Griffin Inns

National Labor Relations Board - Board Decisions

Apr 22, 1977

229 N.L.R.B. 199 (N.L.R.B. 1977)

GRIFFIN INNS
Griffin Inns, Owner and Operator of Sheraton Motor
Inn (Woodhaven, Michigan) and Local No. 24,
Hotel, Motel, Restaurant Employees, Cooks and
Bartenders Union, AFL-CIO. Case 7-CA-12254
April 22, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On July 16, 1976, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, the Charging Party, the
Union in this proceeding, filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order, as modified herein.
The Administrative Law Judge dismissed the
refusal-to-bargain allegation of the complaint. The
Union contends that in November 1975 Respondent
conditioned collective bargaining on the Union's
dropping unfair labor practice charges against it, and
that this conduct constituted a refusal to bargain. We
agree.
The Administrative Law Judge found that, at a
meeting between Respondent and union representa-
tives on November 3, 1975, Respondent's representa-
tive, Gehl, told Union Negotiator Panos, "If you
I The Administrative Law Judge, discrediting Union Negotiator Panos,
found that Respondent's manager, Rogula, did not put off bargaining with
Panos by telling him to await the outcome of a decertification petition filed
with the Board. No exceptions were filed to this finding and we adopt itpro
forma. We do not agree, however, with the Administrative Law Judge's
alternative theory that, even if Panos were credited, no violation could be
found in Rogula's statement. Sec. II, C, 3, par. 3. In view of our pro forma
adoption of the principal finding, the Administrative Law Judge's alterna-
tive holding is gratuitous.
2 Star Manufacturing Company, Division of Star Forge, Inc., 220 NLRB
582, 587 (1975).
3 Our dissenting colleague's view of both the facts of this case and of the
relevant law is askew. In the first place, the complaint alleges, inter alia, that
Respondent violated Sec. 8(aX5) of the Act both by assisting employees in
the preparation and circulation of a decertification petition and by its
overall failure and refusal to bargain with the Union on and after August 5,
1975. As recounted by the Administrative Law Judge, Union Representative
Panos testified, without contradiction, that on November 3, 1975, Respon-
dent expressly conditioned negotiations on the Union's withdrawal of unfair
labor practice charges. It cannot be doubted that the then pending charges
were a matter of concern to Respondent. In fact, the Administrative Law
Judge found a violation of Sec. 8(aXI) of the Act predicated on
Respondent's earlier threat directed to the employee who had initiated the
charges. Thereafter, although our colleague intimates otherwise, Respon-
dent failed to respond to Panos' requests for a meeting.
We are puzzled by our colleague's reading of the record in this case.
Clearly. Respondent was on notice that its course of dealings with the Union
229 NLRB No. 26
drop those charges, we'll start to negotiate," and that
Panos refused.
This was Panos' uncontradicted testimony. Re-
spondent does not deny Panos' account. General
Manager Rogula, who was present at the November
3 meeting, testified only that he could not remember
any discussion to that effect. Respondent did not call
Gehl to refute Panos' testimony. Accordingly, we see
no reason to reject it.
The Administrative Law Judge, in finding that
Respondent had not refused to bargain with the
Union, failed to consider Panos' unrefuted testimo-
ny. When considered together with Manager Rogu-
la's own testimony that Panos called him thereafter
to set up negotiations, we conclude that Respon-
dent's conditioning bargaining on withdrawal of the
unfair labor practice charges constituted an unlawful
refusal to bargain. The Board has held that an
employer may not lawfully condition negotiations on
a waiver of unfair labor practice charges.2
As the Union represented a majority of Respon-
dent's employees in an appropriate unit and, having
found that Respondent refused to bargain collective-
ly with the Union, we will order that Respondent
bargain with the Union upon request.3
ADDITIONAL CONCLUSION OF LAW
Insert the following as Conclusion of Law 3 and
renumber the remaining Conclusions of Law:
"3. By refusing to bargain with the Union on and
after November 3, 1975, Respondent engaged in
unfair labor practices within the meaning of Section
8(aX5) and (1) of the Act."
on and after August 5 was in issue and might give rise to the finding of a
violation of its duty to bargain. As our colleague concedes, General
Manager Rogula, who was present at the critical November 3 meeting, was
cross-examined concerning Panos' direct testimony as to what took place at
that meeting. Although our colleague apparently labors under the miscon-
ception that Rogula controverted Panos' testimony, the record is otherwise.
Thus when Rogula was asked whether he recalled any discussion during the
November 3 meeting about resumption of bargaining in exchange for
withdrawal of charges, he responded: "Well, there possibly could have been
but I can't recall what it was pertaining to." Thereafter, as noted above,
Respondent also failed to call Gehl to deny Panos' testimony concerning the
November 3 session. Hence. Panos' testimony with respect to this incident
stands unrebutted on the record.
In the circumstances of this case, our colleague's forebodings seem
unwarranted. The question of Respondent's conduct at the November 3
meeting was fully litigated as part and parcel of the examination into
Respondent's alleged refusal to bargain. In our view, our colleague cannot
successfully maintain either that such conduct is not intimately related to
the subject matter of the complaint, or that Respondent lacked ample
opportunity to rebut any and all adverse testimony arising at the hearing.
Accordingly, and although our colleague would have it otherwise, this
Respondent's failure to rebut Panos' damaging testimony concerning the
November 3 meeting raises no due-process issue. In these circumstances and
in conformity with well-established precedent, we are fully warranted in
finding and remedying Respondent's unlawful conduct. See, in this regard,
Crown Zellerbach Corporation, 225 NLRB 911 (1976), and cases cited
therein.
199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Griffin Inns, Owner and Operator of Sheraton
Motor Inn (Woodhaven, Michigan), its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph l(e) of the
Administrative Law Judge's recommended Order
and reletter the subsequent paragraph accordingly:
"(e) Refusing to bargain with Local No. 24, Hotel,
Motel, Restaurant Employees, Cooks and Bartenders
Union, AFL-CIO, as the exclusive representative of
the employees in the following appropriate unit:
"All employees employed by Respondent at its
facility located at 21700 West Road, Woodhaven,
Michigan, but excluding guards and supervisors
as defined in the Act."
