Towne Plaza Hotel

National Labor Relations Board - Board Decisions

Sep 21, 1981

258 N.L.R.B. 69 (N.L.R.B. 1981)

TOWNE PLAZA HOTEL
Morco, Inc. d/b/a Towne Plaza Hotel and Hotel,
Motel and Restaurant Employees Union, Local
No. 294, AFL-CIO. Case 19-CA- 1 1780
September 21, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 13, 1981, Administrative Law Judge
Burton Litvack issued the attached Decision in this
proceeding and on January 15, 1981, he issued an
Erratum thereto. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in opposition.
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 and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Morco, Inc.,
d/b/a Towne Plaza Hotel, Yakima, Washington, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent also argues that the Administrative Law Judge erred in re-
fusing to admit certain testimony concerning the parties' 1979 contract
negotiations and objects to his characterization of testimony and his
manner of questioning certain witnesses. Respondent further argues that
these actions indicate bias on the part of the Administrative Law Judge
which warrants reversal of his Decision. After a careful examination of
the entire record, we are satisfied that Respondent's allegation of bias is
without merit.
2 Absent exceptions thereto. we adopt, pro forma, the Administrative
Law Judge's conclusion that Respondent did not violate Sec. 8(a)(l) of
the Act by soliciting withdrawals from the Union.
258 NLRB No. 16
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
in good faith with Hotel, Motel and Restau-
rant Employees Union, Local No. 294, AFL-
CIO.
WE WILL NOT grant pay raises to our em-
ployees in order to denigrate the Union in the
eyes of our employees and to induce our em-
ployees from support of the Union.
WE WILL NOT announce to our employees
that pay raises come from us and not from the
Union.
WE WILL NOT announce rules prohibiting
the discussion of union affairs during company
time.
WE WILL NOT interrogate our employees as
to their union membership and the union mem-
bership of their fellow employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL, upon request, bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Hotel, Motel and Restaurant Employees
Union, Local No. 294, AFL-CIO, as the ex-
clusive representative of all the employees in
the appropriate bargaining unit described
below and, if an agreement is reached, embody
it in a signed contract. The appropriate unit is:
All housekeeping and maintenance employ-
ees employed by the Towne Plaza Hotel;
excluding guards, supervisors, and all other
employees.
MORCO, INC. D/B/A TOWNE PLAZA
HOTEL
DECISION
STATEMENT OF THE CASE
BURTON LITACK, Administrative Law Judge: This
proceeding was heard before me on May 1, 1980, in
Yakima, Washington. On November 14, 1979, and April
4, 1980, respectively, the Regional Director for Region
19 of the National Labor Relations Board, herein called
the Board, issued an original and an amended complaint,
pursuant to a charge filed by Hotel, Motel and Restau-
rant Employees Union, Local No. 294, AFL-CIO,
69
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the Union, on September 18, 1979.' The
complaint alleges, in substance, that Morco, Inc. d/b/a
Towne Plaza Hotel, as amended, herein called Respond-
ent, violated Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, herein called the Act,
by refusing to bargain with the Union as the majority
representative of certain of Respondent's employees and
by unilaterally granting to said employees a pay raise
without notice to or bargaining with the Union, and Sec-
tion 8(a)(l) of the Act by telling employees that the
aforementioned raise came from it and not from the
Union, by interrogating an employee as to her union
membership and that of her fellow employees, and by in-
stigating employee resignations from the Union. Re-
spondent filed an answer, denying the commission of any
unfair labor practices and alleging certain affirmative de-
fenses to its alleged unlawful refusal to bargain, including
that the bargaining unit, as alleged in the complaint, is
inappropriate, that Respondent is not a successor em-
ployer and, thus, is under no duty to recognize or bar-
gain with the Union, that the Union no longer represents
a majority of Respondent's employees, that at all times
material herein the Union has been "defunct," that the
Union unlawfully induced employees to retain their
membership by means of a special reinstatement fee, and
that the Union threatened employees with termination
unless they retained membership in the Union. As an af-
firmative defense to the allegation concerning the raise in
pay, Respondent contends that such was given pursuant
to a past practice of such raises. Finally, counsel for the
General Counsel was permitted, at the hearing, to amend
the complaint further and to allege as an additional viola-
tion of Section 8(a)(1) of the Act that Respondent unlaw-
fully announced a rule prohibiting employees from dis-
cussing union matters on company time.
All parties were afforded full opportunity to appear, to
introduce and offer evidence, and to examine and cross-
examine witnesses. Extensive briefs filed by counsel for
the General Counsel and by Respondent, have been care-
fully considered. Based upon my examination of the
entire record in this case, upon the briefs filed on behalf
of the parties, and upon my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
1. URISDICTION
Respondent, a Washington corporation, maintains an
office and place of business in Yakima, Washington,
where it is engaged in the operation of a hotel and res-
taurant. During the 12-month period immediately pre-
ceding the issuance of the amended complaint, which
period is representative, Respondent had gross revenues
in excess of $500,000 and purchased goods and products
valued in excess of $50,000, either directly from suppliers
located outside the State of Washington or from suppli-
ers within said State, who, in turn, obtained said goods
and products directly from suppliers located outside
Washington. Respondent admits, and I find, that it is an
I Unless otherwise stated, all dates herein are in 1979.
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. I.ABOR ORGANIZATION
Respondent admits, and I find, that the Union is now,
and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. ISSUES
1. Since September 4, has Respondent failed and re-
fused to bargain with the Union in violation of Section
8(a)(l) and (5) of the Act?
2. On or about May 24, did Respondent violate Sec-
tion 8(a)(l) and (5) of the Act by unilaterally granting a
pay raise to its employees?
3. Did Respondent violate Section 8(a)(l) of the Act
by informing employees that the aforementioned raise
came from it and not from the Union?
4. Did Respondent violate Section 8(a)(1) of the Act
by, in mid-July, announcing a rule prohibiting employees
from speaking about the Union on company time?
5. On or about August 23, did Respondent violate Sec-
tion 8(a)(1) of the Act by instigating employee resigna-
tions from the Union?
6. On or about September 1, did Respondent violate
Section 8(a)(l) of the Act by interrogating an employee
regarding her union membership and that of her fellow
employees?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent has been engaged in the operation of a
hotel-or motor inn as it was described at the hearing-
in Yakima, Washington, for at least 15 years. Prior to
March, the shares of stock in Respondent were owned
by Paul Cook, Bob Lewis, John Noel, and Roger Noel,
with Cook being the majority stockholder and manager
of the motor inn. A restaurant is adjoining the facility;
however, while Respondent owned the plant and the
equipment, it leased the operation of the restaurant to
various other entities.2 In March, the Noel family pur-
chased all the outstanding stock in the corporation, and
Roger Noel assumed responsibility for the operation of
the motor inn. The record reveals that, when the Noel
family gained control of Respondent, there was no an-
nouncement to the motor inn's employees of the fact, nor
was there any hiatus in the operation of the facility.
Moreover, the supervisory staff remained the same, and
there was a complete carryover of employees. Thus,
Vallee Jo Eckel remained the resident manager of the
motor inn and Dorothy Forest was, and is, the supervi-
sor of the housekeeping staff. The record further reveals
that, on July 16, Respondent purchased the restaurant
from the then lessee and that thereafter the motor inn
and restaurant have been operated as a single integrated
2 The record discloses that the restaurant facility has operated under
several different names, including "The Black Forest" and "The Country
Cousin." Presumably, said names were designed to reflect the operational
styles of the various lessees.
70
TOWNE PLAZA HOTEL
facility. Donna Moutray is the restaurant manager, and
Gary Charlton is the head chef and kitchen manager.
The record establishes that the motor inn employs in-
dividuals in the following job classifications: 15-18
maids, 2 maintenance workers, 7 desk clerks, and I reser-
vationist. Gloria Storment is in charge of the front desk,
and Marion Hiebert and Nancy Root are classified as co-
assistant housekeepers and laundry maids. The record
further establishes that there are approximately 72 restau-
rant employees, working as waitresses, waiters, busboys,
and cooks. As between the motor inn employees and the
restaurant employees, while they all receive the same
holidays and are under the same vacation policy, the em-
ployees are separately supervised, have different health
plans, and are paid on different schedules (the motor inn
employees are paid weekly; while restaurant employees
are paid biweekly). According to Eckel, there is some in-
terchange among the employees, with the motor inn re-
servationist working as a restaurant waitress and restau-
rant busboys carrying guests' luggage to the rooms and
performing room service functions. There is no evidence,
however, that any hotel or restaurant employees, other
than the housekeepers, perform maid functions.
