Ramada Inn South

National Labor Relations Board - Board Decisions

Sep 28, 1973

206 N.L.R.B. 210 (N.L.R.B. 1973)

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Land, Inc., d/b/a Ramada Inn South and Hotel,
Motel, Restaurant Employees & Bartenders Union,
Local 737, AFL-CIO. Case 12-CA-5773
September 28, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On April 26, 1973, Administrative Law Judge Her-
zel H. E. Plaine issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record I and the at-
tached Decision in light of the exceptions and brief 2
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge 3 and to
adopt his recommended Order.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, O'Land, Inc., d/b/a Ra-
mada Inn South, Orlando, Florida, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
The Respondent's request for oral argument is hereby denied, as the
record and exceptions in our view adequately present the issues and positions
of the parties.
2 The General Counsel's motion to strike the Respondent's exceptions and
brief is hereby denied as the information contained in the latter's response
demonstrates substantial compliance with the Board's Rules and Regula-
tions.
3 We find totally without merit the Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. We have fully consid-
ered the record and the attached Decision and find no evidence that the
Administrative Law Judge in his conduct of the hearing or in his discussion
and analysis of the evidence prejudiced the case, made prejudicial rulings,
or demonstrated bias against the Respondent. Moreover, we conclude that
the Administrative Law Judge's credibility findings are not contrary to the
clear preponderance of all relevant evidence and, therefore, find no basis for
disturbing them. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188
F.2d 362 (C.A. 3, 1951).
° The Joint Motion Requesting Case be Dismissed, filed by the Respon-
dent and the Charging Party, is hereby denied as the subsequent execution
of a collective-bargaining agreement by the aforesaid parties together with
an agreement to rehire strikers does not alone vindicate the statutory rights
of employees which were found herein to have been violated. We find, in
agreement with the General Counsel, that, in the circumstances of this case,
the policies of the Act can best be effectuated by adopting the Administrative
Law Judge's recommended Order.
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: Respon-
dent is charged with refusal over a period of more than a
year to bargain in good faith for an initial contract with the
Charging Party (Union), which has been the certified bar-
gaining representative of Respondent's motel employees
since December 6, 1971.
The complaint, filed January 31, 1973,1 charges Respon-
dent with violations of Section 8(a)(5) and (1) of the Nation-
al Labor Relations Act (the Act) for engaging in surface
bargaining, instituting unilateral changes in wages and
other working conditions without notice to or consultation
with the Union, threatening not to negotiate while an unfair
labor practice charge was pending, and direct dealing with
striking employees to discourage the strike that began 6
months after negotiations started.
Respondent contends it engaged in hard, good-faith bar-
gaining rather than surface bargaining, that the claimed
changes in working conditions were in some cases not
changes and in others were justified by business necessity,
and denied the threat not to bargain and the direct dealing
with striking employees.
The case was tried in Winter Park, Florida, March 6, 7,
and 8, 1973. Respondent has filed a brief. General Counsel
rested largely on his closing oral argument at trial, and has
filed only a supplemental brief on points not covered in the
oral argument.
Upon the entire record in the case, including my observa-
tion of the witnesses and consideration of the briefs and oral
argument, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Florida corporation engaged in the oper-
ation of a motel at Orlando, Florida, providing lodging and
other services to guests.
During the 12 months prior to issuance of the complaint,
in the conduct of its business Respondent received gross
revenues in excess of $500,000, and received goods valued
in excess of $50,000 from Florida distributors who had re-
ceived such goods from points outside Florida.
As it admits, Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act, as the parties admit.
II. THE UNFAIR LABOR PRACTICES
A. Threat Not To Bargain
Following the Board conducted representation election
on October 15, 1971, and objections to the election by Re-
spondent (because of alleged Union misconduct) found to
be without merit by the Regional Director on November 2,
1971, the Board sustained the Regional Director and certi-
1 On a charge filed August 24, 1972, amended September 6, 1972.
206 NLRB No. 40
RAMADA INN SOUTH '211
lied the Union as the elected bargaining representative of
the employees on December 6, 1971 (G.C. Exhs. 2(a), (b),
and (c) )2
On December 15, 1971, the Union requested of Respon-
dent a list of names and addresses of the employees in the
bargaining unit and their rates of pay to enable it to prepare
a contract proposal (G.C. Exh. 6). Despite the Union's
followup requests, as late as January 28, 1973, Respondent
(by its Lawyer Harris, who did all of the communicating
and negotiating for Respondent) wrote the Union it might
get the requested list in a week or 10 days from then, refused
the Union's alternative request for access to the employees
at the motel, refused the proposed meeting for negotiations
on February 2, 1972, and suggested that the Union mail its
contract proposal instead of meeting on it (G.C. Exh. 10).
On February 11, 1972, the Union filed with the Board an
unfair labor practice charge against Respondent, for failure
to supply the needed information and to meet or provide a
schedule for meeting to negotiate (12-CA-5495).
Respondent sent to the Umon part of the information,
rates of pay by job classifications (G.C. Exh. 11), mailed
February 14, 1972, 2 months after the initial request, and
did not provide the list of employees until March 13, 1972,
almost 3 months after it was first requested.
The Union had taken the position with Respondent that
it would not submit its contract proposal without a meeting
in which to explain it, and the parties finally met for the first
time on February 22, 1972. The Union brought along its
proposal (G.C. Exh. 12) and went through it with Respon-
dent.
According to Union Secretary Mayer, the business head
of the Union local, corroborated by Respondent's President
McGuire, at this first meeting of February 22, 1972, Re-
spondent, through its spokesman, Lawyer Harris, said it was
not going to meet and negotiate with the Union unless the
Union withdrew the unfair labor practice charge. Mayer
replied the Union would withdraw the charge if Respondent
would negotiate meaningfully.
At the second meeting of the parties, March 23, 1972, the
unfair labor practice charge was still pending, and Lawyer
Harris stated for Respondent, according to Union Secretary
Mayer, and as Respondent's own notes of the meeting
(Resp. Exh. 2, p. 1, para. 1) show, that: " ... the company
2 Respondent devoted a substantial part of its brief to an argument that
the Union was not properly certified as the bargaining representative, be-
cause the Board erred in not allowing Respondent an evidentiary heanng to
support its claim of union misconduct that affected the outcome of the
election, and that it was illegal for the Board to rely upon the Regional
Director's decision (overruling the Respondent's objections) made out of
affidavits and an ex parse investigation.
At teal, Respondent did not attempt, or offer, to adduce newly discovered
or previously unavailable evidence that was not before the Board when it
sustained the Regional Director.
The legality of the Board's action in denying an evidentiary heanng on
Respondent's objections to the election is not properly before me and I do
not pass upon Respondent's argument . The Board has acted under its rules
and decided against an evidentiary heanng and against Respondent in the
representation case (12-RC-3920), and the Board's decision is the law of that
case at this point Capitan' Drilling Company, 167 NLRB 144, 145 (1967), enfd
408 F.2d 676 (C A. 5, 1969), and cases cited I am concerned only with the
alleged unfair labot practices in the instant case, and I regard as heretofore
established that the'Union was properly certified as the bargaining represen-
tative of the unit of Respondent's employees.
would not under any circumstances negotiate a contract
until the unfair labor charges were withdrawn by the union.