2. Insert the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Upon request, bargain with Local No. 24,
Hotel, Motel, Restaurant Employees, Cooks and
Bartenders Union, AFL-CIO, as the exclusive
representative of its employees in the unit found
appropriate and embody any understanding reached
in a signed agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER WALTHER, dissenting in part:
I would affirm the Administrative Law Judge's
dismissal of the 8(a)(5) allegation. The General
Counsel based his case on his complaint allegation
that Respondent assisted in the preparation and
circulation of a decertification petition. The Admin-
istrative Law Judge found that the evidence did not
establish that allegation and dismissed it. The
majority affirms that dismissal.
The majority finds, however, on the basis of Union
Negotiator Panos' testimony, which the Administra-
tive Law Judge discredited in other respects, that
Respondent hinged negotiations on the Union's
dropping its unfair labor practice charges filed with
the Board. Whatever was said in Panos' questionable
account, there was no reason for Respondent to
attempt to discredit that testimony since there was no
allegation or theory of violation being put forward
related thereto. Further, the record clearly shows that
Respondent did not refuse to meet with the Union
for the purpose of negotiation.
The Union had been the collective-bargaining
representative of Respondent's employees since June
1971 and had executed a collective-bargaining
agreement with Respondent which had a July 1975
termination date. As found by the Administrative
Law Judge, negotiations looking toward a new
agreement began in early spring and continued
through July. Whether the parties met again in
August or September is unclear. They did meet on
November 3 for contract negotiations and Respon-
dent's representatives maintained a willingness to
bargain toward a contract. It was at this meeting that
the assertedly unlawful statement by Respondent's
representative was made.
After November 3, Respondent's attorney called
Panos to set a meeting date, but Panos told him that
he could not meet because of the deer hunting
season. Panos testified that he told the attorney that
he would call him after the deer season. Panos,
however, did not carry through on that. After the
deer season, he called Respondent's general manag-
er, Rogula, but no meeting was arranged. Rogula
advised Panos to call his attorney, but Panos did not.
The Administrative Law Judge found that there
had been no contact between the parties since
December 1975. He further found that Panos did not
press Respondent for meetings; that the calls he
made were to Rogula rather than to the attorney,
whom he knew to be primarily involved in negotia-
tions; and that Panos delayed one meeting for his
personal convenience. On the facts as found by the
Administrative Law Judge, I would not find that
Respondent refused to meet or to bargain in
violation of the Act.
My colleagues seem to have found their facts in the
proverbial "Looking Glass." First, the complaint
does not allege a violation of Section 8(a)(5) in an
"overall" failure and refusal to bargain with the
Union. The complaint, by paragraph 15, alleged an
8(a)(5) violation "by the acts described above in
paragraph 12 and its subparagraphs, and by each of
said acts, Respondent did refuse . . . ." Paragraph
12 of said complaint states that since August 5, 1975,
Respondent has refused to bargain with the Charging
Union by the following acts and conduct; specifical-
ly by: (a) assisting its employees in preparing and
circulating a decertification petition, and (b) "[a]t all
times since the filing of the petition referred to in
subparagraph (a) above, and by virtue of same
[emphasis supplied], Respondent has failed and
refused . . ." There are no other 8(aX)(5) allegations
in the complaint.
Second, my colleagues themselves seem to suffer
from myopia, inasmuch as their reliance on Panos'
testimony must assume its credibility. However, the
fact is that the Administrative Law Judge did not
200
GRIFFIN INNS
credit Panos' testimony. Furthermore, the record
establishes that Respondent's witness denied that
Respondent conditioned bargaining upon the with-
drawal of the charges.
Third, my colleagues supply no rationale for their
apparent assertion that Respondent's violation of
Section 8(a)(1), by its threat to the employee who
supplied an affidavit in support of the Union's
charges, aids their finding that Respondent refused
to meet with Panos.
Fourth, the Board has always followed the Federal
theory of notice pleading, and I agree that Respon-
dent was on notice that it was alleged to have
violated Section 8(a)(5) as alleged in the complaint.
However, the complaint specifically alleges that
Respondent refused to bargain with the Union by
virtue of its initiation of the decertification petition-
it does not allege that Respondent refused to bargain
because of the pending unfair labor practice charges.
A further reading of the record, which my colleagues
might find instructive, reveals that the majority's idea
of "fully litigated" in this case consists of no more
than a one-time response by Panos to a General
Counsel's question in passing on direct examination
concerning what was discussed at the November 3
bargaining session. (I must assume, from the context,
that my colleagues concede that the parties did
meet?!) In response to the General Counsel's
question on cross-examination, Respondent's witness
denied that such was the case. That was the extent of
any litigation of this issue.
Notice, as contemplated by the doctrine of due
process, seems to me to require a more formal
assertion by the prosecutor of the defendant's
wrongdoing. The General Counsel has made no such
claim prior to the close of the hearing in this case.
Accordingly, to the extent that the majority predi-
cates a violation of Section 8(a)(5) upon this
uncredited part of Panos' testimony I believe the
majority has violated the Administrative Procedure
Act and the precepts of due process. As stated by the
court in Rodale Press, Inc. v. Federal Trade Commis-
sion, 407 F.2d 1252, 1256 (C.A.D.C., 1968):
The Administrative Procedure Act, in 5 U.S.C.
§554(b) (1964) provides in pertinent part: "Per-
sons entitled to notice of an agency hearing shall
be timely informed of . . . (3) the matters offact
and law asserted." ... Hence it is well settled that
an agency may not change theories in midstream
without giving respondents reasonable notice of
the change. N.LR.B. v. Johnson, 322 F.2d 216,
219-200 (C.A. 6, 1963); N.L.R.B. v. H. E. Fletcher
Co., 298 F.2d 594 (C.A. 1, 1962). [Emphasis in the
original.]
Accordingly, I believe that this case must be decided
on the basis of the theory upon which it was litigated,
unless and until Respondent is given notice of the
majority's theory and an opportunity to present
relevant evidence thereto and argue its merits.
Otherwise, to all those charged before this Agency,
beware! For, until you read the Board's decision, you
may never know of what it is that you have been
accused!
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with dis-
charge or other reprisals, or promise them
benefits in order to discourage union activity,
membership, and support.
WE WILL NOT encourage our employees to sign
petitions to decertify the Union.
