatic or likely 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent discharged more first offenders of the rules than it had in the entire 6-1/2 years preceding the election. The record indicates that this sudden, stringent enforcement of the rules (as compared in particular with the 7 months before the election, in which time period no employees, including repeat offend- ers, were discharged for violating the rules) was the Respondent's response to the Union's having been chosen by the employees as their bargaining representative. Nowhere is this better illustrated than in Morgan's warnings to Monson regarding his timesheets. This supervisor, who had previously instructed Monson to record false times, complete- ly changed his "advice" to Monson once the Union was voted in. Now he advised Monson "to be real careful" and put down the actual time he started work, because the director of engineering, Poole, "was looking for mistakes." Given Morgan's com- plicity in Monson's falsification of times , Morgan's warnings appear to have been prompted by his knowledge, or at least his realization, that the Re- spondent was, as it had threatened before the elec- tion, going to enforce the sign-in/sign-out rules stringently as a consequence of the Union's suc- cessful campaign. Accordingly, we find that the General Counsel has established a prima facie case that Linda Shir- ley, Terry Seymour, Timothy Brooks, Bryant Gibbs, Phillip Valentine, Nate Gorman, James Gorman, Mozelle Payne, Andrew Ryan, and Stan Harris were all unlawfully discharged.12 We fur- ther find that the Respondent has failed to satisfy its burden imposed by Wright Line, that even absent the Union's election victory, the Respondent would have discharged these 10 employees. At the outset of the Respondent's defense, we note that the Respondent does not claim that its more frequent enforcement of the sign-in/sign-out rules after the election resulted from a distinct in- crease in the number of violations. Instead, the Re- spondent contends that it has always had a uni- form, consistent policy of automatic discharge for i2 Even the judge acknowledged that the evidence of contrasting pat- terns in the Respondent's pre- and postelection enforcement of the sign- in/sign-out rules, as well as the Respondent 's union animus and its pree- lection threats of strict work rule enforcement in case of a union election victory, supported the General Counsel's theory that the rules were more stringently enforced in response to the Union 's election, that the dramatic increase in the rate of discharge after the election was "grave[ly] suspi- cious." But by misconstruing the General Counsel 's burden to include showing affirmatively that the Respondent would not have taken the same disciplinary action against the 10 for the same rule infractions before the election, the judge erroneously found this evidence insufficient to establish a prima facie case In any event , even under the judge's view of the General Counsel 's burden, that burden was met by the General Counsel's showing that the Respondent 's enforcement of the rules dif- fered markedly before and after the election , and that the difference is attributable to the Union 's election victory violations of these rules. That contention, however, is unsubstantiated and flies in the face of the evi- dence, which, as noted above, establishes that the Respondent's enforcement of its sign-in/sign-out rules before the election lacked consistency and uniformity. Besides the numerous instances of su- pervisors failing to enforce the rules or their cor- recting the employees' sign-in or sign-out times without any accompanying discipline or remonstra- tion, ' 3 the Respondent's preelection practice shows a tendency toward leniency and the application of progressive disciplinary procedures (even 8 of the 18 disciplined in the 6-1/2 years previous to the election bear witness to a progressive disciplinary procedure). Consequently, it is clear that a policy of consistent and uniform enforcement of the rules only manifested itself after the Union 's election. We also find that the Respondent's argument that its increased vigilance in the enforcement of the rules began in July 1981 when Cody Plott became the general manager is not supported by the facts. From February until September 9, 1981, no warnings, suspensions, or discharges were given by the Respondent for any violations of its sign- in/sign-out rules. Thus, in the approximately first 2 months of Plott's incumbency, there is no sign of increased vigilance . Only after September 9 does the record reveal the vigilance on the part of the Respondent in enforcing these rules that the Re- spondent claims occurred with Plott's coming.14 By then, of course, the employees had chosen the Union to represent them ; and other than the selec- tion of the Union as their representative, the record fails to disclose any other event or reason that plausibly could explain the new vigilance in enforc- ing the rules in question. This vigilance first showed itself shortly after the election, with the discharge of Ruthie Myles on September 11. The judge found that Myles' dis- charge flowed directly from the Respondent's union animus. He found that the Respondent con- cocted a violation by Myles of the sign -in rules in order to discharge her. He noted that Myles was fired for purportedly falsifying her sign-in time just 2 days after the election , despite the fact that before the election Myles could come to work at her convenience (a convenience that, but a few days before, Pologruto, her supervisor, had threat- ened would be disallowed if the Union won the election). The judge also noted that other employ- ees in the past had frequently falsified timesheets but were not punished , and that Pologruto not only 19 See for example G.C Exhs 23-66 14 Thus, the Respondent 's claim that the tighter enforcement of the rules after Plott took over was economically motivated does not with- stand close scrutiny HYATI' REGENCY MEMPHIS had observed employees falsifying their timesheets without disciplining them, but also had simply cor- rected the timesheets to the time he considered correct. 1 s Similarly, the judge found that the Respondent's discharge of Levy Harrison on September 28 for permitting employee Seymour to sign her out was motivated by the Respondent's more stringent en- forcement of work rules following the election in violation of Section 8(a)(1), (3), and (5) of the Act. In so finding, the judge noted that the discharge came just after the election, that no employee before the election was discharged or otherwise disciplined for permitting another employee to sign him or her out, and that Harrison's dismissal fol- lowed the Respondent's threats to enforce its rules more stringently if the Union were elected. Thus, the judge found that the first two victims of the Respondent's "increased vigilance" in the enforcement of the sign-in/sign-out rules were un- lawfully discharged. Yet he did not apply similar reasoning to the discharges of the 10 employees named above who were discharged for infractions of the same rules that were applied discriminatorily to Myles and Harrison. Instead, the judge (mistak- enly as we have found) reasoned that the General Counsel would have had to show that some "spe- cial circumstance" existed in order to prove that their discharges were discriminatory; and this is so even though he found the "special circumstance," as to Myles and Harrison, to be the Respondent's more stringent enforcement of its sign-in/sign-out rules. Nevertheless, he chose to ignore that this stringency factor also existed for the other 10 em- ployees, choosing instead to accept the Respond- ent's defense that, because it had occasionally dis- charged employees for falsifying timesheets before the September 9, 1981 election, the discharge of these 10 employees was sufficiently in keeping with the Respondent's general enforcement of its rules as to warrant dismissal of the complaint with re- spect to them. We find his reasoning for accepting the Respondent's defense as to the 10 employees, but rejecting it as to Myles and Harrison, to be un- persuasive. We find, therefore, that the discharges of the 10 employees named above, deriving as they did, like the discharges of Myles and Harrison, from the Re- spondent's more stringent enforcement of its sign- in/sign-out rules in retaliation for its employees 's The judge found an 8(a)(5) as well as an 8(a)(3) violation with re- spect to the discharge of Myles. The judge does not specify the precise basis for this 8(a)(5) finding, but we note his reliance on his finding that "other employees falsified time sheets frequently but were not punished." This indicates that, as in the case of Harrison below, the judge's 8(a)(5) determination as to Myles rested on a similar ground : the more stringent enforcement of the sign-in/sign-out rules We so find 263 having selected the Union, were discriminatorily motivated, in violation of Section 8(a)(3) and (1) of the Act. 2. The complaint alleges, as a unilateral change in violation of Section 8(a)(5), that "the Respond- ent imposed more onerous and rigorous terms and conditions of employment on its employees by re- quiring employees to sign the attendance sheets in- dividually and by more stringently enforcing rules regarding falsification of time." The judge found merit to this allegation with respect to the dis- charge of Levy Harrison essentially because she was the first employee disciplined for violating "the rules against signing out for others." He also found an 8(a)(5) violation in the termination of Ruthie Myles, and we have affirmed that finding concluding that it flowed from the Respondent's decision to more stringently enforce the rules against falsification of timesheets. He did not, how- ever, find merit to the above 8(a)(5) allegation in general or in connection with any of the 10 em- ployees who he found were not discriminatorily discharged. he General Counsel has excepted to the judge's failure to sustain the 8(a)(5) allegation set forth above. The General Counsel contends that the Re- spondent's postelection enforcement of the sign- in/sign-out rules, as reflected in the 12 discharges that are the subject of this proceeding, constituted a marked departure from the Respondent's preelec- tion practice of lax enforcement of the rules, a practice that had prevailed over the first 6-1/2 years of the Respondent's existence. Consequently, the General Counsel argues, the practice had become an established term and condition of em- ployment that could not be changed to one of more strict enforcement without first notifying the Union and giving it an opportunity to bargain about the change. Thus, when the Respondent uni- laterally implemented this change in practice, it violated Section 8(a)(5) and (1) of the Act. We find merit in the General Counsel's position. Although the sign-in/sign-out rules have been in effect since the Respondent commenced operations, that does not preclude our finding that the enforce- ment of those rules more stringently than had been the practice before the Union's election represented a change in the employees' terms and conditions of employment over which the Respondent had an obligation to bargain. Celotex Corp., 259 NLRB 1186, 1194 (1982) (highly increased frequency of warnings postelection); Sevakis Industries, 238 NLRB 309, 311-312 (1978) (work rules not en- forced until selection of the union), enfd. 652 F.2d 600 (6th Cir. 1980); Master Slack, 230 NLRB 1054, 1055 (1977) (tardiness and absenteeism rules more 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stringently enforced after union election victory), enfd. 618 F.2d 6 (6th Cir. 1980); and Electri-Flex Co., 228 NLRB 847 (1977) (tightening up of lax en- forcement of some plant rules amounted to a new system of rules), enfd. in pertinent part 570 F.2d 1327, 1332-1333 (7th Cir. 1978). We have found that the Respondent leniently and inconsistently (if not arbitrarily) enforced the rules before the election; that in the same period supervisors tolerated and even condoned infrac- tions of the rules; that, significantly, in the 7 months predating the election there was no en- forcement of them at all; and that until the dis- charge of Harrison for allowing employee Sey- mour to sign her out, no employee had ever been disciplined for that rule infraction (or, for that matter, signing in or signing out another employ- ee).16 Based on all the evidence of the preelection and the postelection enforcements of the rules in question, we find that the Respondent changed from a system of lax, sporadic enforcement into one of stringent enforcement. Because the Re- spondent never notified or bargained with the Union concerning the institution and implementa- tion of its more stringent enforcement of these rules when it had an obligation to do so,17 we find that it violated Section 8(a)(5) and (1) of the Act.16 AMENDED CONCLUSIONS OF LAW 1. Substitute the following for paragraph 3. "3. By telling its employees it was destroying all their written warnings and changing its procedure of access to management to one of open door to the general manager because of the union organiz- ing campaign; by interrogating employees about 16 We acknowledge that the discharges of Harrison and Seymour were attributed to the fact that Seymour falsified the time they left Harrison, however, was unaware of the falsification , yet she was discharged. Sey- mour testified that in signing out the wrong time she took into account that both Harrison and she had worked during what would normally have been their lunchtime . Her testimony was not refuted Given the Re- spondent's preelection toleration of timesheet falsifications without any apparent compensating reason being offered in justification by the offend- ing employees, we find that the termination of Seymour is a further ex- ample of the Respondent 's more stringent enforcement of the sign- in/sign-out rules. 19 Twelve employees were discharged pursuant to the Respondent's change in practice of more stringently enforcing the rules Consequently, in remedying these discharges , in the traditional manner, we rely on the Respondent's unilateral change and failure to bargain with the Union about that change, as well as on our finding that the discharges were dis- criminatorily motivated See fn 7 and p. 1056 of the Board's decision in Master Slack, supra i a The gravamen of our findings concerning the Respondent 's enforce- ment of the sign-in/sign-out rules is that the Respondent cannot use these rules to retaliate against its employees' union activities, as we have found it did here, and that it cannot institute a policy of more stringent enforce- ment of the rules without first bargaining to an agreement with the Union concerning that policy or to a bona fide impasse on the matter The Re- spondent is, of course, at liberty to implement and enforce its work rules so long as it does so in keeping with its bargaining obligations and for lawful reasons the Union; by promising its employees improved working conditions because of the Union's cam- paign; by threatening its employees with detrimen- tal changes and working conditions if they selected the Union as their bargaining representative; by threatening its employees with loss of benefits if the Union was selected; by telling its employees that they would not receive planned pay increases because of the Union; by threatening employees with discharge for offenses that previously in- volved no disciplinary action if the employees se- lected the Union; by linking employee awards and pay raises with its suggestion that its employees vote against the Union; by threatening an employee with discharge if they voted the Union in; by poll- ing its employees in group meetings as to their union feelings; by threatening its employees that a union belt buckle would get him in trouble; and by requiring its employees to remove union buttons from their clothing, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act." 2. Substitute the following as paragraph 4, insert the following as paragraph 5, and renumber the subsequent paragraphs. "4. By discharging its employees Levy Harrison and Ruthie Myles; by issuing a written warning to Myles; by unilaterally and more stringently enforc- ing its timesheet rules and subsequently discharging employees Linda Shirley, Terry Seymour, Timothy Brooks, Bryant Gibbs, Phillip Valentine, Nate Gorman, James Gorman, Mozelle Payne, Andrew Ryan, and Stan Harris and thereafter failing and re- fusing and continuing to fail and refuse to reinstate these employees, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1), (3), and (5) of the Act. "5. By retaliating against employee Ruthie Myles because of her attendance on behalf of the Union at the representation case hearing and her participa- tion in an NLRB-conducted election, the Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(4) of the Act." AMENDED REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), (4), and (5) of the Act, we shall order that it cease and desist therefrom and to take cer- tain affirmative action designated to effectuate the policies of the Act. We shall order the Respondent to offer Levy Harrison, Ruthie Myles, Linda Shir- ley, Terry Seymour, Timothy Brooks, Bryant Gibbs, Phillip Valentine, Nate Gorman, James Gorman, Mozelle Payne, Andrew Ryan, and Stan Harris immediate and full reinstatement to their HYATT REGENCY MEMPHIS former positions, or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privi- leges. We shall further order the Respondent to make Harrison, Myles, Shirley, Seymour, Brooks, Gibbs, Valentine, N. Gorman, J. Gorman, Payne, Ryan, and Harris whole for any loss of earnings they may have suffered as a result of the discrimi- nation against them and that the Respondent remove from its records any reference to the un- lawful warning given Myles and the unlawful dis- charges of the above-named discriminatees and to notify each of the above-named discriminatees in writing that the Respondent 's unlawful conduct will not be used as a basis for further personnel action. Backpay shall be computed as described in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as described in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). We shall also order that the Respondent restore the status quo ante by revoking its new policy of stricter enforcement of its sign-in/sign-out rules, and by reinstating its wage adjustment plan, the previous starting times for certain bargaining unit employees, and its prac- tice of serving breakfast to bargaining unit employ- ees. We shall order the Respondent to make all bargaining unit employees whole for any loss of earnings suffered because of the Respondent's un- lawful discontinuation of its wage adjustment plan including earnings lost by employees who were de- prived of longevity increases , merit increases, and/or semiannual wage adjustments . Backpay for these