The company would not in any way be subjected to `under
the gun' negotiations." 3
Harris went on to say that Respondent could stop the
negotiation and appeal its objection to the election, over-
ruled by the Board, to the Court of Appeals for the Fifth
Circuit, which would delay negotiation for another 2 or 3
years. Mayer testified he took this as a further threat. Never-
theless he said the Union would withdraw its charge if he
got a schedule for negotiating meetings. A schedule was
arrived at, he testified, and the charge was withdrawn 1 or
2 days after the meeting.4
Section 8(a)(5) and (1) Finding
"Withdrawal or settlement of the pending unfair labor
practice charge cannot lawfully be insisted upon as a pre-
requisite to the fulfilling of the requirements of Section
8(a)(1) and (5) of the Act." Lion Oil Company v. N.L.R.B.,
245 F.2d 376, 379 (C.A. 8, 1957). As the Board recently held
in Rauland Division of Zenith Radio Corporation, 187 NLRB
785 (1971), the pendency of an unfair labor practice charge
does not relieve the employer of its duty to bargain with the
union filing those charges, and a refusal to bargain because
of a pending charge constitutes bad-faith bargaining in vio-
lation of Section 8(a)(5) and (1) of the Act.
By its threat not to bargain and insistence that it would
not bargain unless the Union withdrew the pending unfair
labor practice charge, Respondent violated Section 8(a)(5)
and (1) of the Act.
B. Unilateral Actions
1. Insurance program
Commencing with its first contract proposal, submitted at
the first meeting of the parties February 22, 1972, the Union
proposed in an article entitled "Health and Welfare" that
there be employee group life and health insurance, provided
through employer contributions to a trust fund established
for such purposes (G.C. Exh. 12, article 21, first proposal;
repeated and revised in G.C. Exh. 14, article 20, second
proposal, August 21, 1972; and G.C. Exh. 23, article 18,
third proposal, November 7, 1972).
According to Union Secretary Mayer, at this first meet-
3 Respondent's notes the first 10 of the 11 negotiating meetings were taken
and prepared by Lawyer Harris' secretary. They were admitted into evidence
at Respondent's request (Resp. Exhs 1-10) upon agreement of the parties
that they correctly identified the dates, places, and attendees of the meetings,
but the Union would not agree that they correctly reported all that transpired
or was said at the meetings As Umon Negotiator Lang testified, the notes
largely represented Respondent's opinions and statements, and left out a lot.
Nevertheless I have made some sparing use of the notes in a few places
where, as admissions against interest, they have supported other evidence
presented
4 Respondent claims that what transpired at the two bargaining meetings
was either ( 1) statements by it in the course of negotiating a settlement of a
case and privileged against use as though made in the form of an offer of
settlement without prejudice to it, or (2) an explanation to the Union of
Respondent's legal position on contesting the Board's refusal to vacate the
results of the representation election. Neither claim has support in the evi-
dence.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, February 22, 1972, Lawyer Harris said Respondent had
been looking at various insurance programs and requested
more information about the Union's insurance proposal,
the Union promised it would supply the information, and
at the second meeting, March 23, 1972, brought in and
handed to Respondent the booklet on the union insurance
program and trust fund.
In the meantime, between these first and second meet-
ings, the union representatives learned from employees that
Respondent was planning to put into effect an insurance
policy of its own, without notice, or supplying any informa-
tion on the subject, to the Union's representatives. The
Union's acting president and senior local officer, Hal Lang,
who coordinates with Union Secretary Mayer, was princi-
pal negotiator for the Union (each had equal authority to
speak for and bind the Union, they said), testified that at the
March 23 meeting he protested as illegal Respondent's plan
to put its insurance into effect, and repeated his protest at
the next (third) meeting April 19, 1972, after the insurance
policy had been made effective April 1, without discussion
with or consent of the Union.
Respondent's President McGuire (who attended the bar-
gaining meetings but, by his own testimony had delegated
complete authority and responsibility for negotiation to
Lawyer Harris, and wasn't always sure he understood the
arguments, he said) claimed, at trial, that the Union did not
protest and did not express objection at the March 23 meet-
ing to Respondent's insurance going into effect.
Union Secretary Mayer testified that not only did the
Union object, but that lawyer Harris told them the insur-
ance program had been promised to the employees and that
Respondent intended to put the insurance into effect re-
gardless of the Union's objections. Contrary to President
McGuire's testimony, supra, Respondent's own notes on the
meeting (Resp. Exh. 2, p. 1) bear out Mayer and Lang, and
state, "Institution of insurance program: Company will go
ahead with it effective 4/1/72, regardless of union objec-
tion," followed by an explanation by Lawyer Harris that the
promise to the employees was made and research of insur-
ance had been done before the Union filed its petition for
representation of the employees (in August 1971). Even as-
suming it was material, this explanation, which Respondent
sought to shore up at trial, was a strain on the truth, as
shown by the evidence.
President McGuire, owner of the motel, testified he had
opened the motel in August 1968, that he was interested in
insurance coverage for employees, and directed the motel
manager in March or April 1971 to look into it. Thereafter
the manager resigned and was succeeded by the current
manager, Terry, on September 1, 1971 (after the union rep-
resentation petition was filed). McGuire said he instructed
Terry to investigate insurance proposals that the prior man-
ager had collected, and that, on April 1, 1972, Respondent
put into effect the proposal that Terry recommended.
Manager Terry testified he studied some 9 or 10 insur-
ance proposals and, by the end of December 1971 or early
January 1972 (he conceded his affidavit to the Board said
early January 1972), focused on the World Insurance Com-
pany coverage provided through the Florida Restaurant
Association Trust Fund, as best suited for Respondent's
needs. He did not get in touch with the insurance company
seriously until the end of January or first week of February
1972, and signed a contract in the second week of February,
he said, anticipating a March 1 effective date. Actually the
insurance became effective April 1, 1972, with benefits ef-
fective June 1, 1972, according to Terry.
All of these transactions by Respondent, to effectuate the
insurance coverage that was taken, transpired after the
Union was certified as bargaining representative on Decem-
ber 6, 1971, and occurred principally while the Union was
champing to get bargaining negotiations going and obtain
the needed information on employees and wages that Man-
ager Terry admittedly sat on before the Respondent sup-
plied it piecemeal 2 and 3 months after requested in
mid-December 1971 (see heading A, supra). Terry testified
that he put other business (which obviously included getting
this insurance coverage) ahead of supplying information to
the Union.
Respondent, through Manager Terry, made no bones
about letting the employees know it was bypassing or under-
cutting the Union in the matter of providing insurance. At
meetings with employees at the motel in February and
March 1972, when collective-bargaining negotiations were
about to start and had started, Manager Terry told the
employees, according to employees Woodrome, an expedi-
ter in the housekeeping department, that Respondent had
a group insurance policy in the works, but could not put it
into effect because it couldn't get together with the Union,
the Union wouldn't negotiate. At a subsequent meeting,
said employee Woodrome, Manager Terry told the employ-
ees the insurance was being put into effect on April 1, 1972,
and told them that the Company's policy had better benefits
than the Union had to offer.
Respondent's witness , Executive Housekeeper Norma
Schultz (a supervisor within the meaning of the Act), who
testified that she attended all of the meetings of employees
conducted by Manager Terry in February and March 1972,
generally confirmed employee Woodrome's testimony.
Housekeeper Schultz testified that Manager Terry first told
the employees that he couldn't promise them anything, but
that he was negotiating for an insurance policy. He then told
them, she said, that he had found a "compatible" insurance
policy and thought it was a better policy than the Union's
insurance policy.
Manager Terry, conceding that he never discussed insur-
ance with a union representative, admitted that he told the
housekeeping employees that Respondent was going to put
a policy into effect and that it was a better policy than the
Union had to offer (although he claimed this comparison
came later). His affidavit to the Board also indicated that,
in the discussion with the employees, Terry said the
Company's insurance policy would remain in effect regard-
less of the outcome of the negotiations with the Union.
