Hempstead Motor Hotel

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 121 (N.L.R.B. 1984)

HEMPSTEAD MOTOR HOTEL
Piedmont Properties, Inc. d/b/a Hempstead Motor
Hotel and Local 32B-32J Service Employees
International Union, AFL-CIO. Cases 29-CA-
10056 and 29-RC-5781
30 April 1984
DECISION, ORDER
AND CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 15 December 1983 Administrative Law
Judge Howard Edelman issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed an an-
swering 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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions, to adopt the recommended Order, and
to issue a Certification of Results of Election.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Local 32B-32J, Service
Employees International Union, AFL-CIO, and
that it is not the exclusive bargaining representative
of these bargaining unit employees.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. The
hearing in the above matter took place on October 11,
1983.
On November 9, 1982, Local 32B-32J, Service Em-
ployees International Union, AFL-CIO, herein called
the Union, filed an unfair labor practice charge (Case 29-
CA-10056) against Piedmont Properties, Inc. d/b/a
Hempstead Motor Hotel, herein called Respondent. On
December 30, 1982, the Regional Director for Region 29
issued a complaint alleging various independent viola-
tions of Section 8(a)(1) of the Act.
On September 16, 1982, the Union filed an RC petition
(Case 29-RC-5781) in connection with certain part-time
maintenance employees employed by Respondent. Pursu-
ant to a Stipulation for Certification Upon Consent Elec-
270 NLRB No. 19
tion, an election was held on November 5, 1982. As a
result of the election, the Union did not receive a majori-
ty of the valid votes cast. Thereafter, timely objections
were filed by the Union. On January 12, 1983, the Re-
gional Director for Region 29 issued a Report on Objec-
tions ordering a hearing on certain objections.
On May 26 the above complaint and hearing on objec-
tions were consolidated. The 8(aXl) allegations and the
objectionable conduct alleged are coextensive.
All parties were represented at the hearing and were
accorded full opportunity to be heard, to introduce rele-
vant evidence, to present oral argument, and to file
briefs. Briefs were filed by Respondent.
On consideration of the entire record, the briefs, and
my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a New York corporation engaged in the
operation of a motor hotel in West Hempstead, New
York. In the course of the operation of its motor hotel,
Respondent annually derives gross revenue received
from room rentals exceeding S500,000. Additionally, Re-
spondent annually purchases heating oil, electricity, and
other goods and services valued at an excess of S50,000
directly from States of the United States other than New
York.
Respondent admits and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
FACTS OF THE CASE
For a number of years the Union has had a collective-
bargaining agreement with Respondent covering its full-
time maintenance employees.
Sometime during the latter part of the summer of
1982, the Union commenced organizing the part-time
maintenance employees employed by Respondent. The
Union's organization campaign was conducted by union
business agent Charles Brown, who was also the Union's
agent administering the collective-bargaining agreement
on behalf of the Union.
On September 16, 1982, the Union filed an RC petition
in Case 29-RC-5781. Thereafter the parties entered into
a Stipulation for Certification Upon Consent Election in
a unit consisting of all regular part-time building service
employees including maids, laundry employees, porters,
and maintenance employees.
On November 5, 1982, an election was conducted at
Respondent's motor hotel. Of nine eligible voters, eight
voted. The vote was four employees voted in favor of
representation by the Union and four employees voted
for no representation by any labor organization.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, as set forth above, the Union filed timely
objections to the conduct of the election, and unfair
labor practice charges.
Mildred Brown-Stanly, a part-time maid and a unit.
employee employed by Respondent, testified on direct
examination that sometime during the last week in Octo-
ber 1982, as she passed the check-in desk by the lobby,
she had a conversation with Leon Zwelsky, Respond-
ent's night manager, and an admitted supervisor within
the meaning of Section 2(11) of the Act. During this
conversation, Zwelsky told Brown-Stanly that if the
Union came in the employees would no longer be able to
do the things they were doing at the present time.
Brown-Stanly asked him what he meant and he replied
that employees might not be able to leave early when
they finished their assigned work.