In approximately 1967, the State of Washington De-
partment of Labor and Industries certified the Union as
the exclusive representative for purposes of collective
bargaining of Respondent's employees in a unit of all
hotel employees; excluding office clerical employees,
professional employees, guards, and supervisors. Subse-
quent to said certification, Respondent and the Union en-
tered into successive collective-bargaining agreements,
with the most recent of said agreements having expired
in April 1978. Pursuant to the agreements between 1968
and 1972, Respondent recognized the Union as the exclu-
sive representative of all its employees in the aforemen-
tioned bargaining unit and, in 1971, the Regional Direc-
tor for Region 19 gave Board certification to the Union's
status.3 However, despite the certifications by both the
Board and the State of Washington and despite their
prior bargaining history, in their successive agreements
between 1972 and 1978 the Union and Respondent evi-
dently treated the bargaining unit, which was represent-
ed by the Union, as including only Respondent's house-
keepers and maintenance employees, and excluding all
other employees, guards, and supervisors.4 There is no
record evidence as to why, or under what circumstances,
In 1974, the Union and another labor organization, acting as joint pe-
titioners, filed a representation petition with Region 19, seeking to repre-
sent the employees of the Country Cousin restaurant. An election was
held, and a majority of the ballots were cast against representation by the
aforementioned labor organizations.
4 While the desk clerks were apparently no longer considered by the
parties as being included in the bargaining unit, the employee classifica-
tion and wage rate scale, which was attached as an appendix to the
successive agreements between 1972 and 1978, continued to list desk
clerks as a covered job category. Further confusing the exact scope of
the bargaining unit is an all-party informal settlement agreement, which
was entered into by Respondent and the Union in 1978. By its terms, Re-
spondent agreed to bargain with the Union for employees in a unit
which, among other classifications, included desk clerks, night auditors.
and switchboard operators. Despite the wording of the settlement, the
record indicates that the parties continued to treat the unit as they had
prior to the settlement.
the parties decided to exclude the front desk employees
from the bargaining unit.
Although not entirely clear from the record, in negoti-
ations for the successive agreements described above
Paul Cook represented Respondent and Don Carter, sec-
retary-treasurer, represented the Union. Inasmuch as nei-
ther individual testified at the hearing, there is no direct
evidence as to the extent of any negotiations either prior
to or immediately subsequent to the expiration of the
parties' most recent contract. However, Thomas M.
Adams, an International organizer for the Hotel, Motel
and Restaurant Employees Union, recalled having read
some notes, which evidently were prepared by Carter,
regarding somewhat limited negotiations between himself
and Cook in 1978. In any event, Carter resigned from his
position in approximately October 1978 and, at least
from that date until May 1979, there were no contract
negotiations between representatives of the parties.
The record discloses that, due to Carter's abrupt resig-
nation and the Union's poor financial position at the
time, the officers of the Union requested that the Hotel,
Motel and Restaurant Employees Union assume oper-
ational control over the Local until the internal financial
and leadership crisis was resolved. Accordingly, in Octo-
ber 1978, the Union was placed in trusteeship status by
the International union and an individual, Mario Vaccar-
ino, was designated as the trustee. In early March 1979,
Adams was "sent in by the International to help with the
trusteeship and also to train Georgia Lai as a local orga-
nizer and business agent." According to Adams, in
March the Union "was in pretty poor shape generally,"
with many contracts, including that with Respondent,
due for negotiations. Therefore, Adams set upon the task
of speaking to members, examining the Union's files, and
arranging negotiations for successor collective-bargaining
agreements. 5
Aware that there had been no negotiations with Re-
spondent since Carter's resignation, in late April Adams
and Georgia Lai visited the Towne Plaza and spoke to
Vallee Jo Eckel in the hotel lobby by the front desk.
Adams introduced himself and Lai and asked who he
should contact about commencing contract negotiations.
Eckel replied that he should contact the new owner,
Roger Noel, at the Yakima Pepsi Cola Bottling Co.,
which Noel also owned. Thereafter, on or about May I,
with Adams standing beside her at the Union's office,
Lai telephoned Noel at his office. According to Lai, who
at all times appeared to be an honest and candid witness,
she asked Noel if they could arrange a date to begin ne-
gotiations. Noel began yelling, stating that he did not
want the Union or to meet with it. At that point, Lai
placed Noel on hold and gave the phone to Adams. The
latter introduced himself and said that the Union wanted
to have a negotiating session. Noel asked why, and
Adams explained that there had been prior negotiations
between Carter and Cook, that Noel had assumed own-
6 There is no e idence that during its crisis period (October 1978
through March 1979) the Union faltered or was unable to represent its
members. To the contrary. Adams testified that there had been no inter-
ruption in the processing of grievances and that the Union was continu-
ing to represent employees.
71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ership of the hotel, and that the Union still represented a
majority of the hotel's maids. Finally, Noel calmed down
and assented to a meeting, and they agreed upon May 7
as the date.
Lai and Adams arrived at the Towne Plaza and met
with Roger Noel and Eckel in the afternoon of May 7. 6
According to Adams, at the outset of the bargaining ses-
sion, "Roger Noel asked that he had to meet with us,
and I explained, yes, he should meet with us to negotiate
the contract." Noel replied that "he just . . . didn't
really appreciate bargaining with the Union and wished
he didn't have to." At that point, Adams gave Noel a
complete contract proposal, including wage rates. For
the remainder of the meeting, the parties discussed the
various contract provisions, leaving only about six or
seven not discussed. Concerning union security, Adams
explained to Noel that the Union wanted a "union shop"
with a 31-day grace period for nonmembers to join the
Union. In response, Noel questioned the Union's major-
ity status, and Adams replied that the Union did repre-
sent a majority. As to the scope of the unit, Adams,
under the belief that the bargaining unit encompassed all
the contractually enumerated classifications, requested
the overall hotel unit. Eckel responded that, during the
prior negotiations between Carter and Cook, they had
agreed that only maids and utility employees would be
included. Adams replied that he could not dispute that
and agreed to the limited scope of the unit. Finally, as to
wages, Noel glanced at the back page, which listed the
job classifications and proposed wage rate7 for maids,
and just asked if such was the Union's proposal. Adams
said that it was. As the meeting ended, Adams told Noel
that he would draft a new proposal, conforming to
agreements reached at that session, and Adams and Noel
agreed to set a date for another meeting.
They did so, and the next negotiating session was
scheduled for May 17 at the Pepsi Cola plant. When
Adams and Lai arrived, Eckel was waiting with news
that Noel would be unavailable for a meeting that day.
Adams and Lai then left but, before leaving, Adams gave
Eckel a second complete contract proposal which,
Adams explained, embodied the parties' agreements at
the last meeting.
On or about May 24, prior to any further negotiating
session, and without notice to either the hotel maids or
the Union, Respondent gave the maids a pay raise to $3
per hour. Co-assistant housekeeper Nancy Root credibly
testified that, on May 24 when she asked at the front
desk for her paycheck, she was told to report to Eckel's
office. In the latter's office, Eckels gave Root her check,
said that there was a raise in the check, "and that it was
from Roger Noel and had nothing to do with the
Union." Likewise, co-assistant housekeeper Marion Hie-
bert credibly testified that Eckel also gave her the check
and said, "This is from Roger not from the Union." Ac-
6 The following account of the negotiations between Respondent and
the Union comes from the uncontroverted testimony of Lai and Adams.
Like Lai, Adams impressed me as being an honest and particularly
candid witness and is credited herein.
I For maids and laundry workers, the Union demanded $3.10 per hour
retroactive to May I, 1979. $3.45 per hour for the second year, and $3.80
per hour for the third year of the contract. As of May 7, maids were
earning $2.90 per hour.
cording to Eckel, regarding these conversations, "I prob-
ably said that Roger gave the raise . . . I don't recall
saying anything against the Union at that time." Between
Root, Hiebert, and Eckel, I cannot credit the rather ob-
lique denial by Eckel. As to the reason for or the timing
of the raise, other than offering a list of past raises by
Respondent for the maids, neither Noel or Eckel offered
any explanation or justification for this particular pay
raise. 8 For his part, Union Official Adams admitted that
he was immediately informed of the raise by the maids
but that he chose not to demand bargaining over it at
that time because "I thought [Noel] might have put them
back to the previous wage if I had said something about
it."