particular lost earnings shall be computed as described in Ogle Protection Service, 183 NLRB 682, 683 (1970), with interest as described in New Hori- zons for the Retarded, supra. ORDER The National Labor Relations Board orders that the Respondent, Hyatt Hotel Corporation, d/b/a Hyatt Regency Memphis , Memphis, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act in violation of Sec- tion 8(a)(1) of the Act by telling its employees it was destroying all their written warnings and changing its procedure of access to management to one of open door to the general manager because of the union organizing campaign ; by interrogating employees about the Union ; by promising its em- ployees improved working conditions because of the Union's campaign; by threatening its employees with detrimental changes in working conditions if they selected the Union as their bargaining repre- 265 sentative; by threatening its employees with loss of benefits if the Union was selected ; by telling its em- ployees that they would not receive planned pay increases because of the Union ; by threatening em- ployees with discharge for offenses that previously involved no disciplinary action if the employees se- lected the Union; by linking employee awards and pay raises with its suggestion that its employees vote against the Union ; by threatening its employ- ees with discharge if they voted the Union in; by polling its employees in group meetings as to their union feelings; by threatening an employee that a union belt buckle would get the employee into trouble; and by requiring its employees to remove union buttons from their clothing. (b) Retaliating against, discharging, and thereaf- ter failing and refusing to reinstate its employees, and issuing written warnings to employees and more stringently enforcing its timesheet rules, be- cause of the employees' concerted or union activi- ties, or participation in NLRB procedures, or be- cause its employees selected the Union as their bar- gaining representative or because of unlawful and unilateral changes in its employees ' working condi- tions. (c) Refusing to bargain with Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO by unilaterally discontinu- ing its wage adjustment and merit and longevity wage increase practices for unit employees and its practice of serving breakfast to employees in the bargaining unit, or by unilaterally changing their working hours or instituting and implementing more stringent enforcement of its sign-in/sign-out rules against them . The appropriate unit is: All banquet bartenders, banquet captains, ban- quet cooks, banquet housekeepers, banquet house person [sic] supervisors, bell attendants, bartenders, beverage-waiters, beverage wait- resses, bakers, bakers' helpers, breakfast cooks, butchers, bus persons, cafeteria food servers, day stewards, door attendants, food and bever- age cashiers, general utility employees, head bartenders, host/hostesses, housekeepers, house persons, [sic] kitchen expediters, linen room attendants, line cooks, maintenance engi- neers I, II, and III, night chefs, night pantry cooks, night cooks, night stewards, night bell attendants, PBX operators, pool attendants, pantry workers, pantry cooks, salad bar at- tendants, secretary to the chef/food prepara- tion, secretary to the banquet manager, store room clerk, van drivers, restaurant waiters, 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD restaurant waitresses, banquet waiters, banquet waitresses, room service waiters, room service waitresses, banquet chef and floor supervisor employed by the Employer at its Memphis, Tennessee, location, excluding all supervisors as defined in the Act. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer immediate and full reinstatement to Levy Harrison, Ruthie Myles, Linda Shirley, Terry Seymour, Timothy Brooks, Bryant Gibbs, Phillip Valentine, Nate Gorman, James Gorman, Mozelle Payne, Andrew Ryan, and Stan Harris to their former positions, or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision and remove from their files any reference to their discharges and the unlawful warning to Myles . Notify all the above-named employees in writing that this has been done and that evidence of their unlawful dis- charges and warning will not be used as a basis for further personnel actions against them. (b) Notify and give the Union an opportunity to bargain about any changes in the unit employees' terms and conditions of employment, including the more stringent enforcement of its sign -in/sign-out rules concerning those employees, changing their working hours, and discontinuing as to them its wage adjustment and merit and longevity increase practices, and its practice of serving them break- fast. (c) Rescind the more stringent enforcement policy concerning the sign-in/sign-out rules for unit employees. (d) On request from the Union, reinstitute its wage adjustment and merit and longevity wage in- crease practices for unit employees, and its practice of serving them breakfast. (e) On request from the Union, reinstate the working hours arrangement in the housekeeping department as it existed on September 9, 1981. (f) Make all current and former bargaining unit employees whole for any loss of earnings suffered by the Respondent's unlawful discontinuation of its wage adjustment plan, including earnings lost by employees being deprived of longevity increases, merit increases, and/or semiannual wage adjust- ments in the manner set forth in the remedy section of the decision. (g) 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. (h) Post at its place of business in Memphis, Ten- nessee, copies of the attached notice marked "Ap- pendix." 19 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 19 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT impose more onerous and rigor- ous terms and conditions of employment on our employees by more stringently enforcing our time- sheet sign-in/sign-out rules because our employees have selected Highway and Local Motor Freight Employees Local Union No. 667, affiliated with HYATT REGENCY MEMPHIS the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO as their collective-bargaining represent- ative. WE WILL NOT retaliate against our employees because they support the Union or participate in NLRB-conducted election procedures. WE WILL NOT promise to destroy our employ- ees' warning notices (communications) in an effort to defeat the Union. WE WILL NOT promise that our employees have an open door to the Hotel's general manager in an effort to defeat the Union. WE WILL NOT coercively interrogate our em- ployees about their union sentiments and activities. WE WILL NOT threaten our employees that they will get into trouble by wearing a "Teamsters belt buckle" and WE WILL NOT prohibit our employees from wearing union buttons NOR WILL WE direct our employees to remove union buttons from their clothing. WE WILL NOT threaten our employees with det- rimental changes in working conditions if they select the Union. WE WILL NOT threaten our employees with a loss of benefits and privileges if they select the Union as their bargaining representative. WE WILL NOT coerce or threaten our employees by stating that they are being deprived of wage in- creases because of the Union or because of collec- tive bargaining. WE WILL NOT associate our granting employee awards including the employee-of-the-month award, with our desire to defeat the Union, in order to illustrate that favors could be granted to those that oppose the Union. WE WILL NOT threaten our employees with dis- charge for offenses not previously punishable by discharge, if they select the Union as their bargain- ing representative. WE WILL NOT threaten our employees with dis- charge or with kicking them out the door, if they vote for the Union. WE WILL NOT poll our employees in open meet- ings on their feelings about the Union. WE WILL NOT discharge our employees, or take any other reprisals against our employees, includ- ing disciplinary warnings , because they join, sup- port, or engage in activities on behalf of Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO or any other labor organization, or as a result of changes in working rules without first negotiating with our employees' bargaining representatives about those changes. 267 WE WILL NOT refuse to bargain with the Union by unilaterally discontinuing our wage adjustment and merit and longevity wage increase practices for unit employees, and our practice of serving breakfast to employees in the bargaining unit, or by unilaterally changing their working hours or insti- tuting and implementing more stringent enforce- ment of our sign-in/sign-out rules against them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL bargain with Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO by notifying and giving that labor organization an opportunity to bargain about any changes in our unit employees' terms and conditions of employment, including the more stringent enforcement of our sign -in/sign-out rules concerning those employees, changing their work- ing hours, and discontinuing as to them our wage adjustment and merit and longevity wage increase practices and our practice of serving them break- fast. The appropriate unit is: All banquet bartenders, banquet captains, ban- quet cooks, banquet housepersons , banquet houseperson supervisors, bell attendants, bar- tenders, beverage waiters, beverage waitresses, bakers, bakers' helpers, breakfast cooks, butch- ers, bus persons, cafeteria food servers, day stewards, door attendants, food and beverage cashiers, general utility employees, head bar- tenders, host/hostesses, housekeepers, house persons, kitchen expediters, linen room attend- ants, line cooks, maintenance engineers I, II, and III, night chefs, night pantry cooks, night cooks, night stewards, night bell attendants, PBX operators, pool attendants, pantry work- ers, pantry cooks, salad bar attendants, secre- tary to the chef/food preparation, secretary to the banquets manager, store room clerk, van drivers, restaurant waiters, restaurant waitress- es, banquet waiters, banquet waitresses, room service waiters, room service waitresses, ban- quet chef and floor supervisor employed by the Employer at its Memphis, Tennessee, loca- tion, excluding all supervisors as defined in the Act. WE WILL rescind the more stringent enforcement policy concerning the sign-in/sign-out rules for unit employees. WE WILL, on request from the Union, reinstate our prior wage adjustment and merit and longevity 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wage increase practices for unit employees and our practice of serving them breakfast. WE WILL make whole all employees and former employees in the unit for all earnings lost as a result of our unlawful discontinuation of the wage adjustment and merit and longevity pay increase practices that were in effect on and before Septem- ber 9, 1981, with interest. WE WILL, on request from the Union , reinstate the working hours arrangement in the housekeep- ing department as it existed on September 9, 1981. WE WILL offer immediate and full reinstatement to Levy Harrison, Ruthie Myles, Linda Shirley, Terry Seymour, Timothy Brooks, Bryant Gibbs, Phillip Valentine, Nate Gorman, James Gorman, Mozelle Payne, Andrew Ryan, and Stan Harris to their former jobs, or, if such positions no longer exist, to substantially equivalent positions, with full seniority and all other rights and privileges. WE WILL make Levy Harrison, Ruthie Myles, Linda Shirley, Terry Seymour, Timothy Brooks, Bryant Gibbs, Phillip Valentine, Nate Gorman, James Gorman, Mozelle Payne, Andrew Ryan, and Stan Harris whole for any loss of earnings they may have suffered by reason of our discrimination against them, with interest. WE WILL remove from our records any refer- ence to the unlawful discharges of the above- named employees and WE WILL notify them in writing that our unlawful conduct will not be used as a basis for further personnel action. WE WILL remove from our records the discipli- nary warning issued Ruthie Myles, and WE WILL notify her in writing that our unlawful conduct will not be used as a basis for further personnel action. HYATT HOTELS CORPORATION, D/B/A HYATT REGENCY MEMPHIS W. Paul Tuberville and Karen M. Clayborne, Esqs., for the General Counsel. William K. Carmichael and Arch Stokes, Esqs., of Atlanta, Georgia, for the Respondent. Duria Jones and C. R. Boyd, appearing for the Charging Party. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This case was heard on various dates during July, Sep- tember, and October 1982 in Memphis, Tennessee. The final complaint, entitled third order consolidating cases, amended consolidated complaint and notice of hearing, issued on May 28, 1982. The original charge in Case 26- CA-9352- 1 was filed on September 29, 1981, amended on October 15, and amended again on November 2, 1981. The charge in Case 26-CA-9352-2 was filed on October 8, amended on October 21, and amended again on November 2, 1981. The charge in Case 26-CA-9648 was filed on April 12, 1982, amended on May 21, 1982, and amended again on May 27, 1982. The complaint al- leges that Respondent engaged in numerous instances of conduct violative of Section 8(a)(1), (3), and (5).' On the entire record2 and from my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the follow- ing findings. The instant litigation focused on a union campaign in the summer of 1981 and the campaign 's aftermath. The election, which was held at Respondent's Memphis, Ten- nessee hotel on September 9, 1981, was won by the Union (Charging Party). The Union was certified bar- gaining representative of employees in an appropriate unit on November 27, 1981 . Allegedly, Respondent's preelection antiunion campaign was punctuated by 8(a)(1) activity. The General Counsel also alleges that subsequent to the election Respondent engaged in 8(a)(1), (3), and (5) violations which included discharging numerous employees and unilaterally changing various terms and conditions of employment. I. THE 8 (A)(1) ALLEGATIONS The complaint alleges that several supervisors engaged in conduct violative of Section 8(a)(1) during the Union's preelection campaign . Those supervisors alleged in the complaint include General Manager Cody Plott, Execu- tive Chef Anthony Pologruto, Executive Housekeeper Bruce Nelker, Executive Sous Chef Reuben Criswell, Chief Engineer Robert Poole, Assistant Controller Terri ' In its answer, Respondent raised a number of affirmative defenses in- cluding contentions that the third consolidated complaint is barred by the doctrine of res judicata; is barred by the doctrine of waiver and estoppel, is barred by the statute of limitations , is barred because the allegations made in the third consolidated complaint were never the subject of for- mally filed unfair labor practice charges; fails to state a claim upon which relief can be granted ; and is barred because the National Labor Relations Board has violated Respondent's right to due process and administrative due process. Respondent also alleged in its answer that there has been insufficiency of service of process of third consolidated complaint, that the third consolidated complaint is barred because the National Labor Relations Board violated its own Rules and Regulations and its statutory mandate in investigating the alleged unfair labor practice charges; and that the third consolidated complaint is barred because the National Labor Relations Board never gave Respondent notice of the matters of Its investigation. As to Respondent's allegations of failure of service of process and fail- ure of adequate notice, record exhibits contain return receipts from the U.S. Postal Service which show that Respondent received service of process in accord with the Board 's Rules and Regulations Therefore, I find that those two affirmative defenses lack merit. As to the remaining affirmative defenses . Respondent offered no evi- dence in support of any and the record fails to show that any are mento- rious Respondent's affirmative defenses are denied. Moreover, Respondent in its answer denied that the Union filed any and all of the various charges and amended charges included in the third consolidated complaint. Respondent also denied that any of those charges were properly served The record exhibits, which were received into evi- dence, show otherwise I find that the charges were filed and served as alleged in pars 1(a) through 1(i) of the third consolidated complaint. 2 Following close of the hearing various motions and orders resulted in my receiving into evidence G C Exh 88, R Exh 33, and kitchen time- sheets for the April through September 1981 period HYATT REGENCY MEMPHIS Harmon, Assistant Director of Housekeeping Dannye Chapman, Comptroller James Barnish, and Director of Personnel Lynn Taggart. A. General Manager Plott Cody Plott was assigned the Memphis Hotel in 1981. He actually reported on the job in early July 1981. 