Continental Inn

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 248 (N.L.R.B. 1970)

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interstate 65 Corporation d/b/a Continental Inn and
Hotel & Restaurant Employees & Bartenders Union
Local 181 . Cases 9-CA-5407-1 and 9-CA-5407-2
October 31, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 24, 1970, Trial Examiner James M.
Fitzpatrick issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that the complaint be
dismissed as to them. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision 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
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and finds merit in certain
of Respondent's exceptions. Accordingly, we hereby
adopt the Trial Examiner's findings, conclusions, and
recommendations only to the extent consistent
herewith.
1. Respondent built the motel involved herein in
1961 and operated it until the Pick-Louisville Corpo-
ration acquired the facility from Respondent in 1962.
Pick recognized the Union on the basis of a card
majority shortly after assuming control of the motel
and, on January 23, 1963, entered into a collective-
bargaining agreement covering such employees as
waitresses, maids, housemen, bellmen, busboys, and
bartenders. The parties renegotiated wages in 1966
and, on May 2, 1968, executed a new agreement,
effective through December 31, 1970.
When Pick defaulted on various obligations in
March 1969,2 Respondent agreed to reacquire the
physical assets of the motel, apparently to avoid
foreclosure of the mortgage which Pick had assumed
when it purchased the motel . During the month prior
to Respondent 's taking title to the property on June 5,
it repaired and refurbished the building in an attempt
to improve the motel 's image in the Louisville
community . On June 4, at a series of meetings with
various groups of motel employees , Respondent's
newly appointed motel manager , Dlutowski, an-
nounced that Respondent was going to run an entirely
different operation at the motel , with better food,
better service , new equipment , and higher prices.
Respondent retained 50-55 of the 60-65 former
Pick unit employees in essentially the same positions
they had before the takeover on June 5 . On June 6 and
9, the Union informed Respondent that it was the
employees ' bargaining agent and that there existed a
contract between the Union and Pick . Respondent
declined to deal with the Union under the contract or
otherwise , stating that it was not Pick 's legal succes-
sor. It also changed several employment conditions
without consulting the Union , including the elimina-
tion of seniority , overtime , and premium time.
We agree with the Trial Examiner's well-reasoned
conclusion that despite the change in ownership from
Pick to Respondent , or the manner in which Respon-
dent regained control of the motel and thereafter
operated it, the employing industry has remained
essentially the same , and that Respondent , as Pick's
successor , is bound to recognize and bargain with the
Union and honor the contract .3 It follows , as found
by the Trial Examiner, that Respondent violated
Section 8(a)(5) of the Act by refusing to bargain with
the Union and honor the collective-bargaining agree-
ment and by unilaterally changing certain terms and
conditions of employment.
2. The Trial Examiner found that Respondent
violated Section 8(a)(3) of the Act by initially
discharging employees Adams and Dunavan, along
with the other unit employees , on June 4, and then
conditioning the employees ' continued employment
on their willingness to work for Respondent without
union representation . We disagree.
At one of the June 4 employee meetings conducted
by Motel Manager Dlutowski as a preliminary to
Respondent's assumption of control over the motel on
June 5 , the waitresses , including Adams and Duna-
van, were told , inter alia, that Respondent had no
contract with the Union, that there would be no union
at the motel , and that Respondent would be glad to
have all the waitresses as employees if they wanted to
work without the Union. At the conclusion of his
remarks, Dlutowski and Respondent 's bookkeeper,
Carter, distributed applications for employment to
' Respondent has requested oral argument . The request is hereby denied 2 All dates are 1969 unless otherwise indicated.
because the record , the exceptions , and the brief adequately present the 3 The William J. Burns International Detective Agency, 182 NLRB No.
issues and the positions of the , parties . 50; Solomon Johnsky d/b/a Avenue Meat Center, 184 NLRB No. 94.
186 NLRB No. 41
CONTINENTAL INN 249
the waitresses, but the supply ran out before Adams
and Dunavan could receive their forms.4 Carter
thereupon left the meeting room to secure additional
applications.
At about the same time that Adams failed to obtain
an employment application, she overheard Dlutowski
tell the dining room hostess to arrange a crew to open
up for breakfast the following morning. Adams, who
customarily worked the breakfast shift, was not
assigned to work the next morning because, as found
by the Trial Examiner, Respondent had not received a
completed employment application from Adams at
the time the crew was assembled. When she did not
receive an employment form and assignment to her
usual duties, Adams became upset, left the meeting,
and went to the motel bar.
Dunavan, after complaining to Dlutowski's superi-
or that she had not received an application, was given
two applications when Carter returned, one of which
the Trial Examiner found was "presumably" for
Adams, who had left the meeting by then. After
reflection, Dunavan decided not to fill out the
application, and, leaving both forms in the meeting
room, she joined Adams in the bar. The Trial
Examiner found that although Dunavan failed to
deliver Adams' application to her, Dunavan told
Adams about it shortly thereafter when she met
Adams in the bar. However, Dunavan's testimony on
this point is contradictory. On cross-examination by
Respondent's counsel , Dunavan first testified that
when Dlutowski gave her the second application for
Adams, she left it in the meeting room but told Adams
about it in the bar thereafter. Dunavan thereafter
testified, upon further cross-examination, that she did
not remember mentioning to Adams that she had an
application for her. Adams testified that she never
obtained an application. The likelihood that she was
never told by Dunavan that an application had been
made available for her appears to be supported by the
following testimony by Adams. When asked by
Respondent's counsel if she would like to return to
work for Respondent, Adams replied:
Well, I liked my job there. I had worked there for 7
years. If I hadn't liked [sic] I wouldn't have stayed
that long. But they didn't want me to start with, it
doesn't look like, or they would have give me an
application, don't you think so?
We find, therefore, contrary to the Trial Examiner,
that while Dunavan was given an application for
Adams, she left it behind in the meeting room upon
joining Adams at the bar and never informed Adams
of that fact. In short, we find that Adams at all times
material herein was of the belief that Respondent had
never even offered her an employment application.
As noted above, Dunavan was given an employ-
ment application after complaining to Dlutowski's
superior about not having received one initially.
When Dlutowski handed her the form, he told
Dunavan, "Well, but no union; no union." Dunavan
did not complete her application, but instead joined
Adams at the motel's bar. Dunavan testified at the
hearing herein about an incident in 1965 when she
spearheaded a petition-signing drive designed to have
Dlutowski, who was then catering manager for Pick,
discharged for cruel treatment of waitresses. Dlutow-
ski testified that he left Pick to take a better job.
Dunavan testified that she "reconsidered" after
receiving the application and left it at the meeting.
When asked by Respondent's counsel on cross-
examination why she had not filled out the form,
Dunavan replied:
It was an afterthought, I mean I was upset
naturally when I didn't get one.... I don't know
how to answer it without being mean. . . . It's
obvious. I didn't want to work under Mr. Dlutow-
ski.
The Trial Examiner concluded that since Pick never
authoritatively told the employees that their employ-
ment was to be terminated as of June 4, Respondent
in effect discharged all the employees on that date,
when Dlutowski informed the employees that they
would be rehired but without union representation.
