Colonade HotelDownload PDFNational Labor Relations Board - Board DecisionsMay 3, 1978235 N.L.R.B. 1362 (N.L.R.B. 1978) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Colonnade Hotel and Local 26, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Cases I-CA- 11002 and 1-RC- 13919 May 3, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 21, 1977, Administrative Law Judge Robert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, to modify the remedy to recommend backpay for the suspension according to F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),1 and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Colonnade Hotel, Boston, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Insert the following as paragraph 2(d) and reletter the subsequent paragraphs accordingly: "(d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order." 2. Substitute the attached notice for that of the Administrative Law Judge. I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 235 NLRB No. 192 APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees that we will close our hotel if they select Local 26, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, or any other labor organization, to represent them. WE WILL NOT coercively interrogate any em- ployee concerning his or her union activities or sympathies. WE WILL NOT discriminatorily issue oral or written warnings to our employees to discourage their activities or support on behalf of the above- named Union or any other labor organization. WE WILL NOT seek to induce ineligible employ- ees or former employees to participate in union representation elections affecting our employees by offering them money to vote. WE WILL NOT grant our employees wage in- creases for the purpose of influencing their choice of a labor organization as their bargaining repre- sentative. WE WILL NOT suspend our employees to dis- courage their membership in or activities on behalf of the above-named Union or any other labor organization. WE WILL NOT in any other way interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL make whole Charles P. Hannon for any loss in pay, plus interest, he suffered when suspended for I month from August 19, 1975. WE WILL remove from Charles P. Hannon's personnel file, and from any of our other relevant records, any reference to, and rescind, the written warning and notice of suspension previously issued to him on August 15 and 19, 1975, respectively, and make provision that these no- tices shall not be used as grounds for further disciplinary action against this employee. WE WILL recognize and, upon request, bargain with Local 26, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive representative of our employees in the appropriate unit. The appropriate unit is: All housekeeping department employees and all laundry department employees em- ployed by the Respondent at its Huntington Avenue, Boston, Massachusetts, location, but excluding all office clerical employees, 1362 COLONNADE HOTEL guards, and supervisors, as defined in the Act, and all other employees of the Respon- dent. COLONNADE HOTEL DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: These consolidated cases were heard in Boston, Massachu- setts, on June 7 and 8, July 21, 22, and 23, and December 13, 14, and 15, 1976. The original and amended charges in Case I -CA-11002 were filed on August 25, 1975, and January 8, 1976, respectively, by Local 26, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union. The consolidated complaint, as issued on February 3, 1976, and as amended on April 5, 1976, alleges that the Colonnade Hotel, herein the Respondent, violated Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, herein called the Act. On June 30, 1975, the Union filed a petition for a representation election in Case 1-RC-13919. Pursuant to a Stipulation for Certification Upon Consent Election exe- cuted by the parties and approved by the Regional Director for Region I on July 30, 1975, an election by secret ballot was conducted on August 21, 1975, among the employees of the Respondent in an agreed-upon appropri- ate bargaining unit.' The tally of ballots served on the parties immediately following the election showed that, of approximately 46 eligible voters, 35 cast ballots, of which 11 were cast for the Union, 22 were cast against the Union, and 2 ballots were challenged. The challenged ballots were not sufficient in number to affect the results of the election. On August 25, 1975, the Union filed timely objections to conduct affecting the results of the election. In the objections, the Union alleged, inter alia, that, in the critical period prior to the election,2 the Employer promised and granted benefits and wage increases to members of the unit, threatened and interrogated unit employees, and laid off, disciplined, and/or discharged several employees be- cause said employees were engaged in protected concerted activity on behalf of the Union. 3 Issues i. Whether the Respondent violated Section 8(aXl) of the Act by coercively interrogating employees concerning their union activities and sympathies; by threatening plant The appropriate collective-bargaining unit, as set forth in the stipula- tion, is: All housekeeping department employees and all laundry department employees employed by the Respondent at its Huntington Avenue, Boston, Massachusetts, location, but excluding office clerical employ- ees, guards and supervisors, as defined in the Act, and all other employees of the Respondent. 2 In Goodyear Tire and Rubber Company. 138 NLRB 453 (1962), the Board defined the critical period before an election as the interval from the date of the filing of the petition to the time of the election. Conduct occurring during the period found to have interfered with the employees' freedom of choice at the polls may be grounds for setting aside the election. closure if the employees selected the Union to represent them; by inducing an ineligible former employee to vote in the scheduled representation election by offer of monetary payment, by issuing a written disciplinary warning to an employee because of his union activities; and by granting wage increases to discourage support for the Union. 2. Whether the Respondent violated Section 8(aX3) and (1) of the Act by discriminatorily suspending Charles P. Hannon, its employee, for a period of 30 days because of his protected concerted activities on behalf of the Union. 3. Whether the election in Case I-RC-13919 should be set aside. 4. Whether, at the time the Union requested the Respondent to recognize it and bargain, it enjoyed valid majority support among the employees in the unit. 5. Whether the Respondent should be ordered to recognize and bargain with the Union. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Briefs, filed by the General Counsel and the Respondent, have been carefully consid- ered. Upon the entire record of the case4 and my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Massachusetts corporation, is en- gaged in the operation of a hotel in Boston, Massachusetts, where its principal office and place of business are situated. The Respondent annually, in the course and conduct of its business, causes and continually has caused large quanti- ties of liquor and food stuffs to be purchased and transported in interstate commerce and from and through various States other than the Commonwealth of Massachu- setts. The Respondent annually receives goods valued in excess of $50,000 at its Boston location directly from points located outside the Commonwealth of Massachusetts and, also, annually receives goods valued in excess of $50,000 at its Boston location from businesses within the Common- wealth of Massachusetts, which businesses themselves are engaged in commerce within the meaning of the Act. The Respondent has an annual gross volume of business in excess of $500,000. Upon the foregoing conceded facts, I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3 Certain objections originally filed by the Union, Objections 4 - 8, were withdrawn by the Union on January 7. 1976, with the approval of the Regional Director. In his report on objections, dated January 8, 1976, the Regional Director ordered that a hearing be held on the Union's remaining objections and consolidated the unfair labor practice and the representation cases for purposes of hearing, ruling, and decision by an Administrative Law Judge. 4 At the hearing, G.C. Exhs. 29 and 30, two letters, dated November 1, 1975, and March 27, 1976, respectively, issued to Patrick Tubwon, a witness in this proceeding, were not received into evidence. Upon reconsideration, I hereby reverse my earlier ruling and now include these exhibits as part of the record. 1363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The answer admits and I find that the Union and Local 34, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, are both labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Since 1971, the Respondent has operated a hotel in Boston, Massachusetts, where, in addition to boarding guests, it maintains facilities for the conduct of banquets and other functions. At all times material herein, Amos Juster and El-Sayed Saleh have been the general manager and resident manager, respectively. During the times considered herein, Cassiano DeFreitas was the Respon- dent's banquet manager and Ingeborg Morris the executive housekeeper. Since January 15, 1972, the Respondent has recognized and bargained with the Local Joint Executive Board of Boston, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and its affiliate Local 34, a sister local to the charging Union herein, Local 26. When the hearing began, the Respondent, the Local Joint Executive Board, and Local 34 were parties to their second collective-bargaining agreement, effective December 1, 1973, to November 30, 1976. Under this contract, Local 34, in effect, was recognized as the bargaining representative for a unit consisting of: All bartenders, waiters, waitresses, service captains, bar boys, bus boys, all kitchen personnel, hostesses, ban- quet porters, bell captains, bell men and doormen, employed by the Respondent at its Boston, Massachu- setts, hotel, but excluding all front office employees, telephone operators, cashiers, checkers, confidential employees, maintenance employees, check room em- ployees, supervisors and guards, as defined in the Act. Individuals employed in the Respondent's housekeeping and laundry departments were not covered by the contract between the Respondent and Local 34 and, to date, have not been represented for purposes of collective bargaining by a union.5 s It was stipulated at the hearing that Local 26, the Union herein, is a successor union to Cooks and Pastry Cooks Association, Local 186, and Hotel Service and Waitresses Union, Local 277, merged sister locals affiliated with the Local Joint Executive Board of Boston, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. The Local Joint Executive Board of Boston, its two prior affiliates, Locals 277 and 186, and Local 34, all had been parties to successive collective- bargaining agreements with the Respondent. The above-named labor organizations also had been signatories to a collective-bargaining agreement on an associationwide basis with 12 Boston hotels that are members of and negotiate through the Greater Boston Hotel and Motor Inn Association. The most recent associationwide contract at the time of the hearing was effective from April 1, 1974, through November 30, 1976. Under the terms of that contract, Local 34 was recognized as the bargaining representative for the waiters, captains, and bartenders employed at the 12 hotels, while Local 186 and 277, the predecessors of Local 26, were the bargaining agents for the other employees, which included their housekeeping staff, such as maids and housemen, and laundry employees, including linen room On June 27 and 28, 1975,6 through the organizational activities of Eileen Flynn, an assistant business agent for Local 26, and of Charles P. Hannon, a banquet waiter employed by the Respondent and a member of Local 34, a number of employees in the Respondent's housekeeping and laundry departments signed union authorization cards. Thereafter, on June 30, Joseph Sullivan, president of the Union, accompanied by Flynn, went to the Respondent's premises and requested Amos Juster, the Respondent's general manager, to recognize and bargain with Local 26 for the Respondent's housekeeping and laundry employees on the ground that the Union then had enough signed authorization cards to constitute a majority. Juster de- clined to grant recognition.7 Later on June 30, the Union filed a petition in Case 1- RC-13919 for an election in the housekeeping-laundry unit. The complaint and the objections to the election alleged, in substance, that, between the date of the filing of the petition and the election of August 21, the Respondent engaged in unlawful conduct to destroy the Union's majority status. The Respondent denies the commission of any unfair labor practices and contends that the Union has never enjoyed the support of a true majority of the employees in the housekeeping-laundry unit. B. The Alleged 8(a)(1) Conduct 1. The alleged solicitation of an ineligible employee to vote in the representation election; facts and conclusions Douglas Reddington, a college student, was employed by the Respondent in its housekeeping department as a yardman.8 Reddington testified that on Friday, August 15, he voluntarily resigned his employment with the Respondent after previously giving 10 days' notice of his intent to leave to the Respondent's housekeeper, Ingeborg Morris. At that time, Reddington had worked for the Respondent for about 2 months. Reddington testified that on Monday, August 18, Tues- day, August 19, and Wednesday, August 20, the 3 days immediately preceding the August 21 election, he received telephone calls at his home from the Respondent's resident manager, El-Sayed Saleh. Reddington related that, during the first call on August 18, Saleh had asked him if he could come in and vote, announcing that there would be a staff employees. The Respondent, however, is not a member of the Greater Boston Hotel and Motor Inn Association and, in its separate successive contracts, in fact, has bargained only with respect to its bartenders, waiters, waitresses, and other employees in the unit described above, but not for its housekeeping and laundry employees. 6 All dates hereinafter are within 1975, unless stated to be otherwise. 7 It was stipulated at the hearing that on June 30, the date on which the Union asked for recognition and bargaining, there were 52 persons employed in the housekeeping and laundry unit. The validity of certain of the cards on which the Union bases its majority is contested by the Respondent in this proceeding. Accordingly, the circumstances under which authorization cards were obtained and the details of the June 30 meeting between Juster, Sullivan, and Flynn will be considered in greater detail below. 8 Yardmen are responsible for sweeping the streets at the Respondent's premises, caring for the plants around the hotel, and cleaning the garage; they are expected to perform other duties specified by the executive housekeeper. 1364 COLONNADE HOTEL party on that day. Reddington replied that he would be unavailable because he had football practice that Thursday and did not know what time he would be through. According to Reddington, Saleh said that that was okay and the conversation ended. On August 19, Reddington again answered the phone and heard Saleh ask for him. When Reddington identified himself, Saleh gave his name and again asked if Redding- ton could come in. Reddington declined again, telling Saleh that he had told him before that he had football practice. Saleh told Reddington that it was very important for him to come in. Reddington again stated that he did not think he could. Saleh again repeated that it was really important for Reddington to come in. Reddington replied that, if he could get through with practice in time, he would try to make it to the hotel. On August 20, during the third telephone call from Saleh, the resident manager repeated his request that Reddington come in. Reddington again replied that he had football practice on that day and was not quite certain that it would end in time. Saleh then offered Reddington a day's pay to come in and vote. Reddington responded that he still did not know whether he could, but would find out; if he had time to come in, he would. Saleh replied, "Well, if you can make time, come in." Reddington related that football practice ended earlier during the afternoon of August 21 than he had expected. Accordingly, he went to the Respondent's hotel. When he arrived there, a party was in progress that was attended by most of the Respondent's housekeeping employees. Red- dington saw Saleh at the party and shook hands with him. Saleh announced that the voting was downstairs. Redding- ton went to the lower level, voted, and returned to the party9 for approximately another half hour and left the premises. Although he did not work that day, he was paid his usual daily rate of approximately $18. In January 1976, Reddington, having received corre- spondence from the National Labor Relations Board's Regional Office, telephoned Saleh to ask what was in progress. Saleh, in that conversation, told Reddington not to say anything about his having been paid by the Respondent for August 21. Reddington, however, told Saleh that he already had informed the Board that he had been paid for that day. Saleh replied, "Okay. Then it is all right." Saleh, in turn, testified that, although Reddington had been offered a day's pay to come to work on August 21, this offer had only been made in the context of an offer of work.10 Although Saleh had telephoned Reddington with the suggestion that he come in to vote, he had done so only because Reddington's name was on the voting eligibility list and, not having had prior experience in Board-conduct- ed representation cases, Saleh had a good-faith belief that Reddington was entitled to vote. Saleh related that on August 15, the day that Reddington left the Respondent's employ, he came to Saleh's office to say goodby, to thank him, and to announce that he was 9 Neither the complaint nor the objections to the election alleged that the staff party, conducted from about 11 a.m. to 6 p.m. on August 21, the date of the election, constituted an unlawful. benefit. Saleh testified, without contradiction, that similar parties had been held in the third week of August during each of the preceding 2 years and that all of the Respondent's returning to school. During that conversation, Reddington told Saleh that he would be glad to have part-time work with the Respondent during 2 days