Days Inn Management Co., Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1992

299 N.L.R.B. 735 (N.L.R.B. 1992)

DAYS INN MANAGEMENT CO 735
Days Inn Management Co., Inc. and Local 217,
Hotel and Restaurant Employees and Bartend-
ers Union, AFL-CIO. Cases 39-CA-3393 and
34-RC-719
September 20, 1992
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 11, 1989, Administrative Law
Judge Joel P Biblowitz issued the attached deci-
sion The General Counsel filed exceptions and a
supporting brief, and the Charging Party filed ex-
ceptions The Respondent filed exceptions, a sup-
porting brief, and an answermg brief to the other
parties' exceptions
The National Labor Relations Board has delegat-
ed its authority m this proceedmg to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision, Order, and Direction of Second Election
We adopt the judge's findmgs that the Respond-
ent did not violate Section 8(a)(1) by performing a
skit depicting contract negotiations, or Section
8(a)(3) and (1) by permanently laying off 18 unit
employees on January 7, 1987 2 We also adopt the
1 The General Counsel has excepted to some of the judge's credibility
findings The Board's estabhshed policy is not to overrule an adnumstra-
nye law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are Incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
No exceptions were filed to the judge's dismissal of the 8(aX1) allega-
tions involving threats by General Manager Rogers and a restriction on
employee movements by Executive Chef O'Donnell
The judge found that the Respondent violated Sec 8(aX1) when Sales
Director Mazuroski told an employee that if the Union won the election,
employee wages would be reduced to minimum wages The judge, how-
ever, noted that Mazuroslu's threat was not alleged as an election objec-
tion and, even if it were, this threat would not be sufficient to set aside
the election No exceptions were filed
2 The judge found that the Respondent met its burden of proof under
Wright Line, 251 NLRB 1083 (1980), that It would have terminated the
employees on January 7, 1987, even absent the union activity and cam-
paign The General Counsel excepts to this finding because, inter aha, the
judge failed to find that the Respondent has a corporate policy that all
employee layoffs must be permanent We do not find merit to the Gener-
al Counsel's exception General Manager Rogers, who was credited else-
where by the judge, testified that the Respondent has a corporate policy
that all employee layoffs must be permanent and that she learned of this
policy during her company training 7 years ago Rogers' testimony about
this corporate policy was specifically corroborated by the Respondent's
witnesses, Ronald Sorrell% the manager of benefits, compensation, and
EEO, and Vicki Shows, the manager of personnel records On the other
hand, the evidence rehed on by the General Counsel does not establish
that the Respondent deviated from this corporate policy by having tem-
porary employee layoffs instead Moreover, whether a corporate policy
of only permanent layoffs actually existed is irrelevant in light of the
judge's recommendations to overrule election Ob-
jections 2, 9, and 10, and his determination that a
bargaining order is not warranted here 3
Contrary to the judge, however, we find that the
Respondent created the impression of keeping em-
ployee organizational activity under surveillance, in
violation of Section 8(a)(1) of the Act, and thereby
engaged in objectionable conduct interfering with
the election by stationing Chief Engineer Sal
Albam openly in the Respondent's hotel lobby on
the day of the election to meet potential voters as
they entered the lobby on their way to the second
floor polling place, with Albam openly lining
through the names of some potential voters on a
list before letting them proceed to the pollmg
place 4
The Respondent operates a hotel in Bridgeport,
Connecticut On December 19, 1986, the Union
filed a petition seeking to represent the Respond-
ent's service and maintenance employees On Feb-
ruary 25, 1987, a Board election was held and the
Union lost, 22 to 37 The Union subsequently filed
timely election objections
The election was conducted in a room on the
second floor of the Respondent's hotel To get to
the polling place, voters took an elevator from the
lobby About 6 weeks before the election, the Re-
spondent terminated about 20 employees It antici-
pated that at least some of them would attempt to
vote General Manager Catherine Rogers was par-
ticularly concerned about the return to the Re-
spondent's hotel of Clarence Philibert, a terminated
employee who Rogers felt had been "extremely
vulgar" at the time of his termination Rogers
spoke to a Board agent about her concerns about
Pluhbert and about her general desire to control
the election day access of terminated employees to
the upstairs guest area of the hotel The Board
agent told Rogers that the Respondent could have
judge's crediting Rogers' reasons for the January 7 terminations, which
includes her belief that employee layoffs are always permanent
3 Objection 2 corresponds to the 8(aX3) allegation regarding the Janu-
ary 7 layoffs, discussed above Objection 9 corresponds to the 8(aX1) al-
legation involving O'Donnell, discussed above Objection 10, which the
judge found does not correspond to any complaint allegation, alleges
that, on the day of the election, the Respondent's supervisors made mis-
leading and threatening statements to the effect that employees could not
vote in the election There were no exceptions to the judge's treatment of
Objections 9 and 10
4 Because we find that the Respondent violated the Act and interfered
with the election by this conduct, and because we set aside the election
on this bans, it is unnecessary for us to pass on the question whether the
Respondent also violated the Act and Interfered with the election, as al-
leged, by observing the Union's organizational activity conducted on the
public sidewalk in front of the Respondent's hotel The resolution of that
question would not affect our decision to set aside the election in any
event on the basis of Albam's election day conduct in the lobby, the
remedy for any unfair labor practice finding based on the Respondent's
observation of the Union's organizational activity would be cumulative to
the cease-and-desist remedy we Impose concerning the Respondent's un-
lawful election day conduct in its lobby
299 NLRB No 113
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a representative in the hotel lobby to escort poten-
tial voters, including Phihbert, to the polling area
Rogers also asked the Board agent if he would
allow a representative from the Respondent to be
m the lobby "to make sure that there was no trou-
ble with our outside security as to allowing" the
terminated employees to have access to the second
floor polling area The record does not show
whether the Board agent actually granted or
denied this request In any event, Rogers gave
Albam a list of the terminated employees and m-
structed him to "make sure that he allowed [them]
to come upstairs, even though they had been termi-
nated, because they wound up on a list of people
being able to vote"
On election day Albam was in the lobby near the
front doors holding a clipboard with a list of the
names of the recently terminated employees As
they entered the lobby, Albam greeted them, asked
for their names, lined through their names on the
list, and directed them to the elevator, where secu-
rity personnel escorted them to the second floor
polling area
The judge found, (1) that the Respondent had a
valid secunty reason for checking the identity of
individuals as they went upstairs to vote, and (2)
that when Albam crossed off the individuals' names
they could not reasonably assume that their umon
activities had been placed under surveillance In
light of those findings, the judge recommended
that the unfair labor practice allegation be dis-
missed and that the corresponding objection to the
election be overruled We do not agree with the
judge's recommendations
The only authority cited by the judge in support
of his recommendation for dismissal is South Shore
Hospital, 229 NLRB 363 (1977) Although that case
recites the well-established general standard for de-
termining whether an employer has created the im-
pression of surveillance e, whether employees
would reasonably assume from the employer con-
duct in question that their union activities had been
placed under surveillance), South Shore Hospital is
inapposite factually to the instant case, and in par-
ticular does not involve the keepmg of a list of
voters 5 No other authority is cited in support of
the dismissal of this allegation Indeed, as discussed
below, the result reached by the judge is contrary
to well established Board precedent involving simi-
lar material facts
5 In South Shore, the panel majonty dismissed an allegation that the
employer had created the impression of surveillance of union activity
when a supervisor told an employee that the supervisor had Just come
from a meeting with the employer's director and that talk of having a
union was "all over the hospital"
It is well settled that the only list of voters that
may be maintained in Board-conducted elections is
the official voter eligibility list used to check off
the names of voters as they receive their ballots
The keeping of any other list of individuals who
have voted is prohibited and is grounds in itself for
setting aside the election when it can be shown or
inferred from the circumstances that the employees
knew that their names were being recorded And
this is so even when there has been no showing of
actual interference with the voters' free choice
International Stamping Co, 97 NLRB 921 (1951)
Accord Premier Maintenance, 282 NLRB 10, 19-20
(1986), Sound Refining, 267 NLRB 1301 (1983),
Masonic Homes of California, 258 NLRB 41 (1981),
Marathon LeTourneau Co, 208 NLRB 213, 223-224
(1974), enfd mem 498 F 2d 1400 (5th Cir 1974),
Piggly-Wiggly, 168 NLRB 792 (1967), Belk's Depart-
ment Store, 98 NLRB 280 (1951) Cf A D Juil-
hard & Co, 110 NLRB 2197 (1954) (no affirmative
showing or circumstantial inference that employees
were aware that their names were being recorded),
Robert's Tours, 244 NLRB 818 (1979), review
denied mem 633 F 2d 223 (9th Cir 1980) (de mini-
ms when list keeping could have tended to mter-
fere with vote of only 1 out of 26 voters), Brown
Drilling Co, 172 NLRB 1267 (1968) (employee
awareness not shown, in any event, de mimmis
when at most only 3 out of 82 voters aware)
In this case, Chief Engineer Albam openly stood
inside the entrance to the hotel lobby with a list of
potential voters on his clipboard As each of them
arrived in the lobby, Albam met them, took their
names, openly crossed them off the list, and direct-
ed them to the elevator to the polling area Apply-
ing the well-settled Board standard set forth in the
cases cited above, we find that by openly maintain-
ing a list of individuals who voted in the election,
when the employees were shown to have known
that the names of voters were being recorded, the