The Trial Examiner found that "to so condition their
continued employment at the motel and to refuse to
employ them except under nonunion conditions" was
a violation of Section 8(a)(3) of the Act, and that
Adams and Dunavan had therefore been the objects
of unlawful discrimination. However, to sustain his
Section 8(a)(3) allegations in the unusual circum-
stances of. this case, the General Counsel must not
only establish that Respondent conditioned contin-
ued employment on the employees' willingness to
work without representation by their duly selected
Union, but also that employees Adams and Dunavan
chose not to continue in Respondent's employ because
Respondent had established that condition. We find
that the General Counsel has not proven the alleged
violations of Section 8(a)(3) of the Act for the
following reasons.
It is clear that, through a series of unfortunate
circumstances, Adams came to believe that Respon-
dent was refusing to employ her. Adams became so
upset at not receiving an application and not being
assigned to her usual breakfast shift that she left the
meeting before she could be made aware that
Respondent was securing additional applications for
her and Dunavan. Implicit in Adams' desire for an
application-and assignment to her normal duties, and
4 The record shows that Adams was currently the union stewardess and Dlutowski had been employed byPick as catering manager at the motel.
that Dunavan had been a stewardess some years before , at a time when
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her discomposure at receiving neither , is her willing-
ness, if not eagerness , to work for Respondent even
under the nonunion conditions earlier enunciated by
Dlutowski at the meeting . In short , Adams wanted to
continue working for Respondent but erroneously
believed that Dlutowski did not want her. Thus, the
General Counsel has failed to prove a causal
connection between Respondent 's imposition of an
illegal condition and Adams ' failure to continue in
Respondent 's employ . In the absence of such a nexus
or any proof that Respondent deliberately failed to
tender an application to Adams in order to discrimi-
nate against her because of her membership in the
Union , we find that the General Counsel has failed to
establish that Respondent violated Section 8(a)(3) of
the Act by not rehiring employee Adams. According-
ly, the complaint is dismissed insofar as it alleges that
Respondent violated Section 8(a) (3) of the Act as to
employee Adams.
Similarly, the General Counsel has failed to estab-
lish that Respondent violated Section 8(a)(3) of the
Act when employee Dunavan did not apply for
continued employment. By her own testimony,
Dunavan admitted that she "reconsidered" upon
receiving the application from Dlutowski and decided
not to seek continued employment because she "did
not want to work under Mr. Dlutowski ." Whether
Dunavan reached this conclusion because of her prior
experience under Dlutowski , or because she was
fearful of reprisal from him for her earlier activity in
petitioning for Dlutowski 's discharge in 1965, or for
some other reason, is not clearly revealed by the
record . It may well be that her testimony , earlier
quoted , that she thought it would be "mean" to admit
that she didn 't want to work for Respondent because
of Dlutowski's presence strongly implies that her
distaste for Dlutowski was a personal matter . Howev-
er, the record contains not one scintilla of evidence
that Dunavan 's decision not to seek reemployment
was influenced by the nonunion conditions estab-
lished by Dlutowski 's June 4 speech . In fact, had
Dunavan wished to work only with continued union
representation, it would have been more logical for
her not to have demanded an employment form from
Respondent . Instead , she immediately complained to
Dlutowski's superior about not receiving her applica-
tion . We conclude, therefore , contrary to the Trial
Examiner , that the General Counsel has not estab-
lished that Dunavan declined employment with
Respondent because of the stated conditions or that
Respondent violated Section 8(a)(3) of the Act in
some other manner by not rehiring employee Duna-
van. Accordingly , the complaint is dismissed insofar
as it alleges that Respondent violated Section 8(a)(3)
of the Act as to employee Dunavan.
3. We agree with the Trial Examiner's finding that
Respondent violated Section 8(a)(1) of the Act by
telling motel dining room customers in the presence of
a waitress that there would be no union when it took
control and that Respondent would close its doors
before it would have a union ; by informing the
employees on June 4 that there would be no union at
the motel ; and by announcing at the same meeting
that the waitresses would be given a pay raise. In his
decision , the Trial Examiner found , as noted several
times above , that , at the meeting , Respondent told the
employees that they could continue to work at the
motel but without union representation . However, in
enumerating the Section 8(a)(1) violations , the Trial
Examiner omitted the latter statement; also, his
Recommended Order does not adequately reflect all
the found violations of Section 8(a)(1).
Accordingly, in our Order we shall rectify this
situation by ordering Respondent to cease and desist
from threatening to close its motel before permitting
its employees to be represented by a union , informing
the employees that there would be no union at the
motel , telling them that their continued employment
was conditioned on their willingness to work without
union representation, and unilaterally announcing an
increase in their wages.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein , and orders that Respondent, Inter-
state 65 Corporation d/b/a Continental Inn, Louis-
ville, Kentucky, its officers, agents , successors, and
assigns, shall take the action set forth in the Trial
Examiner 's Recommended Order , as so modified.
1. Delete paragraph 1(a) and substitute the follow-
ing:
"(a) Threatening to close its motel before permitting
its employees to be represented by a union , informing
the employees that there would be no union at the
motel at a time when they had a right to union
representation , telling them that their continued
employment was conditioned on their willingness to
work without union representation, and announcing
changes in their wages , hours , or working conditions
without bargaining with the Union about such
changes."
2. Delete paragraph 1(b) and reletter subsequent
paragraphs 1(c) through 1(f) accordingly.
3. Delete paragraph 2(a) and reletter the remain-
ing paragraphs accordingly.
4. Delete the first paragraph of the Appendix
attached to the Trial Examiner 's Decision, and
substitute the following:
CONTINENTAL INN
WE WILL NOT threaten to close the motel before
permitting our employees to be represented by a
union or inform our employees that there would be
no union at the motel at a time when they are
entitled to union representation.
WE WILL NOT tell you that your continued
employment at the motel is conditioned on your
willingness to work without union representation
or that we are unilaterally changing your working
conditions without bargaining with the union
which represents you.
5. Delete the second and seventh paragraphs of
the Appendix attached to the Trial Examiner's
Decision.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of
the Act not specifically found herein.
MEMBER JENKINS, concurring in part and dissenting in
part:
With the exception of that portion of the Order
requiring Respondent to honor and adopt the
bargaining contract , I concur in my colleagues'
disposition of this case . See my dissent in The William
J. Burns International Detective Agency, 182 NLRB
No. 50.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK , Trial Examiner : These proceed-
ings under Section 10(b) of the National Labor Relations
Act, as amended (the Act), were tried before me at
Louisville , Kentucky, on March 3 and 4 , 1970, on a
consolidated complaint and Respondent 's answer and
amended answer thereto. The complaint was founded on
charges filed November 6 and 10 , 1969,1 by the Hotel &
Restaurant Employees & Bartenders Union Local 1812
(herein called the Union). The complaint alleges and the
answers deny that Respondent committed unfair labor
practices forbidden by Section 8(a)(1), (3) and (5) of the
Act.