1. The July 24, 1981 speech There is no dispute Cody Plott addressed the employ- ees on July 24, 1981 . General Counsel alleged that the speech contained comments which violate Section 8(a)(1). Cody Plott testified that he read the speech , but after- wards he responded to employees ' questions. The text, which is in evidence,' begins by mentioning the upcom- ing election in expressing Respondent's belief that no union is needed. The text then summarizes some of the advantages afforded Respondent's employees including wages and benefits, physical improvements in the hotel, and a new management team . Plott then asked the em- ployees to give him an opportunity to perform as general manager. The text points out that Respondent is commit- ted to excellence "both in servicing guests and in provid- ing for (the employees) happiness," and that the Union may have promised a lot of things but the hotel does not just promise. The text stresses that the Union is not needed but indicates that Respondent will bargain in good faith if the employees select the Union. Plott goes on stating (according to the text): I do not know what any contract would say. No one does. Contract negotiations will involve give and take from both sides . Your wages and benefits may be better, or they may end up worse. Bargain- ing may start from Scratch! Judge for yourself whether you think it is neces- sary to go through what may be very long contract negotiations. Judge for yourself whether you will be better off in collective bargaining negotiations. Remember this election will be by secret ballot conducted by the National Labor Relations Board, an agency of the United States Government. No one will know how you voted. You do not have to tell any one how you are going to vote or how you voted. If any one tries to threaten you, intimidate you, or pressure you, in any way, please report it to your supervisor, to me, to Lynn, or to any member of management. I will not tolerate threats, or has- sles, or any employees being pushed around by any one. Keep in mind that you can still vote no union even though you may have signed a union card. Thank you very much for your patience. Re- member, the union will probably be promising you a lot in exchange for your vote. They will always attempt to "out promise" anything that I have done or Hyatt will do. I ask that you look at the facts on both sides and judge for yourself. ' R Exh 33 269 I hope you will give Hyatt your vote. Show us you believe in us. We want the opportunity to continue to progress at your Hyatt, in all of your personnel practices and policies. I know we have had problems here. I do not deny that. I want to start fresh with you. Because I want you to let me start with a clean slate, you will start with a clean slate with me. I am today tearing up all warning notices in your files. Beginning today, there will be no warning no- tices in any of your files. I am a straight shooter. I am simple and direct. You will know where I stand. You will know me, and I will know you. Please give me a chance to work with you. Are there any questions? Three witnesses, Ruthie Myles, Scott Monson, and Linda Shirley, recalled that among other things Plott told them they could come to him personally with prob- lems, that his door was always open . Plott admitted that he responded to questions but that he could not recall what was said during the question and answer period. Discussion There appears to be little dispute over the material areas regarding the July 24 speech. General Counsel contends in his brief that Plott violated Section 8(a)(1) by promising to tear up all warning notices and by invit- ing the employees to come directly to him with prob- lems. As regards tearing up warning notices, I credit the version set out in the text which was corroborated by the testimony of several witnesses. As regards Plott's invitation to the employees to bring their problems directly to him, I credit Ruthie Myles, Scott Monson, and Linda Shirley. Plott did not deny their testimony in that respect, and he admittedly could not recall the substance of the questions and answers. I also credit testimony showing that Plott asked the employees to give him a chance and delay selecting the Union for a year. Findings 1. In disagreement with the General Counsel, I find nothing improper in Cody Plott asking the employees to give him, a new general manager, a chance . Obviously, the General Counsel is correct in its argument that such a statement implies improved conditions under Plott's command . However, it is also obvious that the implica- tion is nebulous, unconnected to either general or specif- ic improvements. Here, as in all 8(a)(1) queries , the ques- tion must be, does the statement tend to restrain or coerce the employees . I fail to see how Plott restrained or coerced employees by asking them to give him a chance, especially in view of General Counsel's admis- sion that Plott also instructed the employees that he could make no promises. 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. However, by promising to tear up all warning no- tices in the employees' files, Plott violated Section 8(a)(1). The Respondent's employee handbook reflects that "communications"-a term which includes warning notices-will remain in the respective employee's person- nel file where they will be considered "when it comes time to evaluate your performance to consider you for transfer, promotion, salary increase .. .." By destroy- ing the written warnings Plott immediately improved the records of all those employees with warnings. The text shows that this promise followed Plott 's request that the employees give Hyatt "your vote," and a request for a fresh start in an effort to eliminate acknowledged prob- lems. 3. As to the other of the General Counsel 's arguments, the employee handbook in effect on July 24, 1981, pro- vided at page 16, a procedure of progressive communica- tions with management . That procedure involved the im- mediate supervisor, the department head , and eventually, if necessary, the personnel director or executive assistant manager. General Counsel argues that by offering the employees an open door to the general manager, Plott was granting another improved benefit. Also, the Gener- al Counsel argues, by that request, Plott was soliciting grievances from the employees . I noticed that Plott also sought employee complaints regarding union contacts. As shown in the text: If anyone tries to threaten you, intimidate you, or pressure you, in any way, please report it to your supervisor, to me, to Lynn, or to any member of management. Of course the law recognizes that management occu- pies a uniquely favorable position during union cam- paigns-a position from which employees may be easily coerced by the holder of the purse strings. The Board and the courts have found that employers violate the law by granting improved benefits during an election cam- paign especially where the grant is coupled with Re- spondent's antiunion rhetoric . Conagra, Inc., 248 NLRB 609 (1980); Raley's Inc., 236 NLRB 971 (1978). I find in agreement with the General Counsel . By destroying all warning notices and by changing the procedure for con- tacts with management to one of open door with the general manager, Respondent violated Section 8(a)(1). 2. Linda Shirley and Mary Wesley Linda Shirley testified that Cody Plott came into a room she was cleaning in late August . According to Shirley, the following conversation occurred between her and Plott: A. And he said, "I wanted to get your opinion about something." And I said, "What?" And he said, "How you feel about the union trying to come in the hotel." And I told him that I feel that we need a union . And he asked me why did I feel like that, and I told him. Q. What did you tell him? A. I told him that it took me three years to get from $2.50 when I started, to $3.40 at the time, and that it was hard for a housekeeper to get out of this position to feel free to approach another position in the hotel. Q. Go on. What did he say to you? A. He said he was sorry I had that attitude and he asked me did I know of anyone that had tried to get out of housekeeping, and I told him there were several girls that had college degrees and were qualified for another position and they applied but didn't get it; they hired somebody off the street. A. I told him if we had a union, maybe this wouldn't have went like that. Q. Go on. A. So he told me if I had a problem, feel free, his door is always open. And I asked him if he was God because that was the only one that could solve my problems. Mary Wesley testified that she had a conversation with Plott about 2 or 3 weeks before the September 9, 1981 election: Well, he come in and introduced himself and then he, you know, asked me did I like working with the Hyatt and I told him , you know, that I liked my job at the Hyatt, and I told him, yes, okay. And then he said he was trying to find out what was wrong and what not. Then he, you know, asked me why did we, you know, need a union, want a union; and I told him that everybody needed a change . And he said we would have to, you know, trust in him and he would try to make things better, and he said that he wasn't here when everything started, but he would, you know, try to make things better and we just had to trust in him. Q. All right. You testified he asked you what was wrong. Did you reply? A. Yes. Q. What did you tell him? A. I told him that we had been asking for raises and that, you know, we never gotten any raise or nothing like that and the peoples was just being hired, well they was, you know, coming in the door making as much as we was making, and they just wouldn't give us a raise. Cody Plott denied that he interrogated Shirley and Wesley. However, he admitted that he did try to meet with his employees. As shown below , Plott appeared to completely revise his pretrial affidavit testimony in order to support Re- spondent's position at trial regarding the alleged unilater- al denial of a wage increase . Therefore, I am unable to credit his testimony. On the other hand, both Shirley and Wesley demonstrated good demeanor . Cross-examination did reveal a conflict between Shirley 's trial testimony and her pretrial affidavit on the question of employees signing out for other employees . Shirley explained that she did not recall instances of sign outs during the taking of her affidavit but that she has since recalled those facts. HYATT REGENCY MEMPHIS Despite that difficulty, I am impressed that both Shir- ley and Wesley are being truthful regarding the Plott conversations. Shirley's explanation of the affidavit con- flicts are reasonable and she appeared to respond to cross-examination adequately. I am unable to credit Plott's testimony to the extent that it conflicts with the credited evidence. I shall credit Shirley and Wesley. Findings The credited testimony reveals that Cody Plott illegal- ly interrogated Linda Shirley and Mary Wesley. In the case of Shirley, he first asked her opinion of the Union, then asked her to explain why she favored the Union. Plott said that he was sorry that Shirley had the attitude she demonstrated . He suggested that his door was always open if she had a problem. As to Wesley, Plott first asked if she enjoyed working at Hyatt. He told her he was trying to find out what was wrong. Then Plott asked Wesley why did they need or want a union. He then promised to make things better if the employees would trust him. Both those instances include interrogation of the type traditionally found violative . In both cases, the employ- ees were placed in position of having to express and jus- tify their union sentiments to the highest management of- ficial. In both instances, Plott held out the hope of bene- ficial treatment if, in the case of Shirley , she came to him and, in the case of Wesley , the employees would trust him. Cf. Mueller Brass Co. v. NLRB, 544 F.2d 815 (5th Cir. 1977). I find Plott's activities constitute violations of Section 8(a)(1). B. Director of Engineering Robert Poole 1. Don Mathis Former employee Don Mathis testified that he had a conversation with Robert Poole during the week of August 17, 1981. Near the end of the conversation, which included a discussion of the day's work activities, Poole asked Mathis what he thought about the Union. Mathis replied that he had nothing to do with it. Later near the end of August 1981, Mathis was sum- moned by Poole's office to discuss a time chart that had been drawn up by Jim Barnish . The conversation which followed was between Mathis and Poole. According to Mathis: Well, so when I got down there it was just he and I and we went in his office and he closed the door and he sat there for a minute and he said, "I know things have been rough in the past , but," he said, "since we've gotten a new General Manager," he said, "This General Manager has made a lot of changes," and he asked me if I still thought we needed a union. And I said, "Well, in the past," and he just cut me off cold and he said that he didn't want to hear anymore about the past , that what had happened in the past was over and it should be buried, there wasn't nothing we could do to change it and that we should be looking toward the future and that he-he asked me, he said that since we got 271 this new General Manager, you know, he asked me what I thought and I told him, and I told him I thought he was doing a good job, and he said, "Well, do you think we need a union now," and I said-I don't really recall what I said. Robert Poole denied that he ever asked Robert Mathis or any other employee what the employee thought about a union. 2. Randy Blaylock Current employee Randy Blaylock testified to a con- versation with Poole in August 1981: He told me to come in his office . He brought up a raise. I got a raise and then he went on to say that everything is going to be started all over . That we got a new manager and things are going to get better. We don't need a union, that everything is going to be fine, starting off fresh. Poole was not asked about the Blaylock conversation. 3. Scott Monson Former employee Scott Monson testified that he start- ed wearing a belt buckle which was blue with the Team- sters logo, in August 1981. On the first day Monson wore the buckle, Robert Poole "pointed right at it and said 'that belt buckle is going to get you in trouble."' Monson also wore a Teamsters button in August 1981. According to Monson, Poole told him that he could not wear the button, that it was not part of the uniform. Poole told Monson that Monson could keep the belt buckle but that he could not wear the button. Poole denied telling Monson that "wearing a Team- sters belt buckle was going to get him in trouble." Discussion Robert Poole, along with other witnesses for Respond- ent, disavowed pretrial testimony regarding Respondent's preelection wage adjustment practice. As shown below, the evidence was convincing that Poole and others were testifying untruthfully at trial especially in regards to the wage adjustment practice . With that in mind, I am unable to credit Poole's testimony. I found the testimony of Mathis, Blaylock, and Monson believable in view of the consistency in the type of approach all three recalled from Poole, the demeanor of each of the three compared with that of Poole, and the failure of any showing that the testimony of Mathis, Blaylock, and Monson conflict- ed with any evidence other than the denials of Poole. I shall credit the testimony of Mathis, Blaylock, and Monson. Findings In view of the total background of unfair labor prac- tice activity by Respondent, I am convinced that the above evidence proves that Mathis was interrogated by Poole during two August 1981 conversations in violation of Section 8(a)(1). Poole violated Section 8(a)(1) by promising Randy Blaylock improved conditions of work 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in arguing there was no need for a union . Poole also en- gaged in 8(a)(1) conduct when he threatened Monson that the Teamsters belt buckle would get Monson in trouble and when he required Monson to remove his union button. (See sec. I, infra.) C. Executive ChefAnthony Pologruto 1. Ruthie Myles Alleged discriminatee Ruthie Myles testified to a con- versation she had with Pologruto in the office a few days before the September 9, 1981 election: Well, we both walked in and he told me to have a seat, which I did, and he just sort of leaned back on the desk and I sat in the chair and we both lit a cig- arette and he started talking and he said that-he said "You know if the union comes in here it is going to be a lot of changes made around here, and besides those people are not going to get you all the benefits that you now have," and he said that he felt like the only reason that I really wanted the union was because of the termination of my mother. And I told him it wasn't because of the termination of my mother, it was because so many employees had been done wrong and that we needed the union. And he said that he had worked for a union hotel before and that I was going to find that those people are going to tell us a lot of lies and weren't going to do anything for us . And he was talking- and I said that-I asked him-he said we had been getting away with a lot of things. I asked him what we had been getting away with and he said-he didn't say anything at first and then he said-I asked him again and he said for instance that I got to come to work when I got ready to. And the phone rang and when he hung up the phone I told him I didn't want to discuss it anymore because he wasn't suppose [sic] to come to me about the union and he said he wasn't discussing it with me but he could give me his point of views about it, give me his opinion about it. And I told him, I said "Well, if you're not supposed to talk to me about it"-I told him I didn't want to talk about it any more and I just walked out of the office. 2. Mary Lott Current employee Mary Lott testified that on Septem- ber 2, 1981, she went to Pologruto's office after Polo- gruto asked her to come by: Well, I went by his office at 2:00 and he said he wanted to talk to me about the benefits and he got out the book and laid it up on the desk. He really didn't explain it, you know, he just laid it up there. Then he said that he didn't think that we needed a union because the union wouldn't do us no good. He said the only thing-that we wouldn't be able to come in this office and sit down and talk to him. And he said that the General Manager said hold off and try it a year and he would straighten things out. And I said something like "It's too late. It 's too late now." Then he asked me would I talk with some of the employees and I told him no, because I didn't know nothing about the union to talk to them. Then he said that if we got the union that our benefits would be dropped. Q. All right. Go on. A. That was all I can remember. Q. Did he say when he spoke about not being able to talk to him any more if the union came in, did he say what you would have to do? A. He said, "if you come in this office , that once the union got in there, that we would have to have a witness in there with us." We couldn't sit down and talk. Discussion Pologruto admitted discussing the Union with Ruthie Myles and others. He denied threatening Mary Lott that benefits would be dropped. However, Pologruto admit- ted that he could not recall the specifics of the conversa- tions he had with Mary Lott. As shown hereafter in the section dealing with the dis- charge of Ruthie Myles, I found that Anthony Pologruto was totally discredited . His testimony conflicted at sever- al material points with other evidence including evidence offered by Respondent. Therefore, I shall not credit Po- logruto. Myles and Lott demonstrated good demeanor. Both appeared to respond openly and frankly to questions from the General Counsel and Respondent . I credit the testimony of both Mary Lott and Ruthie Myles. Findings In his conversation with Myles, Pologruto threatened that selection of the Union would result in detrimental changes in working conditions . Pologruto specifically threatened that Myles was permitted to get away with a lot of things including coming to work when she was ready, but with the Union, the people would not have all those benefits. Pologruto also interrogated Myles as to the reason she supported the Union. His threat to change working conditions to the employees ' detriment, and his interrogation of Myles constitute 8(a)(1) violations. La-Z- Boy Midwest, 241 NLRB 334 (1979). Pologruto threatened Lott with loss of benefits and loss of the privilege of coming directly to him. He also held out hope of improved benefits if the Union was re- jected. Those constitute additional 8(a)(1) violations. B.L.K. Steel, 245 NLRB 1347 (1979). D. The Alleged Threat not to Grant Wage Increases 1. Mary Lott testified to the conversation which oc- curred after the union election between her and Execu- tive Chef Pologruto: [I] walked down there