Atlanta Hilton & Towers

National Labor Relations Board - Board Decisions

Feb 10, 1986

278 N.L.R.B. 474 (N.L.R.B. 1986)

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ACL Corporation d/b/a Atlanta Hilton & Towers
and International Brotherhood of Firemen and
Oilers, AFL-CIO Local 288. Case 10-CA-
20908
10 February 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 6 August 1985 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, fmdings,l and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended' Order of the administrative law
judge and orders that the Respondent, ACL Cor-
poration d/b/a Atlanta Hilton & Towers, Atlanta,
Georgia, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
1 We find it unnecessary to determine whether the three individuals
classified as operators are guards under the Act because even if they are,
the Respondent would not be justified in withdrawing recognition from
the Union. Guards are excluded in the unit description, and if the Re-
spondent believes that certain individuals should be excluded because of
their guard status, the proper procedure for determining the issue is unit
clarification , not withdrawal of recognition See Board's Rules and Regu-
lations, Secs 102.60(b) and 102.61(d).
Member Dennis would consider employee turnover a factor in deter-
mining the existence of objective considerations sufficient to justify with-
drawal of recognition . Under all circumstances of the instant case, how-
ever, she does not find the turnover rate dispositive.
Victor A. McLemore, Esq., for the General Counsel.
John D. Marshall, Esq., of Atlanta, Georgia, for the Re-
spondent.
Mr. Edward R. Draper, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was tried at Atlanta, Georgia, on 24 June
1985.1 The charge was filed by International Brother-
hood of Firemen and Oilers, AFL-CIO Local 288 (the
Union) on 19 April. The complaint based on the charge
was issued by the Regional Director for Region 10 of
the National Labor Relations Board on 24 May and
I All dates are in 1985 unless otherwise stated
amended on 3 June at the hearing. The issue raised by
the complaint and the answer filed in response thereto is
whether ACL Corporation d/b/a Atlanta Hilton &
Towers (Respondent or the Company) violated Section
8(a)(5) and (1) of the National Labor Relations Act,
when on or about 5 April it withdrew recognition from
the Union and refused to bargain collectively with the
Union as representative of certain employees in a bar-
gaining unit alleged to be appropriate. Resolution of the
issue turns first on ascertainment of the appropriate unit
and then the validity of Respondent's asserted "good
faith doubt" of the Union's majority status.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the arguments at hearing by the parties and the brief
filed by Respondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Georgia corporation, maintains an office
and place of business located in Atlanta, Georgia, where
it is engaged in the operation of a hotel. During the cal-
endar year preceding issuance of the complaint, Re-
spondent in the course and conduct of its business re-
ceived revenues in excess of $500,000 and purchased and
received at its Atlanta, Georgia location goods valued in
excess of $50,000 directly from suppliers located outside
the State of Georgia. The complaint alleges, Respond-
ent's answer admits, and I find that Respondent is an em-
ployer engaged incommerce within the meaning of Sec-
tion 2(6) and (7) of the Act. The complaint further al-
leges, Respondent further admits, and I further find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Undisputed Facts
On 1 November 1979 the Union filed a petition, Case
10-RC-11941, seeking an election among employees of
Respondent in a unit of Respondent's property oper-
ations department. Such employees were engaged essen-
tially in custodial and maintenance functions. On 16 No-
vember 1-979 Respondent and the Union entered into a
Stipulation for Certification Upon Consent Election
agreement agreeing to an election in thefollowing unit:
All full-time and regular part-time employees em-
ployed by the employer at its Atlanta, Georgia fa-
cility, in the Property Operations Department in-
cluding electricians, TV technicians, mechanics, op-
erators, plumbers helpers, carpenters, carpetmen,
upholsterers, printers and locksmiths, but excluding
all office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act.
The agreement was approved by the Regional Director
on 19 November 1979 and the election was held on 3
January 1980. The Union was selected by a majority of
the unit employees but Respondent filed timely objec-
tions to the election. The Regional Director's report
278 NLRB No. 76
ATLANTA HILTON 4 TOWERS 475
finding the objections to be without merit was sustained
by the Board and the Union certified on 26 February
1980.
Following certification, the Union and Respondent en-
tered into negotiations and arrived at their first collec-
tive-bargaining agreement which was made effective on
29 May 1980. Two successive bargaining agreements
were negotiated, the last being effective from 1 June
1984 through the following 31 May.
The Union, desiring to negotiate a new agreement to
succeed the one expiring 31 May, sent Respondent a
letter dated 25 March, signed by Edward R. Draper,
International representative of the Union, asking that Re-
spondent meet for negotiations. Respondent, through
William Utnik, general manager of Respondent, by letter
dated and mailed 28 March (but not received by the
Union until 6 April) declined the Union's request stating:
This is to advise you that [Respondent] wishes to
terminate its agreement with your union , as of the
expiration date of the current contract.
Furthermore, [Respondent] can no longer recog-
nize [the Union] as the exclusive representative of
our Property Operations Department employees
since it has a good faith doubt that your union has
the support of a majority of those employees. In ad-
dition, there is considerable doubt that the unit de-
scribed in our contract with your union is an appro-
priate one for collective bargaining.