Respondent engaged in objectionable conduct
interfering with the election Accordingly, we set
the election aside 6
• Unlike the judge, we do not find that the Respondent's concerns for
security warranted its keeping a list of names of potential voters To
begin with, the individuals whose names were on Albam's list were not,
after all, strangers to the Respondent Until 6 weeks pnor to the election,
they had been its employees To the extent that the Respondent had le-
gitimate security concerns, however, the Respondent did not demonstrate
that its conduct in maintaining a list of potential voters to meet those
concerns was reasonably justified Thus, It is not apparent to us why, if
only potential voters were to be taken upstairs, individuals entering the
premises could not simply have been asked if they were there to vote in
the election Once having been directed to the polling area, if Philibert
(or anyone else) had proved obstreperous or a threat to security, he or
she could have been dealt with by the security personnel, who apparently
were available at the Respondent's premises throughout the election
DAYS INN MANAGEMENT CO 737
We also find that the employees could reason-
ably assume from Albam's conduct that their orga-
nizational activity had been placed under surveil-
lance by the Respondent We find that this creation
of the impression of surveillance of voting activity
had a reasonable tendency to interfere with, re-
strain, and coerce individuals affected m the exer-
cise of their Section 7 rights Accordmgly, we also
find that the Respondent has violated Section
8(a)(1) of the Act
REMEDY
Havmg found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act
ORDER
The National Labor Relations Board orders that
the Respondent, Days Inn Management Co, Inc ,
Bridgeport, Connecticut, its officers, agents, suc-
cessors, and assigns, shall
1 Cease and desist from
(a) Threatening to reduce the pay of its employ-
ees to the minimum wage allowed by law if Local
217, Hotel and Restaurant Employees and Bartend-
ers Union, AFL-CIO won the Board election and
was certified as the employees' collective-bargain-
mg representative
(b) Creating the impression of keeping employee
organizational activity under surveillance
(c) In any like or related manner, interfering
with, restrammg, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Post at its facility in Bridgeport, Connecticut,
copies of the attached notice marked "Appendix "7
Copies of the notice, on forms provided by the Re-
gional Director for Region 34, after bemg signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other matenal
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
(b) Notify the Regional Director in wntmg
within 20 days from the date of this Order what
steps the Respondent has taken to comply
IT IS FURTHER ORDERED that the allegations of
unlawful conduct not found to be violative of the
Act shall be dismissed
[Direction of Second Election omitted from pub-
lication]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT threaten to reduce the pay of our
employees to the minimum wage allowed by law if
Local 217, Hotel and Restaurant Employees and
Bartenders Union, AFL-CIO wins the Board elec-
tion and is certified as the employees' collective-
bargaining representative
WE WILL NOT create the impression of keepmg
employee organizational activity under surveil-
lance
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the nghts guaranteed you by Section 7 of
the Act
DAYS INN MANAGEMENT Co, INC
Thomas Metklejohn, Esq and James Bailey Esq , for the
General Counsel
Arch Stokes, Esq , John Runt Esq , and Karl Terre!, Esq
(Stokes, Lazarus & Carmichael), for the Respondent
Ellen Thompson, Area Director, for the Charging Party
DECISION
STATEMENT OF THE CASE
JOEL P BIBLowrrz, Administrative Law Judge This
case was heard by me on 7 hearing days, opening on No-
vember 14, 1988, and closing on January 4, 1989, in
Bridgeport, Connecticut The amended complaint herein
issued on November 2, 1988, and was based on an unfair
labor practice charge filed on March 6, 1987, 1 by Local
217, Hotel and Restaurant Employees and Bartenders
Union, AFL-CIO (the Union) The amended complaint
alleges that Days Inn Management Co, Inc (the Re-
spondent) violated Section 8(a)(1)(3) and (5) of the Act
in the following manner
'Unless indicated otherwise, all dates referred to herein relate to the
year 1987
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) On or about December 12, 1986, engaged in a skit
at the Days Inn Hotel in Bridgeport, Connecticut (the fa-
cility), which skit "depicted the Employer's intransi-
gence m negotiations by refusing all of the Union's de-
mands during the course of negotiations and by depicting
a strike, informed its employees that it would be futile
for them to select the Union as their bargaining repre-
sentative
(b) In or about November and December 1986, at the
facility, threatened employees with termination or other
reprisals, for supporting the Union
(c) In or about February, at the facility, observed its
employees speaking to representatives of the Union and
kept under surveillance, meetings of employees and
union representatives
(d) On or about February 25, informed its employees
that if they voted for the Union, their wages would be
lowered to the minimum wage
(e) On or about February 25, at the facility, restricted
the movement of its employees in order to prevent them
from engaging in union activities
(f) On or about February 25, at the time of the Board
conducted an election at the facility, kept a list of poten-
tial "yes" voters, thereby creating an impression among
its employees that their umon activities were under sur-
veillance by Respondent
(g) On or about January 7, permanently laid off 18
named employees because of their activities on behalf of,
and support for, the Union
In addition to there unfair labor practice allegations, it
is also alleged that Respondent unlawfully refused to rec-
ognize and bargain with the Umon, the designated col-
lective-bargammg representative of its employees in an
appropriate unit, and a Gissel bargaining order is request-
ed
Pursuant to a petition filed by the Umon on December
19, 1986, and a Decision and Direction of Election issued
by the Regional Director for Region 1 on January 29, an
election was conducted among the following employees
of Respondent, found to constitute an appropriate unit,
on February 25
All full-time and regular part-time service and
maintenance employees employed by the Employer
at its 815 Lafayette Boulevard, Bridgeport, Con-
necticut location, including food and beverage em-
ployees, banquet employees, front desk employees,
maintenance employees, housemen, housekeeping
and laundry employees, but excluding management
trainees, purchasing agents, security guards, sales
personnel, office clerical employees, confidential
employees and guards, professional employees and
supervisors as defined in the Act
After a stipulation among the parties, a revised tally of
ballots showed
The undetermined challenged ballots no longer affect
the results of the election
On March 3, the Union filed timely objections to the
election In a Supplemental Decision dated February 29,
1988, the Regional Director found that five of these ob-
jections raise substantial and material issues of fact and
would best be resolved on the basis of record testimony
He therein consolidated the following objections in
(now) Case 34-RC-719 with the existing complaint in
Case 39-CA-3393
2 Layoff of a substantial number of employees in
the week following the Unit determination hearing
on account of their Union activities and for the pur-
pose of having a chilling effect on the election
4 Surveillance and impression of surveillance by
supervisors (including Sue [actually, Sal] Albam and
Barbara Terry) in lobby of the Hotel during the
election
5 Surveillance and impression of surveillance of
employees' Union activities by supervisors in the
parking lot and in front of the Hotel during the
three weeks prior to the election
9 Surveillance and disparate treatment of Union
Committee members including Collin Gobanez and
Alice Grant, by supervisors during the day of the
election
10 Misleading and threatening statements to em-
ployees by supervisors including Beth Mazuroslu
during the day of election that they could not vote
in the election
On the entire record, including my observation of the
witnesses and the briefs received from the parties, I make
the following
FINDINGS OF FACT
I JURISDICTION
Respondent operates a hotel in Bridgeport, Connecti-
cut, under the name Day's Inn Bridgeport (the facility)
During the first 7 months of 1987, Respondent's gross
revenue for rental of rooms at the facility was approxi-
mately $1 5 million Respondent purchased linens for the
hotel, valued at approximately $18,000, directly from a
supplier located in New York I therefore find that the
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act Old
Capital Inn, 227 NLRB 1323 (1977), Golden Nugget
Motel, 235 NLRB 1348 (1978)
II LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
III BACKGROUND
Approximate number of eligible voters-68
Votes cast for Petitioner-22
Votes cast against Petitioner-37
Undetermined challenged ballots-15
The facility involved herein had previously been oper-
ated as a Holiday Inn and subsequently as a Sheraton
Hotel, the Union represented its employees during both
of these periods During its operation as a Sheraton
DAYS INN MANAGEMENT CO

739
Hotel, the facility suffered from major financial difficul-
ties and closed on October 31, 1985, the hotel reopened
as a Days Inn, operated by Respondent on February 10,
1986, with many of the same employees previously em-
ployed at the facility As stated, supra, at the election
conducted on February 25, the Union failed to receive a
majonty of the votes cast and filed timely objections,
which have been consolidated with the unfair labor prac-
tices alleged herein
IV THE SKIT PERFORMED ON OR ABOUT
DECEMBER 12, 1986
The parties stipulated that the following is a skit per-
formed by Respondent for its employees
Establish set, then there will be questions and an-
swers The roles will be played by a Days Inn rep-
resentative and a union representative)
INTRODUCTION,
1 Set
One table, two chairs, representative from
Days Inn and representative from union Each
will have a badge indicating their capacities
2 Documents
The documents exchanged at the meeting will
be handed out to the employees Those docu-
ments will probably be as follows
Wage-and-Hour survey,
Fnnge benefits survey,
Excerpts from handbook, (gnevances and dis-
ciplinary procedures)
Check-off procedure, (obtain that from existing
contract in file)
3 Individuals can hand out these documents
DIALOGUE
"D" Will stand for the Days Inn representa-
tive
"U" will stand for the Umon representative
D It is appropriate to first set the schedule of
the meetings Normally, collective bargaining ne-
gotiations take many, many months to resolve
and reach a final agreement
It is suggested that we set up the next five (5)
meetings and they should be two weeks apart Is
that agreeable with you?
