Days Inn Management Co., Inc.

DAYS INN MANAGEMENT CO 735 Days Inn Management Co., Inc. and Local 217, Hotel and Restaurant Employees and Bartend- ers Union, AFL-CIO. Cases 39-CA-3393 and 34-RC-719 September 20, 1992 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On September 11, 1989, Administrative Law Judge Joel P Biblowitz issued the attached deci- sion The General Counsel filed exceptions and a supporting brief, and the Charging Party filed ex- ceptions The Respondent filed exceptions, a sup- porting brief, and an answermg brief to the other parties' exceptions The National Labor Relations Board has delegat- ed its authority m this proceedmg to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision, Order, and Direction of Second Election We adopt the judge's findmgs that the Respond- ent did not violate Section 8(a)(1) by performing a skit depicting contract negotiations, or Section 8(a)(3) and (1) by permanently laying off 18 unit employees on January 7, 1987 2 We also adopt the 1 The General Counsel has excepted to some of the judge's credibility findings The Board's estabhshed policy is not to overrule an adnumstra- nye law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings No exceptions were filed to the judge's dismissal of the 8(aX1) allega- tions involving threats by General Manager Rogers and a restriction on employee movements by Executive Chef O'Donnell The judge found that the Respondent violated Sec 8(aX1) when Sales Director Mazuroski told an employee that if the Union won the election, employee wages would be reduced to minimum wages The judge, how- ever, noted that Mazuroslu's threat was not alleged as an election objec- tion and, even if it were, this threat would not be sufficient to set aside the election No exceptions were filed 2 The judge found that the Respondent met its burden of proof under Wright Line, 251 NLRB 1083 (1980), that It would have terminated the employees on January 7, 1987, even absent the union activity and cam- paign The General Counsel excepts to this finding because, inter aha, the judge failed to find that the Respondent has a corporate policy that all employee layoffs must be permanent We do not find merit to the Gener- al Counsel's exception General Manager Rogers, who was credited else- where by the judge, testified that the Respondent has a corporate policy that all employee layoffs must be permanent and that she learned of this policy during her company training 7 years ago Rogers' testimony about this corporate policy was specifically corroborated by the Respondent's witnesses, Ronald Sorrell% the manager of benefits, compensation, and EEO, and Vicki Shows, the manager of personnel records On the other hand, the evidence rehed on by the General Counsel does not establish that the Respondent deviated from this corporate policy by having tem- porary employee layoffs instead Moreover, whether a corporate policy of only permanent layoffs actually existed is irrelevant in light of the judge's recommendations to overrule election Ob- jections 2, 9, and 10, and his determination that a bargaining order is not warranted here 3 Contrary to the judge, however, we find that the Respondent created the impression of keeping em- ployee organizational activity under surveillance, in violation of Section 8(a)(1) of the Act, and thereby engaged in objectionable conduct interfering with the election by stationing Chief Engineer Sal Albam openly in the Respondent's hotel lobby on the day of the election to meet potential voters as they entered the lobby on their way to the second floor polling place, with Albam openly lining through the names of some potential voters on a list before letting them proceed to the pollmg place 4 The Respondent operates a hotel in Bridgeport, Connecticut On December 19, 1986, the Union filed a petition seeking to represent the Respond- ent's service and maintenance employees On Feb- ruary 25, 1987, a Board election was held and the Union lost, 22 to 37 The Union subsequently filed timely election objections The election was conducted in a room on the second floor of the Respondent's hotel To get to the polling place, voters took an elevator from the lobby About 6 weeks before the election, the Re- spondent terminated about 20 employees It antici- pated that at least some of them would attempt to vote General Manager Catherine Rogers was par- ticularly concerned about the return to the Re- spondent's hotel of Clarence Philibert, a terminated employee who Rogers felt had been "extremely vulgar" at the time of his termination Rogers spoke to a Board agent about her concerns about Pluhbert and about her general desire to control the election day access of terminated employees to the upstairs guest area of the hotel The Board agent told Rogers that the Respondent could have judge's crediting Rogers' reasons for the January 7 terminations, which includes her belief that employee layoffs are always permanent 3 Objection 2 corresponds to the 8(aX3) allegation regarding the Janu- ary 7 layoffs, discussed above Objection 9 corresponds to the 8(aX1) al- legation involving O'Donnell, discussed above Objection 10, which the judge found does not correspond to any complaint allegation, alleges that, on the day of the election, the Respondent's supervisors made mis- leading and threatening statements to the effect that employees could not vote in the election There were no exceptions to the judge's treatment of Objections 9 and 10 4 Because we find that the Respondent violated the Act and interfered with the election by this conduct, and because we set aside the election on this bans, it is unnecessary for us to pass on the question whether the Respondent also violated the Act and Interfered with the election, as al- leged, by observing the Union's organizational activity conducted on the public sidewalk in front of the Respondent's hotel The resolution of that question would not affect our decision to set aside the election in any event on the basis of Albam's election day conduct in the lobby, the remedy for any unfair labor practice finding based on the Respondent's observation of the Union's organizational activity would be cumulative to the cease-and-desist remedy we Impose concerning the Respondent's un- lawful election day conduct in its lobby 299 NLRB No 113 736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a representative in the hotel lobby to escort poten- tial voters, including Phihbert, to the polling area Rogers also asked the Board agent if he would allow a representative from the Respondent to be m the lobby "to make sure that there was no trou- ble with our outside security as to allowing" the terminated employees to have access to the second floor polling area The record does not show whether the Board agent actually granted or denied this request In any event, Rogers gave Albam a list of the terminated employees and m- structed him to "make sure that he allowed [them] to come upstairs, even though they had been termi- nated, because they wound up on a list of people being able to vote" On election day Albam was in the lobby near the front doors holding a clipboard with a list of the names of the recently terminated employees As they entered the lobby, Albam greeted them, asked for their names, lined through their names on the list, and directed them to the elevator, where secu- rity personnel escorted them to the second floor polling area The judge found, (1) that the Respondent had a valid secunty reason for checking the identity of individuals as they went upstairs to vote, and (2) that when Albam crossed off the individuals' names they could not reasonably assume that their umon activities had been placed under surveillance In light of those findings, the judge recommended that the unfair labor practice allegation be dis- missed and that the corresponding objection to the election be overruled We do not agree with the judge's recommendations The only authority cited by the judge in support of his recommendation for dismissal is South Shore Hospital, 229 NLRB 363 (1977) Although that case recites the well-established general standard for de- termining whether an employer has created the im- pression of surveillance e, whether employees would reasonably assume from the employer con- duct in question that their union activities had been placed under surveillance), South Shore Hospital is inapposite factually to the instant case, and in par- ticular does not involve the keepmg of a list of voters 5 No other authority is cited in support of the dismissal of this allegation Indeed, as discussed below, the result reached by the judge is contrary to well established Board precedent involving simi- lar material facts 5 In South Shore, the panel majonty dismissed an allegation that the employer had created the impression of surveillance of union activity when a supervisor told an employee that the supervisor had Just come from a meeting with the employer's director and that talk of having a union was "all over the hospital" It is well settled that the only list of voters that may be maintained in Board-conducted elections is the official voter eligibility list used to check off the names of voters as they receive their ballots The keeping of any other list of individuals who have voted is prohibited and is grounds in itself for setting aside the election when it can be shown or inferred from the circumstances that the employees knew that their names were being recorded And this is so even when there has been no showing of actual interference with the voters' free choice International Stamping Co, 97 NLRB 921 (1951) Accord Premier Maintenance, 282 NLRB 10, 19-20 (1986), Sound Refining, 267 NLRB 1301 (1983), Masonic Homes of California, 258 NLRB 41 (1981), Marathon LeTourneau Co, 208 NLRB 213, 223-224 (1974), enfd mem 498 F 2d 1400 (5th Cir 1974), Piggly-Wiggly, 168 NLRB 792 (1967), Belk's Depart- ment Store, 98 NLRB 280 (1951) Cf A D Juil- hard & Co, 110 NLRB 2197 (1954) (no affirmative showing or circumstantial inference that employees were aware that their names were being recorded), Robert's Tours, 244 NLRB 818 (1979), review denied mem 633 F 2d 223 (9th Cir 1980) (de mini- ms when list keeping could have tended to mter- fere with vote of only 1 out of 26 voters), Brown Drilling Co, 172 NLRB 1267 (1968) (employee awareness not shown, in any event, de mimmis when at most only 3 out of 82 voters aware) In this case, Chief Engineer Albam openly stood inside the entrance to the hotel lobby with a list of potential voters on his clipboard As each of them arrived in the lobby, Albam met them, took their names, openly crossed them off the list, and direct- ed them to the elevator to the polling area Apply- ing the well-settled Board standard set forth in the cases cited above, we find that by openly maintain- ing a list of individuals who voted in the election, when the employees were shown to have known that the names of voters were being recorded, the Respondent engaged