and asked [Pologruto] could he give us a raise and he said "No" we had to deal with the union. There was nothing he could do. And I said "Well, we don't work for the union. We work for Hyatt." He said "I can't help that. My hands are tied and there is nothing I can do." HYATT REGENCY MEMPHIS 2. Edna Freeman, who is currently a supervisor at Hyatt but was a unit employee at material times, testified that she asked Comptroller Jim Barnish for pay raises in November and January 1982. According to Freeman , in November, Barnish told her that "he couldn't give me a raise because [of] the negoti- ations with the union." In January, Barnish replied to her request, "I told you before that you couldn't get a raise because of the negotiations of the Union." In March 1982, Edna Freeman again asked Barnish for a raise in the presence of Director of Personnel Lynn Taggart. Barnish deferred the questions to Taggart. Tag- gart told Freeman that they could not give a raise "be- cause they were still in negotiations on a contract with the union and [Taggart] said that if she had given me a raise, the union could have claimed that she was show- ing favoritism toward me." Discussion Jim Barnish admitted having the conversation with Edna Freeman as she testified . The testimony of Free- man and Lott appeared candid, and they demonstrated good demeanor. I shall credit their testimony. Findings As shown hereafter, Respondent unilaterally discontin- ued its wage adjustment practice in November 1981 in violation of the Act. That background, and the numerous other violations found herein, make the above-mentioned supervisory comments more significant. The Act discour- ages efforts by employers to dissipate the union's strength among the unit employees by holding out, through threats or promises, that but for the Union, things would be better . NLRB Y. Otis Hospital, 545 F.2d 254, 254-255 (1st Cit. 1976). Under the circumstances here, Respondent's supervi- sors were blaming the Union for loss of wage increases when, in fact, it was Respondent's own unfair labor prac- tices which resulted in the lost increases. Lynn Taggart took the ball into the far court by asserting that the Union would have claimed discrimination if Edna Free- man had been given a raise. The activity engaged in by Pologruto, Barnish, and Taggart tends to coerce employees into withdrawing their support from the Union during a most critical time-contract negotiations-and is violative of Section 8(a)(1). Kut Rate Kid & Shop Kwik, 246 NLRB 106, 118 (1979); Markle Mfg. Co., 239 NLRB 1353 (1979); Signal Knitting Mills, 237 NLRB 360 (1978); Gulf States Mfrs., 230 NLRB 558 (1977). E. Executive Sous Chef Reuben Criswell 1. Mary Lott Mary Lott testified to a conversation with Reuben Criswell on September 8, 1981. Lott and others were set- ting up lunch on the line when Criswell came by. Cris- well told Lott that she was not supposed to be eating on the line, and he told her that the chef [Pologruto] wanted him to talk to the employees. Lott was told to come by the office when she got off at 2 p .m. Lott testi- 273 fled about the 2 p.m. conversation between her and Cris- well: Well, he said he had to talk to us about the union and that he knowed that we had to vote but when we got down there to vote he wished we would vote "no," because the union-we couldn't get no more money because we were getting more money than the average hotel was getting now and that he knowed there was a lot of things going on around there and he couldn't do nothing about it but he would talk to the Chef about it and that once we get the union and we get caught eating on the line we was automatically fired. Discussion I credit Lott's testimony about her conversation with Criswell. Criswell, who is discredited below regarding his version of the incidents that led to Ruthie Myles' dis- charge, did not testify about this conversation with Lott. Findings By threatening employees with discharge for offenses which normally involved no disciplinary action in the event the Union is selected, Respondent violated Section 8(a)(1). Earlier in the day, Criswell caught Lott eating on the line. No disciplinary action was taken but Cris- well made it clear that Respondent's tolerance would end if the employees selected the Union . Criswell also held out a carrot to Lott by stating that he would talk to Chef Pologruto about improving conditions . In the con- text of his conversation, that comment constitutes an im- plied promise of improved working conditions in further violation of Section 8(a)(1). 2. Essie Butler Current employee Essie Butler was called into the office by Reuben Criswell 3 or 4 days before the Sep- tember 9 election . Criswell complimented Butler's work and told her he was nominating her for employee of the month. Criswell told Butler thank you, and then he said, "Oh, there's something else. They tell me to tell you all to vote no for the union." Discussion Criswell did not testify regarding this conversation. I credit Essie Butler . As a current employee, Butler's in- terest would certainly not favor fabricating stories about her supervisor. Butler demonstrated good demeanor and appeared to respond candidly to questions on cross and direct. I also note that several items covered in her testi- mony were undenied. Findings In an atmosphere free from coercion, Reuben Cris- well's comment, apparently in afterthought, would appear innocuous. However, that was not the situation here. Respondent, as shown herein, engaged in numerous instances of violative conduct . Criswell clearly and clea- 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD verly linked the crucial subjects of a pay raise4 and su- pervisory favor with the union campaign. Obviously such conduct is most likely to have a restraining impact on an employee's future involvement in union activity and is violative of Section 8(a)(1). F. Assistant Director of Housing Dannye Chapman Terri Seymour and Levy Harrison each testified about an incident involving Chapman on election day, Septem- ber 9, 1981. As Chapman walked with Seymour and Harrison toward the polling place, Seymour asked Chap- man if he wanted them to vote for the Union. Chapman replied yes, that it would make it easier to kick them out the door. Discussion I was not impressed with the demeanor of Dannye Chapman or Terri Seymour. Standing alone, I would dis- credit both. However, Seymour's testimony was fully corroborated by Levy Harrison who impressed me as a sincere thoughtful witness. Harrison's demeanor was good. Therefore, I credit her version of the incident. Findings Chapman's comments coming immediately before the election are so outrageous as to be almost comical. How- ever, there is no credible evidence that the comment was made in jest. Obviously, such a threat is violative of Sec- tion 8(a)(1). G. Executive Housekeeper Bruce Nelker 1. Nelker's antiunion speech Former employees Terri Seymour and Linda Shirley and current employee Mary Wesley testified about an an- tiunion speech by Executive Housekeeper Nelker. Sey- mour recalled that Nelker told the employees to vote "no," that they did not need a third person. Nelker sug- gested the employees could go directly to him when they wanted time off rather than having to go through a third person. Nelker asked the employees to give Gener- al Manager Cody Plott a chance. Linda Shirley recalled that after the speech Nelker asked the employees how they felt about the Union. Nelker then required each respective employee to re- spond to that question. Shirley told Nelker that she felt they needed a union. She recalled Nelker telling them to have the Union put its promises on paper and that they should give General Manager Plott a chance. Mary Wesley also recalled that Nelker asked the em- ployees in the meeting she attended, "How did we feel about the Union?" Wesley testified that she replied that they probably needed one. Bruce Nelker admitted speaking to the employees during the period from July 27 through 31, 1981. Nelker denied asking the employees how they felt about the Union. The text of Nelker's speech is in evidence. * Butler testified that the employee of the month award had, before September, included a 10-cent-an-hour raise in pay. Discussion In consideration of credibility, I notice that the text of Nelker's speech, which was admitted through Nelker's testimony, is remarkably similar to the recollections of Seymour, Shirley, and Wesley. At two points on the last page the text refers to dealing directly with General Manager Cody Plott. The text also asks, does the Union "put any of their promises in writing?" Additionally, although Nelker denied asking the em- ployees how they felt about the Union, the text contains the question, "What do you think this union can do for you?" Nelker was not asked about that portion of the text. Therefore, the record does not reflect whether that particular question was posed rhetorically or not. Re- gardless, it is apparent that the text strongly supports tes- timony of Seymour, Shirley, and Wesley. I credit their testimony. Findings As indicated above, I find nothing coercive in the su- pervisor's request that employees give the new general manager the opportunity to prove himself. Therefore, I reject the General Counsel's contention that Nelker vio- lated Section 8(a)(1) by asking the employees to give Cody Plott a chance. However, the polling of the several employees in the meeting, requiring each to state how he or she felt about a union, is another matter. It is a little difficult to imag- ine a more coercive interrogation than the requirement that an employee in a group, during an antiunion speech by a high level supervisor, be required to state his feel- ings about the union. Additionally, the threat that em- ployees could no longer deal directly with supervision after the selection of the Union was a continuing threat made throughout Respondent's antiunion campaign (Con- agra, Inc., supra). 2. Terri Seymour Terri Seymour testified that 2 or 3 weeks before the election, Bruce Nelker came to a room she was cleaning and discussed the Union. After a leading question from the General Counsel, Seymour recalled that Nelker asked her how she felt about the Union. Discussion As indicated above, I find that on the occasion of his speech Nelker asked employees how they felt about the Union. That evidence tends to support Seymour's testi- mony in this regard. However, Seymour's overall testi- mony was punctuated by repeated instances of poor recollection regarding matters that she had included in her pretrial testimony. Therefore, I am unable to credit the disputed testimony of Seymour which, as here, is un- supported by other evidence. 3. Levy Harrison Levy Harrison also recalled a conversation with Nelker in one of the rooms she was cleaning. Harrison was approached by Nelker about a month before the election. After opening the conversation, Nelker asked HYATT REGENCY MEMPHIS Harrison how she felt about the Union. Harrison replied that it did not matter to her. Nelker then mentioned that Respondent's Atlanta hotel had a union and some of the Atlanta housekeepers regretted "they got the Union be- cause they lost some of their benefits." Nelker also men- tioned a warehouse that did not have a contract even though they had a union for over a year. Discussion Although Nelker denied asking Harrison how she felt about the Union, other evidence which I have credited shows Nelker's tendency to address that question to em- ployees (see above). I find Harrison to be a candid wit- ness. Therefore, I credit her version of the conversation which is largely undenied. Findings In line with my findings above, I find that Nelker ille- gally interrogated Levy Harrison about her union feel- ings. Also Nelker implied to Harrison that she, like the Atlanta employees, may lose some of her benefits if the Union was selected . That constitutes a threat in violation of Section 8(a)(1). International Paper Co., 228 NLRB 1137 (1977). H. Assistant Controller Terri Harmon Current employee Carrie Tucker testified to a July 1981 conversation including several other employees and Assistant Controller Harmon. Tucker recalled that Harmon told the employees to make sure the Union gave their policies in writing ; that the Hotel could not make promises; and that employees should give Plott a chance. Discussion Although Terri Harmon was called she was not asked about Tucker's testimony. Therefore I credit Tucker. Findings I find nothing in Tucker's testimony which appears to have the tendency to coerce or restrain employees in the exercise of their Section 7 rights. Therefore, I recom- mend that the allegations regarding Terri Harmon be dis- missed 1. Requirement that Employees not Wear Union Buttons In addition to discussion under Robert Poole, supra, former employees Linda Shirley and Carrie Tucker testi- fied without rebuttal, to instances where they were re- quired to remove union buttons by Executive House- keeper Bruce Nelker. Scott Monson testified that he was told to remove his union buttons by Robert Poole (see above). That testimony was denied by Poole. In view of the undenied testimony of Shirley and Tucker, and my previous credibility determinations, I shall credit the evi- dence that employees were required to remove union buttons from their person during the union organizing campaign . The credited evidence also reflected that, before the union campaign, employees were permitted to wear various pins on their uniforms. 275 Findings Absent unusual circumstances it is unlawful to require employees to remove a union button from their clothing. Here no unusual circumstances were shown. Therefore, in agreement with the General Counsel, I find that Re- spondent violated Section 8(a)(1) by prohibiting employ- ees from wearing union buttons during the union orga- nizing campaign . Dependable Lists, 239 NLRB 1304 (1979); United Parcel Service, 234 NLRB 223 (1978). II. THE ALLEGED DISCHARGE VIOLATIONS A. The Complaint Allegation: Respondent Suspended and Terminated Named Employees as a Result of its Imposition of More Onerous and Rigorous Terms and Conditions of Employment At material times Respondent used sign-in and sign-out sheets, as opposed to timecards, as its base documents for computing pay for its hourly employees. The evidence demonstrated that the employees are charged with the responsibility of signing in and out at appropriate times, on daily timesheets (often called sign-in sheets), provided in each department. The theory behind General Counsel' s broad approach is that, upon losing the September 9, 1981 election to the Union, Respondent increased its vigilance over the time records to the point where employees were suspended then discharged for sign-in and sign-out offenses which would not have resulted in similar disciplinary action before the election. The General Counsel's theory does find support in the record. As shown above, the 8(a)(1) violations which I have found include threats by Executive Chef Pologruto and Supervisor Reuben Criswell to engage in activity which would result in more stringent work rules enforce- ment following the election. In view of the above-mentioned 8(a)(1) activity, and Respondent's union animus as demonstrated by its an- tiunion comments in talks and speeches (see sec. 1, above), it is apparent, and I find, that the General Coun- sel has amply established proof of union animus. Howev- er, in order to prevail in his argument that 12 named em- ployees were illegally discharged as a result of Respond- ent's more stringent enforcement of work rules, the Gen- eral Counsel must also prove that the rules were more stringently enforced following the election and that the 12 discharged employees would not have been dis- charged but for that more stringent enforcement policy. Without, at this point, considering the first of the two above elements, I find that the General Counsel's overall discharge theory must fail because the record does not show that all the named employees would not have been discharged under the enforcement policy in effect prior to the election (i.e., regardless of whether the sign in/out rules were more stringently enforced after the election, the General Counsel did not prove that all 12 alleged discriminatees would not have been discharged under the policy that prevailed before the election). Respondent offered evidence showing that from the time the hotel opened in 1975 until the September 9, 1981 election, it discharged 18 employees for falsification 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of timesheets. The General Counsel correctly asserts that questions were raised by the record as to whether all 18 of those employees were discharged as a result of their first violation of the rule against falsification of time- sheets. The records of 5 of the 18 reflect prior occur- rences by them, in violation of the rule against timesheet falsification, and the records of at least 2 more reflect that those employees ended their employment because of factors other than timesheet falsifications . Moreover, as shown in more detail below, the record clearly demon- strated that often times employees were not disciplined at all for falsifying their timesheets . Additionally, the General Counsel proved that some engineering employ- ees under the supervision of Robert Poole and David Morgans were instructed to falsify their sign-in times in order to eliminate difficulties in computing hours. Nevertheless, despite the above evidence which tends to weaken Respondent's position, the fact remains that employees were occasionally discharged for falsifying timesheets before the September 9, 1981 election. The General Counsel correctly points out that the evidence reveals that the rate of occurrence of such incidents in- creased alarmingly after the election. Nevertheless, it is possible that the increased rate of such discharges may be attributable to factors such as increased instances of violations as opposed to more stringent enforcement of rules. As to this question, the General Counsel has the burden of proof, and I must give Respondent the benefit of favorable presumptions where, as here, the General Counsel has based his argument on probabilities. Certain- ly, the statistics cited by the General Counsel (i.e., some 11 clear cases of discharge in over 5 years before Sep- tember 9, 1981, and within a few months thereafter, 13 others for the same alleged offense), create grave suspi- cions, but without more, I shall favor Respondent. Therefore, unless the evidence demonstrates that spe- cific instances of discharge were handled differently than was the customary practice before the September 9, 1981 election, I shall find no violation. As to the allegations regarding Linda Shirley, Terri Seymour, Timothy Brooks, Bryant Gibbs, Phillip Valentine, Nate Gorman, James Gorman, Mozelle Payne, Andrew Ryan, and Stan Harris, I find that the General Counsel failed to prove disparity. The evidence did not show that those particu- lar discharges were handled any differently than dis- charges for falsification of timesheets were handled before the election. As the record stands, it is unrebutted that at least 11 employees were discharged before September 9, 1981, for their first offense of falsifying timesheets . Therefore, in order for the General Counsel to prevail , it is essential to show that some special circumstances existed .6 In the 8 Although Respondent denied the allegation that Morgan, who was classified as "assistant chief engineer," was a supervisor, the cumulative evidence, including testimony by admitted supervisors such as Lynn Tag- gart and Robert Poole, prove that Respondent treated Morgan as a su- pervisor and that Morgan's authority and responsibility include the indi- cia necessary to qualify him as a supervisor . Moreover, regardless of Morgan's supervisory status, the evidence proves that Robert Poole, an acknowledged supervisor, knew and permitted employees under his su- pervision to falsify records on instructions from Morgan. 