WE WILL NOT discourage membership in or
activities on behalf of Local No. 24, Hotel, Motel,
Restaurant Employees, Cooks and Bartenders
Union, AFL-CIO, or any other labor organiza-
tion, by discharging or otherwise discriminating
against employees in any manner with regard to
their rates of pay, wages, hours of employment,
hire, tenure of employment, or any terms or
conditions of employment.
WE WILL NOT refuse to bargain collectively with
the above-named Union, as the exclusive repre-
sentative of the employees in the unit herein
found to be appropriate. The appropriate unit is:
All employees employed by us at our facility
located at 21700 West Road, Woodhaven,
Michigan, excluding guards and supervisors
as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form
labor organizations, 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 activity.
WE WILL offer Donna Ball immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent posi-
tion, without loss of seniority or other rights or
privileges, and WE WILL make her whole for any
201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loss of earnings she may have suffered by reason
of the discrimination against her, with interest
thereon at 6 percent per annum.
WE WILL, upon request, bargain with Local No.
24, Hotel, Motel, Restaurant Employees, Cooks
and Bartenders Union, AFL-CIO, as the exclu-
sive representative of our employees in the
appropriate unit described above and embody
any understanding reached in a signed agreement.
GRIFFIN INNS, OWNER
AND OPERATOR OF
SHERATON MOTOR INN
(WOODHAVEN MICHIGAN)
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
case was heard in Detroit, Michigan, on March 29, 30, and
31, 1976, based upon a charge by Local No. 24, Hotel,
Motel, Restaurant Employees, Cooks and Bartenders
Union, AFL-CIO, herein the Union, filed on August 14,
and amended on September 9 and October 3, 1975 (all
dates hereinafter are 1975 unless otherwise specified). The
original complaint was issued by the Regional Director for
Region 7 of the National Labor Relations Board on
September 30 and was amended on October 16. The
complaint, as amended, alleges that Griffin Inns, Owner
and Operator of Sheraton Motor Inn (Woodhaven,
Michigan), herein Respondent, has violated Section
8(a)(1), (3), and (5) of the Act by threats and promises of
benefits to discourage continued union affiliation, assis-
tance in the preparation and circulation of a decertification
petition, the discharge of an employee because of her union
activities and support, and its refusal to bargain with the
Union. Respondent's timely filed answer denies the
substantive allegations of the complaint.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-
examine witnesses. Briefs, which have been carefully
considered, were filed by the General Counsel and
Respondent.
Upon the entire record, including my careful observation
of the witnesses and their demeanor, I make the following:
I The certification ran to the Detroit Local Joint Executive Board, Hotel
& Restaurant Employees and Bartenders International Union, AFL-CIO.
The contract was executed by Respondent and that organization on behalf
of various locals representing different classifications of employees within
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE RESPONDENT'S BUSINESS AND THE UNION'S
LABOR OROANIZATION STATUS
Respondent is a Minnesota corporation engaged in
Woodhaven, Michigan, in the operation of a motel and
restaurant. Jurisdiction is not in issue. Based upon the
admitted allegations of the complaint I find and conclude
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
I find and conclude that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Background
In June 1971, pursuant to an election conducted by the
Michigan Employment Relations Commission, the Union
was certified to represent Respondent's employees. The
parties entered into a collective-bargaining agreement,
effective July 1, 1972, through July 1, 1975.1 The admitted-
ly appropriate unit was:
All employees employed by the Employer at its facility
located at 21700 West Road, Woodhaven, Michigan,
but excluding guards and supervisors as defined in the
Act.
While the certification specifically included "Front Office
employees" and the initial contract provided a wage rate
for clerks and clerk trainees, the parties did not consider
the front desk clerks to be within the Union's jurisdiction
during the term of that contract.
Prior to the advent of the Union, Respondent had
provided its employees with health insurance coverage,
pursuant to a contract with Blue Cross/Blue Shield. The
Union maintained a separate health and welfare program
and the 1972-75 collective-bargaining agreement permitted
Respondent to discontinue Blue Cross/Blue Shield cover-
age for employees coming under the union plan, which
Respondent did.
According to the undisputed testimony of Michael
Rogula, Respondent's general manager (and former own-
er), between 1972 and 1974 contacts between management
and the Union were few. No grievances were brought to
the attention of management.
B. Relevant Current Facts
While it is not altogether clear from the record, it appears
that negotiations toward a new collective-bargaining
agreement opened about March or April. The Union
sought, and Respondent agreed to, the inclusion of the
the industry. At the outset of the current negotiations, the Union requested
that the contract be amended to reflect a name change to that shown on the
caption herein.
202
GRIFFIN INNS
front desk clerks within the bargaining unit. This was
apparently implemented immediately. Also included in the
Union's proposals was a request for the resumption of
health coverage under Blue Cross/Blue Shield.2 Rogula
contacted a representative of the insurance company and,
at that representative's request, delegated to Kay Roshnow,
the banquet manager (and wife of George Roshnow, the
food and beverage manager), the task of determining how
many employees would require coverage under the Union's
proposal. Kay Roshnow surveyed the employees. 3
According to Donna Ball, a cook (and the alleged
discriminatee herein), Kay Roshnow approached her in
late March and asked her whether she or her husband had
Blue Cross. Ball replied that she would want coverage. Kay
Roshnow then stated:
Well, we're not getting Blue Cross right now, ... but
possibly if we vote out the union we might be getting
Blue Cross back.... Somebody will be coming
around with a - a paper, and if you signed the paper,
that meant you wanted to vote on - to vote to keep the
union in or out.
At this time, Ball had heard that Respondent and the
Union were in negotiations and she understood from Kay
Roshnow that Blue Cross insurance was a union demand.4
Sometime during April, according to the testimony of
Linda Ehrlich, a waitress (subsequently laid off and not
presently employed by Respondent), a conversation she
had with Rogula drifted onto the subject of the Union.
Ehrlich testified that Rogula told her "that there was a
chance we could get our Blue Cross back if we didn't have
the union, but he said he wasn't promising, but there was a
chance." Rogula denied making the foregoing statement to
Ehrlich. He claimed that there were occasions when
employees asked him about resumption of the Blue Cross
coverage, at which times, he claimed, he referred them to
their union representatives. Relying on their comparative
demeanors, and noting particularly that the statement
attributed to Rogula by Ehrlich is consistent with other
statements attributed to him and other management
representatives, I credit Ehrlich.