The parties scheduled another bargaining session for
May 29 at the Pepsi Cola plant. Adams and Lai arrived
there and met with Noel and Eckel. Noel began by stat-
ing that he had been busy and out of town, that he had
not had sufficient opportunity to examine the Union's
proposals, and that he could not negotiate that day.
Adams replied that he could at least go through the new
proposal with Noel and explain what had been deleted,
added, or changed from the prior proposal. He did so,
and Noel "mentioned the wages seemed rather high."
The parties did not meet again until July 16 in a ban-
quet room at the Towne Plaza. Adams and Lai repre-
sented the Union; Noel, Eckel, and a bookkeeper repre-
sented Respondent. The meeting lasted for much of the
day. Before discussing specific proposals, Noel presented
a written counterproposal to the Union, and the entire
session consisted of the parties comparing and contrast-
ing the two proposals. When they reached union secu-
rity, Adams noted that Respondent wanted to make
membership in the Union voluntary. Noel responded by
again questioning whether the Union truly represented a
majority of the maids and utility workers. Adams replied
that the Union did, ". . . and I explained if he wanted to
we would be glad to prove it, and we discussed a couple
of ways we could prove it, and then he kind of dropped
the discussion on that." As to wages (Respondent offered
$3 per hour-or the amount of its last raise-for the
maids), Adams said that Respondent's proposal was too
low, that it was unacceptable to the maids, and that the
maids requested that Noel "come up with a little more."
Noel agreed that the maids were worth more but that he
could not afford more. Adams said that he would take
the offer back to the maids but indicated that they prob-
ably would not agree.
N The record establishes that since 1974 the maids received the follow-
ing new per-hour raises:
Date New Wage Rate
January 1974 S2.20
April 1974 $2.35
July 1975 $2.49
July 1976 $2.69
July 1977 $2.75
Septemberl978 $2.90
May 1979 $3.00
Regarding these raises, Eckel admitted that the 1975, 1976, and 1977
raises were contractually mandated. At first she maintained that the two
1974 raises were not contractually mandated but later admitted, "I'm not
sure." There is no evidence as to the circumstances surrounding the 1978
raise.
72
TOWNE PLAZA HOTEL
I hereby request a withdrawal card from [the
Union.] If this request is not granted, I am terminat-
ing my union membership, effective immediately.
Name
Membership No.
Date
Notwithstanding Adams' ambiguous threat of August
23 and Noel's aforementioned refusal to meet again, the
parties held another-and final-bargaining session on
September 4 at the Towne Plaza. Adams and Lai repre-
sented the Union, and Noel, Eckel, and the bookkeeper
represented Respondent. According to Lai, the meeting
lasted "a couple of hours" and among the items dis-
cussed were wages, union security, uniform allowance,
the rooms per day, and the August 29 letter to each
maid. With regard to the latter, Adams mentioned a
strike and possible picketing, and Noel responded, saying
that, if the Union struck, that was when the fight would
begin. Apparently neither party expressed any change in
its previous positions on any of the aforementioned
issues. Thus, with respect to wages, Adams, for the first
time, expressed his displeasure that Respondent unilater-
ally granted a wage increase to the maids on May 24 and
he asked for Noel's response to the Union's new wage
proposal of $3.30 per hour. Noel replied that he could
only afford $3 per hour, that he wanted to give more,
and that the maids should wait a while and they would
get more. Noel said he would not give more until Adams
could prove that there was some reason for an immediate
increase. Adams replied that it would be nice if Noel
showed some movement, but Noel refused to increase his
offer. Concerning union security, Noel raised but again
quickly dropped the matter of the Union's majority
status. At that point, the meeting ended, and Adams said
that "we'd take [Respondent's proposals] back to the
maids to let them discuss and see what they wanted to
do."
Adams left the Union in October and, on a number of
occasions thereafter, Lai telephoned but never could
reach Noel about further negotiations or possible
changes in negotiating positions. According to Lai, "He
was always unavailable or out of town so I would leave
a message"; however, Noel never called back. Unable to
speak to Noel, on February 11, 1980, Lai wrote a letter
to him, requesting a resumption in negotiations. Noel re-
sponded by letter dated February 22, 1980, and, without
explanation, declined Lai's request for resumed negotia-
tions.
As to the course of negotiations, Adams denied that
the parties had reached an impasse in negotiations on
September 4, stating that he told Noel that he would
take all his proposals back to the maids in order to ascer-
tain what they desired to do. Moreover, Adams testified
that at no point during the negotiations did either Noel
or Eckel refuse to bargain because the Union was either
defunct or in trusteeship. Further, while Noel did ques-
tion the Union's majority status on several occasions,
there is no evidence that Respondent ever refused to bar-
gain because the Union no longer represented a majority
of the housekeeping and maintenance staff, or until the
Union reestablished its majority status, or because the
proposed bargaining unit was inappropriate.
Despite entering into negotiations in May and continu-
ing through September, as a defense to its uncontrovert-
ed refusal to bargain after September 4 Respondent of-
fered evidence that, as of June, it possessed a good-faith
doubt as to the Union's continued majority status.9 Thus,
Vallee Jo Eckel testified that in June, two employees
specifically voiced their displeasure with the Union to
her. According to Eckel, maids Barbara Hurd and Kathy
Wills came into her office in June. "Kathy was upset be-
cause her insurance hadn't been paid by the union....
and Barbara was upset that she didn't want to be in the
union, that again they weren't doing anything for her."
Also, Eckel asserted that she received reports from
Dorothy Forest, the housekeeping supervisor, about em-
ployee unrest over the Union. Corroborating Eckel,
Forest, upon being asked a leading question by counsel,
testified that during July, August, and September she ob-
served employees both for and against the Union-
"They couldn't get along. They weren't happy . . . and
they . . . would kind of not speak to one another and
not really be kind to one another." However, she gave
no specific examples.
Moreover, Respondent contends that, if the Union did,
in fact, represent a majority of its housekeeping staff,
said status was obtained through unlawful coercion and
promises of special treatment. Housekeeping Supervisor
Forest testified that she attended a union general mem-
bership meeting at the end of May and that she recog-
nized at least 11 of Respondent's maids at the meeting.
According to Forest, at one point Union Trustee Mario
Vaccarino said "that we should all have to be in the
union or we could lose our jobs." Georgia Lai, who at-
tended this meeting, specifically denied that Vaccarino
made such a statement. Between Lai and Forest, I credit
the denial of Lai inasmuch as I believe she was a more
honest and candid witness than Forest.
Regarding the alleged promise of special treatment,
both Lai and Adams testified during cross-examination
that, commencing in late March, the Union offered a
special reinstatement fee to all members who had been
suspended for becoming delinquent in dues payments.
Some of Respondent's maids were included in this group,
and the record discloses that at least two maids made the
requisite payment, which equaled approximately one-half
the normal reinstatement fee. Said fee, according to Lai
and Adams, normally consisted of an amount equal to
the back dues plus the standard initiation fee. Finally,
there is no evidence that said fee was offered to some
and not to others.
In addition to the foregoing, the General Counsel al-
leges as violations of Section 8(a)(1) of the Act state-
ments attributed to Eckel and Forest. As to Eckel, co-
assistant housekeepers Root and Hiebert testified that, on
a day in mid-July, they were folding laundry in the laun-
dry and talking while doing so. Eckel entered the laun-
dry and apparently after overhearing that they were
9 Urging that it had "objective considerations" of the Union's loss of
majority status, Respondent filed an RM petition with Region 19 on Sep-
tember II.