or even I day a week. Saleh promised to give him this if the opportunity arose. Saleh testified that he made but one telephone call to Reddington before the election, on or about Monday, August 18. On that occasion, he told Reddington that the Respondent's employees were having a union representa- tion election on August 21, and that he (Saleh) expected that a large number of the employees might not show up for the election because there had been much talk for and against the Union. As a result, it was Saleh's belief that a number of employees were not going to come in to work that day. Saleh told Reddington that the Respondent would need help in case they run short of staff. If Reddington would like to come in to work on that day, the hotel would appreciate it. Reddington, of course, would be paid for his work. According to Saleh, Reddington replied, "Fine. I have basketball practice, but will be there before noon." Reddington promised to work for that day. Reddington, however, instead of reporting for work at noon as promised, did not come in until around 2 or 2:30 p.m. Saleh saw Reddington when he walked into the staff party; he apologized to Saleh for being late. Saleh told Reddington to talk to the head houseman, Louis Ware. Ware, in turn, told Reddington that he already had found someone to clean the garage and that Reddington was so late that he was not needed anymore that day. Reddington came back to see Saleh accompanied by Ware. Reddington told Saleh that he was late because he had had training. He had spent money to come in that day as requested by Saleh and would have to spend money to go home. Reddington was completely unhappy about the situation. Accordingly, Saleh told Ware to pay Reddington for the day. This was done. Saleh was not certain as to whether Reddington had voted on August 21 but, as noted, believed that he was entitled to vote as Reddington's name was on the eligibility list. In concluding that Reddington, who by the time of the election was no longer employed by the Respondent or, if Saleh's version is accepted, was at most a casual on call employee and ineligible to vote in either circumstance, had been unlawfully induced by a promise of money to come in to vote, Reddington's testimony is credited over that of Saleh's. In the first instance, Reddington testified as a comparatively disinterested witness who, by the time of the hearing, had no connection with either the Respondent or the Union. In addition, Saleh's testimony described events that were contrary to the Respondent's established policy. At all times material herein, the Respondent has followed a practice of initiating personnel action forms to mark each material change in an employee's status. Accordingly, personnel action forms are completed when employees receive pay increases, demotions, transfers, layoffs, and suspensions. Personnel action forms also reflect discharges and rehires. Saleh conceded that it was also the Respon- employees, approximately 270 to 280 in number, had been invited to attend. Accordingly, I do not find that the party constituted an unlawful benefit or that it affected the outcome of the election. 'O The offer of compensation in exchange for services on August 21, as testified to by Saleh, is denied by Reddington. 1365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's policy to complete personnel action forms on behalf of employees who worked for the Respondent on part-time and oncall bases. At first, Saleh testified that no such forms had been prepared for Reddington on August 21, because he did not work at all on that day. However, inconsistent with this statement, Saleh later agreed that personnel action forms customarily are completed before employees start work rather than afterwards and that no such form had been completed for Reddington on August 21. This tends to indicate that Reddington was not expected to work that day. Saleh also testified that he did not usually pay employees for a full day's work when no services were performed because of the employee's marked lateness in reporting. Noting the absence of a prepared personnel action form, the inconsistency of Saleh's testimony with respect thereto, and the deviation from the Respondent's pay policies, I find that Saleh's explanation that Redding- ton had been paid for August 21, because he was a student who had volunteered to come in for the day to help in case of need, to be unconvincing." Accordingly, it is concluded that the Respondent violat- ed Section 8(a)(l) of the Act when, through Saleh, it induced Reddington, as an ineligible employee, to vote in the representation election by offering him money in exchange for his participation. 2. The alleged unlawful wage increases; facts and conclusions The amounts of the pay increases granted by the Respondent in 1975 and their effective dates, both before and after the filing of the representation petition, were stipulated at the hearing. Accordingly, the parties agreed that in the period between April 14 and June 30, the latter being the date of the filing of the representation petition, 11 housekeeping and laundry employees received increases in their hourly pay rates. It further was stipulated that, during the period from July 18 to August 10, 40 of the 49 employees shown on the voting eligibility lists 1 2 also received hourly wage rate increases. Of these 40 employees so benefited 32 were employed in job classification as chambermaids or laundry employees. The parties stipulated that the hourly pay rates under the then current collective-bargaining agreement between the Greater Boston Hotel and Motor Inn Association and the Local Joint Executive Board of Boston were $2.50 an hour for chambermaids and laundry employees and $2.55 for housemen. In accordance with stipulations made and the exhibits submitted at the hearing, it is found that the wage increases given to the Respondent's chambermaids, house- men, and laundry employees, in the period from July 18 to August 10, brought their hourly rates up to those establish- ed under the Greater Boston Hotel and Motor Inn Association contract, except for three employees who received higher rates and who will be discussed below. The General Counsel contends that the wage increases given to the 40 employees after June 30, the date of the " In this connection, it is noted that Saleh testified that he had authorized the day's pay for Reddington on August 21 under the circum- stances he described herein although Reddington, at the time, allegedly was openly aggrieved only about the carfare he had spent to come to the hotel that day. Union's demand for recognition and its filing of the representation petition, constituted an unlawful effort by the Respondent to discourage employees from supporting the Union and to influence the results of the pending election. The Respondent asserts that the wage increases given after June 30 were administered pursuant to a decision that had been made earlier in the year to bring these employees' pay scales up to those in the Boston Hotel Association contract, and were merely an extension of the increases given to the I 1 employees between April 14 and June 30, which increments had resulted from the same decision. Ingeborg Morris, the Respondent's executive house- keeper during the period in question,13 corroborated by General Manager Juster and Resident Manager Saleh, related that the subject of a wage increase for the housekeeping staff was first mentioned in late March during a luncheon meeting with Juster, during which Juster first invited Morris to become the Respondent's executive housekeeper. In the course of their talk, Juster discussed the problems of the housekeeping department, expressed his ideas, and described to Morris the pay rates for the Respondent's housekeeping employees. Morris, who had worked for years in hotels that were bound by the Boston Hotel Association's collective-bargaining agreement, told Juster that the staff at the Colonnade at that time was paying less than the unionized hotels in Boston. Although Morris expressed her realization that the workload at the Respondent's hotel was less than that at any union hotel, in that the Respondent's maids were required to make tip only 14 rooms a day as compared to 16 at the unionized hotels, she stated her view that, for the Respondent to be able to get employees capable of doing the desired quality of work, Juster would have to bring the wages up to the level of any other hotel in Boston. Juster expressed his interest in so doing. In late March, Morris had a second interview with Juster in the latter's office in the presence of Saleh. At that meeting, Juster again asked if Morris would be interested in leaving her then-current position and joining the Respondent's hotel. Morris indicated her willingness. Again, they discussed improvements that Morris felt she would like to see implemented at the Respondent's hotel if she should accept the executive housekeeping position. Such improvements included upgrading the staff cafeteria, getting the employees uniforms and name tags, improve- ment in the locker rooms, and free meals for certain employees. She then reiterated that the pay scales should be raised to the union rates in any hotel in Boston. Juster and Saleh agreed to Morris' requests but explained that they could not be effectuated immediately, but would be done as business improved during the summer months. After this meeting, Morris gave notice to her employer and reported for work with the Respondent on April 11. On April 14, 3 days after she started work, Morris met with Juster and Saleh in Juster's office. Also present were Laverne Wiggins and Anna Jones, two supervisors in the 12 The payroll eligibility date on the voting list was for the week ending July 26. 13 Morris served as the Respondent's executive housekeeper from April I I to the end of November 1975. At the time she testified in this proceeding, she was no longer associated with the Respondent. 1366 COLONNADE HOTEL housekeeping department. At that meeting, Juster agreed to provide housekeeping employees with uniforms and name tags and to improve the cafeteria and the meals. It was also agreed that Morris could give immediate wage increases at her own discretion to a few of the people in her department. As to the remaining employees, Morris was told that she gradually could upgrade their wages after obtaining authorization from Saleh.' 4 The minutes of the April 14 meeting, however, appear to contradict the Respondent's evidence that any such broad- based plan for general pay increases to bring all housekeep- ing employees up to union scale in the summer was discussed at that time. Rather, it was noted therein that Morris merely had "suggested giving graduated increases to persons in her department who consistently do their job well. Mr. Juster and Mr. Saleh agreed this would be done when business picked up in the summer." In fact, only certain merit increases were afforded before the filing of the petition. Accordingly, Morris claimed to have been authorized to give immediate wage increases at her meeting with Juster and Saleh on about April 14. Although she testified that the first wage increases were given to two laundry employees, Mary DeBarros and Emma Allison, Joint Exhibit 4, received by stipulation, revealed that no increases were actually afforded until May 22, at which time eight maids received 10-cent-per-hour across-the-board increases, bringing their hourly rates up to $2.40 - an amount that was still 10 cents less than that paid under the Boston Hotel Association contract. DeBarros and Allison and a third employee, Dianne Bonner, in fact, did not receive their 10-cent increases until June 20, about I month after the first increments were given. While Bonner's raise only brought her up to $2.40, the same rate as was paid to those who had received the earlier increases, DeBarros and Allison were raised to $2.55 and $2.65, respectively, sums in excess of the contract rate. Morris explained her decision to pay DeBarros and Allison more than what was provided under the Boston Hotel Association contract by pointing out that they were experienced laundry employees who worked in the linen room, described as a hot, dusty area. She explained that by virtue of their experience and skill they were acquainted with the use of all types of laundry equipment, could operate independently, and, therefore, were very important to her operation.i 5 Morris testified that she had met with the housekeeping supervisors at the end of April or the beginning of May, at which time she explained to them that, eventually, all housekeeping employees would be given increases to bring their rates to the same level as the other hotels in Boston, although they still would not be required to make up more than 14 rooms a day. This lesser workload would be continued in the interest of obtaining work of a higher quality. She also instructed her supervisors to communicate their discussions concerning the pending wage increases 14 Morris testified that the other improvements that she earlier had suggested to the Respondent's management also were implemented. Ac- cordingly, within 4 or 5 weeks after Morris began to work for the Respondent, all housekeeping employees had uniforms and name tags. Cafeteria improvements were put in effect within approximately 4 weeks and the policy concerning free meals for supervisors was also promptly and the purposes therefor to all employees in the house- keeping department. Resident Manager Saleh testified that after he had attended the April 14 meeting with Juster and Morris, at which time it was decided to gradually increase the pay for all housekeeping employees, the wages of the 11 house- keeping and laundry room employees were immediately raised to the levels described above. Saleh also testified that following that meeting he had informed the Respondent's controller, Sharif, of the decision that had been made so that he could make provision for the graduated increases in his budget. Sharif was asked to notify Saleh when the cash flow improved sufficiently to enable the granting of further raises. Juster, Saleh, and Morris agreed that the decision in April was that the raises finally would be implemented and the pay would be completely brought up to union scale during the summer months of 1975, when it was antici- pated that the Respondent's business would have increased sufficiently to enable the additional expenditure. On about April 17, in anticipation of a visit to the hotel by President Ford, Juster called a meeting of the depart- ment heads and the general hotel staff. Juster told those assembled how proud he was of them and of the fact that the President had chosen the Colonnade as the place to stay. He told the staff to keep up the good work. At that meeting, Juster also told the staff that, pursuant to Morris' recommendation, the Respondent's pay scales would be raised to the same standards as those of the other Boston hotels, even though the Respondent was going to continue its practice of requiring that a lesser number of rooms be made up each day than the quota specified in the Boston Hotel Association contract. Saleh testified that in mid-July he met with Morris and controller Sharif. At that meeting, the controller told him and Morris that the cash flow was sufficient to enable the Respondent to proceed. Saleh then told Morris that the controller had given them the green light, that the cash flow was improving, and that they could go forward with the planned pay raises for the housekeeping department. Morris also was told that the raises she was being authorized to give should bring the maids and laundry employees up to the contract rate of $2.50 per hour and $2.55 for the housemen. However, Morris was instructed to put the raises into effect gradually through the next 1 or 2 months to avoid the burden on the Respondent that abrupt implementation would cause. Saleh denied that he was involved in determining the order in which specific em- ployees would receive their wages. The wage increases thereafter were implemented as set forth in the above-described stipulations, except that one housekeeping employee, Rosalee Jackson, effective August 8, received a 30-cent hourly increase, which moved her pay rate up to $2.75. As the raises granted the other employees after June 30 ranged only between 10 to 20 cents, the increase afforded Jackson, which put her a full 25 cents per hour above the allegedly targeted union scale, appeared to realized. The thorough cleaning of the locker areas that had been recommended by and promised to Morris was also complied with. i' At the time the raises to above scale were given to Allison and DeBarros. there was one other laundry employee who did not receive an increase as he worked only on a part-time weekend bases and was considered to be less qualified than Allison and DeBarros. 1367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be extraordinary. However, this increment was not ac- counted for at the hearing nor was an explanation provided on Jackson's personnel action form, which recorded this raise. On August 19, at or about 3 p.m., the recently granted pay raises were called to the workers' attention at a meeting of the housekeeping and laundry employees presided over by Juster in one of the function rooms above Respondent's hotel. This meeting, which lasted for approx- imately 40 to 45 minutes, was also attended by Saleh and Morris. Consulting prepared notes, Juster told the assembled staff that all were aware that in 2 days they were going to have an election. He did not see why they should vote "yes" at the forthcoming election as he considered the standards of the hotel's housekeeping department, as far as wages and working conditions, to be better if not equal to the housekeeping departments in hotels in the area that were unionized. From the time he had come to the hotel, Juster told the assemblage, one of his foremost tasks had been to improve the employees' working conditions be- cause, in the hotel industry, good service could be given only by happy employees. Juster reminded the staff that, when he had come to the Respondent's hotel, each maid had been expected to make up 17 rooms per day. Juster immediately had reduced that number to 15 and, after a time, had lowered this quota again to 14 because he wanted to have a clean hotel. He had tried to make the Colonnade into the best hotel in the city. Juster pointed out that the union contract with the other hotels in Boston required that 16 rooms be made up by each maid. Juster related that in his prior positions in Europe, in the Middle East, and in America, he had worked with unions and was not afraid of them. However, he had a job to do which he was going to perform and he always did his job, with or without unions. Juster also told the staff about the various programs that had been instituted - the increases in salaries that had been given before the Union had even approached the hotel and the white glove contest.' 