Hilton Inn Albany

National Labor Relations Board - Board Decisions

Jun 25, 1984

270 N.L.R.B. 1364 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ten Eyck Hotel Associates d/b/a Hilton Inn Albany
and Barbara Dietrich
Hotel, Motel and Restaurant Employees and Bar-
tenders Union, Local 471, AFLCIO and Bar-
bara Dietrich. Cases 3-CA-10864 and 3-CB-
3987
25 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 4 March 1983 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.
The Respondent Employer, the Respondent Union,
and the General Counsel each filed exceptions with
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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent Employer
violated Section 8(a)(2) by extending premature
recognition to the Union and by executing a collec-
tive-bargaining agreement with it. Correspondingly
the judge found that the Respondent Union violat-
ed Section 8(b)(1)(A) by accepting recognition and
executing the collective-bargaining agreement. We
agree with these findings but rely only on the facts
and the reasons set forth below. We further agree
with the judge that the Respondent Employer vio-
lated Section 8(a)(3) and the Respondent Union
violated Section 8(b)(2) by maintaining and enforc-
ing the union-security and dues-checkoff provisions
of the unlawfully executed contract.
The Employer operates a hotel which opened to
the public for business 29 November 1981. The
opening had been postponed several times from the
I The Respondent Employer and the Respondent Union have each ex-
cepted to some of the judge's credibility findings. The Board's established
policy is not to overrule an administrative law judge's credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
The judge found that the Respondent Employer violated Sec. 8(aX2)
and (1) of the Act by assisting the Respondent Union in its solicitation of
authorization cards. We reverse this finding on the grounds that the vio-
lation was not alleged in the complaint and was specifically disavowed at
trial by the General Counsel. The complaint did allege that the Respond-
ent Union violated Sec. 8(bXIXA) of the Act by using threats of dis-
charge to coerce employees into signing authorization cards. The judge
discussed the facts surrounding the employees' meeting of 2 November
1981 but made no finding or conclusion of law with respect to this specif-
ic allegation. There were no exceptions to the judge's implicit dismissal
of the allegation.
270 NLRB No. 207
original summer 1981 target date because of delays
in construction and in obtaining an official certifi-
cate of occupancy. The hotel contains 392 guest
rooms, a banquet ballroom, a formal dining room,
an informal restaurant and bar, and a lounge. At
the opening 79 rooms were occupied of which 51
were paid for by guests. The dining room did not
open until January 1982 and the lounge did not
open until March.
By 2 November 1981 64 employees had been
hired. On that date following an employee meeting
held by the Employer the Union obtained 48
signed membership cards and, on the basis of that
majority, requested recognition from the Employ-
er. Following a card check by an arbitrators the
Employer recognized the Union 4 November and
the parties proceeded to negotiate a collective-bar-
gaining agreement s which became effective 15 No-
vember, 2 weeks prior to the hotel's opening.
Vartan Tchekmeian, a senior official of the Em-
ployer, testified that at the time of recognition he
had anticipated a slow startup period for the hotel
based on market studies of Albany and on his expe-
rience with similar new facilities in other cities. He
testified that there was initially a projected need
for 60-70 unit employees at opening with an in-
crease to no more than 100 employees until March
1982.4 He further testified that he had anticipated
that the work force would eventually stabilize at
approximately 220-230 employees in 1-1/2 to 2-1/2
years. According to Tchekmeian, however, the
hotel received an unexpectedly high number of
short-term bookings at the end of November and in
December thus necessitating hiring far in excess of
the short-term projection. The judge discredited
Tchekmeian's testimony on the Respondent's initial
projections and on the basis of figures set forth
below we agree this testimony is unworthy of
belief.
The record clearly reveals that the Employer's
hiring practices before the hotel opened 29 Novem-
sThe record shows that the arbitrator inadvertently counted the card
of Jeanette Strutynski. She had attended the 2 November meeting but
was not actually hired until 16 November. The card majority was com-
posed of 47 members of the work force hired but not necessarily working
by the date recognition was granted.
s The recognition clause set forth in the contract lists 16 job classifica-
tions in the unit:
All full-time and regular part-time employees including Housemen,
Maid-Laundry, Inspectors, Bell Person, Bus Person, First Cook,
Second Cook, Kitchen Utility, Maintenance Employees, Mainte-
nance Helpers, Bartender, Waiter-Waitress-Cocktail, Hostess, Ban-
quet Waiters-Waitresses, Banquet Bartenders, Cook-Trainee/Salad
Preparer, but excluding all other employees, office clerical employ-
ees, desk clerks, night auditors, cashiers, PBX operators, guards and
supervisors as defined in the Act.
4 In apparent reference to contingencies arising after the hotel opened,
he noted that there was a possibility that 30 to 50 more employees would
be needed depending on the opening and the type and number of prob-
lems that arose.
1364
HILTON INN ALBANY
ber is consistent only with an initial intention by
the Employer to hire a full complement of employ-
ees about the date it opened its hotel. By 4 Novem-
ber it had hired approximately 76 unit employees,
by 11 November approximately 94, by 18 Novem-
ber approximately 141 (well over the asserted em-
ployment projection for March 1982), and by 25
November approximately 171. About the time the
hotel opened, it had hired over 200 unit employees
and by 9 December it had hired 250 unit employ-
ees.6 This steady increase in the number of em-
ployees throughout the entire month of November
is inconsistent with the Employer's claimed projec-
tions and is not explained by reference to the re-
ceipt of a high number of bookings in late Novem-
ber which occurred after the Employer had al-
ready departed from its claimed projections. Ac-
cordingly we agree with the judge's conclusion
that at the time it recognized the Union 4 Novem-
ber the Employer knew that it contemplated great-
ly expanding its work force in the immediate
future.
The payroll records in evidence additionally
reveal that many of the employees who had been
hired at the time the Employer recognized the
Union had not yet performed any work for the
Employer. In the first payroll period which ended
the day after recognition only 31 of the 76 employ-
ees hired had actually worked any hours and only
18 of the 31 had worked for more than 8 hours.
During the following month the number of em-
ployees who were actually working greatly in-
creased. By the payroll period ending 19 Novem-
ber the complement of working employees in-
creased to 97 (73 having worked over 8 hours) and
by the next payroll period ending 2 December over
200 employees were working (206 having worked
over 8 hours). The corresponding total number of
hours worked increased at an even greater rate
over this period.
The record is less than precise regarding the
classifications of the employees who were hired
during this period. However, it appears that the
Employer initially had developed approximately 20
classifications for which employees were to be
hired.6 At the time recognition was granted 4 No-
s Over the 9-month period from the opening until I September 1982
the complement of unit employees ranged from 206 up to 287 and aver-
aged on a weekly basis approximately 256 employees.