About April 13, James Fetzer, union business representa-
tive, met with 12 of Respondent's employees. Discussions
with these employees gave him evidence of violations of the
collective-bargaining agreement. He prepared a "blanket
grievance" concerning these alleged violations in the form
of a letter dated April 17, and sent it to Respondent's
management in Minneapolis, Minnesota. He did not give it
2 The Union's written proposal contained the following:
HEALTH AND WELFARE - Cover all employees who work three (3) days
per week or more (and are not covered as a dependent on a comparable
group plan, fully paid for by another employer) with individual
coverage of group Comprehensive Blue Cross with "D-45 rider and
Blue Shield MVF-I without any cost to the employees."
The record does not establish when Respondent received this proposal.
However, the proposal concludes with the inscnption in lower case, in the
bottom left-hand corner of the last page "mh opeiu 10 afl-cio 62675" from
which I infer that it was not typed until June 26. 1975.
1 The record reflects that Kay Roshnow interviewed and hired employ-
ees and responsibly directed their work. Based upon this evidence and her
relationship to George Roshnow, I conclude that she was a supervisor and
agent within the Act's intendment.
to either Rogula or Roshnow. Rogula, however, became
aware of the grievance sometime within the month of
April. The letter listed 11 items whereby named employees
were receiving less money per hour or fewer hours than
that to which they were entitled by contract. Included in
these items were:
3. Donna Ball, cook, scheduled for 9-1/2 hours
every Friday and Saturday and not getting overtime
pay after 8 hours.5
4. Donna Ball, cook, has been scheduled for three
days a week since last July. The contract calls for her to
be paid at the rate of $4.50 per hour as an extra rather
than the $4.00 per hour rate of a steady. 6
At this same meeting, Donna Ball was elected union
steward, a position previously unfilled at Respondent's
place of business. Neither the Union nor Ball notified
Respondent of Ball's new role. Ball never functioned as a
steward; she participated in neither grievance meetings nor
negotiations. Rogula denied that he ever learned that she
had become a union steward. George Roshnow 7 acknowl-
edged that he had heard that Ball was elected steward. He
testified that he greeted the news with incredulity because
of Ball's prior lack of interest in the Union.
Prior to May, Ball had been scheduled to work from
approximately 2 to 10 p.m. on Thursdays and 2 to I I p.m.
on Fridays and Saturdays. She testified that in late April,
around 2 weeks after the union meeting, Mr. Roshnow
came to her as she was working and told her:
Donna, I can't afford to pay anybody time and a half
and I'm going to have to cut your hours from nine and
a half hours a day to eight ...
She protested that it would be difficult to complete her
work with short hours and Roshnow allegedly replied:
Well, the only way you could get your hours back
would be to get rid of the union . . . I can't afford to
pay anybody time and a half.
Roshnow admitted that after he learned of Ball's entitle-
ment to overtime after 8 hours per day he changed her
work schedule so that on Fridays and Saturdays, rather
than coming in at 2 p.m. she would start at 3 p.m. He
I Kay Roshnow, no longer employed by Respondent, was not called to
rebut Ball's credibly tendered testimony.
Art. III, sec. 3 of the agreement provided:
Except as otherwise herein provided, time and one-half shall be paid for
all hours worked in excess of eight (8) in any one day ...
6 Art. 11, sec. 12 of the agreement defined an "extra employee . . .as any
employee working three (3) days per week or less." Schedule "A" of that
agreement, the wage provisions, set forth a $4.50 per hour wage rate for
"extra" cooks. It also provided for time and one-half for all hours in excess
of 8 per day.
7 The supervisory status of George Roshnow, as food and beverage
manager, was admitted.
203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied telling her that she could only get her hours back, or
time and one-half, if they got rid of the Union.8
Shortly after the above conversation with Roshnow,
according to Ball, Rogula told her: "You know, Donna, I
can't afford to pay any cook four-fifty an hour." She
protested that he was "looking at it from management's
point of view," and he replied, "You know, you might lose
your job over it. I can't afford to pay anybody four-fifty an
hour." Rogula denied discussing this matter with Ball.
On an afternoon about the third week in May, according
to Ball, Roshnow initiated a conversation by commenting
that she should slow down in the manner in which she was
cutting vegetables. She said that she was in a hurry because
she didn't have much time since her hours were cut.
Roshnow told her:
Well, there's one way to remedy that: Get rid of your
union . . . You know, your unions aren't any good in
restaurants . . . I know you have the union in the
factory; all they do is take your money and don't do
anything for you . . . It's none of my business but in
my opinion, being union steward was an unwise thing
to do.
He repeated:
The only way you could get your hours back would be
to get rid of the union. . . . This company really wants
to go by the union. . . . You'll all be in white uniforms
and hairnets, you'll only be able to have anything to
drink on your break and you won't be able to smoke in
between.
See what the union did for you, Donna?. . . All you
got was your hours cut.
Roshnow denied the essence of the foregoing statement. As
noted, he admitted reducing Ball's hours as a result of the
grievance. He also admitted soliciting employees to
withdraw their grievances against him. These actions
indicate an antipathy toward the grievance procedure and
enforcement of contract rights and are consistent with the
types of statements attributed to him by Ball. Based upon
these actions and upon my evaluation of the testimonial
demeanors of both witnesses, I credit Ball. For the same
reasons, I credit Ball over Rogula in regard to the
statement attributed to him.
In early June, Ball approached Kay Roshnow with a
written vacation request. She told Mrs. Roshnow "that I
would need July, the week of the 7th and the 14th off,
which were 10th, 1 Ith, and 12th; 17th, 18th and 19th," and
that she wanted that period to coincide with the shutdown
of the plant at which her husband was employed. 9
Respondent's scheduling of its cooks was informal; its
I An analysis of Ball's timecards reveals that on a majority of Fridays
and Saturdays from the beginning ofJanuary until the payroll period ending
May 22, Ball worked 9 or more hours. Subsequent to May 22, on those
Fridays and Saturdays on which she worked, Ball started work I hour later
and earned only 8 hours' pay. General Counsel disclaimed any intention of
alleging the reduction in hours as an independent violation.