In this conneciton, several employees, among them
Woodrome and Hafford of the housekeeping department,
testified to disparagement of the Union by Manager Terry
in his talks at the meetings with employees. Employee
Woodrome testified that Manager Terry ridiculed the Un-
ion, rephrasing a union pamphlet on what your Union can
do for you, into what you can do for your Union, such as
pay for union representatives' cars and conventions. He
urged, said employee Woodrome, that the employees not
RAMADA INN SOUTH
join the Union, that the Respondent could do more for them
than the Union would . Employee Hafford testified that at
the February-March 1972 meetings Terry chided them for
not listening to him and joining the Union, and that it would
take their money and not do anything for them . (I do not
credit Terry's denials of this testimony , for there is other
testimony, provided by him, from which it appears that he
regarded himself as a target of union criticism or union
inspired criticism and used these meetings with employees
to reply and counterattack.)
Section 8(a)(5) and (1) Finding
It is quite clear from the testimony that, even if Respon-
dent did some thinking about life and health insurance for
its employees before the advent of the Union as the bargain-
ing representative of its employees, it was not until after that
advent that Respondent scurried to secure an insurance
policy and obtained it and made it effective unilaterally and
without notice to or consent of the Union, in the period that
it stalled the opening of -collective-bargaining negotiations
and indeed after the negotiations had begun. Respondent
persisted in the unilateral action over the Union's protest.
Respondent combined a deception of its intentions at the
first bargaining meeting (it had already signed for what it
said it was only considering), with derision for the union
protest at the second meeting. Simultaneously, in direct
meetings with its employees, Respondent disparaged the
Union and misrepresented its efforts to negotiate insurance
coverage for the employees.
Respondent has refused to discuss with the Union, let
alone bargain concerning, a mandatory subject of bargain-
ing. Respondent's counterproposals to the Union have been
devoid of any reference to insurance coverage of employees.
Respondent's action, in having unilaterally instituted an
insurance program on April 1, 1972, without notice to or
consultation of the Union, was a violation of Section 8(a)(5)
and (1) of the Act, Yale Upholstering Company, Inc., 127
NLRB 440, 441-442 (1960).
2. Increase of insurance benefits
On June 1, 1972 (following the fourth negotiating meeting
of May 17), without notice or communication to the Union
either before or after, the benefits to employees provided by
the group insurance policy (that Respondent had unilateral-
ly effectuated as of April 1) were increased in various as-
pects, affecting life insurance, hospitalization, and medical
coverage for each employee. Again, as in the case of the
initial policy, the Union learned of the increase indirectly
through employees some time after the fact. Union Secre-
tary Mayer testified, without contradiction, that Respon-
dent said nothing concerning the impending changes at the
May 17 negotiating meeting.
Manager Terry testified that the increases in benefits (and
premium) were not ordered by Respondent but rather by
the Florida Restaurant Association, and that his only op-
tion, if Respondent did not take the increases, was to cancel
the policy.
Union Secretary Mayer testified that on August 24, 1972,
the employees went on strike and the Union simultaneously
213
filed a second unfair labor practice refusal -to-bargain
charge against Respondent, grounded among other things
on a number of unilateral actions by Respondent after neg-
otiations had begun, respecting increases in wages and other
benefits for employees without consultation or bargaining
with the Union . At the following negotiating session of
September 20, said Mayer , Lawyer Harris gave an explana-
tion for Respondent concerning the various unilateral ac-
tions in response to the Union 's charge . On insurance,
Harris repeated substantially what he had said at the March
23 meeting, that Respondent provided the insurance be-
cause it was a prior commitment to the employees before the
Union came on the scene . Concerning the increase in insur-
ance benefits , Harris said the increase was required by the
insurance company and Respondent had to take it or get
out of the plan.
Section 8(a)(5) and (1) Finding
As General Counsel correctly points out, Respondent has
incorrectly assumed that its initial action in unilaterally
effecting the insurance policy for employees was valid. The
initial action was not valid, and violated Section 8(a)(5) and
(1) of the Act, as already found, supra.
By accepting and approving the increase in the initial
policy benefits, again without notifying or consulting the
Union, Respondent has compounded its initial violation of
the duty to bargain in good faith concerning insurance ben-
efits for the employees. To say that Respondent had only
the option to accept the increased policy or cancel, was to
ignore the further option, indeed legal duty, to notify the
Union and provide the opportunity for bargaining out the
matter, with the possibility that the insurance benefits might
become a negotiated contract benefit. Respondent's failure
and refusal in this regard was a breach of its duty to bargain
in good faith, in violation of Section 8(a)(5) and (1) of the
Act.
3. Wage increase
As the principal witnesses indicated in their testimony,
with the opening of Disney World in Florida in October
1971, the hotels and motels of the greater Orlando area were
swamped with business in late 1971 and in 1972. Manager
Terry testified that, by early 1972, Respondent's motel had
added to the existing establishment and opened 48 new
rooms, and was experiencing a "fantastic" rate of occupan-
cy, one-hundred percent solid occupancy.
The boom in the hotel-motel business created unusual
competition for help and a rapid rise in wage rates. Manager
Terry testified that following his accession as manager in
September 1971, he began recommending a wage increase
for the motel employees because the area wage rates were
going up and Respondent was losing its competitive posi-
tion for labor. He was told at the time, he said, by Lawyer
Harris that Respondent could not give a raise because it
might be charged with an unfair labor practice.
Union Secretary Mayer testified that through the period
of negotiations to October 1972 area wages for hotel-motel
help had risen 70 to 80 to 90 cents per hour more than the
rates paid prior to the commencement of the contract nego-
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiations in February 1972. This 90-cent figure was not dis-
puted, indeed it was adopted as valid by Respondent in its
brief (p. 21).
In its first contract proposal of February 22, 1972, the
Union proposed a 50-cent-per-hour increase for the various
classifications of employees (compare G.C. Exh. 11,
employer's rates in February 1972, with Schedule A of G.C.
Exh. 12, Union's first proposal).
Notwithstanding the urgent need on both sides for wage
readjustment , Respondent nevertheless insisted , when it got
down to negotiations , upon disposing of all noneconomic
matters before reaching economic matters. Both Union Sec-
retary Mayer and Union Negotiator Lang testified that they
preferred and sought to discuss wages and related matters
from the start, but that Respondent refused to discuss these
until the noneconomic items had been disposed of.
It followed that there was no discussion or negotiation of
wages by the end of the fourth negotiating meeting on May
17, 1972, and no agreement on any economic matter except
the restatement of existing vacation policy (see Resp. Exh.
22, February 28, 1973, which shows matters agreed to and
dates). Union Negotiator Lang testified that at the May 17
meeting he expressed the view that the parties had not got-
ten anywhere yet, that what had been done so far was use-
less, and he referred to the then current negotiations of the
Disney World contract, in which he was participating, as
offering hope of a basis for agreement on contracts in the
area. Lang proposed a temporary suspension of the negotia-
tions with Respondent , and Respondent agreed , and agreed
to confirm the arrangement in a letter, which was done.
The letter agreement between the parties, from Lawyer
Harris to Union Negotiator Lang, dated May 17, 1972
(Resp. Exh. 24), stated that the parties agreed not to sched-
ule any further meetings until the Union finalized its con-
tract with Disney World, and that the Union intended to
submit a revised proposal based upon its negotiations with
Disney World. It was further stated that Respondent was
not bound to agree to the same contract to which Disney
World agreed, and that all language upon which the parties
had hitherto reached agreement would stand and not be
altered. Finally, it was stated that the Union would supply
Respondent with copies of any revised proposals and allow
a reasonable time for their study, after which the parties
would resume negotiations . No time , or time limit , was spe-
cified for any of the enumerated events-the conclusion of
the Disney World contract, the submission of revised pro-
posals, or the resumption of negotiations.
