Hilton's Environmental

National Labor Relations Board - Board Decisions

Dec 22, 1995

320 N.L.R.B. 437 (N.L.R.B. 1995)

437
320 NLRB No. 20
HILTON’S ENVIRONMENTAL
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We have also reviewed the record and find no merit to the Re-
spondent’s allegations of bias and prejudice on the part of the judge.
2 In adopting the judge’s finding that the Respondent’s ban on dis-
cussing job-related matters outside the Respondent’s facility violated
Sec. 8(a)(1), we disavow the judge’s speculations concerning the
possible legality of a such a ban if it had been limited to conversa-
tions by employees with soldiers and note that this issue is not pre-
sented in this case.
3 We shall include a new Order and notice that conform to the
Board’s usual remedial provisions and more closely reflect the unfair
labor practices found. We deny the Charging Party’s request that the
Respondent be ordered to pay the costs and attorneys’ fees incurred
by the Charging Party and the General Counsel as such an order
would not effectuate the purposes of the Act. See Frontier Hotel &
Casino, 318 NLRB 857 (1995) (award of litigation expenses appro-
priate only in cases involving frivolous defenses and cases involving
the most serious unfair labor practices).
Member Cohen does not rely on Frontier. He agrees with his col-
leagues, however, that attorneys’ fees and costs should not be award-
ed here.
The Respondent’s request for oral argument is denied as the issues
presented in this case are adequately presented in the briefs, excep-
tions, and record.
4 The judge found that the letters of intent further provided that
the employees would ‘‘perform my duties as required by Contract
specifications and according to the Collective Bargaining Agreement
. . . .’’ The Respondent asserts that the judge erred in so finding
because this language is contained in only one of the two versions
of the letters of intent introduced as exhibits and the record does not
show that the version containing this language was actually executed
by the employees or submitted to the Respondent. We find it unnec-
essary to resolve this issue as we have found that the letters of intent
and the other factors cited below demonstrate the Respondent’s suc-
cessor status even without regard to the disputed language.
5 At that time, the Army took the position that the contract was
not governed by the Service Contract Act, 41 U.S.C. § 351 et seq.,
which generally provides for the compliance by successor contrac-
tors with a predecessor’s collectively bargained wages and benefits
with respect to service contracts of this type. Following a protest by
the Union, the Army indicated in a letter to the Union dated August
31, 1992, that it would modify the Respondent’s contract ‘‘to incor-
porate the current collective bargaining agreement dated November
7, 1991 . . . .’’
6 All dates hereafter are in 1992 unless otherwise noted.
Hilton’s Environmental, Inc. and Teamsters Local
Union No. 992, affiliated with International
Brotherhood of Teamsters, AFL–CIO. Cases 5–
CA–23065 and 5–CA–23512
December 22, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On March 31, 1994 Administrative Law Judge Wal-
ter H. Maloney issued the attached decision. The Re-
spondent, the General Counsel, and the Charging Party
filed exceptions and supporting briefs, and the Re-
spondent and the General Counsel filed answering
briefs.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 as modified and to adopt the recommended
Order as modified and set forth in full below.3
1. The judge found that the Respondent violated
Section 8(a)(5) by, inter alia, unilaterally changing the
method by which employees bid on schedule changes,
repudiating the contractual grievance procedure, dis-
continuing contributions to health, welfare, and pen-
sion funds, and by repudiating the contractual seniority
provisions. We affirm the judge’s findings for the fol-
lowing reasons only.
As more fully set forth in the judge’s decision, the
Respondent provides food services at Fort Ritchie,
Maryland, pursuant to a contract with the United States
Army that commenced October 1, 1992. Prior to that
date food services at the Fort Ritchie Dining Hall had
been provided by Son’s Quality Food. Both Son’s and
its predecessor at the site had a collective-bargaining
agreement with the Union covering their mess attend-
ants employed at Fort Ritchie. In December 1991,
prior to submitting a bid, the Respondent solicited
from all unit employees letters of intent that provided
that the employee agreed to work for the Respondent
if it was awarded the food service contract, which ex-
pired on September 30, 1992. The letters were revised
at the Union’s insistence to provide, in pertinent part,
that the Respondent would pay employees ‘‘in accord-
ance with wages as outlined in the agreement by the
General Teamsters and Allied Workers, Local Union
No. 992.’’4
The Army awarded the Fort Ritchie contract to the
Respondent in the spring of 1992,5 and the Respond-
ent’s officials visited the facility on several occasions
in the ensuing months in preparation for assuming the
contract on October 1. On July 28, 1992,6 the Re-
spondent’s president, Beverly Ashburn, was handed a
copy of the collective-bargaining agreement by Union
Business Agent Ted Viands. On August 13, Son’s
manager, Sue Wade, gave Ashburn a copy of the se-
niority list for the Son’s employees. Also in August,
Ashburn and Viands met at the facility to discuss the
contractual bidding procedure, with Ashburn indicating
that she wanted to change the seniority-based job bid-
ding procedure to one based largely on management
prerogative.
On September 8, the Respondent solicited applica-
tions for employment from all Son’s employees. All
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Thus, Union Business Agent Ted Viands testified that Ashburn
promised to ‘‘hire all the employees unless there was some problem
. . . in the interview process or the job application.’’ The judge
credited this testimony.
8 Moreover, these assurances were given against the background
of the Respondent previously having solicited letters of intent from
the employees in connection with its bid for the Ft. Ritchie contract,
and the past practice of the Respondent’s two predecessors of hiring
the incumbent employees.
9 Although the Board has subsequently clarified that it is not nec-
essary to determine whether an employer made a lawful Spruce Up
announcement when, as was the case in Fremont Ford, the employer
engaged in discriminatory hiring practices, the Board has affirmed
that Fremont Ford accurately interpreted the Spruce Up test. See
Canteen Co., 317 NLRB at 1054 fn. 6. We therefore find that the
analysis in Fremont Ford supports our conclusion that the Respond-
ent is a ‘‘perfectly clear’’ successor based on the similar factual cir-
cumstances present here.
10 In light of our finding above, we find it unnecessary to pass on
the judge’s alternative finding that the Respondent had agreed to as-
sume the Son’s collective-bargaining agreement.
employees also were briefly interviewed by the Re-
spondent’s management team. The following day, the
Respondent met with the employees and stated that it
intended to hire all Son’s employees unless some prob-
lem arose as a result of information disclosed on their
job application forms.7 Ashburn also told employees at
that meeting that there would be no changes in sched-
ules for the first 30 days but that she could not guaran-
tee that there would be no changes thereafter and that
employees should report at their normal duty hours on
October 1, the date the Respondent’s contract com-
menced. Ashburn also stated that employees would
begin with a clean slate as far as prior discipline im-
posed by Son’s was concerned, but that employees
would have to begin complying with certain work
rules mandated by the Army. The Respondent met
with the employees again later that month to discuss
the contractual bidding procedure. At that meeting,
Ashburn told Viands that she would begin negotiations
for a new contract after October 1.
The Respondent admits that it was a successor em-
ployer to Son’s at least as of September 28 but asserts
that it was nevertheless free to set initial terms and
conditions of employment. We disagree. It is well set-
tled that
[a]lthough a successor employer is ordinarily free
to set initial terms on which it will hire the em-
ployees of a predecessor, there will be instances
in which it is perfectly clear that the new em-
ployer plans to retain all of the employees in the
unit and in which it will be appropriate to have
him initially consult with the employees’ bargain-
ing representative before he fixes terms.
NLRB v. Burns Security Services, 406 U.S. 272, 294–
295 (1972). In Spruce-Up Corp., 209 NLRB 194, 195
(1974), enfd. 529 F.2d 516 (4th Cir. 1975), the Board
stated that the Burns ‘‘perfectly clear’’ caveat should
be restricted to circumstances in which the new
employer has either actively or, by tacit inference,
misled employees into believing they would all be
retained without change in their wages, hours, or
conditions of employment, or at least to cir-
cumstances where the new employer . . . has
failed to clearly announce its intent to establish a
new set of conditions prior to inviting former em-
ployees to accept employment.
Also, see generally Canteen Co., 317 NLRB 1052
(1995).
Applying these principles to the facts of this case,
we find that the ‘‘perfectly clear’’ caveat is applicable
in this case. Thus, as discussed above, the Respondent
had solicited applications from the employees on Sep-
tember 8, and had assured them the following day that
all would be hired unless some problem arose as a re-
sult of information disclosed on their applications or in
the interview process.8 Contrary to the Respondent,
there was no clear announcement at this time that it in-
tended to establish new terms and conditions of em-
ployment. See Fremont Ford, 289 NLRB 1290 (1988)
(employer told union it had doubts about retention of
only a few unit employees; employer’s stated desire to
change seniority and institute a flat rate insufficient to
indicate intent to establish new employment condi-
tions).9
To the contrary, the Respondent’s entire course of
dealing with the employees, including accepting the
December 1991 letters of intent that stated that the em-
ployees would work for the Respondent at the contrac-
tual wage rate, and the Army’s having advised the
Union, prior to the September 8 solicitation of applica-
tions, that the Respondent’s contract with the Army
was subject to the Service Contract Act and that the
Son’s collective-bargaining agreement would therefore
be incorporated into the contract, all indicated that the
Respondent did not intend to establish new terms and
conditions of employment. See Canteen Co., above;
Weco Cleaning, above; Fremont Ford, above. Accord-
ingly, we find that the Respondent violated Section
8(a)(5) by unilaterally changing existing terms and
conditions of employment.10
2. The judge also found that the Respondent violated
Section 8(a)(5) by failing to hire employees Emory and
Manahan. We disagree. As set forth above, the cred-
ited testimony reveals that the Respondent agreed at
meetings with employees that it would hire all employ-
ees; however, it is undisputed that this promise was
conditioned on the application and interview process.
Even assuming arguendo that a promise of this nature
is enforceable through Section 8(a)(5) of the Act, we
find that the Respondent’s failure to hire these two em-
ployees was consistent with its conditional undertaking
439HILTON’S ENVIRONMENTAL
11 Double A Coal, 307 NLRB 689 fn. 2 (1992), enfd. 17 F.3d
1434 (4th Cir. 1994), cited by the judge, is distinguishable as the
employer there was found to have violated Sec. 8(a)(5) by failing
to recognize ‘‘panel rights’’ of a predecessor employer’s employees
established by the National Bituminous Coal Wage Agreement after
it had agreed to do so in negotiations with the union. No undertaking
of this character was shown to have been made in this case.
12 In adopting the judge’s finding that the removal of the AFMIS
clerk position from the unit violated Sec. 8(a)(5), we find that the
Respondent unilaterally transferred unit work outside the unit. By
unilaterally changing the assignment of work to unit employees, a
mandatory subject of bargaining, the Respondent violated Sec.