6 The General Counsel argues that the burden of proof rests with Re- spondent who must show the 10 employees would have been discharged 10 discharges mentioned above, no special circumstances were shown. Of the 10, only Linda Shirley, Terri Sey- mour, and Nate Gorman testified. The evidence proved without rebuttal that 9 of the 10, including Seymour and Shirley, either confessed to management or did not deny when confronted that they had, in fact, falsified their timesheets. As to Nate Gorman, I credit evidence that he admitted falsifying his timesheet and was discharged.' Under those circumstances, I am unable to find that the evidence supports a determination of discrimination. I recommend that those allegations be dismissed. As to the remaining two alleged discriminatees, Levy Harrison and Ruthie Myles, it is necessary to separately consider each of their situations. Preliminary to consideration of the specifics of Myles and Harrison's discharges, it is important to first examine the question of work rules enforcement . Specifically, it is necessary to examine whether Respondent consistently disciplined employees when a supervisor discovered evi- dence of infractions of sign-in and out rules. The General Counsel concedes that Respondent's rules, both before and after the election, included rules regarding the timesheets . Respondent's handbook states, inter alia, at page 25: Needless to say, you may not alter or falsify any control card or timesheet, nor pull another employ- ee's control card, or knowingly allow another em- ployee to pull your card or fill in your time on the sign-in sheet. Violations of this rule will be cause for immediate disciplinary action. The General Counsel argues, however, that the above rule was not consistently enforced but that immediately upon the Union's election victory, Respondent instituted more stringent enforcement. 1. Levy Harrison The testimony of several witnesses, including Ruthie Myles,8 Mary Lott, Terri Seymour, Levy Harrison, Betty Lewis, Linda Shirley, Mary Lee Wesley, Essie Butler, and Katie Beasley, indicated that it was not un- usual for employees in the housekeeping and kitchen de- partments to sign out for one another . The evidence indi- cated that practice, which often occurred in the presence regardless of a changed rule enforcement practice That argument mis- reads Wright Line, 251 NLRB 1083 (1980) Wright Line requires that the General Counsel must establish a prima facie case Here, no prima facie case has been established absent a showing that the 10 alleged discrimina- tees would not have been discharged under the enforcement policy in effect before the election 7 Nate Gorman's testimony on direct did not include the specifics of his discharge. When questioned on cross, his testimony revealed conflicts and confusion regarding the events that led to his discharge . I was not impressed with Gorman's demeanor, and I shall not credit his testimony I do credit the testimony of Lynn Taggart regarding Gorman 's discharge interview That testimony revealed comments by Nate Gorman indicat- ing that he acknowledged an allegation that he and his brother had signed in 1 hour too early 8 Myles testified that employees frequently signed in and out for other employees, and she admitted that on occasion , including two instances on May 19, 1981, she signed in or out for others HYATT REGENCY MEMPHIS of supervisors,9 was allowed until shortly after the Sep- tember 9, 1981 election. I am convinced that testimony was truthful. Although the handbook contains a rule against signing out for others, and numerous employees testified that they were aware of the rule, the volumi- nous documents in evidence demonstrate that it was not Respondent's practice to award disciplinary action against an employee for signing out for another, nor was there any indication of disciplinary action taken against any employee for permitting another employee to sign out on his or her behalf, until following the September 9, 1981 election . On the basis of that testimony, I find that employees were customarily permitted to sign out for one another until shortly after the September 9, 1981 election when Levy Harrison was discharged. As shown under the Section on 8(a)( 1) allegations, Harrison recalled having two union -related conversations with her supervisors before the election. During the second of those conversations, as the employees were preparing to vote on September 9, Terri Seymour asked Assistant Director of Housing Dannye Chapman if they should vote for the Union. According to Harrison and Seymour, Chapman replied that they should vote for the Union and it would make it easier for Respondent to kick them out. Also as shown elsewhere in this decision , employees were threatened with more stringent work rules enforce- ment if the Union was elected. Ruthie Myles was threat- ened by Anthony Pologruto. Pologruto told Myles there would be a lot of changes if the Union won and that em- ployees had been allowed to get away with a lot. Execu- tive Sous Chef Reuben Criswell told employee Mary Lott that should she be caught eating on the line after the election, she would be automatically terminated. Against that background Levy Harrison was dis- charged shortly after the election. There appears to be basic agreement on the facts sur- rounding Harrison's and Terri Seymour's discharges. On September 25, 1981 , Harrison and Terri Seymour left work after finishing, and with supervisory permission, at approximately 3:45 p.m. In the dressing room Seymour finished dressing ahead of Harrison. When Harrison left the dressing room and headed to the desk to sign out, Seymour told her that she (Seymour) had already signed Harrison out. Harrison had previously signed her name near the sign-out column when she signed in on the morning of September 25, as was her practice. Without checking the sign out sheet , Harrison left with Seymour. Subsequently Harrison was told not to return to work the following day. On Monday following September 25, Harrison met with Lynn Taggart. Harrison's testimony appears in line with other testimony and I shall credit her version. Lynn Taggart asked Harrison if she knew that Terri Seymour had signed her out at 4:30 p.m. on September 25. Harri- son responded, "no, I didn't." Taggart asked if Harrison did not know that Seymour was not supposed to have signed Harrison out and Harrison replied , "no." Taggart B No rebuttal was offered to testimony that several supervisors ob- served employees signing out for other employees on numerous occasions before the September 9, 1981 election 277 told Harrison that General Manager Plott had told her to fire Harrison as well as Seymour "because [Harrison] wasn't in a big hurry that [she] couldn't sign [herself] out." Findings The facts demonstrate without contest that Levy Har- rison did not participate in a fabrication of sign-out records on September 25. Although Terri Seymour ad- mitted falsely signing out for herself and for Harrison, the evidence proves that Harrison knew only that Sey- mour had signed her out. Respondent did not contest the above facts with con- trary evidence, nor did Respondent dispute that they were fully aware of Harrison's limited role in the sign- out process at any time they terminated her. According to Lynn Taggart, she was told, first by Terri Seymour during Seymour's terminal interview, then by Levy Harrison, that Seymour had signed Harri- son out on September 25. Respondent agreed that the evidence demonstrated that Seymour had signed Harri- son out. Respondent did not contend that Harrison knew that Seymour had falsified the checkout times. Neverthe- less, Respondent discharged Harrison as well as Sey- mour. The General Counsel contends that Harrison's dis- charge flowed from more stringent enforcement of work rules following the election . As to Levy Harrison, I agree with the General Counsel. The record as mentioned above, shows that Respond- ent, through supervisors Pologruto and Criswell, held out to employees that rules would be more stringently enforced if the Union was elected. Immediately follow- ing the Union's election, Respondent used its work rules to concoct a case for the discharge of union supporter Ruthie Myles (infra). Subsequently, following September 25, Respondent discharged Levy Harrison, Linda Shirley, and Terri Sey- mour. I recommend that the allegations regarding Shir- ley and Seymour be dismissed solely because the record failed to demonstrate that either would not have been discharged under the rule enforcement practice in effect prior to the election. Levy Harrison presents a different situation. Harrison was discharged allegedly for violating the rule against permitting another employee to sign out on her behalf. However, the unrebutted evidence which I have cred- ited, proved that before the September 9 union election victory, numerous employees signed out for others in the presence of supervisors. Nevertheless, before the elec- tion, no employee was discharged or otherwise disci- plined for permitting another employee to sign him or her out. Therefore, I find in agreement with the General Coun- sel that in the case of Levy Harrison, Respondent more stringently enforced the rule against signing out for others. The incident followed Respondent's threats to more stringently enforce rules if the Union was elected, and it followed the actual election of the Union by a little over 2 weeks. Harrison's discriminatory discharge 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD violates Section 8(a)(1), (3), and (5).10 Electric-Flex Co., 228 NLRB 847 (1977); Master Slack, 230 NLRB 1054 (1977). 2. Ruthie Myles I have distinguished Ruthie Myles for more detailed consideration for several reasons . Unlike the situation noted in the cases of the 10 alleged discriminatees men- tioned above, the evidence is clear that Ruthie Myles never admitted that she falsified her timesheet . In fact, Myles contested Respondent 's assertion that she signed an incorrect time. R. Myles worked for Respondent from November 16, 1977, until she was discharged in 1981 . For the 5 months before her last day of work, September 11, 1981, Ruthie Myles was the secretary to Executive Chef Anthony Po- logruto. Pologruto, as executive chef, was the depart- ment head in food preparation . Included in Myles' job duties was the compilation of hours on a daily basis, 5 days a week, for employees in the kitchen department. On the 2 days Myles was off each week, Chef Pologruto compiled each employee's hours of work. The compila- tions were prepared from the daily timesheets. Ruthie Myles was a visible union supporter during the summer 1981 union campaign . She signed a union card, passed out union literature, appeared pursuant to a union subpoena at the representation case hearing, wore a union pin, used a bumper sticker, and served as union ob- server during the September 9, 1981 election. Chef Polo- gruto admitted that he was aware that Ruthie Myles was one of the most active union supporters in the hotel."' At the election, Myles was an observer and assisted in tallying votes . R. Myles became most obvious in her sup- port for the Union following the election on September 9 when she ran through the kitchen yelling, "We won, we won." Myles' last day of work was 2 days after the election. Several factors weigh heavily in the General Counsel's favor at the outset when Myles' case is considered. Re- spondent's union animus was clearly established, as dem- onstrated under the 8(a)(1) discussion above . The timing of Myles' discharge raises grave suspicion in view of her strong prounion demonstration at the conclusion of the election. Moreover, the record clearly demonstrates that Ruthie Myles was a good employee. Five months before her discharge, she was promoted to the position of per- sonal secretary to the department head. Neither Chef Po- logruto nor her personnel file recalled any instances of disciplinary action against R. Myles. Moreover, the record reflects that before September 11, no employee had been discharged for allegedly falsi- fying records since February 1981. According to Respondent's version of the facts, Ruthie Myles was discharged in accord with established policy 10 The 8(a)(5) violation rests on record evidence which proved that Respondent unilaterally enforced work rules more stringently resulting in Harrison's discharge. 11 General Manager Plott conducted an investigation into Myles' dis- charge because, or as he characterized it- [H]aving been through numerous union campaigns, that in the event of someone who was the union observer, I know that it would be a sensitive issue and it would be subject to questions later because she falsified time records on September 11. There is no dispute from the General Counsel that Myles' discharge was precipitated by her department head and supervisor, Chef Anthony Pologruto. Accord- ing to Pologruto, his practice was to discharge employ- ees only when he personally observed facts which proved an employee had falsified time records. On September 11, Respondent alleges, Ruthie Myles was scheduled to begin work at 8 a .m. However, Myles did not arrive until 8:20 a .m. or later. Nevertheless, Myles signed in at 8 a.m. On the basis of those facts which were allegedly observed by Pologruto , Myles was discharged for falsifying time records. In consideration of General Counsel's case and Re- spondent's defense, I have examined the record regard- ing the following material queries: a. What was Pologruto s normal practice regarding timesheet falsifications? Respondent contends that Ruthie Myles was not treat- ed with disparity. However, the record showed that Chef Anthony Pologruto routinely ignored timesheet fal- sifications from the standpoint of disciplinary actions. It became abundantly clear from Pologruto 's testimony that he observed falsifications of timesheets whenever he compiled the time records for the food preparation em- ployees. Before Myles' discharge, Pologruto compiled those time records for the kitchen employees twice weekly on the days Myles did not work . The testimony demonstrated that although Chef Pologruto usually ob- served that one or more employees had signed in or out at the wrong time when he examined the timesheets, his practice was not to discipline the employee but to simply change the time recorded on the timesheet to the time Pologruto considered correct. Initially, Pologruto testified that he made changes in timesheets whenever employees wrote in the wrong time and later the employee came to Pologruto to advise him of the mistake. Pologruto estimated that would happen, "a couple times a week." The General Counsel asked what he would do if he knew of his own knowledge that an employee had not put down the correct time , and Po- logruto testified that if he knew the employee "did it de- liberately, then I would terminate him." The General Counsel again asked Pologruto if he had ever changed an employee's time aside from the time when the em- ployee came and told Pologruto he had made a mistake, and Pologruto replied, "Not to my knowledge." Subsequent examination of Pologruto with the General Counsel showing him timesheets compiled by him during the spring and summer of 1981 , conclusively proved that the above testimony was not truthful . Pologruto was shown kitchen timesheets for some of the days during the period beginning on April 8, 1981 , and extending through August 15, 1981.12 During the course of that testimony, Pologruto admitted that he personally made many changes reflected on the timesheets shown him. Those changes admittedly made by him included many changes on lunch breaks where an employee had indicat- 1 z See G C Exhs 20-66 HYATT REGENCY MEMPHIS ed no break was taken-Pologruto changed the time- sheets to reflect that a lunch break was taken; 13 many changes to show that employees should be shown arriv- ing for work later than the employee had shown on his timesheet;14 and changes showing that employees left earlier than the time the employee signed out. Pologru- to's testimony indicated that he did not recall disciplining any of the employees because of their obvious violations of the timesheet policy. Finally, Pologruto admitted making changes even though employees did not bring errors to Pologruto's attention. Rather than occasionally, as he earlier testified, the timesheets and Pologruto's later testimony revealed that Pologruto regularly made changes whenever he compiled time records. When confronted with the numerous changes he had made, Pologruto asserted that his policy was to termi- nate employees only when he personally witnessed that the employee actually arrived or left, at times other than the time the employee signed in or out. Due to the inconsistencies in his testimony , the obvi- ous conflicts between portions of his testimony and doc- uments received in evidence , and my observation of Po- logruto's demeanor, I do not credit his testimony to the extent it conflicts with credited evidence. However, Po- logruto's admissions as to the nature and frequency of timesheet falsifications known by him, whether witnessed firsthand or observed by examination of the timesheets, conclusively demonstrates that (1) before the discharge of Ruthie Myles, Respondent knew that employees were falsifying timesheets regularly; and (2) in view of their knowledge, Respondent could have routinely disciplined employees for timesheet infractions. Nevertheless, records reflect that not a single employee was discharged from February until September 1981 for falsifying time- sheets. Moreover, Pologruto could not recall otherwise disciplining employees for any of the occurrences shown him on the April-August timesheets. b. Did Pologruto personally observe Myles' late arrival? As mentioned above, Pologruto attempted to distin- guish his regular inaction against timesheet falsifications by testifying that he only discharged employees for falsi- fying records when he personally observed the infrac- tion. Pologruto asserted that was exactly the case in the Ruthie Myles' situation on September 11, 1981. Pologru- to's testimony about September 11, appears in part: I was at the back loading dock, talking to my pur- chasing agent and it was about 8:00. To be precise, it was about three-it was three minutes of 8:00 and I was there until five minutes of 8:00 and I didn't see Ruthie in the kitchen. I had looked for her, I didn't see her there . The first time I had seen 1' Pologruto later testified that a no lunch break indication, if not caught by him, would result in the employee being paid for that time even though it was not authorized by a supervisor. 