U Yes
D Our proposal is the language contained in
the handbook Here is the handbook (Give the
handbook to union)
U Our proposal is very simple We want the
following
(1) Check-off provisions,
(2) A grievance procedure,
(3) Disciplmary offenses fair to all employees,
and
(4) Across the board wage increases of 5%
D Let us consider your proposal and we will
talk about them at the next meeting
SET An individual assisting with negotiations
will have a placard that states two weeks have
passed
D We have considered your proposals and
have several questions The first question is what
do you mean by "check-off?"
U The language we intend to use is on this
sheet of paper
SET Hand out the sheet of paper to all people at
meeting
D What does this mean—"check-off?"
U It means that you will deduct from the em-
ployees' wages every month the union dues and
pay them over to us
D Does each employee have to join the union
even if they don't want to and pay dues?
U Yes The law of this state requires it
D How much are the union dues?
U $170 per month, $204 per year, or about
$1 0 per hour
D Does the employee have to pay any more?
U Yes They have to pay a $65 00 initiation
fee
D Why don't you simply collect the money
yourselves? Why should we have the extra ex-
pense of handling your accounting for you?
U It makes it easier for us since sometimes
some employees refuse to pay or are slow in
paying and there is less accounting for us
D What if the employee fails to pay the dues?
U You may have to fire that employee
D Very well, we will consider this, but let's
move on to the next topic which is your demand
to fairly treat the employees when it comes to
discipline We believe that the disciplinary proce-
dure set forth in our handbook does ensure that
each employee is treated fairly Here is a copy of
the page which outlines the offenses for which
discipline may be necessary (Hand out Attach-
ment No 2)
U Fine This appears fair I believe we can
agree to this and incorporate it in the union con-
tract
U It looks like the time for this meeting is up
go we will meet again in two weeks to continue
negotiations
SET Walk across with a placard indicating that
two weeks have passed
D We left off with your demand for a fair dis-
ciplinary procedure at which time you agreed to
accept our language as set forth in our handbook
D The next point is a grievance procedure
U That is correct We want a grievance pro-
cedure to protect our employees against your
unfair use of the disciplinary procedure
D What about this language?
SET Hand out the language to all people at the
meeting (Attachment No 3)
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
U This language looks fine, except there needs
to be a meeting with the union representative
D In other words, you are saying the language is
acceptable as stated on this sheet of paper that is in
our handbook with some changes
U Yes
D Very well, we can agree on the disciplinary
procedure and on the grievances procedures which
are the same ag we have m our existing handbook
SET Walk across with a placard indicating two
weeks have passed
D Your demand is for a 5% increase m wages
across the board Are you familiar with the
wages and fringe benefits bemg paid by other
comparable hotels in this area?
SET Hand out the wage and benefit surveys to
all people at the meeting (Attachment No 4)
U I don't care what others are being paid—we
want the 5% across the board increase
D Sorry, but we believe we are competitive in
the marketplace in wages and in fringe benefits
and we are willing to pay no more money or
give any other fringe benefits at this time
We do review the employees every six (6)
months and based on their performances do give
mcreases We have done this in the past and have
shown good faith in doing so and will continue
to do so m the future
U This is unacceptable to us We want an im-
mediate increase or we are at an impasse and will
call a strike
D Very well You will have to call a strike
Do you know how long it will take you to make
up a $10 per hour increase if you are on strike for
four (4) weeks? Of course, Days Inn will not be
paying employees during the strike
U No, how long?
D Here is the chart that will explain this
SET Hand out the chart to all employees at the
meeting (Attachment No 5)
D You know of course that if you go on
strike we will continue operatmg This may mean
that some of the existing employees who go on
strike will be replaced and may have no rights
for reinstatement as long as their replacement is
still working for Days Inn
U Yes, I understand this and it is a chance the
union is willing to take
D Very well, It appears there is nothing fur-
ther for us to discuss at this time be are always
willing to meet at any time and we only hope
you will listen to reason
The complaint alleges that, by this skit Respondent
violated Section 8(a)(1) of the Act because it "depicted
the employer's intransigence in negotiations by refusmg
, all of the Union's demands during the course of negotia-
tions and by depicting a strike, informed its employees
that it would be futile for them to select the Union ag
their bargaining representative" Respondent contends
that the skit does not violate the Act because it shows
Respondent bargaining in good faith and reaching agree-
ment on a number of issues and, secondarily, that the skit
represents campaign propaganda protected by Section
8(c) of the Act I agree with counsel for Respondent A
review of the skit establishes that the Company agreed to
consider a check-off provision, and the Union, basically,
agreed to the disciplinary procedure and grievance pro-
cedure contained in the Company's existing handbook
the only disagreement was on wages the Union wanted
a 5-percent across-the-board increase, while the Compa-
ny was not willing to give anything "at this time" be-
cause they felt that their wages were competitive The
Umon's response was that without an increase, there
would be an impasse and an immediate strike The Com-
pany's response was that they would continue operating
and some of the employees may be permanently re-
placed, but that "we are always willing to meet at any
time and we only hope you will listen to reason" The
employees attending this skit understood that it was a
brief encapsulation of a process that could take months
or, even, years Additionally, the skit did not mtimate
that Respondent would force a stnke or that a strike was
an inevitable result of unionization Central Broadcast
Co, 280 NLRB 501 (1986), Bay State Ambulance Rental,
280 NLRB 1079 (1986) Rather, in an all too abbreviated
way it summarized the bargaining process and the dis-
cussion of a few issues attendant thereto As the Board
stated m Clark Equipment Go, 278 NLRB 498, 500
(1986)
The statements on which the judge relied accurate-
ly reflect the obligations and possibilities of the bar-
gaming process They do not contain any threats
that the Respondent will not bargain in good faith,
or that only regressive proposals will result We
conclude that the Respondent has not impliedly or
otherwise threatened that it will bargain regressive-
ly or take away benefits should the Union win the
election The leaflets contain permissible campaign
materials within the protection of Section 8(c), and
we, accordingly, dismiss this allegation
See also Establishment Industries, 284 NLRB 121 (1987)
I therefore recommend that this allegation be dis-
missed
V ALLEGED THREATS OF TERMINATION BY ROGERS
This allegation is that in about November and Decem-
ber 1986, Respondent, by Catherine Rogers, the general
manager at the facility, threatened employees with termi-
nation, or other reprisals, if they joined or supported the
Union, m violation of Section 8(a)(1) of the Act Gloria
Green-Bish, who was employed by Respondent as a
maid, testified that in about November, she and fellow
employees Mazel Dwyer, Jovann (last name unknown),
and others were preparing to have lunch in the break-
room at the facility, when she overheard Rogers speak-
ing to one of the other maids in the room, saying that
they had good benefits and they did not need a union,
and that any employee talking to anybody from the
Union could be fired In a four page affidavit Green-Bish
gave to the Board on March 25, she made no mention of
DAYS INN MANAGEMENT CO

741
this meeting or this threat Dwyer, who was employed at
the facility in the laundry department, testified that at a
meeting in the room at the facility where the employees
ate, with Green-Bish and some other employees present,
Rogers told them that they would do better without the
Union, and she did not want the employees to be in-
volved with the Umon, that if she learned of employees
who were involved with the Umon, they would be fired
In the initial four-page affidavit Dwyer gave to the
Board on March 24, this threat is not mentioned She tes-
tified that it is not included because she did not have
enough time on that occasion to inform the Board Agent
of all the incidents, so she had an appointment set up for
a subsequent affidavit This second affidavit is dated in
September 1988 and, apparently, does include the threat
Rogers testified that she never told Dwyer, Green-Bish,
or any other employee that they would be terminated,
disciplined, or be discnmmated against in any manner be-
cause of their support for the Union Rogers was the
principal witness in this proceeding and she spent a sub-
stantial time on the stand, I generally found her to be a
direct and credible witness I found Green-Bish fairly
credible, and Dwyer fairly hostile in responses to the
questions of counsel for Respondent What I find most
damaging to this allegation is that neither of the support-
ing witnesses referred to this incident in the ongmal affi-
davits taken by Board agents Dwyer did not refer to
this alleged threat until a subsequent affidavit, apparent-
ly, taken in preparation for trial This, together with the
fact that I found Rogers to be a fairly credible witness,
convinces me that this allegation should be dismissed,
and I so recommend
VI SURVEILLANCE OF UNION MEETINGS
IN FEBRUARY
As stated, supra, an election was conducted among
Respondent's employees on February 25, on about every
day for, at least, the prior month the Union had two of
its representatives on the street outside the facility to
meet with, and talk to the employees During at least a
few of these days, Beth Mazuroslu, sales director, Simon
Fermin, sales manager, and Sal Alban', chief engineer
were present in the area The allegation is that Respond-
ent, through these individuals, kept the Union's meetings
with employees under surveillance in violation of Section
8(a)(1) of the Act
The facility is located on Lafayette Boulevard, a main
thoroughfare in Bridgeport As you face the facility, on
the right side is a large parking area for guests and em-
ployees Separating this parking area and Lafayette Bou-
levard is a sidewalk During the period in question,
union representatives Martin Dunleavy and Susan Pettor-
irn were at the facility on almost a daily basis Pettonm
testified that during this period she was usually at the fa-