According to Union Negotiator Lang, the Disney World
negotiations ran several months longer until completion of
a contract and, on August 21, 1972, he mailed to lawyer
Harris a revised (the second) union contract proposal (G.C.
Exh. 14), requesting a negotiating meeting in the next or
succeeding week (Resp. Exh. 25).
Meantime , without notice or any communication to the
Union, Respondent put into effect a 10-cent-per-hour wage
increase for all employees , effective July 1, 1972. Manager
Terry testified, that on advice of Lawyer Harris, he posted
a notice , June 15 , 1972 (G.C. Exh. 4), announcing the wage
increase effective July 1. He also held a meeting with em-
ployees on June 15 and, according to dining room employee
Gloria Murphy who attended, told the employees that they
were getting the raise because Respondent had tried to neg-
otiate with the Union and had not been able to negotiate
successfully, and the employees should not be made to suf-
fer any longer without a raise, so Respondent was giving
them a 10-cent raise.
Union Negotiator Lang testified that nothing was said by
Respondent at the May 17 negotiating meeting about a
wage increase , or urgent need for an increase , or of an
intention to put one into effect, and there was no testimony
to the contrary.
Section 8(a)(5) and (1) Finding
Respondent argues (lamely, in the face of its contempora-
neous letter agreement of May 17, 1972, to the contrary)
that the Union broke off negotiations on May 17 and gave
the Respondent the right to alter benefits while the Union
made its contract with Disney World.
The evidence is quite the opposite. Respondent's letter of
May 17 (Resp. Exh. 24) makes plain that the cessation of
negotiations was mutually agreed upon. It is devoid of any
statement or implication that the Union was delegating au-
thority to Respondent or waiving any of its bargaining
rights. On the contrary the letter agreement specifically
maintained the status quo of the bargaining to that time.
Respondent did not protest the temporary suspension of
negotiations, indeed accepted it with alacrity. Obviously the
arrangement was advantageous to Respondent because it
gave Respondent an opportunity to claim in its own bar-
gaining any of the benefits of bargaining by the dominant
comparable employer in the area, without (as the letter
agreement specifically provided) any obligation to accept
any part of the other's bargain it didn't like.
Respondent did not ask, in or out of the negotiating
meetings of that period, for relief or agreement on an inter-
im wage increase, indeed refused to discuss wages in the
meetings up to and including May 17, 1972. Respondent
made no attempt to communicate with the Union after the
May 17 meeting on this or any matter (until the Union came
in August with its revised proposal). This manner of effectu-
ating the wage increase, including the oral misrepresenta-
tion by Manager Terry to the employees that the Union was
blocking agreement, indicated a deliberate attempt by Re-
spondent to denigrate the Union in the eyes of the bargain-
ing unit employees.
The unilateral action by Respondent in effectuating the
July 1, 1972, pay raise, without prior notice to or discussion
with the Union, was a refusal to bargain about the affected
condition of employment under negotiation and obstructed
bargaining in violation of Section 8(a)(5) and (1) of the Act.
N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel Products
Co. 369 U.S. 736, 747 (1962).
4. Use of dining room
In its initial contract proposal (G.C. Exh. 12), the Union
proposed that every employee working a full 8-hour shift
receive without charge three meals, and that the Respon-
dent provide employees adequate space and facilities for
eating their meals (article 12). Subsequently, according to
Union Negotiator Lang, at the May 17, 1972 , meeting, and
RAMADA INN SOUTH
thereafter included in the Union's second contract proposal
(G.C. Exh. 14), the Union modified article 12 downward to
one free meal per shift but retained the requirement for
eating facilities.
In the case of the restaurant employees (kitchen and din-
ing room help) use of the dining room facilities, including
a meal without charge, was apparently already the practice
when bargaining began, but this was not so in the case of
the housekeeping employees. Union Secretary Mayer testi-
fied that at the first bargaining meeting he was told there
were no facilities for feeding housekeeping employees at
the motel and that Respondent had no intention of building
an employee's dining room . It was indicated to him , he said,
that most of the maids ate at the curb in back of the laundry.
Union Negotiator Lang testified that at the third meeting of
April 19, Respondent announced its position, that there was
no place or space for dining facilities for the housekeeping
employees, and President McGuire spoke up to say it was
the employees' own business where they ate, it was on their
own time.
Sometime in July or early August 1972 , while the negoti-
ating meetings were in the agreed-upon recess , Respondent
instituted a change in the use of its dining room by house-
keeping employees, without notifying the Union of the
change.
Employee Gloria Murphy, a waitress in the dining room,
testified that, prior to the change, she and the other wait-
resses did not serve the housekeeping maids in the restau-
rant. She had observed some of them coming to the front
desk to pickup "takeout" orders made up for them by the
dining room busboy. Just before the strike (which started
August 24, 1972, and in which she did not participate), said
employee Murphy, hostess Clements, who ran the dining
room and from whom the watiresses took their instructions,
informed the waitresses that there would be a new policy,
that the housekeeping maids would be admitted at the back
door of the dining room and would be seated and served in
the back of the dining room at half price on certain foods
and at higher prices up to full prices on other foods. That
policy is presently in effect, testified employee Murphy.
Prior to the change, she said, she never served a housekeep-
ing maid or saw one served in the dining room.
Mrs. Mildred Hafford, who worked as a housekeeping
maid for 2 years from January 1971 to January 1973, testi-
fied that she and the other maids had to take their meals
wherever they could find a place, until 2 or 3 weeks before
the strike began (August 24, 1972), when the assistant
housekeeper Betty Gilmore told them they could use the
dining room between I 1 and 11:30 a.m. by going in the back
door; and this is what they did, said employee Hafford. She
further testified that this was not alright before then, and
she knew of no maids who ate in the dining room until the
change in policy.
Mrs. Maria Bucek, currently a maid in the housekeeping
department, testified that when she started her employment,
on her lunch breaks she ate food brought from outside in
unmade-up and sometimes made-up guest rooms, some-
thing she didn't like but did, she said , because she had been
told by fellow maids she could not eat in the restaurant. She
said, she was excited and pleased to hear, about mid-July,
that she and the others could now eat in the dining room
215
and asked Housekeeper Schultz if it was so. Mrs. Schultz
told her yes, something new had been added, the maids
could now eat in the dining room. Employee Bucek said she
proceeded to use the dining room thereafter, and thought
the change to the restaurant was very nice.
Housekeeper Schultz testified that she had never heard of
employees' bemg refused the right to eat in the dining room,
and named some she claimed had been eating there since
September 1971 (when she became housekeeper), but con-
ceded notifying the maids in July or August 1972 that they
were to use the period 11-11:30 a.m . for eating in the dining
room, and assigned them booths in a certain section of the
dining room. She also indicated that for those who did not
want to eat in the dining room there was provided a special
room and part of the banquet hall to get them out of eating
in the rooms of guests of the motel.
After the union filed its second unfair labor practice
charge (underlying this case) in August 1972, and the nego-
tiating meetings resumed on September 20, 1972 , as Union
Secretary Mayer testified, Respondent began taking the po-
sition that it had always been the policy to allow the house-
keeping employees the use of the dining room but that most
everyone had chosen not to use it. At trial, Manager Terry
was a bit more careful in the way he phrased it-saying, there
had been no prohibition against housekeeping employees
eating in the restaurant.
