Holiday Inn of Dayton

National Labor Relations Board - Board Decisions

Aug 16, 1971

192 N.L.R.B. 674 (N.L.R.B. 1971)

674 DECISIONS OF NATIONAL .LABOR' RELATIONS BOARD
Dayton'Motels, Inc. d/b/a,Holiday ` Inn of Dayton and
Bartenders, Motel, Hotel and Restaurant Worker's,
Local „,Union No. -222, Hotel , and Restaurant
Employees and Bartenders International Union,
AFLr-CIO. Case 9-CA-583-7,
August 16, 1971
DECISION I AND,. ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKmS
On April 12, 1971, Trial Examiner Melvin Pollack
issued his Decision in' the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and' desist therefrom ands`take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that
Respondent had not engaged in other unfair `labor
practices as alleged in the complaint and recommend-
ed„ that those allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a's'upporting brief.
Pursuant to - the provisions of Section 3(b) "Of the
National Labor Relations .Act, as amended, the
National - Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at " the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed., The Board has considered the Trial
Examiner's Decisio'n,_'the exceptions and brief, and
the entire record in `the case, and hereby adopts the
findings,' conclusion's, and recommendations of the
Trial Examiner.2
ORDER
Pursuant to ' Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed order of the trial Examiner and hereby orders that
Respondent; Dayton ]Motels, Inc. d/b/a Holiday Inn
of Dayton,' Dayton, Ohio, yits-officers, agents, succes-
sors, and assigns,-;shall' take the, action `set forth in the,
Trial Examiner'„s,recommended Order.
1 While we agree with the Trial Examiner , as stated in fn . 22 of his
Decision, that any loss of majority is attributable to the Respondent's
unfair labor practices , we also note that mere failure to participate in a
strike does not evidence rejection of union representation.
2 Respondent excepts to certain of the Trial Examiner's credibility
resolutions. It is the Board's established policy, however, not to overrule a
Trial Examiner's credibility findings unless, as is not the case here, the
preponderance of all the relevant evidence convinces us that they are
incorrect . Standard Dry Wall' Products, Inc., 91 NLRB 544, enfd . 188 F.2d
362 (CA. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This case was heard
on February 1 and 2, 1971, at Dayton,' Ohio, pursuant to 'a
charge filed on September 14,1970,`and a complaint issued
on 'October 30, 1970, and amended at the hearing. 'The
complaint alleges that' Respondent interfered with,.-re-
strained, and, coerced its employees,in violation of Section
8(a)(1) of the National Labor Relations Act, as amended; it
discriminatorily discharged Barbara Fennell1 in violation
of Section 8(a)(3) and (1), of the Act; and it refused to
bargain with the Charging Union in violation of Section
8(a)(5) and (1) of the Act. Upon the entire record in the
case, the briefs filed by the parties and my observation of
the witnesses as they testified, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio,, corporation,-operates a motel for
transient -guests at 2301 Wagoner Ford Road,, Dayton,
Ohio. Respondent's annual gross revenues exceed $500,000,
and its 'annual interstate purchases exceed $50,000. I_ find
that Respondent `is an employer engaged in commerce
within the meaning of Section 2(2),(6), and (7) of theAct.
H. THE _ LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act. , ,
I 1-
III. THE UNFAIR LABOR PRACTICES
A. The ,Refusal To Bargain
Respondent pursuant to - a . card check recognized the-
Union on August 21 , 1967, as the bargaining , agent, for its
"housekeeping and maintenance department employees."
On December 27, 1967, _ Respondent `_ and the ;;Union
executed a 3'-year union-security contract , effective from
September 1'6, 1967, tto ' an , including September̀ 16,:,1070.
On and after June ' 16, -1970,2' the Union ^ requested
Respondent to bargain on a, new contract . Respondent
refused to .meet with the, Union for that purpose and, .on
September , 16, challenged , the Union's majority status and
requested the Union to consent to an election . The Union
responded ,by calling a , strike . Respondent employed about
39 employees in its housekeepmg_ and-`maintenance
departments when the strike began " on `September 17.3
Nineteen of these employees,picketed during the strike,
which wasstillin progress when this 'casewas heard.`
1 Fennell was married after her discharge and testified as Barbara
Roswell.
2 All dates hereafter are in 1970 unless otherwise stated.
3I have included Barbara Fennell who I find below was
discriminatorily discharged on September 6.
192 NLRB No. 112
HOLIDAY INN OF DAYTON 675
B. .Interference, Restraint, and.Coercion 4 -
John Frier is the innkeeper (manager) of the motel,
Bonnie Knight is^ the executive housekeeper, and Novella
Collins and' Kathaleen Branham are the assistant
housekeepers.5 In August, Collins asked Carmella , Snyder if
she would picket if 'there-was a strike. Snyder said she had
not made up- her mind. ,A few days before Snyder started
her vacation on September 6, Mrs. Knight told her in the
housekeeping room that Collins "had something-.for [her]
on-the other side." Snyder walked over to the newer part of
the motel where she-found -Collins and two, other maids.