in objectionable conduct interfering with the election Accordingly, we set the election aside 6 • Unlike the judge, we do not find that the Respondent's concerns for security warranted its keeping a list of names of potential voters To begin with, the individuals whose names were on Albam's list were not, after all, strangers to the Respondent Until 6 weeks pnor to the election, they had been its employees To the extent that the Respondent had le- gitimate security concerns, however, the Respondent did not demonstrate that its conduct in maintaining a list of potential voters to meet those concerns was reasonably justified Thus, It is not apparent to us why, if only potential voters were to be taken upstairs, individuals entering the premises could not simply have been asked if they were there to vote in the election Once having been directed to the polling area, if Philibert (or anyone else) had proved obstreperous or a threat to security, he or she could have been dealt with by the security personnel, who apparently were available at the Respondent's premises throughout the election DAYS INN MANAGEMENT CO 737 We also find that the employees could reason- ably assume from Albam's conduct that their orga- nizational activity had been placed under surveil- lance by the Respondent We find that this creation of the impression of surveillance of voting activity had a reasonable tendency to interfere with, re- strain, and coerce individuals affected m the exer- cise of their Section 7 rights Accordmgly, we also find that the Respondent has violated Section 8(a)(1) of the Act REMEDY Havmg found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act ORDER The National Labor Relations Board orders that the Respondent, Days Inn Management Co, Inc , Bridgeport, Connecticut, its officers, agents, suc- cessors, and assigns, shall 1 Cease and desist from (a) Threatening to reduce the pay of its employ- ees to the minimum wage allowed by law if Local 217, Hotel and Restaurant Employees and Bartend- ers Union, AFL-CIO won the Board election and was certified as the employees' collective-bargain- mg representative (b) Creating the impression of keeping employee organizational activity under surveillance (c) In any like or related manner, interfering with, restrammg, 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) Post at its facility in Bridgeport, Connecticut, copies of the attached notice marked "Appendix "7 Copies of the notice, on forms provided by the Re- gional Director for Region 34, after bemg signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other matenal 7 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" (b) Notify the Regional Director in wntmg within 20 days from the date of this Order what steps the Respondent has taken to comply IT IS FURTHER ORDERED that the allegations of unlawful conduct not found to be violative of the Act shall be dismissed [Direction of Second Election omitted from pub- lication] APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten to reduce the pay of our employees to the minimum wage allowed by law if Local 217, Hotel and Restaurant Employees and Bartenders Union, AFL-CIO wins the Board elec- tion and is certified as the employees' collective- bargaining representative WE WILL NOT create the impression of keepmg employee organizational activity under surveil- lance WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the nghts guaranteed you by Section 7 of the Act DAYS INN MANAGEMENT Co, INC Thomas Metklejohn, Esq and James Bailey Esq , for the General Counsel Arch Stokes, Esq , John Runt Esq , and Karl Terre!, Esq (Stokes, Lazarus & Carmichael), for the Respondent Ellen Thompson, Area Director, for the Charging Party DECISION STATEMENT OF THE CASE JOEL P BIBLowrrz, Administrative Law Judge This case was heard by me on 7 hearing days, opening on No- vember 14, 1988, and closing on January 4, 1989, in Bridgeport, Connecticut The amended complaint herein issued on November 2, 1988, and was based on an unfair labor practice charge filed on March 6, 1987, 1 by Local 217, Hotel and Restaurant Employees and Bartenders Union, AFL-CIO (the Union) The amended complaint alleges that Days Inn Management Co, Inc (the Re- spondent) violated Section 8(a)(1)(3) and (5) of the Act in the following manner 'Unless indicated otherwise, all dates referred to herein relate to the year 1987 738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) On or about December 12, 1986, engaged in a skit at the Days Inn Hotel in Bridgeport, Connecticut (the fa- cility), which skit "depicted the Employer's intransi- gence m negotiations by refusing all of the Union's de- mands during the course of negotiations and by depicting a strike, informed its employees that it would be futile for them to select the Union as their bargaining repre- sentative (b) In or about November and December 1986, at the facility, threatened employees with termination or other reprisals, for supporting the Union (c) In or about February, at the facility, observed its employees speaking to representatives of the Union and kept under surveillance, meetings of employees and union representatives (d) On or about February 25, informed its employees that if they voted for the Union, their wages would be lowered to the minimum wage (e) On or about February 25, at the facility, restricted the movement of its employees in order to prevent them from engaging in union activities (f) On or about February 25, at the time of the Board conducted an election at the facility, kept a list of poten- tial "yes" voters, thereby creating an impression among its employees that their umon activities were under sur- veillance by Respondent (g) On or about January 7, permanently laid off 18 named employees because of their activities on behalf of, and support for, the Union In addition to there unfair labor practice allegations, it is also alleged that Respondent unlawfully refused to rec- ognize and bargain with the Umon, the designated col- lective-bargammg representative of its employees in an appropriate unit, and a Gissel bargaining order is request- ed Pursuant to a petition filed by the Umon on December 19, 1986, and a Decision and Direction of Election issued by the Regional Director for Region 1 on January 29, an election was conducted among the following employees of Respondent, found to constitute an appropriate unit, on February 25 All full-time and regular part-time service and maintenance employees employed by the Employer at its 815 Lafayette Boulevard, Bridgeport, Con- necticut location, including food and beverage em- ployees, banquet employees, front desk employees, maintenance employees, housemen, housekeeping and laundry employees, but excluding management trainees, purchasing agents, security guards, sales personnel, office clerical employees, confidential employees and guards, professional employees and supervisors as defined in the Act After a stipulation among the parties, a revised tally of ballots showed The undetermined challenged ballots no longer affect the results of the election On March 3, the Union filed timely objections to the election In a Supplemental Decision dated February 29, 1988, the Regional Director found that five of these ob- jections raise substantial and material issues of fact and would best be resolved on the basis of record testimony He therein consolidated the following objections in (now) Case 34-RC-719 with the existing complaint in Case 39-CA-3393 2 Layoff of a substantial number of employees in the week following the Unit determination hearing on account of their Union activities and for the pur- pose of having a chilling effect on the election 4 Surveillance and impression of surveillance by supervisors (including Sue [actually, Sal] Albam and Barbara Terry) in lobby of the Hotel during the election 5 Surveillance and impression of surveillance of employees' Union activities by supervisors in the parking lot and in front of the Hotel during the three weeks prior to the election 9 Surveillance and disparate treatment of Union Committee members including Collin Gobanez and Alice Grant, by supervisors during the day of the election 10 Misleading and threatening statements to em- ployees by supervisors including Beth Mazuroslu during the day of election that they could not vote in the election On the entire record, including my observation of the witnesses and the briefs received from the parties, I make the following FINDINGS OF FACT I JURISDICTION Respondent operates a hotel in Bridgeport, Connecti- cut, under the name Day's Inn Bridgeport (the facility) During the first 7 months of 1987, Respondent's gross revenue for rental of rooms at the facility was approxi- mately $1 5 million Respondent purchased linens for the hotel, valued at approximately $18,000, directly from a supplier located in New York I therefore find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Old Capital Inn, 227 NLRB 1323 (1977), Golden Nugget Motel, 235 NLRB 1348 (1978) II LABOR ORGANIZATION STATUS Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act III BACKGROUND Approximate number of eligible voters-68 Votes cast for Petitioner-22 Votes cast against Petitioner-37 Undetermined challenged ballots-15 The facility involved herein had previously been oper- ated as a Holiday Inn and subsequently as a Sheraton Hotel, the Union represented its employees during both of these periods During its operation as a Sheraton DAYS INN MANAGEMENT CO 739 Hotel, the facility suffered from major financial difficul- ties and closed on October 31, 1985, the hotel reopened as a Days Inn, operated by Respondent on February 10, 1986, with many of the same employees previously em- ployed at the facility As stated, supra, at the election conducted on February 25, the Union failed to receive a majonty of the votes cast and filed timely objections, which have been consolidated with the unfair labor prac- tices alleged herein IV THE SKIT PERFORMED ON OR ABOUT DECEMBER 12, 1986 The parties stipulated that the following is a skit per- formed by Respondent for its employees Establish set, then there will be questions and an- swers The roles will be played by a Days Inn rep- resentative and a union representative) INTRODUCTION, 1 Set One table, two chairs, representative from Days Inn and representative from union Each will have a badge indicating their capacities 2 Documents The documents exchanged at the meeting will be handed out to the employees Those docu- ments will probably be as follows Wage-and-Hour survey, Fnnge benefits survey, Excerpts from handbook, (gnevances and dis- ciplinary procedures) Check-off procedure, (obtain that from existing contract in file) 3 Individuals can hand out these documents DIALOGUE "D" Will stand for the Days Inn representa- tive "U" will stand for the Umon representative D It is appropriate to first set the schedule of the meetings Normally, collective bargaining ne- gotiations take many, many months to resolve and reach a final agreement