After receipt of Respondent's letter, Draper arranged
a meeting with unit employees on 19 April. During the
course of that meeting, Draper requested and obtained
signatures of some 14 unit employees on a petition signi-
fying their desire that the Union be their collective-bar-
gaining representative. By 24 April, Robert Grey, a unit
employee and the Union's shop steward, secured 5 other
unit employees' signatures on the petition and 1, that of
employee Allan Hampton, on a union authorization card,
thus- indicating union support by 20 of the 32 unit em-
ployees employed by Respondent on 24 April.2
The petition was returned to Draper by Grey about 26
April. Draper sent a copy of the petition and authoriza-
tion,card to Respondent on 29 April. However, Re-
spondent through a letter from its attorney on 22 May
persisted in its refusal to bargain further with the Union
claiming the'signatures on the petition had been obtained
through threats, misrepresentation, - and coercion. The
letter also asserted that, "[A]s mentioned, in Mr. Utnik's
letter to you on March 28, 1985„ we, have some doubt
about the appropriateness of the bargaining unit in view
of the Board's decision about appropriate units in the At-
lanta Hilton and Towers." Atlanta Hilton & Towers, 273
NLRB 87 (1,984).
B. The General Counsel's Contentions
Based on the foregoing facts, the General Counsel
argues, and the complaint alleges, that Respondent was -
not privileged to withdraw recognition, from the Union
2 A list of employees employed by Respondent at the relevant times
herein was submitted in evidence by Respondent
and to refuse to further bargain with it. Citing Carmi-
chael 'Construction Co., 258 NLRB 226 (1981), the Gener-
al Counsel contends that the existence of a valid collec-
tive-bargaining agreement between Respondent and the
Union gave rise to the presumption of the Union's major-
ity representative status.-The Union's April petition con-
taining the signatures of a majority of the unit employees
are said to reinforce the presumption and dispute any
actual loss of the Union's majority support. Assailing Re-
spondent's evidence discussed, infra, the General Counsel
asserts that no legitimate or valid objective basis existed
to rebut the presumption regarding the Union's majority
status or to substantiate Respondent's claim that objec-
tive considerations provided a basis for its good-faith
doubt of the Union's majority status. In short, according
to the General Counsel, Respondent's actions constituted
a breach of its collective-bargaining obligations in viola-
tion of Section 8(a)(5) and (1) of the Act.
As argued by the General Counsel, the existence of
the unexpired collective-bargaining agreement between
the parties at the time of Respondent's admitted refusal
to bargain raises a dual presumption regarding the
Union's majority representative status, the first being that
the Union enjoyed majority status at the time the con-
tract was executed and the second being that the majori-
ty status continued through the term of the bargaining
agreement. See Pioneer Inn, 228 NLRB 1263 (1977),
enfd. 578 F.2d 835 (9th Cir. 1978). In 'view of this dual
presumption arising from the bargaining agreement,
lawful on its face, and in light of the presumptive appro-
priateness of the collective-bargaining unit in which the
Union was certified by the Board and covered by the
collective-bargaining agreement, I conclude that the
General Counsel has, on the undisputed facts related
above, established a prima facie case of an unlawful re-
fusal to bargain by Respondent. See Top Mfg. Co., 594
F,2d 223 (9th Cir. 1979).' The burden of rebutting the ex-
istence of the violation under the circumstances is Re-
spondent's. Carmichael Construction Co., supra; Pioneer
Inn, supra.
C. Respondent's Defense
Respondent relies on a two pronged defense, the first
premised on the contention that the unit in which the
Union was certified was either inappropriate or improp-
erly established so that no bargaining order may be
issued requiring Respondent to bargain in such a unit,
and the second premised on Respondent's asserted "good
faith doubt" of the Union's majority representative
status.3 More specifically, with respect to its unit argu-
ment, Respondent contends that since the unit was deter-
mined, as a result of agreement between the Union and
Respondent as expressed in the Stipulation for Certifica-
tion the Board never fulfilled its obligations under Sec-
tion 9(b) of the Act which requires it to "decide in each
case whether . . . the unit appropriate` for the purposes
of collective bargaining shall be the employer unit, craft
3 "Majority representative status" as used herein refers to the desire of
a "majority of employees in the unit ... to have the union as their rep-
resentative for collective-bargaining purposes " Celanese Corp, 95 NLRB
664, 671-672 (1951) 1
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit, plant unit, or subdivision thereof . . . ." In support
of this position, Respondent relies on NLRB v. Cheme-
tron Corp., 699 F.2d 148 (3d Cir. 1983), which held that
in determining an 8(a)(5) violation based on a subsequent
refusal to bargain where voluntary recognition was ex-
tended to a union in a unit agreed to by the parties, the
Board must still determine that the unit is not contrary
to the Act or Board policy before it may order the em-
ployer to bargain in such unit. Respondent claims the
Board has never determined the appropriateness of the
unit involved in the instant case.
Further, with respect to the unit argument, and as ex-
pressed in Respondent's answer to the complaint, the
unit involved herein is inappropriate for it is inconsistent
with Board decisions regarding appropriate units in the
hotel industry. In support of this argument, Respondent
relies primarily on a recent Board decision involving Re-
spondent and the Union's International organization, At-
lanta Hilton & Towers, supra. In that case the Board re-
fused to order Respondent to bargain in a previously cer-
tified unit of housekeeping, laundry, public facility, and
exhibit employees concluding that the union's certifica-
tion in that unit should be revoked in light of the Board's
determination at Respondent's urging that an overall unit
of Respondent's employees (but excluding the property
operations employees herein involved) was appropriate.
Respondent contends herein that only an overall unit is
appropriate, even including the property operations em-
ployees.