Union Negotiators Lang and Mayers were uncontradict-
ed in testifying that there was no bargaining, or offer or
expressed willingness by Respondent, to include the alleged
historical and now existing policy on dining room privileges
in the contract.
Section 8(a)(5) and (1) Finding
I was impressed that no housekeeping employee testified
to having taken her meals in the dining room prior to early
August or late July 1972, in the face of the contrary testimo-
ny, by several housekeeping employees and the restaurant
waitress, that the practice was not permitted until the an-
nounced change in policy in late July or early August 1972.
I was also impressed that, if use of the dining room for
housekeeping employees had been a thing permitted by
Respondent when negotiations commenced, it would have
been mentioned by Respondent at the start of the negotia-
tions as permitted and more likely approved for inclusion
in the contract than resisted, as it was.
The unilateral making of the change in this working con-
dition respecting use of the dining room by housekeeping
employees in mid-summer 1972, without notice to or discus-
sion with the Union, was a further refusal to bargain and
obstruction of the bargaining process by Respondent in
violation of Section 8(a)(5) and (1) of the Act.
5. Free meals
It was already noted that the Union had a proposal under
article 12 of its proposed contract for three free meals per
full shift for each employee, later modified to one free meal
per shift. As Union Negotiator Lang testified without con-
tradiction, Respondent's position, enunciated at the April
19, 1972, meeting, was that only kitchen and dining room
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees had been getting a free meal per day and would
continue to be provided such, and it would not bargain
about the matter or about making provision for the house-
keeping employees. This remained Respondent's perma-
nent stand, said Lang. Nevertheless, as discussed under
heading B, 4, above, unilaterally in the course of the negoti-
ations, Respondent made its restaurant facilities and meals
available to the housekeeping employees at half price on a
number of foods.
When the strike began on August 24, 1972, which was
shortly after the unilateral change in the restaurant policy
for housekeeping employees, Respondent applied to the lo-
cal state court and procured an injunction limiting the num-
ber and conduct of the pickets at the motel (Resp. Exh. 20).
The injunction became effective August 28, 1972.
In the 5 days, August 24-28, 1972, Respondent served
free meals in its restaurant to all of the employees who were
not on strike and picketing. Respondent did so without any
notice or announcement to the Union, whose representa-
tives were outside the motel, or to the picketing employees,
even though Manager Terry and Housekeeper Schultz came
out frequently to talk to the strikers, as discussed infra; and
with no posting of notice for employees, striking or non-
striking, as Manager Terry conceded. There was also no
discussion with the nonstriking employees as to the reason
for the free meals. Waitress Gloria Murphy, who continued
to work despite the strike, testified that Hostess Clements,
in charge of the restaurant, instructed the waitresses that the
employees eating in the restaurant were not to be charged
for their food, and that the waitress was to keep a record of
the price of the food and have the total rung up without the
employees paying. No reason was given for the "no charge"
policy, said waitress Murphy. The policy continued for sev-
eral days, she said, and ended in the following week.
Manager Terry and President McGuire testified that the
reason for the free meals for employees who worked was to
minimize their exposure to picket harassment on egress
from and ingress to the motel, and to keep down the chances
of incidents between striking and nonstriking employees.
Terry testified that Respondent provided free meals only in
the period August 24-28, from the time the strike began
until the injunction issued, because the earlier picket activi-
ties were blocking the motel entrances . Union Secretary
Mayer conceded that police were called to the premises
several times, but by both sides, he said in the first days of
the picketing.
Section 8(a)(5) and (1) Findings
Respondent argues that the picket-line disturbances were
ample justification for its providing the free meals for all
nonstriking employees to reduce the number of crossings of
the picket line by non-strikers who might normally go out
for food, and thereby reduce the occasions for further dis-
turbances . I agree . But I do not agree that Respondent was
justified in instituting the change in meal policy unilaterally
without notice to the Union and explanation to the employ-
ees.
As General Counsel points out, this was a strike that had
just begun on the part of the Union and striking employees
for the reason that they believed Respondent was refusing
to bargain in good faith for a contract and that
Respondent's recent other unilateral actions, affecting pay,
insurance, and dining room policy, had been designed to
block good-faith bargaining and take apart piecemeal the
ability of the Union to act as bargaining agent of the em-
ployees. In the context of these other actions, and in the
absence of a notice or announcement to the Union and
employees that providing the free meals was a temporary
measure for the purpose of protecting employees, the giving
of free meals had the appearance to the strikers of still
another bad faith unilateral action, designed in this case to
reward employees for not striking. In my view, the giving of
the free meals without notice was a unilateral change in
working conditions and an aggravation of the cause for
striking that further obstructed good-faith bargaining, in
violation of Section 8(a)(5) and (1) of the Act.
6. Free uniforms
The Union's contract proposals from the bargaining (G.
C. Exh. 12 and G.C. Exh. 14, article 11; G.C. Exh. 23, article
15) called for Respondent to provide free uniforms for all
employees.
Union Negotiator Lang said he tried to obtain discussion
of the matter with Respondent at the May 17, 1972, meet-
ing, but was without success.
Union Secretary Mayer said he raised the matter of free
uniforms again at the September 20, 1972, meeting, and
Respondent replied only that it would look into it.
Waitress Gloria Murphy testified that when she was hired
in mid-April 1972, the food and beverage manager, Marcel
Golddinger, told her she would have to buy her own uni-
form. She said she looked about the dining room and, ob-
serving there were different kinds being worn by the
waitresses, asked which kind she should buy. (Union Nego-
tiator Lang testified that, prior to the election in October
1971, when he visited Respondent's dining room he never
saw two waitresses dressed alike.) At the employees' meet-
ing in mid-June 1972, called by Manager Terry, where he
told of the unilateral 10-cent wage increase, discussed under
heading B, 3, supra, according to waitress Murphy, Terry
also announced that it had been decided that the employees
would have to buy only one uniform and Respondent would
give them a second uniform. Waitress Murphy attended a
still later meeting to see the modeling of the waitresses'
uniforms, and, in August 1972, she and the other waitresses
provided their measurements for the uniforms. At the time,
Food and Beverage Manager Golddinger told the employ-
ees, said waitress Murphy, that they would get the uniforms
in December. The uniforms arrived in January 1973, they
were not right and were returned to the manufacturer, who
got them back to Respondent in mid-February 1973, when
they were distributed without cost to the employees, said
waitress Murphy. (The uniforms given out were for the
dining room waitresses. Housekeeping maids wore slacks,
according to Manager Terry.) Waitress Murphy testified
that no mention was made of the Union in connection with
this distribution.
At the December 19, 1972, negotiating meeting, prior to
the distribution of these uniforms, according to both Union
Negotiator Lang and Union Secretary Mayer, Lawyer Har-
RAMADA INN SOUTH 217
ris stated that the Respondent had bought new uniforms for
the dining room employees and was going to give them to
the employees, the waitresses. Lang testified that he and
Mayer objected, saying it had never been done previously.
Harris then asked if it was alright for Respondent to sell
them to the employees, and Lang responded it would be up
to Respondent to decide that question.
In the course of this discussion at the December 19, 1972,
negotiating meeting, as Respondent's notes of the meeting
indicate (Resp. Exh. 9, p. 3), Lawyer Harris, with President
McGuire present, stated that he did not know if the Compa-
ny had provided uniforms in the past.