Collins handed her a, piece of paper and said, "I figured
you'd want' to look at this or sign it." Collins looked at the
paper-,'and signed it.6
-Snyder: returned from her vacation on September 14.
Assistant' housekeeper Branham took her to see Collins and
left. Collins asked-Snyder would she go out on the picket
line if there was a strike . Snyder said she had not yet made
up her mind. Collins said, "Well, you do know thatthe girls
that go-on the picket line Will eventually be fired." Snyder
asked Collins if anyone would get hurt if there was a picket
line. Collins took a book out of her pocket and"read some
quotes from it," includirg'a passage that "it was against the
law for [pickets] to throw bottles or rocks or anything else
. at persons 'going in or out.-of the place on strike."
Collins remarked,-"Tknow you don't want. that brand new
car of yours damaged in any way. So if you want to come in
and work we will have one of our company cars to come
and pick you up and take you home at night." She asked
Snyder again if she "would go out -on a picket line" and
Snyder answered that she still had not , made up her mind.
Collins asked Snyder to let her know, "when you do make
up your mind either way."
Later' that day, ; Snyder was in the linen room putting
stationery into '.envelopes when the phone rang. She
answered- the phone and was told that someone "on the
phone upfront" wanted to -talk to Mr. Frier. Snyder, who
"had just seen him go by the door," walked out' and saw
Frier talking to Collins. She told Frier he was wanted up
front and returned -to, work. Frier and Collins stopped in
front of-the linen room door. Collins walked into the room,
took Snyder's hand, and said to Frier, "Now, do these, look
like the hands of-a maid?" Frier shook his head and Collins
continued, "Don't you think she would make a pretty
hostess?" -Frier said, "Either that or a desk clerk." He asked
Snyder, "Would you like to be a desk clerk?" Snyder-said, -
"I'll have. to think it over." Frier said "okay" and left.?
Snyder asked Collins what a desk clerk was paid. Collins
said she, did not know. Bonnie Knight, the -executive
4 The incidents described in this section are based on the credited
testimony of Carmella Snyder, Dorothy North, and Anna Blevins. The
throe women gave detailed and internally consistent testimony concerning
these incidents and they impressed me as more reliable witnesses than
Manager Frier or executive housekeeper Knight . Assistant housekeepers
Collins and Branham -did not testify. '
S Frier and 'Knight ` are supervisors under the Act. Col inland Branham
issue work directions to the maids but the record does not warrant a
finding that their-directions are other than routine orrequire the exercise of
independent judgment . Both women were represented by the Union under
the 1967 contract. I find that Collins and Branham are , not supervisors
within the meaning ,of Sec . 2(11) of the Act. I find below, however, that
Respondent is responsible for their participation in the antiunion . activity
housekeeper, entered the room and was told that Frier had
offered Snyder a job as a desk clerk. Knight said "that's
really great" and "see what it gets you when you're on the
right side." Knight was asked if she know what the salary, of
a desk clerk would- be. Knight did not know but later on
Collins gave Snyder a slip of paper showing the salary for a
desk clerk.
On September 3, between 8 and - 8: 30 a.m., Knight
entered a room which Dorothy North was cleaning- and
asked her if she "had heard things -that were going around
the, motel." North said, "no" and asked if she "had done
something, [wrong].'- Knight said,, :"No; just to wait a
minute?' Knight called Novella Collins. Collins entered the
room and told North that "some of the girls didn't wish to
be represented by the Union," that ,they were,-" signing a
paper" because "the Union wasn't-doing,anything-to help
us ..: [and} just took our, dues." Assistant housekeeper.,
Kathaleen Branham came into the room and told Collins to
show her "the paper with the listof names." Collins showed
North the paper and said the employees who had signed it
did not wish' to be represented- by the Union.. She asked
North to sign the paper. North said -she "didn't know-
whether [to ] sign it or not." Knight and Branham-left and
North asked Collins how much the, employees who signed
the paper would make "if there was no union.' Collins said
$1.75, an hour after a year. North said-she "didn't thinkthat
that -was'very much"" and that tomaids represented by the
Union at the Imperial House were getting $1 .80 an, hour
and "they were making less than we were to begin with." 8
The phone rang and Collins answered it. She told North to
get in touch with her or Knight if she wanted to sign the
paper and left the room.