14 Often, the changes involved several minutes, but some involved an hour or more, and one change on the timesheet for June 17 , 1981, in- volved Pologruto making a 2-hour change This type of incident is simi- lar to the infraction allegedly committed by Ruthie Myles on September 11, 1981, when Myles allegedly cheated Respondent out of 20 minutes. 279 Ruthie was about 20 after and she was walking through the hallway to the locker room , or towards the kitchen . And I had gotten Thelma and Reuben. Thelma had come in just before Ruthie and I said, "Ruthie's late." As indicated above, I do not find Pologruto to be a candid witness. Moreover, the record casts serious re- flections on his claim that he personally observed the sit- uation that led to the discharge of Ruthie Myles. In the first place, Ruthie Myles specifically denied Po- logruto's assertion regarding the morning of September 11. Myles testified that she arrived at 8 a.m., and that she signed in the time of arrival. According to Myles, when she confronted Pologruto at her terminal interview, he admitted that he was not at the hotel on September I1 when she allegedly arrived late , and that he was acting on information supplied by Supervisors Criswell and Hubbard. Additionally, the following questions arise in consideration of whether Pologruto witnessed Myles' al- leged rule infractions. c. Was Myles scheduled to arrive at 8 a.m.? According to Respondent, the scenario which resulted in Myles' discharge flowed from her late arrival on Sep- tember 11. However, according to Myles, that corner- stone of Respondent's case is faulty. Myles testified that she did not have a fixed schedule. If Myles is correct, then one must question the basis for Pologruto 's entire line of action. Myles testified that her work hour arrangement with Pologruto was very loose . Pologruto told her that she needed to arrive in time to prepare the preceding day's time compilations of the kitchen employees and turn in the timesheet and compilations before 10:30 a.m. each day. Ms. Myles' testimony in that regard is fully support- ed despite Chef Pologruto's contrary testimony . Accord- ing to Pologruto, he advised Myles that he would be willing to adjust her hours and allot her a different re- porting time if necessary . However, according to Polo- gruto, Myles' hours were not adjusted, and he expected her at 8 a.m. each workday. In consideration of these opposing versions of Myles' work times, I have first examined her timesheets which have been received into evidence. The timesheets show that while working as a secretary to Chef Pologruto, Myles reported to work at various times ranging from over 2 hours before 8 to after 9:30 a.m. If Chef Pologru- to's version is accepted, those sign-in times after 8 a.m., by Ms. Myles, provided documented basis for discipline. However Pologruto admitted that he had no recollection that Myles ever received a late absence report. Additionally, on one occasion employees Essie Butler and Katie Beasley were awarded disciplinary action re- ports ("communications") for arriving late for work. Butler and Beasley were awarded the discipline by Polo- gruto in his office in the presence of Ms. Myles, Pologru- to's secretary. Myles, Beasley, and Butler all testified that on that occasion they were late because they rode to work together. Their testimony was in agreement that Pologruto instructed Beasley and Butler that they could 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not ride to work with Ruthie Myles because Ruthie did not have a set time to report to work. The evidence is undisputed that Myles was not disciplined even though she arrived with Butler and Beasley. Third, as shown under the section dealing with 8(a)(1) allegations, the credited testimony (Tr. 155) reveals that when threatening Myles with changes if the Union came in, Pologruto illustrated that employees had been getting away with a lot by mentioning that Myles was permitted to come to work whenever she was ready. Finally, Chef Pologruto admitted that other employees also understood Myles' work arrangement to be as she testified. Pologruto testified that employees complained that Ruthie Myles was "coming in as she pleased and they felt as if I was very unfair ..." 15 On the basis of the above evidence, I am persuaded that Anthony Pologruto informed and permitted Ruthie Myles to arrive at work at her convenience , provided she complete and submit kitchen employees' time for each preceding day before 10:30 a.m. on each workday. With that fact in mind, it is obvious that Anthony Polo- gruto had no reason to consider disciplining Ruthie Myles for arriving late if she did , in fact, arrive at work around 8:20 a .m. on September 11, 1981. In view of Pologruto's arrangement that Myles could arrive at her convenience, along with the entire record and from my observation of Pologruto's demeanor, I am convinced that his testimony that he elected to issue a warning to Ruthie Myles for arriving at 8:20 a.m. on September 11, 1981, was a fabrication. d. The veracity of Respondent's account of the September 11 events The testimony of Respondent's witnesses about the ac- tivities on September 11, 1981, raises additional questions as to the veracity of Respondent's contention that Ruthie Myles falsified her sign-in time. Three supervisors-Anthony Pologruto, Reuben Cris- well, and Thelma Hubbard-testified, allegedly from per- sonal knowledge, that Ruthie Myles arrived at or after 8:20 a.m. on September 11, 1981. However, contained in those versions are numerous serious conflicts . Those con- flicts include the following: Reuben Criswell testified that he was at work early on September 11, 1981, as was his practice in the absence of Executive Chef Pologruto, in order to serve as opening chef (see Tr. 1749). Criswell illustrated the point of his being required to handle the duties that Pologruto would normally handle if Pologruto was at work, by emphasiz- ing that in Pologruto's absence, Ruthie Myles was Cris- well's secretary. Criswell needed her to answer the phone on September 11, and, for that reason, Criswell spent several minutes looking for Ruthie Myles.16 Pologruto on the other hand, in testifying that he per- sonally observed the incident on September 11, which led to Ruthie Myles' discharge, testified in conflict with Criswell's testimony to the effect that he was actually on the job early on the morning of September 11, 1981. Po- 15 See Tr. 849. 18 According to Respondent 's position, Criswell expected Myles at 8 a.m. logruto testified that he arrived somewhere in the vicini- ty of 7 a.m. He also testified that after leaving the pur- chasing agent's office, he was in the kitchen at 8:05 a.m., where he picked up a cup of coffee and returned to his office where he stayed until around 8:20 (see testimony at Tr. 871).17 Criswell, who testified that he did not see Pologruto until around 9 a.m. on September 11, 1981, testified that he (Criswell) was in the kitchen area from 6:30 to 9 a.m. on that particular morning. Despite the fact that he did not see Pologruto until 9 a.m., Criswell testified that he cleaned out the office (which was a common office of Pologruto, Myles, and Criswell) and had one of the stewards' 8 mop the office and that the mopping was fin- ished at 8:10 or 8:15 a.m. At that point , Criswell put a fan in the office doorway. Criswell's above testimony appears critical since it was his belief that Ruthie Myles could not have entered the office before 8:20 a.m. because first Criswell was there, then the fan was in the door. However, from the above, it is obvious that not only does Criswell 's version of the facts conflict with Ruthie Myles' testimony, it also clash- es head on with that of Anthony Pologruto. Obviously, if both Criswell and Pologruto's versions are dove-tailed, it appears that they were both in the same office, at the same time, while Criswell was cleaning and having the office floor mopped . Despite that fact, Criswell did not see Pologruto, and Pologruto's testimony revealed that he did not notice the office being cleaned and mopped. Pologruto testified that when he left the office around 8:20 a.m., he saw Ruthie Myles come in, and he also saw Thelma Hubbard . According to Pologruto, he remarked to Thelma Hubbard at that time, around 8 :20 a.m., "Ruthie is late again." Hubbard's testimony was that she entered the hotel at the same time as Ruthie Myles on September 11, 1981. Hubbard recalled it was at least 8 :20 a.m. when she and Myles entered the hotel. However, contrary to Pologru- to's testimony, Hubbard testified that no one mentioned to her that Ruthie Myles was late that morning until later in the day when Reuben Criswell asked her if Myles was at work at 9 a.m. Hubbard's testimony also conflicts with that of Reuben Criswell. Although Hubbard testified that later on Sep- tember 11 Criswell asked her if Ruthie Myles was at work at 9 a.m., Criswell testified that he first saw Ruthie Myles on the job at 8:25 or 8:30 a.m. Hubbard testified that Criswell told her Myles was late for work when he asked if Myles was in at 9 a.m. Criswell's testimony re- futes that version on showing that he knew Myles was in 30 to 35 minutes before 9 a.m. Additionally, Hubbard's testimony that she arrived at work after 8:20 a.m. on September 11, was further weakened by her own admis- sion that she originally signed in at 8 a.m., but immedi- ately changed the time to 8:30 a .m.19 Hubbard recalled 17 Obviously, if Pologruto was in his office shortly after 8 a.m. Cris- well's concern with having someone answer the phone in their common office was unfounded. 18 Criswell testified that he cannot recall which steward 1e Hubbard admitted signing in at 8 am upon being confronted with her sign-in sheet for that date. HYATT REGENCY MEMPHIS waiting several minutes for her uniform and encounter- ing a crowd in the dressing room following her arrival at 8:20. The congestion, according to Hubbard, included numerous housekeepers . Other evidence proved that those conditions were such that occurred around 8 a.m. The housekeepers' hours, during early September 1981,20 ran from 8 a.m. to 4:30 p.m. and each housekeep- er was expected to be dressed in time for an 8 a.m. meet- ing. Hubbard's testimony revealed that she was in the hotel at 8 a.m. It is apparent from the above and the record as a whole that Respondent's version of the basis for Ruthie Myles' discharge was pretextual . Obviously, the Septem- ber 11 events could not have occurred as testified by Po- logruto, Criswell, and Hubbard. Moreover, Respondent's efforts to build a case against Ruthie Myles was further illustrated when Respondent's attorney, William Carmi- chael, asserted that an incident earlier in Myles' employ when she was ill and fell asleep in the ladies' room con- tributed to her discharge. Evidently, Carmichael forgot that Chef Pologruto had earlier attributed Myles' dis- charge solely to her alleged September 11, 1981 time- sheet falsification. 21 R. Myles' testimony that she arrived and signed in at 8 a.m. on September 11, 1981, is supported by the testimo- ny of employees Essie Butler22 and Katie Beasley, both current employees who testified they saw Myles at work shortly after 8 a.m. on September 11. I was impressed with Ruthie Myles' demeanor. She testified on two occa- sions at the trial. Her testimony was long, but she re- sponded openly to questions on cross as well as direct. On the basis of her testimony, the supporting testimony of other witnesses, and the entire record, I am convinced and find that Ruthie Myles did not falsify her sign-in time on September 11, 1981.23 Unfortunately, from Respondent's standpoint, I have outlined only a portion of the confused testimony from the witnesses it presented in defense of the Ruthie Myles discharge allegation. In his brief, counsel for the General Counsel correctly pointed to numerous other instances of internal confusion and conflicts within the testimony of Pologruto, Criswell, Hubbard, and Lynn Taggart. Although each of Respondent's witnesses appeared to present a somewhat similar outline of the September 11, 1981 events, their specific factual testimony resulted in almost universal confusion and conflict. To label Re- spondent's defense a sham must be considered an under- statement. Respondent's confused defense conclusively established that Respondent concocted an incident for the purpose of discharging Ruthie Myles. This case presents a classic instance of pretext dis- charge. Myles was discharged allegedly for offenses committed within 2 days after she demonstrated her strong union support by running through her work area 2a Housekeeping hours were changed to 8 30 a.m to 5 p .m beginning around September 14, 1981 (see infra) 21 See Tr. 881 for example of Pologruto 's testimony about the dis- charge. 22 Essie Butler testified that she is Ruthie Myles' sister 23 On the basis of their demeanor and the many conflicts in their ver- sions of the September II events , I discredit the testimony of Reuben Criswell and Thelma Hubbard 281 following the Union's election, yelling we won. A few days before the election, her supervisor threatened her that she would no longer be permitted to report to work at her convenience if the Union won the election. As mentioned above, the evidence established Re- spondent's union animus. Myles was discharged for allegedly violating a rule against timesheet falsification . However, the record re- vealed that other employees falsified timesheets frequent- ly but were not punished . The record also revealed that Ruthie Myles was not late for work as claimed by Re- spondent24 and that she did not falsify her timesheet. The above elements have been found sufficient to estab- lish an 8(a)(3) and (5) violation. United States Gypsum Co., 259 NLRB 1105 (1982); Florida Medical Center, 227 NLRB 1412 (1977); Tama Meat Packing Corp., 230 NLRB 116 (1977). III. THE 8 ( A)(5) QUESTION The allegations in the complaint: (a) Since on or about September 9, 1981, the exact date being unknown, Respondent has failed and re- fused to grant wage increases to its employees. The evidence is clear and unrebutted that following the September 9, 1981 election of the Union , Respondent has not granted wage increases to any of its bargaining unit employees. During each year before 1981, Respondent usually granted wage increases to unit employees. However, the amount of those increases varied from year to year. A. The Past Practice The General Counsel contends that Respondent's past practice regarding bargaining unit employees' wages was changed in 1981 before the Union's election. That con- tention was supported by testimony from Respondent's director of personnel, Lynn Taggart. Taggart testified that before 1981 Respondent's unit employees received wage increases in May and November and that surveys of comparable wages among Respondent's competitors were conducted yearly. However, again according to Taggart, that policy was changed on April 1, 1981, when the Hyatt Hotel Corporation25 published policy 302. Policy 302 states: SUBJECT: WAGE PLAN FOR HOURLY NON- UNION EMPLOYEES 1. Each hotel must have a documented wage plan. A copy of that plan must be on file in the Corpo- rate Industrial Relations office. II. The wage plan must be reviewed and updated as necessary twice yearly in time to be used for the January and July Semi-Annual Wage Reviews. 24 In that regard I specifically credit the testimony of Myles, Katie Beasley, and Essie Butler showing that Myles reported to work at 8 a in on September 11, 1981 25 As distinguished from its individual hotel in Memphis which is the only Hyatt Hotel involved in these proceedings 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. The revised wage plan should be based on the hotel's analysis of area wage rates and any increase in the minimum wage. B. Assuming that the area wage survey supports the need for an increase, the hourly wages will be increased at least annually. III. The wage plan for proper administration of hourly wages must take into consideration the need to maintain a proper differential between the hire rate for new employees and for those with one (1), two (2), and three (3) years of service. A. Increases after three (3) years will vary by in- dividual, based primarily on the employee's quality of performance, and not simply due to the passage of time. B. At any time, each job classification will have four (4) established rates, as follows: 1. Hire Rate-updated at least annually based on competition and/or legislated wage increases. 2. One (1) year rate-equal to the updated hire rate plus a longevity differential. 3. Two (2) year rate-equal to the updated one (1) year rate plus another longevity differential. 