It is suggested that we set up the next five (5) meetings and they should be two weeks apart Is that agreeable with you? U Yes D Our proposal is the language contained in the handbook Here is the handbook (Give the handbook to union) U Our proposal is very simple We want the following (1) Check-off provisions, (2) A grievance procedure, (3) Disciplmary offenses fair to all employees, and (4) Across the board wage increases of 5% D Let us consider your proposal and we will talk about them at the next meeting SET An individual assisting with negotiations will have a placard that states two weeks have passed D We have considered your proposals and have several questions The first question is what do you mean by "check-off?" U The language we intend to use is on this sheet of paper SET Hand out the sheet of paper to all people at meeting D What does this mean—"check-off?" U It means that you will deduct from the em- ployees' wages every month the union dues and pay them over to us D Does each employee have to join the union even if they don't want to and pay dues? U Yes The law of this state requires it D How much are the union dues? U $170 per month, $204 per year, or about $1 0 per hour D Does the employee have to pay any more? U Yes They have to pay a $65 00 initiation fee D Why don't you simply collect the money yourselves? Why should we have the extra ex- pense of handling your accounting for you? U It makes it easier for us since sometimes some employees refuse to pay or are slow in paying and there is less accounting for us D What if the employee fails to pay the dues? U You may have to fire that employee D Very well, we will consider this, but let's move on to the next topic which is your demand to fairly treat the employees when it comes to discipline We believe that the disciplinary proce- dure set forth in our handbook does ensure that each employee is treated fairly Here is a copy of the page which outlines the offenses for which discipline may be necessary (Hand out Attach- ment No 2) U Fine This appears fair I believe we can agree to this and incorporate it in the union con- tract U It looks like the time for this meeting is up go we will meet again in two weeks to continue negotiations SET Walk across with a placard indicating that two weeks have passed D We left off with your demand for a fair dis- ciplinary procedure at which time you agreed to accept our language as set forth in our handbook D The next point is a grievance procedure U That is correct We want a grievance pro- cedure to protect our employees against your unfair use of the disciplinary procedure D What about this language? SET Hand out the language to all people at the meeting (Attachment No 3) 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD U This language looks fine, except there needs to be a meeting with the union representative D In other words, you are saying the language is acceptable as stated on this sheet of paper that is in our handbook with some changes U Yes D Very well, we can agree on the disciplinary procedure and on the grievances procedures which are the same ag we have m our existing handbook SET Walk across with a placard indicating two weeks have passed D Your demand is for a 5% increase m wages across the board Are you familiar with the wages and fringe benefits bemg paid by other comparable hotels in this area? SET Hand out the wage and benefit surveys to all people at the meeting (Attachment No 4) U I don't care what others are being paid—we want the 5% across the board increase D Sorry, but we believe we are competitive in the marketplace in wages and in fringe benefits and we are willing to pay no more money or give any other fringe benefits at this time We do review the employees every six (6) months and based on their performances do give mcreases We have done this in the past and have shown good faith in doing so and will continue to do so m the future U This is unacceptable to us We want an im- mediate increase or we are at an impasse and will call a strike D Very well You will have to call a strike Do you know how long it will take you to make up a $10 per hour increase if you are on strike for four (4) weeks? Of course, Days Inn will not be paying employees during the strike U No, how long? D Here is the chart that will explain this SET Hand out the chart to all employees at the meeting (Attachment No 5) D You know of course that if you go on strike we will continue operatmg This may mean that some of the existing employees who go on strike will be replaced and may have no rights for reinstatement as long as their replacement is still working for Days Inn U Yes, I understand this and it is a chance the union is willing to take D Very well, It appears there is nothing fur- ther for us to discuss at this time be are always willing to meet at any time and we only hope you will listen to reason The complaint alleges that, by this skit Respondent violated Section 8(a)(1) of the Act because it "depicted the employer's intransigence in negotiations by refusmg ,all of the Union's demands during the course of negotia- tions and by depicting a strike, informed its employees that it would be futile for them to select the Union ag their bargaining representative" Respondent contends that the skit does not violate the Act because it shows Respondent bargaining in good faith and reaching agree- ment on a number of issues and, secondarily, that the skit represents campaign propaganda protected by Section 8(c) of the Act I agree with counsel for Respondent A review of the skit establishes that the Company agreed to consider a check-off provision, and the Union, basically, agreed to the disciplinary procedure and grievance pro- cedure contained in the Company's existing handbook the only disagreement was on wages the Union wanted a 5-percent across-the-board increase, while the Compa- ny was not willing to give anything "at this time" be- cause they felt that their wages were competitive The Umon's response was that without an increase, there would be an impasse and an immediate strike The Com- pany's response was that they would continue operating and some of the employees may be permanently re- placed, but that "we are always willing to meet at any time and we only hope you will listen to reason" The employees attending this skit understood that it was a brief encapsulation of a process that could take months or, even, years Additionally, the skit did not mtimate that Respondent would force a stnke or that a strike was an inevitable result of unionization Central Broadcast Co, 280 NLRB 501 (1986), Bay State Ambulance Rental, 280 NLRB 1079 (1986) Rather, in an all too abbreviated way it summarized the bargaining process and the dis- cussion of a few issues attendant thereto As the Board stated m Clark Equipment Go, 278 NLRB 498, 500 (1986) The statements on which the judge relied accurate- ly reflect the obligations and possibilities of the bar- gaming process They do not contain any threats that the Respondent will not bargain in good faith, or that only regressive proposals will result We conclude that the Respondent has not impliedly or otherwise threatened that it will bargain regressive- ly or take away benefits should the Union win the election The leaflets contain permissible campaign materials within the protection of Section 8(c), and we, accordingly, dismiss this allegation See also Establishment Industries, 284 NLRB 121 (1987) I therefore recommend that this allegation be dis- missed V ALLEGED THREATS OF TERMINATION BY ROGERS This allegation is that in about November and Decem- ber 1986, Respondent, by Catherine Rogers, the general manager at the facility, threatened employees with termi- nation, or other reprisals, if they joined or supported the Union, m violation of Section 8(a)(1) of the Act Gloria Green-Bish, who was employed by Respondent as a maid, testified that in about November, she and fellow employees Mazel Dwyer, Jovann (last name unknown), and others were preparing to have lunch in the break- room at the facility, when she overheard Rogers speak- ing to one of the other maids in the room, saying that they had good benefits and they did not need a union, and that any employee talking to anybody from the Union could be fired In a four page affidavit Green-Bish gave to the Board on March 25, she made no mention of DAYS INN MANAGEMENT CO 741 this meeting or this threat Dwyer, who was employed at the facility in the laundry department, testified that at a meeting in the room at the facility where the employees ate, with Green-Bish and some other employees present, Rogers told them that they would do better without the Union, and she did not want the employees to be in- volved with the Umon, that if she learned of employees who were involved with the Umon, they would be fired In the initial four-page affidavit Dwyer gave to the Board on March 24, this threat is not mentioned She tes- tified that it is not included because she did not have enough time on that occasion to inform the Board Agent of all the incidents, so she had an appointment set up for a subsequent affidavit This second affidavit is dated in September 1988 and, apparently, does include the threat Rogers testified that she never told Dwyer, Green-Bish, or any other employee that they would be terminated, disciplined, or be discnmmated against in any manner be- cause of their support for the Union Rogers was the principal witness in this proceeding and she spent a sub- stantial time on the stand, I generally found her to be a direct and credible witness I found Green-Bish fairly credible, and Dwyer fairly hostile in responses to the questions of counsel for Respondent What I find most damaging to this allegation is that neither of the support- ing witnesses referred to this incident in the ongmal affi- davits taken by Board agents Dwyer did not refer to this alleged threat until a subsequent affidavit, apparent- ly, taken in preparation for trial This, together with the fact that I found Rogers to be a fairly credible witness, convinces me that this allegation should be dismissed, and I so recommend VI SURVEILLANCE OF UNION MEETINGS IN FEBRUARY As stated, supra, an election was conducted among Respondent's employees on February 25, on about every day for, at least, the prior month the Union had two of its representatives on the street outside the facility to meet with, and talk to the employees During at least a few of these days, Beth Mazuroslu, sales director, Simon Fermin, sales manager, and Sal Alban', chief engineer were present in the area The allegation is that Respond- ent, through these individuals, kept the Union's meetings with employees under surveillance in violation of Section 8(a)(1) of the Act The facility is located on Lafayette Boulevard, a main thoroughfare in Bridgeport As you face the facility, on the right side is a large parking area for guests and em- ployees Separating this parking area and Lafayette Bou- levard is a sidewalk During the