Finally, with respect to the unit, Respondent argues
that it is inappropriate because it includes the "opera-
tors" classification and operators, according to Respond-
ent, are guards. Here, Respondent points out that Section
9(b)(3) of the Act prohibits the Board from deciding a
unit is appropriate if it includes guards with other em-
ployees.
With regard to its asserted good-faith doubt of the
Union's majority status, Respondent relies on the testi-
mony of James H. Parsons, Respondent's human re-
sources manager, John Duffey, manager of Respondent's
property operations department, and Donnie Chaney, a
supervisor in the operations department. Parsons testified
that he participated along with General Manager Utnik
in the decision to refuse to bargain with the Union
reached on 26 March. That decision was based, accord-
ing to Parsons, on the decline in authorizations executed
by employees for the checkoff of union dues over the
past 3 years, the general turnover of employees in the
property operations department during 1984 and early
1985, and statements by a number of unit employees
prior to the refusal to bargain indicating their nonsupport
of the Union. More particularly in connection with the
employee statements, Parsons testified that in August or
September 1984, two employees of Respondent, Richard
Myers and Jerry Millwood, approached him and stated
they were disenchanted with the Union and no longer
wished for it to represent them. Parsons explained resig-
nation procedures to them and gave them the time frame
within which they could revoke their checkoff authoriza-
tions. Subsequently, on 5 April, Myers and Millwood
wrote separate typed letters to the Union stating they
were "canceling my `Dues Deduction Authorization."'
The Union replied by letter dated 9 April stating that the
revocations were untimely under the terms of authoriza-
tion signed by them.4
Parsons also testified that unit employee Granville
Graham had made several complaints to him beginning
in 1981 that the Union was keeping his salary down.
Graham's latest remark about the Union, according to
Parsons, was in February when Graham remarked that
he hoped there would be no interruption in business "this
year" by the Union because everybody could make quite
a bit of money since the hotel was very busy. Graham's
remark was an apparent allusion to a strike by the Union
at Respondent's hotel in 1981. Similar remarks were at-
tributed to Graham by Chaney. According to Chaney,
Graham, who was never a union member, repeatedly
complained about the Union.
According to Parsons, employee Victor Blanco, who
left Respondent's employment on 4 April, told Parsons in
February or March that he did not like the Union and
said it was "no good for any of us," and added that he
hoped he could get out of it. Parsons related that the
previous fall, probably in September, he had been told
by unit employee James Beasley that Beasley had attend-
ed a union meeting, and that he had announced at the
meeting that the Union "can't do anything for me." Par-
sons added that Beasley said he was told by a union offi-
cial that he better leave. Beasley further told Parsons
that another employee whom Beasley did not identify
told him he had better watch his step or the Union
would get him fired like it had another unit employee
who had been fired for writing obscenities on a locker
room wall. Another employee had been discharged for
such an offense and the implication of the remark to
Beasley was that it was a frameup.
Chaney testified concerning a similar incident related
to him by Beasley. He related Beasley told him around
the first of the year that employees John Noird and Jerry
Akins had told Beasley that if he did not support the
Union he would be terminated, because they had man-
agement people say that once the Union was out, Beas-
ley would be the first one to be fired.
In February or March, Beasley and unit employee
Forrest Holland were brought to Parsons by Chaney.
They explained, according to Parsons, that they had exe-
cuted checkoff authorizations and joined the Union on
the basis of representations concerning certain benefits,
that they found the representations false, and wanted to
cancel their dues-deduction authorizations. Both Beasley
and Holland on 1 March executed separate but identical
letters to the Union requesting to "remove and with-
draw" their requests to join the Union. The letters did
not specifically refer to the checkoff authorizations each
executed on 16 January, nor does the record show a spe-
cific response by the Union to these letters. On the other
hand, Beasley and Holland continued to be listed on the
checkoff sheets sent by the Union to Respondent
through May. Holland by a typed letter to the Union
4 Millwood sent a similar revocation letter to the Union on 15 May
subsequent to Respondent' s refusal to bargain. Myers left employment of
Respondent on 26 April.
ATLANTA HILTON & TOWERS 477
dated 15 May advised the Union that he was canceling
his dues-checkoff authorization.
There were two final checkoff revocations produced
by Respondent. These were separate but identically
typed letters signed by unit employees Barry Thurmond
and Allen Hampton stating simply that they were by the
letter "canceling" their "dues deduction authorizations."
Both letters were dated 15 May after the withdrawal of
recognition of the Union. There is no evidence that
Hampton had ever signed a dues-checkoff authorization.
He had, however, as already noted herein, signed a
union authorization card dated 22 April.
While equivocal about the exact time, Parsons testified
that before the decision to withdraw recognition from
the Union on March 28, he received an undated letter
from unit employee Don Upton in which Upton related
he had been invited to a union meeting to find out more
about the Union and added:
The meeting was held at a local bar and beings
[sic] that I do not drink I did not attend. I did try
to obtain as much information about the union
through talking with other employees and reading
all available written material. Unfortunately, I was
not able to find out very much. From what was
available I could find no viable reason to join.
From the information that I could gather I Do
Not feel that this union is representative of myself
or my fellow employees. My reason for saying this
is that only about 5 of tis [sic] members take an
active role in the union and 2 of those only when
they are in trouble. It was told to me by the shop
steward that only three people showed up at the
last meeting and that attendance is allways [sic] low
at the meetings. My reason for writting [sic] this
letter is to ask you to contact the proper authorities
to investigate this union's effectiveness as I feel that
it may be more of a henderance [sic] than a help in
advancing with the Hilton.