73
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next negotiating session was held on August 6 at
the Pepsi Cola plant. The same parties were present, and
it soon became apparent that the major areas of disagree-
ment concerned union security, uniforms and a uniform
allowance, the required number of rooms to be cleaned
each day, holidays, and wages. As to the number of
rooms, the disagreement was over the minimum
amount-Adams wanted the number to be set at 12 per
8-hour day, while Noel "was saying he wanted them to
be able to do more than that if they could, so [the
Union] made a proposal that he pay them extra . . . if
they did more than 12 each day." There was no agree-
ment. Regarding wages, Noel reiterated that he could
not afford more than $3 per hour but offered to give
meals to the maids for half price. Noel concluded by
saying he could probably give the maids more in the
future, but he did not want such a promise in the con-
tract. As before, Adams said he would take Respondent's
offer back to the maids.
Adams and Noel scheduled another bargaining session
for August 16. On that date, Adams, Lai, and employee
Mary Hillard met Eckel in the latter's office at the motor
inn. Eckel explained that Noel could not be there that
day. While no bargaining occurred, Adams told Eckel
that the Union would reduce its wage demand by 15
cents to $3.30 per hour for the second year of the con-
tract. Eckel promised to give this information to Noel.
The parties scheduled further negotiations for August
23 at the Towne Plaza. Again, Adams and Lai arrived
and were informed by Eckel that only she was there to
represent Respondent. Adams asked where Noel was,
and Eckel replied that he was not coming and that "the
last meeting you had with him was your last one. He just
doesn't plan to meet with you any more." Adams re-
sponded that Noel had an obligation to bargain because
there were still points of disagreement. When Eckel
again retorted that Noel would not meet again, Adams
replied, "Well, in that case we might have to take some
action on that," and left the hotel.
Apparently interpreting Adams' statement as a strike
threat, on August 29 Respondent included the following
letter and attachments with each maid's weekly pay-
check. The letter was addressed individually to each
maid by name and reads as follows:
Our contract with the Union ended on May 1,
1978-over a year ago. We met with the Union
many times, but have been unable to reach an
agreement.
We believe that we are the only motel in Yakima
County where the maids are represented by a union.
The union is insisting upon some conditions, such as
an unreasonable limit on the number of rooms,
which we believe is unfair. We must remain com-
petitive in our wages, benefits, and conditions with
the other motels.
We have offered a complete contract to the
union, including a wage increase.
The main dispute is that the union insists that we
agree to a "union shop clause." That clause would
require that we fire any maid who did not join the
union and pay fhe usual union initiation fee and
dues. We have told the union that we will not fire
an employee just because she does not join the
union.
We hope that the Union will accept our offer
made in negotiations. We believe that our offer is
fair.
The Union has threatened to picket or attempt to
call our employees out on strike, within a few days.
We hope that there will be no picketing or strike.
If there is picketing or a strike we plan to contin-
ue to operate as usual. Your job will be here. You
have a legal right to work if you want to.
If you fail to work we will hire a permanent re-
placement. Even if the strike ends, you will be out
of a job, but we will put your name on a list to fill
any vacant jobs.
If we are unable to reach a new contract with
the Union we will continue your wages, your pres-
ent health and welfare, or a comparable plan, and
other benefits as we have offered to the union for
employees who continue to work.
Since we do not have a contract with the Union
with a "union security clause" you are not required
to pay dues to the Union to keep your job here. Of
course, you may pay union dues if you want to. It
is strictly up to you.
If you are a member of the union and want to
work during a strike or picketing, you could be
fined by the Union. If you want to work but to
avoid a fine you could write a note to the Union
before you work during a strike, such as the note
attached to this letter.
You should keep a carbon or photocopy of your
note, and be able to prove that the Union, second
floor of the Miller Building, 203 East Yakima
Avenue, got a copy before you work during a strike
or picketing. One way to do this is for two or more
employees to go together to deliver the notes to the
Union.
We are not asking you to resign from the Union.
It is strictly up to you. We won't discriminate
against members or non-members of the Union.
Federal law gives you the right to work during a
strike or picketing if you want to. Report any
threats to the motel or to the federal agency that
protects your right to work, the National Labor Re-
lations Board, 29th Floor Federal Building, Seattle,
Washington 98174, phone (206)-442-4532.
Again, we hope to reach an agreement with the
Union without any threats, picketing, or strike. We
want our trained employees to continue to work.
But we will be prepared for any trouble.
As attachments to each letter, Respondent enclosed two
identical samples of withdrawal of membership notices.
This document reads as follows:
To: Local 294, Hotel, Motel & Restaurant Workers
Second Floor, Miller Building
203 E. Yakima Avenue
Yakima, WA 98901
74
TOWNE PLAZA HOTEL.
speaking about the ongoing contract negotiations, ap-
proached Root and Hiebert, saying that "she didn't want
us to talk anything about the union on company time."
Both Root and Hiebert stated that no such prohibition
had ever been in effect at the hotel. Eckel admitted the
statement; however, she testified that the maids were not
working at the time-just standing and talking. Eckel
further attempted to justify her statement, averring that
union matters at the time were seriously hurting the job
performance of the maids. However, after much testimo-
ny on this point, Eckel admitted that it was purely sup-
position that union considerations caused the perform-
ance problems and that these might have resulted from
"lax work or thinking of something else." In any event, I
credit Root and Hiebert that they were, in fact, working
when Eckel prohibited them from speaking about the
Union on company time.
Next, in uncontroverted testimony Hiebert stated that,
a few days after receiving the August 29 letter from Re-
spondent, Forest approached her in the laundry. Hiebert
began the conversation by complaining about the letter.
Forest replied, "Are the girls going to sign it and take it
to the union office? Not too many are union, are they?"
Hiebert replied that most of the maids supported the
Union and the conversation ended.
Respondent's main defense to both of these incidents is
that, as co-assistant housekeepers, Root and Hiebert are
supervisors within the meaning of the Act. The record
discloses that both individuals spend the majority of their
time acting as laundry maids but that, on a regular basis,
each substitutes for Head Housekeeper Forest. It is on
these latter occasions, apparently, that Respondent as-
serts they act as supervisors. Initially, when acting for
Forest, neither Root nor Hiebert has authority to hire,
fire, grant time off, discipline, permit overtime, or to rec-
ommend said actions. Moreover, according to Hiebert,
even when acting for Forest, each spends approximately
90 percent of her time working in the laundry. The
record further discloses that what supervisory authority
each exercises involves the assigning of work to the
other maids. Thus, when substituting for Forest, Hiebert
and Root are authorized to assign the daily work. In per-
forming this function, they receive information from the
office as to how many and which rooms require clean-
ing. Root and Hiebert then assign the sections, being
careful to assign each maid an equal number of rooms. It
appears that assigning sections is fairly routine. Thus,
most maids regularly have their own sections of the
hotel and, according to Hiebert, "We give them always
their own section." Maids with low seniority do not
have assigned sections; however, certain areas of the
hotel are always given to such maids and even these sec-
tions are assigned on a seniority priority. In addition to
assigning the work, Root and Hiebert may check to de-
termine how the work is being done and they have au-
thority to order work redone. Also, when in charge they
fill in a timesheet for each housekeeper, can change the
normal assignments when there are not enough rooms to
be cleaned in a particular section, and can request addi-
tional help from the front office if necessary. Finally,
both Root and Hiebert receive 15 cents more per hour
than the other maids.
B. Analysis and Conclusions
1. The alleged 8(a)(l) and (5) violations
The complaint herein alleges that Respondent engaged
in conduct violative of Section 8(a)(1) and (5) of the Act
by unilaterally granting a pay raise to its housekeepers
on or about March 24 and by failing and refusing to bar-
gain with the Union after September 4. Counsel for the
General Counsel argues that at all times material herein
Respondent has been under a duty to bargain with the
Union as the representative of all Respondent's employ-
ees in an appropriate unit consisting of the housekeeping
and utility employees, that at all times material herein
the Union has enjoyed a presumption of majority status
based upon the most recent collective-bargaining agree-
ment between the parties, and that no impasse in bargain-
ing existed to privilege Roger Noel's refusal to bargain
after September 4. Contrary to the General Counsel, Re-
spondent argues generally that it has never been lawfully
obligated to bargain with the Union after Roger Noel as-
sumed operational control over Respondent and specifi-
cally that the March 24 pay raise was based on a past
practice of such raises and, in any event, the Union
waived its right to demand bargaining over said raise and
that the parties had, indeed, bargained to impasse at
which point Respondent concluded that further bargain-
ing would be fruitless. As to its general obligation to bar-
gain after the Noel family purchased the outstanding
shares of stock in Respondent, counsel for Respondent
argues that Roger Noel cannot be considered to be a
successor employer, that Respondent was under no duty
to bargain with the Union as a defunct labor organiza-
tion, that the bargaining unit set forth in the complaint
constitutes an inappropriate unit for bargaining, that Re-
spondent has a good-faith doubt as to the Union's major-
ity status, that the Union has coerced membership in it
by threatening employees with termination if they did
not join, and that the Union has unlawfully induced
membership by promising a "special reinstatement fee"
to employees.