8(a)(5) of the Act as alleged. Accordingly, we find it unnecessary
to pass on the judge’s alternative finding that the Respondent’s ac-
tions in this regard constituted an unlawful unilateral change in the
scope of the unit.
13 Art. V, sec. A of the Son’s collective-bargaining agreement pro-
vides that ‘‘every new or rehired employee shall be on probation for
the first sixty (60) days of employment or re-employment.’’
14 Moreover, its belated announcement in this regard was tied to
its unlawful announcement that it would not recognize the employ-
ees’ seniority in assigning work schedules.
15 As noted in his dissent, Member Cohen concludes that the Re-
spondent was free to set initial terms on the first day of operations,
October 1. The change in the probationary period, however, was not
announced or implemented until 1 week later. Accordingly, the Re-
spondent was under an obligation to bargain as to that matter.
set forth above inasmuch as the Respondent presented
uncontradicted evidence that it chose not to hire
Manahan and Emory based on their having worked
part-time schedules for Son’s and indications during
their interviews that they were either unable or unwill-
ing to work longer hours as the Respondent desired.
Accordingly, we dismiss this allegation.11
3. In light of the judge’s finding, which we adopt,
that the Respondent violated Section 8(a)(5) by reclas-
sifying the AFMIS clerical position as a ‘‘nonunit’’
job, we find it unnecessary to pass on the judge’s find-
ing that the Respondent’s unilateral removal of the po-
sition from the unit also violated Section 8(a)(3) as this
finding would not materially affect the remedy.12
4. The judge found that the Respondent lawfully im-
posed a new 60-day probationary period on its employ-
ees after it began operating the cafeteria on October 1,
1992. Thus, the judge noted that the expired collective-
bargaining agreement between the Union and Son’s
called for a 60-day probationary period for new or re-
hired employees.13 Based on his finding that the Re-
spondent had adopted the Son’s collective-bargaining
agreement, the judge concluded that a probationary pe-
riod was an established condition of employment for
unit employees. The judge further found that the Re-
spondent effectively hired or rehired these employees
when it commenced operations. Under these cir-
cumstances, the judge concluded that the Respondent’s
imposition of a probationary period when it assumed
operations did not constitute a unilateral change in
terms and conditions of employment.
We disagree. As set forth above, we have found that
the Respondent was a successor employer to Son’s
based on its announcement that it would retain vir-
tually all of the unit employees without changes in
terms and conditions of employment. In this regard, we
particularly note that the Respondent made no an-
nouncement that a probationary period would be im-
posed until 6 or 7 days after it commenced oper-
ations.14 Contrary to the judge, the imposition of a
probationary period on existing unit employees con-
stituted a unilateral change in terms and conditions of
employment under the circumstances of this case.
Thus, the Respondent imposed this condition of em-
ployment on existing unit employees, many of them
with years of service with the various contractors at
this facility, without regard to whether the individual
had previously completed their probationary period
with Son’s pursuant to the collective-bargaining agree-
ment. The imposition of an additional probationary pe-
riod was, therefore, inconsistent with the established
past practice of Son’s and was not authorized by the
collective-bargaining agreement. To allow the Re-
spondent to rely on its status as a successor employer
to justify this action would be inconsistent with estab-
lished successorship principles, especially in light of
our finding, above, that the Respondent is a Burns
‘‘perfectly clear’’ successor. See generally Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27
(1987)(successorship finding rests on, inter alia, ‘‘con-
tinuity of the employing industry.’’). See also Kirby’s
Restaurant, 295 NLRB 897, 901 (1989) (failure to
give credit for seniority accrued with predecessor un-
lawful).15
AMENDED REMEDY
The judge’s recommended remedy inadvertently
failed to include a general make-whole provision for
any losses suffered by employees as a result of the Re-
spondent’s unilateral changes in terms and conditions
of employment. In this regard, although the judge did
include a provision requiring the Respondent to rem-
edy its unlawful discontinuance of fringe-benefit con-
tributions by making payments to the specified fringe-
benefit trust funds, the judge neglected to include the
additional requirement that the Respondent make
whole employees for any expenses that they may have
incurred as a result of the Respondent’s failure to
make the required contributions in the manner set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).
All payments to employees shall be made in the
manner set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), and Ogle Protection Service, 183 NLRB
682 (1970), with interest computed in the manner set
forth in New Horizons for the Retarded, 283 NLRB
1173 (1987).
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 We leave to compliance the issue concerning the amount of
backpay for any strikers whom the Respondent, in the future, unlaw-
fully fails to reinstate.
We agree with the judge that striking employees are
entitled to the rights and privileges of unfair labor
practice strikers and we have included the appropriate
remedial provision in our Order.16
ORDER
The National Labor Relations Board orders that the
Respondent, Hilton’s Environmental, Inc., Fort Ritchie,
Maryland, its officers, agents, successors, and assigns,
shall take the following actions necessary to effectuate
the purposes of the Act.
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Teamsters Local Union No. 992, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO as the
exclusive bargaining representative of the employees in
the following appropriate unit:
All food service employees and AFMIS clerks
employed by the Respondent at its Fort Ritchie,
Maryland facility, excluding cooks and super-
visors as defined in the Act.
(b) Failing and refusing to bargain in good faith by
insisting on bargaining to impasse over the issue of
withdrawing unfair labor practices as a condition of
reaching an agreement.
(c) Unilaterally modifying wages, hours, and other
terms and conditions of employment for unit employ-
ees.
(d) Unilaterally discontinuing payments to health,
welfare, and pension funds as required by the expired
collective-bargaining agreement between the Union
and Son’s Quality Foods.
(e) Unilaterally repudiating the grievance procedure
established by an expired collective-bargaining agree-
ment between the Union and Son’s Quality Foods.
(f) Unilaterally reassigning bargaining unit work to
nonunit employees.
(g) Promulgating or enforcing rules prohibiting em-
ployees from discussing matters relating to wages,
hours, or terms and conditions of employment outside
the dining hall or with individuals other than employ-
ees of the Respondent.
(h) Denying unit employees requested union rep-
resentation at or during investigatory interviews.
(i) Discouraging membership in the Union or any
other labor organization by failing and refusing to rein-
state unfair labor practice striker Ann Wilkes on her
unconditional request to return to work.
(j) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of employees in the appropriate unit
concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement.
(b) On request of the Union, rescind the above uni-
lateral changes until such time as the Respondent ne-
gotiates in good faith with the Union to agreement or
to impasse and make its employees whole for all losses
suffered as a result of its unlawful unilateral changes
in the manner set forth in the amended remedy section
of this decision.
(c) Pay to the Union’s health, welfare, and pension
funds all amounts of money due and owing, in the
manner set forth in the remedy section of the judge’s
decision.
(d) On request of the Union, reinstate the grievance
procedure established by the expired collective-bar-
gaining agreement between the Union and Son’s Qual-
ity Foods and process all pending grievances pursuant
to that procedure.
(e) On request by the Union, reassign the AFMIS
clerical work unit work to bargaining unit employees;
and in the event of such reassignment make Linda
Florentine whole, with interest, for any losses she may
have suffered as a result of this change in the manner
set forth in the amended remedy section of this deci-
sion.
(f) Rescind its unlawful rules prohibiting employees
from discussing matters relating to wages, hours, or
terms and conditions of employment outside the dining
hall or with individuals other than employees of the
Respondent.
(g) Offer Ann Wilkes immediate and full reinstate-
ment to her former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges pre-
viously enjoyed, and make her whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, in the manner set forth in
the remedy section of the judge’s decision.
(h) Remove from its files any reference to the un-
lawful discharge of Ann Wilkes and notify her in writ-
ing that this has been done and that the discharge will
not be used against her in any way.
(i) Accord all striking employees from the strike that
started on October 14, 1992, the rights and privileges
of unfair labor practice strikers, including, on their un-
conditional application, offering strikers not heretofore
reinstated immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges previously en-
joyed, and make whole for loss of earnings strikers
441HILTON’S ENVIRONMENTAL
17 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 Consistent with this view, the Respondent did not hire employees
Emory and Manahan. My colleagues correctly dismiss an 8(a)(5) al-
legation as to these two employees.
2 I need not reach the second part of the ‘‘plans to retain all’’ test,
i.e., whether the Respondent led employees to believe that employ-
ment conditions would remain the same. See my dissenting opinion,
joined by former Member Stephens, in Canteen Co., 317 NLRB
1052, 1055 (1995).
who have made themselves available for employment
on an unconditional basis but who were refused rein-
statement.
(j) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(k) Post at its Fort Ritchie, Maryland facility copies
of the attached notice marked ‘‘Appendix.’’17 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 5, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(l) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER COHEN, dissenting in part.
In my view, it was not ‘‘perfectly clear’’ that the
Respondent, prior to the start of operations on October
1, 1992, planned to retain all of the predecessor’s em-
ployees. Although the Respondent solicited applica-
tions from all of those employees, it made it clear to
them that their employment would depend on whether
they survived their interviews and a scrutiny of their
job applications.1 Thus, there was no firm offer of em-
ployment to all of the employees, or indeed to any of
the employees. Consequently, the Respondent was free
to unilaterally set its own initial terms and conditions
of employment on October 1.2
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail and refuse to bargain in good
faith with Teamsters Local Union No. 992, affiliated
with International Brotherhood of Teamsters, AFL–
CIO as the exclusive bargaining representative of our
employees in the following appropriate unit:
All food service employees and AFMIS clerks
employed by us at our Fort Ritchie, Maryland fa-
cility, excluding cooks and supervisors as defined
in the Act.
WE WILL NOT fail and refuse to bargain in good
faith by insisting on bargaining to impasse over the
issue of withdrawing unfair labor practices as a condi-
tion of reaching an agreement with the Union.
WE WILL NOT unilaterally modify wages, hours, and
terms and conditions of employment for unit employ-
ees.
WE WILL NOT unilaterally discontinue payments to
health, welfare, and pension funds as required by an
expired contract between the Union and Son’s Quality
Foods.
WE WILL NOT unilaterally repudiate the grievance
procedure established by an expired contract between
the Union and Son’s Quality Foods.
WE WILL NOT unilaterally reassign bargaining unit
work to nonunit employees.
WE WILL NOT promulgate or enforce rules prohibit-
ing employees from discussing matters relating to
wages, hours, or terms and conditions of employment
outside the dining hall or with individuals other than
our employees.
WE WILL NOT deny unit employees requested union
representation at or during investigatory interviews.
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent admits, and I find, that it is a Virginia corporation
that maintains a place of business at Fort Ritchie, Maryland, where
it has a contract with the United States Army to provide food service
to military personnel. During the preceding year, Respondent pro-
vided food service to the United States Army valued in excess of
$50,000 and services outside the State of Maryland valued in excess
of $50,000. Accordingly, the Respondent is an employer engaged in
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act.