6 These classifications consisted of bellmen, inspectresa, maids, com-
mercial maids, housemen, laundry, cooks, kitchen utility, waiters/-
waitresses, hosts/hostesses, busboys, food and beverage cleaners, banquet
servers, banquet utility, cocktail waitresses, bar busboys, maintenance,
and banquet bartenders. The record is unclear whether the additional
classification of bar host/hostess was also included or whether the includ-
ed classification of laundry supervisor was nonsupervisory under the Act.
vember employees in 11 of the 20 classifications
had been hired.7 It additionally appears that at the
time of recognition employees in only 6 of the 20
classifications had worked 8 hours or more.8
The record further shows that employees who
were working prior to opening were not necessari-
ly engaged in the normal tasks for which they
were employed. Many employees performed what-
ever work was necessary to prepare the hotel for
its public opening. For example, one employee
hired as a banquet waitress cleaned floors. Al-
though food was being served on the premises to
other employees, construction workers and mana-
gerial personnel, the restaurants were not formally
opened. During the preopening period the testimo-
ny indicates the employees in various classifications
such as maids, cooks, and other kitchen personnel
were being trained.
The issue presented is whether on these facts
recognition was offered and accepted prematurely.
If so then both the Employer and the Union have
violated the Act. The Board's well-established test
for determining whether recognition has been law-
fully extended is twofold. At the time of recogni-
tion (1) an employer must employ a substantial and
representative complement of its projected work
force, that is, the jobs or job classifications desig-
nated for the operation must be substantially filled,
and (2) the employer must be engaged in normal
business operations.9
The Board has not established any mathematical
formula or any per se rule for resolving the issue of
premature recognition but has evaluated the facts
in each case to decide whether employees realisti-
cally have had an opportunity to select a bargain-
ing representative. Although not determinative in
an unfair labor practice case the Board has looked
for guidance to the test set forth in General Extru-
sion'° to determine whether the first prong of the
recognition test has been satisfied. The Board's
overall goal is to accommodate the right of em-
ployees who have already been hired to representa-
tion without undue delay to the right of employees
yet to be hired to have their bargaining representa-
tive selected by a substantial and representative
complement of employees engaged in the employ-
er's normal business operations.
'These I I classifications included inspectress, maids, housemen, cooks,
kitchen utility, waiters/waitresses, food and beverage cleaners, banquet
servers, banquet utility, cocktail waitresses, and maintenance.
s The six classifications included inspectress, maids, housemen, cooks,
kitchen utility, and hosts/hostesses.
9 Herman Bros., 264 NLRB 439 (1982); Lianco Container Corp., 173
NLRB 1444 (1969).
o1 General Extrusion Co., 121 NLRB 1165 (1958). There the Board
held that an existing contract will bar an election if, compared to the
hearing date, the employer employed 30 percent of its employees in 50
percent of the job classifications at the time the contract was signed.
1365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the first prong of the Herman Bros. test relat-
ing to the substantial filling of jobs or job classifi-
cations the Employer would appear to have at best
just met the General Extrusion standards. Based on
the Employer's estimate of 220-230 employees in
approximately 20 classifications when in full oper-
ation, it appears the 76 employees hired by 4 No-
vember into 11 classifications constituted 33 to 35
percent of the full work force and 55 percent of
the classifications." However, as noted above, the
application of a mathematical formula is not the
criteria by which the substantial filling of jobs and
jobs classifications is ascertained. The facts set
forth above indicate that at the time the Employer
granted recognition to the Union, based on other-
wise valid authorization cards from 47 of 76 em-
ployees who were then hired, most of the employ-
ees had performed no significant amount of work
for the Employer. Only 31 employees had per-
formed any work by 5 November and only 18 of
them had worked for more than 8 hours. These 18
or 31 employees constitute only 8 percent and 15
percent of the full work force respectively. Similar-
ly, these 18 employees were hired in only 6 of the
20 classifications or 30 percent of the total.12 On
these facts we cannot agree that by 4 November
the Employer had employed a substantial and rep-
resentative complement of either its projected or
actual full work force.
We also find that the Employer did not meet the
second requirement for lawful recognition, namely
that its facility be in normal operation at the date
of recognition. The record evidence clearly sup-
ports a finding that the hotel on 4 November was
closed to the public and only in the very earliest
stages of preparation for serving the public with re-
spect to either accommodations or dining. The
work being performed on that date was limited to
the training of cooks and kitchen personnel and the
performance of maids' duties. By that date no bell
persons, laundry workers, bus persons, maintenance
employees, waiters, waitresses, busboys, bartenders,
or any banquet employees had worked at all. Fur-
ther the size of the employee complement actually
working and the number of hours worked in-
creased so rapidly immediately following recogni-
tion that under the circumstances of this case we
find that the Employer on 4 November was simply
not engaged in normal hotel operations or even
It The percentage of the work force employed 4 November is some-
what less if compared with the average of 256 employees employed
during the 9 months after the hotel opened.
'2 A similar result is reached using the job classifications set forth in
the subsequently negotiated collective-bargaining agreement. See fn. 3,
above. Out of those 16 job classifications, approximately half were filled
by at least one employee hired by 4 November, but only 6 of 16 were
filled by employees who had worked more than 8 hours.
substantially full scale training and preparation for
its later opening. The total absence from the Em-
ployer's training preparation efforts of so many
vital hotel and restaurant functions more than belie
the Respondent's contention of normal operations.
We accordingly find and conclude that by recog-
nizing the Union at a time when the jobs or job
classifications were not substantially filled and
when the facility was not in normal operation and
by executing a collective-bargaining agreement, the
Employer violated Section 8(a)(1) and (2) of the
Act. Also by accepting such recognition and exe-
cuting the contract the Union violated Section
8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. Ten Eyck Hotel Associates d/b/a Hilton Inn
Albany is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Hotel, Motel and Restaurant Employees and
Bartenders Union, Local 471, AFL-CIO is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By recognizing the Respondent Union 4 No-
vember 1981 as the exclusive bargaining represent-
ative of its employees and by executing and main-
taining a collective-bargaining agreement with the
Respondent Union 15 November 1981, the Re-
spondent Employer has unlawfully assisted and
supported the Respondent Union and has thereby
violated Section 8(a)(2) and (1) of the Act.
4. By accepting recognition as the exclusive bar-
gaining representative of the Respondent Employ-
er's employees and by executing and maintaining
the 15 November 1981 collective-bargaining agree-
ment, the Respondent Union has restrained and co-
erced the employees in the exercise of rights guar-
anteed them by Section 7 of the Act in violation of
Section 8(b)(1)(A) of the Act.
5. By maintaining and enforcing the union-securi-
ty and dues-checkoff provisions of the 15 Novem-
ber 1981 collective-bargaining agreement, the Re-
spondent Employer has violated Section 8(a)(3) of
the Act and the Respondent Union has violated
Section 8(b)(2) of the Act.
6. These unfair labor practices are unfair labor
practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
7. Neither Respondent has otherwise violated the
Act.