4. Three (3) year rate-equal to the updated two (2) year rate plus another longevity differen- tial. IV. A performance evaluation and wage review must be conducted for every hourly employee each January and July. A. Consideration for a wage increase should be given if: 1. The wage rate for the job classification has been updated, or 2. The employee has completed one (1), two (2), or three (3) years of service during the previ- ous six (6) months period. NOTE: Hotels that have established a practice of granting longevity increases on an employee's anni- versary date may continue to do so for those em- ployees already hired . However, all future longevi- ty increases for people employed after the effective date of this policy must coincide with the semi- annual review dates. B. Only employees performing in a satisfactory manner can be given wage increases. C. Employees performing in a less than satisfac- tory manner should be put on a documented proba- tionary period of up to sixty (60) days, after which time they should either be given the wage increase, if performance was improved , or terminated, if it was not. 1. Exceptions must be made to maintain legis- lated minimum wage levels. V. Performance reviews for newly hired employees should also be conducted by the end of their initial Probationary Period (30 to 90 days). However, wage increases do not ordinarily result from such reviews. VI. Hourly employees performing in a superior manner can be given a merit increase to a level higher than the established wage rate at any time during the year. Following the implementation of policy 302, wage re- views were to be conducted in January and July of each year. Policy 302 also required implementation of a plan for longevity pay increases at the end of each of an em- ployee's first 3 years of service. In July 1981, according to Lynn Taggart, the Mem- phis hotel (Respondent) implemented a "10 cent policy." Employees received a 10-cent-per-hour increase at the end of their first year, an additional 10 cents at the end of the second year and a final 10-cent longevity increase at the end of the third year of service. According to the testimony, employees with anniversary dates during the January through June period would receive their respec- tive longevity increases in July and those whose anniver- sary date fell during the July through December period would receive their respective longevity increases at the time of the January wage review.26 Taggart testified, in accord with the language of policy 302, that employees would automatically receive longevity increases unless their performance was unsatis- factory. Also, according to Taggart, Respondent conducted a wage survey among five competing Memphis hotels in May before the July 1981 wage review date. That wage survey revealed the starting level wages in the various jobs existing in Respondent's facility among six hotels in- cluding Respondent. The other hotels surveyed included the Peabody, the Holiday Inn Rivermont, the Sheraton downtown, the Hilton near the airport, and the Quality Inn across the street from Respondent. In July 1981, Re- spondent increased its jobs entry wage levels as a result of the May survey. Discussion Despite the above evidence, Respondent brought into issue whether the July 1981 wage increases represented a changed policy. Respondent, through the testimony of General Manager Cody Plott, offered evidence that policy 302 was merely a guideline, that all wage consid- erations fall within the exclusive discretion of each hotel's general manager and that the July 1981 wage in- crease was a one time affair that did not represent a change in policy. Subsequently, Director of Personnel Lynn Taggart was recalled to the stand by Respondent. She was asked what was Respondent's wage policy, if any, at the time of the July 1981 wage adjustment . Taggart replied "dis- cretionary based upon the general manager's decision." 26 Taggart testified that when Policy 302 was first implemented by Re- spondent in July 1981 , all employees, regardless of their respective anni- versary dates, received longevity increases in order to fully implement the longevity increase policy. HYATT REGENCY MEMPHIS 283 Respondent's director of engineering Robert Poole subsequently testified that the July 1981 wage increase ..was a one time increase to keep Hyatt up competitive with other hotels around the city ...." However, the record brought in serious question the integrity of Respondent's contention that a policy was not established in 1981. In a September 29, 1981 affidavit, General Manager Plott27 testified as follows regarding the July 1981 wage increases: Prior to this year, every hotel in the Hyatt system had different bi-annual times for raises and evalua- tions. There were varying dates for these. In Janu- ary of this year, all hotels were put on the same dates. The new system was devised in order that evaluations of employees could be done in June and December and implemented in July and January. This past January was the first time that this was uniform throughout the Hyatt system. In April or May of 1981, Lynn Taggart who is Personnel Di- rector or Director of Personnel conducted a wage survey. She is required to conduct such a survey every six months in order to comply with the re- quirements of the Management Operations Review which is a part of the Hyatt System . After the wage survey was completed, a plan was devised by I think Tom Perry who is with the Corporate Office and over the Personnel Directors and by Lynn Tag- gart who is Director of Personnel in Memphis. This plan combined the merit raises which are usually given biannually and seniority raises. Previously se- niority had not been a factor in the merit raises. The plan combined both factors of performance and seniority and the raise was determined accordingly. The wage survey precipitated the combining of the merit and the seniority raise . This plan was sent to me in New York on June 10, 1981. It was in its final form and I approved it at that time. The plan was then implemented upon my approval and the em- ployees received their raises in the first check in July 1981 . The Board Agent has asked me for infor- mation concerning the numbers and names of those employees who received the raise in July. I have a memo from the comptroller which documents that the raise was 8 % and therefore I do not think that all employees received the July raise . I do not have a computer printout or record which would reflect those employees who received raises in July, 1981. We would have to go through each individual em- ployee record to determine their raise and its com- parison with their raise in July 1980 and January 1981. Our payroll records are maintained at a bank and we do not have them on the premises in order to make available to the Board. I will try to get a copy of the wage survey and the plan which was sent to me in New York and which I approved in June 1981. The employees were notified of the raise 84 It is noteworthy that Plott gave this affidavit before a charge was filed alleging that Respondent unilaterally changed its wage review policy in June or at least prior to the first pay raise in July. The plan was approved and implemented prior to the filing of the union petition and prior to our knowledge of any union activity. The Hotel had no knowledge of union activity prior to the filing of the petition. Certain hotels in Memphis pay accord- ing to seniority and this was what came out of the wage survey in April or May. The wage adjustment that was implemented in June 1981 was the combi- nation of seniority and merit. From now on , the em- ployees will receive a 10 cents raise on their anni- versary date for the first three years of employment. In December the employees will be evaluated for their merit increases. The merit raises are deter- mined by a percentage of the employee's annual salary. The guidelines which are found in our In- dustrial Relations Handbook requires 8% for stand- ard performance, 10% for superior performance, and 12% for those functioning above superior. This percentage system applies to salary and to nonsalary employees. We combined seniority and merit in June 1981 in order to be competitive with other hotels in the city. [Emphasis added.] Lynn Taggart, in an affidavit dated May 10, 1982, tes- tified, inter alia: Employees are evaluated on a semi-annual basis for raises. Pay raises prior to April, 1981 were based solely on merit. A corporate policy change was made in April, 1981 taking longevity into account in giving raises. This change was first implemented in July, 1981, which was the first semi-annual review since the decision to change the policy was made in April. Seniority raises are given in July if the anni- versary date falls between the preceding January through June. A seniority raise is given in January if the anniversary date falls between July and De- cember. Merit raises may be given for outstanding performance at any time . You could also get a merit raise at the time of your bi-annual evaluation. But it does not have to happen then. The raises based on seniority came automatically in January and July provided that the requirements as outlined in the policy are adhered to. I have already provided a copy of these requirements to the Board. Robert Poole's testimony in a September 29, 1981 affi- davit included the following: At one time we had employee evaluations in June and November . Then about two years ago, we re- ceived a corporate directive that we should change the evaluation times to July and January to comply with the rest of the corporate plan. I believe that it has been two years that we have been doing this. Since we have implemented this plan, we have told new employees that their evaluations that they will be evaluated in July and January. With the older employees, we have had to give them the evalua- tion and the raise when they were promised but we have tried to change them over to the new system. 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I believe that during the campaign which included the month of July, I evaluated all my twelve em- ployees. Not all the employees got raises. Their get- ting a raise is determined by their performance eval- uation and the time that they got their last raise. After the employees sixty day probation period, the employees then go to the system of a July and Jan- uary evaluation. Employees get a longevity raise every year for the first three years and then they get merit raises . The employee will get the longevi- ty raise automatically on their year's anniversary for the first three years. During this same period of time, the employee will also be evaluated in July and January for merit increases and will also get those based upon their performance . During July, I gave both longevity raises and merit raises to em- ployees. This is consistent with my past practice for the last two years. The above affidavit testimony, along with substantial record evidence, shows that for a time at least, Respond- ent viewed its wage review and adjustment policy as having undergone a change in mid-1981.28 Although Re- spondent's witnesses offered different versions at trial, no explanation was forthcoming as to why Plott, Taggart, and Poole changed their minds as to the significance of the 1981 wage activity. In the absence of a cogent explanation, I am inclined to find that a policy change occurred when substantial evidence proved that as late as September 29, 1981, Re- spondent's chief executive understood that a new policy had been established. 29 Moreover, Respondent's director of personnel testified to a similar understanding as of September 29, 1982. The evidence is substantial that Respondent did estab- lish a new wage review and adjustment policy in 1981. B. The Unilateral Change Lynn Taggart testified without rebuttal that following certification of the Union in November 1981, Respondent was advised by its attorney not to grant any wage in- creases. Consequently, it is undisputed that no wage in- creases have been granted to bargaining unit employees since the September 9, 1981 election. Neither longevity increases nor any other increases have been granted. Moreover, until a survey was conducted in the fall of 1982, Respondent did not conduct any wage surveys fol- lowing May 1981. Lynn Taggart testified that the fall 1982 survey was conducted, in part, "in preparation of" the instant hearing. The evidence is also clear that Respondent has not conducted any wage reviews among bargaining unit em- ployees since July 1981. 29 Although there is a conflict between the affidavits of Taggart , Plott, and Poole on the date the 1981 change occurred , other evidence shows that Taggart's testimony as to the dates was accurate 29 As quoted above , General Manager Plott testified on September 29, 1981. From now on, the employees will receive a 10 cents [sic] raise on their anniversary date for the first thru [sic] 4 yrs. of employment In December the employees will be evaluated for their merit increases C. The Waiver Question The Union made bargaining requests to Respondent dated October 12 and December 17, 1981. By letter dated December 22, 1981 , Respondent's attorney ac- knowledged the Union's requests and agreed to meet and bargain while mentioning that the Union 's October 12 re- quest predated certification and was for that reason pre- mature.3 o However, it is undisputed that Respondent did not notify the Union of its November 1981 decision to grant no wage increases pending collective -bargaining negotia- tions. Lynn Taggart testified that the decision to cease conducting semiannual wage reviews was "because of the certification of the Union and the collective bargain- ing status." Union Business Agent C. R. Boyd testified, without rebuttal, that he first learned that Respondent had ceased giving pay increases in January or February 1982 when employees complained to the Union. On March 12, 1982, the Union wrote Respondent: It is the position of the Union, Teamsters Local 667, that the employees of Hyatt Regency Hotel, Memphis, Tennessee, should be granted their pay raises due them or [sic] outlined in the Hyatt Re- gency, Memphis, Tennessee, handbook and past practices. It is our firm position that these employ- ees should be paid at once. On March 18 , 1982, Respondent's attorney answered the Union's March 12 letter. The March 18 letter stated (in material part): On a related issue, I acknowledge receipt of your letter of March 12, 1982, also received on March 17, 1982. Please explain to me in writing whether your March 12th letter is proposing that the wage increases for Hyatt Regency Memphis bargaining- unit employees be the same as according to Hyatt Regency Memphis' past practices before the [sic] representation election and your union's subsequent certification. It appears to me that your March 12th letter is a contract demand on the wage issue, sub- ject to our collective bargaining negotiations. I am sure you are aware that Hyatt Regency Memphis is prohibited from granting unilateral wage increases and discretionary benefits to the bar- gaining-unit employees, while we are engaged in collective bargaining negotiations. If you desire Hyatt Regency Memphis determinations within its discretion concerning any pay raises for employees, please note that this raises the question of whether Hyatt Regency Memphis should use its discretion in other areas of labor relations normally subject to and contingent upon collective -bargaining agree- ment.... 30 Upon reconsideration I reverse my ruling at trial and receive into evidence R Exh 32 , which includes, inter alia, the Union's bargaining request and Respondent's replies. HYATT REGENCY MEMPHIS C. R. Boyd testified that the Union 's March 12, 1982 letter was discussed in negotiations with the hotel on March 18, 1982. Boyd's testimony reveals that the fol- lowing points surfaced during that session: (1) Respondent insisted that past wage increases were determined solely at the discretion of Respondent's man- agement. (2) The Union insisted that the past practice as exer- cised in July 1981 be followed. (3) Respondent insisted that any discretionary increase should be based on merit alone. (4) Respondent insisted that any increases would become part of the collective -bargaining agreement. (5) The Union insisted that wages granted under past practices would be "completely separate from the present contract negotiations." Arch Stokes, an attorney for Respondent, testified about the March 18, 1982 bargaining session . Stokes' tes- timony revealed that the following positions were taken during that session: (1) Respondent argued that under past practice all in- creases were determined at the discretion of Respond- ent's management or were dictated by an increase in the minimum wage requirement. (2) The Union insisted that past practice should be de- termined by the greatest amount of increase that had been granted, which Stokes recalled was probably in July 1981. (3) Respondent was willing to grant an increase pro- vided it be determined at its discretion. (4) The Union rejected Respondent's offer to grant a discretionary increase. (5) Respondent argued that any increase other than one at its discretion would have to result through collec- tive bargaining. Lynn Taggart testified that the Union's request for a wage increase in accord with past practice was discussed again during an August 5, 1982 negotiating session. Tag- gart admitted that Respondent 's position was: Any wages given according to past practices, would be done at the hotel [sic] discretion as far as the amounts and individuals who received those raises? Finding In determining the past practice, it is axiomatic that the material policy or practice is the one that existed at the moment a bargaining obligation materialized. In the instant case, the Union was elected representative of the unit employees on September 9, 1981, and certified as the exclusive representative on November 27, 1981. A pay adjustment procedure was last exercised by Re- spondent before the bargaining obligation materialized during July 1981. Therefore, absent competent evidence that the July 1981 procedure was unusual, the conclusion would follow that the July 1981 proceeding would be a model for determining past practice. Obviously it does not affect our consideration to deter- mine that the July 1981 procedure was a new one. Absent a bargaining obligation , an employer is free to change its wage consideration practices at any time it 285 sees fit. Here, Respondent admittedly changed its prac- tice in April 198131 and effected that change through the July 1981 wage adjustment. However, as mentioned above, Respondent offered evidence including testimony of Cody Plott, Lynn Tag- gart, Robert Poole, and others, that the July 1981 inci- dent was a one-time affair designed to bring Respondent into job market competition with other Memphis Hotels. While job market competition was obviously one of the factors used in determining the size of the July 1981 pay increases, I am impressed with a showing on the record that it was not until long after its bargaining obli- gation occurred, that Respondent first raised the conten- tion that the July 1981 wage adjustment was a one-time affair. In that regard , I note specifically that the pretrial affidavits of Plott, Poole, and Taggart showed a plan to continue the July 1981 wage adjustment procedure in December-January 1982 and thereafter. I specifically discredit testimony that the July 1981 wage adjustment was intended to be an isolated event. Policy 302 has not been recalled, and it appears from its face to have a continuing application .32 If, as Respond- ent argues, July 1981 was intended as a one-time catch- up, there would be no reason for policy "302" to detail procedure for semiannual surveys, reviews, and adjust- ments. In that regard, I credit testimony by Lynn Taggart that the practice outlined in policy 302 was placed in effect at Respondent's Memphis Hotel in the spring of 1981. It is true that policy 302 contains only a basic wage review policy. However, certain specific features are included within "302." Those include: (1) Semiannual wage surveys and reviews. (2) Automatic longevity increases at the end of each of an employees first 3 years of services. (3) Base pay increases at least annually when support- ed by Respondent's area wage survey. Moreover, record evidence established other specific details of Respondent's established review and adjust- ment system. Lynn Taggart testified without rebuttal that the practice was established to include longevity in- creases of 10 cents per hour for all satisfactory employ- ees upon reaching each of their first through 3 years of service. Cody Plott testified in his September 29, 1981 af- fidavit that Respondent's policy requires merit increases of 8 percent for standard performance, 10 percent for su- perior performance, and 12 percent for those performing above superior. Therefore, I am convinced from the above evidence that Respondent's past practice, which was implemented in 1981, includes the following: (1) Semiannual area wage surveys covering bargaining unit positions. The hotels in the surveys include the Quality Inn across the street from Respondent, the Hilton near the airport , Holiday Inn Rivermont, the Pea- body, and the Sheraton downtown. a' See the testimony of Lynn Taggart mentioned above. 