Headquarters Plaza Hotel

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 925 (N.L.R.B. 1985)

HEADQUARTERS PLAZA HOTEL -
Robert Olnick and Lester Fisher, a Co-Partnership
doing business under the trade name and style
of Fifth Roc Jersey Associates , d/b/a Head-
quarters • Plaza . Hotel and Communications
Workers of America. Case 22-CA-13363
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 22 February 1985 Administrative Law Judge
Irwin Kaplan issued the attached, decision. The Re-
spondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three--
member panel. -
The Board has considered the decision - and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings; findings, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Robert
Olnick and Lester Fisher, a co-partnership doing-
business under the trade name and style of Fifth
Roc Jersey Associates, d/b/a Headquarters Plaza
Hotel, Morristown, New Jersey, its officers, agents,
successors, and assigns, shall take the -action set
forth in the Order.
i In concluding that the Respondent's "Statement of Unions" in its em-
ployee handbook is unlawful, we find particularly significant the judge's
finding that the offending language is far broader than that considered in
JH Block & Co. 247 NLRB 262 (1980), and its progeny, inasmuch as
the rule here invites employees to.report "about any organizing efforts
which you know about " (Emphasis added)
Gary A. Carlson, Esq., -of Newark, New Jersey, for the
General Counsel.
Joseph M. Midler, Esq. (Aurnou,_ Kurzman & Midler), of
White Plains, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. This case
was heard in Newark, New Jersey, on November 28,
1984. The underlying charges were filed on July 27,
1984, by Communications Workers of America, Local
1040 (Union), alleging that Headquarters Plaza Hotel"
(Respondent) engaged in certain acts and conduct viola-
tive of Section 8(a)(1) of the National Labor Relations
i The full name of the employer appears in the caption
925
Act.. The aforenoted charges gave rise to a complaint
and notice. of hearing, which issued on--,September 10,
1984.
The gravamen of the complaint is that "Respondent
has maintained and enforced a rule, in its Employee
Handbook, requesting or requiring its employees to
report to managers or supervisors of Respondent," union
organizing activities of fellow employees at Respondent's
Morristown facility, and thereby has violated Section
8(a)(1) of the Act.
Respondent filed 'an answer (amended at trial), conced-
ing, inter alia, jurisdictional facts but denying that it
committed any unfair labor practices. In particular, Re-
spondent denied that the language in question constituted
a "rule" or that it interfered with the rights of employees
guaranteed under the .Act. Moreover, Respondent assert-
ed that as it has deleted the disputed language and all
references to Unions in its employee handbook since
August 10, 1984, the issue has become moot and no addi-
tional remedial action is warranted.
On the entire record, including my observation ' of the
witnesses, and after- careful. consideration of the posttrial
briefs,'I find the following -
FINDINGS OF FACT .
1. JURISDICTION
At all times -material herein, Respondent has been
owned jointly by- Robert Olnick and Lester Fisher,-co-
partners doing business as and trading under the name of
Fifth Roc Jersey Associates d/b/a Headquarters Plaza
Hotel, located at 3 Headquarters Plaza, Morristown,
New Jersey. It was projected, Respondent admitted, and
I find, that -annually, since the commencement of Re-
spondent's. operations about November 28, 1983, Re-
spondent will derive gross revenues ,in excess of $50,000.
Additionally, in connection with its aforenoted business
operations, Respondent has purchased goods and materi-
als valued at an annual rate, in excess of $50,000, directly
from points outside the State of New Jersey. It is admit-
ted; and I find, that Respondent is now, and has been at
all times material herein, an employer, engaged in com-
merce within the meaning of Section 2(2), (6), and (7),of
the Act.
It is admitted, and I find, that the Union, Communica-
tions Workers of America, Local 1040 is now, and has
been at all: times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
The Respondent commenced operations as a hotel on
November 28, 1983. Coincidentally, the instant trial con-
vened on the anniversary date, 1 year later. Respondent
employed 240 employees at the time the trial opened, al-
though its normal employee complement was closer to
200 employees. Although Respondent has experienced
substantial employee turnover, . approximately 30 of its
original employees shared the 1-year anniversary.