Respondent's practice had been to permit its part-time
employees to leave work early on completion of their as-
signed work.
On cross-examination, Brown-Stanly admitted that
during this conversation the subject of potential negotia-
tions in the event the Union won the election came up
and, in this connection, Brown-Stanly testified that
Zwelsky said the Union could demand during such nego-
tiations that part-time employees not be allowed to leave
early.
Leon Zwelsky testified that he had no individual con-
versation with Brown-Stanly or any other employee con-
cerning the Union. However, he did conduct several
meetings where he spoke to the assembled employees
concerning the Union. He testified that at one such meet-
ing, a part-time employee, he could not recall who,
asked about Respondent's practice of permitting its part-
time employees to leave early on completion of their as-
signed work. He replied that if the Union came in there
would be negotiations and this practice could be subject
to negotiations. He said he could speak to the Union
about it, but it was possible they might not look favor-
ably on it.
In view of my favorable impression as to Zwelsky's
credibility and in view of Brown-Stanly's admission on
cross-examination which generally corroborates
Zwelsky's testimony, I credit Zwelsky's testimony.
Ruby Carter, a part-time maid, and a unit employee
employed by Respondent, testified that about an hour
after the election was held' she heard Ms. Bethea, a
part-time maid and unit employee employed by Respond-
ent, ask Leon Zwelsky, "Are you going to pay me off
the books," and that Zwelsky replied, "I guess I have to
adopt you." Carter's testimony is corroborated by the
testimony of Brown-Stanly. Zwelsky testified that he did
not recall making such statement.2
X The election was held on November 5, 1982, at Respondent's facility
between the hours of 9 a.m. to 10 p.m.
' Carter testified that during the first week in November 1982, before
the election, Bethea had told her that Zwelsky had said that when the
Union came in Respondent would no longer be able to pay Bethea off
the books. This testimony was objected to by Respondent as hearsay.
The objection was sustained.
The Regional Director's report on objections indicates that Bethea was
contacted by the Board agent conducting the investigation. Although
Bethea refused to give an affidavit she orally denied such conversation
In view of the mutually corroborative testimony of
Carter and Brown-Stanly and the inability of Zwelsky to
recall the alleged conversation, I credit the testimony of
Carter and Brown-Stanly concerning the November 5
conversation between Zwelsky and Bethea.
Zwelsky testified that Bethea was an elderly employee
in poor health and that she had requested him several
times before the election to pay her off the books so that
she would be eligible for unemployment benefits.
Zwelsky told her he could not do this. Several weeks
after the election Bethea quit Respondent's employ.
There was no evidence submitted by the General
Counsel to establish that Bethea was ever paid off the
books, at any time during her employ with Respondent.
Bethea was not called as a witness by the General Coun-
sel.
Charles Brown, union business agent, testified that he
services Respondent's full-time employees pursuant to
the terms of the parties' collective-bargaining agreement.
In connection with this service, he periodically visits Re-
spondent's motor hotel and meets with unit employees.
In this connection, the collective-bargaining agreement
provides:
Authorization representatives of the Union shall
have admission to the establishments of the Em-
ployers, but such representatives shall make ar-
rangements with the management as to the time of
making such vists.
Conferences held between Union representatives
and the employees shall not interfere with or inter-
rupt the work of the employees; and if held on the
premises, such conferences must be within a place
arranged for with the management. 3
On November 5, 1982, about 8 p.m., about an hour
before the scheduled election, Brown, accompanied by
union representative Clyde Hayes, visited Respondent's
facility to speak with the Union's election observer. Re-
spondent was evidently aware of this planned visit and
had made one of their guest rooms on the first floor next
to the lobby available to the Union for this purpose.