32 Moreover, the evidence showed that policy 302 was more than a mere guideline as Respondent contends Whether or not policy 302 was a mandate, the testimony of Lynn Taggart shows that it was placed into effect as a permanent policy change 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (2) Automatic 10-cent-per-hour longevity increases for all bargaining unit employees effective on the next July or January, following the employees first , second, and third years of service. (3) Semiannual wage reviews of all bargaining unit em- ployees. (4) An annual revision of the wage plan based on the results of the semiannual area wage surveys. (5) Merit increases during wage reviews in accord with the formula set out in General Manager Plott's Sep- tember 29, 1981 affidavit. As shown above, the evidence proved that in Novem- ber 1981 , Respondent elected to discontinue the above policy. No notice was given to the Union of Respond- ent's election to discontinue its wage review and adjust- ment practice . When the Union learned of Respondent's action through employee complaints, it was faced with a fait accompli. As to Respondent's contention of a waiver, I find nothing in the evidence which demonstrated that the Union expressly or implicitedly agreed to waive the wage review and adjustment policy. To the contrary, the evidence is unrebutted that the Union has continued to demand that Respondent reinstate its 1981 wage adjust- ment plan.33 Although negotiations have continued, Respondent has continued to refuse to reinstate its established wage review and adjustment plan. Moreover, Respondent has continued to refuse to grant any longevity increases since July 1981. Although no bargaining unit employees have received any type of increase since the September 9, 1981 elec- tion, nonunit employees were granted wage increases in March 1982. "The Board and Courts have long held that an em- ployer withholding pay raises and/or benefits from em- ployees who are awaiting the holding of a Board elec- tion, or have chosen a Union as their bargaining repre- sentative, has violated the Act if the employees other- wise would have been granted the pay raises and/or ben- efits in the normal course of the employer's business." Florida Steel Corp., 220 NLRB 1201, 1203 (1975). Here, Lynn Taggart admitted that a decision was made in No- vember 1981, on advice of counsel , to discontinue their wage review and adjustment program because the Union had been certified as bargaining representative of Re- spondent's employees. Throughout negotiations Respondent has taken the po- sition that any changes in benefits would not be retroac- tive and would begin only when the contract became ef- fective. Nevertheless and despite the Union's original October 1981 request for bargaining, Respondent elected to discontinue granting longevity increases in November 1981 without giving the Union notice of its action. When asked by employees about their failure to receive wage increases pursuant to the policy instituted in April 1981, Respondent consistently blamed the Union by asserting that increases could not be granted during contract nego- tiations (supra). See Michigan Consolidated Gas Co., 261 NLRB 555 (1982), where it was held that an employer's obligation is to maintain the dynamic status quo, includ- ing, in that case, continuing their scheduled merit pro- gram benefits during negotiations . In the instant case no collective-bargaining agreement had been reached on economic issues even though negotiations were continu- ing when the instant hearing closed. Throughout negoti- ations Respondent has not offered to reinstate its 1981 wage review and adjustment procedure. In response to the Union's several requests that wage increases be granted under that policy, Respondent 's representatives chided the Union by contending that the 1981 wage ad- justment incident did not represent their policy, that any wage increases during negotiations must be included in the contract, and that increases would be discretionary with its general manager. As in J. P. Stevens & Co., 239 NLRB 738 (1978), Re- spondent, following the Union's March 12, 1982 letter, gave the Union a belated "Hobson 's choice"-here the choice was to either accept or reject Respondent's pro- posal that Respondent consider a wage increase totally within its discretion which would be included in the col- lective-bargaining agreement, or suffer the employees to await the final outcome of collective bargaining with the understanding that no agreement would have retroactive effect. Of course, it is often argued that the "Hobson's choice" is on the employer, i.e., that either a wage in- crease or the absence of one would be found violative unless negotiated . However, that question was resolved in NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (1970), by Circuit Judge Irving Goldberg: At first glance it might appear that the employer is caught between the proverbial "devil and the deep blue sea." It is an unfair labor practice to grant a wage increase during the campaign and bargaining periods, but at the same time it may be an unfair labor practice to refuse to grant an increase during this same period . Indeed, the employer in this case has made just this sort of an argument , claiming that it could not grant the pressroom employees their normal progression raises since to do so would have been an unfair labor practice. We find little merit in such arguments. The cases make it crystal clear that the vice involved in both the unlawful in- crease situation and the unlawful refusal to increase situation is that the employer has changed the exist- ing conditions of employment. It is this change which is prohibited and which forms the basis of the unfair labor practice charge. Respondent contends that the discretion inherent in its pay increases renders the General Counsel's position in- supportable. Obviously, the procedure instituted by Re- spondent in 1981 does not lend itself to any easy determi- nation of specific remedy. 34 In fact, it is not clear on the 39 Cf Southern Florida Hotel & Motel Assn., 245 NLRB 561, 568 (1979), where the Board found that the Union did not waive unilateral changes even though the Union and Respondent reached agreement Here, no agreement was reached a' Although not specifically argued by Respondent, it is apparent that several facets of its wage adjustment policy do pose potential bargaining difficulties. For example, merit increases must depend upon Respondent's Continued HYATT REGENCY MEMPHIS basis of the record which employees would receive merit increases at the end of each 6-month period . Such a de- termination must rely on the evaluation of each respec- tive employee's performance. General Manager Plott did testify in his September 1981 affidavit that the hotel's wage review plan included merit increases of 8 percent for standard performance, 10 percent for superior per- formance, and 12 percent for above superior. Even more confusion results over policy 302's require- ment that the wage plan must be revised annually based on the results of the semiannual wage surveys. However, Board decisions have shown that the above areas of confusion should not preclude an unfair labor practice determination . For example, in Florida Steel, supra, the specific amount of any wage increases was de- pendent on wage surveys that the Respondent had failed to conduct. In Struthers Wells Corp., 245 NLRB 1170 (1979), the Board determined that the proper remedy re- quired wage reviews as opposed to wage increases, since the record did not demonstrate that increases would have necessarily occurred. In the instant case it is clear, and I find, that all em- ployees eligible for longevity increases under policy 302 have been unlawfully denied those 10-cent-per-hour in- creases during January 1982, July 1982, and subsequently each 6 months thereafter.35 As to the unlawful deprivation of semiannual merit in- creases it will be necessary to examine how each em- ployee was evaluated at material times, in consideration of the planned merit increases outlined by General Man- ager Plott in his affidavit. As to the question of annual revision of the wage plan, it will be necessary to determine what the appropriate area wage surveys would have shown had they been conducted on the material dates. The remedy herein, which I shall recommend, will require Respondent, in those instances where the results of the respective area wage surveys demonstrate a need , to retroactively and prospectively revise its wage plan annually in accord with the practice followed in July 1981. evaluations of employees' performance and there may be some room for discretion in determining the amount of annual base wage adjustments following the area wage surveys The exercise of discretion in those areas may have given rise to complaints by the Union . Therefore, an argument could arise which would be, in effect, another side of the "devil and the deep blue sea" argument mentioned in NLRB v Dothan Eagle. Inc , supra. However, it is improper for Respondent to circumvent these or other bargaining problem areas by unilaterally changing its policy Where, as here, the collective-bargaining process is flaunted by a refusal to engage in open negotiations , the law will not excuse the wrongdoer out of recognition that he may have been confronted with difficulties. That rule is especially applicable where, as here, those very difficulties may have been avoided by negotiations . See General Motors Acceptance Corp, 196 NLRB 137 (1972), enfd 476 F.2d 850 (1st Cir 1973). Moreover, the above-mentioned discretionary areas must be distin- guished from the discretion argument made by Respondent to the Union during negotiations There, Respondent argued that its entire policy and practice were discretionary . The evidence shows that was not the actual situation 35 Of course, this and all other areas of the remedy regarding wage adjustment's would include all entitled persons employed at material times regardless of whether each is currently employed by Respondent 287 Other Alleged Unilateral Changes The General Counsel alleged that Respondent made other unilateral changes in working conditions . Undis- puted evidence proved that changes were made includ- ing changes in the working hours for housepersons. For several years before the September 9, 1981 election, hou- sepersons worked an 8 a.m. to 4:30 p.m. weekday shift and a 9 a.m. to 5:30 p.m. weekend shift. Beginning short- ly after the election the weekday shift was changed to 8:30 a.m. to 5 p.m. Subsequently, beginning around Feb- ruary 1982, the weekday shift was changed on two other occasions-first back to 8 a.m. to 4:30 p.m. weekdays then finally to 8:30 a.m.to 5 p.m. weekdays and 9 a.m. to 6 p.m. on weekends. It is also undisputed that before the election Respond- ent served meals including breakfast. Although Respond- ent's practice of giving each employee one meal ticket per day did not change, beginning shortly after the elec- tion Respondent stopped serving breakfast. That particu- lar change was made without prior notice to the employ- ees. The Union was not notified about the changes in working hours or the elimination of breakfast. Obviously employees' working hours and the serving of meals for employees constitute working conditions. It is well established that those constitute mandatory sub- jects for bargaining. Respondent's obligation to recognize and treat the Union as its employees' bargaining representative was ef- fective on the day of the election, September 9, 1981. The general principle of law applicable in this instance is that "[u]nilateral changes of 'wages, hours, and terms and conditions of employment,' as defined in Section 8(d), at a time when an employer is obligated to bargain with the duly designated representative of the employees in an appropriate unit, violates Section 8(a)(5) of the Act." Master Slack, 230 NLRB 1054 (1977). The above principle applies regardless of Respondent's motive in making the changes. I find, in agreement with the General Counsel, the Respondent engaged in further 8(a)(1) and (5) violations by making unilateral changes in the employees' working hours and by eliminating break- fast for its bargaining unit employees. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.36 2. Highway and Local Motor Freight Employees Local Union No. 667, affiliated With the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act.37 36 Respondent in its answer admitted the factual allegations regarding its corporate status at its Memphis , Tennessee place of business Respond- ent also admitted the commerce allegations including the allegations that its gross revenues exceeded $500,000 and that it annually received at its Memphis facility products , goods, and materials valued in excess of $50,000 directly from points outside the State of Tennessee. Although Respondent denied the conclusionary allegation of employer status, I reach the above conclusion in view of its factual admissions 97 As per stipulation by the parties at p 41 of the transcript 288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. By telling its employees it was destroying all their written warnings and changing its procedure of access to management to one of open door to the general manager because of the union organizing campaign; by interrogat- ing employees about the Union ; by promising its employ- ees improved working conditions because of the Union's campaign; by threatening its employees with detrimental changes and working conditions if they selected the Union as bargaining representatives; by threatening its employees with loss of benefits and loss of the privilege of going directly to supervision with employee problems if the Union was selected ; by telling its employees that they would not receive planned pay increases because of the Union; by threatening employees with discharge for offenses which previously involved no disciplinary action if the employees selected the Union; by linking employee awards and pay raises with its suggestion that its employees vote against the Union; by threatening its employees with discharge if they voted the Union in; by polling its employees in group meetings as to their union feelings; by threatening its employees that a union belt buckle would get him in trouble; and by requiring its em- ployees to remove union buttons from their clothing, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging its employees Levy Harrison and Ruthie Myles and thereafter failing and refusing and con- tinuing to fail and refuse to reinstate Harrison and Myles; by issuing a written warning to Ruthie Myles and by more stringently enforcing its time sheet rules, Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. 5. The following constitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All banquet bartenders, banquet captains, banquet cooks, banquet housepersons, banquet house person [sic] supervisors, bell attendants, bartenders, bever- age-waiters, beverage waitresses, bakers, baker's helpers, breakfast cooks, butchers, bus persons, cafe- teria food servers, day stewards, door attendants, food and beverage cashiers, general utility employ- ees, head bartenders, hosts/hostesses, housekeepers, house persons, [sic] kitchen expediters , linen room attendants, line cooks, maintenance engineers I, II, and III, night chefs, night pantry cooks, night cooks, night stewards, night bell attendants, PBX operators, pool attendants, pantry workers, pantry cooks, salad bar attendants, secretary to the chef/food preparation, secretary to the banquets manager, store room clerk, van drivers, restaurant waiters, restaurant waitresses, banquet waiters, ban- quet waitresses, room service waiters, room service waitresses, banquet chef and floor supervisor em- location, excluding all supervisors as defined in the Act. 6. At all times since September 9, 1981, the Union has been the duly designated representative of the employees in the aforesaid unit. 7. By unilaterally changing the terms and conditions of its bargaining unit employees working conditions by dis- continuing its wage adjustment plan as previously de- scribed in this decision ; by changing the working hours for numerous employees in the bargaining unit; and by discontinuing its practice of serving breakfast to bargain- ing unit employees, on various dates since September 9, 1981, Respondent has violated Section 8 (a)(1), (3), and (5) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 9. Respondent did not otherwise engage in unfair labor practices as alleged in the complaint. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. My recommended Order will require Respondent to offer Levy Harrison and Ruthie Myles immediate and full re- instatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions , without prejudice to their seniority or other rights and privileges. I shall further recommend that Respondent be ordered to make Harrison and Myles whole for any loss of earnings they may have suffered as a result of the discrimination against them and that Respondent expunge from its records any reference to the unlawful discharges of Levy Harrison and Ruthie Myles and notify each in writing that Respondent's unlawful conduct will not be used as a basis for further personnel actions. I shall also recom- mend that Respondent restore the status quo ante by re- instating its wage adjustment plan and its practice of serving breakfast to bargaining unit employees . Respond- ent should be ordered to make all bargaining unit em- ployees whole for any loss of earnings suffered because of Respondent's unlawful discontinuation of its wage ad- justment plan including earnings lost by employees being deprived of longevity increases, merit increases, and/or semiannual wage adjustments. Backpay shall be comput- ed as described in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as described in Florida Steel Corp., 231 NLRB 651 (1977).38 [Recommended Order omitted from publication.] ployed by the Employer at its Memphis, Tennessee, 38 See generally Isis Plumbing Co., 138 NLRB 716 (1962).