Without notice to the Union or further discussion, the
free distribution of the uniforms was made on or about
February 15, 1973. At the following February 28, 1973,
negotiating meeting, having learned of the distribution from
employees, Union Negotiator Lang protested the unilateral
decision to distribute the uniforms free, and asked why it
was done over the Union's December 19 objection. Presi-
dent McGuire replied that Respondent had always given
the waitresses their uniforms free. According to Lang, this
was the first time Respondent had made such an assertion.
In attempting to support President McGuire's assertion
of February 28, 1973, which McGuire reiterated at trial,
Manager Terry testified that, while he began his employ-
ment on September 1, 1971, he had heard that uniforms
were supplied to employees when the motel opened (which
was in August 1968, according to McGuire). Terry conced-
ed that he had not distributed free unifroms during his
tenure until the February 1973 distribution (done, he said,
to spruce up the decor), and indicated that the waitresses
had previously gone out and purchased tops (upper por-
tions) for their uniforms, during his regime as manager.
Terry said he wanted an early American coachhouse motif
for the waitresses uniforms and had to call in a Milwaukee
firm to supply it. The process of making a selection of
uniforms occurred well after the Union had been certified,
mostly in 1972, while the bargaining negotiations were in
process, and the final order was placed in September 1972.
The distribution in February 1973 was two free uniforms to
each watiress. Terry admitted that the relationship of the
Union to the matter never entered into his dealing or into
discussion of uniforms with the employees.
Section 8(a)(5) and (1) Finding 5
Respondent's assertion that it had always provided the
waitresses with their uniforms, and therefore was not mak-
ing a unilateral change in the conditions of employment
while the negotiations were in progress, was an after-
thought, contrary to the evidence. Even when Respondent
broached the subject with the Union in December 1972, 10
months after the collective-bargaining negotiations had
been in progress, there was no such assertion of a previous
practice. Lawyer Harris, with President McGuire sitting
with him, stated he didn't know if the Company had provid-
5 The portion of the complaint, para 8(h), alleging refusal to bargain by
the unilateral change of existing conditions of employment by free distribu-
tion of uniforms to certain employees without notice to or consultation with
the Union , came in as an amendment at trial.
ed uniforms in the past. And, the only concrete evidence in
the record was that the waitresses in 1972 bought their own
outfits.
Respondent did not bargain with the Union in the matter
of uniforms for dining room employees, but did what it
chose and distributed free uniforms in February 1973 in
open disregard of the Union and the obligation to negotiate
in good faith; and, in so doing, violated Section 8(a)(5) and
(1) of the Act.
C. Surface Bargaining
Paragraph 8(g) of the complaint alleges that, since on or
about February 24, 1972, Respondent has been negotiating
with the Union in bad faith and with no intention of enter-
ing into a binding contract. As developed by the proof, the
allegation is a summary of the several actions already de-
scribed under heading B and related conduct, evincing an
attitude on the part of Respondent to stall agreeing to a
contract that the Union can reasonably accept on behalf of
the employees, and to deal directly with the employees on
working conditions important to holding them as employ-
ees, as if the Union were not there.
Respondent has used to that end the device of refusing to
negotiate economic matters and insisting on agreement first
on the noneconomic matters of a possible contract. The
result after 11 negotiating meetings over a period of a year
of negotiations (and a lapse of close to 15 months from
certification December 6, 1971, to the last negotiating ses-
sion on February 28, 1973) is the shell of a contract that
would provide a grievance and arbitration procedure and
other niceties if the substantive stuff of which contracts are
made were reached for discussion and bargained. Among
other things, there has been no bargaining about wages, the
work week, overtime pay, meals, uniforms, and health insur-
ance. In my view, Respondent has engaged not in hard
bargaining, as it claims, but in evasive bargaining.
Thus, in the matter of wages, Respondent thought mak-
ing three formal counterproposals for a contract (G.C. Exh.
13, March 23, 1972; G.C. Exh. 20, October 31, 1972; G.C.
Exh. 24, November 28, 1972) has not included any wage
proposal and has given the employees one illegal unilateral
10-cent-per-hour interim wage increase on July 1, 1972 (see
heading B, 3, supra), followed by an offer to give another
like interim wage increase. As Union Negotiators Lang and
Mayer have testified, without contradiction, on wages, law-
yer Harris started on the note in the second meeting March
23, 1972, that its (first) counterproposal G.C. Exh. 13 had
no wage proposal because the employees' present wages
were sufficient for the area. This was in the face of an
admitted rapidly rising wage scale in the area. By July 1,
Respondent had illegally given the employees a unilateral
10-cent-per-hour wage increase, "in desperation" to retain
help, lawyer Harris explained at the September 20 negotiat-
ing meeting, and because he believed that even at that time
the company was fifteen cents below panty, wanted to give
another 10-cent raise (note corroborating admissions, ex-
hibit R-6, p. 3). By letter dated October 11, 1972, Respon-
dent requested union concurrence in a 10-cent-per-hour
wage increase (G.C. Exh. 17), and the Union by response
October 16 (G.C. Exh. 19) refused to concur, alleging this
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was bad-faith bargaining and pointing to schedule A of its
second contract proposal of August 21 as the wage to which
it was prepared to agree.
Nevertheless , Respondent 's second contract proposal of
October 31 (G.C. Exh. 20) contained no wage proposal.
Again at the negotiating meeting that day, Respondent
asked concurrence to put into effect a ten cent increase to
be followed by a 5-cent increase 6 months later , in order to
maintain help in the face of the rising wage scale of the area,
Lawyer Harris said, but the Union would not concur.
Respondent brought in its third contract proposal (G.C.
Exh. 24) to the November 28, 1972, negotiating meeting,
again without any wage proposal included (its schedule or
Appendix A was a blank , as in the previous proposals). At
the meeting , Lawyer Harris repeated Respondent's desire to
put into effect the 10-cent wage increase plus 5 cents 6
months later, but would not negotiate a contract wage. The
union negotiators stood on their position of a complete
contract, not piecemeal negotiation.
It was in connection with this meeting that Union Secre-
tary Mayer flared up in anger at lawyer Harris over negoti-
ating tactics, and Harris stopped the negotiations . In a letter
to the Union dated the same day (Resp . Exh. 23), recogniz-
ing that he had stopped the meeting and stating that he
would like to see negotiations resumed , Lawyer Harris add-
ed that he was making his 10 cent plus 5 -cent wage increase
a firm wage proposal . Nonetheless, when negotiations re-
sumed in December and continued into 1973 , it was clear
said Union Negotiator Lang that the letter was not a con-
tract wage proposal but the same interim proposal that Re-
spondent wanted to effectuate without a contract (see
Respondent 's notes of January 15, 1973, meeting, Resp.
Exh. 10, p. 4).6
Hence on the most important needs for the motel employ-
ees-wages , meals , uniforms , health insurance-the appar-
ent tactic of Respondent has been to detach these from the
bargaining and create the appearance for the employees
that the Respondent has been taking care of the employee
needs directly and unprompted by Union effort , while the
Union spins its wheels in negotiations without end.
The tactic is underscored by the stalling , and the attitude
of disparagement adopted by Respondent toward the
Union . Illustrative was the initial 3 month (December 1971-
March 1972) delay in supplying wage and employee infor-
mation for negotiations , see heading B, 1, supra , and later
a similar one month (October-November 1972) delay on
supplemental employee information (testimony Union
Negotiator Lang), from which it was clear, by the testimony
of Manager Terry, that Respondent put all other business
ahead of its collective-bargaining responsibility , contrary to
the statutory duty, compare Quality Motels of Colorado, Inc.,
189 NLRB 332 (1971).
At the bargaining table , further illustration appears from
admissions by Respondent such as at the September 20,
1972 negotiating meeting (Resp . Exh. 5 pp . 3, 4), when
Lawyer Harris told the union negotiators that management
6In the light of Respondent's admitted awareness that by October 1972
comparable area wages had risen in about eight months by ninety cents per
hour (heading B, 3, supra), Respondent was fully aware that it was not
making a serious contract proposal for wages in its November 28, 1972, letter.
would prefer not to have a Union, that in a moral and
ethical sense the Union did not represent the employees of
the motel, and that it was Respondent's information that
there were then only five persons among the employees
sympathetic to the Union.