It is uncontroverted that, when Roger Noel assumed
ownership and control over Respondent in March 1979,
Respondent and the Union had established a longstand-
ing 12-year collective-bargaining relationship. Counsel
for the General Counsel argues that Noel was a succes-
sor employer within the meaning of N.L.R.B. v. Burns
International Security Services, Inc., et al., 406 U.S. 272
(1972), inasmuch as there was no hiatus in the operation
of the Towne Plaza, as there was a complete carryover
of employees, and as the supervisory staff remained the
same; thus, Respondent remained under an obligation to
bargain with the Union. Respondent denies that Noel
was a successor employer within the meaning of Burns.
Both the arguments of counsel for the General Counsel
and Respondent have missed the point. This case in-
volves the purchase of stock in a corporate entity which
continued to exist after the purchase, albeit under differ-
ent management and without any hiatus in operations.
Therefore, what is involved herein is "a stock transfer
rather than a successor relationship." TKB International
75
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation t/a Hendriks-Miller Typographic Company,
240 NLRB 1082, 1083 (1979). As the Board explains:
The concept of "successorship" . . . contem-
plates the substitution of one employer for another,
where the predecessor employer either terminates
its existence or otherwise ceases to have any rela-
tionship to the ongoing operations of the successor
employer. Once it has been found that this "break"
between predecessor and successor has occurred,
the Board and courts then look to other factors to
see how wide or narrow this disjunction is, and thus
determine to what extent the obligations of the
predecessor devolve upon its successor.... "These
factors include whether there is a substantial con-
tinuity in operations, location, work force, working
conditions, supervision" .... Having examined
these factors, the Board then decides whether or
not the break . . . can be bridged.
The stock transfer differs significantly, in its gen-
esis, from the successorship, for [it] involves no
break or hiatus between two legal entities, but is,
rather, the continuing existence of a legal entity,
albeit under new ownership. [Id. at 1083, fn. 4.]
In the aforementioned Decision, as herein involved, the
stock transfer occurred during the period between the
expiration of a prior collective-bargaining agreement and
the Union's execution of a successor agreement with the
employer. The Board stated the employer's bargaining
obligation as follows: "It is clear that . . . such a re-
spondent may not decline to recognize and bargain with
the union in the appropriate unit." Id. at 1085.
Thus, Respondent's obligation to continue to recognize
and bargain with the Union after Roger Noel assumed
control thereof appears to rest on the appropriateness of
the existing, recognized bargaining unit, which encom-
passes Respondent's housekeeping and maintenance em-
ployees; excluding guards, supervisors, and all other em-
ployees. Counsel for Respondent contends that this unit
is not appropriate for bargaining, that it is based on the
extent of the Union's organizing and is, therefore, pre-
cluded by Section 9(c)(5) of the Act, that such a unit is
not appropriate in the hotel industry in which overall
units are found appropriate when all employees share ap-
proximately the same benefits, that, because the hotel
and restaurant operations have been consolidated by Re-
spondent, employees of the restaurant must be included
in any unit found appropriate, and that the unit must
conform to that which was certified by the Regional Di-
rector in 1971. Contrary to Respondent, Board law is
clear and unequivocal that it will not disturb a bargain-
ing unit which is the product of a longstanding collec-
tive-bargaining relationship unless such is clearly repug-
nant to the purposes and policies of the Act. Marion
Power Shovel Company, Inc., 230 NLRB 576, 579 (1977);
Continental Can Company, 217 NLRB 316 (1975); Wil-
liams Enterprises, Inc., 212 NLRB 880 (1974); Fraser &
Johnston Company, 189 NLRB 142 (1971); The Great At-
lantic & Pacific Tea Company, Inc., 153 NLRB 1549, 1550
(1965). Herein, it was stipulated that, from 1972 through
1978 in successive collective-bargaining agreements, Re-
spondent and the Union treated the recognized unit as
encompassing Respondent's housekeepers and mainte-
nance employees. Moreover, the record establishes that,
during the negotiations in 1979, it was Respondent's
manager, Vallee Jo Eckel, who demanded that the unit
be so limited, that during said negotiations, Respondent
never once objected to the scope of the unit, and that it
was not until the present litigation that Respondent first
questioned whether the alleged bargaining unit was ap-
propriate. Therefore, Respondent "is in a poor position
to dispute the appropriateness of' the recognized unit be-
cause it accepted and, in fact, demanded said unit as a
basis for negotiations. Fraser & Johnston Company, supra;
International Telephone & Telegraph Corporation (ITT
Federal Laboratories), 159 NLRB 1757 (1966), enfd. in
pertinent part 382 F.2d 366 (3d Cir. 1967), cert. denied
389 U.S. 1039 (1968). Finally, while Respondent argues
that only an overall hotel unit would be appropriate
herein, it is gainsaid that, while another unit may be
more appropriate, such does not make a longstanding,
recognized, and contractual unit inappropriate nor repug-
nant to the Act. Marion Power Shovel Company, supra.
Accordingly, I find that the bargaining unit, as recog-
nized in prior agreements between the parties, as de-
manded by Respondent, and as alleged in the complaint,
constitutes the appropriate unit for bargaining herein
within the meaning of Section 9(b) of the Act. Marion
Power Shovel, supra.
Notwithstanding the appropriate nature of the recog-
nized bargaining unit represented by the Union, Re-
spondent contends that, as of March 1979, the Union no
longer represented a majority of Respondent's house-
keepers and maintenance employees and that, therefore,
it was under no obligation to bargain with the Union. "It
is well settled that a union, whether certified or volun-
tarily recognized, enjoys a presumption of majority
status after the expiration of its contract with an employ-
er." Gregory's Inc., 242 NLRB 644, 647 (1979); Ref-Chem
Company, and El Paso Products Co., etc., 169 NLRB 376
(1968). Said presumption, however, is a rebuttable one
and, in order to do so, an employer must establish that a
union, in fact, did not represent a majority or that, on
the basis of objective facts, it had a reasonable doubt as
to the union's continuing majority status. Sahara-Tahoe
Corporation, d/b/a Sahara-Tahoe Hotel, 241 NLRB 106
(1979). In urging the former, counsel for Respondent as-
serts that the intervening year between the expiration of
the last contract and the commencement of new negotia-
tions negates the aforementioned presumption; that the
'o In urging that in the hotel industry a unit limited to housekeeping
employees is inappropriate, Respondent cites West, Inc. d/b/a Holiday
Inn Southwest, 202 NLRB 781 (1973). Contrary to Respondent, in the
hotel industry, the Board follows its normal practice of utilizing commu-
nity of interests, standards to determine, on a case-by-case basis, whether
units are appropriate. Dunfey Family Corporation d/b/a Sheraton Motor
Inn, 210 NLRB 790 (1974). Examining West, Inc., I note that the Board
followed this principle and did not establish a general rule that house-
keeping units are per se inappropriate. Moreover, in West, Inc., the Board
emphasized the fact that employees-other than housekeepers-per-
formed maid functions. Herein, there is no record evidence that employ-
ees-other than housekeepers-perform maid functions. Finally, unlike
West. Inc.. there exists herein a long bargaining history in a housekeeping
and maintenance unit.
76
TOWNE PLAZA HOTEL
General Counsel offered no proof of actual majority
status, that any majority support was attained by either a
threat of termination or by inducement of a "special initi-
ation fee"; and that, although demanded by Respondent
at negotiations, the Union failed to prove its majority
status.
Analysis of the applicable law establishes that the
burden is fully on Respondent to overcome or rebut the
presumption of majority status flowing from an expired
collective-bargaining agreement. N.L.R.B. v. Top Manu-
facturing Company, Inc., 594 F.2d 223, 224 (9th Cir.