6 The August 19 meeting ended after Juster replied to certain questions put to him by Wally Labat, a houseman, concerning the status of Charles P. Hannon, the alleged discriminatee. The aspect will be considered below. The General Counsel contends that the wage increases given in July and August 1975 were unprecedented and, in view of their timing and the number of unit employees affected, the burden had shifted to the Respondent to show that the granting of the increases had been governed by factors other than the pendency of the election and the desire to influence its outcome. Noting that these raises had not been given pursuant to a preexisting policy, the General Counsel contends that the Respondent had not met its burden and that the explanation afforded by the it The white glove contest was a program instituted on August 1, pursuant to Morris' recommendation as described in the June - July, 1975, edition of the Respondent's newsletter, "Around the Columns." Manage- ment would inspect every room with white gloves every 3 months to determine which were the cleanest rooms. Following those inspections there would be quarterly cash prizes for the first and second place winners. After I year, the winners would be eligible to win a I-week paid vacation at a hotel Respondent's witnesses for the increases should not be credited. The Respondent, in turn, argues that the raises had been contemplated from a time in March, months before the start of the Union's organizational campaign and the filing of the representation petition, when Morris was first interviewed for the position of executive housekeeper. Their implementation had been decided on at the meeting of April 13, announced to employees during the staff meeting on April 17, and actually given to 11 of the unit employees on May 22 and June 20, respectively. Accord- ingly, the raises that had been given to the remaining 40 employees during July and August were mere extensions of a previously planned, publicly announced, and partially implemented wage plan which antedated the Union's campaign. In Idaho Candy Company,l7 Administrative Law Judge Robbins, in her Board-approved Decision, properly stated the rule: Where, as here, wage increases are granted ... after the filing of a representation petition, there is a presumption of impropriety which can be rebutted only by an affirmative showing that the granting of the benefits was governed by factors other than the impending election. Northwest Engineering Company, 148 NLRB 1136, 1145 (1964); Glosser Bros., Inc., 120 NLRB 965 (1958); International Shoe Company, 128 NLRB 682 (1959). While it may be inferred that a restructuring of the Respondent's wage scale for its housekeeping and laundry staff had been planned prior to the advent of the Union and although I am prepared to credit the uncontradicted testimony of Juster, Morris, and Saleh that this decision had been reached at or around the time Morris joined the Respondent, and had been announced to the staff by Juster on about April 17, I1 find that the promise of wage increases made by Juster to the staff on that occasion was neither specific as to when they would be implemented nor definite as to their ultimate occurrence. The pay increases, as referred to by Juster at the April staff meeting, and even as internally discussed by members of the Respondent's management, were not definite as to timing and implementation but, in effect, were made contingent upon business improving to some unascertained degree in the coming summer.'8 Inherent in this contingen- cy was the prospect that, if business did not improve to whatever extent contemplated, the raises would not be forthcoming. In fact, Saleh, in his testimony, strongly stressed that future increments would be dependent on an anticipated increase in the Respondent's "cash flow" which, in his testimony, he distinguished from being a mere improvement in business. This point had been made to Morris, and the raises, in fact, were given to the 40 in Miami, Florida. All housekeeping department employees were automati- cally contestants. 17 218 NLRB 352, 355 (1975). 18 See Tower Enterprises, Inc., d/b/a Tower Records, 182 NLRB 382. 386 (1970), where the Board emphasized the requirement that promises of future raises should be specific. 1368 COLONNADE HOTEL employees only after the Respondent's controller, in Morris' presence, had announced that the cash flow was then sufficient. Morris, on the other hand, denied having heard any reference to "cash flow" as a prerequisite to the increments she had sought for her staff. Morris recalled only that these raises would be implemented at some time in the summer when management decided that business had improved sufficiently. 19 Although the Respondent argues that its prepetition intent to raise its employees to the rates paid under the Boston Hotel Association contract was manifested by the fact that Morris was authorized on April 14 to immediately distribute raises to certain housekeeping and laundry employees, it is hard to see from what was actually done before the filing of the petition what would have enabled these workers to discern the Respondent's claimed ultimate intent. First, the Respondent's position as to the scope of the raises planned at that meeting was disputed by the minutes of that session, which referred only to granting graduated increases to housekeeping employees who con- sistently do their jobs well. Then, no raises were given to anyone until May 22, over I month after that meeting when eight maids each received 10-cent hourly increments to bring them up to a level that was still 10 cents below union scale. Moreover, Morris testified, these raises were given on the basis of individual merit. Nothing further happened thereafter until June 20, after almost another month had passed, when three more employees received raises. One of these three also was brought up to a level just 10 cents short of the contract scale, while the other two, DeBarros and Allison, were raised above that level. Morris testified, as noted, that she had placed them, DeBarros and Allison, above scale because their specific skills, experi- ence, and functional independence made them important to her and their negative working conditions made her afraid of losing them. Therefore they were the first to receive raises. Yet, inconsistently, the record shows that of the I I employees who received raises before the representa- tion petition was filed, DeBarros and Allison were among the last to be benefited, and were not given their wage improvements until more than 2 months after Morris had received her original authorization. In finding that there had been no previously established specific plan or timetable for the granting of the raises to the 40 housekeeping and laundry employees in the period which began about 18 days after the filing of the petition and which ended only approximately II days before the election, it is noted that Morris had been afforded the authority to decide on which dates the raises would be given and which employees would be the first to receive them and to thus earn more money sooner. She had discretion to deviate from the targeted Boston Hotel Association contract rate and did so, not only with respect to DeBarros and Allison but also, later, in the case of Rosalee Jackson who, as noted, received the extraordinary 30-cent increase which brought her hourly rate up to 25 19 Morris testified that her housekeeping supervisors, during the early spring, had been instructed to tell employees of the pending raises as they made their inspection rounds. Although there is no direct testimony from any supervisor that this, in fact, had been done, it is certain that they had not been authorized to tell the employees anything meaningful as to their timing and implementation. cents above union scale. As the Respondent, in accordance with its stated purpose, had staggered and otherwise deferred the raises to ease their financial impact, it would have been but a short further delay to have waited until after the election. Then, without regard to who was successful in the balloting, the anticipated union pay scale could have been put into effect. Therefore, noting the timing, the number of affected employees, the unprecedented and contingent nature of the increases, the absence of a specific timetable for their implementation prior to the filing of the petition, and the deviations from the union pay scale allegedly targeted, and even the question of fact raised by the minutes of the April 14 meeting as to just when it was decided to raise everyone to union scale, it is concluded that, while wage restructur- ing may have been discussed prior to the advent of the Union, the granting of the raises to the 40 employees during July and August was so administered as to induce the Respondent's employees to reject the Union.20 Accordingly, it is found that these wage increases violated Section 8(aX1) of the Act and interfered with the free conduct of the representation election. The Extension of the Insurance Program Although not alleged specifically in the complaint, and only generally in the first objection to the election in Case I-RC-13919, where it was charged that "Prior to the election the employer promised benefits . . . to members of the unit and granted same with the intention of coercing the employees in their right to decide how to vote in the election," the parties litigated at the hearing the issue as to whether the Respondent had extended coverage under its noncontributory insurance program to certain unit em- ployees for the first time in the period immediately preceding the election. The record reveals that, at a staff meeting of housekeep- ing and laundry employees conducted during the first half of August, Mark Burnett, the Respondent's personnel manager, distributed insurance enrollment cards to certain employees and informed them that they were covered by the Respondent's group policy with the Respondent's insurance carrier retroactively from the dates of their employment. It appears from the undisputed testimony of the Respon- dent's witnesses, particularly that of Saleh, Morris, and Juster, that the hotel had provided hospitalization and life insurance coverage for its employees under a series of group plans in effect since the Respondent had begun operations in 1971. The extent of these benefits, which varied among different categories of employees, depended on the individual employee's job classification. From the beginning, all housekeeping employees, as a group, enjoyed the same noncontributory medical and life insurance, for which they became eligible after their first 3 months of employment. New employees were supposed to have 20 N.LR.B. v. Exchange Parts Company, 375 U.S. 405 (1964); Bechtel Corporation, 200 NLRB 975 (1972); Idaho Candy Company, suprat East Bay Newspapers, Inc., d/bla Contra Costa Times, 228 NLRB 692, 699 (1977); Lang Feed Company, Incorporated 227 NLRB 1588, 1590 (1977); Tower Enterprises, Inc., d/b/a Tower Record supra. 1369 DECISIONS OF NATIONAL LABOR RELATIONS BOARD completed their insurance enrollment card with other documents at the time they began their employment with the Respondent. However, through error, approximately 10 percent of the housekeeping staff, in fact, had not com- pleted enrollment cards by the end of June 1975. This error had come to the Respondent's attention in either May or June when a maid, expecting hospitalization, inquired about her insurance protection and it was learned that she did not have coverage. Saleh then instructed the personnel manager to check all records, including those related to housekeeping, to determine whether the relevant insurance forms had been filled out and filed with the insurance company. The matter was investigated and rectified by early August. The Respondent's evidence that this implementation of its insurance enrollment program, which already was benefiting 90 percent of the employees in the relevant unit, was amendatory, and did not consti- tute a new benefit in the critical period before the election, was not effectively countered in the record. Therefore, there is no basis for a finding that the steps taken by the Respondent to administer more properly its existing insur- ance program constituted the granting of a new unlawful economic benefit that interfered with the employees' freedom of choice at the election. 3. The alleged interrogation of Allan L. Clarke; facts and conclusions One of the matters to be discussed below in connection with the suspension of Charles P. Hannon, the alleged 8(a)(3) discriminatee, was a warning letter, dated August 15, sent to Hannon by Saleh for "the illegal practices" he had "been carrying on in this hotel relative to union organization." The letter noted that Hannon had been coercing the Respondent's employees regarding union matters without approval or permission of the Respon- dent's management. Saleh testified that this letter had been issued pursuant to complaints received from two employ- ees - a lobby porter, Allan L. Clarke, and Lillie Greaves, a maid. Both employees, according to Saleh, complained that Hannon had been disturbing them in their work with his prounion talk. Saleh testified that Clarke and he were having their usual general conversation one morning during the second week of August, while Clarke,21 in accordance with his regular assignment, was cleaning Saleh's office. When Clarke told Saleh that Hannon had spoken to him a couple of times about the Union while he was working around the hotel and that he would like to be left alone, Saleh promised that he would take care of it. Saleh denied that he had called Clarke into his office to ask him about Hannon's activities and also denied that he had been the one to raise the question. Saleh related that he reported the complaint from Clarke, and a similar one from Graves, to Juster and that this, ultimately, had resulted in the warning letter being sent to Hannon on August 15. 21 Clarke, called by the General Counsel as a rebuttal witness, had been employed by the Respondent as a lobby porter since August 1973. At the time of the hearing he was still in the Respondent's employ. 22 Although Clarke did not know Hannon by name, Hannon wears spectacles and was recognized by Clarke in the courtroom as the man who had spoken to him about the Union. Clarke, contrary to Saleh, testified that, while he was working in Saleh's office, Saleh had been the first to mention the matter of the Union. Clarke related that, after the morning greetings were exchanged, Saleh told him that he understood that a gentleman over there was trying to worry him about unions. Clarke replied that a gentleman with eyeglasses 2 2 had passed by and had told Clarke to expect a lady from the Union to come down to the cafeteria at midday to sign a card and do whatever else was necessary to join the Union. Clarke himself had signed a union authorization card on June 27, the date when Hannon and Union Representative Eileen Flynn had obtained most of the signed authoriza- tion cards in the employees cafeteria. Noting that Clarke was not an articulate witness and that he had difficulty in recalling dates, the Respondent argues that Saleh's account of this conversation should be credited over that of Clarke's and that it, therefore, should be found that, as Clarke had initiated the conversation concerning the Union on the day in question, Saleh had not interrogated him. For reasons that were specified above in connection with Saleh's unlawful inducement of Douglas Reddington to vote, and as will be further indicated below in connection with Hannon's suspension, Saleh generally has not been found to be a credible witness in this proceeding. Although Saleh was a more coherent witness than Clarke, Clarke clearly did remember that it was Saleh who had begun the discussion concerning unions by questioning him. Noting that Clarke, at the time of the hearing, was still employed by the Respondent, and that he, at all times, had sought to answer the questions put to him forthrightly to his best recollection, Clarke's version of the conversation between himself and Saleh hereby is credited. Accordingly, it is found that Saleh, during the second week of August, interrogated Clarke as to the Union's organizing campaign in violation of Section 8(a)(1) of the Act.23 C. The Alleged Unlawful Events Affecting Charles P. Hannon and the Union's Request for Recognition 1. Hannon's union activities The general Counsel contends that Hannon had received an unlawful warning letter, dated August 15, because of his union activities, had been coercively interrogated as to those activities, had been informed that the Respondent's proprietor would close the hotel if the employees chose the Union as its bargaining representative, and had been suspended but 2 days before the election on the ground that he was the Union's principal campaign organizer. The Respondent denies that it violated the Act with respect to Hannon and argues that such actions which it took were justified. 23 The Respondent, in its brief, incorrectly referred to the Clarke incident as the only evidence of interrogation involved herein. However, the complaint alleges, and the General Counsel contends, that Hannon, too, had been coercively interrogated concerning his union activities. Hannon's interrogation and other alleged violations of Sec. 8(aXl), allegedly directed against him, will be considered below. 