In response to this letter, Parsons met with Upton and
answered Upton's questions about how he and other em-
ployees, apparently unnamed , could get, out from under
the Union. Parsons told Upton he could not take an
active role in the matter but Upton could contact the
Board "and/or get a petition signed by those employees
who were not interested in being represented by the
Union." There was no evidence presented that Upton
did either of these things. On the contrary, Upton signed
the Union's petition designating the Union as his bargain-
ing representative on 24 April.
Chaney testified, however, that Upton on several oc-
casions during the first part of the year and up through
March said he felt like the Union was not representing
the department and that he did not feel like he should be
a member "and why other guys would because they
didn't offer additional benefits and stuff." Chaney, who
reported Upton's remarks to higher management when
he heard them, testified he was surprised when Upton
apparently reversed his position on the Union and signed
the April "petition."
Finally, Chaney testified that he heard several people
express dissatisfaction with the wages they received in
the union contract negotiated in 1984. He failed to speci-
fy exactly how many or identify any specific complainer.
Department Manager Duffey testified, but only gener-
ally, that he heard comments of dissatisfaction about the
Union from several employees. These comments were
made over a period of 5 years, but Duffey said they in-
creased in the latter part of 1984 and the first part of
1985. He related that he recalled Union Steward Grey
once complain that the Union did not communicate with
the employees like it should. As a result, he asked Par-
sons if there was a way that management could inform
employees when the time frame was up for them so they
could "withdraw" from the Union. According to
Duffey, Parsons made a list of people on checkoff and
the dates when they could revoke their checkoffs. As the,
employees became eligible to revoke their checkoffs,
Duffey told them he had the information regarding
checkoff revocation if they were interested. He specifi-
cally recalled passing such information to employees
Millwood, Myers, Sandy Brown, and Victor Blanco.
However, only Millwood and- Myers of this group ap-
pears to have used it.
With respect to employee turnover in the unit, Re-
spondent produced records that reflected that over the
calendar year 1984, out of a unit ranging from about 31
to 45 employees, there was a turnover of about 21 em-
ployees. For the first months of 1985, there was a turn-
over of only three employees in the unit. With regard to
the reduction of employees on checkoff over the years,
Respondent's records reflect that the first checkoff list,
January 1981, revealed 21 names . In subsequent months
and years, the number of employees on checkoff fluctu-
ated. In December 1983, the number was at 21 again,
and over 1984 it ranged downward from 21 to 15 ending
with 16 in December. In 1985, it remained at 16 in Janu-
ary and February, increased to 17 in March, and
dropped to 135 in April.
In defense of Respondent's adherence to its decision to
refuse to bargain with the Union in the face of receipt of
the Union's April petition, Parsons testified that Re-
spondent discounted the list because there were people
on the list who had previously expressed dissatisfaction
with the Union, specifically Beasley, Upton, and one
other employee whose name he could not recall. Fur-
ther, Parsons testified that Respondent had heard of
union propaganda going around regarding what Re-
spondent would do upon expiration of the bargaining
agreement . More specifically, he said the propaganda
was to the effect that employees would not have any
representation, that the grievance procedure would be
withdrawn, that wages would be cut, that employees
would lose benefits, and that a hit list had been devel-
oped of employees to be fired. Parsons testified he heard
of this propaganda through Supervisor Ed Gooden.
Gooden was not called to testify herein.
5 This number excludes employees Beasley, Holland, Millwood, and
Myers, who had submitted checkoff revocations on or before 5 April,
and employees Blanco and Hansen, whose employment with Respondent
ended during April.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Analysis and Conclusions
1. The unit issue
While it is clear that Section 9 (b) requires the Board to
decide the appropriate bargaining unit "in each case,"
the Board has followed a long established , practice of
permitting parties in a representation case to stipulate to
the appropriateness of the unit and to various inclusions
and exclusions so long as "the agreement does not vio-
late any express statutory provisions or established Board
policies." SCM Corp., 270 NLRB 885 (1984). This prac-
tice was justified and explained in Tribune Co., 190
NLRB 398 (1971 ), where the Board , responding to argu-
ments of a dissenter that the Act gives the Board exclu-
sive responsibility to determine the appropriateness of a
unit and questioning whether the function of the Board
in determining voting eligibility should be any different
in stipulated unit cases than in other cases where the
Board initially determined the unit, stated:
Parties that come before the Board have a special
interest in securing the speedy resolution of ques-
tions concerning representation.' To this end, we
permit parties to stipulate to the appropriateness of
the unit, and to various inclusions and exclusions, so
long as (a) their agreement is approved by the Re-
gional Director, and (b) their agreement does not
violate any express statutory provisions or estab-
lished Board policies . Were we later, to review their
stipulation de novo, and make our own findings, we
would be undercutting the very agreement which
served as the basis for conducting the election. The
view of our dissenting colleague has been specifical-
ly rejected by reviewing courts. In one case,2 the
Court of Appeals for the Second Circuit said, with
respect to the Board's exclusion of an employee on
the basis of "community of interest":
In our view no established Board policy or
goal of the Act is contravened by including [the
employee]. We view community of interest as a
doctrine useful in drawing borders of an appro-
priate bargaining unit , a function well within the
discretion of the Board . But we do not conclude
that the doctrine remains as an established Board
policy sufficient to override the parties' intent
when the Board , in the interests of furthering
consent elections , allows the parties to fix the
unit.