THE REMEDY
Having found that the Respondent Employer has
engaged in unfair labor practices within the mean-
ing of Section 8(a)(1), (2), and (3) of the Act and
1366
HILTON INN ALBANY
that the Respondent Union has engaged in unfair
labor practices within the meaning of Section
8(b)(1)(A) and (2), we shall order each Respondent
to cease and desist and to take certain affirmative
actions to effectuate the policies of the Act.
The Respondent Employer will be ordered to
withdraw recognition from the Respondent Union
and the latter will be ordered to cease accepting
recognition from the former unless certified by the
Board. Both Respondents will be ordered to cease
giving effect to their 15 November 1981 collective-
bargaining agreement, including all renewals, ex-
tensions, and modifications, and to cancel it entire-
ly. The Respondent Employer and the Respondent
Union will also be ordered jointly and severally to
reimburse, with interest, all present and former em-
ployees for all initiation fees, dues, and other
moneys paid by them or withheld from them pur-
suant to the terms of the union-security and dues-
checkoff provisions of the 15 November 1981 col-
lective-bargaining agreement. However, reimburse-
ment shall not extend to those employees who vol-
untarily joined and became members of the Union
prior to 15 November 1981.13
ORDER
The National Labor Relations Board orders that
A. Respondent Ten Eyck Hotel Associates
d/b/a Hilton Inn Albany, Albany, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Recognizing Hotel, Motel and Restaurant
Employees and Bartenders Union, Local, 471,
AFL-CIO as the exclusive representative of its em-
ployees for the purpose of collective bargaining
unless and until the Union is certified by the Board
as the collective-bargaining representative of such
employees pursuant to Section 9(c) of the Act.
(b) Maintaining or giving any effect to the col-
lective-bargaining agreement between the Respond-
ent and the Union entered into 15 November 1981
or any renewal, extension, or modification thereof
unless and until the Union is certified by the Board
as the collective-bargaining representative of such
employees; provided however that nothing in this
Order shall authorize or require any changes in
wages or other terms and conditions of employ-
ment which may have been established pursuant to
the collective-bargaining agreement.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
1s See Unit Train Coal Sales, 234 NLRB 1265 (1978).
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from
the Union as the collective-bargaining representa-
tive of its employees unless and until the Union has
been duly certified by the Board as the exclusive
representative of such employees.
(b) Jointly and severally with the Respondent
Union reimburse with interest all present and
former employees for all initiation fees, dues, and
other moneys paid by them or withheld from them
pursuant to the terms of the dues, reinstatement,
and initiation fees clause and the union-security
clause of the 15 November 1981 collective-bargain-
ing agreement. However, reimbursement does not
extend to those employees who voluntarily joined
and became members of the Respondent Union
prior to 15 November 1981.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts of reimbursement due under the terms of
this Order.
(d) Post at its facility copies of the attached
notice marked "Appendix A."14 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 3, after being signed by the Re-
spondent Employer authorized representative, shall
be posted by the Respondent Employer immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
Employer to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. Respondent Hotel, Motel and Restaurant Em-
ployees and Bartenders Union, Local 471, AFL-
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Accepting recognition from and executing a
collective-bargaining agreement with Ten Eyck
Hotel Associates d/b/a Hilton Inn Albany at a
time when the Respondent Employer did not
employ a representative number of its ultimate
complement of unit employees and before it was
engaged in normal business operations.
" 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."
1367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Giving effect to the 15 November 1981 col-
lective-bargaining agreement between the Respond-
ent Employer and the Respondent Union or to any
extension, renewal, or modification thereof.
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organi-
zation as a condition of employment as authorized
in Section 8(a)(3) of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Jointly and severally with the Respondent
Employer reimburse with interest all present and
former employees for all initiation fees, dues, and
other moneys paid by them or withheld from them
pursuant to the terms of the dues, reinstatement,
and initiation fees clause and the union-security
clause of the 15 November 1981 collective-bargain-
ing agreement. However, reimbursement does not
extend to those employees who voluntarily joined
and became members of the Respondent Union
prior to 15 November 1981.
(b) Post in its business office and other places
where notices to its members are customarily
posted copies of the attached notice marked "Ap-
pendix B."1 5 Copies of the notice, on forms pro-
vided by the Regional Director for Region 3, after
being signed by the Respondent Union's authorized
representative, shall be posted by the Respondent
Union immediately upon receipt and maintained for
60 consecutive days in conspicuous places includ-
ing all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Furnish the Regional Director with signed
copies of the notice for posting by the Respondent
Employer at the Hilton Inn Albany where notices
to all employees are customarily posted. Copies of
the notice, to be furnished by the Regional Direc-
tor, shall be signed the Respondent Union and
forthwith returned to the Regional Director.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent Union has taken to comply.
II See fn. 14, above.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT recognize or contract with Hotel,
Motel and Restaurant Employees and Bartenders
Union, Local 471, AFL-CIO as the bargaining rep-
resentative of our employees until it has been certi-
fied as such representative by the National Labor
Relations Board.
WE WILL NOT maintain or give effect to our 15
November 1981 contract with Local 471 or to any
renewal, extension, or modification thereof but we
are not authorized or required to withdraw or
eliminate any wage rates or other benefits, terms,
and conditions of employment which we have
given to our employees under the contract.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL NOT withdraw and withhold all recog-
nition from Local 471 as the collective-bargaining
representative of our employees.
WE WILL, jointly and severally with Local 471,
reimburse with interest all our present and former
employees, for all initiation fees and dues paid by
them or withheld from them pursuant to the union-
security clause and the dues-checkoff clause of the
15 November 1981 contract. However reimburse-
ment will not extend to those employees who vol-
untarily joined Local 471 before 15 November
1981.
TEN EYCK HOTEL ASSOCIATES D/B/A
HILTON INN ALBANY
APPENDIX B
NOTICE To MEMBERS
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT act as the exclusive bargaining
representative of any employees of Ten Eyck
Hotel Associates d/b/a Hilton Inn Albany unless
and until we have demonstrated our majority status
1368
HILTON INN ALBANY
and have been certified by the National Labor Re-
lations Board.
WE WILL NOT maintain or give effect to the 15
November 1981 contract between this Union and
Hilton Inn Albany or to any renewal, extension, or
modification thereof.
WE WILL NOT in any like or related manner re-
strain or coerce the employees of Hilton Inn
Albany in the exercise of the rights guaranteed
them in Section 7 of the Act except to the extent
that such rights may be affected by an agreement
as authorized in Section 8(a)(3) of the Act.
WE WILL, jointly and severally with Hilton Inn
Albany, reimburse with interest all present and
former employees of Hilton Inn Albany for all ini-
tiation fees and dues paid by them or withheld
from them pursuant to the union-security clause
and the dues-checkoff clause of the 15 November
1981 contract. However, reimbursement will not
extend to those employees who voluntarily joined
Local 471 before 15 November 1981.
HOTEL, MOTEL AND RESTAURANT
EMPLOYEES AND BARTENDERS
UNION, LOCAL 471, AFL-CIO
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge.