276 NLRB No. 96
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This case involved basically a "Statement on Unions"
contained in an employee -handbook (Jt. Exh. 1) which
had been given to all of Respondent' s employees until
August 10, 1984.2 The statement in its entirety reads as
follows:
Headquarters Plaza Hotel does not believe that it
is necessary for its employees to belong to a union.
The- experience of our employees shows that - em-
ployees are able to deal directly with management
in solving their problems and resolving complaints
through the* Headquarters Plaza Hotel -Fair Treat-
ment Policy. Employees feel they do not need a
union to achieve their own individual goals while
they are helping the Company achieve its goals.
The Headquarters Plaza Hotel ' has established a
.policy for'treating_employees fairly, providing=com-
-petitive wages and benefits and encouraging ad-
vancemeiit.according to'skill and performance. Our
hotel will use every proper, reasonable - and legal
means available to keep your work place union-free.
In this way, you will not have union dues deducted
from your pay and you will not lose wages due to a
union-directed strike.
If anyone should ever try to coerce you or in-
timidate you into signing a union card against your
wishes, you, should speak with your supervisor or
manager , and we will see that the harassment is
stopped immediately., We strongly believe, that our
employees want to think, speak and act for them-
selves. Likewise, you may, if you desire,., inform
your supervisor,• or, manager about any organizing
-efforts which you know about.
The position of Headquarters Plaza Hotel is' that
a union is not necessary and that all of us working
together as a team can accomplish more than- any
outside organization.
On August 10; Respondent, beganto issue to all new
hires a photocopy of its employee handbook but it delet-
ed therefrom the "`Statement on Unions", and all other
references to unions (R. Exh. 1). Kenneth LaFe, -Re-
spondent's executive manager, testified that- the "com-
plaint by the NLRB" generated the decision to make the
aforenoted deletions.3
In the meantime, back on May 23, six of Respondent's'
employees were first introduced to the Union at a meet-
ing held at the Mount Tabor Masonic Lodge in' Morris-
town, New Jersey. Union Staff Representative Benjamin
Spivak testified that at this meeting, he discussed gener-
ally how employees may unionize under the NLRB elec-
tion procedure, including the use 'of union authorization
cards.4 According to Spivak, Respondent's handbook.
2 All dates hereinafter refer to 1984, unless otherwise indicated.
3 As the complaint herein actually issuedi on September 10, 1984, a
month after Respondent commenced distributing 'photocopies, the likeli-
hood is that LaFe was confused either with notice of the charges, or was
told by the NLRB Regional Office that a complaint was contemplated
In any event, it is undisputed , and I find , that but'for the NLRB, the
deletions would not have occurred '
4 Benjamin Spivak, on'behalf' of the General Counsel , and Kenneth
LaFe, for Respondent , were the only witnesses to testify for' the respec-
tive parties '
came to his attention, in connection with his comments
about the right of employees to organize and the protec-
tion accorded them under the Act. He was handed a'
copy by Albert Martin, one of Respondent's employees,
and a discussion thereon ensued where Spivak voiced his
disagreement with some of the material regarding
unions . s Spivak testified that he told Respondent's em-
ployees that if they wanted union representation and
were interested in an organizing campaign to discuss the
matter with other employees and a followup meeting
was arranged which was held on June 6. - -
Respondent terminated Martin, assertedly for insubor-
dination , sometime between the initial union meeting and
the second meeting on June 6.6 On June 19, the Union
met with Respondent's employees for the last time.
Martin and only one other of Respondent's employees
appeared at the June 6 and 19 meetings . Accordingly to
Spivak, "People were very concerned about losing their_
jobs and the 'organizing campaign ceased."