Other courts have said essentially the same thing.3
In stipulated unit cases ,, the Board's function is to
ascertain the parties ' intent with regard to the dis-
puted employee and then to determine whether
such intent is inconsistent with any statutory, provi-
sion or established Board policy.
' See, e.g., Amalgamated Clothing Workers of America, AFL-
CIO v. NLRB (Sagamore Shirt Co.), 365 F.2d 898, 902, 905
(C.A.D.C).
2 Tidewater Oil Co. v. NLRB, 358 F.2d 363, 366.
s NLRB v. J.J. Collins Sons, 332 F.2d 523 (C.A 7), NLRB v
The Jochn Manufacturing Co., 314 F.2d 627 (C A. 2).
In approving the stipulated unit in the underlying rep-
resentation case which culminated in the Union 's certifi-
cation, it is clear that the Regional Director concluded
that the unit did not violate any express statutory provi-
sion or established Board policy . And nothing appears on
the face of the unit description which would in any way
hint that it was inconsistent with law or Board policy.
On the contrary , it appears on its face to be a departmen-
tal unit which without ' more would not necessarily be
considered inappropriate. Indeed, Respondent not only
agreed to the unit but, following the Union 's certifica-
tion , bargained concerning employees in that unit for
more than 4 years . It ill behooves Respondent to now
claim that the unit is in fact inappropriate or that the
Board breached its statutory obligation in acceding to
the parties ' stipulated unit.
Respondent's reliance on Chemetron Corp., supra, is
misplaced for it is easily distinguished . In that case an
employer prior to negotiating a collective -bargaining
agreement refused to bargain with a union it had initially
voluntarily recognized. Its defense was that the unit was
inappropriate . In considering the legality of the refusal to
bargain, the Board rejected the employer 's attempt to re-
pudiate the voluntary recognition and in doing so found
it unnecessary to decide whether it would have found
the unit involved in the recognition an appropriate one.
258 NLRB 1202 (1981). The court, however, reversed
,and remanded the case to the Board to determine the ap-
propriate unit on the premise that the Board was re-
quired by Section 9(b) to determine the appropriate unit
and that it could not simply defer to a voluntary agree-
ment between an employer and a union without making
any assessment that the unit identified within the agree-
ment.was proper. In contrast to the situation in Cheme-
tron, and although the unit in the instant case was a
product of the parties ' agreement, the Board had ap-
proved of the appropriateness of the unit by virtue of the
Regional Director's initial approval of the stipulation sig-
nifying that the unit was not contrary to statutory provi-
sions of the Act or established Board policy . Respondent
here made no attempt to test the appropriateness of the
unit or the Union's certification before entering negotia-
tions with the Union.
The instant case is also distinguishable from Chemetron
in that here the unit, whether or not initially inappropri-
ate, has been buttressed and justified by a collective-bar-
gaining history reflected in three successive bargaining
agreements over a 5-year period . In this regard, the case
is more analogous to the situation prevailing in Interna-
tional Telephone & Telegraph Corp. v. NLRB, 382 F.2d
366 (3d Cir. 1967), where the same court that decided
Chemetron concluded that while a Board unit determina-
tion resulting in the union's certification in That case may
have been initially improper , the parties continued over a
period of 13 years to engage voluntarily in collective
bargaining so that any error in the original determination
of the bargaining unit or any breach of the Board's obli-
gation under Section 9 (b) could not justify the employ-
er's refusal to bargain . See also Oklahoma Osteopathic
Hospital v. NLRB, 618 F.2d 633 (10th Cir. 1980).
ATLANTA HILTON & TOWERS 479
Finally, still with respect to Chemetron, the Board in
accepting the court's remand in that case acknowledged
the court's opinion as establishing the law of that case
only. 268 NLRB 335 (1983). In so doing the Board did
not indicate that it was reversing its policy outlined in
Tribune Co., supra., On the contrary, the Board recently
indicated its adherence to the policy and principles con-
tained in Tribune Co., and that line of cases, in Hollywood
Medical Center, 275 NLRB 307 (1985). An administrative
law judge is bound to follow announced Board policy
and precedent until modified or reversed by the Board
itself or the Supreme Court. See Waco, Inc., 273 NLRB
746 (1984); Consolidated Casinos Corp., 266 NLRB 988,
993 (1983). The Board's initial certification of the Union
in the unit set forth herein is binding upon me. I there-
fore find no merit to Respondent's arguments based on
Board noncompliance with Section 9(b).
With respect to Respondent's contention that the unit
is inappropriate under hotel standards, it is to be noted
that the Board determines units in the hotel industry
based on the community of employee interests reflected
in the facts peculiar to each case. 77 Operating Co., 160
NLRB 927 (1966), enfd. 387 F.2d 646 (4th Cir. 1967). In
short, a finding of a hotelwide employee unit is in no
sense automatic. It is also true, as found by the Board in
Atlanta Hilton & Towers, supra, that there is a substantial
integration of employee functions and an existent com-
munity of interest among employees of Respondent on a
hotelwide basis.6 However, in that case, although finding
no basis for separate units of housekeeping, laundr,y
public facility, and exhibit employees on the one hand,
and food and beverage employees on the other hand, the
Board still expressly excluded the property operations
employees herein involved from any larger unit. Wheth-
er it did so on the basis of the Union's certification in the
property operations unit, the bargaining history, or Re-
spondent's acquiescence in such exclusion is not clear.