Brown and Hayes met briefly with the Union's observer,
employee Beverly Brim, in the guest room. Brown and
Hayes then left the room and waited in the lobby, an
area of about 10 by 15 feet, for the arrival of the Board
agent. As he stood in the lobby with Hayes, Leon
Zwelsky came over and told him that he did not want
him wandering through the hotel and disturbing employ-
ees. Zwelsky then left the lobby area. Within the next
few minutes the part-time employees who were eligible
to vote began filtering in the lobby waiting for the polls
to open. At this time, the Board agent and Respondent's
counsel had not yet arrived. 4
Brown and Hayes testified that Zwelsky reappeared in
the lobby area several minutes later. At this time seven
with Zwelsky took place or that Zwelsky ever promised to pay her off
the books.
I Art. XI of the collective-bargaining agreement.
' The actual voting area set forth in the stipulation was Respondent's
"basement linen room."
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HEMPSTEAD MOTOR HOTEL
or eight of the nine eligible voters were also present in
the lobby area, milling about. At this time, Zwelsky ac-
cused Brown of talking to the voters. He told Brown he
wanted him off his property or he was going to call the
police. Brown told Zwelsky he had a right to be there
and suggested to Zwelsky that he go back to his desk
and leave him alone. Zwelsky did not call the police and
Brown and Hayes remained in the area without further
incident until the Board agent arrived.
The General Counsel did not question witnesses
Brown-Stanly or Carter concerning this incident, nor
were they questioned as to this incident on cross- exami-
nation. The General Counsel did not call other employee
witnesses to testify concerning this incident. Neither Re-
spondent nor the General Counsel questioned Zwelsky
concerning this issue.
Brown and Hayes left the facility following the Board
agent's preelection instructions. They returned to the fa-
cility for the election count.
Analysis and Conclusions
In connection with the complaint which alleges that
Zwelsky threatened its employees with stricter enforce-
ment of work rules the credible evidence established
that, during a meeting called by Respondent to discuss
the pending union campaign, an employee, presumably
Brown-Stanly, questioned Zwelsky concerning Respond-
ent's practice of permitting its part-time employees to
leave work early, after completion of their assigned job
tasks. Zwelsky's reply was that if the Union came in
there would be negotiations and this practice would be
subject to such negotiations. He further stated he could
speak to the Union about it (an apparent implication that
he would continue to support the practice) but it was
possible the Union might not look favorably on such
practice.
The Board recently held in Rexall Corp., 265 NLRB
121 (1982), an employer does not violate Section 8(a)(l)
when he informs employees of changes that might
occurr as the result of collective bargaining if he does
not reasonably imply that he intends to make such unilat-
eral changes should the union come in, predict directly,
or by implication what impact unionization would have
on the employer or employees, or threaten employees
with reprisals. This case concerned among other employ-
er practices, the practice whereby employees were al-
lowed to leave work 5 minutes early to catch a bus. In
this connection, an employer representative, during a
conversation with an employee about the practice, told
the employee that such benefit would become a negotia-
ble item if the union were to win an election. The Board,
applying the rationale discussed above, reversed the ad-
ministrative law judge and concluded that the employer
did not violate Section 8(aX1) by such conduct.
In the instant case Zwelsky merely stated that the
practice of allowing employees to leave early could
become the subject of negotiations. He did not state or
imply that the practice would be subject to negotiations.
Moreover, he implied that he would support continu-
ation of the practice in the event it came up during col-
lective-bargaining negotiations. Under these circum-
stances I conclude that Respondent did not violate Sec-
tion 8(a)(1) by such conduct.
The complaint further alleges that Respondent offered
benefits to employees in the form of payments to em-
ployees off the books in order to induce them to refrain
from supporting the Union. In this connection the admis-
sible evidence established that immediately following the
election employee Bethea asked Zwelsky if he would
pay her off the books. Zwelsky replied, "I guess I have
to adopt you." The evidence further established that
prior to the election Bethea had on several occasions re-
quested that Zwelsky pay her off the books and each
time he had refused to do so. Further, there was no evi-
dence that Respondent, at any time, had actually paid
Bethea off the books. Moreover, as noted above, Bethea,
in connection with the investigation of the objections
herein, orally denied that Zwelsky ever promised to pay
her off the books. In view of Respondent's prior practice
of refusing to pay Bethea off the books, notwithstanding
her repeated requests, the absence of any evidence she
ever received any payment off the books and the ambig-
uous statement by Zwelsky to Bethea after the election,
"I guess I have to adopt you," I conclude there is insuffi-
cient evidence to establish that Respondent violated Sec-
tion 8(a)(l) as alleged.