cility 5 days a week between about 2 and 3 30 p m when
the food and beverage employees changed shifts and at
about 430 p m, when the housekeeping employees left
work She generally parked her car to the right (as you
face the facility) of the driveway leaving the parking
area, next to a newspaper box that is on the sidewalk ad-
jacent to the driveway She began doing this in about
October 1986 and continued through- February 25 On
about six occasions in February, she observed Mazuroslu
standing on the sidewalk by the newspaper box (about 5
feet from Pettonm's car), on one occasion, she was read-
ing a newspaper, it was very cold at the time On an-
other occasion, Mazuroski parked her car in front of Pet-
tormi's car, on the other occasions, she just watched Pet-
tonm talking to the employees Dunleavy testified that
he was present at the facility about 6 days a week during
the penod in question, on these occasions, he parked his
car on the street to the right of the driveway leading
from the parking area at the facility Although he was
there, at times, to speak to the food and beverage em-
ployees, he was almost always there at 430 p m when
the housekeeping employees left work At that time he
attempted to speak to members of the Union's organizing
committee, as well as other of Respondent's employees
In about early to mid-February, shortly before 430 p m,
he observed Mazuroslu come out of the hotel and stand
on the sidewalk on the left hand side of the dnveway
(the hotel side), Dunleavy's car was parked on the street
on the right hand side of the driveway She stood there
for about 10 minutes, crossed over the dnveway,
brought a newspaper from the newspaper box and then
returned to the left side of the driveway where she stood
until about 4 30 p m when the housekeeping employees
exited the facility Mazuroslu "nodded" to, and "ac-
knowledged" the employees on that day When Dun-
leavy left about 10 minutes later, she was still there On
the following day, while it was snowing, Mazuroslu
again came outside, purchased a newspaper from the
newspaper box, and stood on the left side of the drive-
way for a short time Fermin came out, gave her an um-
brella and stood with her for a few minutes Mazuroslu
and Fermin then left the sidewalk area and Mazuroslu
drove out of the parking area and parked in front of the
hotel while sitting in her car When Dunleavy drove
away that day, Mazuroski was still there, sitting in her
car A few days later, Mazuroslu came out of the facility,
bought a newspaper from the newspaper box and stood
next to the newspaper box, about 7 feet from where
Dunleavy was standing next to his car When the em-
ployees exited the facility, Mazuroslu "actively competed
for the attention of the workers," saying hello and at-
tempting to shake their hands and engage them in con-
versation After all the employees departed, Mazuroslu
returned to the facility On one other occasion, prior to
February 25, Mazuroski bought a newspaper from the
newspaper box and stood about 7 feet from his car
When the employees came out of the facility, she at-
tempted to engage them in conversation On or about the
day before the election, Alban' came out of the facility at
about 420 p m, stood on the sidewalk leaning against
the parking area fence (just across from where Dun-
leavy's car was parked) with arms folded, and watched
as the employees exited the facility and approached Dun-
leavy
Employees also testified about the presence of Mazur-
oslu, Fermin, and Albam outside the facility during Feb-
ruary Ella Mae Reid, who is employed by Respondent
as a maid, testified that on more than one occasion in
February she saw Mazuroslu standing by the newspaper
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
box on the sidewalk adjacent to the driveway, about 8
feet from where Dunleavy's car was parked On one of
these occasions, she was just standing there and on an-
other she was standing, reading a newspaper Ruby
Johnson, who is employed by Respondent as a maid, tes-
tified that for the period prior to the election, she used to
meet Pettonm at 4 30 p m outside the facility She gen-
erally met her about 5 or 10 feet from where the news-
paper box was located In early February, she observed
Mazuroslu in the area on two or three occasions, "just
standing there" by the newspaper box During the same
period she saw Fermin, on two or three occasions, and
Albani, on one or two occasions, standing near the news-
paper box Dedra Rhodes, who is employed by Respond-
ent as a housekeeper, testified that she met with Pettonm
and Dunleavy on almost a daily basis outside the facility
from about December until the day of the election She
met them ear the newspaper box She saw Albani leaning
against the fence facing the street on two or three occa-
sions, a week or two prior to the election She saw Ma-
zuroslu and Fermin together on two or three occasions,
also about a week before the election, Mazuroski was
leaning on the newspaper box reading a newspaper while
Fermin was standing next to the newspaper box Victor
Ramos, who is employed at the facility as a waiter, testi-
fied that dunng the winter preceding the election, he met
with Pettonni and Dunleavy two or three times a week
in front of the facility On one occasion, about 2 or 3
weeks before the election, he saw Mazuroski standing by
the newspaper box reading a newspaper In addition to
these employees witnesses called by General Counsel,
counsel for Respondent called a number of employee
witnesses who testified to their objections to the persist-
ence of the union organizers, some of these employees
complained to Rogers about this persistent activity
Mazuroslu testified that from about December 1986
through the time of the election, she observed Dunleavy
and Pettonm speaking to employees in the area in front
of the facility, either in their cars or adjacent to their
cars Their cars were parked on either side of the dnve-
way, at times She testified that on some occasions,
toward the end of the union campaign, when Dunleavy
or Pettonni, or both were present, she went outside to
the area—"to show a friendly face just to let them
know that I was there just to support them" On
those occasions, she stood on the sidewalk by the news-
paper stand and simply said goodbye to the employees
or, "I'll see you in the morning" She did not attempt to
engage the employees in conversation 2 She made the
determination to do this on her own, although she later
informed Rogers of it On about five occasions, Fermin
went outside with her and engaged in the same activity
Fermin testified that on three or four occasions, he went
to the front of the facility with Mazuroslu—to show sup-
port from management for the employees" He simply
said, "good-bye, see you tomorrow, how was the day,"
to the employees—nothing further He did not speak to
2 In an affidavit that Mazuroski gave to counsel for Respondent, she
stated that she was there to say good evening to the employees and to
answer any questions they might have about company policy But, she
testified, no employee ever asked her about it
the union organizers He and Mazuroski were on the left
side of the driveway (as you face the hotel) looking
down the sidewalk away from the hotel, where the
union organizers were, about 20 feet away Alban' testi-
fied that the only occasion when he was in front of the
hotel at the same time as the Union organizers was on
the day before the election, on that day, at about 4 30
p m, he was in front of the hotel waiting for somebody
to pick him up to drive him to get his car At that time,
he saw two men whom, he testified, at the time, he did
not know were union organizers, waving to employees
to talk to them Shortly thereafter, the union people left
The evidence therefore establishes that on four or five
occasions in the weeks preceding the election, Mazuroski
and Fermin (admitted agents of the Respondent) stood
on public property near union agents (who were also on
public property) at a tune when they knew that the
union agents would be soliciting, and speaking to, em-
ployees Their purpose, whether "to show a fnendly
face" or "to show support" is irrelevant to the ultimate
determination, they were about 10 feet away at times
that the union organizers were talking to employees
Alban' was present in the area on one occasion during
this period, I discredit his testimony that he did not
know what was going on and did not even know that
the individuals involved were union representatives The
union representatives had been stationed in front of the
facility for months prior to the day in question, Alban'
testified that, as building engineer there were times that
he would be working in the area I find it hard to believe
that prior to February 24, he was not aware of the fact
that the Union was soliciting employees in front of the
facility
I find that this activity does not violate Section 8(a)(1)
of the Act The objectionable conduct herein is the pres-
ence—the mere presence—of Mazuroslu, Fermin, and
Albam close to the union representatives while they
were soliciting employees' support The Board cases find
that observation alone (absent note taking or picture
taking or the like) does not violate the Act In Hoschton
Garment Co, 279 NLRB 565, 566 (1986), the Board
found the surveillance unlawful, but stated
In affirming the judge's finding of unlawful surveil-
lance of employee union activity at entrance C, we
emphasize that Lord did not merely observe union
activity, but rather attempted to prohibit Adler
from distributing handbills to employees on public
property, and that Lord stood very close to Adler
from the duration of the handbillmg
The Board then cited Woodland Molded Plastics Corp,
250 NLRB 169 (1980), stating "However, Woodland is
inconsistent with numerous unfair labor practice cases
holding that an employer's mere observation of open,
public union activity on or near its property does not
constitute unlawful surveillance" Finally, the Board
stated "[U]mon representatives and employees who
choose to engage openly in their union activities at an
employer's premises should have no cause to complain
that management observes them" The Board repeated
this language in finding no violation in Chemtronics, Inc ,
DAYS INN MANAGEMENT CO 743
236 NLRB 178 (1978) and Emenee Accessories, 267
NLRB 1344 (1983)
Reeves Southeastern Corp, 256 NLRB 574 (1981) and
Gainesville Mfg Co, 271 NLRB 1186 (1984) also in-
volved more than mere surveillance in an area adjacent
to the company's property In Reeves, there were threats
and other attempts to inhibit the card solicitation, other
than the surveillance, in Gainesville, the company unlaw-
fully attempted to prohibit the handbillmg, as well as en-
gaging in surveillance of it As the instant matter in-
volves solely the surveillance of the Union's solicitation
adjacent to Respondent's property, I am constrained to
recommend that this allegation be dismissed
VII ALLEGED THREAT BY MAZUROSKI TO LOWER
WAGES IF EMPLOYEES VOTED FOR UNION
This allegation is supported solely by the testimony of