Upon the entire record , my observation of the witnesses,
and considerations of the briefs filed by the General
Counsel and Respondent , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Interstate 65 Corporation, the employer involved herein,
is a Kentucky corporation engaged at Louisville, Kentucky,
in the brokerage of light petroleum products and, since
June 5 , is operating a 141- room motel known as the
Continental Inn. Seventy-five percent or more of the guests
at the motel remain less than 1 month . During the period
June 5, through December 30, Respondent in its Contmen-
tal Inn operation received over $300 ,000 in gross revenues,
251
which, when projected over a 12-month period, will be in
excess of $500,000 per annum , and it will receive directly
from suppliers outside Kentucky goods and materials
valued in excess of $5,000.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization which admits to
membership employees of motels, hotels, restaurants, and
similar enterprises , including employees of Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues posed by the pleadings are: (1) whether in
early June Respondent's manager in violation of Section
8(a)(1) of the Act announced that there would be no union
at the motel and no union stewards running about , that he
would distribute employment applications to those whom
he would consider hiring while failing to distribute
applications to known umon adherents, that there would be
no union at the motel , and that Respondent would close its
doors before it would have a union, that there would be no
union at the motel and no talk about a union, and that there
would be no raises, and that waitresses would make 95
cents an hour and no more nor less; (2) whether
Respondent violated Section 8(a)(3) of the Act by
discharging two waitresses on June 4 and thereafter
refusing to reinstate them; and (3) whether Respondent
since June 5 has been legally obligated as a successor-
employer to recognize and bargain with the Union and
therefore has violated Section 8(a)(1), (3), and (5) of the Act
by admittedly refusing since June 13 to recognize the Union
as the representative of motel employees , refusing to follow
the terms of a collective -bargaining agreement between the
Union and the employer which preceded Respondent in
operating the motel, by cancelling seniority and other
employee benefits without bargaining with the Union, by
granting wage increases without consulting the Union, and
by, on June 5, unilaterally eliminating payment of overtime
and premium time to employees.
B. Background
In 1961 Respondent, a newly formed corporation (which
was then , and still is , closely held by local businessmen),
built the motel facility here involved. It initially was known
as the Diplomat Motor Hotel and was operated by
Respondent. On July 9, 1962, Respondent sold the motel at
a puce of $1,989,000 to the Pick-Louisville Corporation
(herein Pick-Louisville), a Kentucky corporation and a
wholly-owned subsidiary of Albert Pick Corporation.
Albert Pick Corporation directly or indirectly operates a
multistate chain of hotels and motels. Under the terms of
the sale Pick-Louisville paid Respondent $275,000 cash,
assumed payment of the balance of a note in the amount of
$800,288 secured by a first mortgage on the property and
payable to the Greater Louisville First Federal Savings &
Loan Association, and also gave to Respondent a
I All dates hereinafter are 1969 unless otherwise stated.
2 This name is corrected to conform to the evidence in the record
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchased money note for $913,711 secured by a second
mortgage on the motel real estate and a chattel mortgage on
the personal property. Respondent then used the cash
received to establish its other unrelated business of
brokerage of petroleum products in which it is still engaged.
Following the purchase on July 9, 1962, Pick-Louisville
operated the motel, including its bar and restaurant
facilities, through June 4, 1969.3 It employed a manager,
supervisory personnel, and a staff of rank-and-file employ-
ees, including waitresses.
On October 26, 1962, the Union petitioned the Board
(Case 9-RC-5195) for certification as collective-bargaining
representative of the motel employees, naming as employer
"Albert Pick Motel" at the Louisville address. On
November 8, 1962, the Regional Director for Region 9 of
the Board issued a notice of representation hearing in that
proceeding naming as employer "Pick-Louisville Corpora-
tion Albert Pick Motel." The following November 29 the
Union requested withdrawal of the petition on the grounds
that the parties had reached a "settlement," and the next
day the Regional Director ordered the case closed, again
referring to the employer as "Pick-Louisville Corporation
Albert Pick Motel." The parties stipulated that that
employer granted recognition to the Union on the basis of a
cardcheck of 52 union authorization cards signed by
employees of the motel. The Union's petition had indicated
there were 65 employees in the unit. On January 2, 1963, a
collective-bargaining agreement was entered into between
the Union and "Albert Pick Motel Corporation, Louisville,
Kentucky" for a term from January 1, 1963, to December
31, 1967. By this contract the employer recognized the
Union as the exclusive representative of its employees. It
agreed to obtain new employees through the union hiring
hall. The agreement also contained provisions for seniority,
union security, and checkoff of union dues. It was signed
on behalf of the employer by two vice presidents of "Albert
Pick Motel Corporation." It permitted reopening of the
contract for wage negotiations after December 31, 1965.
Pursuant to the wage reopener provision the Union and
"Albert Pick Motel Corporation, Louisville, Kentucky," on
April 1, 1966, entered into a memorandum agreement
covering new wage provisions.
On May 2, 1968, a successor collective-bargaining
agreement was entered into between the Union and "Albert
Pick Motel, Louisville, Kentucky," effective February 16,
1968, to December 31, 1970. This agreement also provided
that the employer recognize the Union as the exclusive
representative of the employees, provided for union
security and checkoff of union dues, and generally covered
wages and working conditions including seniority. Pursuant
to the checkoff provisions Pick-Louisville checked off dues
for union members and remitted them to the Union
through May 1969. The parties also processed grievances
under grievance procedures of the contract, the last being
3 Pick-Louisville operated only this single motel facility.
4 The appropriate unit alleged in the complaint is as follows,
All maids, housemen , bellmen, maintenance grounds keepers, cooks,
pantry, dishwashers , pot washers , waitresses, busboys stewards, and
bartenders of the Pick-Louisville Corporation, d/b/a Albert Pick
Motel, 1620 Arbor Street, Louisville , Kentucky , excluding office
clerical employees, guards , professional employees and supervisors as
defined in the Act.
approximately 1 month before Pick-Louisville terminated
its operation of the motel.
The complaint alleges and Respondent admits that the
unit of employees for which Pick-Louisville recognized the
Union is appropriate for purpose of collective bargaining
under the Act.4
It is clear from the facts that the Union has represented
employees of Pick-Louisville located at the motel in
question in Louisville, Kentucky, and not employees
elsewhere in the Albert Pick organization. The collective-
bargaining agreement, therefore, looks to the enterprise
involving this particular motel and, even though the
identification of the employer in the current collective-
bargaining agreement and its predecessors may have been
slightly inaccurate, I find that Pick-Louisville was the
contracting employer under those agreements.
C. Respondent's Takeover from Pick-Louisville
1. Financial difficulties of Pick-Louisville
By March 1969 Pick-Louisville was experiencing finan-
cial difficulty to the extent that it was in default in
installment payments on the notes to Greater Louisville
First Federal Savings & Loan Association and to
Respondent. Respondent as holder of the junior security
and in order to protect its investment and avoid a forced
foreclosure under the terms of the first mortgage, agreed
with Pick-Louisville to what amounted to a voluntary,
informal foreclosure arrangement.
2. Terms of resale
Under this arrangement, which was entered into May 12,
with a closing date of June 5, Respondent reacquired the
physical assets of the motel, including both the real estate
and much of the personalty used in its operation.