Upon separate charges of unfair labor practices filed on
January 28, 1982, by Barbara Dietrich, an individual (the
Charging Party), against Ten Eyck Hotel Associates
d/b/a Hilton Inn Albany (Respondent Employer) and
Hotel, Motel and Restaurant Employees and Bartenders
Union, Local 471, AFL-CIO (Respondent Union) an
order consolidating cases, complaint, and notice of hear-
ing was issued by the Regional Director for Region 3,
pursuant to Section 102.33 of the Board's Rules and Reg-
ulations on behalf of the General Counsel on March 8,
1982.
The substance of the consolidated complaint alleges
that Respondent Employer recognized Respondent
Union, and thereafter entered into and maintained a col-
lective-bargaining relationship and agreement with Re-
spondent Union, although the latter at the time did not
represent an uncoerced majority of the employees of Re-
spondent Employer, while Respondent Employer had
not employed a representative proportion of its ultimate
employee complement, while job classifications had not
been filled, and while Respondent Employer was not en-
gaged in substantially normal business operations; and
that by such conduct Respondent Employer has violated
Section 8(aXl), (2), and (3) of the Act, and Respondent
Union has violated Section 8(b)(1XA) and (2) of the Act.
On March 11, 1982, Respondent Employer filed an
answer in which it denied committing any of the unfair
labor practices set forth in the consolidated complaint.
On March 19, 1982, Respondent Union filed an answer
in which it denied committing any of the unfair labor
practices set forth in the consolidated complaint.
The hearing in the above matter was held before me in
Albany, New York, on September 29, 1982. Briefs have
been received from counsel for the General Counsel,
counsel for Respondent Employer, and counsel for Re-
spondent Union, respectively, which have been carefully
considered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Ten Eyck Hotel Associates d/b/a Hilton Inn Albany
(Respondent Employer) is, and has been at all times ma-
terial herein, a corporation duly organized under, and ex-
isting by virtue of, the laws of the State of New York.
Respondent Employer, at all times material herein, has
maintained its principal office and place of business at
Ten Eyck Plaza, Albany, New York (the Albany facili-
ty), and is, and has been at all times material herein, en-
gaged at said facility in the operation of a hotel, restau-
rant, and related services.
The complaint alleges, Respondent Employer admits,
and I find that Respondent Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Ii. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent Union admits, and
I find that Hotel, Motel and Restaurant Employees and
Bartenders Union, Local 471, AFL-CIO (Respondent
Union) is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Completion of Respondent Employer's newly con-
structed hotel (Hilton Inn Albany) was projected for
July 1, 1981, and the Employer proceeded to hire em-
ployees in or before March 1981, in preparation for
opening business to the public in July. About April 1981,
Respondent Union's representative Joseph Diliberto con-
tacted Respondent Employer's vice president Vartan K.
Tchekmeian and requested recognition. Vice President
Tchekmeian had known union representative Diliberto
for about 12 years. He told Diliberto that, if the employ-
ees were willing for the Union to represent them, it was
up to them. The July date for completion of construction
was postponed almost monthly until October, due to
delays in construction. The Employer proceeded to hire
earnestly for a late October opening, and it had hired a
considerable number, 60-75, of employees by November
1, 1981, with the anticipation of eventually hiring ap-
proximately 260 or more employees.
Hilton Inn Albany opened for business on Novmeber
29, 1981. It was the first hotel opened in downtown
1369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Albany since 1968. The facility has 392 guests rooms, a
restaurant called the "Cinnamons," a formal dining room
called "Truffles," a lounge called "Cahoots," a large
ballroom used for banquets, and six meeting rooms. The
hotel is a subsidiary of Servico, Inc., which manages the
hotel and all aspects of its operation, including labor re-
lations. When the hotel opened on November 29, 300 of
its 392 rooms were available for occupancy. Seventy-
nine rooms were actually occupied, of which 25 were
complimentary, 3 rerentals, and 51 paid for by guests.
The Truffles dining room did not open for business until
January 1982, and the Cahoots opened March 1982, re-
spectively. Nor was the banquet kitchen opened, and
other kitchen facilities were not complete on November
4, when the Hotel (Respondent Employer) recognized
the Union as the collective-bargaining representative of
its employees. Subsequently, the Union and the Hotel ne-
gotiated a collective-bargaining agreement about Novem-
ber 15, 1981, which was signed on December 30, 1981.'
B. Respondent Extended Recognition to Respondent
Union While it Continued to Hire Staff to Operate the
Hotel
Neither Respondent Employer nor Respondent Union
produced any witnesses in this proceeding and the testi-
mony of the Charging Party witnesses herein is uncon-
troverted. In this regard, the record shows that individ-
uals who had been hired by Respondent Employer prior
to November 29, 1982, but had not actually commenced
work, attended an employer-called meeting on Novem-
ber 2, 1981. According to the undisputed and credited
testimony of newly hired Malinda Hull, who attended
the meeting, the Employer's general manager Phillip Co-
lumbo introduced himself and other members of manage-
ment, welcomed the 60 to 75 newly hired individuals,
and informed them that he was not sure when the hotel
would open for business, but that they would be contact-
ed about training dates. Thereafter, Wolfgang Hammer,
business agent for Respondent Union, who was present
during the meeting, proceeded to distribute insurance
and union authorization cards to the newly hired people
as they met with respective department heads. Hammer
urged and assisted the newly hired employees in filling in
cards and answering questions about the cards and the
Union.
Hull, who has a bachelor's and a master's degree in an-
thropology and linguistics, further testified without dis-
pute that Hammer did not explain a distinction between
the insurance and union authorization cards, and she "as-
sumed it was a part of the [hiring] procedure to follow."
Similarly, newly hired Steven Harald testified he filled
out a union card because he felt he had no choice, since
Catering Manager Slocum had previously informed him
that the hotel was going to be a union house. Hammer
collected the cards and submitted them to the Employer
on November 3 for a card count by an arbitrator. The
arbitrator issued his report on November 4, 1981, finding
that as of November 3, 1981, the Union had signed cards
from 48 of 64 of the newly hired individuals in the unit.
I The facts set forth above are undisputed and are not in conflict in the
record.
All authorization cards (G.C. Exh. 12) on which the
Union relied in the card count are dated November 2,
1981. However, an examination of the dates of hire (G.C.
Exh. 6) of the signatories of those cards reveals that indi-
viduals were hired as employees on the dates as follows:
4-10/30/81
30-10/31/81
5-11/01/81
8-11/02/81
1-11/16/81 (Jeanette Strutynski hired 11/16/81; name is
first reflected on 12/03/81 payroll.)
Hours Worked by Signatories as of Payroll Ending
November 5, 1981 (G.C. Exh. 4)
0 hours ...................................................................................
less than 7 hours ...................................................................
less than 10 hours..................................................................
m ore than 10 hours...............................................................