9 The record in not clear whether Ball specifically mentioned these dates
or only inferred them by reference to the weeks in which they fell. Her
pretrial affidavit made no mention of the specific dates. I conclude, based
upon her testimony and affidavit, that Ball told Roshnow the weeks she
concern was that the duties be covered. Kay Roshnow told
Ball to clear her plans with another cook, Tim Kinsey. She
did so and was assured that he could cover for her during
her vacation.10 She then told George Roshnow that she had
cleared her vacation with Kinsey and he would cover the
dates for her. She requested a letter from Respondent
entitling her to discounts at Sheraton Inns while she
traveled.
Ball worked on Thursday, July 3. The restaurant was
scheduled to be closed on the holiday, July 4, and, since he
was scheduled to work on that day anyway, Kinsey
volunteered to cover for Ball on July 5, giving her an extra
couple of days to prepare for her vacation. She agreed and
both Ball and Kinsey notified Roshnow of the schedule
change. Roshnow had no objection and testified that this
extra day off was a 'bonus" for Ball. On the evening of July
3, Kay Roshnow brought Ball the discount letter, signed by
her husband. The letter stated, inter alia: "Mrs. Ball will be
traveling with her family . . . the second week in July,
1975." Ball told Mrs. Roshnow that there was a mistake in
the letter, that she would be traveling the second and third
weeks in July and that she would be gone for 2 weeks. Mrs.
Roshnow assured her that the dates were not important as
long as the other motels saw that she was an employee in
good standing." Ball further recalled overhearing a
conversation between George Roshnow and Bunny Thiv-
ierge, a salad girl who was capable of filling in as a cook,
wherein Thivierge was asked if she could work 3 days for
Ball if Kinsey had to leave early on his vacation. Thivierge
allegedly agreed to do so. George Roshnow had no
recollection of this conversation. Thivierge was called by
neither party.
Ball returned to the city from her vacation on Saturday,
July 19. Respondent, however, had expected her to return
to work on Thursday, July 17 and was unprepared for her
absence. Kinsey had already left on his vacation and
various makeshift arrangements were made to provide
cooking services. Roshnow, himself, cooked for a banquet
on the night of July 17.
Ball learned that she had been expected back and went
to the Inn on Monday, July 21. She spoke with Roshnow
who told her that when she did not come in on July 17 or
18, they thought she had quit and hired a replacement for
her. She was terminated at that time. 12
Between July 15 and August 1, a petition seeking support
for the decertification of the Union was circulated among
Respondent's employees. Bettye Binkley, Respondent's
afternoon shift front desk clerk (3 to 11 p.m.) was the
circulator and initial signatory. (Her signature is dated July
15.) Respondent's role in that petition is at issue herein.
Binkley testified that she determined to seek support for
decertification when, after a year in which she was
excluded from the unit, Rogula told her that she would
wanted to take off, which would include the dates set forth above, but did
not specifically mention the dates.
10 Neither General Counsel nor Respondent called Kinsey to corrobo-
rate its contentions.
" The foregoing testimony was credibly offered and stands uncontra-
dicted.
12 Roshnow testified that he told her that they were in the process of
hiring someone else. Rogula testified that they had hired someone. The
record, however, does not establish that anyone was hired to replace Ball. I
credit Ball's recollection of her discharge interview.
204
GRIFFIN INNS
have to join the Union. She had previously dealt with the
Union as proprietress of a bar and, in that capacity, had
experience with Labor Board representation proceedings.
Binkley denied that she was instructed to engage in the
decertification activity by Roshnow or Rogula. She
testified that she was assisted in preparation of the petition
by her own attorney. There was no direct evidence to
contradict Binkley's testimony.
Binkley further testified that she had only one conversa-
tion with Rogula regarding the petition:
. . . He asked me if I had a petition going, and I said
yes. And he said that there were some problems with
the union people and maybe I should think about what
I was doing.
She told him that she knew what she was doing and would
continue. Rogula denied having such a conversation with
Binkley.
Morning shift (7 a.m. to 3 p.m.) desk clerk Robin
Kamin' 3 testified to certain events which would indicate
management's support or assistance for Binkley's petition.
Thus, she testified that around July 12 or 14 (before even
Binkley's name was placed on the petition) Rogula had a
conversation with her, as follows:
He asked me if I had signed a petition that was going
around, and I had not answered him, and he went on,
saying that if I didn't I'd better because ... as far as he
was concerned, the union was on its way out.
Rogula denied involvement in this conversation. Kamin
testified that at that point she had not yet seen the petition
but was shown it a couple of days later, by Binkley. She did
not sign it then. However, on the following day, she
observed Binkley come in around 9 a.m., punch the
timeclock, and spend the morning circulating around the
motel with the petition. It was on that day, around 2:30
p.m. that Binkley once again gave Kamin the petition,
asked her to sign it and Kamin did so. Her signature is the
eleventh in order of signing; it is the first one bearing the
date of July 16.
Kamin's testimony in the foregoing regard does not
withstand scrutiny. Even if Rogula had knowledge of, and
involvement in, the circulation of the petition, he would not
likely have asked Kamin if she had signed a petition which
was not yet to be circulated for another I to 3 days. Had
Binkley been soliciting signatures on the petition all during
the morning and early afternoon of July 16, Kamin's would
not likely have been the first signature added to that
petition on that date. Had Binkley clocked in during the
morning, as Kamin was sure she did, her timecard would
so reflect. It does not. Binkley's timecard for the payroll
period ending July 31 reflects that on the first day of that
period, Wednesday, July 16, Binkley clocked in at 2:54
p.m. She clocked in at approximately that same time each
day that week. In the following week, she worked the
morning shift, apparently substituting the Kamin. Based
13 At the time these events occurred, Kamin was using her mamed name,
Ganfi.
14 George Roshnow suggested that what he asked Ehrlich to sign was a
release of the grievances filed against him. He also admitted that, upon her
upon the foregoing inconsistencies, and my unfavorable
impression of Kamin as a witness during this phase of her
testimony, I am constrained to discredit her. I was, on the
other hand, favorably impressed with Binkley as a witness.
She was candid and presented reasonable explanations for
her actions. Her personal attitude toward union representa-
tion does not warrant a conclusion that her actions were
suggested or controlled by management. I credit her
testimony.
On July 25, Linda Ehrlich, a waitress who had been laid
off, in May, came to the restaurant to visit friends still
employed there. During the course of the afternoon, Mrs.