period in question, union representatives Martin Dunleavy and Susan Pettor- irn were at the facility on almost a daily basis Pettonm testified that during this period she was usually at the fa- cility 5 days a week between about 2 and 3 30 p m when the food and beverage employees changed shifts and at about 430 p m, when the housekeeping employees left work She generally parked her car to the right (as you face the facility) of the driveway leaving the parking area, next to a newspaper box that is on the sidewalk ad- jacent to the driveway She began doing this in about October 1986 and continued through- February 25 On about six occasions in February, she observed Mazuroslu standing on the sidewalk by the newspaper box (about 5 feet from Pettonm's car), on one occasion, she was read- ing a newspaper, it was very cold at the time On an- other occasion, Mazuroski parked her car in front of Pet- tormi's car, on the other occasions, she just watched Pet- tonm talking to the employees Dunleavy testified that he was present at the facility about 6 days a week during the penod in question, on these occasions, he parked his car on the street to the right of the driveway leading from the parking area at the facility Although he was there, at times, to speak to the food and beverage em- ployees, he was almost always there at 430 p m when the housekeeping employees left work At that time he attempted to speak to members of the Union's organizing committee, as well as other of Respondent's employees In about early to mid-February, shortly before 430 p m, he observed Mazuroslu come out of the hotel and stand on the sidewalk on the left hand side of the dnveway (the hotel side), Dunleavy's car was parked on the street on the right hand side of the driveway She stood there for about 10 minutes, crossed over the dnveway, brought a newspaper from the newspaper box and then returned to the left side of the driveway where she stood until about 4 30 p m when the housekeeping employees exited the facility Mazuroslu "nodded" to, and "ac- knowledged" the employees on that day When Dun- leavy left about 10 minutes later, she was still there On the following day, while it was snowing, Mazuroslu again came outside, purchased a newspaper from the newspaper box, and stood on the left side of the drive- way for a short time Fermin came out, gave her an um- brella and stood with her for a few minutes Mazuroslu and Fermin then left the sidewalk area and Mazuroslu drove out of the parking area and parked in front of the hotel while sitting in her car When Dunleavy drove away that day, Mazuroski was still there, sitting in her car A few days later, Mazuroslu came out of the facility, bought a newspaper from the newspaper box and stood next to the newspaper box, about 7 feet from where Dunleavy was standing next to his car When the em- ployees exited the facility, Mazuroslu "actively competed for the attention of the workers," saying hello and at- tempting to shake their hands and engage them in con- versation After all the employees departed, Mazuroslu returned to the facility On one other occasion, prior to February 25, Mazuroski bought a newspaper from the newspaper box and stood about 7 feet from his car When the employees came out of the facility, she at- tempted to engage them in conversation On or about the day before the election, Alban' came out of the facility at about 420 p m, stood on the sidewalk leaning against the parking area fence (just across from where Dun- leavy's car was parked) with arms folded, and watched as the employees exited the facility and approached Dun- leavy Employees also testified about the presence of Mazur- oslu, Fermin, and Albam outside the facility during Feb- ruary Ella Mae Reid, who is employed by Respondent as a maid, testified that on more than one occasion in February she saw Mazuroslu standing by the newspaper 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD box on the sidewalk adjacent to the driveway, about 8 feet from where Dunleavy's car was parked On one of these occasions, she was just standing there and on an- other she was standing, reading a newspaper Ruby Johnson, who is employed by Respondent as a maid, tes- tified that for the period prior to the election, she used to meet Pettonm at 4 30 p m outside the facility She gen- erally met her about 5 or 10 feet from where the news- paper box was located In early February, she observed Mazuroslu in the area on two or three occasions, "just standing there" by the newspaper box During the same period she saw Fermin, on two or three occasions, and Albani, on one or two occasions, standing near the news- paper box Dedra Rhodes, who is employed by Respond- ent as a housekeeper, testified that she met with Pettonm and Dunleavy on almost a daily basis outside the facility from about December until the day of the election She met them ear the newspaper box She saw Albani leaning against the fence facing the street on two or three occa- sions, a week or two prior to the election She saw Ma- zuroslu and Fermin together on two or three occasions, also about a week before the election, Mazuroski was leaning on the newspaper box reading a newspaper while Fermin was standing next to the newspaper box Victor Ramos, who is employed at the facility as a waiter, testi- fied that dunng the winter preceding the election, he met with Pettonni and Dunleavy two or three times a week in front of the facility On one occasion, about 2 or 3 weeks before the election, he saw Mazuroski standing by the newspaper box reading a newspaper In addition to these employees witnesses called by General Counsel, counsel for Respondent called a number of employee witnesses who testified to their objections to the persist- ence of the union organizers, some of these employees complained to Rogers about this persistent activity Mazuroslu testified that from about December 1986 through the time of the election, she observed Dunleavy and Pettonm speaking to employees in the area in front of the facility, either in their cars or adjacent to their cars Their cars were parked on either side of the dnve- way, at times She testified that on some occasions, toward the end of the union campaign, when Dunleavy or Pettonni, or both were present, she went outside to the area—"to show a friendly face just to let them know that I was there just to support them" On those occasions, she stood on the sidewalk by the news- paper stand and simply said goodbye to the employees or, "I'll see you in the morning" She did not attempt to engage the employees in conversation 2 She made the determination to do this on her own, although she later informed Rogers of it On about five occasions, Fermin went outside with her and engaged in the same activity Fermin testified that on three or four occasions, he went to the front of the facility with Mazuroslu—to show sup- port from management for the employees" He simply said, "good-bye, see you tomorrow, how was the day," to the employees—nothing further He did not speak to 2 In an affidavit that Mazuroski gave to counsel for Respondent, she stated that she was there to say good evening to the employees and to answer any questions they might have about company policy But, she testified, no employee ever asked her about it the union organizers He and Mazuroski were on the left side of the driveway (as you face the hotel) looking down the sidewalk away from the hotel, where the union organizers were, about 20 feet away Alban' testi- fied that the only occasion when he was in front of the hotel at the same time as the Union organizers was on the day before the election, on that day, at about 4 30 p m, he was in front of the hotel waiting for somebody to pick him up to drive him to get his car At that time, he saw two men whom, he testified, at the time, he did not know were union organizers, waving to employees to talk to them Shortly thereafter, the union people left The evidence therefore establishes that on four or five occasions in the weeks preceding the election, Mazuroski and Fermin (admitted agents of the Respondent) stood on public property near union agents (who were also on public property) at a tune when they knew that the union agents would be soliciting, and speaking to, em- ployees Their purpose, whether "to show a fnendly face" or "to show support" is irrelevant to the ultimate determination, they were about 10 feet away at times that the union organizers were talking to employees Alban' was present in the area on one occasion during this period, I discredit his testimony that he did not know what was going on and did not even know that the individuals involved were union representatives The union representatives had been stationed in front of the facility for months prior to the day in question, Alban' testified that, as building engineer there were times that he would be working in the area I find it hard to believe that prior to February 24, he was not aware of the fact that the Union was soliciting employees in front of the facility I find that this activity does not violate Section 8(a)(1) of the Act The objectionable conduct herein is the pres- ence—the mere presence—of Mazuroslu, Fermin, and Albam close to the union representatives while they were soliciting employees' support The Board cases find that observation alone (absent note taking or picture taking or the like) does not violate the Act In Hoschton Garment Co, 279 NLRB 565, 566 (1986), the Board found the surveillance unlawful, but stated In affirming the judge's finding of unlawful surveil- lance of employee union activity at entrance C, we emphasize that Lord did not merely observe union activity, but rather attempted to prohibit Adler from distributing handbills to employees on public property, and that Lord stood very close to Adler from the duration of the handbillmg The Board then cited Woodland Molded Plastics Corp, 250 NLRB 169 (1980), stating "However, Woodland is inconsistent with numerous unfair labor practice cases holding that an employer's mere observation of open, public union activity on or near its property does not constitute unlawful surveillance" Finally, the Board stated "[U]mon representatives and employees who choose to engage openly in their union activities at an employer's premises should have no cause to complain that management observes them" The Board repeated this language in finding no violation in Chemtronics, Inc , DAYS INN MANAGEMENT CO 743 236 NLRB 178 (1978) and Emenee Accessories, 267 NLRB 1344 (1983) Reeves Southeastern Corp, 256 NLRB 574 (1981) and Gainesville Mfg Co, 271 NLRB 1186 (1984) also in- volved more than mere surveillance in an area adjacent to the company's property In Reeves, there were threats and other attempts to inhibit the card solicitation, other than the surveillance, in Gainesville, the company unlaw- fully attempted to prohibit the handbillmg, as well as en- gaging in surveillance of it As the instant matter in- volves solely the surveillance of the Union's solicitation