Classifications of Card Signers (G. C. Exhs 4, 7. and 12)
Housemen (410.15) ...............................................................
Maid/Laundry (410.09; 412.21)...........................................
Inspectress (410.08)...............................................................
First Cook (Brackets reserved) ........................................
Second Cook (Brackets reserved) (511.32).........................
Cook Trainee (Bracket reserved) ........................................
Kitchen Utility (511.33)........................................................
Maintenance (Bracket reserved)..........................................
Maintenance Helper (Bracket) (1510.71)............................
Waiter/waitress/cocktail (512.52, 511.34) ..........................
Banquet Waiter/waitresses (511.39)....................................
27
8
2
21
1
6
4
9
4
3
17
4
A review of the above data discloses that 27 of the 48
persons who signed union cards on November 2 had not
worked any hours for Repsondent Employer at the time
the latter recognized the Union on November 4. More-
over, 10 of the remaining 21 persons who had signed
cards on November 2 had worked less than 10 hours at
the time they signed. As counsel for the General Counsel
also points out, the record indicates that the arbitrator
counted the card signed by Jeanette Strutynski on No-
vember 2, although she was not even hired until Novem-
ber 16. Under these circumstances, only two of the card
signers were actually working employees at the time
they signed cards on November 2. In fact, 10 of the
other persons who signed cards had not worked a day
and a half. Consequently, it would appear that there
were only 11 employees employed by the Employer
more than a few days before the newly hired individuals
were solicited by the Union.
Neither Respondent Employer nor Respondent Union
presented any evidence during this proceeding and the
above statistical data are well supported by the docu-
mentary evidence (G.C. Exhs. 2(A), 4, 6, and 7), as well
as by the undisputed and credited testimonial evidence
presented by the General Counsel.
Under the foregoing circumstances, it is clear that only
21 of the 48 card signers actually performed work for
compensation on November 2, when they signed a card
1370
HILTON INN ALBANY
for the Union. As counsel for the General Counsel
argues, the Board has held in Ra-Rich Mfg. Corp., 120
NLRB 1444, 1447 (1958), that:
It is well settled that, in order to be eligible to vote,
an individual must be employed and working on the
established eligibility date, unless absent for one of
the reasons set out in the Direction of Election.
In so holding, the Board referred to its prior holding
in Schick Inc., 114 NLRB 931, 934 (1955). Thus, it ap-
pears that it would logically and consistently follow that
only an individual who is employed and working on the
date he or she signs a union authorization card for repre-
sentation would be eligible to make such an authoriza-
tion. Since the arbitrator counted the cards of 28 signers
who had not commenced working on November 2, 1981,
I find that such 28 individuals were not eligible to au-
thorize union representation or grant authorization for an
election on that date (November 2). Nevertheless, the
record shows that based on the arbitrator's card count,
the Hotel and the Union negotiated a collective-bargain-
ing agreement which became effective November 14,
1981. The record does not show that any of the employ-
ees or any of the newly hired individuals had participat-
ed in bargaining sessions which resulted in the collective-
bargaining agreement between Respondent Employer
and Respondent Union.
Increase in Hiring Staff
Counsel for the General Counsel's Exhibit 7 shows
that 552 individual employees have been in the unit since
the date of their hire and continuing through September
1, 1982. Further review of his exhibit shows that by No-
vember 4, the date on which Respondent Employer ex-
tended recognition to the Union, 76 employees had been
hired of which 44 had not commenced work. Similarly,
the payroll records for the period ending November 5
show the names of 36 individuals who had been hired, of
which 31 had not commenced working.
In view of the early recognition extended to the Union
by Respondent Employer, Tchekmeian, president of Re-
spondent Employer, in response to questions by counsel
for the General Counsel, proceeded to explain the hiring
procedures of Respondent Employer. He testified with-
out dispute that before the hotel opened he projected the
hotel would hire 220 to 230 employees once the hotel
achieved normal operation, which requires about 65- to
70-percent occupancy. Based on the studies he had in his
possession, he said a low occupancy was indicated for
November and December 1981, and January and Febru-
ary 1982. Thus, he said he tried to hire as few people as
possible. Prior to the opening of the hotel during late
October and December, he said some of the new hired
people were in training, serving and accommodating
guests of the managerial staff, while others performed
needed tasks in any department. This procedure contin-
ued for several weeks after the hotel opened until busi-
ness was improved. He said that, although the hotel had
bookings in November and December, such bookings
were not anticipated and he had to add additional em-
ployees. In fact he testified that he had to hire even
more employees than he normally would have hired
since the hotel kitchens were not completed.
How Respondent Employer actually increased its staff
is shown by counsel for the General Counsel's compila-
tion of data from Respondent Employer's records.
Average Number of Employees From December 2,
1981 (Period Closest to Opening) Through Septem-
ber 1, 1982 256.40
Inspectress (410.08)...........................................................
M aids (410.09) ...................................................................
Com m ercial M aids (410.10) .............................................
H ousem en (410.15)............................................................
Laundry Supervisor (412.20) ...........................................
Bellm an (410.13)................................................................
Laundry (412.21)...............................................................
Cooks (511.32)...................................................................
K itchen U tility (511.33)....................................................
Waiters/Waitresses (511.34).............................................
H ost/H ostess (511.35).......................................................
Busboys (511.36) ...............................................................
Banquet Servers (511.39)..................................................
Banquet U tility (511.40) ...................................................
Cocktail W aitress (512.52)................................................
Bar Busboys (512.54) ........................................................
M aintenance (1510.71)......................................................
Banquet Bartender (512.56)..............................................
Food & Beverage Cleaners (511.37)................................
Bartenders (512.51)...........................................................
7.56
23.38
2.38
11.33
.93
10.45
5.98
30.35
22.13
36.83
5.18
5.38
25.43
10.10
16.40
3.63
6.15
7.85
8.35
16.78
Hours Worked by Unit Employees During First Three
Payrolls (Taken from G. C. Exhs 4, 5, and 6)
Payroll Ending
11/5..................................................
11/19................................................
12/3..................................................
No. o
Employees on
Payroll
34
120
245
Regular Hrs
Worked by
Unit
626
3155.25
8537.25
In view of the statistical data in General Counsel's Ex-
hibit 7 and the Employer's payroll records for the 2-
week period ending November 5 (G.C. Exhs. 4 and 5), 1
day after recognition was extended to the Union, 31 of
34 employees worked a total of 626 hours and 33 hours
overtime. Subsequently, payroll records for the period
ending November 19 (G.C. Exhs. 5 and 6) show that 120
employees worked a total of 3155.25 hours, and 218.25
hours overtime. When the agreement which was execut-
ed sometime in mid-November (16-18) the hotel had ap-
proximately 141 hired persons. When the agreement be-
tween Respondent Employer and Respondent Union was
signed on December 30, 1981, General Counsel's Exhibit
7 shows that Respondent Employer had already hired
260 individuals. The evidence fails to show that any of
the hired employees had participated in negotiations for
the agreement effectuated at that time. Thereafter, Gen-
eral Counsel's Exhibit 7 shows that the number of per-
sons hired by Respondent Employer increased as high as
287 by March 17, 1982, even though the evidence fails to
1371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
show that the hotel had reached a 60- to 70-percent oc-
cupancy.