Roshnow told her that George Roshnow wanted to talk to
her in the office. She went to the office, anticipating a
conversation regarding her return to work. However,
Roshnow told Ehrlich:
. . . that there was some kind of petition at the front
desk, if I would like to sign it I could. I didn't have to, it
was up to me but it was at the front desk. 4
Ehrlich went to the front desk, sometime before 3 p.m., was
shown the petition by Binkley, and signed it.
Prior to the inclusion of the desk clerks in the unit, Robin
Kamin had received Blue Cross insurance from Respon-
dent. According to Kamin, Rogula spoke to her in the
office in early August. She alleged:
Mr. Rogula had asked me if I was going to sign an
affidavit with Blue Cross against him, and I knew
nothing about any Blue Cross affidavit, and I told him I
would be honest with him, that I did sign an affidavit
against him but it was with the union, and I told him
what the affidavit was. . . about the certification. And
he said he was disappointed in me and - 'cause he
thought I was a loyal employee to him, and he
threatened to take away my Blue Cross if I didn't drop
the charges, and I says I wouldn't drop the charges
because I believed in what I signed.
She added, at a later point in her testimony, that Rogula
also threatened to deprive her of the daily free meal. The
affidavit to which Kamin referred was one she had given to
the Union on August 13. It concerned Binkley's circulation
of the decertification petition and Rogula's alleged state-
ments to her.
Rogula testified that in May or June he questioned
Kamin, as follows:
I . .. asked her if she'd signed any type of affidavit
with Blue Cross, stating that she did not have any other
form of insurance, because Blue Cross had specifically
asked me to make sure that nobody had other coverage
besides their Blue Cross program, and this was my
question to her, and her answer to me was that - that
she started in on something of a decertification notice,
or something, that the union had her to sign.
question, he might have told her that there was a petition at the front desk.
Ehrlich impressed me as a candid witness endeavoring to accurately recall
the truth. I was less convinced of George Roshnow's recollective abilities
and candor. I therefore credit Ehrlich's recollection of the conversation.
205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rogula stated that her reply was completely unrelated to
his question. He testified that he told her to do whatever
she thought was fair. In regard to the Blue Cross coverage,
he told her that once she joined the Union, she would
receive the Union's health insurance and lose Blue Cross.
Kamin further testified that a couple of days after the
above conversation, Rogula called her to ask her if she had
dropped the charges. She said no. He then allegedly spoke
to her at the front desk:
. .. again he asked if I had dropped the charges, and
I said no, and he said that you know, that if you don't
drop the charges you're going to have to go to court
and face my lawyer and that I will take your Blue Cross
away. And I said that I still wasn't going to drop the
charges. And he said that he would take the money out
of my paycheck for what he paid on my Blue Cross
It was Rogula's recollection that he did have some
subsequent conversations with Kamin, not in regard to any
affidavit or charges, but about the requirement that front
desk employees join the Union, the deduction of union
dues and the loss of her Blue Cross coverage because of
coverage under the Union's insurance plan.
As is frequently the case, the truth lies somewhere
between the versions related by the witnesses. Based upon
the comparative demeanors of the witnesses and the
inherent probabilities I conclude that Rogula's version
comes closer to what actually transpired. He intended to
question Kamin about assurances she might have given
Blue Cross concerning duplicated health insurance cover-
age. Based upon her reply, referring to the affidavit she
gave in August, this inquiry must have taken place in that
month.15 As the substitution of the Union's insurance for
Blue Cross followed from the inclusion of the desk clerks in
the Union (at least until and unless the parties negotiated
Blue Cross coverage) I find it difficult to believe that
Rogula threatened to take away such coverage. It is most
probable that his statement concerning the loss of Blue
Cross insurance was misunderstood by Kamin to be a
threat. I do not credit Kamin's assertion that Rogula
threatened to deprive her of the free meal.
The sequence of events, from Kamin's furnishing of an
affidavit to the Union through the filing and service of the
initial charge herein (August 14 and 16, respectively) and
the subsequent conversations, leads me to conclude that in
those subsequent conversations, Rogula was asking Kamin
about her affidavit in relation to the unfair labor practice
charges which by this time, he would have received. I
therefore credit the testimony of Kamin to the extent that
she stated that Rogula asked her whether she had dropped
the charges and told that she would have to go to court and
face his lawyer if she did not.
As noted, negotiations for a new collective-bargaining
agreement began in early spring. James Panos became the
Union's negotiator in July and participated in three or four
sessions during that month.16
15 Rogula admitted that his recollections of dates and places during this
period was confused due to family and financial problems he was then
facing.
Panos claimed to have made a number of telephone calls
to Rogula, attempting to set up bargaining meetings in
August and September and testified that he did not believe
that there were any meetings held in those months. He
could give details of only one such conversation. He
testified:
I talked to Mr. Rogula to set up a meeting for
bargaining, and he said he would have to contact Mr.
Kovaleski [his attorney], and the petition was going
around at that point, and he says, why don't we wait to
see what happens with the petition.
Rogula subsequently informed him that the petition had
been dismissed. It was Panos' general testimony that in his
telephonic conversations with Rogula, Rogula repeated
that he had to contact his attorney, but no meetings were
set up.
In October, according to Panos, the Union allegedly
sought the assistance of the State Mediation Agency. Panos
went to an intended mediation meeting on October 14.
Respondent did not show up.
Rogula denied telling Panos that they would wait to see
what happened with the petition before bargaining. He also
denied knowledge of any meeting scheduled in October
with a mediator. While he was not very specific in regard to
times and dates of events occuring in late summer and fall,
due to his preoccupation with the terminal illness of his
brother, he believed that the last bargaining meeting before
November was in August or September. He also testified to
a number of substantial contract proposals made by
Respondent, which were rejected by the Union.
On November 3, the Union met with Respondent,
including corporate representatives from Minneapolis, in
order to get negotiations moving. The Union's grievances
were discussed and, according to Panos, Mr. Gehl told the
Union, "If you drop those charges, we'll start to negotiate."
The Union refused. The record does not disclose what
further discussions were held except that no bargaining
took place.
Subsequent to November 3, Panos called Rogula to set
up another meeting. Kovaleski returned his call and Panos
told Kovaleski that he could not meet until after the deer
hunting season. After the deer season, he called Rogula
again but no meetings were set up. There have been no
contacts or attempted contacts in regard to contract
negotiations since December.