Knight returned about- 15 minutes later. She talked to
North about how she, had let her return to work "at $1.60
same seniority," and said she knew North needed her job
and to let her or Collins know if she decided to sign - the
paper-
The next. day, while North- was - checking her vacant
rooms , Knight came up and told -North she wanted to talk
to her. The two women walked intoa room. Knight said she
had heard the company would not sign a contract with the
Union, that she knew North had, to support herself, and'
that North -should sign the paper because -otherwise she
"might not have a job." She reminded North that she had
permitted her to- return to work without, loss of seniority
and at the same pay,after North had taken a few weeks off
in March without telling Knight she was going to be off.-
Knight asked North not to tell anyone she had been talking
to her.9 Knight then-asked North if she was going to the
union, meeting that night. North said she-did not know and.
described in the text.
6 Resp. Exh. 6-A is dated September 3, reads "We the undersigned do
not wish to be represented by a union," and is signed by 20'employees,
including Snyder. Resp. Exh. 6-B is dated September 6, contains the same,
statement, and is signed by seven employees. The name "Edith Bowling"
appears on both exhibits.
7 Frier recalled the incident but denied that he'had promised Snyder a
job. He said Snyder's husband called him, that afternoon and that he told
Mr. Snyder she, would be considered for a job up frontif anything opened
UP-
8 North at this time was making $1.60,an hour.
9 North said Knight made the same request in their' conversation on
September 3 because "she could get in trouble."
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Knight , remarked that "she didn't see any use in going if
[North] hadn't been going before; that it would just be like
all the ' other meetings."
On September 9,- Collins entered -,a room which- Anna
Blevins ' was cleaning. She -told Blevins, who had just
returned from her vacation , that ' she would give her "a fair
choice" between the Company and the Union, and that she
could show her that 26 girls'had voted for the Company and
against the Union.'°,
About a week later, Knight asked Blevins if she was going
to walk ,the picket line. -Blevins said she did not know,,and
Knight said she was sorry for the employees who would
picket because `she had heard they would be automatically
fired." - -
On September 16, the day before the strike began, Blevins
was crying , while cleaning a room., Frier entered the room
and asked ,her if she was "coming in tomorrow.:"Blevins
said that she did not know what, to do because she was
afraid,- that -there had been violence at a place where her
husband had worked, and that she did not think her,
husband would let her cross the picket line. IT give you -a
room, a double room , free meals, .plus a baby- sitter."
Blevins . said she would have to ask her husband and Frier
said if her'husband would not let her stay at themotel, that
he would pick her up at home . Blevins repeated that she
would have to, ask, herhusband and Frier saidzthat if she
came in he would make sure that she got the job she wanted
in the laundry room.]]
C. The Discharge of Feih'tell
Barbara Fennell started to work for Respondent as a
maid on February 17. Early in September, Collins asked
Fennell to sign' a paper to get the union out of there." " She
said it did not matter if Fennell signed "because everybody
else had already signed it" but if she signed "it would' look
better . . . in the eyes of ... the company.... " Fennell
replied that "the rest of the girls could sign it if they wanted
to but I just couldn't sign it" Collins told- Fennell not to
mention their conversation to Juanita Waites, the union
stewardess.
On Saturday, September 5, just before quitting time,
Fennell , and three ,-other maids were in the linen room.
Fennell noticed-that Edith Bowling 12 was crying , She asked
Bowling what was the matter . Bowling said she was upset
because of "everybody - arguing" and she did not know
"whether to sign that paper or not to [because ] if she signed
it then 'the girls were mad at her and if she didn 't sign it then
Bonnie and Novella and everybody would be mad at her."
Fennell told'her she -ought to decide the way she felt about
the Union "and if anybody got mad at her for it then piss
10 The record shows that '26 employees signed a statement against union
representation . At a union meeting on September 4, eight of these
employees signed a statement to the effect that they repudiated this action.
ii According ' to"Blevin's pretrial statement, Frier said , "Well, think
about it and I'llmake sure you get the job you want." Blevins testified that
she had asked Knight" for the laundry" on September 15.
1s' Fennell, incorrectly identified this maid as Edith Bowman.
13 Frier' testified that he"overheard some loud voices ' and "poked [his l
head in" and heard Fennell say , "Piss on them. Goddammit, piss on
them." Frier turned around and walked out According to Fennell, Barbara
Whitehead told her after Frier left "Didn't you notice that I was poking
you... I was trying to tell you that [Frierl was standing behind you."
on them." Meanwhile, Frier- had entered the room and was
standing behind Fennell.13 He said nothing to the maids
and left.