Hence, on the allegation of unlawful and premature
recognition of the Union, the issue raised is whether Re-
spondent Employer lawfully recognized Respondent
Union on November 4, 1981, and executed the agree-
ment with Respondent Union in mid-November 1981, at
a time when Respondent Employer had not employed a
representative number of its ultimate complement of unit
employees, and before it was engaged in normal business
operations of the hotel.
Conclusions
In this regard, it is well established from the hotel's
hiring history that it both anticipated and actually
achieved a consistent growth in business with a corre-
sponding increase in staff (employees) throughout the
months November 1981 through March 1982. Moreover,
the evidence shows that from the size of the economic
investment (size and type of hotel facility), the consider-
able business experience of management, and the estab-
lished actual growth in business, it may be reasonably in-
ferred that Respondent Employer was not surprised by
the growth and progress of its business during those
months, as Tchekmeian and Columbo discreditedly testi-
fied. Rather, it is clear that such successful results were
well within the contemplation of management. Conse-
quently, I conclude and find that Respondent Employer
conceded to recognize Respondent Union on November
4, 1981, when it knew it had not hired anywhere near a
substantial number of the complement of workers it had
contemplated hiring within a few days from that time.
As the Board held in Herman Bros., 264 NLRB 439,
440-441 (1982), whether recognition was lawfully ex-
tended to a union is determined by:
(1) [A]t the time when recognition is extended, the
jobs or job classifications designated for operation
involved must be substantially filled, and (2) the op-
eration involved must be in normal production. The
Board has not established a per se rule for determin-
ing whether there has been premature recognition,
but has evaluated the facts to determine whether
employees realistically have had an opportunity to
select a bargaining representative. Although not de-
terminative, the Board has looked to the test set
forth in General Extrusion to determine whether
recognition is lawful. As in the contract-bar area,
the Board, in deciding whether recognition has
been improperly extended, has attempted to protect
the rights of employees who are working, as well as
those who are to work in the future.
In General Extrusion Co., 121 NLRB 1165 (1958), the
Board held among other things that the employer must
have employed 30 percent of its employees in 50 percent
of its job classifications in order for a contract to be a
bar to an election.
Here, it is unequivocally established by the evidence
that Respondent Employer extended recognition to Re-
spondent Union at a time when the designated classified
jobs of its operation were not substantially filled, and
before the hotel was even officially opened for normal
business operation. I therefore conclude and find that
Respondent Employer recognized Respondent Union
and entered into a purported collective-bargaining agree-
ment with Respondent Union, at a time when it did not
have a representative segment of its ultimate employee
complement nor a normal and functioning appropriate
collective-bargaining unit of employees. More specifical-
ly, on November 4, 1981, 21 employees had not com-
menced performing work under normal business oper-
ations as compared to 263 employees who were hired
and were at work on December 30, 1981, when the hotel
opened and business operations became more normal.
Such recognition was extended and the agreement en-
tered into between the parties at a time when the Union
did not represent an uncoerced majority of employees.
Under these circumstances, such action discriminatorily
deprived a substantial majority of the employees of the
right to select a collective-bargaining representative of
their own choosing, in violation of Section 8(a)(1) and
(3) of the Act. Sheraton Great Falls Inn, 242 NLRB 1255,
1256 (1979); Allied Products Corp., 220 NLRB 732, 734-
735 (1975), and Lianco Container Corp., 173 NLRB 1444,
1447 (1969).
Reasons why premature recognition is unlawful is fur-
ther explained by the Board in Cowles Communications,
170 NLRB 1596, 1610-1611 (1968), where the Board
said:
The Board has consistently held with court ap-
proval that where an employer recognizes a union
as the exclusive bargaining representative of its em-
ployees on the basis of a majority demonstrated by
cards or a petition, as here, such recognition is inap-
propriate and unlawful if it is granted before the
employer has recruited a work force that can be
considered substantially representative of his antici-
pated complement of employees. The basis for the
position is that otherwise a nonrepresentative initial
working force would be permitted to designate the
bargaining representative which would not be the
choice of a majority of the electorate but of an un-
typical minority. The majority of employees on
whose behalf the union would eventually act as ex-
clusive representative would have no voice in that
important choice even though they would come
under the bargaining responsibility of the union.
The Board's policy against premature recognition is
also a necessary corollary to the well-established
proposition that an employer may not recognize or
bargain with a union which has not demonstrated
majority support within the unit it is seeking to rep-
resent. [Citing Ladies Garment Workers (Bernhard-
Altmann Texas Corp.), 366 U.S. 731, 737 (1971).]
C. Employee Reaction to Recognition of the Union
and the Collective-Bargaining Agreement Negotiated
Between the Employer and the Union
According to the undisputed, essentially consistent,
and credited testimony of employee Malinda Hull, she, in
response to a notice from management, attended the
1372
HILTON INN ALBANY
company-called meeting of employees during worktime
on November 2, 1981 (heretofore described under topic
B, supra), regarding employees' insurance. Members of
management extended a welcome to employees and told
them about probable dates the hotel would open. At the
end of the meeting, Union Business Manager Wolfgang
Hammer, who was present during the meeting, distribut-
ed union authorization and insurance cards to the em-
ployees without explaining any distinction between the
two cards. Hammer assisted employees in completing the
cards.
Similarly, according to the undisputed, corroborated,
essentially consistent, and credited testimony of employ-
ees Malinda Hull and Joe Jean Allen, they attended a
company-called meeting of employees during worktime
on December 30, regarding employees insurance. Ap-
proximately 150 employees were present and Union Busi-
ness Manager Joseph Diliberto introduced himself, Union
Assistant Business Manager Wolfgang Hammer, and one
Mr. Geddis. Geddis told the employees he was there to
represent the hotel. At the end of the meeting employees
asked several questions such as what was Diliberto's po-
sition with the Union and whether or not employees had
to join the Union. Diliberto told them that employees
had to join the Union; that they had to join the Union in
order to work there; and that they had no recourse. He
thereafter had the union authorization cards distributed
to employees, which some employees refused to accept,
others signed, and others took their cards home. Dili-
berto then read the highlights of the contract negotiated
between the Union and Employer.
Immediately after the above meeting, a petition (G.C.
Exh. 8) was prepared by Malinda Hull and thereafter
typed, distributed, and signed by 25 employees demand-
ing ouster of the Union because the signers were not in
accord with the constitution and bylaws of the Union,
nor with the agreement negotiated between the Employ-
er and the union. Copies of the petition were sent to the
Employer, the Union, and the National Labor Relations
Board. On the same afternoon (December 30), they at-
tended another company-called meeting of employees in
ballroom D. There were approximately 30 employees
present. Diliberto made the same introduction he made
at the first meeting, and he told them he was their local
representative and was going to discuss the contract that
had been signed between Employer and the Union.