1979). Thus, contrary to Respondent, it was not neces-
sary for either counsel for the General Counsel or the
Union ever to have proven actual majority support.
Moreover, while Roger Noel did question the Union's
majority status at the July 16 bargaining session, the
Union accepted the challenge and proposed methods of
proof; however, Noel himself seemingly lost interest in
the matter and apparently accepted the Union's assur-
ance of continued majority status. Further, Respondent
cited no case support for its assertions that the presump-
tion of majority status cannot survive a 1-year interval in
bargaining or that no presumption exists unless the prior
contract contains a union-security clause. To the con-
trary, the Board has held that the absence of a union-se-
curity clause cannot be relied on to establish objective
considerations to support a reasonable doubt as to major-
ity status. Sparks Nugget, Inc. d/b/a John Ascuaga's
Nugget, 230 NLRB 275 (1977); Wald Transfer & Storage
Co. and Westheimer Transfer & Storage Co., Inc., 218
NLRB 592 (1975).
Next, regarding the Union's alleged threats and in-
ducements, I have previously discredited the testimony
of Dorothy Forest that Union Trustee Vaccarino ever
threatened to terminate employees if they did not join
the Union. Regarding the inducement of a "special initi-
ation fee," counsel for Respondent cites N.L.R.B. v.
Savair Manufacturing Co., 414 U.S. 270 (1973), and
N.L.R.B. v. Aladdin Hotel Corporation, d/b/a Aladdin
Hotel, 584 F.2d 891 (9th Cir. 1978), as support for its ar-
gument that the existence of the Union's aforementioned
fee negates the showing of majority status already at-
tained as a result of said fee. Respondent's argument is
without merit. Thus, analyses of Savair and Aladdin Hotel
establish that said cases involve initial organizing cam-
paigns where, of course, no presumption of majority
status exists; that in Savair, the Supreme Court held that,
where authorization cards form the basis for an election,
a union may not promise a waiver of an initiation fee to
those who sign before the election and withhold the
waiver from others; and that in Aladdin Hotel, the Ninth
Circuit held that Savair was equally applicable to dis-
criminatory union promises of reduced fees. These cases
are inapposite to the situation herein. Thus, we are not
concerned with an initial organizing campaign but rather
with a presumption of majority status flowing from an
expired collective-bargaining agreement; there is no evi-
dence that the Union's "special initiation fee" was discri-
minatorily withheld from any union member; and said
fee was offered to all union members-not just to Re-
spondent's employees. In these circumstances, I do not
believe that Respondent has adduced sufficient evidence
to establish that the Union, in fact, ever lost its majority
status as representative of Respondent's housekeeping
and maintenance employees.
Finally, regarding its general duty to bargain with the
Union, Respondent contends that, inasmuch as during
the period of its trusteeship the Union was a "defunct"
labor organization, it was under no obligation to bargain
with the Union. Respondent's argument is without merit.
Thus, while Thomas Adams did testify that, while under
trusteeship, the Union "was in pretty poor shape general-
ly," there is no record evidence that such impaired the
Union's ability to represent its members. Rather, Adams
testified that the Union was, in fact, representing its
members while under trusteeship. Moreover, at all times
material herein the Union has been ready and willing to
negotiate with Respondent on a new collective-bargain-
ing agreement. As to when a union is not considered to
be defunct, the Board holds that "a recognized union
need only show that it is willing and able to represent
the covered employees at the time its status is called into
question." Pioneer Inn Associates, d/b/a Pioneer Inn and
Pioneer Inn Casino, 228 NLRB 1263, 1264 (1977). More-
over, even a temporary impairment of function does not
equate with defunctness. Bellwood General Hospital, Inc.,
243 NLRB 88 (1979). Accordingly, I believe that, when
Roger Noel assumed control over Respondent, the latter
was under a continuing obligation to bargain with the
Union as the collective-bargaining representative of its
housekeeping and maintenance employees. Gregory's.
Inc., supra; TKB International Corporation, supra.
Notwithstanding its duty to bargain with the Union, it
is uncontroverted that, on or about March 24, Respond-
ent unilaterally, and without notice to the Union, gave a
pay raise to its hotel employees, including housekeepers
and maintenance employees. Both the Board and the
courts agree that, after the expiration of a collective-bar-
gaining agreement, an employer is under an obligation to
bargain with an incumbent union before it may permissi-
bly make any unilateral changes in those terms and con-
ditions comprising mandatory bargaining subjects within
the meaning of Section 8(d) of the Act-matters affect-
ing employees' wages, hours, or working conditions.
Guerdon Industries, Inc., Armor Mobile Homes Division,
218 NLRB 658 (1958); Harold W. Hinson, d/b/a Hen
House Market No. 3 v. N.L.R.B., 428 F.2d 133, 137 (8th
Cir. 1970). Accordingly, counsel for the General Counsel
argues that the instant pay raise was violative of Section
8(a)(1) and (5) of the Act. N.L.R.B. v. Benne Katz, etc.
d/b/a Williamsburg Steel Products Co., 369 U.S. 736
(1962). However, for the foregoing reasons, I agree with
the argument of Respondent that the Union, upon receiv-
ing notice of the raise, did not act with due diligence and
thereby waived its right to bargain over the pay raise.
Thus, while Respondent did not notify the Union about
the raise, Adams admitted that the maids notified him
immediately of the fact. However, according to Adams,
he chose not to raise the matter, fearing that Respondent
would rescind the raise. Thereafter, not until September
4 did Adams raise the issue with Respondent-despite
the fact that wages were a major issue throughout the
negotiations-and, even on that occasion, Adams merely
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protested the raise and did not demand bargaining. Re-
spondent cites Clarkwood Corporation, 233 NLRB 1172,
as support for its position. Therein, the employer com-
mitted an obvious unilateral change in employee working
conditions but failed to notify the union. Instead, em-
ployees notified union officials of the implementation and
they, in turn, protested to the employer but did not
demand bargaining. The Board dismissed an 8(a)(1) and
(5) allegation, holding that "a union which receives
timely notice of a change in conditions of employment
must take advantage of that notice if it is to preserve its
bargaining rights and not be content in merely protest-
ing. .... Such lack of diligence by a union amounts to a
waiver of its right to bargain .. . ." Clarkwood Corpora-
tion, supra. I believe the same considerations are applica-
ble herein. Thus, apparently for tactical purposes, the
Union never demanded bargaining over the pay raise
itself while engaging in bargaining over the issue of
wages. In such circumstances, the Union must be held to
have waived its right to bargain over the pay raise and 1
shall recommend dismissal of this allegation of the com-
plaint. Clarkwood Corporation, supra.
However, the timing of the pay raise and the manner
in which it was given to the employees convince me that
the pay raise was designed to denigrate the Union in the
eyes of the employees and to induce them to refrain
from supporting the Union-in violation of Section
8(a)(1) of the Act. Thus, on May 1 when initially re-
quested by the Union to commence negotiations, Roger
Noel retorted that he did not want a union or to meet
with it. Further, before formal bargaining began on May
7, Noel complained that he did not appreciate bargaining
with the Union and that he wished he did not have to do
so. Finally, on May 24, shortly after receiving the
Union's wage demands and without submitting any coun-
terproposal, Respondent gave its employees a wage in-
crease, telling employees that the raise came from Noel
and not from the Union. In these circumstances, especial-
ly noting that Respondent offered no justification for the
timing of the raise or the raise itself, I believe the infer-
ence is warranted that the raise was calculated by Re-
spondent to denigrate the Union in the eyes of the em-
ployees and to induce them to lessen their support for
the Union-in violation of Section 8(a)(l) of the Act.
Harvey's Wagon Wheel, Inc., d/b/a Harvey's Resort Hotel
& Harvey's Inn, 236 NLRB 1670 (1978); Nevada Lodge,
227 NLRB 368 (1976). Finally, Eckel's aforementioned
comments concerning the origin of the pay raise, in con-
junction with the raise itself, are likewise violative of
Section 8(a)(1) of the Act. Daisy's Original's, Inc., of
Miami, 187 NLRB 251, 255-256 (1970).