Respondent's direct communications with the employees
well after the Union had been certified and when negotia-
tions for a contract had begun, provide still further illustra-
tion of disparagement of the Union by management.
Manager Terry's denigrating comments at meetings with
employees in February-March 1972 were noted under head-
ing B, 1, supra. At these same meetings, Housekeeper
Schultz, speaking of the Union as though it had not been
certified as bargaining representative, told the employees
(and testified that Manager Terry joined with her in saying)
that if the Union came in the employees would be limited
to a 40-hour week and would not get extra shift work be-
cause Respondent would not pay time-and-a-half over 40
hours.
Respondent's direct unilateral dealing with the employ-
ees on insurance coverage, wage raise, use of dining room
facilities, meal policy, free meals, and supplying uniforms
were in themselves a disparagement of the Union and in
some instances accompanied by directly disparaging state-
ments by management representatives to the employees, as
noted under heading B above. When the strike began in
August 1972, the disparagement of the Union carried over
into direct dealings with striking employees by management
representatives in disregard of the Union, as discussed infra
under heading E.
Section 8(a)(5) and (1) Finding
Respondent's conduct at and away from the bargaining
table was an evasion of its duty to bargain with the Union
in good faith. By refusing to bargain about wages and relat-
ed important economic matters and dealing directly and
unilaterally with the employees on them, while holding the
Union to negotiation of procedural and noneconomic con-
tract matters, at the same time disparaging the effectiveness
of the Union, Respondent blocked good faith negotiations
in violation of Section 8(a)(5) and (1) of the Act.
D. Unfair Labor Practice Strike
Union Secretary Mayer testified that in mid-March 1972,
the Union held a meeting of the employees to discuss the
lack of progress that had been made in getting negotiations
going, and heard employee complaints that the Respondent
appeared to be making plans to institute its own insurance
program. A strike authorization vote was taken, and the
union representatives were given authority to call a strike.
Following the temporary suspension of the contract neg-
otiations on May 17, 1972, for completion of the Disney
World contract negotiations, in which the Union's represen-
tatives became absorbed, the Union completed and mailed
to Respondent on August 21, 1972, its revised (second) con-
tract proposal, G.C. Exh. 14, and requested resumption of
the bargaining meetings, Resp. Exh. 25. On August 22, the
Union's representatives held another "progress" meeting
with the employees, according to Union Secretary Mayer,
RAMADA INN SOUTH
where the employees told of Respondent's recent unilateral
wage increase, which was far short of the wage adjustment
needed, they said; and there was discussion of the earlier
unilateral actions by Respondent on insurance and increase
of insurance. The sentiment, according to Mayer, was that
the Union and employees were being picked apart piece-
meal by the unilateral actions, that the Union was made to
look powerless by the 10-cent unilateral wage increase, and
that only a strike would induce Respondent to bargain for
a whole contract. A vote to strike now was taken. Mayer
told the employees it would be an unfair labor practice
strike based on the recent unilateral actions of Respondent,
and employees not in attendance were hastily contacted to
get a consensus that concurred in the strike, according to
Mayer. The strike began on the morning of August 24 and
the same day the unfair labor practice charge was filed
(G.C. la), apprising Respondent that the strike was precipi-
tated by its bad-faith bargaining. The strike was still in
progress at the time of trial.
Finding
I have already found that Respondent's actions, prior to
commencement of the strike, by threat not to bargain and
by instituting unilaterally, without notice to or approval of
the Union, a wage increase, an employee insurance pro-
gram, and employee restaurant meal service, violated Sec-
tion 8(a)(5) and (1) of the Act, and that for these and other
reasons Respondent approached the bargaining confer-
ences without a good-faith desire to reach agreement, also
in violation of Section 8(a)(5) and (1) of the Act. According-
ly, the ensuing strike was an "unfair labor practice strike,"
Stark Ceramics, Inc., 155 NLRB 1258, 1269 (1965), enfd.
375 F.2d 202 (C.A. 6, 1967).
After the strike began, the additional unilateral actions by
Respondent, in providing free meals to nonstrikers and free
uniforms to dining room employees, and its continued fail-
ure in these and other respects to bargain in good faith in
violation of Section 8(a)(5) and (1), together with the viola-
tion of Section 8(a)(1), discussed next under heading E,
infra, have aggravated and prolonged the unfair labor prac-
tice strike and made more difficult the advancement of
negotiations, which came to a standstill after the February
28, 1973, meeting.
E. Direct Solicitation of Employees
to Abandon Strike
Housekeeper Schultz testified that on the day the Union
struck the motel , August 24, 1972, and the several succeed-
ing days, she went outside the motel to and through the
picket line to talk to the employees . She said she first talked
to employee Woodrome of the housekeeping department,
and asked her and several other employees in a parked car
across the highway from the motel , if they were coming to
work . Employee Woodrome replied, said Mrs. Schultz, that
she would wait and see what happened. Thereafter employ-
ee Woodrome and her companion employees went on the
picket line, according to Mrs. Schultz. Following this initial
conversation, testified Housekeeper Schultz, she talked to
every housekeeping department employee on the picket line
219
and to some more than once, asking them to come back to
work and telling them their jobs were on the other side of
the picket line, and that if they wanted their jobs they would
have to cross the picket line, she couldn't bring the jobs to
them.
On the second day of the strike, which was the regular
payday, she also brought out the paychecks to the picketing
employees of whom, she said, there were about 20. For
several, who asked to be paid up to date, she asked that they
sign a termination card indicating why they were quitting or
otherwise terminating their jobs, although she did not re-
quire their signing, she said. (Employee Woodrome con-
firmed, in general, Housekeeper Schultz's testimony as it
affected herself.)
Section 8(a)(1) Finding
The strike was an unfair labor practice strike , and the
direct urgings by the management 's representative to the
individual strikers to abandon the strike and return to work,
rather than dealing with the employees through their Union,
was a violation of Section 8(a)(1) of the Act. Stark Ceramics,
Inc., supra, 155 NLRB 1258 , 1269 (1965), enfd . 375 F.2d 202
(C.A. 6, 1967).
As noted under heading C above , this conduct was a
further action by Respondent to ignore the Union and dis-
parage it in the eyes of the employees.
CONCLUSIONS OF LAW
1. By refusing since February 24, 1972, to bargain in
good faith with the Union as the certified representative of
the unit of Respondent's motel employees, including a
threat not to bargain unless unfair labor practice charges
were withdrawn, evading serious or any bargaining on, and
substituting unilateral grants of, wage increase, insurance,
and other economic benefits to employees without notice to
or concurrence of the Union, and disparagement of the
Union's representation of the employees, Respondent has
engaged in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
2. These unfair labor practices have caused an unfair
labor practice strike by Respondent's bargaining unit em-
ployees. The strike has been prolonged by Respondent's
continuing and additional unfair labor practices, involving
continued refusal to bargain in good faith, including addi-
tional unilateral grants of free meals, and free uniforms to
employees without notice to or concurrence of the Union,
in violation of Section 8(a)(5) and (1) of the Act, and by
Respondent's direct solicitation of individual striking em-
ployees to give up the strike, instead of Respondent dealing
with and through the Union, in violation of Section 8(a)(1)
of the Act.