Hull continued to testify as follows:
Let me back up and begin again. I directed several
questions to him concerning whether we did have
to join the union. Initially he refused to recognize
me because he said he didn't want to discuss any-
thing with me and he had seen me before and I
think he had labeled me as a trouble maker.
JUDGE GADSDEN: Did he tell you this in the
meeting?
THE WITNESS: Yes, he did. He was not going to
talk with me.
JUDGE GADSDEN: He said this in the open meet-
ing?
THE WITNESS: Yes, he did,
JUDGE GADSDEN: And he said why?
THE WITNESS: He said because I had already at-
tended a meeting before and that he had nothing to
discuss with me ...
A. Okay. At that point I responded to him that I
was-that supposedly I was a member of this union
and I felt it was my right to air my opinions with
him in an open forum. And that I also felt that-I
continued on saying that apparently I had helped
the Union get into the Hilton that was supposed to
be the election for the Union. And I didn't-what I
said at that point was that I didn't feel that their
methods for getting into the hotel seemed to be to-
tally legitimate.
He responded to me by apologizing. And his
tone for not being made aware of what the member-
ship card entailed as I had signed it. And at that
point, he listened and he basically began to listen to
what I had to say.
And he continued on, as I said-his tone changed
once I had made the statement about the member-
ship card.
There was question again-I brought up questons
as to whether he had to join the union and he said
yes, there was no legal recourse that we had. Local
471 was in the Albany Hilton and that there was
nothing that we could do about it.
Hull acknowledged, however, that Diliberto told the
employees they had to join the Union after 30 days on
the job, and he read that portion of the union-security
clause of the contract to them.
Employee Sally Rogers undisputedly testified that,
when she was interviewed with Catering Manager
Solcum in October 1981, she asked him if there was a
union in the hotel. He told her yes there was and she
told him she had been affiliated with Local 471 for 10
years and she did not want to be reaffiliated with that
Union. Solcum said, "No, I don't know at this point,"
and she started to work December 1, 1981. Rogers also
stated that, having been a banquet server in various
hotels for 10 years, she learned from experience that the
busy season is November through February of each year
and the slow months are July through August. She fur-
ther testified that to her knowledge none of the employ-
ees was ever told that section VI of the contract (union
security) was not effective. She testified that on July 17,
1972, Wurzak, director of catering, and Hammer ap-
proached her and asked her to accompany them to a
meeting. During the meeting Wurzak stated to her as fol-
lows:
"I will not let any other union other than Local
471" "I will not recognize any other union but that
one."
A. And I said to him, "Excuse me, Mr. Wurzak,
I don't think its up to you as management to tell
Hilton employees as to what union is going to be
recognized here."
Q. Did he tell you that you would be fired if you
didn't join the Union?
1373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. He said, "I feel as though you have been
brought into this hotel by another union other than
Local 471 and if that's the fact we don't want you
here." That's exactly what he said.
Q. I apologize for him.
A. When I got done with the meeting, they both
shook my hand and everything was fine. But yes,
management has told me it was a union house.
Employee Barbara Dietrich testified that she was em-
ployed November 1981 to April 1982 as a bartender; and
that she first met Hammer during the second week of
January 1982 while working in the Cinnamons Lounge.
He walked over to her and introduced himself, handed
her four cards (G.C. Exh. 11), asked her to fill them out,
and said he was a representative of Local 471. He also
told her he had some papers that had to do with the em-
ployees dental and health insurance. She asked him could
she see the papers, and he said, "No," that he would
give them to her after she signed the papers. She asked
him could she take the papers home and return them.
Hammer said, "No, it was taking a long time to get ev-
erybody to sign the cards and it would just be another
trip for him and he wanted us to sign them." He was
very insistent and she ultimately signed the papers in-
cluding the union card. This was the first occasion on
which she was approached by the Union since she did
not attend the meeting in December.
The parties stipulated that the Respondent Employer
started deducting dues checkoff in June 1982.2
The parties also stipulated that if Hammer were to tes-
tify herein, he would testify to the best of his knowledge
that the cards (G.C. Exh. 12(a)) were obtained on No-
vember 2, 1982. Diliberto passed on June 26, 1982, and
was therefore unavailable to appear and testify herein.
Analysis and Conclusions
Based on the foregoing uncontroverted evidence sum-
marized under topics B and C, supra, I conclude and find
that Respondent Employer's vice president Tchekmeian
has known union representative Diliberto for many
years; and that Diliberto had contacted Tchekmeian in
April 1981 about Local 471 representing the prospective
employees of the hotel. Although Tchekmeian testified
he told Diliberto if the employees were willing for Local
471 to represent them it was all right, Tchekmeian nev-
ertheless conveniently permitted Local 471 representa-
tive Wolfgang Hammer to attend a company-called
meeting of employees during working time on November
2, 1981. Present at the meeting were the Employer's gen-
eral manager Phillip Columbo, union representative
Hammer, and about 70 newly hired employees. At the
end of the meeting, Tchekmeian permitted Hammer to
distribute insurance cards along with union authorization
cards to the employees, most of whom had not com-
2 Although the parties stipulated that Respondent Employer com-
menced deducting dues checkoff in June 1982, no claim has been made
for the return of such dues. Since the Employer has held dues in escrow
and no dues have been paid to the Union, I will not make any findings in
this regard. Additionally, although counsel for the General Counsel said
he was not establishing evidence of unlawful assistance, such assistance
was established, and since the complaint alleged such assistance, a finding
of unlawful assistance will be made.
menced work performance for the hotel. Hammer urged
employees to sign the union cards and assisted some of
them in filling out the cards.
Since Hammer, who was present throughout the meet-
ing, distributed insurance and union authorization cards
at the end of the meeting, several employees were there-
by led to believe or assume that the insurance card, as
well as the union card, all had the blessings of manage-
ment and were all a part of the hiring process. They felt
obligated to sign both cards and their beliefs or assump-
tions in this regard were not unreasonable, since union
representative Hammer was present along with members
of management during the meeting, and there was no
distinct conclusion or separation of that meeting from the
time Hammer got the attention of the employees in the
same meeting place. Hammer collected the signed union
cards before leaving the meeting.
On the next day, November 3, Hammer or the Union
had the signed cards counted by a mutually agreed-on
arbitrator. On the following day, November 4, the Union
requested recognition and the Respondent Employer
granted recognition to Local 471. Only 11 days later,
November 15, Respondent Employer and Respondent
Union executed a contract purportedly on behalf of the
hotel employees.
It is particularly observed that the same climate of
management approval prevailed at the second company-
called meeting of employees during worktime on De-
cember 30, 1981, where Union Business Manager Dili-
berto was present with members of management, and in-
troduced himself, union representative Hammer, and
member of management Geddis. At this meeting, Dili-
berto was putting on a hard sale of union solicitation
since the number of employees had risen from about 70
present at the first meeting to 150 at the present meeting.