Sharon Sorgenti who was employed by Respondent as a
housekeeper She testified that on the day of the elec-
tion—February 25—between 10 30 and 11 00 a m, while
she was cleanmg a room, Mazuroslu stuck her head in
the room and they had a discussion Mazuroski told her
that if the Union won the election (which began at 11
a m), their wages would be dropped to the minimum
wage and that she (Mazuroski) was votmg no for the
Union Mazuroslu also told her that her father had a
hard time with unions Sorgenti later repeated this con-
versation to a couple of her fellow workers Mazuroslu
testified that she spoke to employees about unions, but
"only in terms of generalizations" She referred to
her parents' experience with unions She never spoke
about the instant campaign and never told any employee
that if the Union won the election, their wages would be
reduced to minimum wage She testified that Sorgenti
asked her if there would be a reduction in wages if the
Union won the election She told Sorgenti that if the
Union won the election, the parties would have to bar-
gain and this could result in higher or lower wages and
benefits Respondent and the Union "each would be
trying to cut their own deal that was better for them"
I would credit the testimony of Sorgenti over that of
Mazuroslu, she appeared to be attempting to testify in a
truthful manner even though almost 2 years had passed
since the incident in question had occurred In addition,
as argued by General Counsel in his brief, Sorgenti is not
alleged as a discnnunatee in the complaint and therefore
hag nothing to gain from this proceeding On the other
hand, I found Mazuroslu a less then credible witness, es-
pecially regarding the surveillance allegation discussed,
supra I therefore find that Mazuroski told Sorgenti that
if the Umon won the election, their wages would be re-
duced to minimum wages This is a coercive threat in re-
taliation of employees' union activities in violation of
Section 8(a)(1) of the Act Propellex Corp, 254 NLRB
839 (1981)
VIII ALLEGED RESTRICTION ON MOVEMENTS OF
EMPLOYEES TO LIMIT UNION ACTIVITIES
This allegation is supported solely by the testimony of
Collm Gubanez He was employed by Respondent as a
cook from November 1986 through July He was super-
vised by the executive chef, who was originally Ed
Reagan In about January, Stephen O'Donnell became
the executive chef O'Donnell gave him his work assign-
ments and scheduled his hours, if he wanted time off, he
asked O'Donnell O'Donnell testified, "I was in charge
of all kitchen employees"—which, at the time, was about
10 employees He directly supervised, and had the au-
thority to hire employees He had an office in which he
spent about 30 percent of his time on paperwork, he had
no assistant Clearly, O'Donnell was a supervisor within
the meaning of Section 2(11) of the Act
This allegation involves restrictions placed upon Gu-
banez' movements by O'Donnell on February 25, the
day of the election Gubanez, was a member of the
Union's organizing committee and was one of six em-
ployees whose picture was on a leaflet stating, "We're
Voting Yes, because," which was distributed at the facili-
ty He testified that he worked from 8 am to 4 p m On
February 25, at 9 a m, he left the kitchen to go to the
men's room and the lobby About a half hour later, he
again left the kitchen to purchase cigarettes in the lobby
He testified "As long as it was for a brief time, there
was no problem It was just your own discretion" Short-
ly after he returned to the kitchen, O'Donnell ap-
proached him and said that he had "a problem" with
Gubanez leaving the kitchen and that, in the future, if he
"had reason to leave the kitchen, that I was to speak
with him before I did so" Previously, he had not been
required to inform O'Donnell before leaving the kitchen
Gubanez' assignment that day was to prepare the cold
platters for the buffet, which began at about 11 30 a m,
he was not certain whether another employee was assist-
ing him that day Each day, he had two 15-minute
breaks (one in the morning and one in the afternoon) and
a 30-minute lunch break
O'Donnell (who is no longer employed by Respond-
ent) testified that, at the time, he was short of qualified
staff in the kitchen, which necessitated him spending a
lot of time in the kitchen, performing a lot of regular
duties in addition to closely supervising the employees
He was responsible for being sure that the employees
took their breaks "and I was to know when they were
going on break so that the kitchen would still be cov-
ered" Other than for their breaks, employees never
asked his permission to leave the area "I would not have
granted it" On the day of the election, O'Donnell gave
the kitchen employees a third break so that they would
not have to use one of their breaks to vote, this made
manning the kitchen even tighter "I needed to supervise
the kitchen more closely because I had less people there
to do the work" On that day he learned that Gubanez
had left the kitchen at times other than his break, he
asked Gubanez where he had been and Gubanez said
that he made a telephone call O'Donnell told him that if
had to make and other phone calls, he should either tell
O'Donnell or wait until his next scheduled break to do
so He testified that this was the first time he told Gu-
banez not to leave the kitchen without his prior permis-
sion and that he told him this because "He was supposed
to be working and he wasn't It was my responsibility to
see that he was working and accomplishing his job"
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This allegation is that O'Donnell restncted Gubanez'
movements to prevent him from engaging in union ac-
tivities Supporting this allegation is that Gubanez was
one of six members of the Union's organizing committee
who was featured on the leaflet distributed throughout
the facility and the fact that the restriction occurred on
the morning of the election On the other hand, I found
O'Donnell's testimony to be quite reasonable and very
credible, the kitchen was generally short staffed, but be-
cause they gave the employees an extra break that day to
vote, the shortage was even worse Gubanez, on that
day, was the only employee prepanng the cold buffet,
which had to be ready by 11 30 a m He was absent from
the kitchen on, at least one more time than he was sup-
posed to be (it is not clear from the record whether his
two absences included his morning break and it is not
unreasonable, in this situation, for O'Donnell to tell Gu-
banez that on the next occasion that he had to leave the
kitchen outside of his break to let him know about it be-
forehand It appears to me that if Respondent really
wished to restnct their employees' union activities, they
would have banned extra breaks entirely I therefore rec-
ommend that this allegation be dismissed
IX ALLEGED IMPRESSION OF SURVEILLANCE ON
ELECTION DAY
The election herein was conducted in a room on the
second floor of the facility, to get to the voting area, the
voters took the elevator from the lobby
As will be discussed more fully, infra, approximately 6
weeks before the election, Respondent terminated about
20 employees, although no unfair labor practice charge
was filed in this regard until March 6, Respondent antici-
pated that, at least, some of the individuals would at-
tempt to vote at the election In addition, about a week
after these terminations, Rogers fired another employee
for various reasons, at the time of his termination, he was
"extremely vulgar" to Rogers When she later learned
that he was going to attempt to vote at the election she
became "concerned about him coming back on the prop-
erty" Rogers testified that she spoke to a Board agent
about her fears regarding this former employee and her
desire to restrict access to the upstairs guest area of the
facility to voters or potential voters and he agreed that
Respondent could have a representative present in the
lobby to escort potential voters to the elevator In this
regard, she gave Albam a list of the employees who had
been terminated and instructed him to meet them in the
lobby and allow them to take the elevator to the second
floor voting area
Four employees—Steven Gatchell, Sorgenti, Isabel
Coleman, and Carnce Campbell testified for General
Counsel regarding this allegation They each testified in
a similar way, with one exception Albam was in the
front of the lobby, holding a clipboard with a list at-
tached and when certain potential voters entered the
lobby, he asked them their name and directed them to
the elevator to the second floor Gatchell testified that
when he told Albam his name, Albam crossed his name
from the list he had on the clipboard Sorgenti was still
employed on the date of the election, so she did not have
to check with Albam prior to going to the voting area,
however, she testified that she saw Alb= in the front of
the facility "I saw a clipboard and I seen him checking
off things" Coleman and Campbell had been termmated
in January, they testified that when they told Albam
their names, they observed him writing the word, "Yes"
next to their names Campbell testified that Albani
crossed her name off the list, in addition to writing "yes"
next to her name At this point, he told Coleman and
Campbell to go to the second floor to vote
Albam testified that Rogers had told him to be in the
lobby of the facility on the day of the election to direct
employees to the elevator which they would take to the
second floor to vote He had a list of employees who
were terminated shortly prior to the election, he was to
make sure that they went directly to the elevator when
they entered the facility, at that point, a security guard
directed them to the second floor He greeted each em-
ployee, directed the employee to the elevator and
crossed off some of the names He wrote nothing next to
their names
The uncontradicted evidence establishes that Alban'
greeted the employees in question (the ones who had
been terminated the prior month), took their names (at
least) crossed the names off his list, as the individuals ap-
peared, and directed the employees to the elevator to
take to the second floor Campbell and Coleman also tes-
tified that he wrote the word "yes" next to their names,
Gotcball and Albam testified that he only crossed off the
names, Sorgenti's testimony in this regard is uncertain
Coleman and Campbell, as well as Albam, whom I did
not credit in section VI, supra, all appeared to be fairly
credible witnesses who were attempting, as best they
could, to honestly recollect and recite events that oc-
curred between 1-1/2 to 2 years earlier Albam is still
employed by a related company, The Days Inn Hotel in
Baltimore, Maryland, while Coleman and Campbell are
alleged as discnmmatees in the complaint and stand to
gain if General Counsel predominates in this action With
such a "close call" on credibility, I next look to probabil-
ities for assistance Six weeks earlier, Respondent had
terminated approximately 20 employees in the midst of
the union campaign, it does not require the services of a