But it is clear the property operations employees were
excluded thus indicating the appropriateness of a proper-
ty operations employee unit notwithstanding factors pe-
culiar to Respondent's operations outlined in Atlanta
Hilton & Towers or prevailing in the hotel industry gener-
ally which might have warranted their inclusion in a
larger unit initially. Accordingly, I find no merit to Re-
spondent's assertion that the property operations unit is
inappropriate as not conforming with hotel industry unit
standards.
Considering next, Respondent's contention that the
unit is inappropriate because it contains employees em-
ployed as guards, it is to be initially noted based on the
6 At the request of Respondent I have also taken official notice of an-
other representation case involving Respondent's employees, Case 10-
RC-12182. The petition in that case was filed by International Brother-
hood of Firemen and Oilers, AFL-CIO, on 31 July 1980, seeking an elec-
tion in a unit of Pax operators in Respondent's communications depart-
ment. Respondent opposed the unit claiming only a larger unit of all
hotel employees less statutory exclusions and the property operations em-
ployees who were already separately represented was appropriate. After
a hearing on 21 August 1980 the Regional Director's decision and order
in the case issued on 30 September 1980. The Regional Director agreed
with Respondent's position and dismissed the petition relying primarily
upon the significant role of the communications department in the total
integrated operations of the hotel.
undisputed and credible testimony of Union Representa-
tive Draper that Respondent never raised such, a conten-
tion with the Union at anytime prior to the refusal to
bargain, Indeed, even in its letter announcing its refusal
to bargain no reference was made to the present guard
contention. And Respondent counsel's letter of 22 May
did not mention such an issue. This failure suggests the
specious nature of Respondent's contention, and I fmd
the record confirms the absence of evidence establishing
that operators are guards. Such evidence reveals that Re-
spondent employs three individuals classified as "opera-
tors." They work in what is referred to as the "alpha
room" where their function is to monitor control systems
and panels, which indicate faults or problems in Respond-
ent's mechanical systems. One panel pinpoints the loca-
tion of any fires within the hotel. Upon indication of a
fire, the operator by telephone advises Respondent's se-
curity employees of its location.7 In addition, operators
monitor control panels which indicate intrusions through
certain hotel doors. When an intrusion is noted it is re-
ported to the security guards by the operators. Other
panels or instruments monitored by operators give alarms
for intrusions at certain safes and cashier locations.
Where an alarm is noted, the operators telephone the se-
curity department. Operators are also directed to bar en-
trance into the alpha room -by unauthorized persons in-
cluding employees. However, it does not appear that the
alpha room doors are locked at all times or at any par-
ticular time or that operators have keys to the room. If
an unauthorized person refuses to leave the alpha room,
the operators may take no action on their own and are
required to refer the matter to security guards.
It is undisputed that operators are not armed or depu-
tized as are Respondent's security personnel. Nor do
they wear the uniform of security personnel. They ap-
parently have no guard functions outside the alpha room
and other than barring access of unauthorized employees
to the alpha room, they have no rule enforcement duties
with respect to other employees.,
As stated by the Board in Deluxe General Inc., 241
NLRB 229 (1979):
Review of the legislative history [of] Section
9(b)(3) reveals that Congress drafted that provision
in order to minimize the danger of divided loyalty
that may arise when a guard is called upon to en-
force the rules of his employer against a fellow
union member. Although the Board has construed
Section 9(b)(3) to encompass nonplant guards, it has
not departed from that section's strict requirements
that employees found to be guards are those who
"enforce against employees and other persons rules
to-protect property of the employer or to protect
the safety of persons on the employer's premises."
[Footnotes omitted]
In the instant case it is clear that operators are not en-
trusted with the protection of Respondent's premises nor
the safety of persons on its premises. Respondent has a
7 Security employees independently monitor a separate fire alarm
system which indicates the existence of a fire but not its location.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security division and undisputed guards for these pur-
poses. The fact that the operators monitor, as part of
their duties, panels or equipment which provide fire pro-
tection and building security information does not estab-
lish them as guards. See American District Telegraph Co.,
160 NLRB 1130, 1138 (1966).8 Nor does the authority of
the operators to bar other employees from the alpha
room make them guards where it is clear that they had
no special police powers to observe, report, or enforce
rules against employees generally.
Further, operators run no special risks of confrontation
with possible intruders. Under these circumstances, I find
no risk of divided loyalties which was the congressional
concern in enacting Section 9(b)(3). Rather, I conclude
that the operators are essentially maintenance-type em-
ployees with no more responsibility for protection of Re-
spondent's property than any other unit employee ob-
serving unauthorized personnel, employee or otherwise,
in a restricted work area. I find the operators are not
guards, and I therefore find the unit involved in this case
is not inappropriate due to the inclusion of the operator
classification.