adjacent to Respondent's property, I am constrained to recommend that this allegation be dismissed VII ALLEGED THREAT BY MAZUROSKI TO LOWER WAGES IF EMPLOYEES VOTED FOR UNION This allegation is supported solely by the testimony of Sharon Sorgenti who was employed by Respondent as a housekeeper She testified that on the day of the elec- tion—February 25—between 10 30 and 11 00 a m, while she was cleanmg a room, Mazuroslu stuck her head in the room and they had a discussion Mazuroski told her that if the Union won the election (which began at 11 a m), their wages would be dropped to the minimum wage and that she (Mazuroski) was votmg no for the Union Mazuroslu also told her that her father had a hard time with unions Sorgenti later repeated this con- versation to a couple of her fellow workers Mazuroslu testified that she spoke to employees about unions, but "only in terms of generalizations" She referred to her parents' experience with unions She never spoke about the instant campaign and never told any employee that if the Union won the election, their wages would be reduced to minimum wage She testified that Sorgenti asked her if there would be a reduction in wages if the Union won the election She told Sorgenti that if the Union won the election, the parties would have to bar- gain and this could result in higher or lower wages and benefits Respondent and the Union "each would be trying to cut their own deal that was better for them" I would credit the testimony of Sorgenti over that of Mazuroslu, she appeared to be attempting to testify in a truthful manner even though almost 2 years had passed since the incident in question had occurred In addition, as argued by General Counsel in his brief, Sorgenti is not alleged as a discnnunatee in the complaint and therefore hag nothing to gain from this proceeding On the other hand, I found Mazuroslu a less then credible witness, es- pecially regarding the surveillance allegation discussed, supra I therefore find that Mazuroski told Sorgenti that if the Umon won the election, their wages would be re- duced to minimum wages This is a coercive threat in re- taliation of employees' union activities in violation of Section 8(a)(1) of the Act Propellex Corp, 254 NLRB 839 (1981) VIII ALLEGED RESTRICTION ON MOVEMENTS OF EMPLOYEES TO LIMIT UNION ACTIVITIES This allegation is supported solely by the testimony of Collm Gubanez He was employed by Respondent as a cook from November 1986 through July He was super- vised by the executive chef, who was originally Ed Reagan In about January, Stephen O'Donnell became the executive chef O'Donnell gave him his work assign- ments and scheduled his hours, if he wanted time off, he asked O'Donnell O'Donnell testified, "I was in charge of all kitchen employees"—which, at the time, was about 10 employees He directly supervised, and had the au- thority to hire employees He had an office in which he spent about 30 percent of his time on paperwork, he had no assistant Clearly, O'Donnell was a supervisor within the meaning of Section 2(11) of the Act This allegation involves restrictions placed upon Gu- banez' movements by O'Donnell on February 25, the day of the election Gubanez, was a member of the Union's organizing committee and was one of six em- ployees whose picture was on a leaflet stating, "We're Voting Yes, because," which was distributed at the facili- ty He testified that he worked from 8 am to 4 p m On February 25, at 9 a m, he left the kitchen to go to the men's room and the lobby About a half hour later, he again left the kitchen to purchase cigarettes in the lobby He testified "As long as it was for a brief time, there was no problem It was just your own discretion" Short- ly after he returned to the kitchen, O'Donnell ap- proached him and said that he had "a problem" with Gubanez leaving the kitchen and that, in the future, if he "had reason to leave the kitchen, that I was to speak with him before I did so" Previously, he had not been required to inform O'Donnell before leaving the kitchen Gubanez' assignment that day was to prepare the cold platters for the buffet, which began at about 11 30 a m, he was not certain whether another employee was assist- ing him that day Each day, he had two 15-minute breaks (one in the morning and one in the afternoon) and a 30-minute lunch break O'Donnell (who is no longer employed by Respond- ent) testified that, at the time, he was short of qualified staff in the kitchen, which necessitated him spending a lot of time in the kitchen, performing a lot of regular duties in addition to closely supervising the employees He was responsible for being sure that the employees took their breaks "and I was to know when they were going on break so that the kitchen would still be cov- ered" Other than for their breaks, employees never asked his permission to leave the area "I would not have granted it" On the day of the election, O'Donnell gave the kitchen employees a third break so that they would not have to use one of their breaks to vote, this made manning the kitchen even tighter "I needed to supervise the kitchen more closely because I had less people there to do the work" On that day he learned that Gubanez had left the kitchen at times other than his break, he asked Gubanez where he had been and Gubanez said that he made a telephone call O'Donnell told him that if had to make and other phone calls, he should either tell O'Donnell or wait until his next scheduled break to do so He testified that this was the first time he told Gu- banez not to leave the kitchen without his prior permis- sion and that he told him this because "He was supposed to be working and he wasn't It was my responsibility to see that he was working and accomplishing his job" 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This allegation is that O'Donnell restncted Gubanez' movements to prevent him from engaging in union ac- tivities Supporting this allegation is that Gubanez was one of six members of the Union's organizing committee who was featured on the leaflet distributed throughout the facility and the fact that the restriction occurred on the morning of the election On the other hand, I found O'Donnell's testimony to be quite reasonable and very credible, the kitchen was generally short staffed, but be- cause they gave the employees an extra break that day to vote, the shortage was even worse Gubanez, on that day, was the only employee prepanng the cold buffet, which had to be ready by 11 30 a m He was absent from the kitchen on, at least one more time than he was sup- posed to be (it is not clear from the record whether his two absences included his morning break and it is not unreasonable, in this situation, for O'Donnell to tell Gu- banez that on the next occasion that he had to leave the kitchen outside of his break to let him know about it be- forehand It appears to me that if Respondent really wished to restnct their employees' union activities, they would have banned extra breaks entirely I therefore rec- ommend that this allegation be dismissed IX ALLEGED IMPRESSION OF SURVEILLANCE ON ELECTION DAY The election herein was conducted in a room on the second floor of the facility, to get to the voting area, the voters took the elevator from the lobby As will be discussed more fully, infra, approximately 6 weeks before the election, Respondent terminated about 20 employees, although no unfair labor practice charge was filed in this regard until March 6, Respondent antici- pated that, at least, some of the individuals would at- tempt to vote at the election In addition, about a week after these terminations, Rogers fired another employee for various reasons, at the time of his termination, he was "extremely vulgar" to Rogers When she later learned that he was going to attempt to vote at the election she became "concerned about him coming back on the prop- erty" Rogers testified that she spoke to a Board agent about her fears regarding this former employee and her desire to restrict access to the upstairs guest area of the facility to voters or potential voters and he agreed that Respondent could have a representative present in the lobby to escort potential voters to the elevator In this regard, she gave Albam a list of the employees who had been terminated and instructed him to meet them in the lobby and allow them to take the elevator to the second floor voting area Four employees—Steven Gatchell, Sorgenti, Isabel Coleman, and Carnce Campbell testified for General Counsel regarding this allegation They each testified in a similar way, with one exception Albam was in the front of the lobby, holding a clipboard with a list at- tached and when certain potential voters entered the lobby, he asked them their name and directed them to the elevator to the second floor Gatchell testified that when he told Albam his name, Albam crossed his name from the list he had on the clipboard Sorgenti was still employed on the date of the election, so she did not have to check with Albam prior to going to the voting area, however, she testified that she saw Alb= in the front of the facility "I saw a clipboard and I seen him checking off things" Coleman and Campbell had been termmated in January, they testified that when they told Albam their names, they observed him writing the word, "Yes" next to their names Campbell testified that Albani crossed her name off the list, in addition to writing "yes" next to her name At this point, he told Coleman and Campbell to go to the second floor to vote Albam testified that Rogers had told him to be in the lobby of the facility on the day of the election to direct employees to the elevator which they would take to the second floor to vote He had a list of employees who were terminated shortly prior to the election, he was to make sure that they went directly to the elevator when they entered the facility, at that point, a security guard directed them to the second floor He greeted each em- ployee, directed the employee to the elevator and crossed off some of the names He wrote nothing next to their names The uncontradicted evidence establishes that Alban' greeted the employees in question (the ones who had been terminated the prior month), took their names (at least) crossed the names off his list, as the individuals ap- peared, and directed the employees to the elevator to take to the second floor Campbell and Coleman also tes- tified that he wrote the word "yes" next to their names, Gotcball and Albam testified that he only crossed off the names, Sorgenti's testimony in this regard is uncertain Coleman and Campbell, as well as Albam, whom I did not credit in section VI, supra, all appeared to be fairly credible witnesses who were attempting, as best they could, to honestly recollect and recite events that oc- curred between 1-1/2 to 2 years earlier Albam is still employed by a related company, The Days Inn Hotel in Baltimore, Maryland, while Coleman and Campbell are alleged as discnmmatees in the complaint and stand to gain