labor relations expert to conclude that a large majority
of these individuals, if given an opportunity to vote, -
would vote in favor of the Union With this in mind, I
can see no reason why Alban' would write "yes" next to
the names of the individuals whom he had directed to
the elevator and whose names he had crossed off I
therefore find that Albam simply crossed off the names
of the individuals who appeared at the facility on the
day of the election Respondent had a valid reason for
checking on the individuals as they went upstairs to
vote—the security of the facility When Albam crossed
off the employee's name, the employees could not rea-
sonably assume that their union activities had been
placed under surveillance South Shore Hospital, 229
NLRB 363 (1977) I therefore recommend that this alle-
gation be dismissed 3
3 For the reasons stated above, my determination would be the same
even if Alban' had written "yes" next to the names of some, or all, of the
individuals
DAYS INN MANAGEMENT CO 745
X JANUARY? TERMINATIONS
The complaint next alleges that on or about January 7,
Respondent permanently laid off 18 named employees in
violation of Section 8(a)(1)(3) of the Act Rogers testified
that 22, rather than 18 employees, were terminated at
that time The General Counsel's theory of this allega-
tion is not that Respondent chose the umon activists for
discharge at that time, he admits that in fact, it did not
Rather, the General Counsel alleges, that these termina-
tions "were intended to send a message to the employ-
ees, that the Union could not protect their jobs, that
their livelihood depended entirely on Respondent" Re-
spondent alleges that the terminations were motivated
solely by economic reasons, the hotel's occupancy rate
and average daily rate (ADR) were down, while the
labor cost per occupied room was up
Respondent, in as brief, challenges the General Coun-
sel's theory of this allegation The Board and court cases
clearly support the General Counsel's theory As the
Board stated in Arnoldware, Inc , 129 NLRB 229, 230
(1960)
As Respondent's objective in ,effecting the close-
down was illegal, it is unmatenal that in carrying
out this objective, some of the victims of Respond-
ent's discrimination may not have been union em-
ployees or that Respondent had no knowledge of
their union membership and activities Discrimina-
tion in regard to hire or tenure of employment of a
group of employees, including nonunion employees
of the group or union members not known by the
employer to be union members, tends to discourage
union membership and activities no less than dis-
crimination against known union members alone
All victims of discrimination are in such cases enti-
tled to the same relief under the Act as are known
union members
In Rock Tenn Go, 234 NLRB 823, 825 (1978), the
Board stated
Where a layoff such as here is for the purpose of
discouraging union membership and activities in
general and is not necessarily directed at the activi-
ties of particular individuals, all victims of such a
layoff are entitled to the game treatment and relief
without regard to the extent of the union activities
Webber American, Inc , 194 NLRB 692, 697 (1971)
stated "It is well established that it is not necessary to
show that the employer knew that those he laid off had
signed union authorization cards I agree with the Gener-
al Counsel that a 'show of force' designed to discourage
umon activities is sufficient to violate Section 8(a)(3) of
the Act In Majestic Molded Products v NLRB, 330 F 2d
603 (2d Cir 1964), the Court stated at 606 "A power
display in the form of a mass lay-off, where it is demon-
strated that a significant motive and a desired effect were
to 'discourage membership in any labor organization,'
satisfies the requirements of § 8(a)(3) to the letter even if
some white sheep suffer along with the black" The issue
therefore is whether the General Counsel has established
that a significant motive and a desired effect of the Janu-
ary 7 terminations wag to discourage the employees'
union activity and support
In Wright Line, 251 NLRB 1083 (1980), the Board set
forth the rule to be applied in discrimination cases such
as the instant matter "First, we shall require that the
General Counsel make a prima facie showing sufficient
to support the inference that protected conduct was a
'motivating factor' in the employer's decision Once this
is established, the burden will shift to the employer to
demonstrate that the same action would have taken place
even in the absence of the protected conduct"
Tailoring Wright Line to the instant matter, the initial
question is whether the General Counsel has made a
prima facie showing that the upcoming election, and the
employees' activities on behalf of the Union, was a "mo-
tivating factor" in the January 7 terminations If that is
proven, it is then Respondent's burden to demonstrate
that the same number of employees would have been ter-
minated on January 7 even absent the union organiza-
tional activity at the facility
Without question, the General Counsel has satisfied his
initial burden Timing—the terminations occurred in the
midst of the union campaign about 7 weeks prior to the
election Size—this was the largest termination Respond-
ent ever undertook, representing about 25 percent of its
workforce Suddenness—the employees were given no
warning of the upcoming terminations
The ultimate question therefore is whether Respondent
has satisfied its burden by establishing that these people
would have been terminated on January 7 even absent
the union campaign
By letter dated January 7, Respondent gave (or sent)
the following letter to the affected employees
As you may or may not be aware, we are experi-
encing a period of very low occupancy As is stand-
ard in this industry, In order to maintain a profita-
ble business, it is sometimes necessary to reduce the
workforce on the property
As much as I regret, it is necessary to tell you
that of today's date, you are permanently laid off
due to the low occupancy and lack of work here at
Days Inn Bndgeport Our property forecast showed
that this was a necessity back in the early days of
December Due to the Holiday Season, however, I
refrained from taking these necessary steps as long
as possible At your convenience, would you be so
kind as to bring in any uniforms you may have
I with you the best in any future endeavor you
pursue
The decision as to who would be terminated, and
when, was made solely by Rogers Rogers testified that,
whenever possible, she chose part-timers for these Janu-
ary 7 terminations in order to minimize the impact of the
terminations In addition, she took into consideration se-
niority and discipline difficulties in determining who to
terminate Rogers testified that the terminations were
based solely on economics The facihty was doing
poorly, and even worse than they had projected Al-
though this was evident for a number of months prior to
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
January, she waited until January to effectuate the termi-
nations so they would not occur during the holidays
The percentage of occupancy, pretax income and ADR4
for the facility from its first month of operation (Febru-
ary 1986) through December 1986, follow
1986
Percentage
of
Occupancy
Pre-Tax Loss
(or Income) ADR
February 26 $125,000 $43
March 36 0 42
April 43 0 52
May 53 62,000 48
June 58 23,000 42
July 62 131,000 48
August 65 7,000 49
September 71 56,000 profit 48
October 73 159,000 46
November 62 34,000 46
December 38 96,000 54
During the first 6 days of January, the percentage of
occupancy ranged from 15 percent to 36 percent, the
ADR was about $58 for this penod The percentage of
occupancy for January, February and March was 42 per-
cent, 57 percent, and 56 percent The ADR for these
months were $53, $52, and $52
The evidence establishes that labor costs and mortgage
payments are the two most crucial expense concerns in
the hotel industry Mortgage payments are fixed and
therefore do not concern me, however, Respondent in-
troduced evidence here about its high labor costs prior
to January 7 In 1986, its labor costs per occupied room
ranged from about $12 (in March 1986) to about $36 (in
April) In December 1986, It was about $25, the average
for the year was $19 22 The labor cost per occupied
room for the year 1987 was $15 43, for 1988, it was
$18 91 Labor cost as a percentage of revenue was 36
percent m 1986 and 30 percent in 1987 Respondent in-
troduced evidence of the employees per room ratio at
eight other city hotels Days Inn operates compared to
the facility With the exception of one (the Washington
Days Inn) each of these hotels has between 200 and 300
rooms, The facility has 239 rooms One of these eight
hotels—the Minneapolis Days Inn—had a comparable
employees per room rate, in the other seven, the employ-
ees per room ratio was always higher at the facility The
percentage ranging from a low of 10 to 20 percent
higher to a high of 50 to 60 percent higher
Rogers testified that after the January 7 terminations,
no employees were hired or rehired until early February,
between that time and early March, three housekeepers
who were terminated on January 7 were "brought back"
to employment at the facility In addition, during this
period Respondent hired new employees for the front
desk to replace employees who had left during this
period On March 18, she hired two employees for the
restaurant and on March 26, she hired five "seasonal"
ADR is the average price paid per customer per room for a period
Rates range from rack rate (The full rate you are quoted, when you call
or arrive at the hotel) to low group or corporate rates
employees for housekeeping The General Counsel intro-
duced into evidence a newspaper ad from a local paper
dated March 9, the ad was by Respondent and stated
that it was "now looking to fill the following positions,"
which included almost all job classifications including
utility workers, but did not refer to housekeeping em-
ployees The ad stated that full or part-time positions
were available and people should apply at the facility
Rogers testified that he was away on vacation at the
time this advertisement appeared, the ad was placed by a
new assistant manager, without her authority, for which
she was verbally reprimanded No employee was hired
based upon this ad
The timing of these terminations is, of course, an im-
portant factor here, Respondent commenced operation of
the facility in February 1986 with none of the records of
the Holiday Inn or the Sheraton regardmg percentage of
occupancy, ADR or any employment figures Rogers
testified that in January 1988, Respondent terminated
only about 5 or 6 employees as compared to about 22 in
January 1987 She explains the difference as follows
from February until September 1986, the housekeeping
operation was being run by Guardian Maintenance,
rather than Respondent, when Respondent took over this
operation m September 1986 and hired the housekeeping
employees, many of them were entitled to 4 weeks' vaca-
tions and had to take this time, and did so, prior to the