Regarding the allegation that Respondent has failed
and refused to bargain with the Union after September 4
in violation of Section 8(a)(l) and (5) of the Act, it is un-
controverted that, subsequent to that date, Union Official
Lai unsuccessfully attempted several times to reach
Roger Noel by telephone; that on February 11 Lai wrote
to Noel, requesting negotiations; and that on February
22, without stating a reason, Noel declined Lai's request
for further bargaining, Respondent raises two defenses to
this allegation of the complaint-that the negotiations
had reached an impasse and that its refusal to bargain
was predicated upon a good-faith doubt of the Union's
continued majority status. As to Respondent's impasse
defense, the Board has long held that, once a genuine im-
passe in negotiations is reached, the duty to bargain be-
comes dormant until changes in circumstances indicate
that an agreement may be possible. Providence Medical
Center, 243 NLRB 714 (1979); Hi-Way Billboards, Inc.,
206 NLRB 22, 23 (1973). The Board has defined impasse
as being "synonymous with a deadlock: the parties have
discussed a subject or subjects . .. [and] neither party is
willing to move from its respective position." Hi-Way
Billboards, supra at 23. The bargaining history, the good
faith of the parties during negotiations, the length of said
negotiations, the relative importance of the issue or
issues, and the contemporaneous understanding of the
parties as to the state of negotiations are all factors to be
considered in determining whether a "genuine impasse"
exists. Taft Broadcasting Co., WDAF-AM-FM TV, 163
NLRB 475 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968).
However, as stated by the Board, "Until the collective-
bargaining process has been exhausted, no impasse can
occur." Excavation-Construction, Inc., 248 NLRB 649,
650 (1980).
Clearly, if a "genuine impasse" in negotiations existed
herein, it resulted from the September 4 bargaining ses-
sion at which Respondent rejected the Union's positions
on union security, wages, the number of rooms to be
cleaned during the workday, and other issues. Respond-
ent argues that impasse resulted inasmuch as, since that
date, the Union had not notified Respondent of any
change in its bargaining position and as the Union had
threatened to strike at that and at the previous meeting. I
do not agree. Thus, the record discloses no evidence
warranting Respondent to assume that further bargaining
after September 4 would have been futile. There is no
evidence that the Union ever indicated its unwillingness
to make concessions on wages or any other issue or that
the Union ever stated that its September 4 proposals con-
stituted a final offer. Indeed, just 2 weeks before, the
Union had significantly reduced its wage demand and, at
the September 4 meeting, Adams specifically advised
Noel that he would again place Respondent's proposals
before the employees. Moreover, I have grave doubts re-
garding Noel's good faith during the negotiations, for the
record establishes that I week after the Union reduced
its wage demand, on August 23 Eckel informed the
union negotiators that Noel did not plan to meet with
them again and that Noel himself told Adams at an earli-
er meeting that he wished he did not have to engage in
bargaining. Finally, it is the epitome of irony that Re-
spondent bases its impasse argument on the Union's fail-
ure to notify Noel of any change in its bargaining posi-
tion when Noel refused to return Lai's telephone calls
subsequent to September 4. In sum, having never fully
tested the finality of the Union's bargaining position, Re-
spondent is in a poor position to argue that further nego-
tiations would have been futile. Accordingly, I do not
believe a bargaining impasse resulted herein after Sep-
tember 4 and I reject Respondent's defense in this
regard. Inta-Roto, Incorporated, 252 NLRB 764 (1980);
Excavation-Construction, Inc., supra at 650; Yama Wood-
78
TOWNE PLAZA HOTEL
craft, Inc., d/b/a Cal-Pacific Furniture Mfg. Co., 228
NLRB 1337, 1341 (1977), reversed 580 F.2d 942 (9th Cir.
1978 ).t 1
Respondent's other defense for its refusal to bargain
concerns its alleged good-faith doubt of the Union's con-
tinued majority status. The bases for this assertion are
the filing of an RM petition by Respondent on Septem-
ber 11 with Region 19, the statements of employees
Hurd and Wills to Eckel in June, and the vague testimo-
ny of Forest concerning disruption among the employ-
ees, which was attributed to the Union. Initially, it is
gainsaid that the filing of an RM petition "is irrelevant to
the question as to whether the Union had a majority . . .
for . . . filing an RM petition is no more than a self-serv-
ing assertion and has no evidentiary value." Gregory's
Inc., supra, 242 NLRB at 647; Cavalier Division of See-
burg Corporation and Cavalier Corporation, 192 NLRB
290, 291 (1971), enfd. on this point 476 F.2d 868 (D.C.
Cir. 1973). Further, analysis of the record discloses that
only two named employees were presented as having
voiced dissatisfaction with the Union and that said dissat-
isfaction apparently concerned complaints of less than
adequate service from the Union. In N.L.R.B. v. Top
Manufacturing Company. Inc.. supra, the Ninth Circuit
found insufficient evidence to support a reasonable doubt
of majority status when the evidence consisted of five
employees, out of a 20-employee complement, expressing
dissatisfaction with a union and of employee complaints
which, the court found, "were more in the nature of
grousing than a clear indication that the complainants no
longer wished union representation." Supra at 225.
Respondent relies on Southern Wipers, Inc., 192 NLRB
816 (1971), and Lloyd McKee Motors, Inc., 170 NLRB
1278 (1968), as support for its good-faith doubt defense.
However, these cases are clearly distinguishable. Thus, in
both cases, the Board placed great emphasis on substan-
tial employee turnover, a factor completely lacking
herein. In Southern Wipers, the Board also emphasized
the inactivity of the union and its possible abandonment
of the employees. Herein, of course, the Union was en-
gaged in extensive negotiations with Respondent at the
time the latter's good-faith doubt allegedly existed. Final-
ly, in Lloyd McKee Motors, Inc., the Board relied on su-
pervisory reports of the union's lost majority status.
Herein, the reports of Forest were vague at best, had
nothing to do with the Union's majority status, and, in
fact, indicated support for the Union. In sum, I do not
believe that Respondent has adduced sufficient evidence
to support a good-faith doubt of the Union's continued
majority status and I conclude that, by admittingly fail-
ing and refusing to bargain with the Union after Septem-
ber 4, Respondent engaged in conduct violative of Sec-
tion 8(a)(1) and (5) of the Act. Excavation-Construction,
Inc., supra; N.L.R.B. v. Top Manufacturing Company,
Inc., supra.
it In Yama Woodcraft, the Ninth Circuit. contrary to the Board, found
that the parties therein had reached impasse on economic matters. How-
ever, said conclusion was based on the court's belief that the Board had
also so concluded (580 F.2d at 943). Analysis of the Board's Decision dis-
closes no such finding. Indeed, the Board specifically found that no im-
passe was reached on economic items. In any event. I am hound by the
decision of the Board therein.
2. The alleged 8(a)(l) violations
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by attempting to solicit employees
to withdraw from the Union. The record establishes that
the basis for this allegation is the August 29 letter to em-
ployees from Respondent, which letter, with attach-
ments, was enclosed with their paychecks that day. Es-
sentially, the letter states Respondent's version of the ne-
gotiations to date, states Respondent's view that Adams
had threatened to strike and informs employees of Re-
spondent's right to replace strikers, states that employees
may lawfully be fined for working during the strike, and
informs employees of their right to withdraw from the
Union and how to do so. The attachments are suggested
withdrawal forms. There is no evidence that any supervi-
sors spoke to employees about the meaning of the letter,
nor is there record evidence that any employees with-
drew from the Union as a result of the letter or that Re-
spondent offered any aid in doing so. Counsel for the
General Counsel argues that the letter is unlawful be-
cause it contained specific instructions regarding with-
drawing from the Union with accompanying withdrawal
request forms and because the letter contained misstate-
ments as to the state of contract negotiations. Contrary
to the General Counsel, Respondent contends that the
contents of the letter are privileged by Section 8(c) of
the Act.