if General Counsel predominates in this action With such a "close call" on credibility, I next look to probabil- ities for assistance Six weeks earlier, Respondent had terminated approximately 20 employees in the midst of the union campaign, it does not require the services of a labor relations expert to conclude that a large majority of these individuals, if given an opportunity to vote, - would vote in favor of the Union With this in mind, I can see no reason why Alban' would write "yes" next to the names of the individuals whom he had directed to the elevator and whose names he had crossed off I therefore find that Albam simply crossed off the names of the individuals who appeared at the facility on the day of the election Respondent had a valid reason for checking on the individuals as they went upstairs to vote—the security of the facility When Albam crossed off the employee's name, the employees could not rea- sonably assume that their union activities had been placed under surveillance South Shore Hospital, 229 NLRB 363 (1977) I therefore recommend that this alle- gation be dismissed 3 3 For the reasons stated above, my determination would be the same even if Alban' had written "yes" next to the names of some, or all, of the individuals DAYS INN MANAGEMENT CO 745 X JANUARY? TERMINATIONS The complaint next alleges that on or about January 7, Respondent permanently laid off 18 named employees in violation of Section 8(a)(1)(3) of the Act Rogers testified that 22, rather than 18 employees, were terminated at that time The General Counsel's theory of this allega- tion is not that Respondent chose the umon activists for discharge at that time, he admits that in fact, it did not Rather, the General Counsel alleges, that these termina- tions "were intended to send a message to the employ- ees, that the Union could not protect their jobs, that their livelihood depended entirely on Respondent" Re- spondent alleges that the terminations were motivated solely by economic reasons, the hotel's occupancy rate and average daily rate (ADR) were down, while the labor cost per occupied room was up Respondent, in as brief, challenges the General Coun- sel's theory of this allegation The Board and court cases clearly support the General Counsel's theory As the Board stated in Arnoldware, Inc , 129 NLRB 229, 230 (1960) As Respondent's objective in ,effecting the close- down was illegal, it is unmatenal that in carrying out this objective, some of the victims of Respond- ent's discrimination may not have been union em- ployees or that Respondent had no knowledge of their union membership and activities Discrimina- tion in regard to hire or tenure of employment of a group of employees, including nonunion employees of the group or union members not known by the employer to be union members, tends to discourage union membership and activities no less than dis- crimination against known union members alone All victims of discrimination are in such cases enti- tled to the same relief under the Act as are known union members In Rock Tenn Go, 234 NLRB 823, 825 (1978), the Board stated Where a layoff such as here is for the purpose of discouraging union membership and activities in general and is not necessarily directed at the activi- ties of particular individuals, all victims of such a layoff are entitled to the game treatment and relief without regard to the extent of the union activities Webber American, Inc , 194 NLRB 692, 697 (1971) stated "It is well established that it is not necessary to show that the employer knew that those he laid off had signed union authorization cards I agree with the Gener- al Counsel that a 'show of force' designed to discourage umon activities is sufficient to violate Section 8(a)(3) of the Act In Majestic Molded Products v NLRB, 330 F 2d 603 (2d Cir 1964), the Court stated at 606 "A power display in the form of a mass lay-off, where it is demon- strated that a significant motive and a desired effect were to 'discourage membership in any labor organization,' satisfies the requirements of § 8(a)(3) to the letter even if some white sheep suffer along with the black" The issue therefore is whether the General Counsel has established that a significant motive and a desired effect of the Janu- ary 7 terminations wag to discourage the employees' union activity and support In Wright Line, 251 NLRB 1083 (1980), the Board set forth the rule to be applied in discrimination cases such as the instant matter "First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's decision Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct" Tailoring Wright Line to the instant matter, the initial question is whether the General Counsel has made a prima facie showing that the upcoming election, and the employees' activities on behalf of the Union, was a "mo- tivating factor" in the January 7 terminations If that is proven, it is then Respondent's burden to demonstrate that the same number of employees would have been ter- minated on January 7 even absent the union organiza- tional activity at the facility Without question, the General Counsel has satisfied his initial burden Timing—the terminations occurred in the midst of the union campaign about 7 weeks prior to the election Size—this was the largest termination Respond- ent ever undertook, representing about 25 percent of its workforce Suddenness—the employees were given no warning of the upcoming terminations The ultimate question therefore is whether Respondent has satisfied its burden by establishing that these people would have been terminated on January 7 even absent the union campaign By letter dated January 7, Respondent gave (or sent) the following letter to the affected employees As you may or may not be aware, we are experi- encing a period of very low occupancy As is stand- ard in this industry, In order to maintain a profita- ble business, it is sometimes necessary to reduce the workforce on the property As much as I regret, it is necessary to tell you that of today's date, you are permanently laid off due to the low occupancy and lack of work here at Days Inn Bndgeport Our property forecast showed that this was a necessity back in the early days of December Due to the Holiday Season, however, I refrained from taking these necessary steps as long as possible At your convenience, would you be so kind as to bring in any uniforms you may have I with you the best in any future endeavor you pursue The decision as to who would be terminated, and when, was made solely by Rogers Rogers testified that, whenever possible, she chose part-timers for these Janu- ary 7 terminations in order to minimize the impact of the terminations In addition, she took into consideration se- niority and discipline difficulties in determining who to terminate Rogers testified that the terminations were based solely on economics The facihty was doing poorly, and even worse than they had projected Al- though this was evident for a number of months prior to 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD January, she waited until January to effectuate the termi- nations so they would not occur during the holidays The percentage of occupancy, pretax income and ADR4 for the facility from its first month of operation (Febru- ary 1986) through December 1986, follow 1986 Percentage of Occupancy Pre-Tax Loss (or Income) ADR February 26 $125,000 $43 March 36 0 42 April 43 0 52 May 53 62,000 48 June 58 23,000 42 July 62 131,000 48 August 65 7,000 49 September 71 56,000 profit 48 October 73 159,000 46 November 62 34,000 46 December 38 96,000 54 During the first 6 days of January, the percentage of occupancy ranged from 15 percent to 36 percent, the ADR was about $58 for this penod The percentage of occupancy for January, February and March was 42 per- cent, 57 percent, and 56 percent The ADR for these months were $53, $52, and $52 The evidence establishes that labor costs and mortgage payments are the two most crucial expense concerns in the hotel industry Mortgage payments are fixed and therefore do not concern me, however, Respondent in- troduced evidence here about its high labor costs prior to January 7 In 1986, its labor costs per occupied room ranged from about $12 (in March 1986) to about $36 (in April) In December 1986, It was about $25, the average for the year was $19 22 The labor cost per occupied room for the year 1987 was $15 43, for 1988, it was $18 91 Labor cost as a percentage of revenue was 36 percent m 1986 and 30 percent in 1987 Respondent in- troduced evidence of the employees per room ratio at eight other city hotels Days Inn operates compared to the facility With the exception of one (the Washington Days Inn) each of these hotels has between 200 and 300 rooms, The facility has 239 rooms One of these eight hotels—the Minneapolis Days Inn—had a comparable employees per room rate, in the other seven, the employ- ees per room ratio was always higher at the facility The percentage ranging from a low of 10 to 20 percent higher to a high of 50 to 60 percent higher Rogers testified that after the January 7 terminations, no employees were hired or rehired until early February, between that time and early March, three housekeepers who were terminated on January 7 were "brought back" to employment at the facility In addition, during this period Respondent hired new employees for the front desk to replace employees who had left during this period On March 18, she hired two employees for the restaurant and on March 26, she hired five "seasonal" ADR is the average price paid per customer per room for a period Rates range from rack rate (The full rate you are quoted, when you call or arrive at the hotel) to low group or corporate rates employees for housekeeping The General Counsel intro- duced into evidence a newspaper ad from a local paper dated March 9, the ad was by Respondent and stated that it was "now looking to fill the following positions," which included almost all job classifications including utility workers, but did not refer to housekeeping em- ployees The ad stated that full or part-time positions were available and people should apply at the facility Rogers testified that he was away on vacation at the time this advertisement appeared, the ad was placed by a new assistant manager, without her authority, for which she was verbally reprimanded No employee was hired based upon this ad The timing of these terminations is, of course, an im- portant factor here, Respondent commenced operation of the facility in February 1986 with none of the records of the Holiday Inn or the Sheraton regardmg percentage of occupancy, ADR or any employment figures Rogers testified that in January 1988, Respondent terminated only about 5 or 6 employees as compared to about 22 in January 1987 She explains the difference as follows from February until September 1986, the housekeeping operation was being run by Guardian Maintenance, rather than Respondent, when Respondent took over this operation m September 1986 and hired the