From the foregoing I find that the unit in which the
Union was certified is not inappropriate for any of the
reasons asserted by Respondent herein.
were 17 employees on checkoff out of a unit of 34 em-
ployees. This excludes two individuals from the checkoff
list, Beasley and Holland, who had submitted checkoff
revocations on 1 March.9 It includes two employees, one
hired on 28 March, who were serving a 30-day proba-
tionary period for new employees provided for under the
bargaining agreement, even though it is improbable that
the Union had sought to enlist their membership due to
their probationary status. These circumstances raise
grave doubts regarding the genuiness of Respondent's
good faith where it relied on checkoff numbers as justi-
fying its 28 March decision. That doubt was increased by
Parsons' incredible inability to recall on examination the
number of employees in the unit when the decision was
made. Nevertheless, if execution of a checkoff authoriza-
tion was a prerequisite to establishing majority support
then perhaps the Union did not have majority support on
28 March. However, the Board has long held with court
approval that majority support is not to be confused with
majority union membership. Thomas Industries, 255
NLRB 646 (1981); Petroleum Contractors, 250 NLRB 604
(1980); Barrington Plaza & Tragniew, 185 NLRB 962
(1970). And in Terrell Machine Co. Y. NLRB, 427 F.2d
1088 (4th Cir. 1970), enfg. 173 NLRB 1480 (1969), the
Fourth Circuit said at 1090:
2. Respondent's good-faith doubt defense
In light of the General Counsel's prima facie case, Re-
spondent must establish its good-faith doubt of the
Union's majority status. There are two prerequisites for
sustaining such a defense. First, the doubt must be based
on objective considerations and, secondly, they must be
raised in a context free of unfair labor practices. See Car-
michael Construction Co., supra; Club Cal-Neva, 231
NLRB 22 (1977); Pioneer Inn, supra: Notwithstanding
suggestions in the record that Respondent's assistance to
certain employees in revoking their dues-checkoff au-
thorizations may not have been' altogether lawful, there
were no complaint allegations on the point nor did the
General Counsel argue unlawful assistance by Respond-
ent to employees in revoking checkoff authorizations or
resigning from the Union. Aside from the refusal to bar-
gain, the complaint alleges no other unfair labor prac-
tices by Respondent. Accordingly, it must be concluded
that Respondent's asserted good-faith doubt has been
raised in a context free of unfair labor practices. There-
fore, only the objective basis of Respondent's doubt
herein need be considered.
At the outset, it is clear that Respondent has not estab-
lished that the Union did not in fact lack majority em-
ployee support on 28 March when Respondent decided
to refuse'to bargain' with the Union and initially deposit-
ed in the mail a letter to the Union to that effect. At
best, Respondent's records reflected that in March there
8 But see Aeroguild, Inc., 119 NLRB 329 (1957), cited in Respondent's
brief where the Board found an employee to be a guard where the em-
ployee was initially apprised of unauthorized plant entry by a burglar
alarm system. However, the case is distinguishable on the basis that the
employee had specific instructions and authority to bar all plant entry. It
may be further distinguished on the premise that the record in that case
contained evidence that the employee also had investigative duties when-
ever the alarm system sounded.
A showing that less than a majority of the employ-
ees in the bargaining unit were members of the
union or paid union dues [is] not the equivalent of
showing lack of union support. Manifestly .. .
many employees are content neither to join the
union nor to give it financial support but to enjoy
the benefits of its representation. Nonetheless, the
union may enjoy their support, and they may desire
continued representation by it.
Thus, the absence of a majority of employees from a
checkoff list does not establish a lack of majority union
support. This principle, I conclude, applies whether or
not the number of employees on checkoff at the time of
the refusal to bargain results from a sharp decline or a
gradual one. Certainly, the wisdom of the principle is
demonstrated by the majority support of the Union re-
vealed in the Union's April "petition" which was signed
by Beasley who had earlier sought to resign from the
Union and revoke his checkoff authorization, and Upton
who had earlier been critical of the Union.1 ° According-
ly, I find the bare absence of a majority of employees on
checkoff at the time of Respondent's refusal to bargain
does not establish an objective basis for Respondent's
doubt of the Union's representation status.
I likewise conclude that Respondent's other evidence
fails to establish, either the Union's actual loss of majority
9 This number also excludes one employee, Bennie Thurmond, whose
absence from the Union's March and April checkoff lists was unexplained
although his name was on the February and May lists. His checkoff au-
thorization was forwarded with the February list. There was no evidence
that Thurmond sought to revoke the authorization before 15 May when
he did send a revocation to the Umon canceling the checkoff
io I find no probative evidence on the record herein that establishes
any misconduct on the part of the Umon in connection with obtaining
signatures on the "petition."
ATLANTA HILTON & TOWERS 481
status or the basis for objective considerations justifying
Respondent's claimed good-faith doubt. Viewing such
other evidence outlined herein in the light most favor-
able to Respondent reveals that only two employees,
Myers and Millwood, told management officials that
they did not wish for the Union to represent them any
longer. The comments and actions attributed by Re-
spondent to other unit employees, Blanco, Graham,
,Beasley, Holland, and Upton, are less clear as a total re-
jection of the Union as bargaining representative as op-
posed to rejection of membership in the Union. Clearly,
the remarks attributed to Graham, who had never been a
union member, amounted to no more than general criti-
cism of the Union which the Board has held does not in-
dicate a rejection of the union as collective-bargaining
representative, See Thomas Industries, supra; Retired Per-
sons Pharmacy, 210 NLRB 443, 446 (1974), enfd. 519
F.2d 486 (2d Cir. 1975). But even assuming that the re-
marks attributed to all seven" of the foregoing employ-
ees did constitute their personal rejection of the Union as
collective-bargaining representative, they compromise
only a small minority of the unit employees. Rejection of
union representation by a small minority of unit employ-
ees is not sufficient to support a reasonable doubt of the
Union's continuing majority status. Odd Fellows Rebekah
Home, 233 NLRB 143 (1977). In sum,, Respondent has
shown only that in a unit of never less than 31 employ-
ees, a total of 9 employees either expressed dissatisfaction
with the Union and/or revoked their checkoff authoriza-
tion cards and resigned from the Union.