.The next day, Fennell, had cleaned, a room and, was
"walking down the sidewalk." She was stopped by Frier,
Knight, Collins, and union=,stewardess,Waites.14.,Waites
said they wanted to talk to her. They went into a room-and
Waites asked Fennell if it was true she had said "Piss" in
the linen room the day before, Fennell saidit was,true and
Waites asked her if she was "aware .that it was,=in our
contract that you could be let go for saying that "15 Fennell
said she was aware of it. Collins asked Fennellforher key,
Fennell" gaveher the key, got her things, and went home.i8,
On Tuesday, September 8, after talking to Mike Zinaich,
the Union's secretary-treasurer, Fennell called, Knight and
asked her. if: she still had a job. Knight referred her to, Frier
who said he was undecided and had to talk to "some other
people." Frier said,he would call her and let her know, "one,
way or the other." Frier did not call her.
Richard Branch, the Union's business agent, testified that
he and Zinaich, upon hearing from Fennell, "immediately
went out" and asked Frier ;why Fennell, had been
discharged. Frier replied, "Well, I don't know why. 1 didn't
discharge her. Her steward did; Zinaich said, "Our
stewards ' have no authority to" hire or, fire." Frier said,
"We'll ask Juanita.", The three men walked over to the
laundry room where Waite, was working. Zinaich asked
her, "Did you discharge Barbara Fennell? Waites said she
had not and Zinaich turned to Frier and asked him, "Well,
who did discharge her?" Frier said, "Well, I don't know. I'll
have to check and find out who fired her." Zinaich said he
would rather Frier put Fennell, back to work until Frier
found out who fired her and why. Frier said, "You call me
tomorrow and I'll give you my answer." Zinaich called
Frier the next day. Frier said he wouldhavei to "present a
grievance" on Fennell's discharge. Zinaich said there was
no need .,for a written grievance because --"this- was a
personal grievance and we made apersonal-contact with
you on it."
The next day, Zinaich and- Branch "went out-to check
again" if Fennell was going to be put back to- work. Frier
told them,that Fennell had been discharged "because of, the
language that she had used" and that be,-would have to
check "with some; higher authority to see if she was going
to be reemployed.
On December 1, Frier, offered Fennell of job as a maid
"without loss of your company seniority." Fennell ,on
December 7 accepted the offer of reinstatement but
reserved her rights "before the National- Labor Relations
Board," and her right to participate "in the lawful' strike,
now in effect" against Respondent.
14 Frier testified that, in the presence of Collins and Knight, he-asked
Waites if 'she knew the bad work that Fennell had been doing and Waites
replied she was aware of it He next asked Waitea'if she heard what had
happened in the laundry room. Waites said "yes" .and agreed with Frier
that Fennell i should be discharged . The group then,wa*ed over to a room
Fennell was cleaning. -
15 Under',the contract, an employee may be discharged for various
reasons, including "offensive language or conduct"-to Respondent its
customers, or other employees.
16 Frier and Knight testified that Waites told ^Tennell she was
discharged and that Collins then asked Fennell for her key.,
HOLIDAY INN OF DAYTON 677
D. Analysis and Conclusions
1. Interference, restraint, and coercion
a. Knight
On the morning of September 3, in the presence of
executive housekeeper Knight , who had summoned her,
assistant housekeepers Collins and Branham solicited
Dorothy North to' sign a statement dated September 3
against continued representation by the Union. North did
not sign the statement. The next day Knight urged North to
sign the statement, saying ' that Respondent would not sign
a contract with the Union and that North might lose her job
if she faded to sign. Knight also asked North if she was
going to a union meeting that night and encouraged her not
to attend.'About' this time; Knight told Carmella Snyder
that Collins "had something for [her ] on the other side."
Snyder saw Collins, who gave her the statement to sign.
Before the strike, Knight asked Anna Blevins if she was
going to walk the picket line and said she was sorry for the
pickets becauseshe had heard they would be discharged
I find -that Knight violated Section 8(axl) of the Act by
participating in. the solicitation of North and , Snyder to sign
the antiunion statement; by threatening North- with
discharge if she did not sign the statement; by interrogating
her about, and encouraging her not to attend, a union
meeting ;, and by asking Blevins if she was going to picket,
and by telling her that Respondent, would not sign, a
contract with the union andmight discharge employees,
whopicketed
b. Collins and Branham
Snyder said she would have to think it-over . Frier-said
"okay" and left. Knight entered the room and upon being
told that Frier had offered Snyder a job-as -a desk clerk
expressed her delight and said, "See what it gets you when
you're on the right side:' Knight was asked but did not
know what the salary of a desk clerk would .be. Later on
Collins gave Snyder a slip of paper showing the salary for a
desk clerk.
Collins asked Barbara Fennell to ,sign the antiunion
statement before Fennell's discharge on September 6 and,
on September 9, asked Blevins to sign the statement.