Respondent reassumed the obligation to pay the first
mortgage note from which it had been released at the time
the motel was sold to Pick-Louisville and on which the
remaining unpaid balance was $401,880. The balance still
owed on the second mortgage note held by Respondent was
$605,558. Pick-Louisville was released from further liability
on these obligations. In addition Respondent paid Pick-
Louisville $10,000 cash for linens, supplies, furnishing,
fixtures, equipment, and other personalty at the motel.5
Under the terms of the resale contract Respondent
reacquired the physical assets of the motel but did not
purport to purchase good will or the business as a going
concern. It did assume certain leased equipment contracts
covering leased vending machines, television for the rooms,
and signs with the right in the case of the latter to change
the signs. The resale contract did not specifically deal with
the outstanding collective-bargaining agreement . Respon-
dent was given the right to enter the premises in advance of
I find this is an appropriate unit for collective bargaining within the
meaning of Section 9(b) of the Act.
5 Food and beverages were not included in the items sold to
Respondent. The evidence shows that as of June 5 Pick -Louisville had no
inventory of food or beverages on the premises . Various types of leased
equipment such as vending machines also were not included in the sale to
Respondent.
CONTINENTAL INN
the closing date, and pursuant to this provision its future
motel manager, Arthur Dlutowski, took up residence in the
motel about a month in advance in order to arrange matters
for future operation. Certain repairs necessitated by the
rundown condition of the motel were also begun about a
month in advance of settlement and continued until about
the end of June. These included, inter aha, painting of the
rooms, repairing two roofs, resurfacing the parking lot, and
installing some chain link fencing.
3. Notification to the Union
On May 19 Pick-Louisville advised the Union by
telephone and letter of its intention to cease operating the
motel on June 5; that it was reconveying the property to
Respondent with which it had no connection; and that,
"arrangements are being made to pay all employees for all
monies due to them during the period of our operation."
4. The overheard conversation
A day or two before Respondent's takeover Dlutowski
was overheard by Iva Adams, a waitress, talking to three
customers in the dining room about the future operation of
the motel. According to her she overheard him say there
would be no union at the motel and that Respondent would
close the doors before they would have a union. Dlutowski
testified that he did not recall the conversation but denied
generally making such statements regarding the Union. I
credit Adams regarding this conversation because her
recollection of it was quite specific while Dlutowski could
not recall the occasion, did not deny that he had a
conversation with customers about future operations, and
only denied generally that he had ever made such a
statement regarding unionism. His making of such a
statement, however, was consistent with later statements he
made regarding unionism, detailed hereinafter, and also
consistent with the nonunion policy of the Respondent.
5. Meetings on June 4
On the evening of June 4, Respondent's manager
Dlutowski held a series of meetings with various groups of
motel employees to advise them of the impending takeover
by Respondent. At the last of these meetings about 9 or
9:30 p.m. he spoke with the waitresses.6 He advised them
that Respondent was taking over the operation of the
motel, that he was the new manager, and that it was to be
run as an entirely different operation with better food,
better service, new equipment, and higher prices. He
announced that waitresses would be paid a flat rate of 95
cents an hour, an increase of 5 cents per hour over their
existing pay scale, and that working conditions would be
good. He also announced that Respondent had no contract
with the Union and there would be no union at the motel.
Waitresses Iva Adams and Louise Dunavan testified that
he also stated that no union stewardess would be running
around, a statement which Dlutowski denied and which
denial was corroborated by the testimony of waitress
6 Dlutowskf testified that he spoke from a prepared draft However the
text of such draft was not offered in evidence
7 Adams admitted that before the meeting she had been drinking in the
253
Dorothy Dunigan and bookkeeper Mary Lou Carter. In
this regard I credit Dlutowski, Dunigan, and Carter and
find that he did not make a comment regarding a union
stewardess. Adams, Dunavan, and waitress Geraldine
Mauk testified that he also said he would pass out
applications for employment to those whom he would
consider rehiring. The bookkeeper, Carter, testified that
what he said was that he would be glad to have them all as
employees if they wanted to work without the Union
because there would be no union. I credit Carter's version.
Dlutowski himself testified that he stated that Respondent
would operate as a nonunion company, that it had no
affiliation with the Union and no union contract. He made
it clear that no reference would be made to the contract
between Pick-Louisville and the Union. And he condi-
tioned reemployment on their willingness to work without a
union.
When Dlutowski finished speaking he and Carter handed
out applications for employment to the waitresses. Adams,
who was the union stewardess and was wearing a
stewardess' buttons, and Dunavan, who had been union
stewardess for some years before at a time when Dlutowski
was employed as catering manager at the motel, did not
then receive applications. Both had been waitresses at the
motel for 7 years. The General Counsel contends that they
were purposely omitted and in effect discharged. I find,
however, based on the testimony of Carter, that as they
were being distributed the supply of applications ran out
because the waitresses' meeting was the last of several held
that night, and that Carter left the meeting to obtain
additional applications which she then brought back to the
meeting room. Before she returned with the additional
applications Adams had left the room and returned to the
bar.7 About the same time R. R. Townes, who was
Dlutowski's supervisor in the management of the motel on
Respondent's behalf, came into the meeting room and
Dunavan complained to him that she had not received an
application. On his instructions Dlutowski gave her two
applications, one for herself and presumably one for
Adams, next to whom she had been sitting at the meeting.
According to Dunavan, Dlutowski did so reluctantly
saying, "Well, but no union; no union." Dlutowski denied
he made such a comment, but it is consistent with his other
remarks at the meeting, and I credit Dunavan. Having
obtained two application forms, Dunavan did not fill them
out but left both in the meeting room. She then went down
to the bar to join Adams, whom she filled in on the events at
the meeting subsequent to Adams' departure. Dunavan
explained that she did not fill out her application because
she did not want to work for Dlutowski.
On the foregoing facts I find that Adams and Dunavan
were not categorically refused employment as contended
by the General Counsel. Instead I find that they did not at
first receive applications because the supply ran out.
Adams could have obtained an application had she
remained in the meeting and Dunavan in fact did obtain
applications for both herself and Adams. Dunavan failed to
fill out her own application and although she failed to
bar Several witnesses testified that at the meeting it was obvious that she
had been drinking Carter testified that Adams brought a drink to the
meeting and spilled it during the course of the meeting
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliver the other to Adams , she told her about it shortly
thereafter . I find that both of them could have worked for
Respondent if they had chosen to do so on Respondent's
terms . But the offer of employment was conditional.
Dlutowski made it with the proviso that the employees be
willing to work under nonunion conditions . The waitresses
were never given the opportunity to accept employment
under union conditions.
Normally Adams would have been on the morning shift
the next day and Dunavan would have been the one to
open up the dining room . However , at the end of the June 4
meeting , Dlutowski met with Carter and Ann Overstreet,
the dining room hostess , and instructed them to arrange for
a crew to open the dining room the next morning.
Overstreet instructed Mauk to open up . Adams and
Dunavan were not included in the crew . I find that this was
because they had not submitted their applications for
employment.
Other than its letter to the Union of May 19, Pick-
Louisville never indicated to the employees directly that it
was discharging them . Their only authoritative word
regarding change in their employment came from Dlutow-
ski at the June 4 meeting . Respondent offered in evidence a
letter dated June 5 from Pick -Louisville to Respondent
certifying that all employees of Pick -Louisville were
terminated as of midnight June 4. This appears , however, to
be a purely self serving document and there is nothing in the
record to show that Pick-Louisville communicated to the
employees that their employment was terminated. Adams
testified that the employees were never so notified. In the
circumstances I find that Dlutowski in effect fired everyone
and then conditionally reemployed , as above noted.