1370 COLONNADE HOTEL Hannon, a member of Local 34 for approximately 30 years, had been employed by the Respondent as a banquet waiter since beginning its operation in 1971, except for a brief initial period when he was a regular waiter.24 In mid-1975, Hannon was one of the five regular banquet waiters reporting to the then banquet manager, Cassiano DeFreitas, who, on a preferential basis, were called to work at various functions conducted in the Respondent's hotel. If additional waiters beyond the regular five were required, DeFreitas would call on Local 34 to provide the extra help. Banquet waiters, whose work schedules were arranged by DeFreitas, were expected to report for work at least 35 to 45 minutes in advance of a function, gather up the linen, china, flatware, and all else that might be required to set the tables, prepare the tables, serve the function, and thereafter clear the tables. Whether the event was luncheon or a dinner, banquet waiters were required to stay for 3 hours, after which they were paid for each additional hour. Hannon's capabilities as an effective waiter are not in dispute. Hannon testified that, after having informed a number of housekeeping employees of the benefits of unionization as he saw it, in response to their complaints about their subscale pay, he visited the Local 26 office early in the morning of June 27, where he spoke to Eileen Flynn,25 an assistant business agent of the Union, about signing up the Respondent's housekeeping staff. Hannon and Flynn agreed to meet at the Respondent's employees cafeteria at noon that day. As the validity of a number of authorization cards on which the Union bases its majority have been challenged by the Respondent, and as the General Counsel concedes that one such card originally relied on is not genuine, it is relevant to consider in some detail, in connection with Hannon's union activities, the methods used in soliciting employee signatures. At the appointed time on June 27, while approximately 35 employees were taking their lunches there, Flynn and Hannon arrived at the cafeteria. Hannon 26 stood and introduced Flynn to the employees as the business agent from the Union. Flynn told the assembled employees that she was the business agent for Local 26 and that that Union represented the employees at most of the major hotels in Boston. An employee asked why the Respon- dent's housekeeping department had not been unionized when other employees in the hotel were. Flynn explained that, at the time when the Respondent's other employees were organized, the Respondent did not have housekeeping employees as such work was being performed by an outside contractor.2 During the 28 minutes that the meeting lasted, employees raised questions about the Union's health and welfare programs and, in turn, informed Flynn that they had no 24 Hannon had played an active role in previous years within his union. which, as noted, represents the Respondent's waiters, waitresses, bartenders, and kitchen employees. He had served as an officer on Local 34's executive board and had run for the office of president in about 1973. At the time of the events material herein, Hannon was a rank-and-file member of his Union. 25 Although Flynn was principally an official of Local 26, which had no independent bargaining rights at the Respondent's premises, through the Local Joint Executive Board of Boston she also helped to administer Local 34's contract with the Respondent for the unit that it there represented. In paid holidays. Flynn told the employees that, under the union contract, they would have paid holidays and other benefits. She related that, if the employees became repre- sented, they would earn union scale and have pension and hospitalization plans and double pay on holidays, and that there would be no initiation fee. Flynn told the group that the cards that she was about to distribute would authorize the Union to represent them for purposes of collective bargaining. The Union, on the basis of the cards signed, would request the Respondent's management to negotiate. If the Respondent refused, the Union would petition the National Labor Relations Board for a secret election. Thereafter, while Flynn kept her seat at a table, circulat- ing a number of authorization cards from there by having them passed from employee to employee, Hannon walked around the cafeteria distributing other cards received from Flynn. Hannon testified that, while he was giving out these cards, he repeatedly told the employees, either in small groups or individually, that the purpose of these cards was to authorize the Union to bargain for them, that the Union would present the cards to management and, if manage- ment did not sit down and negotiate a contract with the Union, the Union would file a petition with the National Labor Relations Board for a secret election. Hannon also told various employees that, soon as a contract was signed, the employees would be earning $2.50 an hour. However, with the increases that were expected on November I of that year, they thereafter would earn another 15 cents an hour, which would give them a 35-cent hourly increase. This would amount to $13 a week or $56 per month. Hannon also explained to the employees that they would receive seven paid holidays and pension and hospitaliza- tion plans. Hannon related that, while the cards were being issued, signed, and returned, there were two or three maids in the cafeteria who spoke Portuguese and, apparently, did not understand what was being said. Accordingly, Hannon requested that a kitchen employee, also present, who spoke both English and Portuguese, explain to them what was being told to the other employees with regard to the purpose of the cards, the procedures that would be followed when the cards were signed, and the benefits of being covered by the Union's contract. This employee, to Hannon's best knowledge, did so. Hannon denied that he personally knew any of the employees who signed the authorization cards in the cafeteria on June 27. Flynn testified much to the same effect, except that, during the June 27 meeting, she did become acquainted with two of the Respondent's maids who were sitting next to her at the table - a heavier that capacity, Flynn, in the past, had had access to the Respondent's premises. 26 Although Hannon had been scheduled to work by the Respondent on June 27, he was not yet on duty at the time of the events described herein. 27 Flynn's explanation that the Respondent's housekeeping employees had initially been brought under the original union contract because such work had been contracted is disputed by the Respondent's general manager, Juster, who testified that, to his best knowledge, the Respondent's house- keeping work had always been performed by its own employees. 1371 DECISIONS OF NATIONAL LABOR RELATIONS BOARD woman and one slenderer. Flynn later learned that the heavier woman was Lillie Hutchinson Akre 28 and that the other lady was Lillie Greaves. Both women had taken initiatives in questioning Flynn as to what the Union did for employees in other hotels. In response to their respec- tive requests, Flynn passed out several copies each of the contract and booklets outlining the Union's health insur- ance and pension programs. Hannon and Flynn testified that, at the June 27 meeting, 28 completed and signed cards were collected. 29 Hannon gave the cards returned to him to Flynn, who left the cafeteria by 12:30 p.m. 30 with all 28 signed cards in her possession. No authorization cards were signed before June 27. Hannon testified that on the next day, June 28, he obtained three or four additional signed authorization cards, again in the employees cafeteria, from members of the Respondent's housekeeping staff. Hannon related that, on that date, he joined Yeworkweha (Yorke) Makonnen, 31 a maid, at her table in the staff cafeteria and informed her that, on the day before, a union organizer had been to the hotel and had gathered approximately 28 signed authoriza- tion cards from other housekeeping employees. Hannon told Makonnen that he wanted her to sign an authorization card, which he then gave her, repeating again to her that the Union would present the cards to management in order to try to bargain and get a contract for the employees. If management did not agree to bargain, the Union would petition the National Labor Relations Board for a secret election. He also told Makonnen of the effect of the pay increases expected on November 1, and hospitalization plans and seven paid holidays a year available to union employees. While Hannon was still at Makonnen's table, they were joined by two or three other maids. Hannon again repeated to these new arrivals what he had told Makonnen and the employees when he had solicited on the preceding day as to the purpose of the cards, the procedure that would be followed to obtain bargaining or a secret election, the benefits available under the union contract, and the fact that no initiation fee would be required. Hannon testified that on June 28, while they were all in the cafeteria, Makonnen and the other maids who joined them each completed and signed the cards he had offered them.32 On June 30, Hannon turned over the four authorization cards, dated June 28, to Flynn.33 Earlier on June 30, however, before receiving the additional authorization cards from Hannon, the Union already had made its unsuccessful request to the Respondent for recognition as 2s As Akre had not yet married on June 27, her card was signed "Lillie Hutchinson." 29 Flynn testified that all writing on the June 27 cards was put there by employees, except that on the blank next to the word "Local," consistent with the Union's policy, she had filled in the number "26" before going to that meeting. This, Flynn contends, was the only notation made on the cards by her or any other union official. 30 Flynn specifically had timed the meeting as having taken place between noon and 12:28 p.m. as she had wanted it to end before 12:30. 31 Makonnen was the only unit employee whom Hannon recalled as having signed a card in his presence. 32 Although Makonnen's authorization card was dated "28/75" and those of Lillie Hutchinson Akre and Sana Gardescu bore June 26 dates, it does not appear that these cards were correctly dated. the bargaining representative of the Respondent's house- keeping and laundry employees. 2. The Union's request for recognition Hannon's circumstances were subsequently affected by the next event, the Union's request for recognition and bargaining, when, the Respondent contends, it first learned of the organizational campaign. Flynn testified that on the morning of Monday, June 30, she accompanied the Union's president, Joseph Sullivan, to the Respondent's premises, where they spoke to the Respondent's general manager, Juster. Sullivan told Juster that he had enough cards from the housekeeping depart- ment to constitute a majority, and asked Juster to recog- nize the Union as its bargaining representative or to make the housekeeping unit part of the existing bargaining unit already represented by Local 34.34 Juster replied that he would not give Sullivan recognition. He might have, had Sullivan waited for another year to make this request but, as Sullivan had not waited, Juster would not recognize him. Juster's account of this interview is even more detailed. As Juster recalled the incident, Sullivan entered his office alone, unaccompanied by Flynn, and told Juster that the Union had organized his housekeeping department. Juster asked, "Why, Joe? We had an understanding when we signed our last contract that, for the period of the contract, no other action would be taken by the Union." Sullivan replied, "Well, Amos, you know your entire housekeeping department is almost in revolution. They are pressing us. What do you want me to do?" Sullivan then told Juster that, if he did not agree to bargain with the Union, he was going to file a petition with the National Labor Relations Board. Juster told Sullivan to do whatever he had to do and that Juster would do the same. Sullivan then brought Flynn into the room for the first time and announced that he had signed authorization cards. Juster asked how the signatures had been obtained and where. Flynn answered that they had been signed in the staff cafeteria. Juster asked Flynn how she happened to come to the hotel, reminding her that, according to their contract, she, as a union representative, was supposed to inform management whenever she was in the building. Flynn, according to Juster, replied that she had parked her car in his garage, and asked if that was enough.35 On this note, Sullivan and Flynn left the Respondent's premises and, on that day, filed the petition initiating Case 1-RC- 13919.36 The Respondent traced its first knowledge of the Union's organizational campaign to the request for recog- nition on June 30. 33 All authorization cards signed in connection with the Union orga- nizing campaign herein were executed on June 27 and 28. 34 Sullivan was also an officer of Local 34. 3s Flynn also testified that, before going to the staff cafeteria on June 27, she also had left her card with Juster's secretary. 36 Flynn, contrary to Juster, contends that she was present in his office throughout the entire June 30 meeting between Juster and Sullivan. As there was no fundamental disagreement between the parties as to what occurred during that interview, it is not necessary to determine whether, in fact, Flynn was present during the entire meeting, and such a determination is not prerequisite to reaching a resolution of the more basic credibility matters in this proceeding. 1372 COLONNADE HOTEL 3. The alleged interrogation and warning of Hannon Hannon testified that on Friday, August 8, various members of the housekeeping department reported to him that management that day had conducted a meeting of all housekeeping employees, during which certain benefits were mentioned.3 7 Also on that date, Banquet Manager DeFreitas told Hannon to report to Juster in his office on Monday, August 11, at 11 a.m. Hannon asked DeFreitas if there was something wrong with his work. DeFreitas replied that Hannon would find out when he went to see Juster. Although not scheduled to work on August II, Hannon reported as directed by DeFreitas. When he entered Juster's office, Resident Manager Saleh also was present. Hannon testified that Juster told him, "We are not going to fool around; I'm not going to fool around. We know what you have been doing and you know what you have been doing. Now, we are not going to fire you, but these illegal activities of yours have got to stop." Juster repeated, "Now, we are not going to fire you," three different times to Hannon during the conversation. Juster told Hannon that he was a very conscientious waiter, Juster's kind of waiter, and asked Hannon if he was working as an organizer for the Union. Hannon replied, "How can I be working as an organizer for the Union when I have been working for you all of the time?" 3 8 Thereafter, Hannon received the following letter, dated August 15, from Saleh: This is to warn you that the Colonnade Hotel does not appreciate, nor will it stand for, the illegal practices you have been carrying on in this hotel relative to union organization. You have been coercing the Colonnade employees regarding union matters without the approv- al or permission of the management of this hotel. If this is continued, be advised that strict remedial action will be taken by the management of the Colonnade. Although the above letter referred to Hannon's "illegal practices," conducted without the Respondent's "approv- al," the parties stipulated at the hearing that at no time material herein did the Respondent have a no-solicitation rule. Saleh and Juster testified that this interview, which they recall as having occurred on August 15, and the warning letter from Saleh that followed were in response to complaints received by Saleh from lobby porter Allan Clarke, and from Lillie Greaves, a maid, that Hannon had been interrupting them in their work at the hotel by his prounion talk.39 Saleh, as noted, had reported these incidents to Juster, observing to the general manager that 37 Saleh testified that, on August 8, he, in fact, had conducted a staff meeting attended by approximately 35 housekeeping employees, executive housekeeper Morris, Personnel Manager Burnett, and Housekeeping Super- visors Jones and Wiggins. The meeting had been called to discuss operations within that department but, when a maid had asked why they had tojoin the Union, he took the occasion to outline reasons why the employees should not support the Union at the forthcoming August 21 election, outlining certain existing benefits and policies. The complaint does not allege that anything unlawful was stated at the meeting. 38 Since June 27 and 28. when the authorization cards were signed, Hannon was engaged in matters not related to his duty. Accordingly, Juster sent for and interviewed Hannon in his office in Saleh's presence. Juster testified that he told Hannon at that time that he did not appreciate what Hannon was doing, that he did not consider Hannon to be a labor organizer. He reminded Hannon that he was in the hotel on the Respondent's payroll and that he would very much appreciate it if Hannon would stop what he was doing immediately. Juster told Hannon that he had nothing against his professional ability and thought he was a good waiter, but this would have to stop immediately. Juster announced that he was going to call the Union because he was very displeased, having the feeling that certain activities were going on behind his back. Juster stated that he had treated all of his employees fairly and had a good relationship. Juster testified that he had been absolutely disturbed. Juster told Hannon that he was being warned that day because he had been in places in the hotel where he was not supposed to be, such as in the staff cafeteria, in the elevators, and following hotel employees in the lobby. This matter was being discussed because employees had com- plained to Saleh that they wanted to be left alone. Juster declared that he was going to call Hannon's union and, if this happened again, he would fire Hannon. Juster testified that, before leaving, Hannon had told him that he was sorry and was not going to do it again. After Hannon's departure, Juster told Saleh to write a warning letter to Hannon with a copy to the Union. As stated, Juster also telephoned Hannon's union to complain about his conduct. The above-quoted letter, dated August 15, was written by Saleh in accordance with the foregoing instruction from Juster. 4. The Respondent's alleged threat of hotel closure and Hannon's suspension After his warning of August 15, Hannon continued, as before, to speak to the housekeeping employees about the benefits of unionization when, by chance, he met them in various places within the hotel. On August 19, Hannon was to work at a soup and sandwich luncheon for 20 people, scheduled to start at 12:30 p.m. According to Banquet Manager DeFreitas, Hannon arrived for work that day at II a.m. and, working alone, proceeded to set up the dining room for the event. Hannon testified that he had gathered the linen, flatware, china, and other items to be placed on the tables and had finished his setup work not later than 11:50 a.m. At noon, while on a rest stop, he met one of the housemen who asked him to go to the employees' cafeteria to speak to the maids, as they had some questions about the Union. Hannon had continued to speak to the various housekeeping employees about the benefits of unionization as he encountered them at different places around the hotel. He resumed this practice after the above interview with Juster and Saleh. 39 Clarke had denied Saleh's contention that Clarke had complained to him and, as found above, Saleh's interrogation of Clarke, at that time, has been found herein to be in violation of Sec. 8(aX)) of the Act. Greaves, before the conclusion of the hearing, left the Respondent's employ to move to another State and did not testify. 