B. Discussion and Conclusions
The essence of the complaint is that Respondent, by
maintaining and enforcing a rule in its employee hand-'
book, "requesting and requiring its employees to report
to managers and supervisors" the "union organizing ac-
tivities" of other employees, it "has interfered with, re-
strained and coerced ... employees" within the mean-
ing of Section 8 (a)(1) of the Act.
The "Statement on Unions" (previously set forth in its
entirety) which appears in Respondent's original employ-
ee handbooks -contains the following passage:
If anyone should ever try to coerce you or in-,
timidate you into signing a. union card against your
wishes , you should speak with your supervisor or
-manager, and we shall see to it that the harassment
is stopped immediately . We strongly believe that
our employees want to think" speak and act for
themselves . Likewise, you may, if you desire, inform
your supervisor or manager about any organizing ef-
forts which you know about. [Emphasis added.]
Respondent denies that the language objected to con-
stitutes-a rule . Further, Respondent denies that it request-.
ed or required any employee to report on the, union ac-
tivities- of other employees. Still further, Respondent
denies that it ever enforced such a rule. According to'
Respondent,- inasmuch as the disputed language (asserted-
ly) did .not contain threats' of reprisal, force or promise of
benefit, it constituted free speach protected by Section
8(c) of the Act.7
Spivak 'testified that at least three of the employees had brought
copies of the handbook to this meeting.
-e The discharge was the subject of unfair labor practice charges which
were subsequently withdrawn.
7 Sec . 8(c) provides
- The expressing of any views , argument , or opinion , or the dissenu-
nation thereof, whether in written, printed , graphic, or visual form,
shall not constitute or be evidence of an unfair labor practice under
any of the provisions of this Act, as such provision - contains no
threat of reprisal or force or promise of benefit.
HEADQUARTERS PLAZA HOTEL 927
First, Respondent's' denial that' the disputed passage
constitutes a rule has a hollow sound and is rejected: It is
noted, for example, that the lead paragraph in section I
of the handbook underscores the need for rules by stat-
ing as follows:
All organizations must have 'certain rules of conduct
and procedures which employees. are, committed to,
follow. Headquarters Plaza Hotel is no exception.
,Rules are established in order for your supervisor to
treat all employees fairly and equally. [Emphasis
added, Jt. Exh. 1.]
It is not possible to discern from a plain reading of the
various passages in the handbook where Respondent in-
tended a given subject to be treated as optional rather
than as a requirement. That the latter was likely intended
appears to be confirmed by LaFe's acknowledgement.
that employees are expected to "abide" by the language
in the handbook. Further, it is noted that both LaFe and
Respondent's counsel, each, on at least one occasion re-
ferred to the "Statement,on Unions". as a rule . As noted
by the General Counsel,. "A rule by any other name is
still a rule." In short, I find that the disputed passage
constitutes a rule, as contended by the Genral Counsel. _
As noted above, Respondent also denied that it re-
quested or required any employee.to report on the union
activities of other employees. Aside from the disputed
passage, there is no probative or credible evidence tend-
ing to contradict Respondent. Thus, it is the disputed.
passage itself which must come under scrutiny. _
In J. H. Block & Co., 247 NLRB 262 (1980), in,ques-
tion, in pertinent part, was the wording of a notice
posted by the respondent on its' bulletin board entitled
"Notice to Employees," advising them, inter alia, that:. ,
If anyone is caused trouble in the plant, or put
under pressure to join the union, you should let the
Company know, and we will see that it is stopped.