Teamsters Local Union No. 992, affiliated with the International
Brotherhood of Teamsters, AFL–CIO (the Union) is a labor organi-
zation within the meaning of Sec. 2(5) of the Act.
2 The principal docket entries are as follows:
Charge was filed in Case 5–CA–23065 by the Union against the
Respondent on October 15, 1992; complaint was issued against the
Respondent by the Regional Director for Region 5, on March 31,
1993; Respondent’s answer was filed on April 4, 1993; charge was
filed in Case 5–CA–23512 by the Union against the Respondent on
May 3, 1993, and amended on the same day; consolidated complaint
in both cases was issued by the Regional Director for Region 5,
against the Respondent on July 9, 1993, and amended on August 5,
1993; Respondent’s answer was filed on August 18, 1993; the hear-
ing was held by me at Hagerstown, Maryland, on November 16–18;
and briefs were filed with me on or before January 18, 1994.
WE WILL NOT discourage membership in the Union
or any other labor organization by failing and refusing
to reinstate unfair labor practice striker Ann Wilkes on
her unconditional request to return to work.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of employees in the appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement.
WE WILL, on request of the Union, rescind the
above unilateral changes until such time as we nego-
tiate in good faith with the Union to agreement or to
impasse and WE WILL make whole our employees for
all losses suffered as a result of the unilateral changes,
with interest.
WE WILL pay to the Union’s health, welfare, and
pension funds all amounts of money due and owing,
with interest.
WE WILL, on request of the Union, reinstate the
grievance procedure established by an expired contract
between the Union and Son’s Quality Foods and proc-
ess all pending grievances pursuant to that procedure.
WE WILL reassign the AFMIS clerical work unit
work to bargaining unit employees; and, in the event
of such reassignment, WE WILL make whole Linda
Florentine, with interest, for all losses she may have
suffered as a result of the assignment of this work to
nonunit employees.
WE WILL rescind our unlawful rules prohibiting em-
ployees from discussing matters relating to wages,
hours, or terms and conditions of employment outside
the dining hall or with individuals other than our em-
ployees.
WE WILL offer Ann Wilkes immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed, and make her whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against her.
WE WILL remove from our files any reference to the
unlawful discharge of Ann Wilkes and notify her in
writing that this has been done and that the discharge
will not be used against her in any way.
WE WILL accord all striking employees from the
strike that started on October 14, 1992, the rights and
privileges of unfair labor practice strikers, including,
on their unconditional application, offering strikers not
heretofore reinstated immediate and full reinstatement
to their former jobs or, if their jobs no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges pre-
viously enjoyed, and WE WILL make whole for loss of
earnings strikers who have made themselves available
for employment on an unconditional basis but who
were refused reinstatement.
WE WILL preserve and, on request, make available
to the Board or its agents for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
HILTON’S ENVIRONMENTAL, INC.
Brenda V. Harris, Esq., for the General Counsel.
Douglas M. Topolski, Esq. and Gerard D. St. Ours, Esq., for
the Respondent.
Hugh J. Beins, Esq., of Washington, D.C., for the Charging
Party.
DECISION
FINDINGS OF FACT
A. Statement of the Case
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me on consolidated unfair
labor practice complaint,1 issued by the Regional Director for
Region 5, which alleges that Respondent Hilton’s Environ-
mental, Inc.,2 violated Section 8(a)(1), (3), and (5) of the
Act. More particularly, the consolidated complaint alleges
that the Respondent, a successor contractor for food services
at an Army base, violated Section 8(a)(1) of the Act by pro-
mulgating and maintaining a rule which forbade employees
from discussing with anyone, including other employees, any
activities or events occurring at the Respondent’s facility and
by renouncing the grievance procedure contained in a collec-
tive-bargaining agreement. The consolidated complaint fur-
ther alleges that the Respondent violated Section 8(a)(3) of
the Act by refusing to reinstate striking employee Ann
Wilkes to her former position at the conclusion of a strike
443HILTON’S ENVIRONMENTAL
3 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
4 The General Counsel moved to make certain corrections in the
transcript. Her motion was unopposed and is granted. Errors in the
transcript have been noted and corrected.
5 The Fort Ritchie contract is the only food service contract that
the Respondent is servicing. Its other contracts are for janitorial and
maintenance services.
that was (and still is) in progress. It also alleges that the Re-
spondent violated Section 8(a)(5) of the Act by ceasing to
make health and welfare payments on behalf of employees
to the Hagerstown Motor Carriers and Teamsters Health and
Welfare Fund, unilaterally removing the position of clerk or
keypunch operator from the bargaining unit, unilaterally
changing certain terms and conditions of employment, viz,
work scheduling, abolishing seniority, and placing employees
on 60-day probation, and by insisting to impasse during ne-
gotiations that the Union withdraw pending unfair labor prac-
tice charges as a condition of reaching an agreement. It al-
leges that the Respondent breached a legal duty to hire two
of its predecessor’s employees, Annamarie Manahan and
Wendy Emory, and alleges a violation of Section 8(a)(5) of
the Act on the part of the Respondent by denying employee
Barbara Varner union assistance and representation during a
disciplinary interview in violation of the Weingarten rule.3
Although acknowledging its status as a successor to a pre-
vious government contractor and its duty to bargain with the
Charging Party, the Respondent denies any commitment to
retain the specific benefits and practices at issue, denies re-
pudiating a duty to grieve, denies making any other unilateral
changes, and denies bargaining to impasse over the question
of withdrawing unfair labor practices. It contends that Varner
consented to the interview in question and that the interview
at issue was not disciplinary in character. It also asserts that
Wilkes forfeited her right of reinstatement by egregious mis-
conduct in spreading false rumors that the Respondent food
service was poisoning soldiers. The Respondent also denies
any commitment to hire Manahan and Wilkes. On these con-
tentions, the issues here were drawn.4
B. The Unfair Labor Practices Alleged
Respondent is a government contractor owned by its presi-
dent, Beverly Ashburn. She is also the operating chief of the
facility in question in this case. Her husband, Dilton
Ashburn, the vice president of the organization, manages the
performance of their government contract at Ft. Eustis, Vir-
ginia.5 The Respondent maintains its office and place of
business in Newport News, Virginia, where it also has a few
private janitorial and maintenance contracts. The Respondent
has been certified by the Small Business Administration as
a minority-owned business. It bid the food service contract
at Ft. Ritchie under the auspices of a Federal program de-
signed to assist minority-owned businesses.
The U.S. Army Garrison at Ft. Ritchie, Maryland, is the
headquarters of the 7th Signal Command. It is located near
the Pennsylvania state line just north of Hagerstown. Its on-
post mess facilities have long been operated by civilian con-
tractors who typically have held 3-year contracts with the
Government that are awarded on the basis of sheltered mar-
ket competitive bids. The mess facility, called the High Rise
Garden Dining Hall, can accommodate slightly more than
100 patrons at any given meal, although it does not always
enjoy such patronage at each meal. The mess hall serves 21
meals per week. It is limited to soldiers and others who nor-
mally pay either by separate ration cards issued by military
commanders or at fixed rates that are established by the
Army. Previous contracts were performed by a combination
of government-employed cooks and contractor-employed
mess attendants. The privately employed bargaining unit was
composed chiefly of mess attendants who served the food
and cleaned up the cafeteria. It numbered between 12 and 14
employees. When the Respondent took over on October 1,
1992, it had been awarded a full service contract, meaning
that it was required to employ cooks on its own payroll. In
order to do so, it hired two cooks who had formerly worked
for the Army.
The Union had represented employees in the Fort Ritchie
dining facility under two contractors, Mann, Huntley, and
Hendricks and the contractor who immediately preceded the
Respondent, Son’s Quality Food Company of Washington,
D.C. On November 7, 1991, it concluded a contract with
Son’s, effective retroactively to October 1, 1991. The con-
tract was for 1-year duration, with provisions for automatic
renewal unless either party gave timely notice of a desire for
revision.
Although food service contractors at the High Rise Gar-
dens came and went, a fairly regular and stable complement
of employees remained in place. There were two employees,
who were hired by the Respondent in October 1992, that had
worked at the dining hall since the 1970s and several others
who started in the early 1980s. The Son’s shop steward, Vic-
toria Florentine, who started as a mess attendant in 1977, tes-
tified credibly that in December 1991, nearly a year before
the Respondent took over the food service contract, a com-
pany representative, in anticipation of submitting a bid, vis-
ited the Fort Ritchie facility and asked Son’s employees to
sign letters of intent indicating that they would come to work
for the Respondent if it became the successful bidder. Such
letters of intent are an important part of a bid submission in
that they support a finding by the Army that the Respondent
would be able to staff the facility if it were awarded the con-
tract.
The letter presented by the Respondent to Son’s employ-
ees was a form it had composed stating that the employee’s
‘‘rate of pay shall be in accordance with government wage
determinations as included in the above-mentioned [bid] so-
licitation.’’ Several employees questioned this language, as
did Florentine, so she phoned Ted W. Viands, the Union’s
business agent, and reported the matter to him. Viands in-
structed her to tell other employees not to sign the letters of
intent as presently worded. Viands then consulted Union
Lawyer Hugh J. Beins and then phoned Ashburn to ask her
to revise the letters of intent to reflect a rate of pay in ac-
cordance with the current Teamsters’ contract. Ashburn
agreed and forwarded to the dining facility revised forms that
were then executed by Son’s employees in mid-December
1991. The revised letters of intent, printed on Hilton’s letter-
head, read:
Should Hilton’s Environmental, Inc. be awarded the
Food Service Contract identified as Solicitation
DAEAO–91–R–0009 by the Department of the Army at
Fort Ritchie, Maryland, for the next contract period, I
[name of employee printed] agree to work for Hilton’s
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Ashburn testified that it seemed to her that every time she
showed up at the dining hall, Viands showed up as well.
7 Ashburn testified that she never received a copy of the Son con-
tract with the Union until after the Respondent took over the dining
facility on October 1, 1992, because the contract in question was not
a part of the bid solicitation package given to her by the Govern-
ment. Although the contract in question was not part of the bid so-
licitation package, Ashburn was well aware of its existence as early
as December 1991, when she received from Son employees letters
of intent referencing that contract. She later admitted that she had
received a copy of the union contract from the Government but not
as part of the bid solicitation package. Viands furnished her another
copy of the contract on July 28, 1992, along with proposed revisions
that referenced the contract. In mid-August 1992, Ashburn made a
proposal to Viands aimed at modifying the Son contract relative to
job bidding and seniority. These events are totally at variance with
any contention that she did not have a copy of the contract or was
unaware of its contents. Moreover, on September 8, Florentine gave
her several copies of the Son’s contract.