Nor do any of the statements attributed to unit em-
ployees by Respondent establish that a majority of other
unit employees rejected the Union. Upton's letter to Par-
sons to the effect he did not feel the Union was repre-
sentative of himself and the other unit employees was
nothing more than conjecture and opinion. It was not
based on an actual survey by Upton. Upton's opinion
and the factors he relied on do not, I conclude, provide a
valid objective basis for Respondent's doubt of the
Union's majority status. Lack of interest in union activi-
ties or a disinclination to join the union does not imply
opposition to the union as bargaining representative. Re-
tired Persons Pharmacy, supra, 519 F.2d 486, 490.
Finally, with respect to Respondent's argument re-
garding turnover as contributing to Respondent's doubt
of the Union's majority status, the Board has held that
there is a presumption that "new employees will support
the union in the same proportion as those employees
with more seniority." Pioneer Inn, supra at 1266. That
presumption has not been rebutted here. Moreover, and
in any event, turnover in the instant case was confined to
a relatively small group of unit employees. Close exami-
nation of the employee list entered into evidence by Re-
spondent and showing dates of hire reveals that 24 of the
34 employees in the unit on 28 March had been em-
ployed prior to the effective date of the latest bargaining
agreement, 1 June 1984. Thus, the turnover was among
11 It should be noted that four of the same seven, Myers, Millwood,
Beasley, and Holland revoked or attempted to revoke their checkoff au-
thorizations As noted the two additional employees who sought to
revoke checkoff authorizations , Thurmond and Hampton, did not do so
until May after the refusal to bargain
roughly 10 employees in the unit, a small minority. To
Respondent's knowledge 16 of the 24 employees not af-
fected by turnover were on dues checkoff. Selection of
the Union for representation by only 2 employees replac-
ing any of the 10 affected by turnover would be suffi-
cient to continue the Union's majority status. Any pre-
sumption by Respondent that 9 or more of this 10 would
not desire union representation would appear to be based
more on wishful thinking than any reasonably based ex-
pectation. Accordingly, I find the turnover here to be in-
sufficient to constitute a factor substantiating a good-
faith doubt of the Union's majority status.
Considering all the foregoing factors relied on by Re-
spondent in its defense, both individually and collective-
ly, I find no reasonable objective basis to support Re-
spondent's good-faith doubt of the Union's majority
status when it withdrew recognition from the Union and
refused to bargain with it. I therefore find that Respond-
ent violated Section 8(a)(5) and (1) of the Act as alleged.
CONCLUSIONS OF LAW
1. The Respondent, ACL Corporation d/b/a Atlanta
Hilton & Towers, is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Firemen and Oilers,
AFL-CIO Local 288 is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union is now and has been at all material times
the exclusive majority representative of all employees in
the following bargaining unit found to be appropriate:
All full-time and regular part-time employees em-
ployed by the employer at its Atlanta, Georgia fa-
cility, in the Property Operations Department in-
cluding electricians, TV technicians, mechanics, op-
erators, plumbers helpers, carpenters, carpet-men,
upholsterers, printers and locksmiths, but excluding
all office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act.
4. By withdrawing recognition from the Union, and by
refusing thereafter to bargain with the Union on'request,
Respondent has refused to bargain collectively with the
Union as the exclusive collective-bargaining representa-
tive of its employees in violation of Section 8(a)(5) of the
Act.
5. By the conduct set forth in Conclusion of Law 4
above, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaran-
teed them in Section 8(a)(l) of the Act.
6. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. Respondent will
be required to recognize and, on request, bargain with
the Union and to post an appropriate notice to employ-
ees.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
ORDER
The Respondent, ACL Corporation d/b/a Atlanta
Hilton & Towers, Atlanta, Georgia, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from, and refusing to bar-
gain collectively with, the Union as the exclusive bar-
gaining representative of employees in the following ap-
propriate unit:
All full-time and regular part-time employees em-
ployed by the employer at its Atlanta, Georgia fa-
cility, in the Property Operations Department in-
cluding electricians, TV technicians, mechanics, op-
erators, plumbers helpers, carpenters, carpet-men,
upholsterers, printers and locksmiths, but excluding
all office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request bargain collectively with International
Brotherhood of Firemen and Oilers, AFL-CIO Local
288, as the exclusive bargaining representative of its em-
ployees in the aforesaid unit and, if an understanding is
reached; embody the same in a signed agreement.
(b) Post at its Atlanta, Georgia facility copies of the
attached notice marked "Appendix."13 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent's au-
thorized representative; shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
12 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT withdraw recognition from or refuse to
bargain with International Brotherhood of Firemen and
Oilers, AFL-CIO Local 288 as the exclusive representa-
tive of employees in the following appropriate unit:
All full-time and regular part-time employees em-
ployed by the employer at its Atlanta, Georgia fa-
cility, in the Property Operations Department in-
cluding electricians, TV technicians, mechanics, op-
erators, plumbers helpers, carpenters, carpet-men,
upholsterers, printers and locksmiths, but excluding
all office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain collec-
tively with the aforesaid Union as the exclusive repre-
sentative of all the employees in the appropriate unit de-
scribed above with regard to rates of pay, hours of em-
ployment, and others terms and conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed agreement.
ACL CORPORATION D/B/A ATLANTA
HILTON & TOWERS