Knight sent Snyder to Collins so that Collins could solicit
her to sign the- antiunion statement :`- Knight similarly
participated ' in' the solicitation of North by ' Collins and
Branham to sign the antiunion statement :' Alter ' North
refused to sign, Collins told her to getin touch with herself
or Knight if she changed her mind Knight told North she
risked discharge if she did not sign . Knight`told Blevins that
pickets would be discharged and Collins: made a similar
statement to Snyder. She encouraged Snyder t to- strike
by offering her company transportation durinTa strike.kr
She initiated a conversation which, as, I find ,below, led to
an offer of a desk -clerk job by Frier if Snyder ivould.work,
during the strike. I find from these facts thatthe antiunion
conduct of Collins - .and Branham is attributable to
Respondent and, accordingly, that Respondent violated
Section 8(a)(1) of the At by Collins' and Branham's
solicitation of North and Snyder, and by Collins ' solicita-
tion of Blevins and Fennell to sign the antiunion statement,
and by Collins' asking Snyder ifshe was going to picket and
telling her that pickets would be discharged78
c. Frier
As stated ,above, Knight summoned Collins to a room
being cleaned by North. Collins told North that some of the,
girls - were signing a paper against the Union and assistant
housekeeper Branham, who had come into the room, told
Collins to show North "the paper with the list of names."
After Knight and Branham left the room, North asked
Collins howmuch the etiployeeawould get "if there was "no
union ." " Collins said $1.75 an hour after a year and North
replied that was not very much. North did not sign the
antiunion statement and Collins asked her to get in touch
with her or Knight if she wanted to sign.
About September 3 or 4, Collins obtained Carmella'
Snyder's- signature to the antiunion statement when Knight
sent Snyder' to- her -for' that purpose. On September 14,
Collins asked Snyder if she would picket and- told her the
pickets would be fired. Snyder asked Collins if anyone
would get hurt if, there was a picket line . Collins answered
in effect , that it was against the law for pickets to engage in
act of violence but that if Snyder was afraid of damage to
her new car that a company car would pick her up and take
her-home at night . She again -asked Snyder if she was going
to picket and Snyder said she had not made up her mind.
Later that day, in Manager Frier'S presence, Collins took
Snyder's hand and asked Frier if he did not think she would
make a pretty hostess .- Frier said either that or a desk clerk
and asked Snyder if she would like to be a desk clerk.
17 Manager Frier made a similar offer to Blevins.
u I find no violation in Collins ' offer of company transportation if
On September 14, Collins asked Snyder,, who had just
returned from her vacation, whether she would picket if
there was a strike. Snyder refused to commit herself despite
Collins' statement that pickets would be fired and her offer
of `a company car to take Snyder to and from work. Later
that day, Frier, prompted by Collins' remark, that Snyder
would make a pretty hostess, asked Snyder if she would like
to be a desk clerk . Snyder 'said She Would have to think it
over and Frier said "okay " Collins and Snyder told Knight
that Frier had offered Snyder a job as"a desk clerk. Knight
commented "that's really great" and "see what it gets you
when you're on the right side:" Later that day, Collins gave
Snyder a slip of paper showing the salary of a deskclerk. I-
find in these , circumstances that Frier promisedSnyder a
desk clerk job if she would work during-the strike. _ ,
On September 16, the day before thetstrike, began, Frier
told Blevins if she came in he would make sure she got the
job she wanted in the laundry room.
J find that Frier violated Section 8(aX1), of the Act by
asking Blevins if she was going to picket and,bypromising
Blevins and Snyder more desirable jobs if they would work
during the strike.
2. The discharge of Fennell
On September 3 or 4, Collins asked Fennell to sign the
Snyder would work during the strike.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
antiunion statement ., x • Fennell refused to do so., On
September 5, -Fennell advised Edith i Bowling, who was
upset and crying, that she ought to make up her own mind
whether. or not to"" sign the antiunion= statement "and if
anybody got mad` at' her for it then piss' on them." Frier
overheard Fennell's remarks-,to Bowling but said nothing to
the maids°and left. The next day, Frier, Knight, Collins, and
the Union's stewardess, Juanita Waites, confronted Fen-
nell. Waiter asked 'Fennell if it was true that she had said
"piss" in "the'linen room the day.,before, and if she was
aware that she could be fired under the union contract`for
saying that. Fennell gave affirmative answers to- both
questions and Collins asked Fennell', for her key. ' Fennell
gave, Collins the key and left for home. Union Representa-
tives Branch, and Zinaich talked ; to Frier several,times
about Fennell's discharge. Frier first said that Waites and
not he had; fired, Fennell. Zinaich said the Union's stewards
had no power, to hire or, fire. The three men spoke to
Waites, who said she had, not fired Fennell. Firer said he
would find out who fired her. Two days later, after an
interim telephone conversation, - Frier advised the union
representatives that Fennell had been discharged "because'
of-thelanguage that she had`used."