6. Before and after
On June 5 , Respondent took over complete operation of
the motel with no hiatus between the regime of Pick-
Louisville and its own. The incoming top management was
entirely new . In overall charges of the operation was R. R.
Townes who held a 25 -percent stock interest in Respon-
dent . Under him and in immediate charge as manager was
Dlutowski . In lesser supervisory positions there was some
change in the identity of personnel and some alteration in
the jobs but the essential functions continued to be
performed by someone . Thus the maintenance manager
and engineer under Pick -Louisville was promoted to a
newly created post of assistant manager . The auditor under
Pick-Louisville left but Carter the assistant auditor and
bookkeeper , remained and performed both functions. The
sales manager and both the night and day hostesses left and
were replaced . The housekeeper remained . The Pick-
Louisville executive chef had been terminated 1 month
before the changeover . He had been in charge of the
kitchen and a separate catering manager had been
employed for that function . Under Respondent these two
jobs were combined under the title of catering manager and
the job was given to the man who had been temporary
catering manager under Pick-Louisville.
Of the 60 to 65 rank -and-file employees of Pick-
Louisville , about 50 to 55 remained and became employees
of Respondent performing essentially the same work. Since
the policy of the new operation was nonunion , they worked
under nonunion conditions as compared with union
conditions before the changeover. The provisions of the
collective-bargaining agreement with respect to rates of
pay, hours , seniority , overtime, and premium time pay and
other terms and conditions of employment were not
followed by the new management . Their group insurance
was changed . Waitresses were given a uniform allowance
and required to provide their own uniforms.
Different recordkeeping systems were installed. Thus,
different type ledgers were used for the room ledger as well
as for the city ledger and Respondent no longer used
standard Pick forms for these functions . The cash register
system was changed from Sweda to National Cash
Register . With respect to credit cards Respondent ceased
recognition of Pick credit cards but continued the Pick-
Louisville practice of honoring major credit cards general-
ly. The telephone switchboard system for incoming and
outgoing telephone calls was changed . Respondent did not
take over Pick-Louisville accounts receivable, did not use
its customer list nor any of its books and records. Room
rates were increased . Respondent changed from the bank
that Pick-Louisville had used to another bank . It ceased
using any kind of equipment with the Pick name and
accordingly began using a whole different line of purveyors
of linen , china, silver, paper products , cleaning supplies,
and air-conditioning supplies . In its dining room Respon-
dent switched from the Pick-Louisville menus to those of
the Continental Inn, Nashville , and eventually obtained its
own menus.
Respondent made a lot of physical changes including the
new roofs and the resurfacing of the parking lot and the
painting of the rooms , referred to above. It bought and
installed new carpeting and drapes, new bedding, new color
televisions, new dining room linen, new lamps , new flower
pots, new ice machines, new china ware , and silver. It
repaired the boiler , the air-conditioning , and renovated the
pool and installed new poolside equipment. The name of
the motel was changed to Continental Inn and it became
affiliated with the Best Western Association of motels. And
of course it was no longer connected with the Pick chain.
The signs on the motel were changed accordingly . Under its
affiliation with the Best Western Association, Respondent
involved itself with a new system for room reservations at
its own motel and other motels in the association. It
adhered to association minimum standards and submitted
to periodic inspections . It became listed in the Best Western
guide.
In sum Respondent tried to change the image of the
motel from that of a rundown operation to an upcoming
one and from one identified with the Pick chain to one
identified with Best Western . To accomplish this it
expended an additional $ 100,000 , approximately 40 percent
of which was for performance of deferred maintenance and
about 60 percent to change the image of the motel . It was of
course a one-purpose structure, so both before and after the
changeover it was a 141 room motel with essentially the
same accompanying facilities such as dining room , bar and
pool.
7. Union overtures to Respondent
Until the takeover on June 5, Pick -Louisville and the
CONTINENTAL INN
Union had actively administered their collective-bargaining
agreement , including the processing of a grievance as late
as a month before the changeover. After the changeover,
the Union did not file any grievances for Adams or
Dunavan because, as business representative Freddie
Mitchell testified, the grievance procedure depended upon
the collective-bargaining agreement which Respondent had
rejected.
The day following the changeover, Mitchell contacted
Dlutowski by telephone and stated that the Union was the
bargaining agent for the employees, claimed to represent a
majority of them, and desired to meet with Respondent for
the purpose of discussing the present contract. Dlutowski
referred him to Respondent's attorney. Mitchell called the
attorney about June 8 and advised him that the Union was
the bargaining agent for the employees in the bargaining
unit and wished to meet with Respondent for the purpose
of discussing the present contract or negotiating a new
contract. Respondent's attorney replied that Respondent
assumed no responsibility for honoring the collective-
bargaining agreement. The Union then sent Respondent a
certified letter on June 9, asserting that it represented the
employees and claimed bargaining rights for them, and that
there was at the time of the changeover an existing contract
between the former owner and the Union. The letter went
on to request a meeting for the purpose of arranging
continuance of the present contract or for the purpose of
negotiating a new one. To this, Respondent's attorney
replied by letter of June 13 confirming their prior telephone
conversation, and asserting that Respondent was not legal
successor to Pick-Louisville and not obligated under the
outstanding collective-bargaining agreement.
Other than to file the charges herein on November 6 and
10, the Union took no further action with regard to
Respondent's rebuff. On July 18 it did seek to recover from
the parent company of Pick-Louisville vacation pay
allowances owed employees at the time Pick-Louisville
ceased operating the motel. It also wrote a letter to motel
employees members on August 6 advising that although
dues had not been paid, the Union was waiving the
payment of dues by members until the expiration date of
the contract on January 1, 1971.8 In early November the
Union sent to Respondent checkoff lists for the months of
July, August, September, and October. The purpose of this,
according to Mitchell, was to try to get recognition from
Respondent by having dues deducted as called for by the
contract, and that had Respondent complied and remitted
checkoff dues to the Union, the Union would have
refunded them to the employees since it had already
excused their dues obligation by its letter of July 18. The
maneuver did not succeed. On November 7 Respondent
returned the checkoff lists to the Union.
D. Conclusions
1. Independent violations of Section 8(a)(1)
Based on facts set out heretofore, I find that a
preponderance of the evidence establishes that a couple of
days before the June 4 meetings Respondent's manager,
8 As with other provisions of the collective-bargaining agreement,
Respondent did not honor the checkoff provisions therein, and,
255
Dlutowski, told customers in the motel dining room that
there would be no union at the motel when Respondent
took over and that Respondent would close its doors before
it would have a union there; that at the June 4 meeting of
waitresses he announced that there would be no union at
the motel; and that waitresses would make 95 cents an
hour. Considering all the evidence I find that he did not at
that meeting state that there would not be any union
stewards running about the motel. I find that he did
announce that applications for employment would be
distributed among the employees present, but I find that a
preponderance of the evidence is insufficient to establish
that he concurrently failed to distribute applications to
Adams or Dunavan. I further find that a preponderance of
the evidence is insufficient to establish that at that meeting
he stated there would be no talk or anything else about a
union at the motel, or that there would not be any raises. I
conclude that those acts which I find above were
established by a preponderance of the evidence constituted
violations of Section 8(a)(1) of the Act.