8 In evidence is a want-ad, appearing in the August 19, 1992 issue
of the Waynesboro (Penna.) Herald-Gazette which stated:
Positions Available
Project manager, Assistant Manager, Cooks, Mess Attendants
Clerk. Apply in person Thurs. Fri. Sat. & Mon, August 20, 21,
22, & 24 from 10 am til 3 pm at
The Jackson Suite
Holiday Inn
900 Dual Highway, Hagerstown
The record is unclear whether or not this is the ad that Wade
placed but it is admitted that the ad was placed by the Respondent.
9 Ashburn also testified that she did not receive a copy of Son’s
seniority list until early in November when her attorney, who had
procured such a list from the Army contracting officer, gave one to
her. I also discredit this testimony. As noted above, Wade gave her
such a list on September 8; Florentine, at Ashburn’s request, also
provided her with a handwritten list of Son employees together with
dates of hire. While doing so, she also discussed with Ashburn cer-
tain aspects of the list that were not apparent from its text. Indeed,
there is testimony from the Respondent, which I discredit infra, to
the effect that Chiado asked Florentine on September 28 to make up
the employee assignments for opening day by assigning employees
to the list of job duties prepared by the Respondent in order of se-
niority. When a dispute over seniority arose early during the Re-
spondent’s regime, Ashburn complained that the list furnished her by
Florentine was not ‘‘official’’ although it was identical to other se-
niority lists in evidence in this case.
10 In this proceeding, both Ashburn and Chiado, testified at length
on behalf of the Respondent. Both gave argumentative testimony that
was sometimes at a variance with admitted documents, sometimes at
a variance with each other, and often in conflict with corroborated
testimony presented by the General Counsel. I discredit both of them
and would not rely on the testimony of either of them as to any dis-
puted factual issue.
11 The other purpose served by seniority ranking was the selection
of vacations.
Environmental, Inc., in the capacity of [job classifica-
tion]. The rate of pay for my employment shall be in
accordance with wages as outlined in the agreement by
the General Teamsters and Allied Workers, Local
Union No. 992. I also agree to perform my duties as
required by the Contract specifications and according to
the Collective Bargaining Agreement with General
Teamsters and Allied Workers Local 992.
These letters of intent were signed by all employees, turned
over to Sue Wade, Son’s manager on the premises, and for-
warded by her to the Respondent.
Respondent was awarded the Ft. Ritchie contract in the
spring of 1992. On July 28, Ashburn visited the dining hall
in the company of her husband. Florentine and Viands were
present.6 I credit Viands’ corroborated testimony that he pre-
sented Ashburn on this occasion with a copy of the Union’s
contract with Son, together with a list of changes that he was
seeking in that contract.7 Ashburn told Viands that she had
not come to Ft. Ritchie prepared to negotiate a contract at
that time and would set up a meeting with Viands for pur-
poses of negotiation when she visited the premises again in
August.
On August 13, Ashburn again visited the dining hall and,
in the course of her visit, spoke with Sue Wade, Son’s man-
ager. She asked Wade to place an ad in the local paper for
cooks, a job classification that Son did not employ. Wade
agreed to do so.8 Ashburn then asked Wade if the present
employees would be interested in voting on whether or not
to have a union. Wade replied that most of the current em-
ployees would go for a union. She added that one employee
had not yet joined but she probably would. Ashburn then
told Wade that the Government had told her that she could
get rid of the Union and that it would supply her with a law-
yer to help her do so. I credit Wade’s testimony that, on this
occasion, she made a copy of the Son’s employee list9—a
list showing dates of hire of all employees which Wade used
as a seniority list—and gave it to Ashburn.10
Sometime in August, when Ashburn again came to the fa-
cility, Viands received a call from the shop steward to the
effect that Ashburn wanted to talk with him. Viands went to
the dining hall and met with Ashburn, her future Manager
Chung (Connie) Chiado, and her future Assistant Manager
Martin Jackson. Viands brought Florentine into the conversa-
tion. Since she was the steward, Ashburn told Viands that all
she wanted to talk about on that occasion was the contract
bidding procedure.
The Union contract with Son provided that job assign-
ments should be made on the basis of seniority.11 The proce-
dure that had been followed was that, twice a year, bid meet-
ings were held. Son management made up work schedules
(i.e., job slots) and offered them to employees in order of se-
niority. Each employee then selected his or her preferred
time slot for the ensuing 6 months and until another bid
meeting might take place. Ashburn told Viands that she
wanted to do away with this procedure. She preferred to
have only three classifications under the contract—salad
maker, rations driver, and mess attendants. Under her pro-
posal there would be only one salad maker and one rations
driver that paid slightly higher rates then mess attendant. She
proposed to offer those positions to the most senior employ-
ees and to assign all the other jobs to mess attendants on the
basis of management prerogative. Viands replied that her
proposal was entirely unacceptable. He pointed out that the
job-bidding procedure in the collective-bargaining agreement
had been in place for years and had worked well. He argued
that it was a very important procedure as most employees at
the dining hall had other jobs or had children to care for and
445HILTON’S ENVIRONMENTAL
12 A relevant provision of the Service Contract Act reads:
No contractor or subcontractor under a contract, which succeeds
a contract subject to this Act and under which substantially the
same services are furnished, shall pay any service employee
under such contract less than the wages and fringe benefits, in-
cluding accrued wages and fringe benefits, and any prospective
increases in wages and fringe benefits provided for in a collec-
tive-bargaining agreement as a result of arm’s length negotia-
tions, to which such service employees would have been entitled
if they were employed under the predecessor contract.
13 The parties both agree that, at present, cooks should be excluded
from the mess attendant bargaining unit. However, in later negotia-
tions, discussed infra, the parties agreed that cooks would be in-
cluded in the unit if a majority of them signed union designation
cards.
14 Over an objection based on the hearsay rule, I permitted Flor-
entine to testify to these matters for the limited purpose of showing
her understanding and the understanding of Son employees in filling
out the Respondent’s job application form but not for the purpose
of establishing an agreement had been concluded between Ashburn
and Viands concerning the purported amendment to the form. The
General Counsel never established this agreement through any other
evidence and Ashburn denied agreeing to a revision. Accordingly, I
do not find an agreement between the parties to amending the terms
of the disputed section but find that Son employees continued to fill
out job applications under the belief that they were protected by the
provisions of their current contract respecting discharge.
15 Manahan held a full-time job at a hospital in Waynesboro dur-
ing the regular workweek.
16 AFMIS stands for army food management information system.
As evidence of her completion of the course, Florentine received a
large certificate that she displayed in Son’s office at the dining hall.
job bidding enabled them to plan their days accordingly.
Nothing was resolved on this issue.
During the month of August, other problems between the
Union and the Respondent arose, notwithstanding the fact
that the Respondent had not yet taken over the performance
of the dining room contract. When Ashburn’s remarks to
Wade, i.e., that she had been told by the Government that
she did not have to have a union, were reported to Viands,
he phoned Attorney Beins in Washington and relayed these
remarks to him. Beins then phoned Wayne E. Hoffman, the
Army’s contracting officer at Ft. Ritchie, and challenged him
about the remarks. Hoffman denied making them but, in the
course of the conversation, told Beins that the service con-
tract did not apply to the Respondent’s contract.12 On hear-
ing this statement, Beins phoned government officials in the
Department of Labor and the Pentagon to protest. He also
wrote Hoffman a letter, dated August 14, insisting that the
addition of three to five cooks to the bargaining unit did not
remove the Respondent’s contract from coverage by the
Service Contract Act. He threatened both legal and strike ac-
tion and filed a formal protest against the award of the con-
tract to the Respondent on the basis that it violated the labor
standards in the Service Contract Act.
Hoffman replied to Beins’ letter on August 31. In his let-
ter, Hoffman denied the protest of the award. He stated,
however:
Upon further review of the Service Contract Act, I in-
tend to modify Contract DAEA08–92–C–0016 to incor-
porate the current collective bargaining agreement dated
November 7, 1991 from the Mess Attendant Contract,
DAEA08–89–V–0037 issued to Son’s Quality Food
Service via the Small Business Administration. This
agreement will apply only to those positions under the
new contract that provide substantially the same serv-
ices as provided by the previous bargaining unit.13
He subsequently did so.
On or about September 8, Ashburn and her management
team again came to the dining facility. On this occasion they
asked Son’s employees to fill out applications for employ-
ment with the Respondent. The four-page application form
that the Respondent presented to each applicant contained the
statement:
I hereby understand and acknowledge that, unless other-
wise defined by applicable law, any employment rela-
tionship with this organization is of an ‘‘at will’’ na-
ture, which means that the Employee may resign at any
time and the Employer may discharge an Employee at
any time with or without cause. It is further understood
that this ‘‘at will’’ employment relationship may not be
changed by any written document or by conduct unless
such change is specifically acknowleged in writing by
an authorized executive of this organization.
One employee complained to Florentine, her shop steward,
about the ‘‘discharge for cause’’ provision in the application.
Florentine told her not to sign the application until she had
spoken with Viands about the matter. She called Viands, re-
layed the complaint, and was told by Viands to instruct em-
ployees not to complete the application forms. He later
phoned Florentine and told her that he had made an agree-
ment with Ashburn that the discipline and discharge proce-
dures of the Son contract would govern terminations of the
Respondent’s employees. Having received these instructions,
Florentine then told employees it would be alright to com-
plete the forms.14
Among the employees who completed and filed applica-
tion forms were Annamarie Manahan, who worked for Son
only on weekends, and Wendy Emory, who worked for Son
on a fill-in basis when other employees were out sick or on
vacation. Emory worked an average of 20 hours a week. All
employees were interviewed briefly by the Respondent’s en-
tire management team. Manahan was told that the Respond-
ent was trying to get away from the idea of weekend work.
Manahan replied that the weekend shifts were her shifts and
that these were the shifts for which she had been hired by
Son.15 They also discussed the fact that Manahan was preg-
nant and had a November 22 due date. She was asked if she
wanted to work until her due date. She replied that she did.
During Emory’s interview, she was asked if she would be
willing to work more than 20 hours a week. She said that
she would be glad to have more hours if she could get them.
No Son employee, including Manahan and Emory, was told
by the interviewers on this occasion whether or not they
would be hired when the Respondent took over the manage-
ment of the facility.
During the summer of 1992, Florentine, who had been em-
ployed by Son and its predecessors since 1977 as a mess at-
tendant, was given 40 hours of training by the Department
of the Army in the operation of a computerized food inven-
tory control and ordering system called AFMIS.16 From July
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 At that time, the Respondent’s contract with the Army was re-
vised to give the Respondent a $19,000 additional annual payment
to cover the cost of employing an AFMIS computer operator. Son
had financed the wages and benefits of its AFMIS clerk, Florentine,
out of its basic fee.