3. The described unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
At the opening of the trial, counsel for the Union indi-
cated that it would demonstrate cause for applying, and
would seek, against Respondent extraordinary monetary
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedies beyond the remedies normally applied to correct
a 8(a)(5) refusal to bargain. At the close of trial, I suggested,
if the Union was still of the view that extraordinary reme-
dies were justified and required, that it make known the
special remedies sought and the reasons that would justify
their application. No brief, memorandum, or other sugges-
tion on this subject has been received from the Union.
On the other hand, at the close of trial, counsel for the
General Counsel expressly renounced seeking any extraor-
dinary monetary remedies, and I see no need at this juncture
for application of any such.
In connection with the proposed order that the Respon-
dent bargain in good faith, General Counsel did ask for
application of the remedy developed by the Board in Mar-
Jac Poultry Company, Inc., 136 NLRB 785, 786-787 (1962),7
so that the employees would enjoy a year of good faith
bargaining and not be deprived of the services of the Union
as their selected bargaining agent by technical expiration of
the initial year of certification which, unless altered, began
December 7, 1971. There is merit in this suggestion, and I
will provide for it.
It will be recommended that Respondent:
(1) Cease and desist from its unfair labor practices.
(2) Upon request, resume bargaining and bargain with
the Union in good faith, recognizing that the initial year of
certification of the Union as representative of the bargain-
ing unit shall be deemed to begin on the date Respondent
commences to bargain with the Union in good faith.
(3) Offer, upon application, immediate and full reinstate-
ment to his job to each of the unfair labor practice strikers
who apply, dismissing if necessary persons hired on and
after August 24, 1972. In this regard Respondent shall make
whole for any resulting loss of earnings any applying striker
who is refused reinstatement within 5 days after his applica-
tion, the loss of earnings to be computed on a quarterly
basis as set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Com-
pany of Miami, Inc., 344 U.S. 344 (1953), with interest at 6
percent per annum as provided in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), approved in Philip Carey Manu-
facturing Company v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964),
cert. denied 379 U.S. 888.
(4) Post the notices provided for herein.
(5) Because the Respondent violated fundamental em-
ployee rights guaranteed by Section 7 of the Act, and be-
cause there appears from the manner of the commission of
this conduct an attitude of opposition to the purposes of the
Act and a proclivity to commit other unfair labor practices,
it will be further recommended that the Respondent cease
and desist from in any manner infringing upon the rights
guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle
Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941);
P. R. Mallory and Co. v. N.L.R.B., 400 F.2d 956, 959-960
(C.A. 7, 1968), cert. denied 394 U.S. 918; N.L.R.B. v. Bama
Co., 353 F.2d 323-324 (C.A. 5, 1965).
7 And see Commerce Company, d/b/a Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817; Burnett
Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A.
10, 1965); Capitan Drilling Company, 167 NLRB 144, 146 (1967), enfd. 408
F.2d 676 (C.A. 5, 1969).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDERS
For the purpose of determining the duration of the certifi-
cation of the Union as the recognized bargaining represen-
tative of the appropriate unit, the initial year of certification
shall be deemed to begin on the date the Respondent com-
mences to bargain in good faith with the Union.
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with the
Union as the collective-bargaining representative of the
unit, found appropriate by the Board, comprising
Respondent's employees at Ramada Inn South, Orlando,
Florida, excluding all front office employees, including desk
clerks, office clerical employees, and all guards and supervi-
sors as defined in the Act.
(b) Threatening to refuse to bargain unless the Union
withdraws pending unfair labor practice charges.
(c) Unilaterally, without notice to or consultation with
the Union, giving wage increases, insurance benefits and
increases thereof, dining room privileges, free meals, free
uniforms, or other benefits to its employees or effecting
other changes in their conditions of employment.
(d) Directly soliciting striking and picketing employees
to end their strike and picketing, without negotiation
through the Union.
(e) In any other manner interfering with, restraining, or
corercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the Union as the bargaining representative of all employees
in the unit, described in paragraph 1(a) above, with respect
to pay, hours, insurance benefits, dining room privileges,
meals , uniforms, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody it in a
signed agreement.
(b) Upon application, offer all employees, who partici-
pated in the strike, which began on August 24, 1972, and
who have not already been reinstated, immediate and full
reinstatement to their former positions, without prejudice to
their seniority or other rights and privileges , dismissing if
necessary persons hired by Respondent on and after August
24,1972 . Make whole each such applying employee for any
loss of earnings suffered, if Respondent should refuse to
reinstate him, for so long as the refusal continues beginning
5 days after the employee applied for reinstatement, and
computing the loss of earnings in the manner set forth in the
section of this decision entitled "The Remedy."
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations , and Order herein shall, as provided in See.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
RAMADA INN SOUTH 221
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to ascertain loss of earnings under the terms of this Order.
(d) Post in its establishment at Orlando, Florida, copies
of the attached notice marked "Appendix." " Immediately
upon receipt of copies of said notice, on forms to be provid-
ed by the Regional Director for Region 12 (Tampa, Flori-
da), the Respondent shall cause the copies to be signed by
one of its authorized representatives and posted, the posted
copies to be maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from the date of the receipt of this Order,
what steps the Respondent has taken to comply herewith.
9 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
reached, embody it in a signed agreement. The bargain-
ing unit is:
All of our employees at Ramada Inn South, Orlan-
do, Florida, excluding all front office employees, in-
cluding desk clerks, office clerical employees, and all
guards and supervisors as defined in the Act.
WE WILL NOT threaten to refuse to bargain unless the
Union withdraws pending unfair labor practice
charges.
WE WILL NOT unilaterally, without notice to or consul-
tation with the Union , give wage increases , insurance
benefits and increases thereof, dining room privileges,
free meals , free uniforms , or other benefits to employ-
ees, or effect other changes in their conditions of em-
ployment.
WE WILL NOT directly solicit striking and picketing
employees to end their strike and picketing, without
negotiation through the Union.
WE WILL NOT in any other manner interfere with your
right to join, assist, or be represented by, a labor union,
or interfere with any of your rights of self-organization
and mutual aid guaranteed under Section 7 of the Na-
tional Labor Relations Act.
Since the Board has found that the employees on
strike since August 24, 1972 are unfair labor practice
strikers, WE WILL offer back to each who applies his old
job (if he has not already been reinstated), and will
dismiss, if necessary, persons hired since August 24,
1972. If we should fail to reinstate an applying striker
within 5 days after his application, WE WILL pay him for
any resulting loss of earnings suffered by him.
The National Labor Relations Board having found, after a
trial, that we violated the National Labor Relations Act, we
hereby notify you that:
WE WILL NOT fail or refuse to bargain collectively in
good faith with Hotel, Motel, Restaurant Employees
and Bartenders Union, Local 737, AFL-CIO (the
Union).
WE WILL upon request bargain collectively in good
faith with the Union as the bargaining representative of
all employees in the bargaining unit described below
with respect to pay, hours, insurance benefits, dining
room privileges, meals, uniforms, and other terms and
conditions of employment, and, if an understanding is
Dated By
O'LAND, INC. D/B/A RAMADA INN
SOUTH
(Employer)
(Representative) (Title)
This is an official 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 complaince with its provisions may be direct-
ed to the Board's Office, Room 706, Federal Office Build-
ing, 500 Zack Street, P 0 Box 3322, Tampa, Florida 33602
Telephone 813-228-7227.