1373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, Hannon went to the employees cafeteria where, again, a number of housekeeping employees were having their lunch. As he entered, Hannon asked for their attention, stating that those who wanted to listen should do so and that those who did not should just keep on eating. He then explained that the National Labor Relations Board was going to hold an election on August 21, which would be 2 days from then. The election would be conducted by secret ballot, which meant that they should not worry or be afraid that management would know how they voted. Hannon told the employees not to be afraid that they would lose their jobs if they voted for the Union. Hannon again repeated the benefits that the housekeeping staff could expect after November I - a 35-cent increase in pay, double pay on holidays, and hospitalization and pension plans. As Hannon spoke, Mark Burnett 40 entered the Respon- dent's cafeteria and heard Hannon speaking to the Re- spondent's employees. Burnett then questioned Hannon about the Union's sick leave plan. However, before Hannon could answer, Saleh entered the staff cafeteria and asked Hannon to come to his office. This, according to Hannon, occurred at or about 12:05 p.m. Hannon returned with Saleh to the latter's office. Saleh then went next door to Juster's office to get him. Hannon heard Saleh tell Juster as they approached that he had caught "him" at it again. "He" was down in the employees' cafeteria, talking to the people. As Juster and Saleh reached the door of Saleh's office, Juster said, "Suspend him. Get him out of here. I don't want to see him in here again. He is nothing but a troublemanker in his own union, anyway. Call Mr. Bevila- qua. Call Mr. DeMatteo." 4 1 Juster then walked away. Hannon testified that, before leaving, he asked Saleh if that was it. Saleh told him that it was. Hannon protested that the Respondent could not do this, this was America, the land of freedom. People could not be fired for talking. Saleh replied, "Well, what can I do? Mr. Druker4 2 will close the hotel." Hannon responded that that was his problem, not Hannon's, and continued to insist on his rights of freedom of speech. Hannon testified that, after leaving Saleh's office, he returned to the employees cafeteria where he told those present that he had been fired, but that they should not worry as he would be back. Hannon told the employees to make certain that they voted on August 21, that manage- ment would not know how they voted as the election would be secret. He cautioned them not to be afraid. Hannon then left the hotel and a replacement was called in to serve the luncheon in his stead. Hannon thereafter received a letter, dated August 19, from the Respondent, signed by Saleh. The text of this letter is as follows: 0 Although the Respondent declined to stipulate a supervisory status for Burnett, representing him to be a payroll clerk, he later was identified by the Respondent's witnesses Morris and Saleh as the Respondent's personnel manager, the individual who was charged with correcting the error under which certain employees had been denied insurance coverage. He had sat at management's table during various staff meetings, particularly that of August 8. Although Burnett's status as a supervisor within the meaning of the Act was not alleged or litigated at the hearing, it is clear from the record that, at all times material herein, Burnett was strongly identified with the Respondent's management. On August 19, 1975, at 12:30 p.m. you were seen in the Colonnade Employees Cafeteria talking to numer- ous members of the staff. At this time, you were to be working on a banquet, and you left your post complete- ly unattended. This letter will serve as a final warning to you, and notification that you are under suspension for a period of I month. Hannon returned to work at the end of his month-long suspension and was employed by the Respondent at the time of the hearing.43 Saleh, in turn, testified that, on August 19, he learned from a telephone call made to his office around noontime that day that Hannon was in the employees cafeteria. He was informed that there was a commotion in the employ- ees' cafeteria and Hannon was there talking to employees. Saleh went there to investigate after first reporting the call to Juster. Juster testified that, while Saleh was en route to the cafeteria, he called Banquet Manager DeFreitas from whom he learned that Hannon was supposed to be on duty at the time serving a function on the fifth floor. DeFreitas also told him that the banquet was to start in another 20 minutes but that the preparations had not been completed as there were no ashtrays, bread, butter plates, or matches on the tables and that, in DeFreitas' opinion, Hannon absolutely had no right to be away from the dining room. When Saleh entered the employees cafeteria, he saw Hannon standing in the middle of the floor making a speech to approximately 30 to 40 employees who were then present. Saleh brought Hannon back to his own office, where they were joined by Juster. Saleh testified that Juster told Hannon, "We warned you before about this and you left your position unattended. So you leave now. You are under suspension and you are going to hear from us." Saleh denied that Juster had said that Hannon was fired. Juster, on the other hand, was more blunt and direct about what his intent had been with regard to Hannon at the time. Juster testified that he had said, "I want him out of here. Get him out of here." Juster related that at that point he wanted Hannon fired. After Hannon's departure, Juster telephoned Joseph Bevilaqua, secretary of Local 34, Hannon's union, in Saleh's presence. Juster told Belvilaqua that, after everything they had been through and after he had warned Hannon, the Respondent again had had a disruption in the operation of the banquet department. Juster declared that he wanted Hannon fired, but was told by Bevilaqua that he could not fire Hannon but could only suspend him for a maximum period of I month. 41 Bevilaqua and DeMatteo were officials of Local 34. 42 The parties stipulated that Bertram Druker is the owner of the Respondent's hotel. 43 It is Hannon's testimony that, on August 19, he had been told that he was being discharged, and that it was not until he received the letter that day that he became aware that he was merely being suspended. This is confirmed by Juster, who related that he had intended to fire Hannon and would have done so had not his Union intervened. 1374 COLONNADE HOTEL Hanging up the phone, Juster told Saleh to write Hannon a letter notifying him of his 1-month suspension.44 The Respondent contends that the reason for Hannon's suspension was that he had left his position unattended on August 19. Juster testified that DeFreitas had complained many times, even before the issuance of the August 15 warning letter to Hannon, that Hannon, although a good waiter, had a habit of leaving his post to attend to union matters. Juster conceded, however, that these earlier complaints had not played a direct role in the decision to warn Hannon on August 15. To meet the Respondent's contention that Hannon had been disciplined for leaving his post, and to support Hannon's testimony that he had a right to be in the cafeteria on August 19, between the time that he completed his setup and the start of the luncheon, as he then was on his own time, the General Counsel introduced evidence tending to show that banquet waiters were not paid on a straight hourly basis. Rather, they were compensated, depending on the size of a given event, according to an established schedule under which they received specific sums for each separate task that they performed in connection with each function at which they were sched- uled to work. Accordingly, for the luncheon scheduled for August 19 Hannon was to have been paid a flat base pay rate for the job itself. In addition, he would have received separate amounts for the setup and for each guest in excess of 15, plus an allowance for cleanup and a gratuity based on a percentage of the total bill for the luncheon. Therefore, after the setup he was free until the luncheon began. Cassiano DeFreitas 45 testified that, on August 19, Saleh called him at his office and stated that Hannon was making a speech in the cafeteria that was contrary to the policy of the house. Saleh instructed DeFreitas to get someone else to serve the party because Hannon would be let go for some time or else laid off. DeFreitas related that, after finding a replacement for Hannon, he found Hannon in the lobby and told him that he understood that Hannon had been making a speech in the cafeteria. He told Hannon that he was sorry but he would have to go. DeFreitas told Hannon that, in his view, Hannon was being suspended because, instead of watching his party as he was supposed to be doing at the time, he was in the employees cafeteria making a speech. DeFreitas related that he did not go to inspect the banquet room where Hannon had been scheduled to work that day until he already had spoken to Hannon of his suspension. It was not until then that DeFreitas noticed that a few butter plates and ash trays had not been placed on the otherwise fully set tables. However, DeFreitas 44 Later on August 19, around 3 p.m., Juster, accompanied by Saleh and Morris, conducted a meeting of the Respondent's housekeeping and laundry employees in one of the function rooms. Dunng this meeting, Juster expressed reasons why, in his view, the employees should not support the Union in the forthcoming election. The details of what Juster told the employees in this regard are set forth above in connection with the discussion concerning the disputed wage increases. At the conclusion of Juster's talk, he asked if there were any questions from the employees. Only Wally Labat, a houseman, responded, asking why Hannon had been fired. Juster told Labat that he had the wrong information, Hannon had not been fired but suspended with his union's approval. Labat was told that Juster would be very glad to have him or any other employee go to his office to see termed these defects in the setup as not being serious infractions about which he would have made an issue. He explained that Hannon had been the only waiter assigned to set up the luncheon as the scheduled event was quite small and the compensation available to set up a function of that size would have not been adequate if divided among two waiters. DeFreitas explained that when waiters are called to work at a function on the Respondent's premises they are expected to report for work approximately 35 minutes ahead of time. Whether the affair is a lunch or dinner, waiters are required to stay for 3 hours, after which they are paid for each extra hour. The housemen put up the tables, but the banquet waiters are supposed to obtain the linen and all that is required to set the tables for the various events. DeFreitas stated that it would take someone of Hannon's experience not more than a half hour to perform the setup for the August 19 luncheon. DeFreitas recalled that the August 19 luncheon had been scheduled to begin at 12:30 p.m. and that Hannon arrived at 11 a.m., in accordance with his customary punctuality. DeFreitas was certain that Hannon, at that time, knew the rule that each banquet waiter, after completing this setup, was to stay nearby to watch the party, count the people as they came in, and, when enough had assembled, inform the kitchen so that service could begin. This rule did not preclude a waiter from leaving the dining area between the completion of the setup and the start of the meal for personal needs, but his primary duty was to come in, complete the setup, and to remain near the function to watch and to keep count. Later in his testimony, DeFreitas liberalized his description of this policy by observing that, if Hannon had finished his setup for the 12:30 event at 11:30 a.m., it would have been all right for him to go downstairs to the employees cafeteria for a cup of coffee. If he had finished at noon, he might still go for the coffee but he would have had to make it very fast in order to return in time to watch the party. As had Juster and Saleh, DeFreitas described Hannon as a very good waiter, who was neat and always on time. He recognized that Hannon was just "200 percent union," but that he had nothing against Hannon. DeFreitas frequently had found it necessary to send banquet waiters back to their stations while they were supposed to be on duty. Hannon was one of these individuals. DeFreitas testified that this was a situation which occurred time and time again. The Respondent contends that, although it did not have a no-solicitation rule at the time of Hannon's warning and suspension, this did not free Hannon or any other employ- ee to leave his work area to disturb other employees who were on duty. Also, although the hotel has followed a the letter of suspension that had been sent to Hannon. Labat. according to Juster, then said that the employees had the impression that whoever was going to vote for the Union was going to be fired. Juster replied that this was nonsense, and he had two points to make. First, the ballot was going to be secret and no one was going to know who voted for whom and, second. although Juster sensed that Labat might vote for the Union, he assured Labat that he was not going to be fired. Labat then asked what would happened if he was. Juster replied that, if he was terminated, he should come straight to Juster who promised that he would then reinstate him. 45 DeFreitas, who served as the Respondent's banquet manager from March 1972 until mid-November 1975, at the time of the hearing, was no longer connected with the Respondent. 1375 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policy of granting three warnings to employees prior to suspension or discharge, it was not considered necessary in Hannon's case to ascertain what prior warnings he may have received before taking action on August 19, as the collective-bargaining agreement with Local 34 permits discipline without previous warnings in cases where the misdeed is of sufficient magnitude. Accordingly, three warning notices are not automatically applicable and the Respondent's ability to take disciplinary action in the absence of prior warnings is dependent on the seriousness of the offense. Neither Juster nor Saleh knew of any waiter who had been terminated before August 19 because he had left his work station, the penalty originally intended for Hannon. In fact, Juster recalled that one waiter, before his discharge in 1976, had received more than three different warnings for having left his work station and on two or three other occasions had also received reprimands for tardiness.46 Another waiter, after previously having received an unre- called number of prior warnings for having been away from his post, was finally terminated in July 1975, for theft. 5. Discussion and conclusions as to the events relating to Hannon From the record herein it would appear that Hannon, in fact, was interrogated and warned by the Respondent on or about August 15 and was suspended for I month, effective August 19, because of his union activities. Although I find from DeFreitas' credited testimony that Hannon improperly was away from his work station at noontime on August 19, when he spoke to the housekeep- ing employees in the cafeteria, it is concluded that this infraction, standing alone, would not have resulted in the harsh discipline originally intended and the less stringent penalty that ultimately was administered. Hannon initially was warned in writing on or about August 15 expressly because of the "illegal practices" he had "been carrying on in this hotel relative to union organization." This warning was given although the Re- spondent did not have a rule against solicitation. It apparently was the expectation of obtaining information about Hannon's union activities which prompted Saleh, shortly before the warning was issued, to interrogate Allan Clarke, as found above. Hannon's testimony that, when he solicited employees to sign union cards on June 27 and 28, he had done so on his own time, was not disputed. It also appears that, in suspending Hannon, the Respon- dent subjected him to disparate treatment. Neither Juster nor Saleh knew of any waiter who had been so disciplined before for having been away from his work station, although DeFreitas testified that he frequently had been required to send waiters back to where they belonged. Contrary to the testimony of Juster and Saleh that DeFreitas often had complained in the past about such 4s Juster explained that the Respondent did not automatically discharge anyone because he had received a certain number of warning letters. Warning letters were merely given to create a file. 47 Similarly, Hannon's treatment, as will be seen below, does not compare favorably to that afforded Patrick Tubwon, employed by the Respondent in a different category. Having been pressured into resigning his position with the Respondent as a houseman in August 1975, Tubwon straying, DeFreitas related that he did not regard such infractions as being of great moment. Waiters terminated in the past had received at least three written warnings pursuant to the Respondent's earlier published policy and, before more severe action was taken, it was customary to give an even greater number of warnings than that. Hannon, on the other hand, was regarded by management as an excellent waiter with a fine record for punctuality. He had been warned but once. Hannon cannot realistically be grouped with the previous dischargees referred to herein, who, after receiving multiple warnings, were finally termi- nated for accumulated offenses establishing general unreli- ability and ultimately theft.47 Nor is there merit to the Respondent's argument that Hannon's failure to fully complete his setup before straying from his work area on August 19 was a factor in his discipline. DeFreitas, as noted, testified that he did not inspect the dining room and note the missing bread plates and ashtrays until after Hannon had been informed of his penalty. The basis for the Respondent's antiunion motivation, in the context of the fact that much of its staff was already covered by a collective-bargaining agreement with the Union's sister local, may be clarified by Juster's testimony as to his response when, on June 30, the Union requested recognition for the housekeeping unit. Juster related that he had been angered by the Union's breach of its agreement that, during the term of the current contract for the waiters, waitresses and bartenders unit, the Union would take no action to organize the Respondent's remain- ing employees. Juster was of the view that his new hotel would require at least that much additional time to be able to afford greater unionization of its staff. Thereafter, the Respondent took the actions designed to defeat the Union found unlawful herein, including the granting of wage increases to 40 of the 52 housekeeping unit employees in the critical period before the election, inducing former employee Reddington to come in to vote by offering him a day's pay for no work and Saleh's interrogation of Clarke. It was against this background that the Respondent's conduct directed against Hannon as the principal union activist took place, culminating in Han- non's conspicuous suspension, effective just 2 days before the election.48 It, therefore, is found that the Respondent further violated Section 8(a)(1) of the Act by coercively interrogat- ing Hannon on or about August 15 as to whether he was the organizer for the Union by warning him, in writing, that he would be discharged if such union activities continued, and by threatening on August 19 that the Respondent's owner would close the hotel if the Union was designated as bargaining representative. For the foregoing reasons, also noting the timing and the disparate nature of Hannon's 1-month suspension, in the context of his excellent work record, the dubious circum- stances on which his initial warning was based, the was rehired as a security man in the garage about I month later. Although Tubwon thereafter received two written "final" warnings from the Respon- dent for sleeping on the job, at the time he testified at the hearing he was still in the Respondent's employ. *8 As testified to by DeFreitas, Hannon's strong union sentiments apparently were well known. 