housekeeping employees, many of them were entitled to 4 weeks' vaca- tions and had to take this time, and did so, prior to the end of the hear Respondent therefore had no "cushion" in January 1987 This taught Respondent a lesson and, the following year, they requested, and were able to con- vince, a number of the housekeeping employees to delay their vacations until December, January, or February, thereby having fewer employees present during this period, and necessitating fewer terminations Rogers testified that the principal factors causing the January 7 termination were the low percentage of occu- pancy m December (38 percent) plus her forecasts for the next few months and the upcoming opening of a Hilton Hotel nearby As regards the Hilton Hotel, Rogers testified that, in her experience, when a new hotel opens, they offer special rates to build up their ini- tial business, although it was possible that in the long run, the facility would not be hurt by the Hilton (as, sometimes, new hotels bring additional business to an area) during its initial period of business the facility would suffer In an effort to counter Respondent's evidence that the terminations were the result of a labor force that was too high when compared to the facility's percentage of occu- pancy, the General Counsel adduced testimony from housekeeping employees to establish that after the termi- nations, the workload was too much for the remaining employees Since Respondent commenced operating the facility, each housekeeper was normally expected to clean 16 rooms per shift Housekeeper Wanda Mmcy tes- tified that, after the January 7 terminations, Barbara Terry, Respondent's assistant housekeeper, asked her if she wanted to clean extra rooms for $2 a room, she had never previously made such an offer Additionally, after these terminations, there was a backlog of laundry to be done Sorgenti testified that during January, she worked DAYS INN MANAGEMENT CO 747 overtime, the first and second week, about 8 hours each week and the third week of the month, about 16 hours 5 Ella Mae Reid also testified that prior to the terminations sile was never asked to clean extra rooms, after the ter- minations, there were "a lot of rooms left over dirty rooms Not enough maids to cover" Rogers asked her and Ruby Johnson if they wanted to work overtime cleaning extra rooms, but she never did so Johnson (a witness called by the General Counsel) testified that since the facility has been operated by the Holiday Inn, the housekeeping employees have been allowed to "buy rooms" for half of their hourly pay rate This practice has been in effect since Respondent commenced operat- ing the facility in 1986 Alice Grant, assistant housekeep- er, who was called as a witness by the General Counsel, testified that sometime after the terminations, in January or February, there was a storm in the area and the facili- ty was full After the storm, there were not enough housekeeping employees to clean the rooms, so about 100 rooms were placed "out of order" Over the next month, all these rooms were cleaned and were back in order Some housekeepers did these rooms as part of their 16 rooms assigned, others "bought" some of these rooms and were paid extra for cleaning them Grant did not work overtime during this period Barbara Terry, also an assistant housekeeper for Re- spondent, testified that when Respondent took over housekeeping from Guardian Maintenance she was the executive housekeeper, in that position, she assisted, when necessary, in making beds or doing laundry In December 1986, the departments was "not very busy", in January and February, the department was slow Some- time in January, a storm resulted in a full house which caused some rooms to be put "out of commission", al- though she could not recollect how many rooms were involved, it took about a week to clean them and make them available Respondent introduced into evidence its payroll records from January 7 through February 25, these records establish that during this 8-week period, there were 47 instances of housekeeping employees working in excess of 40 hours for any of these weeks This overtime totalled 113 hours over these 8 weeks, for an average of 2-1/2 hours per instance These records also establish that the number of full-time housekeepers (excluding Barbara Terry, the executive housekeeper) who actually worked during this 8-week penod ranged from 14 (the week of January 7) to 17 (the week of Feb- ruary 18, the average number of hours worked by these full-time housekeepers (again, who actually worked) for this 8-week period beginning January 7 and concluding on February 25 is as follows 30, 35, 34, 36, 40, 40, 38, and 38 Gotchall testified that on January 7, he was told to go to Rogers' office and she told him that he was going to be laid off She said that because of the Hilton Hotel which would soon open nearby, Respondent was going to lay off employees He asked her whether any of the 6 Respondent's payroll records for the 8 week period from January 7 through February 25 state that the average number of hours worked by Sorgenti, per week, during this period was 25, she worked a total of 10 hours overtime during this 8-week period employees would be recalled and Rogers said no, that it was a permanent layoff 6 Gotchall asked for a layoff slip and Rogers said that they do not give layoff slips Over the next 2 months, Gotchall called Rogers and asked if any positions were available, and, each time, she said that none were available Two additional issues should be mentioned Counsel for Respondent, in his opening statement, refers to the Tax Reform Act of 1986 (which he states took effect on January 1) as one of Respondent's defenses, and had a member of a noted accounting firm testify in support of this defense Basically, prior to the enactment of this stat- ute, individuals invested in hotels as tax shelters because they could write off any losses the hotel incurred (which, according to counsel for Respondent, is not un- usual) against other income they had Counsel stated that the Tax Reform Act of 1986 prohibited this and "encour- aged every owner of real estate to start investing and managing those businesses for a net profit because every owner lost the tax advantages that they heretofore had " I reject this defense, it appears to me that Re- spondent (or any other employer) attempts to operate his business in the most efficient manner possible whether or not he can deduct losses It appears highly unlikely to me that in deciding whether to terminate almost 25 per- cent of its work force, Respondent considered the fact that if they kept these individuals in their employ, they would no longer be allowed to deduct these losses from other earnings Counsel for Respondent, also in his open- ing statement, denounced the General Counsel's allega- tion of union anunus on the part of Respondent as "the silliest argument in the world" alleging that whether the facility "was union or non-union doesn't matter" Coun- sel argued further that Respondent has umomzed hotels around the country, and that if Respondent wanted to have a nonunion operation in February 1986, when it commenced operations at the hotel after a 3-month hiatus, why would it hire an overwhelming majority of the employees who had been employed at the facility by Sheraton" To counteract this argument, the General Counsel called Daniel Wolfe, who was one of the owners of the facility when the facility was operated as the Sheraton Hotel and Henry Tamann, secretary-treas- urer of the Union Their uncontradicted and credible' testimony establishes that m January or February 1985 (at a time when Wolfe and his partner were operating and actively attempting to sell the facility) Wolfe was contacted by representatives of Respondent who asked, inter aim, what he thought of disenfranchising the Union and "aborting" the union contract Wolfe contacted Ta- mann, on their behalf, and Tamann then met with these 6 There was some testimony regarding Respondent's practice of only utilizing permanent terminations, rather than layoffs to effect payroll re- ductions, even if some of the employees who were "permanently termi- nated" are returned to employment a month or two later, as happened in the Instant matter The alleged reason for this procedure is that It is cheaper for Respondent than to layoff employees and then, possibly, to reinstate them I find It unnecessary to make a credibility regarding this issue as I believe it has no bearing on this 8(a)(3) allegation 7 Although Wolfe often rambled on in his testimony and was often hostile-to questions from counsel for Respondent, he was clearly a credi- ble witness with nothing to gain from this proceeding 748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD representatives of Respondent, who told Tamarm that they would not purchase the facility unless they could work out a contract with the Union in advance They8 gave Tamann the draft of a proposed agreement they had prepared dated February 21, 1985 After studying the proposed 5-year agreement, Tamann told them that It was totally unacceptable regarding wages, working conditions, and job security, to name a few areas He said that the Umon recognized the hotels financial diffi- culty and was willing to make some modifications in the agreement, "but that m my view what they were doing is not just taking off some of the fat, but stripping away the skeleton and that the union could not agree to that kind of an agreement" The representatives of Respond- ent indicated that without changes along the line of those presented in the draft agreement, they would not be in- terested in the property That was the extent of their dis- cussions and Respondent did not purchase the property at that time There was also testimony by Andrew DiPietro Jr, a partner in a law firm, who was counsel to Friend & Wolfe, the operator of the Sheraton, in the chapter XI bankruptcy proceeding He testified that in an attempt to locate a purchaser for the facility to negotiate a plan of reorganization under chapter XI, he met with an attor- ney for Respondent in February 1985 in New York City The attorney expressed concern about the cost of the agreement that Sheraton had with the Union, DiPietro told him that since it was a postpetition contract, it was not subject to the automatic stay of chapter XI, and would have to be dealt with On February 24, 1985, the attorney for Respondent called him and told him that the "package" for the property (including the purchase price—$1 1 million—and all the other items including labor costs) was too costly and that Respondent would not purchase the facility On October 31, 1985, Friend & Wolfe deeded the fa- cility to an assignee of Payne Bridgeport Associates, Re- spondent assumed control of the facility on the same day, initially through an ownership interest and subse- quently as the management company The facility was closed that same day and reopened on February 10, 1986 On the basis of all the evidence, I