18 I credit Viands’ testimony that, on this date, Ashburn told him
that she would hire all of Son’s employees unless some problem
arose as a result of information disclosed on their job application
forms.
19 There is every indication in this record that several duty require-
ments imposed on food service contractors by Army regulations
were honored more in the breach than in the observance by Son. The
changes announced by Ashburn on September 9 were an irritant to
employees who were accustomed to a more easygoing operation. As
the General Counsel did not allege, however, that this tightening up
of on-the-job conduct to comply with military regulations constituted
unilateral conduct in derogation of the Respondent’s duty to bargain,
I will not dwell on it in any length.
20 Union witnesses place this meeting on September 23 while the
Respondent insists that it took place on September 14. The choice
between these two dates is immaterial so I will make none.
21 Ashburn stated that she told employees on this occasion that it
was the Respondent’s practice to observe seniority. At the hearing,
however, she insisted that she had not promised to observe Son’s se-
niority. When asked what she meant by seniority, she replied that
to her it meant whoever had been there the longest.
until the Respondent assumed the management of the dining
hall, Florentine was assigned on a full-time basis to operate
the computer in Son’s office and to maintain the AFMIS in-
ventory control over the food that was being ordered and
served. During her job interview with the Respondent’s man-
agement team, Ashburn told Florentine that the clerk’s posi-
tion could not be unionized because the job involved close
cooperation with management and a conflict of interest
would arise, in her opinion, if a union member were to hold
the position. She added that there would be an even larger
conflict of interest if the clerk’s position were to be held by
a shop steward. Florentine replied that if, in the course of a
business day, members of management wanted to hold a pri-
vate discussion in the office she could simply leave the
room. Ashburn then asked Florentine if she would consider
leaving the Union. Florentine replied that she could not do
so because she had children to support and needed to retain
union insurance and vacation benefits.
When the Respondent took over on October 1, Florentine
was assigned to a mess attendant position while different
members of the management team assumed the responsibility
for the AFMIS program. They were later given a course of
instruction in the program so that they could operate it. In
July 1993, the Respondent hired a computer operator, Debo-
rah Gordon, to fill this position. She now works an 8-hour
week on the job.17
On September 9, Ashburn held a meeting with Son’s em-
ployees at the dining room. All were present except Emory
and Manahan. Viands also attended this meeting. I credit the
testimony of several employees to the effect that, on this
date, Ashburn promised to hire all of Son’s employees who
had filled out job applications.18 She also stated that there
would be no changes in employee schedules for the first 30
days but she could not assure anyone that there would be no
changes thereafter. The management team wanted to observe
the operation in progress and this observation might well
bring about some changes. Employee Ann Wilkes asked if
employees would be given advance notice in the event of
changes; Ashburn replied that there would be ample notice.
Florentine broke into the discussion to state that many em-
ployees had small children and had to make adjustments in
child care arrangements before they could work different
hours. Ashburn repeated that they would get plenty of notice.
Ashburn admitted in her testimony that she told employees
they should report for work on October 1 at their normal
duty hours.
Employee Max DuPont questioned her about the effect of
prior disciplinary actions. Ashburn told him that all employ-
ees would start with the Respondent with a clean slate. She
then went on to outline certain job requirements and restric-
tions that would be put in place when the Respondent took
over.19 Employees would not be allowed to bring drinks
from home into the cafeteria and would not be allowed to
purchase soft drinks independently of the purchase of an en-
tire meal. The employer would furnish uniforms but employ-
ees were not to wear hairnets or jewelry, other than wedding
rings. Employees also would not be allowed to leave the
premises during breaks. They would also have to wear shoes
similar to the ones worn by nurses in hospitals; tennis shoes
were no longer permissible. Florentine asked if employees
could use the phone to call home. Chiado appeared hostile
to this suggestion but Ashburn said that it would be a matter
of management discretion. Employee Tina Donnelly asked if
she could leave her shift early to put her child on the school-
bus and was told that this was no longer permissible. Em-
ployee Barbara Varner asked if the Company would supply
employees with a written list of company rules and regula-
tions. Ashburn said that it would be done before October.
Chong Callahan, a Korean employee, inquired whether there
might be any problems since she and Chiado would be the
only Koreans working for the Respondent and others might
suggest favoritism. Ashburn said that she did not anticipate
favoritism by one Korean to another any more than she
would anticipate favoritism toward black employees by her-
self. She noted that the employees had worked under white
managers when the establishment was operated by white
contractors. Florentine interjected to say that the establish-
ment had never been operated by a white contractor. Em-
ployees were told that they should not socialize with the sol-
dier customers of the dining hall nor should they socialize
with the Respondent’s management, who should be ad-
dressed as ‘‘Mr.’’ or ‘‘Mrs.’’ and not by their first names.
Later in the month, another employee meeting occurred
that was attended by Viands.20 The purpose of this meeting,
from the Union’s standpoint, was to explain the contract bid-
ding procedure for filling jobs by seniority and to insist that
this be done when the Respondent took over.21 During this
meeting, Ashburn said that there were things in the Son con-
tract she had never seen in any other union contract. Viands
challenged her on this point, asking her what other union had
she ever dealt with. Ashburn took offense at this question.
They immediately left the employee gathering and spoke pri-
vately. Ashburn objected to Viands that he was calling her
a liar in front of her work force. She demanded a written
apology. No written apology was made by Viands. He said
something, however, to employees on their return to the
main meeting to calm the situation. There is an immaterial
447HILTON’S ENVIRONMENTAL
22 Since a return receipt of the certified letter was mailed back to
Viands rather than the letter itself, I conclude that the Respondent
received the September 23 letter on September 28, as indicated on
the receipt. Ashburn attempted to excuse or justify her delay in chal-
lenging statements in Viands’ letter for 5 weeks on the basis that
she did not obtain possession of the letter until her attorney gave it
to her. She did not explain, either in the above letter or at the hear-
ing, how or when her attorney came into possession of this letter.
Maciejczyk is no longer associated with the firm of Miles and
Stockbridge and is practicing law in Texas. He was not summoned
to enlighten the record on this or other points at issue in this case.
23 Chiado testified that, on September 28, in anticipation of the
first day of work for the Respondent, she furnished Florentine, the
shop steward, with a list of jobs that had to be filled on the first
day and asked her to assign the work to employees in order of se-
niority. She also assertedly asked Florentine to contact each em-
ployee to tell them when to report. This testimony is contrary to
what Ashburn testified, contrary to what any employee testified, and
contrary to what in fact occurred on October 1, when employees re-
ported. In short, her testimony was a complete and unvarnished fab-
rication.
24 Under normal seniority rules, Martin, a nonunion employee
under Son, would not have been on the Son seniority list and, as
a new unit employee under the Respondent, would have gone to the
bottom of the seniority roster. Apparently this did not occur and, be-
cause it did not occur, grievances were immediately filed.
dispute in the record as to whether his remarks constituted
an apology. Sometime during this meeting, Ashburn told Vi-
ands that she would begin negotiations for a new contract
after October 1.
On September 23, 1992, Viands wrote a certified letter to
Ashburn and addressed it to the Respondent’s office in New-
port News. The letter read, in pertinent part:
In accordance with our conversation, I wish to con-
firm our agreement concerning the food service em-
ployees at Ft. Ritchie, Maryland. You have agreed as
follows:
1) To hire the employees of the predecessor em-
ployer effective October 1, 1992.
2) To recognize Local 992 as the exclusive bar-
gaining representative of the employees.
3) To begin negotiations with the Union on or
after October 1, 1992.
It is understood that you shall keep the wages, hours,
and work conditions in effect pending the outcome of
these negotiations or until there has been an impasse in
negotiations.
We look forward to cooperating with you in a mutu-
ally beneficial relationship. I am sure that you can un-
derstand that there has been a good deal of trauma
among the employees because the Service Contract Act
was violated. Now that we have straightened out that
problem it is in our mutual interest to have a peaceful
and stable collective bargaining relationship. If we can
avoid litigation and concentrate on problem solving, ev-
eryone will benefit.
At this point in time, Ashburn was not represented by legal
counsel. At a time not specified in the record but very prob-
ably in late October, she retained the services of John M.
Maciejczyk of the firm of Miles and Stockbridge to represent
her. On November 9, she replied to Viands’ letter as follows:
My attorney has provided me with a copy of the let-
ter dated September 23, 1992, by you to me at my ad-
dress in Newport News, Virginia. I fail to understand
why you mailed the letter to me in Newport News
when I was at the job site at Ft. Ritchie from Septem-
ber 8, 1992 to October 14, 1992. Furthermore, I have
terminated the secretary whose name is signed in the
signature block on the return receipt. I cannot verify her
signature on the return receipt, however, I can verify
that I did not see this letter prior to being provided it
by my attorney.
I respond to your letter as follows:
1. I did not agree to hire all employees of the prede-
cessor employer effective October 1, 1992, as you state.
That was never my intention and I never expressed that
to be my intention.
2. I recognized Local 992 as the bargaining rep-
resentative for only the union members that I hired, and
not for any other employees.
3. I agreed to begin negotiations with the Union as
soon as possible after October 1, 1992, however, you
disrupted the first intended session by accusing me of
being a liar, and refused to begin the next session when
I insisted on tape recording the session in order to pro-
tect myself against any further accusations of lying.
4. I did not agree to keep the wages, hours, and
working conditions in effect pending the outcome of
negotiations. I believe that I made it clear that I would
change the schedules and hours of any employees from
the outset.22
When the Respondent took over on Thursday, October 1,
employees scheduled to work reported in accordance with
their regular Thursday shift times.23 Some were assigned to
different duties than they had performed previously. Flor-
entine was no longer assigned to the AFMIS program but
was given mess attendant duties to perform. There were a
few new employees on the Respondent’s payroll. Cooks,
who had formerly been employed by the Army, were now
contractor employees. In addition, the Respondent had hired
Lois Martin, a supervisor for Son, as a mess attendant.24
During the morning shift, Chiado held a meeting with ap-
proximately seven employees who were present for that shift.
She went over rules and policies contained in a detailed man-
ual entitled ‘‘Commercial Activities Program, Full Food
Services, Performance Work Statement,’’ which the Army
gave the Respondent and that controlled the most minuscule
details of the food services operation. She told employees not
to wear hairnets or jewelry, not to come to work drunk or
smelling of alcohol, and warned them that the latter conduct
would bring about immediate discharge. She told them that
they would be disciplined for eating a meal without paying
for it and notified them that the Company was going to bring
in instructional video tapes to show them how to clean bath-
rooms and perform other chores.
At the conclusion of the afternoon shift on October 1,
Ashburn and Chiado also had a meeting with the employees
who worked the afternoon shift. Wilkes was among them.
Ashburn stated that she felt that things had gone well the
first day despite the efforts of the previous management to
sabotage her. She said she wanted to go over a few matters
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 The total price of a standard meal is $1.90.