1376 COLONNADE HOTEL Respondent's conceded knowledge of Hannon's union activities obtained, in part, through the interrogation of Clarke, the Respondent's avowed hostility to the Union's organizational campaign and its other unlawful conduct summarized above, much of which was directed specifical- ly at Hannon, it is found that the Respondent, in suspending Hannon on August 19, violated Section 8(a)(3) and (1) of the Act. D. The Applicability of a Bargaining Order49 1. The Union's majority status; position of the parties The General Counsel and the Union contend that the Respondent's unfair labor practices were so pervasive and opprobrious as to have effectively destroyed the Union's majority support within the housekeeping unit, which, on June 30, consisted of 52 employees. In this connection, although the Union claimed that it originally had received a total of 32 signed authorization cards - 28 on June 27 and 4 on June 28 - the Union initially relied on only 29 of these cards, including the 4 dated June 28. The Respon- dent, correctly noting that the Union would have to have 27 authorization cards for a majority in its unit, challenged the validity of certain of the cards. Specifically, the Respondent has litigated the genuineness of authorization cards allegedly signed by employees Cadroo Jenkins and Patrick Tubwon on the ground that those employees did not actually sign the cards bearing their names or authorize anyone else to sign for them. The Respondent also challenged the cards signed by Lillie Hutchinson Akre, Lillie Greaves, Fatu Bona, and Maria Canto, all of which were dated June 27, and those of Yeworkweha Makonnen, Cilla O'Garro, Hewen Deneke, and Genet Assefa, dated June 28. The authorization cards distributed on June 27 and 28 are so-called single purpose cards, which on their face authorize the Union to represent the signatory employ- ees.50 The Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc.,51 considered the evidence pertinent to the validity of the disputed single purpose cards, as follows: In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election.... We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they 49 The appropriate unit herein, which is described above in fn. I, is not in dispute. 50 A copy of the disputed authorization card of Patrick Tubwon, printed identically to the other authorization cards herein, is included in Appendix A to this Decision lomitted from publication ]. 5t 395 U.S. 575, 60608 (1969). 52 At the hearing, Jenkins identified Flynn and Hannon. sign unless expressly told that their act of signing represents something else ... We agree, however, with the Board's own warnings in Levi Strauss & Co., 172 NLRB No. 57, 68 LRRM 1338, 1341 and n. 7 (1968), that in hearing testimony concerning a card challenge, trial examiners should not neglect their obligation to ensure employees free choice by a too easy mechanical application of the Cumberland rule. We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of [Section] 8(a)(1). We therefore reject any rule that requires a probe of an employee's subjective motivations as involving an endless and unreliable inquiry. [Emphasis supplied.] 2. Authorization cards challenged on the basis of genuineness a. Cadroo Jenkins At the hearing the General Counsel withdrew the authorization card, dated June 27, allegedly signed by Cadroo Jenkins. Jenkins' asserted card was one of the 29 authorization cards on which the Union based its majority, at the hearing. It was withdrawn when the General Counsel and the Union subsequently conceded, after Jenkins and two expert witnesses had testified, that the card attributed to Jenkins was not genuine. Although Jenkins could not recall the date, he testified that he had been in the employees cafeteria at lunchtime when Hannon and Flynn were passing out authorization cards52 and had heard them both speak to the employees. Jenkins remembered that Hannon had given him a blank authorization card and had told him what the card was about. Jenkins related that he had returned the card to Hannon without either having spoken to Hannon or written anything on it. Shortly thereafter, Jenkins left the cafeteria. In accordance with the agreement of the parties, the authorization card originally attributed to Cadroo Jenkins will not be counted towards the Union's alleged majority status. b. Patrick Tubwon The Respondent, in support of its position that the authorization card attributed to Patrick Tubwon 53 did not actually bear his signature, called Tubwon as a witness. The card in question was signed in its center on the line reserved for the employee's name. However, on the bottom signature line there appeared some writing that the General Counsel contends was an aborted attempt by Tubwon to sign his name. This was apparently scratched out and 53 Tubwon, originally hired by the Respondent as a houseman in May 1975, left the Respondent's employ on August 15 of that year, under circumstances that will be discussed below. He returned to work for the Respondent on September 10, 1975, as a security employee in the garage and was employed there at the time of the hearing. A native of Nigeria, Tubwon also was a full-time college student. 1377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD misspelled, yet the formation of certain letters appeared to have been made in a manner consistent with Tubwon's handwriting. Tubwon's disputed card and his W-4 form, bearing his genuine signatures, are reproduced and at- tached to this Decision as Appendix A [omitted from publication ]. Tubwon denied having known that the Union had been trying to organize the Respondent's housekeeping employ- ees in the period from June to August, that he had been in the cafeteria when Hannon and Flynn had distributed authorization cards, 54 and that any part of the card that bore his name was in his writing. Tubwon, however, testified that, although unable to recall dates, on an occasion in the employees cafeteria he had signed a blank white sheet of paper which had been given to him by Hannon. At that time, according to Tubwon, he remembered that Hannon had told him that the paper was from the Respondent's banquet office. Tubwon related that he signed the paper because everyone else did. There had been nothing on the paper to indicate its purpose. At that time, Hannon had made no mention of a union. Tubwon previously had seen Hannon at various places around the hotel and knew that Hannon worked in the banquet department. 5 Hannon, for his part, had no independent recollection of having asked Tubwon to sign a card, but inferred that, if the Union was in possession of a signed authorization card, dated June 27, then it must have been completed as a result of the efforts of Flynn and himself on that date. Although Tubwon testified in his direct examination that he never had been terminated by the Respondent, the evidence indicated that, in the very least, the Respondent was on the point of discharging him when, on about August 15, he resigned his employment. Morris, the Respondent' executive housekeeper at the time in question, testified that Tubwon had a practice of coming in late for work in the morning and, when reproved, had given his studies as an excuse for his lateness and his inability to carry out certain of his duties. In early August, Morris had advised him to try to find another job that would better suit his schedule. Tubwon agreed and, about 2 days later, had informed her of his resignation. Morris agreed with his decision. 54 Contrary to Tubwon, Cadroo Jenkins testified that, on the day he received and returned the blank authorization card to Hannon, he had seen Tubwon in the cafetena. However, Jenkins did not see Tubwon sign an authorization card. 55 Although Tubwon stated that the sheet of paper given to him by Hannon on that occasion apparently had been signed by various employees, he could not recall any specific names. Tubwon did not see Hannon give the sheet of paper to any other employee. 56 On September 10, when Tubwon was hired into the security depart- ment, his hourly rate became 20 cents above the contract scale for his former position of houseman. 57 The Respondent argues that the testimony of its handwriting expert, Tytell, is entitled to greater weight than that of McCarthy, the expert called by the General Counsel, as Tytell, in accordance with preferred procedure, had based her judgment on comparison against a greater number of exemplars or standards than had McCarthy, and that Tytell had had access to original signatures. McCarthy's opinion, on the other hand, was based principally upon a photocopy of Tubwon's W-4 form. Although she saw and examined an original signature by Tubwon before testifying at the hearing, McCarthy by that time already had rendered her written opinion. Thereafter, a personnel action form was initiated by Morris' assistant, Spirlett, dated August 15, which showed that Tubwon was being involuntarily terminated. Thereafter, on September 10, Tubwon was rehired by the Respondent's security department and assigned to the garage. Tubwon testified that, upon his return to school in September, he had requested a job in the garage so that he would be able to do some studying while working. Accordingly, he was rehired by Saleh. Although Tubwon thereafter received two written warnings for sleeping on the job in November and in late March, both of which were termed final warnings, no further action was taken against him and, at the time of the hearing, he was still employed by the Respondent. 56 The General Counsel and the Respondent each called expert witnesses to testify in support of their respective positions as to the genuineness of the signatures attributed to Tubwon on the disputed card. Each expert witness, Elizabeth McCarthy Badlian for the General Counsel and Pearl L. Tytell for the Respondent, prior to their testimony, was afforded varying opportunities by her respective principals to examine and compare the writing on the authorization card with Tubwon's concededly authentic signature as it appeared on other documents, such as his tax withholding certificate (W-4 form). Such unquestioned signatures used as bases for comparison are called standard or exemplars.57 While both experts, as noted, agreed that the signature on Cadroo Jenkins' card was not genuine, McCarthy testified that it was her opinion that Tubwon had signed the card attributed to him in full in the middle of the document on the blank next to "Name," and that he also was responsible for the misspelled, partially crossed-out semblance of his name which appears on the signature line at the bottom of the card. Tytell, on the other hand, was of the view that Tubwon had not signed the card. When questioned further, however, she stated that, although she was quite convinced that Tubwon had not written on the signature line, she felt it was "probable" - defined by her as more than a 50-percent certainty - that Tubwon, in fact, had signed his full signature in the center of the card on the line calling for his name. On my review of the record, having observed the witnesses, the disputed signatures, and the relevant exemp- McCarthy testified that her subsequent and more cursory comparison with an original signed document afforded no ground for revising her original opinion based on the comparison with the photocopy. While it was conceded by both experts that it is most desirable to examine and to compare disputed signatures with the maximum number of exemplars prior to offering opinions as to genuineness, McCarthy, whose general profession- al qualifications and more than 40 years' experience as an examiner of questioned documents are known to and not disputed by the Respondent's counsel, testified that she had no difficulty in reaching her conclusion on the basis of the comparison with the photocopied signature. The record contains greatly magnified reproductions of the genuine and questioned signatures prepared by McCarthy in connection with her analysis. Although Tytell, with access to the additional standards in the Respondent's files, apparently was able to utilize better overall procedures, she did not appear to be more certain in her conclusion as to whether Tubwon had signed his card in the "Name" blank in the center of the card than was McCarthy. In any event, for reasons which will be discussed herein, it is not actually necessary to choose between the judgment of these experts in reaching a conclusion as to whether Tubwon had actually signed his name on the card. 1378 COLONNADE HOTEL lars, including that incorporated in Appendix A to this Decision [omitted from publication], 58 it is concluded that Tubwon did sign the authorization card in both places as represented by the General Counsel and McCarthy. This finding is facilitated by the fact that I find it next to impossible to credit Tubwon. He was an uncooperative and evasive witness who followed a pattern of repeating questions put to him rather than answering them in the first instance. Although Tubwon testified that he did not know of the Union's organizational campaign and did not see Flynn and Hannon in the cafeteria distributing authoriza- tion cards, this story was directly refuted by the Respon- dent's witness, Cadroo Jenkins. Although Jenkins did not sign his own card, he recalled having seen Tubwon in the cafeteria while Hannon and Flynn were distributing the cards and speaking to the employees. Tubwon's statement that he never had been discharged by the Respondent, too, is at best of questionable accuracy since he resigned under pressure. It also is noted that there is no essential conflict between the two handwriting experts that Tubwon did sign his name in full in one place on the card, the "Name" blank. McCarthy testified positively that Tubwon had signed the card in the space and Tytell testified that he "probably" did so. These conclusions both run contrary to Tubwon's testimony that he did not write at all on the card. The Respondent's expert, Tytell, based some of her reservations as to the validity of Tubwon's card on the legalistic ground that it did not appear that he had made his inscription on the signature line, noting that in documents such as deeds, contracts, and wills, properly made and placed signatures are of great importance. McCarthy, on the other hand, was of the view that Tubwon also had formed the letters appearing on the signature line and opined that Tubwon, as some people occasionally do, may have become mixed up or confused at the time. She concluded that the handwriting on both the "Name" and the signature lines was that of Tubwon. From my own observation, noting, too, the "blow-ups" of the signatures prepared by McCar- thy, in the context of the record and credibility resolutions made herein, I am in agreement with McCarthy's analy- sis.59 Having found from the credited evidence that Tubwon had signed his name on the line of a single-purpose card calling for his name and, also, had attempted to sign on the signature line, I cannot agree with the Respondent's argument that Tubwon's card should not be counted as his full signature did not appear in its proper place. In circumstances where it can be inferred that the employee has written on his authorization card with an appropriate intent, the Board has taken such cards into account although they were not actually signed.60 5s See Cato Show Printing Co., Inc., 219 NLRB 739, 755 (1975). a9 It also is concluded that Tubwon's account of having signed a blank sheet of paper at Hannon's request is not worthy of credence. 6o See C A. Froedge Delivery and Trucking Service, Inc., 172 NLRB 46, 53-54 (1968); Irving Taitel, Ruth Taitel andJerome Taitel. d/b/a I. Tailel and Son. 119 NLRB 910, 912, fn. 3 (1957). 6t Pnor to the end of the hearing, Greaves left the Respondent's employ to move to another State. Accordingly, she did not testify. "2 Flynn, as noted, also had testified that Hutchinson and Greaves had c. Lillie Hutchinson Akre and Lillie Greaves The General Counsel contends that Akre (or Hutchin- son) and Greaves, both employed as maids, signed valid authorization cards in the employees cafeteria on June 27. The Respondent argues that these cards should not be counted as they had been obtained by misrepresentation. Hutchinson was called as witness by the Respondent. 61 Contrary to Union Representative Flynn, who testified that Akre and Lillie Greaves had sat next to her in the employees cafeteria on June 27, Akre testified that she did not know Flynn and did not remember seeing her in the cafeteria when she received the card from Hannon on June 27. Hannon already was in the cafeteria when she arrived there on the day in question, and she just had sat down by Lillie Greaves when Hannon approached. He handed Akre and Greaves authorization cards, telling them to sign them as they were for the purpose of getting insurance at the hotel. Akre testified that she had completed her card without reading it on the basis of Hannon's representation that it was for insurance. Greaves also signed her card at the same time. In addition to denying that she had seen Flynn in the cafeteria at that time, Hutchinson denied that she had seen other cards being circulated, that she had taken a role in distributing the cards herself, or that she had requested copies of the collective-bargaining agreement or any literature describing the health, welfare benefits or pension plans that were available to union employees. She also denied having seen such literature. 