C. Analysis and Conclusions
I. The 8(a)(1) violations
It is well settled that an employer who promises or grants
benefits in order to discourage employees from engaging in
union activities violates Section 8(a)(1) of the Act. N.LRB.
v. Exchange Parts Company, 375 U.S. 405, 409-410 (1964);
Medo Photo Supply Corporation v. N.L.RB., 321 U.S. 678,
685-686 (1944). The promise, to be unlawful, need be
neither express nor ever fulfilled. N.L.R.B. v. Drives, Inc.,
16 Panos was unfamiliar with the course of negotiations prior to July. He
claimed to have no notes or files regarding any of the bargaining.
206
GRIFFIN INNS
440 F.2d 354 (C.A. 7, 1971), cert. denied 404 U.S. 912
(1971), enfg. 172 NLRB 969 (1968).
It is in this category of implied promises of benefits that I
consider Kay Roshnow's statement to Ball, in March, and
Rogula's statement to Ehrlich, in April, to the effect that
they might resume Blue Cross insurance coverage if they
voted the Union out, and George Roshnow's statements to
Ball, in April and May, that she could only get her hours
restored if the Union were eliminated. Accordingly, I find
that these statements by Respondent's supervisors and
agents violated Section 8(a)(1) of the Act.
Similarly unlawful are threats of discharge or other
reprisals which are intended to discourage union activity or
support. See, for example, United Aircraft Corporation v.
N.LR.B., 440 F.2d 85 (C.A. 2, 1971), enfg. 179 NLRB 935
(1969); Santa Fe Drilling Company v. N.LR.B., 416 F.2d
725 (C.A. 9, 1969), enfg. 171 NLRB 161 (1968). I have
found that Rogula told Ball that she might lose her job if
she continued to press for the higher hourly rate of pay due
her under the contract as an "extra" cook. Pursuing
contractual grievances is union activity protected by the
Act, and a threat to discharge an employee in order to
discourage such activity violates Section 8(a)(1). See, for
example, Merlyn Bunney and Clarence Bunney, partners,
d/b/a Bunney Bros. Construction Company, 139 NLRB 1516
(1962). Additionally, in crediting Ball over George Rosh-
now I have found that Roshnow told Ball that, in his
"opinion, being union steward was an unwise thing to do."
Such a statement is but a thinly veiled threat of discharge
or other reprisal and is violative of Section 8(a)(1). United
Aircraft Corporation v. N.LR.B., supra, 440 F.2d at 93, and
179 NLRB at 958.
A more difficult question is framed by Rogula's state-
ment to Kamin, telling her that she would have to go to
court and face his lawyer if she did not drop her charges
against him. Giving testimony is at times inconvenient,
expensive in terms of lost time and earnings, psychological-
ly threatening and worrisome. The willingness of witnesses
to initially come forward with evidence and thereafter
appear at hearings and testify is essential to the administra-
tion of justice. Conduct which impinges on that willingness
should not lightly be tolerated. Moreover, while it is true
that in the instant case the witnesses, in fact, "went to
court" and "faced" Respondent's lawyer, the great majori-
ty of Board cases are settled or otherwise closed without
litigation. It therefore does not necessarily follow that all
witnesses who give statements will be required to give
testimony in formal proceedings. Accordingly, I find that
Rogula's statement to Kamin constituted a threat violative
of Section 8(a)(1) of the Act.
General Counsel contended that the evidence established
that Respondent assisted in the preparation and circulation
of the decertification petition. I do not so find. The
evidence which I have credited established that in March,
Kay Roshnow predicted that one day a petition would be
circulated; in July, Rogula asked Binkley whether she was
circulating a petition and told to think about what she was
doing; and, in the same month, George Roshnow told
Ehrlich that there was a petition at the front desk which she
could sign if she wanted to. Kay Roshnow's statement was
too remote to establish managerial assistance in the
petition's preparation. Rogula's statement, if anything,
tended to discourage rather than encourage Binkley's
actions. Only George Roshnow's statement encouraged
employee support of that petition.
Moreover, I have credited the testimony of Binkley. She
had independent reasons to prepare and circulate the
petition. She also had advice, independent of Respondent,
necessary for the preparation of that petition. The
evidence, while suggesting that Respondent may have been
lenient in permitting worktime to be used in the circulation
of the petition, fails to establish that Respondent assisted in
the petition's preparation or put Binkley on the clock at
other than her normal hours for the purpose of encourag-
ing that circulation. In the absence of evidence of disparate
treatment, such as the enforcement of a no-solicitation rule
against prounion employees, Respondent's leniency does
not violated the Act.
However, as noted, George Roshnow's statement to
Ehrlich, a laid off employee desirous of returning to work,
encouraged that employee to sign in order to secure the
favor that might mean reemployment. That it was couched
in terms of a freedom of choice does not substantially
detract from the fact that her direct supervisor suggested
she sign by calling her to his office specifically to tell her
about the petition and where she might find it. His
suggestion, I find, constitutes an independent violation of
Section 8(aXl). State Radiator Company, 202 NLRB 335
(1973).
2. The discharge of Ball - Section 8(a)(3)
General Counsel contends that Respondent's assigned
reason for discharging Donna Ball, her absence from work
on July 17, 18, and 19, was a pretext and that the real
reason was her union activity. Respondent, of course,
controverts this contention and asserts that her absence
was the actual reason for discharge. The problem is to
ascertain Respondent's true, underlying motive. N.L.R.B.
v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45-60 (1937).
"A justifiable ground for dismissal is no defense if it is a
pretext and not the moving cause." N.LRB. v. Solo Cup
Company, 237 F.2d 521, 525 (C.A. 8, 1956).
Ball was elected as union steward but apparently neither
received nor performed any duties in that role. She was
also among those employees for whom the Union sought to
enforce the contract. It could be said that this was minimal
union activity. However, the significance of such activity is
relative to what preceded it and is measured by the
employer's response to it. In this case, prior to Ball's
election, there had been no steward and prior to this
grievance, grievance activity had been essentially nonexist-
ent. Moreover, both aspects of Ball's activity aroused
employer consternation. As previously noted, both Rosh-
now and Rogula commented on and directed remarks
violative of Section 8(aXI) toward her activity. She was
directly advised that pressing for the additional 50 cents
per hour could lead to her discharge and it was implied that
adverse consequences would follow from being steward.