26 Wade, Son’s supervisor, testified that Son had not fired either
Manahan or Emory. The names of these two employees appeared on
the final Son’s seniority roster, along with the other employees who
were carried over by the Respondent, without any indication of dis-
charge. I conclude that, in fact, neither was specifically removed by
Son, although technically, all of Son’s employees had been dis-
charged because Son’s contract had come to an end.
with the employees who were at hand. She told them that
she knew that the Respondent was not supposed to change
things but she had to in order to make things run smoothly.
She stated that, when employees arrived at work the follow-
ing day, they would be given slips of paper to outline their
duties. There would no longer be regular assignment slots
with stated duties, such as pot person, dish person, or clipper
room person, because this arrangement was not effective. In-
stead, she wanted everyone to learn every mess attendant
duty. She mentioned that soldiers had complained because
the Company had apparently instituted a policy of portion
control and would not permit its customers to have second
helpings as they had in the past. She told employees that she
did not want employees to become involved in soldier com-
plaints and they should not encourage such complaints. If
any employee did so, she would be fired. Any customer
complaints should be directed to the Respondent’s manage-
ment.
She also mentioned rules against wearing hairnets, insisted
that employees use ‘‘wet floor’’ signs while mopping, and
mentioned the subject of uniforms. Tennis shoes would no
longer be allowed and employees would have 30 days to pur-
chase white shoes such as those used by nurses. She insisted
that employees pay attention to details and insisted that they
not speak to soldiers who come to the dining hall because
the Company was not paying them to converse with soldiers.
Any one caught conversing with a soldier would be fired,
adding that a soldier would not risk his job by talking to a
mess attendant at his duty post so a mess attendant should
not risk her job by doing so at the dining hall.
Ashburn went on to say that employees would not be per-
mitted to discuss among themselves anything that occurred
at the dining hall. Anything that occurred at the dining hall
would have to remain at the dining hall and employees were
not free to mention job-related problems or activities with
anyone else, including each other. If they did and she found
out about it, the employee in question would be fired. She
reiterated that employees would not be permitted to buy
cokes from the coke dispenser, that a coke could be pur-
chased only with the purchase of an entire meal, and that an
employee would have to have advance permission from man-
agement to buy a meal.25
Thereafter, when employees reported to work each day, a
list of individual assignments were written out and posted on
the window of the Respondent’s office. In addition to posting
assignments, a three-page list of job duties, detailing both
daily duties and weekly, biweekly, or monthly duties, was
posted. Next to each duty item was a parenthesis. The em-
ployee assigned to that duty was required to place her initials
in the parenthesis on completing her assignment.
Annamarie Manahan had worked for about 5 years for Son
and its predecessor. Her regular hours were on Saturday from
7:30 a.m. until 1:30 p.m. and on Sunday from 10:30 a.m.
until 6 p.m. On Saturday morning, October 3, she appeared
for work at the dining facility at the start of her normal shift
time. Chiado was in charge of the facility that morning and
was approached by Manahan to find out her job assignment.
Chiado appeared to be puzzled at her appearance at the din-
ing hall and inquired of Manahan if the Company had asked
her for a uniform size. Manahan replied that it had not be-
cause she was pregnant and was not able to fit into a uni-
form. After seeking out Jackson and conferring privately
with him, Chiado informed Manahan that she was not need-
ed. Manahan asked her if this meant that she was fired, to
which question Chiado replied that it was Son, not the Re-
spondent, who had fired her. Manahan asked her for some-
thing in writing indicating that she had been fired. Chiado
refused, repeating that it was Son who had fired her. In fact,
no one from Son had said anything to this effect to her.
Shortly thereafter, Manahan filed a grievance with the shop
steward.
On the following day, Sunday, October 4, Emory reported
for work at 1:30 p.m. Her regular Sunday hours were 1:30
until 6 p.m. She worked as needed throughout the rest of the
week. She went into the office and asked Chiado if she were
still employed at the dining hall, noting she had heard from
one of the other employees that she had been fired. Chiado
said that her information was correct. Emory then asked for
a written discharge. Chiado refused, saying that she should
obtain a written statement from Sue Wade, Son’s supervisor,
because it was Son, not the Respondent, who had terminated
her. In fact, no one from Son had said anything to this effect
to Emory. Like Manahan, she filed a grievance with Flor-
entine.26
Almost immediately employees began filing written griev-
ances with their shop steward. Most of those grievances dealt
with reductions in hours or shift transfers and many cited the
fact that Lois Martin, a new hire, former Son supervisor, and
a nonunion employee was being given more hours than em-
ployees above her on the seniority roster. (As noted pre-
viously, Martin was necessarily at the bottom of the roster
since she was not in the Son bargaining unit.) At the end of
the first day, Varner was threatened with a written reprimand
by Chiado for not finishing her assigned tasks. She objected,
saying that there was not enough time during the shift to do
all the work because the employee meeting lasted so long.
Ashburn told Chiado to forget about the reprimand. Flor-
entine was reprimanded on her first day of work with the Re-
spondent for the manner in which she had placed pastries on
the cold line and for the manner in which she had washed
the tables after the customers left. Toward the end of her
shift on October 2, which was normally 2 p.m., Florentine
was told to leave thereafter at 1:30 p.m. because she was not
needed any later. The net effect of this revised schedule was
to cost Florentine 2-1/2 hours of work per week. Max Du-
Pont grieved because his work hours were cut on October 2
by being released from work at 12:30 p.m. rather than 1:30
p.m. Florentine estimated that she turned in approximately 25
grievances on various subjects to Chiado on October 7.
On the afternoon of that day, a meeting was held between
Ashburn and Chiado and those employees who happened to
be present at the dining hall. Included in this meeting was
Florentine. Ashburn began by saying that she could have just
shoved the grievances into a drawer but she chose not to do
so because she wanted to keep lines of communication with
449HILTON’S ENVIRONMENTAL
27 Jackson is no longer employed by the Respondent and was not
summoned to testify.
employees open. She reminded employees that there was no
union and then corrected herself by saying that there was a
union but there was no union agreement. She noted that the
union contract was with Son, not the Respondent, and she
told employees to stop pressuring the Respondent to conform
to Son’s contract. Wilkes spoke up and said that she thought
that wages and benefits were supposed to stay in place until
a new contract had been concluded. Ashburn disagreed, say-
ing that she was not bound by Son’s contract in any way.
Ashburn went on to say that the nub of most of the griev-
ances was that Lois Martin had been given an established
slot with more hours in preference to seven union members.
Ashburn addressed Martin by saying, ‘‘I’m sorry, Lois. They
seem to be picking on you.’’
Ashburn went on to berate the Union at some length. She
expressed the opinion that some of the junior employees real-
ly did not understand their rights as they pertained to the
Union, asserting that a ‘‘closed shop’’ was no longer in ex-
istence at the dining hall. She thought it was disgusting that
a union could force a company into requiring their employ-
ees to join and expressed the view that she would not work
for a company like that. She completed her disparagement of
the Union by stating that unions were just in business to
make money but they were unnecessary at the dining hall be-
cause employees were paying them for something she was
already providing. She also said that there was no seniority
because she had not received a seniority list and added that
all of the employees were serving a 60-day probation period.
On the following morning, another employee meeting was
conducted by Respondent’s management for employees
working the morning shift. Florentine was also present. Like
the meeting that took place the previous afternoon, the major
topic of this meeting was a discussion of grievances over
preferential assignment of work to Martin that had resulted
in a loss of hours for other employees. Max DuPont com-
plained about his hours being cut because seniority had not
been observed in making his job assignment. On one occa-
sion, Jackson had reduced the hours of DuPont’s shift by
sending him home early. On another occasion, DuPont
showed up for work at his normal 6 a.m. reporting time, only
to be told not to come to work until 8 a.m. because his
schedule had been revised. Ashburn replied that there was no
seniority because she had no official seniority list and she
could not proceed on the basis of what she had received be-
cause it was not a legal document. She stated that new
schedules would be in effect on November 1 and would be
posted on October 31. She also told employees that soldiers
had been telling her that employees had been complaining
about their working conditions, adding that if she found out
the names of any employees who were complaining she
would have an investigation and would discharge anyone
found guilty.
After the general meeting was over, Ashburn, Chiado, and
individual grievants discussed specific grievances together
with Florentine. In no case was a grievance adjusted so as
to satisfy an employee complaint.
On October 9, about 7:30 a.m., an incident occurred that
caused considerable excitement at the dining facility. Max
DuPont was assigned to clean pots and pans at the work sink
and was using stainless steel spray polish. He turned on the
floor fans next to the sink and a fan blew some of the spray
into his eyes. To use his expression, his eyes felt ‘‘heavy’’
so he reported the incident to Jackson.27 At first, Jackson
said he was busy and told DuPont to go fill out an accident
report. Later, Dupont persisted with his complaint so Jackson
told him to go to the bathroom and flush out his eyes with
water. Not long thereafter, Don Neimeyer, the Department of
the Army contractor representative who had daily hands-on
supervisory responsibility for the dining hall, arrived at the
dining hall with Lorraine McAfee, the Post’s safety techni-
cian. McAfee had heard about the incident by virtue of a call
she had received from the OSHA office in Washington, D.C.
McAfee asked to see DuPont and informed him of his right
to seek medical attention. DuPont then left the Post a went
to the emergency room at the hospital in Waynesboro. After
receiving an examination and minor treatment, he was re-
leased to return to work and did so.
Following the visit to the premises by Neimeyer and
McAfee, the Respondent began a thoroughgoing investigation
of the incident. The Respondent insists that the purpose of
the investigation was to enable it to fill out OSHA and work-
ers’ compensation forms. I discredit this explanation. Among
those subjected to repeated questioning was Varner. I credit
her testimony that, following her break at 10:30 a.m., she
was called to the office and was questioned by all three man-
agers with the door closed. Chiado sat at a desk taking notes
during the inquiry. At the outset, Jackson told her that they
wanted to talk with her about Max’s eyes. Varner asked to
be accompanied by her union representative, Florentine, but
the latter was not at the dining hall at the time. Chiado re-
sponded that ‘‘all we want to talk about is Max’s eyes.’’
Varner asked again for union representation. Asburn then re-
plied, ‘‘Barbara, you know what we said at the meeting yes-
terday about the Union.’’ Chiado again said that they were
just going to talk about Max’s eyes. Chiado asked Varner
twice whether she had told anyone about ‘‘Max’s eyes’’;
Varner replied twice that she had not done so. Chiado then
stated that word of the incident ‘‘got outside’’ somehow.