find that Respond- ent has sustained its burden under Wright Line that it would have terminated the employees on January 7 even absent the umon activity and campaign Foremost among my reasons for this finding is the scarcity of unfair labor practices during this period (only one minor violation), the lack of substantial evidence of animus by Respond- ent, and the fact that I found Rogers to be a direct and credible witness Also supporting this determination is that business at the facility was pretty bad, percentage of occupancy and the ADR were low while payroll per- centage was high Although the timing and the size of the January 7 termination are suspect, coming about 6 weeks before the election and comprising about 20 to 25 percent of the unit, this is satisfactorily answered by the fact that for the following 8 weeks, Respondent's house- ° At this time, counsel for Respondent was not yet representing Re- spondent Their representation commenced in about August 1986 keeping department was able to operate with little over- time and an average work week for the housekeeping de- partment employees of about 36 hours, and this, appar- ently, includes the hours necessary to restore the 100 "out of order" rooms This, therefore, is not a situation of an employer attempting to conceal an unlawful termi- nation by overworking its existing employees Another explanation for the suddenness and size of the January 7 termination is that this was Respondent's first year of op- eration at the facility and has no records or prior history to guide it in estimating the amount of business it would do Additionally, the opening of the Hilton Hotel, nearby, had to hurt Respondent's business in the short run Not that this issue is totally free from doubt, although counsel for Respondent strenuously made the point in his opening statement that, in this area, unions are not a factor in the hotel business, the uncontradicted and cred- ible evidence establishes that in February 1985, Respond- ent did not purchase the facility because of the existing contract and, instead, took over the facility after foreclo- sure and reopened the facility 4 months later without the Union However, this is not enough to overcome the evi- dence recited above I therefore find that Respondent has sustained its burden under Wright Line, and recom- mend that this allegation be dismissed XI THE OBJECTIONS TO THE ELECTION There are five objections 2, 4, 5, 9, and 10 I have al- ready recommended that the 8(a)(3) allegation regarding the January 7 terminations be dismissed Objection 2 is the corresponding objection and I therefore recommend that it be overruled Objection 4 appears to correspond to the allegation discussed, supra, in section IX that Sal Abam, not Sue Albam, as the objections state, created an impression among the employees that their union activi- ties were under surveillance, by maintaining a list of po- tential "yes" voters, on the day of the election I recom- mended that this allegation be overruled as well Addi- tionally, on the day of the election, Albam was in the lobby of the facility while the election was conducted one floor up As no additional evidence was adduced to support this objection, I therefore recommend that it be overruled I have also recommended that the corre- sponding unfair labor practice to Objection 5 (as dis- cussed, supra, VI) be dismissed and I would likewise rec- ommend that this objection be overruled I have also recommended (in sec VII) that the allegation that O'Donnell restricted the movements of Gubanez in order to prevent him from engaging in union activities, ui vio- lation of Section 8(a)(1) of the Act, be dismissed Objec- tion 9 appears to correspond to that allegation, as no fur- ther evidence was adduced regarding this objection, I recommend that it be overruled The unfair labor prac- tice allegation that I did find (as discussed, supra, in sec VII) was supported by the evidence was that, on the day of the election, Mazuroslu told Sorgenti that if the Umon won the election, their wages would be dropped to the minimum wage, in violation of Section 8(a)(1) of the Act However, Objection 10 alleges that, on the day of the election, supervisors, including Mazuroski, made DAYS INN MANAGEMENT CO 749 "misleading and threatening statements that they could not vote in the election" No evidence was ad- duced to support this objection and I would therefore recommend that it be overruled It should be noted that even if Mazuroskes threats to Sorgenti had been alleged as an objection, I would have recommended that the election not be set aside simply on that basis It is not every objection, no matter how slight or isolated, that will serve to set aside an election In Super Thrift Markets, 233 NLRB 409 (1977), the Board stated Our normal policy is to direct a new election when- ever as unfair labor practice occurs during the criti- cal period since "Monduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election" The only recognized exception to this policy is where the violations are such that it is vir- tually impossible to conclude that they could have affected the results of the election This determma- tion is based, inter aha, on the number of violations, their seventy, the extent of dissemination, the size of the unit, and other relevant factors [Citations omitted ] In Caron International, 246 NLRB 1120 (1979), the Board stated "In resolving the question of whether cer- tain employer misconduct is de minims with respect to affecting the results of an election, the Board takes into consideration the number of violations, their seventy, the extent of dissemination, the size of the unit and other rel- evant factors" See also Essex International, 216 NLRB 831 (1975) The instant situation involves a single viola- tion made to one employee Sorgenti informed a couple of her coworkers about the threat, as it occurred about the time the election began, it could not have had much effect In addition, it is not considered one of the more severe type violations, it was made by a low-level super- visor and was the only violation found in a unit of about 80 employees I therefore find that it is not sufficient to set aside the resorts of the February 25 election XII THE APPROPRIATE UNIT AND THE UNION'S MAJORITY STATUS In a Decision and Direction of Election dated January 29, the Regional Director found the following to consti- tute an appropriate unit for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act All full-time and regular part-time service and main- tenance employees employed by the Employer at its 815 Lafayette Boulevard, Bndgeport, Connecticut location, including food and beverage employees, banquet employees, front desk employees, mainte- nance employees, housemen, housekeeping and laundry employees, but excluding management trainees, purchasing agents, security guards, sales personnel, office clerical employees, confidential employees, and guards, professional employees and supervisors as defined in the Act As Respondent has failed to raise any newly discov- ered, or previously unavailable evidence, this finding cannot be rehtigated and I therefore find that this is an appropriate unit Received into evidence were 57 union authorization cards executed by mdividuals employed at the facility and authenticated by witnesses, in addition, the General Counsel introduced W-4 forms executed by six employ- ees of Respondent together with the union authorization cards executed by these employees, with a request that I check the authenticity of these cards There are a number of factors complicating the determination of whether the Union represented a majority of Respond- ent's employees in the unit described above on Decem- ber 17, 1986, the date that recognition was requested by the Union and refused by Rogers For one thing, a number of the union authorization cards were executed by employees who, at the time, were employed at the restaurant at the facility which, at the time, was operated by Lacan Restaurant Corporation, shortly thereafter, Re- spondent assumed operation of the restaurant at the facil- ity and these employees became employed by Respond- ent In this regard, Administrative Law Judge Hubert Lott issued a decision dated August 22, 1988 (dismissing a Sec 8(a)(3) allegation), in which he found that Lacan Restaurant Corporation and Respondent were a single in- tegrated business enterprise Also complicating the deter- mination of the Union's majority status on December 17 is that Respondent was not able to locate its payroll records for that particular week However, I find it un- necessary to make this determination in the instant matter In NLRB v Gissel Packing Co, 395 U S 575, 614 (1969), the Supreme Court stated that a bargaining order is appropriate where the umon had majonty status and the employer engaged in such serious, widespread and pervasive unfair labor practices as to warrant a finding that "the possibility of erasing the effects of past prac- tices and of ensuring a fair election (or fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order" In addition, prior to the issuance of a bargaining order where there has been an election where the union failed to have a majority of the votes cast in its favor, the union must have filed meritorious objections to the election which resulted in the election being set aside The General Counsel and the Union fall short in two of these items required for a bargaining order As stated, supra m section XI, I overruled the objections finding the evidence insufficient to set aside the election con- ducted on February 25 In addition, the sole unfair labor practice found herein was the statement by Mazuroslu to Sorgenti on the morning of the election, that if the Union won the election, employees' wages would go to the minimum wage Considering Mazuroskes position, the nature of the statement, and that it was made to only one employee, there is no question in my mind that this statement by Mazuroski is insufficient to support a bar- gaining order under Gissel I therefore find it unneces- sary to determine if the Union had cards from a majonty 750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the employees in the above-described unit on Decem- ber 17, 1986 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) of the Act by threatening an employee that if the Union won the elec- tion, their wages would be reduced to the minimum wage 4 Respondent did not further violated the Act as al- leged in the amended complaint 5 Having found that the Union's objections have no merit, it is recommended that they be overruled and that the Board issue a Certification of Results of Election cer- tifying that the Union failed to receive a majority of the valid votes counted at the election conducted on Febru- ary 25, 1987 THE REMEDY Having found that Respondent has engaged in the unfair labor practice set forth above, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act [Recommended Order omitted from publication ]