end of the hear Respondent therefore had no "cushion"
in January 1987 This taught Respondent a lesson and,
the following year, they requested, and were able to con-
vince, a number of the housekeeping employees to delay
their vacations until December, January, or February,
thereby having fewer employees present during this
period, and necessitating fewer terminations
Rogers testified that the principal factors causing the
January 7 termination were the low percentage of occu-
pancy m December (38 percent) plus her forecasts for
the next few months and the upcoming opening of a
Hilton Hotel nearby As regards the Hilton Hotel,
Rogers testified that, in her experience, when a new
hotel opens, they offer special rates to build up their ini-
tial business, although it was possible that in the long
run, the facility would not be hurt by the Hilton (as,
sometimes, new hotels bring additional business to an
area) during its initial period of business the facility
would suffer
In an effort to counter Respondent's evidence that the
terminations were the result of a labor force that was too
high when compared to the facility's percentage of occu-
pancy, the General Counsel adduced testimony from
housekeeping employees to establish that after the termi-
nations, the workload was too much for the remaining
employees Since Respondent commenced operating the
facility, each housekeeper was normally expected to
clean 16 rooms per shift Housekeeper Wanda Mmcy tes-
tified that, after the January 7 terminations, Barbara
Terry, Respondent's assistant housekeeper, asked her if
she wanted to clean extra rooms for $2 a room, she had
never previously made such an offer Additionally, after
these terminations, there was a backlog of laundry to be
done Sorgenti testified that during January, she worked
DAYS INN MANAGEMENT CO 747
overtime, the first and second week, about 8 hours each
week and the third week of the month, about 16 hours 5
Ella Mae Reid also testified that prior to the terminations
sile was never asked to clean extra rooms, after the ter-
minations, there were "a lot of rooms left over dirty
rooms Not enough maids to cover" Rogers asked her
and Ruby Johnson if they wanted to work overtime
cleaning extra rooms, but she never did so Johnson (a
witness called by the General Counsel) testified that
since the facility has been operated by the Holiday Inn,
the housekeeping employees have been allowed to "buy
rooms" for half of their hourly pay rate This practice
has been in effect since Respondent commenced operat-
ing the facility in 1986 Alice Grant, assistant housekeep-
er, who was called as a witness by the General Counsel,
testified that sometime after the terminations, in January
or February, there was a storm in the area and the facili-
ty was full After the storm, there were not enough
housekeeping employees to clean the rooms, so about
100 rooms were placed "out of order" Over the next
month, all these rooms were cleaned and were back in
order Some housekeepers did these rooms as part of
their 16 rooms assigned, others "bought" some of these
rooms and were paid extra for cleaning them Grant did
not work overtime during this period
Barbara Terry, also an assistant housekeeper for Re-
spondent, testified that when Respondent took over
housekeeping from Guardian Maintenance she was the
executive housekeeper, in that position, she assisted,
when necessary, in making beds or doing laundry In
December 1986, the departments was "not very busy", in
January and February, the department was slow Some-
time in January, a storm resulted in a full house which
caused some rooms to be put "out of commission", al-
though she could not recollect how many rooms were
involved, it took about a week to clean them and make
them available Respondent introduced into evidence its
payroll records from January 7 through February 25,
these records establish that during this 8-week period,
there were 47 instances of housekeeping employees
working in excess of 40 hours for any of these weeks
This overtime totalled 113 hours over these 8 weeks, for
an average of 2-1/2 hours per instance These records
also establish that the number of full-time housekeepers
(excluding Barbara Terry, the executive housekeeper)
who actually worked during this 8-week penod ranged
from 14 (the week of January 7) to 17 (the week of Feb-
ruary 18, the average number of hours worked by these
full-time housekeepers (again, who actually worked) for
this 8-week period beginning January 7 and concluding
on February 25 is as follows 30, 35, 34, 36, 40, 40, 38,
and 38
Gotchall testified that on January 7, he was told to go
to Rogers' office and she told him that he was going to
be laid off She said that because of the Hilton Hotel
which would soon open nearby, Respondent was going
to lay off employees He asked her whether any of the
6 Respondent's payroll records for the 8 week period from January 7
through February 25 state that the average number of hours worked by
Sorgenti, per week, during this period was 25, she worked a total of 10
hours overtime during this 8-week period
employees would be recalled and Rogers said no, that it
was a permanent layoff 6 Gotchall asked for a layoff slip
and Rogers said that they do not give layoff slips Over
the next 2 months, Gotchall called Rogers and asked if
any positions were available, and, each time, she said
that none were available
Two additional issues should be mentioned Counsel
for Respondent, in his opening statement, refers to the
Tax Reform Act of 1986 (which he states took effect on
January 1) as one of Respondent's defenses, and had a
member of a noted accounting firm testify in support of
this defense Basically, prior to the enactment of this stat-
ute, individuals invested in hotels as tax shelters because
they could write off any losses the hotel incurred
(which, according to counsel for Respondent, is not un-
usual) against other income they had Counsel stated that
the Tax Reform Act of 1986 prohibited this and "encour-
aged every owner of real estate to start investing and
managing those businesses for a net profit because every
owner lost the tax advantages that they heretofore had
" I reject this defense, it appears to me that Re-
spondent (or any other employer) attempts to operate his
business in the most efficient manner possible whether or
not he can deduct losses It appears highly unlikely to
me that in deciding whether to terminate almost 25 per-
cent of its work force, Respondent considered the fact
that if they kept these individuals in their employ, they
would no longer be allowed to deduct these losses from
other earnings Counsel for Respondent, also in his open-
ing statement, denounced the General Counsel's allega-
tion of union anunus on the part of Respondent as "the
silliest argument in the world" alleging that whether the
facility "was union or non-union doesn't matter" Coun-
sel argued further that Respondent has umomzed hotels
around the country, and that if Respondent wanted to
have a nonunion operation in February 1986, when it
commenced operations at the hotel after a 3-month
hiatus, why would it hire an overwhelming majority of
the employees who had been employed at the facility by
Sheraton" To counteract this argument, the General
Counsel called Daniel Wolfe, who was one of the
owners of the facility when the facility was operated as
the Sheraton Hotel and Henry Tamann, secretary-treas-
urer of the Union Their uncontradicted and credible'
testimony establishes that m January or February 1985
(at a time when Wolfe and his partner were operating
and actively attempting to sell the facility) Wolfe was
contacted by representatives of Respondent who asked,
inter aim, what he thought of disenfranchising the Union
and "aborting" the union contract Wolfe contacted Ta-
mann, on their behalf, and Tamann then met with these
6 There was some testimony regarding Respondent's practice of only
utilizing permanent terminations, rather than layoffs to effect payroll re-
ductions, even if some of the employees who were "permanently termi-
nated" are returned to employment a month or two later, as happened in
the Instant matter The alleged reason for this procedure is that It is
cheaper for Respondent than to layoff employees and then, possibly, to
reinstate them I find It unnecessary to make a credibility regarding this
issue as I believe it has no bearing on this 8(a)(3) allegation
7 Although Wolfe often rambled on in his testimony and was often
hostile-to questions from counsel for Respondent, he was clearly a credi-
ble witness with nothing to gain from this proceeding
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representatives of Respondent, who told Tamarm that
they would not purchase the facility unless they could
work out a contract with the Union in advance They8
gave Tamann the draft of a proposed agreement they
had prepared dated February 21, 1985 After studying
the proposed 5-year agreement, Tamann told them that
It was totally unacceptable regarding wages, working
conditions, and job security, to name a few areas He
said that the Umon recognized the hotels financial diffi-
culty and was willing to make some modifications in the
agreement, "but that m my view what they were doing
is not just taking off some of the fat, but stripping away
the skeleton and that the union could not agree to that
kind of an agreement" The representatives of Respond-
ent indicated that without changes along the line of those
presented in the draft agreement, they would not be in-
terested in the property That was the extent of their dis-
cussions and Respondent did not purchase the property
at that time
There was also testimony by Andrew DiPietro Jr, a
partner in a law firm, who was counsel to Friend &
Wolfe, the operator of the Sheraton, in the chapter XI
bankruptcy proceeding He testified that in an attempt to
locate a purchaser for the facility to negotiate a plan of
reorganization under chapter XI, he met with an attor-
ney for Respondent in February 1985 in New York City
The attorney expressed concern about the cost of the
agreement that Sheraton had with the Union, DiPietro
told him that since it was a postpetition contract, it was
not subject to the automatic stay of chapter XI, and
would have to be dealt with On February 24, 1985, the
attorney for Respondent called him and told him that the
"package" for the property (including the purchase
price—$1 1 million—and all the other items including
labor costs) was too costly and that Respondent would
not purchase the facility
On October 31, 1985, Friend & Wolfe deeded the fa-
cility to an assignee of Payne Bridgeport Associates, Re-
spondent assumed control of the facility on the same
day, initially through an ownership interest and subse-
quently as the management company The facility was
closed that same day and reopened on February 10,
1986
On the basis of all the evidence, I find that Respond-
ent has sustained its burden under Wright Line that it
would have terminated the employees on January 7 even
absent the umon activity and campaign Foremost among