Varner’s response was that she only went outside to her car
to take her break. Ashburn then began to ask her what she
had done during her break, whom she talked to, whether she
had been sitting in her car throughout her break, and whether
the window of her car was rolled down while she was sitting
in it. Varner, in fact, took her break with her mother, Betty
Nicholas, who is also an employee at the dining hall.
Ashburn asked Varner if she had sat in her car alone
throughout her break and if she had given coffee to anyone.
Varner replied that she was with her mother and had given
her mother some coffee that she had brought from home.
Ashburn then warned her, ‘‘Barbara, do you know what was
said at the meeting yesterday about [what would happen] if
you are caught talking about the Company.’’ Varner replied
that she was not talking about the Company but was talking
about Max’s eyes. Varner then went back to her duties and
Nicholas was summoned to the office. During the course of
the morning, the Respondent’s management also interviewed
employees Susan Wright and Chong Callahan concerning the
incident. When DuPont returned from the hospital, he, too,
was questioned by the Respondent’s management, who went
over the same questions with him several times. Most of the
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Varner is a nervous, high-strung individual who gave ample evi-
dence of her condition as she testified. A trait such as this, however,
has no necessary bearing on credibility. Following the interview that
she had on October 9 with the Respondent’s management, she be-
came so upset that she went directly from work to Florentine’s
house to register a complaint about what had happened. She was in
such a state of anxiety that she was taken to the hospital in Waynes-
boro. There she was diagnosed as having high stress arising out of
her employment and was given sedatives to calm her down. The
mere recitation on the witness stand of what occurred at the dining
hall was sufficient to cause this condition to arise again at the hear-
ing.
questions were directed to the issue of whether he had spo-
ken with anyone outside the facility concerning his injury.28
On the afternoon of the DuPont incident, Viands, Flor-
entine, and a union official identified as Woods came to the
Lakeside Club for a negotiating meeting with Ashburn. The
latter was by herself. When they began to talk, Ashburn
pointed out that she had a tape recorder with her and wanted
to tape the proceedings. Viands objected. Ashburn then pro-
posed that a stenographic transcript of the negotiations be
made and that each of the parties share the cost of the ste-
nographer. Viands again objected, saying that Ashburn could
take her own notes and he would take his. The meeting then
broke up and another meeting was scheduled for October 13.
The October 13 meeting was canceled because Ashburn was
suddenly summoned home to Newport News to attend her
grandmother’s funeral. A third meeting was set for October
15 but it did not take place because of an intervening strike.
On October 13, the Respondent completed and posted the
revised work schedule. Chiado testified that the decision to
revise the work schedule arose out of criticisms made by
Niemeyer when he made a surprise inspection of the oper-
ation on October 10. Although the writeup Niemeyer gave
the Respondent was not specifically directed to work sched-
uling, he did criticize employee work performance and
Chiado interpreted this criticism as requiring a schedule revi-
sion. There is no suggestion in the record that the contractual
bidding procedure was followed except arguably in the case
of Florentine. Chiado simply made up a new schedule and
posted it. After Wilkes had reported for work on October 12,
and had signed in, she was told by Ashburn and by Jackson
that she would have new hours beginning the following day.
She was told that she would be working Monday through
Friday from 12:30 p.m. until 7:30 p.m. and on Sundays from
12:30 p.m. to 6:30 p.m. They asked her if the new hours
were a problem and she said no. The revised new hours,
however, were not the subject of any bidding on her part.
When Florentine reported for work on October 12,
Ashburn informed her that there was going to be a new
schedule and invited her to pick the shift that she preferred.
The new assignments were to begin the following day. Most
of the jobs were during the afternoon. Florentine, who had
been working on the morning shift, was hard pressed to
choose an afternoon shift because, with 1 day’s notice, she
could not make arrangements for the care of her children
during afternoon hours. As a result, she picked the 6 a.m. to
12:30 p.m. shift, although it meant receiving fewer hours
than she had been working. On the following day, she re-
ported for work at 5:50 a.m. and was told to go home and
not to return until 8 a.m. since her shift had just been
changed to an 8 a.m. reporting hour.
On the evening of October 13, the Union held a meeting
at the Sportsmen’s Club, a tavern in nearby Blue Ridge,
Pennsylvania. Viands and all but one or two of the bargain-
ing unit members were present. The employees voiced a se-
ries of complaints against the new management. They com-
plained about being harassed on the job and about not having
enough help to scrub the bathrooms. Nicholas and Varner
complained about the interrogations they underwent on Octo-
ber 9 in connection with the DuPont incident. Both Manahan
and Emory complained about not being hired. Employee
Sandra Wantz complained that she felt she had to do the
work of four people on Sundays because others had been
given the day off. She also complained about work assign-
ments being made without regard to seniority. Florentine
complained about the cut in hours she received and about the
fact that she had been sent home when she arrived at work
when her starting hour had suddenly been changed without
notice. A secret ballot was taken and the employees voted
12–0 to go on strike. Viands asked them to delay the starting
time of the strike and defer the actual calling of the strike
to him. They agreed.
Employees reported to work as usual on October 14. Vi-
ands appeared at the dining hall just before lunch and called
a strike. Nearly all of the work force walked out. He phoned
Newport News to inform Dilton Ashburn of the strike. Pick-
ets were set up just outside the gate of the garrison carrying
picket signs that read: ‘‘Hilton Environmental Unfair—On
Strike—Teamsters Local 992.’’ People entering and leaving
the post were offered leaflets on Local 992 stationery read-
ing:
BOYCOTT—BOYCOTT
Hilton Environmental Food Services
This Company is UNFAIR and ON STRIKE. It is a
union busting company. It refused to obey the law or
respect the rights of its employees, many of whom have
worked for years at the Ft. Ritchie Dining Room. It has
stated that it would never sign a contract with the
Union. It has refused to hire two employees. It has re-
fused to bargain in good faith with the Union.
Since it took over the Dining Room October 1, 1992,
Hilton has been trying to force the employees to quit.
It has violated the law by changing the employees’
hours and working conditions. The NLRB and OSHA
are investigating these violations of the law.
PLEASE HELP US
BOYCOTT HILTON ENVIRONMENTAL
Teamsters Local Union No. 992
Both the strike and picketing have continued to date.
A bargaining session scheduled for October 30 was can-
celed. Beginning in November, Maciejczyk began to handle
the Respondent’s negotiations with the Union. In evidence
are lists or charts of company proposals and union responses
dated November 9 and December 14, 1992, and a company
letter to the Union, dated March 30, 1993, containing a copy
of the old Son contract with revisions noted thereon that con-
stituted company proposals as of that date. The aforemen-
tioned charts contain indications of union acceptance or re-
jection of company proposals proffered on November 12 and
451HILTON’S ENVIRONMENTAL
29 The Respondent receded from this position at the hearing in this
case and indicated to the Union that it would bargain over the inclu-
sion of the clerk’s position in the unit.
25. It is unclear, however, whether these union responses
were the result of face-to-face negotiations or the result
merely of written communications. There were face-to-face
negotations on January 12 or 13, 1993, and again on March
19 but only a few matters were resolved on those occasions.
Noteworthy among the Respondent’s various bargaining
positions throughout this period of time was a continuing
proposal that the Union should withdraw unfair labor prac-
tice charges filed against the Respondent October 15. An-
other significant continuing proposal was that the contract
should be of 1 year’s duration, beginning October 1, 1992,
the date that the Respondent began its operations at Ft.
Ritchie, and ending on September 30, 1993. Over a period
of time, union representation changed. Florentine resigned as
shop steward on or about December 19 and was replaced by
Wilkes. Following a union election in late 1992, Viands was
replaced by a new secretary-treasurer, Linden Heavner, and
a new business agent, Ron Mercurio.
On April 16, the parties met for a lengthy bargaining ses-
sion in Frederick, Maryland, at the branch office of
Maciejczyk’s law firm. For the first time the Union was rep-
resented in negotiations by an attorney, as Beins joined other
union negotiators and became their lead spokesman. A num-
ber of items that had previously been in dispute were agreed
on. Others remained in contention. Maciejczyk had offered
the Union a 1-year contract, beginning October 1, 1992. The
effect of this offer was a 5-1/2-month contract as more than
half the proposed 1-year contract term had already expired.
Beins claimed that such an offer was illegal. The Union of-
fered the Company a contract of 3 years’ duration, to which
Maciejczyk countered that there would be no contract at all
unless the Union withdrew its pending unfair labor practice
charge. Maciejczyk then offered the Union a 2-year contract
if it would withdraw its charge. Beins objected, saying that
the Company’s insistance on withdrawing charges was ille-
gal. Maciejczyk replied that ‘‘I can insist on anything I
want.’’ He also said that the inclusion of the computer opera-
tor or clerk was not a bargainable issue because the Com-
pany was going to assign the work to management offi-
cials.29 Beins objected, saying that ‘‘you can’t just on your
own take the clerk out of the unit.’’ Maciejczyk replied that
the Respondent had already done so and this was how it was
going to be. The Union also requested the reinstatement of
all strikers if a contract was concluded. The Respondent
agreed to this proposal with one exception. It was at this
point, Maciejczyk asked Beins to step out of the room for
a private conversation.
At a sidebar meeting between Beins, Maciejczyk, and Ger-
ald St. Ours, the Respondent’s other attorney, Maciejczyk
told Beins that the Company would not agree to reinstate
Wilkes, the current shop steward. According to Maciejczyk,
she had urged soldiers to boycott the dining hall because the
food was poisoned. Beins pressed Maciejczyk for details of
the allegation—when was the statement made, to whom was
it made, and whether Maciejczyk had affidavits supporting
his allegation. Maciejczyk replied that the Company was
going to find out and let Beins know. He also mentioned that
Wilkes had been convicted of theft but that the conviction
was nothing new. Beins then inquired why Maciejczyk was
bringing it up if it was nothing new. He accused Maciejczyk
of trying to destroy the Union by eliminating its shop stew-
ard and chief employee negotiator.
During the afternoon session, Wilkes was confronted with
the food poisoning statement and denied making it. The par-
ties proceeded to discuss about seven remaining contract
issues, resolving some and failing to resolve others. Beins fi-
nally agreed to recommend to the Union’s membership dur-
ing a contract ratification meeting that the unfair labor prac-
tice charge be withdrawn if that was what it took to get a
contract. Maciejczyk said he wanted more than a rec-
ommendation; he wanted a commitment from union nego-
tiators then and there that the charge would be withdrawn.
No commitment was made. At some time during these nego-
tiations, the Respondent offered a 1-year agreement without
any reference to withdrawal of the charge if the 1-year term
dated from October 1, 1994. That offer was not accepted.