In rejecting respondent's assertion that it was justified
in adopting the rule, the Board noted an absence of evi-
dence showing that employees were "put under pressure
to join the Union." In any event, the Board viewed the
offending passage as overly broad and violative of Sec-
tion 8(a)(1) under the following rationale:
[The employer's statement] has the potential dual
effect of encouraging employees to report to Re-
spondent the identity of union card solicitors who
in any way approach employees in a manner subjec-
tively offensive to the solicited employees, and of
correspondingly discouraging card. solicitors in their
protected organizational activities. 8
The proposition that an employer, violates Section
8(a)(1) by inviting employees to report any instances of
union pressure, in a context free of other unfair labor
practices, is not without its critics. See, e.g., Clifton Plas-
8 Accord Bil-Mar Foods of Ohio, 255 NLRB 1254 (1981), Clifton Plas-
tics, 262 NLRB 1329 fn 3 ( 1982) (same principle and rationale citing Bib
Mar Foods)
tics, supra at 1329-30 (Member Hunter, in dissenting, in-
dicated he would overrule Bil-Mar);9 United Sanitation
Services, 262 NLRB 1369 fn. 3 (1982).
On the other hand, the offending language herein is far
broader than the passages considered in J. H. Block, Bil-
Mar, and their progeny. Here, an employee is invited to
report to his superior "about any [emphasis added] orga-
nizing efforts which you know about." Under such a;
rule, any union conduct, offensive or otherwise, is rea-
sonably susceptible for coverage thereunder and fair
game; Respondent' communicated to its employees its
profound desire to maintain a ,union-free enterprise (`.`Our
hotel will use every proper, reasonable and legal means
available to keep your [employees'] work place union-
free"). Its contemporaneous invitation to report. "any"
union activity in such circumstances may -reasonably be -
interpreted as a "not-to-subtle" attempt to have employ-
ees inform management "as to the identity of union pro-
ponents and tended to restrain and coerce employees in
their right to engage in protected union acitivities." See-
Bank of St. Louis, 191 NLRB 669, 673 (1971), enfd. 456
F.2d 1234.(8th Cir. 1972); Lutheran Hospital of Milwau-
kee, 224 NLRB 176, 178 (1976); Sunnyland Packing Co.,
227 NLRB 590, 595 (1976).
An employer's right to maintain appropriate discipline
and order is uniformly recognized. See Clifton Plastics,
supra `at fn. 3. Here, however, there is no pretense that
the rule was inspired by a need to maintain discipline and
decorum ,at the hotel.10' While employers also have
rights guaranteed by Section 8(c) of the Act to articulate
legitimate expressions of opinion, i i the language loses its
legitimacy and is coercive, where, as here, open season is
declared by inviting employees to report any union ac-
tivity, protected or otherwise. Clearly, no legitimate pur-
pose 'is served- by encouraging employees to report on
the protected- union activities of other employees.
Rather, it can only serve to inhibit, restrain, and discour-
age such protected activity for fear-that it will be report-
ed to management with the likelihood of adverse conse-
quences. Compare Sarah Neuman Nursing Home, 270
NLRB 6631n. 4 (1984). - '
In sum , `I find' that the passage inviting employees to
report to management about the union activities of other
employees is overly broad, coercive; and violative of
Section 8(a)(1) of the Act.12 '
9 Member Hunter's dissent was largely predicated on justification for
the rule In his view, the employer was motivated by his past union elec-
tion experiences of threats of harassment directed at employees Here,
there can be no justification, nor was any attempt made thereon It is
noted, inter alia, that Respondent herein distributed the handbook con-
taining the language in question contemporaneously with the commence-
ment of its operations
i° As noted previously, Respondent made no attempt to justify the
rule (See fn 9 above)
i' E g , "Headquarters Plaza Hotel does not believe that it is necessary
for its employees to belong to a Union " (Jt Exh I
12 Respondent's denial that,the rule was enforced is not challenged by
the General Counsel nor contradicted by the record Accordingly, I shall
recommend dismissal of the complaint only insofar as it 'alleges enforce-
ment
928, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, Robert Olnick and Lester Fisher,
a co-partnership doing business under the trade name and
style of Fifth Roc Jersey Associates, d/b/a Headquarters
Plaza Hotel, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Communications Workers of Amenca,'Local 1040 is
a labor organization within the meaning of Section 2(5)
of the Act.