62 Hutchinson testified that she first learned that the cards that she and Greaves had signed had something to do with the Union when, by chance, she encountered Hannon as she was coming to work at or about 7:30 a.m., a week after having signed the card. At that time, Hannon was standing outside the hotel distributing handbills to passersby. Although Hannon offered her one, she did not take it. As she passed by, Hannon stated that the card that she had filled out was for the Union. As Hutchinson walked away she told Hannon that she did not want to have any part of it. Contrary to Akre's testimony, the weight of the evidence provided by witnesses for both the General Counsel and the Respondent clearly establishes that both Akre and Greaves were present in the employees cafeteria on June 27, while Hannon and Flynn were engaged there in conspicuous organizational activities. I find Akre's testimo- ny that she could then have been in the small cafeteria 63 and not have observed Flynn, who was in the center of things or, as Akre testified, that she had signed an unread taken an active role in questioning her, had requested and received from her copies of the Union's collective-bargaining agreement and literature de- scribing the Union's health, welfare, and pension plan. Although Flynn previously had had no meaningful contact with the members of the Respondent's housekeeping staff, she testified that she learned the identities of Hutchinson and Greaves that day because thay had participated so actively in that meeting that she made a point of looking at the card they had signed to learn their names. 63 It was stipulated that the employees cafetena measured 18 by 22 feet. 1379 DECISIONS OF NATIONAL LABOR RELATIONS BOARD document placed before her by Hannon, who was a total stranger to her, to be most unconvincing.64 It also seems most unlikely that Hutchinson actually believed that, if a policy was then being pursued of signing up employees for an insurance program, such a task would have been delegated to Hannon. Significantly, too, as will be dis- cussed below, Akre and Fatu Bona, whose testimony was somewhat similar, contradicted each other as to how they first learned that the cards they signed were for the Union. The Respondent's argument in its brief, that the General Counsel should have called additional witnesses with respect to the events of June 27 to establish the validity of various other authorization cards signed on that date which were not specifically challenged by the Respondent, miss- tates the burden of proof. In Montgomery Ward & Co., Incorporated,65 the Board noted that where employees sign unambiguous, single-purpose cards, the burden of proof necessary to establish that any such cards were obtained through misrepresentation as to their purpose falls upon the party asserting that fact, here the Respondent. For the foregoing reasons, I find that the authorization cards signed by Lillie Hutchinson Akre and Lillie Greaves are valid and should be counted toward the establishment of the Union's majority status. d. Fatu Bona Fatu Bona, another maid, also recognized her signature on an authorization card, dated June 27.66 Bona's testimony was similar to that of Hutchinson. She related that she had received an authorization card from Hannon just as she entered the employees cafeteria around 12:10 p.m. 67 According to Bona, Hannon handed her the card while walking to a table and she was more interested in getting to her food than in what Hannon was saying. Accordingly, the only thing that she heard was that the card was for insurance. She admitted that Hannon might have been saying additional things to her at the time, but the purpose for the card that she had heard related to insurance. Although Bona testified that she could read and under- stand English when she came to the United States and was not prevented from reading her card by language difficul- ties, all she looked at were the blank lines which called for her name, address, city, and other information. These Bona filled in and returned the card to Hannon. Bona testified that Flynn, Hutchinson, and Greaves all were in the cafeteria when she received and signed her card, but did not recall whether Hutchinson and Greaves were seated near Flynn. Bona related that she did not learn that the card was for the Union until some days later when she, while accompa- nied by Hutchinson, Greaves, and another employee,68 encountered Hannon and Flynn while going home from work. Hannon and Flynn 69 were giving out literature at 64 Hutchinson testified that all she knew of Hannon at the time that she had signed the authorization card was that he was employed as a banquet waiter. 65 197 NLRB 519, 525 (1972). E6 Bona, a native of Somalia, has been in the United States since March 1974. At the time of the hearing, she was in her senior year in a Boston high school. the time near the hotel. It was then that Hannon told Bona that the card was for union insurance. Bona told him, "You didn't say that to me before I filled out the card." Hannon replied, "I said that." Bona told him, "But I didn't hear you say that. You didn't say that to me, maybe you said that to someone else but not to me." She testified that the other employees who were with her also expressed their outrage that Hannon had lied to them by not telling them that the card was for the Union. The testimony of Fatu Bona that she, too, had signed her card in the belief that it was her insurance, only to learn for the first time, days later, that the card she had signed was for the Union, is not credited. In reaching this conclusion, certain of the reasons applicable in discrediting Hutchin- son are likewise applicable to Bona. As unlikely as it would be that the Respondent would have delegated the task of signing up employees for a company-sponsored insurance program to a banquet waiter, it is similarly unlikely that these employees, who barely knew Hannon, would sign whatever he put in front of them without reading it in the belief that he had such authority. As was true in the case of Hutchinson, the conclusion is abetted by the fact that the testimony of Hutchinson and Bona as to how they ultimately learned the real purpose of the cards they had signed was for the Union is contradicto- ry. Contrary to Hutchinson, Bona testified that she had seen Hutchinson and Greaves in the small employees cafeteria at the same time that Flynn was there. Also, although Bona testified that she, Hutchinson, and Greaves were supposed to have discovered only some days later, together, when they met Hannon in front of the hotel, that the cards that they had signed were for the Union, the timing and details of that encounter, as described by Hutchinson and Bona, are quite dissimilar. Hutchinson testified that the encounter took place early in the morning while she was coming to work and she did not refer to the presence of any other employee or union representative at the time. Bona, on the other hand, testified that she met both Hannon and Flynn as she was leaving work, together with Hutchinson, Greaves, and one other employee. Hutchinson stated that, on having been told by Hannon that the card she had signed earlier was for the Union, she had kept on walking, merely saying in response that she did not want any part of it. This sentiment was expressed over her shoulder as she went by Hannon. Bona, however, testified that she and her companions, including Hutchin- son, had heatedly remonstrated with Hannon at some length for his alleged deception. This testimony of Hutch- inson and Bona was mutually too contradictory to be credited. Accordingly, I also find that Bona's card is valid and should be counted. 's Bona testified that she knew at the time that Hannon worked for the hotel. He was standing in the doorway at the time he handed her the card. s6 The other employee referred to by Bona was no longer employed by the Respondent at the time of the hearing and did not testify. 69 Flynn, on rebuttal, credibly denied that she was at the hotel at the time. 1380 COLONNADE HOTEL e. Yeworkweha Makonnen, Cilla O'Garro, Hewan Deneke, and Genet Assefa The General Counsel contends that the authorization cards, dated June 28, signed by Makonnen, Assefa, Deneke, and O'Garro, should also be counted in establish- ing the Union's majority status. Hannon testified that he had solicited these four cards in the employees cafeteria on the day after Flynn's visit to the hotel, when he had joined Makonnen at her table. He had offered her a card only after fully and accurately explain- ing to her the true purposes for which the authorization card was to be used. Of all the cards that had been signed during the Union's organizing campaign, Makonnen's card was the only one that Hannon could specifically identify as having been signed in his presence. Hannon testified that, while he was at the table with Makonnen, they were joined by the three other maids whose names he still did net know at the time of the hearing but who presumably were the individuals who had signed the other three cards - Assefa, Deneke, and O'Garro. After Hannon had made like explanations to them, they too signed the cards. He thereafter gave these four cards, dated June 28, to Flynn.70 The Respondent contends that these four employees signed their authorization cards under circumstances dif- ferent from those described by Hannon and that they did so pursuant to a misrepresentation as to the purpose of the cards. Of the four employees involved, only Makonnen continued in the Respondent's employ during the course of this proceeding and testified as a witness for the Respon- dent. Makonnen averred that she received the authorization card, which she admits signing, from Hannon while she was on an elevator in the Respondent's premises. With her at the time were two of the employees, Genet Assefa and Hewan Deneke. They had boarded the elevator in the basement at or about 4 or 4:30 p.m. and were on their way to work on the I Ith floor. Hannon entered the elevator on the first floor and got off on the fifth floor. There were no intermediate stops. It is Makonnen's testimony that, during the time that Hannon was on the elevator between the first floor and fifth floors, he distributed authorization cards to herself, Assefa, and Deneke, and told them that, if they signed the cards, they would make more money, have insurance, not need to worry about initiation fees, and that they should sign the cards because everyone on the day shift had done so. Accordingly, in that short elevator run, the three employees completed, signed, and returned the cards to Hannon. Makonnen related that although Han- non mentioned the Union she did not know what it meant and knew nothing about labor unions at the time.l When Makonnen testified at the hearing, she was on maternity leave. She had asked to returned to the Respon- dent's active employ, but has not yet been called as 70 Although these cards were not given to Flynn until late in the day of June 30, after the Respondent already had declined the Union's request for recognition as bargaining representative of its housekeeping and laundry employees, the four cards, dated June 28, if otherwise valid could properly be counted on the question of the Union's majority status. The Union's request for recognition was a continuing one; it is clear from the record that Hannon had been authorized by the Union to solicit signed cards from unit employees and the cards, in fact, had been signed prior to June 30. In any business was slow. However, Makonnen related that she expected to return to work for the Respondent sometime within the 2 months following the date of her testimony. Even were Makonnen's version of the events surround- ing the signing of her card to be credited, apparently no misrepresentation was involved. Hannon, according to Makonnen, had told her that the card was for a union and, as she recalled, was to enable the employees to get more money and insurance benefits. They also were told that there would be no initiation fee. Her explanation that she did not understand what these cards involved is dubious. There was little ground for general confusion as to what the purpose of the cards was or even what a union was for, as Makonnen testified, her two companions were students at a local community college. Noting the unlikelihood of Makonnen's testimony, in- cluding the practical difficulties involved in accomplishing everything she described in the short elevator ride, Makon- nen's interest at the time of the hearing in returning to the Respondent's employ and, also, the Supreme Court's observation in Gissel [395 U.S. 575, supra at 6081, that "employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particu- larly where company officials have previously threatened reprisals for union activity in violation of [Section] 8(a)(l)," I find that the Respondent has failed to meet its burden of establishing that, when Makonnen and the other signers of the June 28 cards executed them, that they did so pursuant to misrepresentation or for an unclear purpose. Accordingly, I find that Makonnen's card and those of Deneke, Assefa, and O'Garro are valid. f. Maria Canto Canto 72 concededly signed an authorization card for the Union, dated June 27. The Respondent, however, contends that Canto had signed the card in the mistaken belief that it was only for insurance and did not actually know that it was for a union. The General Counsel asserts that Canto's testimony as to how she happened to sign the card is not worthy of credence. However, even if her story were to be accepted, the General Counsel argues that she did not act on any misrepresentation from the Union or its agents and that, therefore, Canto's card should be counted in estab- lishing the Union's majority status. Canto at first testified that the card had been given to her in the basement office where, each day, she picks up the keys used in her work. Canto explained that she followed the daily routine of entering the hotel, changing into her event, in appropriate circumstances, a request for recognition is not a necessary prerequisite to the issuance of the bargaining order. 71 Makonnen, a native of Ethiopia. had been in this country for approximately I-1/2 years when she signed her card. 72 As Canto is not fluent in English, she testified at the hearing in Portuguese, using an interpreter. She has been in the United States since November 1973, and, at the time of the hearing. was employed by the Respondent as a maid, a position she had held for approximately 2 years. 1381 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work clothes, picking up her keys, and beginning work at 8 a.m.73 Canto did not recall who gave her the keys on the day she, at first, testified that she received the card. Canto later changed her testimony to relate that she received the card, not in the morning when she picked up her keys, as she originally described, but only at or around 4:15 p.m., at the conclusion of her day's work, when she returned her keys. She still did not remember to whom she gave the keys on that day or whether the individual who gave her the card was the same person who had given her the keys. Canto recalled seeing other employees also receiving cards at the time and place that the card was given to her, but she did not discuss these cards with anyone, although there were others there at the time who spoke Portuguese. Canto testified that she took the card home with her on the evening it was received, where she showed it to a cousin who lived nearby. Her cousin, who was not associated with the Respondent or the Union, knew some English in addition to his Portuguese, but did not translate the card to Canto. He merely told her that it was for insurance, but did not tell Canto that the card was for a union. The cousin completed the blanks on the card in pencil and Canto signed it. When Canto went to work the next morning, she gave the card to the same person who handed her the keys that morning. Canto related that she did not discover that the card she had signed was for a union until an unspecified later date when, while eating her lunch in the cafeteria, she saw Union Representative Flynn in the cafeteria. Canto did not understand what Flynn was talking about because of her language difficulty, 74 but she learned that Flynn was there as a union representative after she asked other Portuguese- speaking employees in the cafeteria what was going on and had been told that the meeting was for "voting." 75 Canto testified that no papers or authorization cards were distributed in the cafeteria while she was there. Canto, furthermore, could not recall whether she signed her card before or after she voted in the union election. Canto did not appear to be a forthright witness. Not only did her narrative run contrary to the weight of evidence - even employees who testified against the Union's interest herein, as did Bona and Jenkins, agreed that Hannon and Flynn had passed out authorization cards in the cafeteria on June 27 - but, virtually every detail of Canto's narrative was blurred by uncertainty. At first, Canto testified that she had received the blank authorization card when she came to work. She later recalled that the card had been given to her on an unremembered date while she was turning in her keys just before leaving work, and that she had given it back the next day while picking up her keys. 7J Former executive housekeeper Morris testified that the keys were distributed to the maids each day at that time by the housekeeping supervisors. Anna Jones or Laverne Wiggins, or the head houseman, Louis Ware. 74 Canto could not recall seeing Hannon at the meeting although she remembered having seen him around the hotel on a daily basis. 75 Canto testified that she could speak a small amount of English and sometimes spoke to Lillie Hutchinson Akre. Canto denied, however, that Hutchinson had ever spoken to her about the Union or about the events of the union meeting in the cafeteria. 