Frier testified that he discharged Fennellfor cursing and
poor work. Fennell credibly, testified that, she, was never
warned about poor work, is and that nothing was said to
her about " poor, work 'when,,she , was discharged. Frier
overheard Fennell use ` the words "piss on them" in a
conversation witl'irEdith Bowling. As,Fennellused these
words in the linen room and in the course of advising
another maid to make up, her own mind about the signing
of the antiunion statement, Frier had no reason to believe
that Fennell was -deliberately creating a disturbance or
using-abusive language to Bowling. Frier, in fact, said
nothing to' Fennell' and-walked away. It does not appear
that ,Respondent had had any `occasion to warn Fennell
about course language,20 or that, Respondent ever, dis-
charged anyone else for such language.
Respondent contends` in its brief that, if Frier had, been
motivated by antiunion considerations; he-would not have
sought "counsel and .advice'' from stewardess Wakes and
that he would not have acceded to the, objections- of the
Union's- representatives and offeredl~ennell reinstatement.
I, see , no, reason to speculate why Frier sought Waites'
"advice,", before discharging, Fennell. As Fennell was not
offered reinstatement until 2 months after the issuance' of
the complaint, I see no merit in Respondent's contention
that it, acceded to the Union's objections to Fennell's
discharge.
Urider'all the circumstances, I reject' Frier's explanation
for the' discharge'and find that Respondent-discharged:
Fennell as part of its campaign to discourage support of the
Union, thereby violating Section 8(a)(3) and'(1) of the Act.
is Frier testified that -Knight told him she had warned Fennell twice
about poor work . Knight herself did not so testify.
20 Fennell testified that the maids frequently used four,-letter _words and
that Knight used such words but not very often . Dorothy North testified
that Collins and Branham , but not the other maids, used bad language all
the time and that if Knight was around "she'd just laugh it off and go on."
3. The- refusal to bargain
A prior contract, lawful on its face, raises a presumption
that the contracting union was the majority representative
at the time the contract was executed, during the life of the
contract, and thereafter. Barrington Plaza and Tragniew,
Inc., 185 NLRB No. 1132. An em'ployer',, however, may
defend a `refusal to bargain on the terms °of a new cointr`,act if'
it can"demonstrate by,objective considerations that it has
some., reasonable grounds for believzngthat the union has
lost its, majority status." United States Gypsum Company,
157 NLRB 652, 656. Respondent contends that -no
presumption, of majority status attaches to ifs 1967 contract
with the Union because-, 'Respondent,-' iǹrecognizing the
Union on the basis of .a card check, was unaware that the
cards had been -solicited by- the executive housekeeper it
then, employed, and because the contract itself contains
neither a recognition clause nor a clause defining' he
bargaining unit.
The -Board, in an analogous case has held.that events
time-barred by the limitations provision of Section 10(b) of
the Act21 may not be used to overcome the presumption of
majority status, raised' by-a contract valid: on.-its',face.
Barrington Plaza and-Tragniew, Inc., No. 132. As
the legality of the Union's initial recognition Wag -no -longer
subject to direct : attack under, the Act at, the, time of
Respondent's refusal to bargain with the.Union,I find that
Respondent may not defend such refusal by an attack on its
initial recognition'of the Union.,.
Although the 1967 contract contained no recognition or
unit clauses, the record shows and Respondent concedes
that it recognized the Union before execution of the
contract as the bargaining agent for its "housekeeping and
maintenance department employees." The contract con-,
tains'wage schedules and union-security provision's; applica-
bte only to employees,- in these ' departments ,and `Respon-
dent makes no claim, that the contract was ever applied to
other employees. I therefore find that the 1967 'contract,
despite the absence of expressrecbgnitionandunit` clauses,
was- a valid collective-bargaining agreement` giving rise to 'a
preumption of majority status.
" Respondent further contends that any presumption of
continuing' majority is rebutted by the facts of tl'ie case. Ray
Geurdat, Respondent's general manager;', testified, that
Frier's predecessor and executive ,housekeeper,Knight told
him, before the Union on, June 16 requested, bargaining ,on
a new contract, that the, employees in the bargaining unit
did' not-want to be represented by the Union, and that Frier
advised him in September that he hadreceived a `petition"
from the ,employees who did not want,the Union:. Frier,
testified that it was "a known-fact that the majority didn't
want the Union" and that he was told. after he became, the
innkeeper that everybody„was "at each other's throat and
very unhappy." He further testified at about 1-1/2 or 2
weeks before the, strike, employees
th
McMillan,
Knight was asked if she occasionally t̀old a dirty joke "around with the
girls," and conceded= "I might have said something thatdidn't-sound very,
good,--
21 Sec . 10(b) provides in pertinent part that "no complaint shall issue
based upon any unfair labor practice occurring more than. sii months `prior
to the .fi ling of the charge with the Board."'