2. Violations of Section 8(a)(3) of the Act
The complaint alleges that Respondent discriminated
against Adams and Dunavan by discharging them on June
4 and at all times thereafter refusing to reinstate them. I so
find. Although it had been common knowledge among the
employees for a month or so prior to the changeover that
the Pick-Louisville operation was coming to an end, the
employees generally, and specifically Adams and Dunavan,
had received no direct word from Pick-Louisville that their
employment was being terminated. The first and only
authorative word received from the employer came from
Dlutowski at the June 4 meeting. The whole tenor of his
remarks was that the old operation was ceasing and a new
operation beginning and that he would consider applica-
tions for employment. Implicit in his remarks was the
message that their existing employment was terminating.
They were all, therefore, discharged including Adams and
Dunavan, and were told in effect that they could be
reemployed only on the condition that they agree to
abandon rights to self-organization guaranteed by the Act.
At that time Adams and Dunavan were Respondent's
employees within the meaning of the Act. Chemrock
Corporation, 151 NLRB 1074. To so condition their
continued employment at the motel and to refuse to employ
them except under nonunion conditions, was a violation of
Section 8(a)(1) and (3). West Suburban Transit Lines, Inc.,
158 NLRB 794.
3. The alleged violations of Section 8(a)(5) of the
Act
The Union was admittedly the exclusive representative of
Pick-Louisville employees in an appropriate unit as well as
party to a current collective-bargaining agreement with
Pick-Louisville covering unit employees in effect until
December 31, 1970. Respondent also admits that since its
takeover of the motel it has refused to recognize the Union,
has refused to follow the terms of the collective-bargaining
accordingly, since the changeover had not checked off nor remitted any
dues to the Union.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement , has cancelled seniority and other employee
benefits without bargaining with the Union, has granted
wage increases without consulting the Union, and has
unilaterally eliminated the payment of overtime and
premium time to employees. The General Counsel
contends that this conduct violates Section 8(a)(5) of the
Act under the doctrine of Wiley v. Livingston, 376 U.S. 543,
and later cases following that line, requiring a successor-
employer to assume the bargaining obligations of its
predecessor. Respondent defends on the ground that it is
not the successor of Pick-Louisville and consequently is not
obligated to recognize or bargain with the Union as the
incumbent employees' representative nor to assume any of
Pick-Louisville's obligations under the outstanding collec-
tive-bargaining agreement . Respondent stresses that its
reacquisition of the motel was not voluntary in the usual
sense ; that instead, although it was an agreed-upon
arrangement for an informal foreclosure, in reality it was
forced upon Respondent by Pick-Louisville' s default in its
debt obligations and the resultant economic necessity for
Respondent to protect its investment. It points out that
under its resale contract it acquired only the physical assets
of the motel and not the business nor goodwill of Pick-
Louisville. It points out further that while certain
contractual relations of Pick-Louisville, such as contracts
covering leased equipment, were assumed specifically by
Respondent, no such similar provision in the resale contract
provided for its assumption of obligations under the
outstanding union contract. It notes that Respondent and
Pick-Louisville are two distinct unrelated corporations with
no interest one in the other and with entirely different
officers and stockholders, and that when Respondent took
over it installed completely new top management and
partially changed subsidiary management. It also relies on
the argument that it endeavored to create a new image for
the motel by its change of affiliation from the Pick chain to
that of a member of the Best Western Association, by its
refurbishing of the facilities to the tune of $100,000, and by
a change in methods of operation such as bookkeeping and
accounting methods and the identity of suppliers of goods
and services. It asserts that there was no continuity in the
employment of rank-and-file employees on the ground they
were all terminated by Pick-Louisville, and further that
only a portion of the Pick-Louisville employees were
employed by Respondent.
As to this latter point I note that the record shows only
that Pick-Louisville wrote to the Union stating its intent to
cease operating the motel but said nothing directly to the
employees about their employment being terminated. The
only authoritative word on the termination of their
employment came from Respondent's manager at the
meetings on June 4 when applications for employment by
Respondent were distributed and the employees were led to
believe that applicants would be newly employed by
Respondent. I note also that over 80 percent of the rank-
and-file employees of Pick-Louisville continued without
interruption to work at the motel after the changeover.
The General Counsel urges that the same circumstances,
namely, a continuation of a large portion of the Pick-
Louisville employees in the same job classifications such as
maids, waitresses , kitchen help, and others under approxi-
mately the same working conditions demonstrates a
continuation of the prior existing bargaining unit without
substantial interruption , and that since this was at one-
purpose facility operated as a motel with guest rooms,
restaurant, and bar both before and after the changeover,
with no hiatus at the time of changeover, there has been a
substantial continuity of identity of the business enterprise
in spite of the change in ownership. I agree. See Will Coach
Lines, Inc., 175 NLRB No. 87; Randolph Rubber Company,
Inc., 152 NLRB 496. Although the record shows numerous
changes in connection with the takeover, many of these
were minor in nature. Many others were designed to change
the image of the motel from a somewhat rundown
operation to a up and coming one and from one identified
with the Pick chain to one identified with the Best Western
organization. Additional capital was required to achieve the
new image. Nevertheless, even with its new patina, the main
physical features of the motel remained the same, as did the
functions it performed for the traveling public. Because the
larger aspects of the motel basically remained unchanged
and because for the bulk of the employees their situation as
employees in this particular motel operation remained
essentially unchanged, there was present the requisite
continuity and identity in the employing industry to hold
Respondent to the obligations of a successor employer
under the Act. Randolph Rubber Company, Inc., supra, at
499.
In my view the present matter is controlled by the recent
Board decision in William J. Burns International Detective
Agency, Inc., 182 NLRB No. 50, where an employer was
held to be a successor when it assumed the functions of a
prior employer without any contractual privity with it, the
nature of the business remained the same, and a majority of
the successor's workforce was made up of employees of the
predecessor. In those circumstances the Board held that the
successor employer violated Section 8(a)(5) and (1) of the
Act when it refused to recognize and bargain with a union
which had been the incumbent representative of the
employees with the predecessor. Further, the Board held
the successor bound to an existing collective-bargaining
agreement between that union and the predecessor, and in
violation of Section 8(a)(5) of the Act for refusing to abide
by the contract. The Board found that binding the
successor employer to his predecessor's bargaining obliga-
tion would further the statutory policy of protecting
employee collective-bargaining rights and concluded that
absent unusual circumstances the Act imposed an obliga-
tion on a successor employer to take over and honor a
collective-bargaining agreement negotiated on behalf of the
employing enterprise by the predecessor. The Board
observed that, "In essence, the finding of successorship
involves a judgment that the employing industry had
remained essentially the same despite the change in
ownership." In the present matter I conclude that the
employing industry has remained essentially the same, and
Respondent's refusal to recognize and bargain with the
Union or to honor its contract was unlawful.