my reasons for this finding is the scarcity of unfair labor
practices during this period (only one minor violation),
the lack of substantial evidence of animus by Respond-
ent, and the fact that I found Rogers to be a direct and
credible witness Also supporting this determination is
that business at the facility was pretty bad, percentage of
occupancy and the ADR were low while payroll per-
centage was high Although the timing and the size of
the January 7 termination are suspect, coming about 6
weeks before the election and comprising about 20 to 25
percent of the unit, this is satisfactorily answered by the
fact that for the following 8 weeks, Respondent's house-
° At this time, counsel for Respondent was not yet representing Re-
spondent Their representation commenced in about August 1986
keeping department was able to operate with little over-
time and an average work week for the housekeeping de-
partment employees of about 36 hours, and this, appar-
ently, includes the hours necessary to restore the 100
"out of order" rooms This, therefore, is not a situation
of an employer attempting to conceal an unlawful termi-
nation by overworking its existing employees Another
explanation for the suddenness and size of the January 7
termination is that this was Respondent's first year of op-
eration at the facility and has no records or prior history
to guide it in estimating the amount of business it would
do Additionally, the opening of the Hilton Hotel,
nearby, had to hurt Respondent's business in the short
run
Not that this issue is totally free from doubt, although
counsel for Respondent strenuously made the point in his
opening statement that, in this area, unions are not a
factor in the hotel business, the uncontradicted and cred-
ible evidence establishes that in February 1985, Respond-
ent did not purchase the facility because of the existing
contract and, instead, took over the facility after foreclo-
sure and reopened the facility 4 months later without the
Union However, this is not enough to overcome the evi-
dence recited above I therefore find that Respondent
has sustained its burden under Wright Line, and recom-
mend that this allegation be dismissed
XI THE OBJECTIONS TO THE ELECTION
There are five objections 2, 4, 5, 9, and 10 I have al-
ready recommended that the 8(a)(3) allegation regarding
the January 7 terminations be dismissed Objection 2 is
the corresponding objection and I therefore recommend
that it be overruled Objection 4 appears to correspond
to the allegation discussed, supra, in section IX that Sal
Abam, not Sue Albam, as the objections state, created an
impression among the employees that their union activi-
ties were under surveillance, by maintaining a list of po-
tential "yes" voters, on the day of the election I recom-
mended that this allegation be overruled as well Addi-
tionally, on the day of the election, Albam was in the
lobby of the facility while the election was conducted
one floor up As no additional evidence was adduced to
support this objection, I therefore recommend that it be
overruled I have also recommended that the corre-
sponding unfair labor practice to Objection 5 (as dis-
cussed, supra, VI) be dismissed and I would likewise rec-
ommend that this objection be overruled I have also
recommended (in sec VII) that the allegation that
O'Donnell restricted the movements of Gubanez in order
to prevent him from engaging in union activities, ui vio-
lation of Section 8(a)(1) of the Act, be dismissed Objec-
tion 9 appears to correspond to that allegation, as no fur-
ther evidence was adduced regarding this objection, I
recommend that it be overruled The unfair labor prac-
tice allegation that I did find (as discussed, supra, in sec
VII) was supported by the evidence was that, on the day
of the election, Mazuroslu told Sorgenti that if the Umon
won the election, their wages would be dropped to the
minimum wage, in violation of Section 8(a)(1) of the
Act However, Objection 10 alleges that, on the day of
the election, supervisors, including Mazuroski, made
DAYS INN MANAGEMENT CO 749
"misleading and threatening statements that they
could not vote in the election" No evidence was ad-
duced to support this objection and I would therefore
recommend that it be overruled
It should be noted that even if Mazuroskes threats to
Sorgenti had been alleged as an objection, I would have
recommended that the election not be set aside simply on
that basis It is not every objection, no matter how slight
or isolated, that will serve to set aside an election In
Super Thrift Markets, 233 NLRB 409 (1977), the Board
stated
Our normal policy is to direct a new election when-
ever as unfair labor practice occurs during the criti-
cal period since "Monduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with
the exercise of a free and untrammeled choice in an
election" The only recognized exception to this
policy is where the violations are such that it is vir-
tually impossible to conclude that they could have
affected the results of the election This determma-
tion is based, inter aha, on the number of violations,
their seventy, the extent of dissemination, the size
of the unit, and other relevant factors [Citations
omitted ]
In Caron International, 246 NLRB 1120 (1979), the
Board stated "In resolving the question of whether cer-
tain employer misconduct is de minims with respect to
affecting the results of an election, the Board takes into
consideration the number of violations, their seventy, the
extent of dissemination, the size of the unit and other rel-
evant factors" See also Essex International, 216 NLRB
831 (1975) The instant situation involves a single viola-
tion made to one employee Sorgenti informed a couple
of her coworkers about the threat, as it occurred about
the time the election began, it could not have had much
effect In addition, it is not considered one of the more
severe type violations, it was made by a low-level super-
visor and was the only violation found in a unit of about
80 employees I therefore find that it is not sufficient to
set aside the resorts of the February 25 election
XII THE APPROPRIATE UNIT AND THE UNION'S
MAJORITY STATUS
In a Decision and Direction of Election dated January
29, the Regional Director found the following to consti-
tute an appropriate unit for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act
All full-time and regular part-time service and main-
tenance employees employed by the Employer at its
815 Lafayette Boulevard, Bndgeport, Connecticut
location, including food and beverage employees,
banquet employees, front desk employees, mainte-
nance employees, housemen, housekeeping and
laundry employees, but excluding management
trainees, purchasing agents, security guards, sales
personnel, office clerical employees, confidential
employees, and guards, professional employees and
supervisors as defined in the Act
As Respondent has failed to raise any newly discov-
ered, or previously unavailable evidence, this finding
cannot be rehtigated and I therefore find that this is an
appropriate unit
Received into evidence were 57 union authorization
cards executed by mdividuals employed at the facility
and authenticated by witnesses, in addition, the General
Counsel introduced W-4 forms executed by six employ-
ees of Respondent together with the union authorization
cards executed by these employees, with a request that I
check the authenticity of these cards There are a
number of factors complicating the determination of
whether the Union represented a majority of Respond-
ent's employees in the unit described above on Decem-
ber 17, 1986, the date that recognition was requested by
the Union and refused by Rogers For one thing, a
number of the union authorization cards were executed
by employees who, at the time, were employed at the
restaurant at the facility which, at the time, was operated
by Lacan Restaurant Corporation, shortly thereafter, Re-
spondent assumed operation of the restaurant at the facil-
ity and these employees became employed by Respond-
ent In this regard, Administrative Law Judge Hubert
Lott issued a decision dated August 22, 1988 (dismissing
a Sec 8(a)(3) allegation), in which he found that Lacan
Restaurant Corporation and Respondent were a single in-
tegrated business enterprise Also complicating the deter-
mination of the Union's majority status on December 17
is that Respondent was not able to locate its payroll
records for that particular week However, I find it un-
necessary to make this determination in the instant
matter In NLRB v Gissel Packing Co, 395 U S 575, 614
(1969), the Supreme Court stated that a bargaining order
is appropriate where the umon had majonty status and
the employer engaged in such serious, widespread and
pervasive unfair labor practices as to warrant a finding
that "the possibility of erasing the effects of past prac-
tices and of ensuring a fair election (or fair rerun) by the
use of traditional remedies, though present, is slight and
that employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order" In addition, prior to the issuance of a bargaining
order where there has been an election where the union
failed to have a majority of the votes cast in its favor,
the union must have filed meritorious objections to the
election which resulted in the election being set aside
The General Counsel and the Union fall short in two of
these items required for a bargaining order As stated,
supra m section XI, I overruled the objections finding
the evidence insufficient to set aside the election con-
ducted on February 25 In addition, the sole unfair labor
practice found herein was the statement by Mazuroslu to
Sorgenti on the morning of the election, that if the
Union won the election, employees' wages would go to
the minimum wage Considering Mazuroskes position,
the nature of the statement, and that it was made to only
one employee, there is no question in my mind that this
statement by Mazuroski is insufficient to support a bar-
gaining order under Gissel I therefore find it unneces-
sary to determine if the Union had cards from a majonty
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the employees in the above-described unit on Decem-
ber 17, 1986
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 Respondent violated Section 8(a)(1) of the Act by
threatening an employee that if the Union won the elec-
tion, their wages would be reduced to the minimum
wage
4 Respondent did not further violated the Act as al-
leged in the amended complaint
5 Having found that the Union's objections have no
merit, it is recommended that they be overruled and that
the Board issue a Certification of Results of Election cer-
tifying that the Union failed to receive a majority of the
valid votes counted at the election conducted on Febru-
ary 25, 1987
THE REMEDY
Having found that Respondent has engaged in the
unfair labor practice set forth above, I shall recommend
that it be required to cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act
[Recommended Order omitted from publication ]