3." By maintaining a rule inviting, requesting, or requir-
ing its employees to report to managers or'-supervisors
about the union organizing activities of their fellow em-
ployees, Respondent had interfered with, restrained, and*
coerced its employees in the exercise of the rights guar-
anteed under Section 7 of the Act, in violation of Section
8(a)(1) of the Act. -
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and-(7) of the Act.
5. The-General Counsel has not established that Re-
spondent has enforced any rule requesting or requiring
its employees to report to management about the union
organizing activities of fellow employees in violation of
Section 8(a)(1) of the, Act.
THE REMEDY
According to Respondent, since it has "simply 'deleted
the language in question . . . such action is sufficient to
remedy any potential harm." While it is well settled that
under certain circumstances an employer may relieve
itself of traditional Board remedies by repudiating the
violative conduct, such repudiation must be timely, un-
ambiguous, specific, and adequately conveyed to the em-
ployees with assurance to them that the employer will
not again interfere with employees' Section 7 rights. Pas-
savant Memorial Area Hospital, 237 NLRB 138 (1978);
Saint Vincent's Hospital, 265 NLRB 38, 42 (1982).
In the instant case, the steps taken by Respondent. to
cure any "potential harm'-' to employees resulting from
its coercive rule fall far short of effective repudiation.
Basically, all that Respondent had done is to delete its
"Statement on Unions" in photocopy handbooks given to
all new hires since August 10, 1984. Respondent has not
taken any action with-regard to 30 of its employees who
were given original handbooks containing the offending
language . These employees were still employed at the
time of trial. As for the new hires, the deletions in the
photocopy handbooks are at best ambiguous. The blank
spaces may well trigger questions by them, regarding the
former content,, particularly as there are a number of
original handbooks containing the offending language
still in circulation. Given the total circumstances and
noting also a failure by Respondent to provide any
meaningful assurances that it will refrain from republish-
ing the coercive rule or a similar rule in the future, I find
that it has not effectively relieved itself of liability. See
Saint Vincent's Hospital, supra at 42 fn. 23; Sunnyland
Packing Co., supra at 595. "
Having found no justifiable basis to depart from the
traditional remedies, I shall recommend that Respondent
cease and desist from engaging in the unfair labor prac-
tices found herein and take certain -affirmative action to
effectuate the policies of the Act. - I - -
On these findings of fact and-conclusions of law and
on the entire record, I issue the following recommend-
edis
ORDER. "
The Respondent, Robert Olnick and Lester Fisher, a
co-partnership doing business under the trade name and
style of Fifth Roc Jersey Associates, d/b/a Headquarters
Plaza Hotel, Morristown, New Jersey, its officers,
agents , successors, and assigns, shall _
1. Cease and desist from
(a) Maintaining a rule inviting, requesting, or requiring
its employees to report to managers or supervisors about
the union organizing activities of their fellow employees.
(b) In like or related manner interfering with, restiain-
ing, or coercing its employees in the' exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will 'ef-
fectuate the policies of the Act. - '
(a) Post at its - facility 'at Morristown, New Jersey,
copies of the attached notice marked "Appendix." 114
Copies of the notice, on forms provided by the Regional
Director for Region 22, after being signed by the Re-
spondent'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 Respond-
ent to ensure that the notices are not' altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in-writing within 20
days from the date of this Order what steps -Respondent
- has taken to comply.
is If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses. "
i• 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing "an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain a rule inviting, requesting, or
requiring our employees to report to managers or super-
visors about the union organizing activities of their
fellow employees.
HEADQUARTERS PLAZA HOTEL
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
ROBERT OLNICK AND LESTER FISHER, A
CO-PARTNERSHIP DOING BUSINESS UNDER
THE TRADE NAME AND STYLE OF FIFTH
Roc JERSEY ASSOCIATES, D/B/A HEAD-
QUARTERS PLAZA HOTEL
929