I find some support for Respondent's defense in the
Board decision in a companion case to Burns. See
Travelodge Corp., 182 NLRB No. 52. Travelodge involved
the same industry as the present matter. Also there, as here,
CONTINENTAL INN 257
the alleged successor had done substantial remodeling and
had even built an addition to the motel. The Board found
no successorship, summarizing its holding as follows, "The
Union seeks to bind the Respondents to a contract which
was executed for an 8-year duration with a multiemployer
group. The Respondents have never sought or been offered
membership in the association. The association-union
contract when originally applied, covered both motel and
food and beverage employees. Now, the restaurant, bar,
and coffee shop are operated independently of the motel,
which has itself undergone substantial alterations and
renovations. Furthermore, it is not clear whether the food
and beverage operations were ever terminated for any
period of time or whether the Union has continued to
represent the employees of the restaurant, bar, and coffee
shop. The record is further confused regarding the number
of employees actually involved when the Respondents
assumed operational control over the motel. Under all the
circumstances of this case we cannot find, as in Burns, that
there has been that degree of continuity in the employing
enterprise which would require that the Respondents honor
the collective-bargaining agreement in issue."
Thus the Board's language makes it apparent that the
record in Travelodge was confused in many regards. In the
present matter the record is clear. The present fact situation
is further distinguishable in that the Pick-Louisville
contract with the Union applied to all rank-and-file
employees of the motel; the Union continues to assert its
right to represent and apply the contract with respect to
employees in what is alleged to be a continuation of that
bargaining unit; Respondent continues, as did Pick-
Louisville, to operate all phases of the motel facility;
Respondent's operation followed upon Pick-Louisville's
with no hiatus whatsoever. I conclude, therefore, that given
the well-established facts before me, and in spite of some
similarities between the present matter and Travelodge, the
Board decision in Burns is controlling.
It further follows from the above that when Respondent
unilaterally changed employment terms by canceling
seniority, granting wage increases, and eliminating pay-
ment of overtime and premium time, it did so in violation of
Section 8(a)(5) and (1) of the Act. William J. Burns
International Detective Agency, Inc., supra.
4. The forced sale defense
Respondent strongly urges that because its reacquisition
of the motel was occasioned by the economic duress of
Pick-Louisville's default on the first and second mortgage
notes, it is not a successor in the usual sense, and because it
had no real economic choice, it should, in all fairness, not
be saddled with Pick-Louisville obligations, including its
collective-bargaining obligations, to which it was not a
party and which it did not assume. In my view the manner
in which Respondent acquired the motel does not, given the
circumstances present here , alter the situation . The form of
transfer is not controlling. Valleydale Packers, Inc., of
Bristol, 162 NLRB 1486, 1490, enfd. 402 F.2d 768 (C. A. 5).
For example, a court appointed trustee may be a successor
under the Act. Marion Simcox, etc., 178 NLRB No. 85. And
see N.L.R.B. v. Zayer Corp., F.2d (Dec. April 27, 1970,
C.A. 5),74 LRRM 2084.
The Board noted in Burns, which was not a foreclosure
case , that , "In the normal case , we perceive no real inequity
in requiring a `successor-employer' to take over his
predecessor 's collective-bargaining agreement, for he
stands in the shoes of his predecessor . He can make
whatever adjustments the acceptance of such obligation
may dictate in his negotiations concerning the takeover of
the business . Normally , employees cannot make a compa-
rable adjustment . Their basic security is the collective-
bargaining agreement negotiated on their behalf ." At first
blush , this language seems to support Respondents'
position . It must be remembered , however , that even
though Pick-Louisville defaulted on its obligations and
Respondent was under some duress to do something to
protect its investment , no foreclosure actually occurred.
Respondent and Pick-Louisville did in fact negotiate what
Respondent describes as an agreed foreclosure which was a
contract containing various provisions for the protection of
each party thereto and which resulted, among other things,
in Respondent's reacquisition of the motel property.
Respondent obviously did have some room for maneuver-
ing and could have , and for all this record shows may have,
made the collective-bargaining situation a subject of its
negotiations with Pick-Louisville . It was not , therefore,
without the possibility of some self protection through
negotiation . In view of this I do not think the Board's
language in Burns is to be taken as an indication that a
situation such as Respondent's is exempt from the normal
application of the successor -employer rule.
Respondent 's further argument that there is here an
absence of continuity of the employing enterprise because
what was the unit in a multistate chain of motels is now a
locally owned business, and its reliance on N.L.R.B. v.
Alamo White Truck Service, Inc., 273 F.2d 238 (C.A. 5) to
support that argument , are both misplaced. The extent to
which the Pick -Louisville operation was a small part of a
motel empire managed from afar is not established in this
record . What is established is that Pick -Louisville, a
Kentucky corporation, operated this single motel , the stock
of which was owned by the parent Pick corporation . In this
case no effort has been made to pierce the Pick-Louisville
corporate veil. The evidence also indicates both an
adherence to certain accounting and record keeping
standards of the Pick chain and reliance on, and
participation in, its guest reservation system . For its part
Respondent is also a Kentucky corporation , although it,
unlike Pick-Louisville, is locally owned . It too adheres to
certain operational standards of a larger organization, the
Best Western Association , and relies on and participates in
its guest reservation system . As far as the public is
concerned the motel chain aspects of the Pick affiliation
appear somewhat comparable to the Best Western affilia-
tion. See N.L.R.B. v Zayre, supra. Respondent continues to
operate a motel on the same premises as the Pick-Louisville
motel , but with different multistate affiliation . In Alamo
White there was a change in the type of business being
done . The transferor had been engaged in the manufacture,
sale, and repair of trucks, and depended on the sale of a
large number of units to a small number of buyers. The
transferee was primarily a service operation , and its sales
were local and retail in nature . Here both Respondent and
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pick-Louisville operated the same kind of business. See
N.L.R.B. v. Zayre Corp., supra.
Additional arguments made by Respondent also appear
to me to be without merit. Among these is the argument
that it could not adopt the collective-bargaining agreement
between Pick-Louisville and the Union because that
agreement referred to national employees of a chain with
which Respondent had no connection. A reading of the
contract, however, reveals that it deals only with employees
at the particular motel in question and that the intended
employer involved was the employer of these employees
and engaged in the operation of this particular motel. That
employer was Pick-Louisville even though the contract
refers to the employer as the Albert Pick Motel, Louisville,
Kentucky. The only provision of the contract which would
appear inapplicable to Respondent's operation is one
whereby the employer agrees to make available to the
employees the "Pick" hospitalization and insurance plan,
"providing this plan remains in effect generally for all
employees of the Pick system." I conclude that this one
inapplicable provision is insufficient to relieve Respondent
of its duties under the Act to honor the outstanding
collective-bargaining agreement.
A further argument made by Respondent is that the
Union acquiesced in Respondent's decision not to bargain
with it, that it abandoned the employees, and that it is now
estopped from asserting its representative status. There is
no evidence in the record that the Union acquiesced in
Respondent's position. In view of Respondent's immediate
and adamant refusal to recognize or bargain with the
Union or to honor the collective-bargaining agreement, it
cannot be said that the Union abandoned the employees.
The filing of the instant charges are evidenced to the
contrary. And the argument that somehow the Union has
head Respondent down the garden path and is responsible
for Respondent's conclusion that it was not a successor
under the Act is wholly without support in the record.