On the other hand, Respondent had expected Ball to
return from her vacation on July 17, and was unprepared
for her absence on that weekend. This I find, was an honest
mistake. Ball had requested, and been granted 2 weeks,
207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 7 and 14. These weeks would have included July 17
through July 19. However, either because of the error in the
discount letter prepared for her by Kay Roshnow or
because of the extra days in the July 4 weekend, given as a
"bonus" when Kinsey volunteered to cover for her, the
misunderstanding arose. The misunderstanding, unques-
tionably, inconvenienced Respondent. It did not, however,
cause Respondent to hire a replacement for Ball at any
time prior to her return. Additionally, the misunderstand-
ing was at least as much Respondent's fault as Ball's, if
indeed it was not entirely Respondent's mistake.
Viewing the foregoing facts in juxtaposition, and noting
particularly Respondent's knowledge and animus toward
Ball's union activity, I conclude that Respondent seized
upon Ball's absence to discharge her but that the real or
substantial motivating reason was her union activity. 17
Since even a discharge unlawfully motivated only in part
violates the Act, I conclude that by discharging Donna Ball
on July 21, Respondent has violated Section 8(aX3) of the
Act. Detroit Forming, supra; N.LR.B. v. West Side Carpet
Cleaning Co., 329 F.2d 758, 761 (C.A. 6, 1964); N.LR.B. v.
Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1, 1953).
3. The alleged refusal to bargain - Section
8(a)(5)
General Counsel has asserted a two pronged theory of
violation of Section 8(a)(5). First, it is contended that
Respondent's assistance in regard to the preparation and
circulation of the decertification petition independently
constitutes a refusal to bargain. General Counsel's second
contention is that Respondent has refused to meet and
bargain with the Union since the filing of that petition and
in reliance upon that petition. The evidence, I find, fails to
support either contention.
As to the preparation and circulation of the petition, I
have found this to be an independent action of employee
Bettye Binkley. Respondent may not have been displeased
with this activity but the evidence was not sufficient to
establish that it caused it.
Moreover, I am not inclined to credit the testimony of
Panos in regard to the negotiations. I find it difficult to
believe that an experienced union negotiator (such as he
claimed to be) would enter negotiations at their mid-point
without determining the state of those negotiations up to
that time or would continue negotiations without maintain-
ing some record of the offers, counteroffers, and progress,
or lack of it, being made. I further find it difficult to believe
that such an agent, after a refusal-to-bargain charge had
been filed by his organization, would fail to record and
document the alleged attempts to meet. I also note that his
recollections of details was very poor. Even crediting
Panos, I would find that the statement attributed to Rogula
concerning waiting to see what would happen with the
petition, was ambiguous and not an outright refusal to
meet. And, if it were, it would have delayed bargaining not
more than a couple of weeks as the decertification was
quickly dismissed. Finally, I note that even according to
1i In so concluding, it is not necessary to find that Respondent conspired
to be left without a cook on that weekend in order to have a reason for
discharging Ball, as Respondent implies upon brief. It is sufficient to
establish a pretext to show that an otherwise justifiable reason was not the
Panos' testimony, he did not press Respondent for
meetings; the calls he made were to Rogula rather than
Kovaleski, who he knew to be primarily involved in the
negotiations, and he delayed at least one meeting for his
personal convenience.
Accordingly, I conclude that General Counsel has failed
to sustain his burden of proof in regard to the alleged
refusal to bargain.
FURTHER CONCLUSIONS OF LAW
1. By threatening employees with discharge or other
reprisals, by promising benefits to employees and by
encouraging employees to sign a decertification petition in
order to discourage union activity, membership and
support, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
them under Section 7 of the Act, thereby violating Section
8(aX I) of the Act.
2. By discharging Donna Ball in order to discourage
union activity, membership, and support, Respondent had
discriminated in regard to the hire and tenure of her
employment, in violation of Section 8(a)(3) and (1) of the
Act.
3. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
4. Respondent has not engaged in any unfair labor
practices not specifically found herein.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(aX)( I) and (3)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Donna Ball, Respondent shall offer her imme-
diate and full reinstatement to her former or substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, and shall make her whole for
any loss she may have suffered by reason of the discrimina-
tion against her. Any backpay found to be due shall be
computed in accordance with the formula set forth in F. W.
Woolworth Company, 92 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
"A violation of Section 8(aX3) goes to the very heart of
the Act." It therefore warrants that Respondent be further
required to cease and desist from infringing in any other
manner upon the rights guaranteed employees by Section 7
of the Act. Pan American Exterminating Co., Inc., 206
NLRB 298, fn. 1 (1973); Entwistle Manufacturing Company,
23 NLRB 1058 (1940), enfd. as modified 120 F.2d 532
(C.A. 4, 1941).
Upon the basis of the entire record, the findings of fact,
and the conclusions of law, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
moving or sole cause of the discharge. Detroit Forming Inc., 204 NLRB 205
(1973); N.LR.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7,
1964).
208
GRIFFIN INNS
ORDER 18
The Respondent, Griffin Inns, Owner and Operator of
Sheraton Motor Inn (Woodhaven, Michigan), its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with discharge or other
reprisals in order to discourage union activity, member-
ship, and support.
(b) Promising benefits to employees to discourage union
activity, membership, and support.
(c) Encouraging employees to sign petitions to decertify
the Union in order to discourage union activity, member-
ship, and support.
(d) Discouraging membership in or activities on behalf of
Local No. 24, Hotel, Motel, Restaurant Employees, Cooks
and Bartenders Union, AFL-CIO, or any other labor
organization, by discharging or otherwise discriminating
against employees in any manner with regard to their rates
of pay, wages, hours of employment, hire, tenure of
employment or any term or condition of their employment.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
"s In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(a) Offer Donna Ball immediate and full reinstatement to
her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
for any loss of earnings she may have suffered by reason of
the discrimination against her in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) 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 documents
necessary and relevant to analyze and compute the amount
of backpay due under this Order.
(c) Post at its Woodhaven, Michigan, facility copies of
the attached notice marked "Appendix." 19 Copies of said
notice on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
19 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
209