17 Included among these unchallenged cards were those signed by Maria Lopes, Jose Soares, Rosa Alvemaz, and Sana Gardescu. Although the She thereafter could not remember who gave her the card, the party to whom she returned it, whether she remitted the card to the person who originally had given it, or whether she had signed the card before or after the election. Canto's alleged understanding when she signed the card that it merely was for some unspecified form of insurance, even by her own testimony, was based on what she had been told by her cousin and was not based on any misrepresen- tation traceable to the Union. Canto, at most, related that she received an authorization card which she was able to have translated by someone of her choice, and which she considered to the extent desired, in the privacy of her home. Noting that Canto did not even claim to have been misled by the Union into signing her card, there would appear to be no basis, in any event, to discount the card on the basis of misrepresentation by the soliciting Union. However, Canto's testimony was both most unlikely and generally indeterminate. It therefore is not credited. Based on the record as a whole, noting the date of the card, that Hannon specifically had requested aid for Portuguese- speaking employees, and, as the nonsignature blanks thereon apparently had been filled in by someone other than Canto, it is concluded that Canto had signed her card with assistance on June 27, and that her card is valid. 3. Conclusions as to the Union's majority status Having found no merit to the Respondent's challenges to the validity of authorization cards signed by Patrick Tubwon, Maria Canto, Fatu Bona, Lillie Hutchinson Akre, Lillie Greaves, Yeworkweha Makonnen, Cilia O'Garro, Hewan Deneke, and Genet Assefa, it is concluded that these cards are valid and should be counted in establishing the Union's majority status. In addition to the foregoing, the parties have introduced into the record the signed and dated authorization cards of 19 other employees, the validity of which was not contested.'7 Although the card of Cadroo Jenkins has been found to be invalid herein, as of the date of the Union's demand for recognition on June 30, 1975, there were 52 employees in the bargaining unit; at least 28 of those employees had freely authorized the Union to represent them by signing unequivocal authorization cards. Accordingly, I find that, on the day of the Union's demand for recognition and bargaining, which coincided with the date that the repre- sentation petition in Case 1-RC-13919 was filed, the Union represented the majority of the employees in the appropriate unit.77 Respondent, early in the hearing, had taken the position that it would litigate the validity of these cards as well, on the ground that Soares' signature was not genuine and that the signatures on the remaining cards had been obtained by material misrepresentation at the time of solicitation, no evidence was adduced by the Respondent to support its position. 77 Although employees were told while being asked to sign union cards that they would not have to pay union initiation fees, the record reveals that no assurances were made to prospective card signers that such fees would be waived only for those who signed union cards. See N.LR.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973); C &d W Super Markets, Inc., 231 NLRB 403, 416, fn. 37 (1977). 1382 COLONNADE HOTEL 4. The Refusal to Bargain In Boston Pet Supply, Inc.,78 Administrative Law Judge Taplitz, in his Board-approved Decision, correctly noted as follows: In N.L.R.B. v. Gissel Packing Co., [395 U.S. 575, 613, 614 (1969] the [United States] Supreme Court held that a bargaining order would be appropriate in two situations. The first is in "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices of "such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had." The second is "in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." The Court also held (at 600): "an employer can insist on a secret ballot election, unless, in the words of the Board, he engages in 'contemporaneous unfair labor practices likely to destroy the union's majority and seriously impede the election.' " In Ship Shape Maintenance Co., Inc., 189 NLRB 395 (1971), the Board expressed the test to be applied in terms of whether the lingering effects of the unfair labor practices rendered uncertain the probabili- ty that traditional remedies could insure a fair election, and whether the union's majority card designations obtained before the unfair labor practices provided a more reliable test of the employees' desires and better protected employee rights than would an election. As stated in Joseph J. Lachniet, d/b/a Honda of Haslett, 201 NLRB 855 (1973), enfd. 490 F.2d 1382 (C.A. 6, 1974), where a coercive atmosphere is created by the employer which conventional Board remedies may not adequately dissipate so that a fair election can be held with reasonable certainty, a bargaining order is war- ranted. See also Petrolane Alaska Gas Service, Inc., 205 NLRB 68 (1973). On June 30, 1975, when recognition was requested, the Union represented a majority of the employees in the appropriate bargaining unit. The Respondent refused to honor the Union's bargaining request and, on that date, the Union filed a petition for an election. Between the date of the filing of the petition and the election on August 21, 1975, the Respondent engaged in a number of flagrant violations of Section 8(a)(1) and (3) of the Act to under- mine the Union. The Respondent's general manager, Juster, and his resident manager, Saleh, both participated in that conduct. Banquet waiter Charles Hannon, the Union's principal and most conspicuous activist in its organizational campaign among the Respondent's house- keeping employees, was coercively interrogated as to his union activities and was warned that the Respondent's owner would close the hotel if the housekeeping employees selected the Union as their bargaining representative. 78 227 NLRB 1891. 79 195 NLRB 1109 (1972), enforcement denied 472 F.2d 170 (C.A. 2, 1972). so Also see Milgo Industrial, Inc., 203 NLRB 1196 (1973), enfd. 497 F.2d 919 (C.A. 2, 1974); Automated Business Systems, a Division of Liuon Business Hannon also received verbal written warnings because of his union activities, although the Respondent at that time did not have a no-solicitation rule. When, as found above, Hannon persisted in his union pursuits, he was suspended for a period of I month, effective 2 days before the scheduled election, and, in fact, spared from discharge at that time only by the intervention of his Union. The Respondent also interrogated lobby porter Allan Clarke as to Hannon's union activities and, in the critical period before the election, granted unlawful pay increases to virtually every member of the unit. Finally, in the last days before the balloting, the Respondent, through Saleh, after repeated efforts, successfully induced an ineligible voter, Douglas Reddington, by an outright offer of money, to come to the Respondent's premises to participate in the election. As detailed above, the Respondent here engaged in serious violations of Section 8(aX)() and (3) of the Act, which were calculated to defeat the Union's organizational effort and to undermine its status among the employees. In my view, these unfair labor practices were so severe and pervasive that the application of traditional remedies afford no guarantee that a new election will provide a more accurate index of employee sentiment than the authoriza- tion cards executed by a majority of employees. In the past, the Board has issued bargaining orders on the basis of the unlawful conduct in which the Respondent has engaged. Accordingly, in General Stencils, Inc.,79 the Board found a threat to close the employer's business, made to only I of 32 employees, to be of sufficient consequence to warrant a bargaining order. The Board noted that in the "reality of industrial life," so serious a threat, though made but to a single employee, would affect all employees in the selection of a union as it "all but inevitably" would be discussed among them.80 In Tower Enterprises Inc., d/b/a Tower Records,8' the Board saw fit to issue a bargaining order where the only unfair labor practice was a wage increase that was found to have been issued at a time calculated to interfere with the employees' free choice of a bargaining representative. The Respondent further argued that a bargaining order would not be appropriate in the present case on the ground that there had been demonstrable turnover in its house- keeping and laundry unit since the time that recognition was requested. Accordingly, of the 55 unit employees who were employed by the Respondent at the start of the hearing, only 19 were named on the voting eligibility list used at the election. Although the Respondent has cited a number of decisions of various courts of appeals in support of its position in the matter, I, of course, am bound by the judgment of the Board which, in Tower Records,82 noted the following: Respondent also resists entry of a bargaining order by claiming that at all times it had a good-faith doubt as to the Union's majority, and that a demonstrable turnover shows that any majority which the Union may Systems, Inc., a Subsidiary of Litton Industries, Inc., 205 NLRB 532. 536 (1973), remanded 497 F.2d 262 (C.A. 6, 1974). 81 182 NLRB 382, 387 (1970). R2 Id at 387. 1383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been able to claim ... was subsequently dissipat- ed by turnover. Respondent's contention in this regard misconceives the rationale of Gissel. While prior to Gissel, the Board frequently spoke of the presence or absence of good-faith doubts as to majority by an employer, after Gissel the primary reliance is placed upon evaluation of the unfair labor practices commit- ted. As found above, the Union represented a majority of Respondent's employees at the time of its demand .... Had Respondent refrained from unlawful con- duct following the demand, subsequent turnover might have become an appropriate consideration. However, . . . Respondent embarked upon an unlawful course of conduct which we have found above was designed and calculated to undermine the union's majority and interfere with the employee's right of free choice. Respondent thus by its own unlawful conduct forfeited the right to challenge the Union's majority at a subsequent date, and subsequent turnover became irrelevant in resolving the majority issue. Respondent by . . . undermining the employees' interest in the Union can no longer question any seeming loss of majority since it may well have resulted from its own unlawful conduct. Accordingly, I conclude and find that, by refusing the Union's bargaining request and thereafter engaging in the aforesaid unfair labor practices, the Respondent violated Section 8(a)(5) and (1) of the Act, and that a bargaining order is necessary and appropriate to protect the majority sentiment expressed through authorization cards and to otherwise remedy the violations committed.? 3 E. Case 1-RC-13919 The Objections to the Election The Union's objections to the election closely parallel certain of the unfair labor practice issues alleged by the consolidated complaint.8 4 Pursuant to findings hereto made, I shall sustain Objections 1, 2, and 3 in view of my finding that, during the critical preelection period, the Respondent violated Section 8(a)(1) of the Act by granting unlawful wage increases to unit employees, by coercively interrogating them with regard to their union activities and sympathies, and, in violation of Section 8(a)(3) and (1) of the Act, discriminatorily suspending Charles P. Hannon for his union activities. These unfair labor practices precluded the exercise of a free and uncoerced choice in the election. 83 N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), Trading Port, Inc., 219 NLRB 298 (1975). In these circumstances, I find that the violation of Sec. 8(a)(5) occurred on June 30. 1975, the date the Respondent refused to recognize and bargain with the majority representative of its employees. C W Super Markets, Inc., 231 NLRB 403, supra at fn. 2. s4 The relevant objections are as follows: (I) Prior to the election the employer promised benefits and wage increases to members of the unit and granted same with the intention of coercing the employees in their right to decide how to vote in the election. (2) Prior to the election the employer threatened and interrogated unit employees with the intention of coercing said employees in their right to decide how to vote in the election. The Regional Director, as noted, earlier had approved a request by the Union that its remaining Objections 4 - 8 be withdrawn. In view of the bargaining order recommended herein, it is recommended that the election in Case 1-RC-13919 be set aside and that the said representation proceeding be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. v. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.85 Having found that the Respondent, by administering a warning notice to and by suspending Charles P. Hannon, committed unfair labor practices, it is recommended that Respondent be required to expunge the warning notice from Hannon's file and that it make him whole for any loss of wages he may have suffered by the suspension, with 7- percent interest thereon as prescribed by the Board in Florida Steel Corporation.86 It further is recommended that the Respondent be ordered to recognize and, upon request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the above-described unit. In view of the provision for a bargaining order, it is recommended that the election held on August 21, 1975, in Case 1-RC-13919 be set aside and the petition in the matter be dismissed. CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions herein, Locals 26 and 34, are labor organizations within the meaning of Section 2(5) of the Act. (3) Prior to the election the employer discriminated against, laid off, disciplined and/or discharged several employees because said employ- ees were engaged in protected concerted activity on behalf of Local 26 or otherwise supported the petitioner in the scheduled election. 8s As the unfair labor practices committed by the Respondent were senous and go to the very heart of the Act, I shall recommend that it cease and desist therefrom and in any other manner from interfering with the rights of employees guaranteed by Sec. 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (1941). 6 231 NLRB 651 (1977). 1384 COLONNADE HOTEL 3. The Respondent violated Section 8(a)(1) of the Act by: (a) Threatening its employees with closure of its hotel if the employees selected the Union to represent them. (b) Coercively interrogating employees concerning their union activities and sympathies. (c) Inducing an ineligible employee to vote in a represen- tation election by offer of monetary benefit. (d) Issuing warnings to an employee because of his union activities and sympathies. (e) Granting wage increases to its employees for the purpose of influencing their selection of a labor organiza- tion as their bargaining representative. 4. The Respondent violated Section 8(a)(3) of the Act by suspending Charles P. Hannon because of his union activities and sympathies. 5. The following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All housekeeping department employees and all laundry department employees employed by the Re- spondent at its Huntington Avenue, Boston, Massachu- setts, location, but excluding all office clerical employ- ees, guards and supervisors, as defined in the Act, and all other employees of the Respondent. 6. On or about June 30, 1975, and at all times material thereafter, the Union herein, Local 26, represented a majority of the employees in the above-described appropri- ate unit, and has been the exclusive representative of all said employees for the purpose of collective bargaining within the meaning of Section 8(a) of the Act. 7. By refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the above-described unit since on or about June 30, 1975, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 9. The Respondent's unlawful conduct interfered with the representation election held on August 21, 1975. 10. The Respondent has not violated the Act except as specifically found herein. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER87 The Respondent, Colonnade Hotel, Boston, Massachu- setts, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening its employees with closure of its hotel if they select Local 26, Hotel and Restaurant Employees and 8' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, 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. Bartenders International Union, AFL-CIO, to represent them. (b) Coercively interrogating its employees concerning their union activities and sympathies. (c) Issuing warnings to employees because of their union activities or sympathies. (d) Inducing ineligible employees to vote in union representation elections by offers of monetary benefit. (e) Granting wage increases to its employees for the purpose of influencing their selection of a labor organiza- tion as their bargaining representative. (f) Suspending any employee to discourage his or her membership in or activities on behalf of the above-named Union, or any other labor organization. (g) Refusing to recognize and, upon request, to bargain with the above-named Union as the exclusive collective- bargaining representative of its employees in the following unit: All housekeeping department employees and all laundry department employees employed by the Re- spondent at its Huntington Avenue, Boston, Massachu- setts, location, but excluding all office clerical employ- ees, guards and supervisors, as defined in the Act, and all other employees of the Respondent. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make Charles P. Hannon whole for any loss of pay he may have suffered by reason of his I-month suspension, effective on August 19, 1975, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Expunge from its files the warning and suspension notices to Hannon, dated August 15 and 19, 1975, respectively. (c) Upon request, recognize and bargain with Local 26, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, as the exclusive collective-bar- gaining representative of its employees in the bargaining unit set forth above, with respect to wages, hours, and other terms and conditions, and, if an understanding is reached, embody such understanding in a signed agreement. (d) Post at its Boston, Massachusetts, hotel copies of the attached notice marked "Appendix B." 8 Copies of said notice, on forms provided by the Regional Director for Region I, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. as 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER RECOMMENDED that the election held on August 21, 1975, in Case I-RC-13919 be, and it hereby is, set aside and the petition in that matter is dismissed. 1386 Copy with citationCopy as parenthetical citation