Diliberto strongly urged and insisted that the employees
join the Union. He was reluctant to entertain questions
from the employees about the Union, or to allow em-
ployees to take their cards with them to think it over.
Instead, Diliberto had union authorization cards distrib-
uted to the employees and proceeded to explain the
highlights of the agreement negotiated between the
Union and the Employer on November 15, 1981.
It is further observed, however, that the evidence fails
to demonstrate that a single employee participated in or
had any input in the negotiations which resulted in the
agreement between the Employer and the Union. More-
over, it is also noted that as early as October 1981, the
Employer's catering manager Solcum told Sally Rogers
during her interview for employment that the hotel was
unionized. Although the hotel had not in fact been
unionized at the time, it nonetheless appears significant
that Rogers at that time expressed her displeasure with
having been affiliated with Local 471, and it turns out
that it was local 471's Diliberto who has known hotel
Vice President Tchekmeian for several years and had
contacted him as early as April about representing the
employees; that it was representatives of Local 471
whom the Employer permitted to attend company-called
meetings with employees during worktime in November
and december to solicit employees membership; that a
1374
HILTON INN ALBANY
contract was quickly negotiated between Respondent
Employer and Respondent Union without employee par-
ticipation, only 11 days after the Employer extended rec-
ognition to the Union; that these subsequent events tend
to substantiate Rogers' testimony that the Employer had
contemplated unionization of the hotel by Local 471
early in the game, and that as a result thereof, accorded
the Union the convenience of attending one company
meeting with employees and management before the
hotel was opened for business, and a second such meet-
ing thereafter; that in doing so Respondent Employer
permitted itself to be used as an agent of Respondent
Union for purposes of solicitation; and that all of these
factors constitute unequivocal evidence of not only pre-
mature recognition, as hereinbefore found, but unlawful
rendition of aid, assistance, and support to Respondent
Union, in violation of Section 8(a)(l) and (2) of the Act.
P.C. Foods, 249 NLRB 433, 438-439 (1980); Vernitron
Electrical Components, 221 NLRB 464, 465 (1975).
Finally, I also conclude and find on the foregoing evi-
dence that not only were the efforts of Respondent
Union to organize the employees commensurate with the
haste and swiftness with which Respondent Employer
extended recognition to the Union, but the speedy agree-
ment negotiated by Respondent Employer and Respond-
ent Union was obtained with the total exclusion of em-
ployee participation and involvement. Siro Security Serv-
ice, 247 NLRB 1266, 1273 (1960); R. J. E. Leasing Corp.,
262 NLRB 373 (1982).
Consequently, I conclude and find under the above-de-
scribed circumstances that Respondent Union coerced
and restrained employees of Respondent Employer, in
the exercise of rights guaranteed by Section 7 of the Act,
in violation of Section 8(a)(l)(A) of the Act; and that
Respondent Union's conduct also attempted to cause,
and did in fact cause, Respondent Employer to discrimi-
nate against its employees, in violation of Section 8(b)(2)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Employer and Respond-
ent Union set forth in section III above, occurring in
close connection with its operations as described in sec-
tions I and II above, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent Employer has engaged
in unfair labor practices within the meaning of Section
8(a)(1), (2), and (3) of the Act, I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action to effectuate the policies of the Act.
Having found that Respondent Union has engaged in
unfair labor practices within the meaning of Section
8(b)(l)(A) and (2) of the Act, I shall recommend that it
cease and desist therefrom, and that it take certain af-
firmative action to effectuate the policies of the Act.
It having been found that Respondent Employer inter-
fered with, restrained, and coerced its employees in the
exercise of their Section 7 protected rights, in violation
of Section 8(a)(1), by rendering aid, assistance, support,
and premature recognition to the Union; in violation of
Section 8(b)(2) of the Act; and by the same conduct dis-
criminating against its employees in violation of Section
8(a)(3) of the Act, the recommended Order will provide
that Respondent Employer cease and desist from engag-
ing in such unlawful conduct and, that it take certain af-
firmative action to effectuate the policies of the Act.
It having been found that Respondent Union interfered
with, restrained, and coerced Respondent Employer's
employees in the exercise of their Section 7 protected
rights, in violation of section 8(a)(1) of the Act, by pres-
suring employees to sign its cards without giving them
reasonable time and an explanation thereof, while receiv-
ing aid, assistance, and support from Respondent Em-
ployer; and by attempting to cause, and in fact causing,
Respondent Employer to discriminate against its employ-
ees, in violation of Section 8(bX)(2) of the Act, the recom-
mended Order will provide that Respondent Union cease
and desist from engaging in such unlawful conduct, and
take certain affirmative action to effectuate the policies
of the Act.
Because of the character of the unfair labor practices
herein found the recommended Order will provide that
Respondent Union cease and desist from or in any other
manner interfering with, restraining, or coercing employ-
ees in the excercise of their rights guaranteed by Section
7 of the Act. NLRB v. Entwistle Mfg. Co., supra, 120
F.2d 532, 536 (4th Cir. 1941).
On the basis of the above findings of fact and on the
entire record in this case, I make the following
CONCLUSIONS OF LAW
I. Ten Eyck Hotel Associates d/b/a Hilton Inn
Albany is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Hotel, Motel and Restaurant Employees and Bar-
tenders Union, Local 471, AFL-CIO, is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
3. By recognizing Hotel, Motel and Restaurant Em-
ployees and Bartenders Union, Local 471, AFL-CIO as
the exclusive bargaining representative of its employees
and by executing a contract with said Respondent Union
covering such employees at a time when Respondent
Union did not represent an uncoerced majority of such
employees and when the Company did not employ a
substantially representative number of its anticipated
complement of employees, Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 in violation of Section
8(a)(l) of the Act.
4. By maintaining and giving effect to its collective-
bargaining agreement which contained a union-security
clause with Respondent Union dated December 30, 1981,
or any renewal, extension, or modification thereof, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
1375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By rendering aid and assistance to Respondent
Union to solicit union authorization cards from its em-
ployees, Respondent Employer violated Section 8(aXl1),
and (2), of the Act.
6. By including a union-security clause in its contract,
Respondent Employer has violated Section 8(a)(1), (2),
and (3) of the Act.
7. By accepting recognition and executing a collective-
bargaining agreement with respondent Employer at a
time when Respondent Union did not represent an un-
coerced majority of Respondent Employer's employees,
and when the Employer did not employ a work force
which was substantially representative of its anticipated
employee complement, Respondent Union has violated
Section 8(b)(1)(A) of the Act.
8. By maintaining and giving effect to its collective-
bargaining agreement which included a union-security
clause with Respondent Employer dated December 30,
1981, or any renewal, extension, or modification thereof,
Respondent Union has violated Section 8(b)(1)(IXA) and
(2) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
1376