HOLIDAY INN OF DAYTON,
Dailey, Branham, and Collins gave him the "petition" and
that he so advised Geurdat. `
Respondent cites no episode indicating -union disaffection
among the - employees - except for the signing of the
antiunion statement . As shown above , Respondent was
substantially involved in the solicitation of employees to
sign this -statement: Respondent therefore cannot rely on
the antiunion statement to sustain its assertion that it had
valid grounds for doubting the Union's majority status.
Daisy's Original's, Inc., of Miami, 187 NLRB, No. 15. I find,
accordingly, that Respondent .had no reasonable grounds
for doubting the Union's continuing majority status.
I have found that - the Union at all- relevant times
represented a majority of the employees in the housekeep-
ing . and - maintenance departments . In view of the
bargaining history, and the lack of any evidence warranting
a,, contrary finding, I , find further that these employees
constitute a- unit- appropriate for purposes of ' collective
bargaining. I conclude, accordingly, that Respondent on or
about June ,I6, 1970, and, thereafter, has refused to bargain
with the Union:in violation of Section 8(a)(5) and (1) of the
Act.22
CONCLUSIONS OF LAW
1. The Respondent , is an , employer engaged in com-
merce within the meaning of tile-,Act. -
2. The Union - is a - labor , organization within the
meaning of Section 2(5) of the Act. -
3. By interfering with, restraining , and coercing em-
ployees , in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
in violation , of Section 8(aXl) of the Act.
4. By discharging,Barbara Fennell Roswell on Septem-
ber .6,, 1970, Respondent has discouraged union member-
ship by -discriminating in regard to tenure of employment,
thereby. engaging in unfair -labor practices in violation of
Sec on,8(ax3) and (1) of. theAct. -
5.t by refusing to `bargain"' with the Union on or about
June 16,, and thereafter,, Respondent has violated Section
8(ax5) and (I),of the Act.,,. -
6. The strike which began on September 17, 1970, was
an unfair labor practice strike.
7. The aforesaid unfair labor practices affect commerce
within the meaning of.Section 2(6) and (7) of the Act.
The Remedy
Having found that Respondent has engaged in unfair
labor practices it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Barbara Fennell Roswell on September 6, 1970,
in violation of Section 8(ax3) and (1) of the Act, the
Recommended Order , will provide that Respondent make
her whole for loss of earnings from -the time of the discharge
This conclusion is not affected because a majority of the employees
may not have joined the strike , as`any loss of majority is properly ascribed
to- Respondent's unfair labor practices.
as In the event no exceptionsare filed as, provided bySec . 102A6 of the
Rules and Regulations of the National Labor Relations Board, the
679
until December 1, 1970, when Respondent offered her
reinstatement . Backpay shall be computed in accord, with
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co, 138 NLRB 716.
As the strike, which began on September 17, 1970, is
attributable to Respondent's unfair labor practices, it will
be recommended that Respondent reinstate all unfair labor
practice strikers , including ;Barbara Fennell Roswell,-upon
their unconditional,,application. - -
Because of-, he character of the unfair labor practices
herein found, -the Recommended Order, will provide that
Respondent cease and desist from the specific unfair labor
practices found, and that it cease and-desist-from in any
other manner interfering- with, restrannilig and coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act. ' -
Upon the foregoing findings"of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 23
ORDER
Respondent, Dayton Motels, Inc. d/b/a Holiday Inn of
Dayton, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:-
(a) Interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, by soliciting
employees to sign antiunion statements, by-,threats of
discharge or other reprisals, by' promises of economic
benefits, and by, coercively interrogating employees as'to
union activities-or sentiments.
(b) Discharging- or - otherwise discriminating -against
employees in regard to hire or tenure of employment, or
any term or condition of -`employment, in order to
discourage membership in any labor organization.
(c) Refusing to bargain with the Union.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act
2. Take the following affirmative' action which it is
found will effectuate the policies of the Act:
(a) Make Barbara Fennell Roswell whole-for any loss of
pay suffered by reason of the discrimination against her, in
the manner described in the''Remedy section of the Trial
Examiner's Decision.
(b) Preserve and, upon request, make available to the
Board or' its agents, for examination and copying, 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 recommended Order.
(c) Reinstate the unfair labor practice, strikers, including
Barbara Fennell Roswell, upon their unconditional -appli-
cations, to their former jobs or, if such jobs are no longer
available, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges of
findings , conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions , and ,Order, and allobjections thereto
shall be deemed waived for all purposes.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment , discharging, if necessary, any replacements
hired during the strike.