Finally Respondent argues that the Union must prove
that it represents a majority of the bargaining unit
personnel. But the record establishes that the Union
represents them. The Union is party to a still current
collective-bargaining agreement with Pick-Louisville con-
taining both union security and checkoff provisions with
which Pick-Louisville was complying up to the time of
transfer. So far as the employees are concerned the
bargaining unit has not changed. If, as I have found,
Respondent is a successor, the Union as the incumbent
labor organization is presumed to retain its majority status
as bargaining representative. West Suburban Transit Lines,
Inc., supra. In any case, in view of Respondent's serious
unfair labor practices at the time of takeover, designed, as
they were, to force employees as a condition of employment
to abandon the Union, it cannot now persuasively assert
that the Union lacks majority status.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All maids, housemen, bellmen, maintenance
groundskeepers, cooks, pantry, dishwashers, potwashers,
waitresses, busboys, and bartenders employed by Respon-
dent at its motel at 1620 Arthur Street, Louisville,
Kentucky, excluding office clerical employees, guards,
professional employees and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. The Union is the exclusive bargaining representative
of the employees in the aforesaid appropriate unit within
the meaning of Section 9(a) of the Act.
5. By conduct set forth in section III, above, which has
been found to constitute unfair labor practices, Respondent
interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act,
discriminated against employees to discourage membership
in a labor organization, and refused to bargain collectively
with the representative of its employees in accordance with
the provisions of Section 9(a) of the Act, and thereby
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1), (3), and (5) of the Act.
6. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom,
and take certain affirmative action to effectuate the policies
of the Act.
I recommend that it offer Adams and Dunavan
immediate, full, and unconditional reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority and other rights, privileges, or
working conditions, and make each of them whole for any
loss of earnings suffered by reason of discrimination
against them by paying each a sum of money equal to the
amount she would have earned from the date of the
discrimination on June 5 to the date Respondent offers her
reinstatement, less her net earnings during that period in
accordance with the Board's formula stated in F. W
Woolworth Company, 90 NLRB 289, with interest thereon at
the rate of 6 percent per annum as set forth in Isis Plumbing
& Heating Co., 138 NLRB 716, and that it make records
available to the Board agents in connection with compli-
ance therewith. I also recommend that Respondent
recognize and upon request bargain with the Union and, if
any understanding is reached, embody such understanding
in a signed agreement, and further that as successor to Pick-
Louisville it honor, adopt, and enforce the contract in
CONTINENTAL INN 259
existence between the Union and Pick-Louisville, except
for article II, section II, or other provision thereof peculiar
to a relationship with Pick-Louisville, giving retroactive
effect thereto to June 5, 1969, making whole with 6 percent
interest employees for any losses suffered by reason of its
refusal to adopt, honor, and enforce such agreement. See
the Board's order in William J. Burns International Detective
Agency, Inc., supra. However, nothing in the recommended
order shall be construed as requiring Respondent to
abandon employee benefits put into effect on or after June
5, 1969. I further recommend that Respondent post
appropriate notices. Since neither Adams nor Dunavan are
in the Armed Forces, nor likely to be, I have omitted from
the recommended order and notice language complying
with the Selective Service Act and the Universal Military
Training and Service Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record herein, it is recommended
that Respondents, its agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening to close its motel before it will permit its
employees to be represented by a union.
(b) Discouraging membership in Hotel and Restaurant
Employees and Bartenders Union, Local 181, or any other
labor organization, by discriminatorily discharging, refus-
ing to employ, refusing to reinstate, or in any other manner
discriminating against any employee in regard to hire,
tenure, or other term or condition of employment.
(c) Refusing , as successor of Pick-Louisville Corporation,
to adopt, honor, and enforce provisions of the outstanding
collective-bargaining agreement with that Union except for
article II, section 11, or other provisions thereof peculiar to
a relationship with Pick-Louisville Corporation.
(d) Refusing to recognize and bargain collectively with
that Union as the exclusive representative of all maids,
housemen, bellmen, maintenance grounds keepers, cooks,
pantry, dishwashers, pot washers, waitresses, busboys,
stewards, and bartenders employed at its Louisville,
Kentucky motel , excluding office clerical employees,
guards, professional employees and supervisors as defined
in the Act, concerning rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
(e) Unilaterally changing the terms and conditions of
employment of employees in that bargaining unit without
consulting the Union.
(f) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights to self-organization, to form labor organizations, to
join or assist the above-named Union or any other labor
organization , to bargain collectively through representa-
tives of their own choosing, and to engage in other
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and 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. In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Iva Adams and Louise Dunavan immediate,
full, and unconditional reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights, privileges, or working
conditions, and make them whole for any loss of earnings
they may have suffered, in the manner set forth in the
section hereto entitled "The Remedy."
(b) Honor, adopt, and enforce the collective-bargaining
agreement between Respondent as successor to Pick-
Louisville Corporation and the above-named Union, except
for article II, section 11, or other provisions thereof peculiar
to a relationship with Pick-Louisville Corporation, and give
retroactive effect thereto to June 5, 1969, and make whole
its employees for any losses suffered by reason of its refusal
to honor, adopt, and enforce said collective-bargaining
agreement, with interest at 6 percent, provided nothing
herein shall be construed as requiring Respondent to
abandon employee benefits put into effect on or after June
5, 1969.
(c) 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 amounts due under the terms of
this Recommended Order.
(d) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all
employees in the unit described above, concerning rates of
pay, wages, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(e) Post at its motel at Louisville, Kentucky, copies of the
attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision and
Recommended Order, what steps have been taken to
comply herewith.10
IT IS FURTHER ORDERED that the complaint be dismissed
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
io In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 9, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insofar as it alleges violations of the Act not specifically
found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to close our motel before we
will permit employees to be represented by a union.
WE WILL NOT fire , refuse to hire , refuse to reinstate,
or otherwise discriminate against any employee because
he joins, assists , or supports a union.
WE WILL NOT refuse to adopt, honor, and enforce, as
successor of Pick -Louisville Corporation , the existing
union contract with Hotel and Restaurant Employees
and Bartenders Union Local 181.
WE WILL NOT refuse to recognize and bargain
collectively with that Union as the exclusive representa-
tive of all maids , housemen , bellmen , maintenance
groundskeepers, cooks, pantry, dishwashers, potwash-
ers, waitresses , busboys, stewards , and bartenders
employed at our Louisville, Kentucky motel, excluding
office clerical employees, guards, professional employ-
ees and supervisors as defined in the Act, concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
WE WILL NOT change terms and conditions of
employment of employees in that bargaining unit
without consulting the Union.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join or assist the above-named Union or any
other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
WE WILL offer to Iva Adams and Louise Dunavan
their old jobs back, with full seniority, and We Will
make up any pay they have lost, together with 6 percent
interest.
WE WILL , as successor to Pick-Louisville Corpora-
tion , honor, adopt , and enforce the existing union
contract with the above-named Union , giving retroac-
tive effect thereto to June 5 , 1969, and make whole our
employees for any loss suffered by reason of our refusal
to honor , adopt , and enforce said union contract, with
interest at 6 percent.
WE WILL recognize and, upon request , bargain
collectively with the above-named Union as exclusive
representative of our employees in the bargaining unit
described above with respect to rates of pay, wages,
hours of employment and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement.
INTERSTATE 65
CORPORATION D/B/A
CONTINENTAL INN
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
2407 , Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.