The complaint further alleges Respondent violated
Section 8(a)(1) by threatening to arrest union organizer
Brown. In this connection the evidence established that,
about 40 minutes prior to the election and before the ar-
rival of the Board agent conducting the election, union
agents Brown and Hayes were present in the Respond-
ent's lobby with about seven of the eight voters voting in
the election. According to Zwelsky, Brown was talking
to the voters. Brown denied this. I find it unnecessary to
resolve this credibility issue. The evidence further estab-
lished that Zwelsky accused Brown of talking to the em-
ployees and told him he wanted him off his property or
he was going to call the police. However, the General
Counsel failed to produce any employee who testified
they overheard Zwelsky's statements to Brown. In this
connection, employees Brown-Stanly and Carter, wit-
nesses called by the General Counsel, were not ques-
tioned concerning this incident. Nor was any evidence il-
licited that the employees were later informed of
Zwelsky's statement. There is then no evidence to estab-
lish that any employee overheard or subsequently
became aware of Zwelsky's statement. The gravamen of
the violation alleged is that such statement discouraged
employees from becoming members of or supporting the
Union and therefore interfered with, restrained, and co-
erced employees in the exercise of their Section 7 rights.
If the employees were unaware of such statement, assum-
ing such statement was otherwise unlawful, their Section
7 rights could hardly be interfered with. The Board held
ip W. T. Grant Co., 209 NLRB 244 (1974), that where
the record did not reveal evidence that employees over-
heard or became aware of a threat by an employer offi-
cial to arrest a union official, an 8(a)(l) violation could
not be found.
Accordingly, I conclude that Respondent by
Zwelsky's conduct did not violate Section 8(a)(l).
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, I do not find Zwelsky's conduct to be un-
lawful. Brown had no right to be present in the lobby
prior to the arrival of the Board agent conducting the
election. He had received permission to utilize a guest
room for the purpose of conferring with his observer but
this did not permit his presence in the lobby. Nor did the
provision in the collective-bargaining agreement provid-
ing for union visitation rights at Respondent's facility
extend such right to Brown. Such clause relates to the
right of union representatives to come on Respondent's
facility to discuss issues relating to working conditions
with unit employees covered by the contract. It does not
extend the right of a union representative to come on
Respondent's facility to meet with nonunit employees for
any purpose. Since it is clear that Brown and Hayes were
not present in the lobby to speak with unit employees, I
conclude Zwelsky could ask Brown to leave the lobby
and to tell him when he resisted that he would call the
police. In any event, Brown and Hayes did not leave,
but remained in the lobby without further incident until
after the Board agent arrived and had the usual preelec-
tion conference with all parties present. At that time, all
parties departed so that the election could be conducted.
Under these circumstances, I would conclude that the in-
cident would not have interfered with, coerced, or re-
strained employees concerning their Section 7 rights or
affected the voting in the election. Cf. Harvey's Resort
Hotel, 236 NLRB 1670 (1978); Howard Johnson Co., 242
NLRB 386 (1979).
CONCLUSIONS OF LAW
Based on my findings of fact and on my analysis of
such findings, I have concluded that Respondent has not
violated Section 8 (aXl) of the Act as alleged.
The Representation Proceeding
The objections filed in connection with this proceed-
ing were coextensive with the unfair labor practices al-
leged.
I further conclude in view of my findings and analysis
of such findings, as set forth above, that Respondent did
not engage in objectionable conduct.
In view of my findings and conclusion set forth above,
and the entire record in these proceedings, I hereby issue
the following recommended"
ORDER
The complaint is dismissed in its entirety.
IT IS FURTHER RECOMMENDED that a Certification of
Results of Election in Case 29-RC-5781 issue.
6 If no exceptions are filed as provided by Sec. 102.46 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.
124