(d) Upon 'request, bargain collectively with the Union as
the exclusive bargaining representative of all employees in
the unit found appropriate herein with respect to wages,
hours, rates of pay, and all other terms - and conditions of
employment and, if understanding is reached , embody the
terms of such understanding in a written agreement.
(e) Post at its motel at 2301 ' Wagoner Ford Road,
Dayton, Ohio, copies of the attached -notice , marked
"Appendix." ' 2 Copies , of. said notice , on forms provided by
the Regional Director for Region 9, after being duly signed
by Respondent's, authorized representative, - shall be , posted
by it immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in, conspicuous
places, including all places where notices to employees are
customarily posted . Reasonable ,steps shall be taken by
Respondent to -ensure , that said notices are not altered,
defaced, or covered by. any other material.
(€) Mail a copy of the attached notice to each of the unfair
labor practice strikers to hi0or her last known address.
(g) Notify the Regional ector for Region 9, in writing,
within 20 days from the receipt of this Decision , what steps
have been taken to comply herewith 25
IT `'IS' FURTHER ORDERED that the allegations of the
complaint not specifically found herein to constitute
violations of the Act be dismissed.
24 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals,,the word=d he notice reading "Posted by
Oder of the National -Labor Relations " shall be changed to read
`Posted Puisuant to a Judgment of the United States Courts of Appeals
Enforcing an Order of the National Labor Relations Board."
2e1nthe event , that this recommended, Order is adopted by the Board,
after , exceptions have been filed, this provision shalt be modified to read:
"Nofty the Regional Director for Region 9 , in writing; within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
'WE WILL NOT solicit our employees to sign antiunion
statements," threaten' our' employees with discharge ' or
other economic reprisals because 'of their , union
activities, ' promise them "better jobs to discourage
support of any labor organization, or, coercively
interrogate ` them' as to 'their union activities 'or
sentiments.
WE WILL `NOT discharge,or otherwise discriminate
against our employees in regard to hire or tenure' of
employment, or any term or condition of employment,
'in order to discourage membership in any labor
organization.
WE' wILL make Barbara Fennell Roswell whole for
any loss of pay-suffered by reason of thediscrimination
against her.
WE , WILL .-NOT refuse , ^ upon request, to bargain
collectivelywith'the Union as the exclusive,
representative of our employees in the unit' found
appropriate herein concerning wages, •hours,, rates of
pay, and other terms and conditions of employment.
WE wm.L, NOT jn any other. manner interfere with,
restrain, or coerce our employees in the exercise of their
right to , self-organization; to form, join, or assist
Bartenders, Motel, Hotel and Restaurant Workers,
Local UnionNo. 222, Hotel and Restaurant-Employees
and Bartenders International Union, AFL-CIO, ;or any
other labor organization , to bargain ', collectively
through representatives of their own choosing, or to
engage in other concerted activities for. the purpose of
collective bargaining or other mutual aid or-protection,
or to refrain from any or all such activities.
WE wlzl: reinstate the unfair labor practice strikers,
including Barbara Fennell Roswell, upon their uncondi-
tional applications, to their former jobs or,,if such jobs
are no longer available, to substantially equivalent
positions, without prejudice to their seniority or =other
rights and privileges' of employment ; discharging,` 'if
necessary, anyreplacementshired during the strike.
WE WILL,=upon 'request',. bargain collectively with-the
Union as the exclusive bargaining agent of all
employees in the appropriate unit with respect to wages,
hours, rates of pay, and all other terms and conditions
of employment and, if understanding is reached,
embody the terms of such understanding in a written
agreement. The appropriate bargaining unit is:
All housekeeping -and- maintenance department
employees at 2301 Wagoner Ford Road, Dayton,
Ohio excluding " all - office clerical employees,
guards and supervisors, as defined in the Act, and
all other employees.
WE WILL notify the unfair labor practice, strikers,
-including Barbara Fennell Roswell , if presently serving
in the Armed Forces of the United States, of their right
to full reinstatement upon' application in'^accordance
with the Selective - Service , Act and , the ,' Universal
Military Training and Service Act,' as amended, after
discharge from the Armed Forces. -
WE wit: mail a copy of this 'notice to each of the
unfair labor practice strikers addressed to his or her, last
known address.
Dated By,
DAYTON MOTBLs,, INC.
D/B/A HOLIDAY ' 114N OF
DAYTON
(Employer)
(Representative) (libe)
This is anofficial notice and must not be defaced by
anyone.
This notice must remain, posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material: -
Any questions concerning this notice or compliance with
its provisions may be,,,directed toih'e Board'sOffice, Room
2407 Federal OffceBuilding, 550 4lainrStreet,,Cincinnati,
Ohio 45202 , Telephone°513-684-3686.="