The Board has had opportunity to deal with letters
such as involved herein, and employer comments to the
same effect. Extensive and careful analysis of these
Board Decisions establishes that the basic question to be
resolved is whether the employees' free will has been im-
paired in the matter of resignation from the Union. Nord-
strom, Inc., 229 NLRB 601, 605 (1977). Thus, the Board
has found employee freedom of choice impaired where
the employer, by its offered aid, interjects itself into the
withdrawal process to the extent of taking command of
the situation or where there are threats of reprisals or
promises of benefits, by the employer, directly linked to
employee action or inaction. Emerson Suder and David
Suder d/b/a Suder Beverage Distributors, 240 NLRB 63
(1979); Smith's Complete Market of Tulare County, Inc.,
d/b/a Smith's Complete Market, 237 NLRB 1424 (1978);
Maintenance Contractors of King County and its affiliated
Members, etc., 228 NLRB 1182 (1977); Flite Chief Inc.,
etc., 220 NLRB 1112 (1975). However, "Absent some
evidence that union resignation was a company-imposed
condition for returning to work . . . and absent any evi-
dence that the Company did more than furnish employ-
ees with resignation language . . ." the Board does not
find such letters to be violative of Section 8(a)(1) of the
Act. Mosher Steel Company, 220 NLRB 336, 337 (1975).
Moreover, while the statements regarding the state of ne-
gotiations may not have been accurate, I have found no
Board authority-nor has counsel for the General Coun-
sel cited any-finding such letters unlawful on such
grounds. In this regard, the record establishes that union
officials regularly met with employees to explain con-
tract proposals. Therefore, employees had adequate re-
sources with which to evaluate the validity of the letter.
Accordingly, because there is no evidence that employee
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
freedom of choice was hampered by receipt of Respond-
ent's August 29 letter, I shall recommend that this por-
tion of the complaint be dismissed. Nordstrom, Inc.,
supra,; Mosher Steel Company, supra.
It is next alleged that Hotel Manager Eckel's statement
to co-assistant housekeepers Root and Hiebert, while
they were working, that they could no longer discuss the
Union while on company time was violative of Section
8(a)(1) of the Act. Eckel admitted the statement, and
counsel for the General Counsel argues that such a ban
is overly broad when not restricted to worktime only
and that, in the instant circumstances, when no such
prior ban on discussion of outside activities existed,
Eckel's statement directly coerced and restrained em-
ployees in the exercise of their Section 7 rights. As an
initial defense, relying on the Board's Decision in Stone
& Webster Engineering Corporation, 220 NLRB 905
(1975), Respondent argues that Eckel's statement was
based on business considerations inasmuch as Root and
Hiebert appeared to be talking and not working and as
both Eckel and Forest had observed poor work resulting
from employee dissension and concern over the Union.
However, I have previously credited Root and Hiebert
that they were, in fact, working while they talked and
Eckel herself admitted that she was not sure why work
performance had decreased. Accordingly, I find this de-
fense to be without merit.
Respondent's main defense is that both Root and Hie-
bert are supervisors within the meaning of Section 2(11)
of the Act inasmuch as they regularly substitute for
Housekeeping Supervisor Forest and exercise supervi-
sory authority and that, as such, Eckel could not have
violated Section 8(a)(1) of the Act when speaking to
fellow supervisors. At the outset, "mere substitution for a
supervisor without the exercise of supervisory authority
does not confer supervisory status." Fred Rogers Compa-
ny, 226 NLRB 1160, 1161 (1976); American Pistachio Cor-
poration, 249 NLRB 1193 (1980). Herein, while having a
title and earning 15 cents per hour more than the other
maids, Root and Hiebert cannot hire, fire, grant time off,
discipline, permit overtime, or effectively recommend
such actions and, even when substituting for Forest,
spend most of their time working as laundry maids.
Their only exercise of authority, which arguably might
confer supervisory status on them, is the assigning of
work when substituting for Forest. However, the record
discloses that such is essentially routine, with maids
being assigned to their normal sections and other, unas-
signed sections given out in order of seniority. B-P
Custom Building Products, Inc.; and Thomas R. Peck
Mfg., 251 NLRB 1337 (1980); Edgar L. Landen t/a Speed
Mail Service, 251 NLRB 476 (1980); Misericordia Hospital
Medical Center, 246 NLRB 351 (1979). Moreover, the
facts that Root and Hiebert earn a higher hourly rate
and sign time and attendance forms, and may tell other
maids they are not doing the work correctly do not,
without more, establish supervisory status. Fisher Foods,
Inc., 245 NLRB 685 (1979); Fred Rogers Company, supra.
Accordingly, I believe that what authority Root and
Hiebert exercise is essentially routine and that their sub-
stituting for Forest did not carry with it delegation of
genuine authority and I find them to be employees.
American Pistachio Corporation, supra. Therefore, I find
that Eckel's statement to them was violative of Section
8(a)(1) of the Act. Seligman & Associates, Inc., and its
Wholly owned Division, Scott Management Company, 240
NLRB 110, 117 (1979); East Side Sanitation Service, Inc.,
234 NLRB 1099 (1978); D.R.C., Incorporated, 233 NLRB
1409 (1977).
Finally, the complaint alleges that Respondent violated
Section 8(a)(1) of the Act by unlawfully interrogating
Hiebert. The record discloses-and it is uncontrovert-
ed-that shortly after receiving the aforementioned
August 29 letter, Hiebert spoke to Dorothy Forest in the
laundry and, during the course of their conversation, the
latter asked Hiebert and about employee support for the
Union and which "girls" would sign the withdrawal re-
quests. Respondent's sole defense is that Hiebert is a su-
pervisor within the meaning of the Act. However, as I
have found her to be an employee, and as I do not be-
lieve that Forest's questions could have served any legiti-
mate purpose, I find the aforementioned interrogation to
be violative of Section 8(a)(1) of the Act. Ace Manufac-
turing Co., Inc. Division of A-T-O, Inc., 235 NLRB 1023
(1978); American Commercial Bank, 226 NLRB 1130
(1976).
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act. Having found that Respondent has failed
and refused to bargain in good faith with the Union as
the exclusive representative of employees in the appro-
priate unit described herein, it will be recommended that
Respondent bargain collectively, upon request, with the
Union as the exclusive representative of the employees in
the appropriate unit and, if an understanding is reached,
embody such understanding in a signed agreement. Final-
ly, while I have found the granting of the March 24,
1979, pay raise to be violative of Section 8(a)(1) of the
Act, nothing herein should be construed as necessitating
the revocation of said pay raise.
CONCLUSIONS OF LAW
1. Morco, Inc. d/b/a Towne Plaza Hotel, Respondent,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Hotel, Motel and Restaurant Employees Union,
Local No. 294, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. All housekeeping and maintenance employees em-
ployed by Respondent; excluding guards, supervisors,
and all other employees, constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since 1967, the Union has been, and is now, the ex-
clusive representative of all employees in the aforesaid
bargaining unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
80
TOWNE PLAZA HOTEL
5. By granting a pay increase to employees in order to
denigrate the Union in the eyes of the employees and to
induce them to forego support of the Union, Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
6. By informing employees that a pay raise came from
it and not from the Union, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. By announcing a rule prohibiting employees from
discussing union affairs during company time, Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
8. By interrogating employees as to her union member-
ship and the union membership of her fellow employees,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
9. By failing and refusing to bargain with the Union,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
I1. Unless specifically found herein, Respondent en-
gaged in no other unfair labor practices.
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:
ORDER 2
The Respondent, Morco, Inc. d/b/a Towne Plaza
Hotel, Yakima, Washington, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Hotel, Motel and Restaurant Employees Union, Local
No. 294, AFL-CIO, as the exclusive representative of its
employees in the following appropriate unit:
All housekeeping and maintenance employees em-
ployed by Respondent; excluding guards, supervi-
sors, and all other employees.
12 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, 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 all objections thereto
shall be deemed waived for all purposes.
(b) Granting pay raises to employees in order to deni-
grate the Union in the eyes of the employees and to
induce them to forego their support of the Union.
(c) Informing employees that pay raises come from
Respondent and not from the Union.
(d) Announcing to employees a rule prohibiting them
from discussing union affairs during company time.
(e) Interrogating employees as to their union member-
ship and the union membership of their fellow employ-
ees.
(f) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union
as the exclusive representative of all employees in the
above appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment and, if an agreement is reached,
embody such understanding in a signed agreement.
(b) Post at its Yakima, Washington, facility copies of
the attached notice marked "Appendix." t 3 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by Respondent repre-
sentative, 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. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges that Respondent violated Sec-
tion 8(a)(1) and (5) of the Act by unilaterally granting a
pay raise to employees and Section 8(a)(l) of the Act by
inducing employees to withdraw from the Union.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
81