With regard to Wilkes, the Union offered during this ses-
sion to arbitrate the question of her reinstatement apart from
any question of agreeing to a contract if she could return to
work pending the arbitration. Maciejczyk refused the offer,
stating that Wilkes was not coming back to work for the Re-
spondent. The bargaining session ended without an agree-
ment. Another session took place on July 23. At that time,
Maciejczyk had withdrawn from the case and from the firm
that represented the Respondent. The only thing of note that
occurred at the July 23 meeting was that St. Ours, who took
over as lead negotiator for the Respondent, offered the Union
a 2-year contract with no strings attached relating to with-
drawal of charges. By this time, a second unfair labor prac-
tice charge had been filed by the Union against the Respond-
ent. St. Ours’ offer was not enough to bring about an agree-
ment.
In August, the Union made an offer on behalf of the strik-
ers to return to work. For reasons that are obscure in the
record, the offer was either not accepted or not satisfactorily
accepted so the strike remained in effect.
C. Analysis and Conclusions
1. The Respondent’s duty to bargain with the Union
Respondent concedes that it is a successor to Son, as in-
deed it must, since it hired a majority of Son’s employees
to perform the identical duties, at the same location, with the
same equipment, providing the same services to the same
general contractor. Golden State Bottling Co. v. NLRB, 414
U.S. 168 (1973). There is an issue as to when it became a
successor but the Respondent further concedes that this status
arose before it took over the dining hall operation and no
later than September 28, 1992, when, according to its version
of the facts, it agreed to hire a majority of Son’s employees.
Because, on and after the first day of its operation of the Ft.
Ritchie dining hall, the Respondent was Son’s successor, it
was under a duty to bargain collectively with the Union over
the wages, hours, and terms and conditions of its bargaining
unit employees. Fall River Dyeing Co. v. NLRB, 482 U.S. 27
(1987). From time to time, it honored this duty but only after
its fashion.
According to the credited version of the facts in this case,
the Respondent agreed to hire all of its predecessor’s em-
ployees on or about September 8, 1992. It did so in a private
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
31 It is quite true that neither the General Counsel nor the Union
advanced this argument in support of their contentions in this case.
In deciding a case, however, I am not limited by the contentions or
theories of a case advanced by any party and am free to resolve any
issue that may be framed by the complaint and answer on an alter-
native theory so long as the theory is factually supported by the
record.
conversation between Viands and Ashburn and it also did so
by virtue of a public announcement made by Ashburn to all
employees after they had assembled in the dining hall to fill
out employee application forms. It may also be argued that
the Respondent recognized the Union before that date as the
collective-bargaining representative of its employees as it
agreed to meet and negotiate with Viands as early as July
28, when Ashburn made a pretakeover visit to the premises,
and again in August when she recognized and negotiated
with the Union by discussing with Viands a proposed
amendment to the Son’s contract respecting bidding proce-
dures and job classifications. No conclusion need be reached
concerning the import of these instances of union recognition
in order to resolve the specific issues in this case.
The General Counsel and the Union argue that the Re-
spondent was obligated to bargain with the Union over the
initial terms and conditions of employment because of an ex-
ception set forth in Burns,30 the seminal Supreme Court case
that explicates the duties of a new employer in a successor-
ship situation vis-a-vis an incumbent union. According to
Burns,
Although a sucessor employer is ordinarily free to set
initial terms on which it will hire the employees of a
predecessor, there will be instances in which it is per-
fectly clear that the new employer plans to retain all of
the employees in the unit and in which it will be appro-
priate to have him initially consult with the employees’
collective bargaining representative before he fixes
terms.
Their argument in this regard is well taken. However, there
are other facts in this record that fixed this obligation on the
Respondent even more firmly.
As early as December 1991, the Respondent here began its
relationship with the employees whom it later hired. This re-
lationship was inaugurated by soliciting letters of intent in
which employees signified in writing to the Respondent their
intention of working for the Respondent should it take over
the dining hall contract on October 1, 1992. All Son’s unit
employees who came to work on October 1 revised the pro-
posed letters of intent proffered to them by the Respondent
to indicate in the clearest way possible that they would work
only under the wages, benefits, and conditions provided in
the existing Son’s contract with the Union, viz:
The rate of pay for my employment shall be in accord-
ance with wages as outlined in the agreement by the
General Teamsters and Allied Workers, Local Union
No. 992. I also agree to perform my duties as required
by the contract specifications and according to the Col-
lective Bargaining Agreement with General Teamsters
and Allied Workers, Local 992.
By hiring these employees on or about September 9, the Re-
spondent was necessarily incorporating the Son’s-Teamsters
contract into its relationship with them.
Moreover, in response to Beins’ protest, the Army con-
tracting officer specifically and in writing stated on August
30, 1992, a month before the Respondent’s contract was to
begin, that it was going to incorporate Son’s union contract
into its own agreement with the Respondent. Thus, it is
abundantly clear that, on taking over the facility on October
1, the Respondent stood in para materia with Son and was
obligated and restricted by Son’s contract just as Son would
have been had it been the successful bidder and had contin-
ued in place after September 30.31
2. The impact of the Son’s contract on the Respondent
The Son’s contract with the Union expired by its terms on
September 30, 1992, the same date on which Son’s contract
with the Army expired. This fact did not mean that either
Son’s or its successor was free to change the wages, hours,
and terms and conditions of bargaining unit employees uni-
laterally. The seminal case on this point is NLRB v. Katz,
369 U.S. 736 (1962). In Katz, an employer was held to have
violated its duty to bargain in good faith under Section
8(a)(5) of the Act by unilaterally changing an existing term
or condition of employment, without first bargaining with the
Union in good faith to impasse. The Katz doctrine includes
situations when a collective-bargaining agreement has ex-
pired and negotiations for a new agreement have not yet pro-
duced one. Laborers Health & Welfare Trust Fund v. Ad-
vanced Lightweight Concrete Co., 484 U.S. 539 (1988).
There are exceptions to the Katz rule. Terms and conditions
of employment that are so rooted in a contract that they can-
not exist outside the framework of an existing agreement do
not survive the expiration of a contract. Such terms include
union-security clauses, checkoff, no-strike provisions, and the
arbitration of postexpiration disputes (as distinguished from
the duty to grieve over such disputes up to the point of arbi-
tration). See Litton Financial Printing Division, v. NLRB,
498 U.S. 966 (1990), 111 S.Ct. (1990), 501 U.S. 190 (1991).
3. Unilateral changes in wages, hours, and
working conditions
The Respondent concedes that it has not made any pay-
ments to the Teamsters’ health and welfare fund on behalf
of bargaining unit employees since taking over the dining
hall contract on October 1, 1992. Its failure to do so is not
only a unilateral change in the terms and conditions of unit
employees that was not bargained to impasse, it is also a vio-
lation of its direct contract of employment with employees
that arose out of the submission of their letters of intent
agreeing to work for contract wages and contract benefits
and their acceptance by the Respondent as employees on or
about September 9, 1992. It is frivolous to contend that the
duty to continue making fringe-benefit payments would im-
pose on the Respondent a duty to finance a strike. All em-
ployees for whose benefit these payments were to be made
worked at least 2 weeks for the Respondent during early Oc-
tober 1992, so the funds are certainly owed something for
that period of employment. Fringe benefits under article XXI
of the contract are geared to a sum of money (45 cents) due
and owing the funds for each hour worked, so if employees
are on strike, nothing is owed because no hours of work
453HILTON’S ENVIRONMENTAL
32 It was also frivolous for Ashburn to assert that she had no duty
to observe seniority because she had not received a seniority list and
the list she had received was not ‘‘official.’’ She had in fact received
several seniority lists. In any event, she was under a duty to observe
seniority, notwithstanding the excuse that she proffered to employ-
ees.
have accrued. In any event, the quantum of fringe benefit
payments due and owing is not a matter to be determined
here but in a supplementary proceeding. By unilaterally dis-
continuing to make fringe-benefit payments to the Union’s
health and welfare trust funds on behalf of its bargaining unit
employees, the Respondent violated Section 8(a)(1) and (5)
of the Act.
Immediately after taking charge of the dining facility, the
Respondent made wholesale changes in work schedules. It
did so on October 2 and again on October 12, thereby pre-
cipitating a strike. These changes, in many instances, had the
effect of reducing hours and earnings of unit employees. The
changes that were made not only affected the daily routines
of these employees, however, but were made without even
token observance of the job bidding and seniority provisions
in article XIX of the expired contract. This provision had
governed schedule revisions in the past. Moreover, the Re-
spondent had made a commitment not to make any such
changes during the first 30 days of its tenure as dining facil-
ity contractor. By making work schedule changes without
bargaining to impasse over both the manner of making
changes and the individual changes themselves, the Respond-
ent violated Section 8(a)(1) and (5) of the Act.
The Respondent blew both hot and cold on the subject of
seniority. It promised to observe seniority and was under a
contractual duty to do so until bargaining to impasse over re-
moval of the seniority provision found in article VII of the
contract. It assertedly made initial job assignments through
the shop steward on the basis of seniority. When grievances
were filed that claimed violations of seniority rights, Ashburn
bluntly stated that she could have thrown the grievances into
a drawer because she was not bound by the terms and condi-
tions of the Son’s contract and its seniority requirements. She
also remonstrated with her new employees, telling them to
stop trying to pressure her into following the Son’s contract.
More to the point, she gave preferred work assignment treat-
ment to Martin, whose name was at the bottom of the senior-
ity list. Such actions amount to a repudiation of the seniority
provisions of the expired contract, provisions that she was
obligated to observe until they had been removed by consent
of the Union or by bargaining to impasse in good faith. By
unilaterally discontinuing to follow seniority, the Respondent
violated Section 8(a)(1) and (5) of the Act.32
Article V, section A of the Son’s contract provided that
‘‘every new or re-hired employee shall be on probation for
the first sixty (60) days of employment or re-employment.’’
When the Respondent indicated to Viands and to the group
of employees who had just completed applications to work
for the Respondent that all of Son’s employees would be
hired, it made no reference to any period of probation. This
news came in the form of an announcement by Chiado about
6 or 7 days after the Respondent had begun operations.
While most of the bargaining unit employees had worked at
the dining hall for several years and for a succession of con-
tractors, they were new to the Respondent and to its method
of doing business and, as a technical matter, were being ei-
ther hired or rehired by the Respondent as of October 1,
1992. Accordingly, when the Respondent announced this re-
quirement, it was not departing from the provisions of its
predecessor’s contract so no unilateral change in working
conditions arose in this regard. For this reason I will rec-
ommend dismissal of so much of the consolidated complaint
that alleges that the Respondent unilaterally imposed a new
60-day probationary period on its recently hired employees.
During the last months of the Son’s contract, the position
of AFMIS clerk or keypunch operator, however the job may
be described, was held by an individual who was not only
a member of the bargaining unit but its shop steward. She
was given 40 hours of special training for this position and
was employed on a full-time basis performing its functions.
Ashburn was well aware of these facts. Although office cleri-
cal positions are normally regarded by the Board as outside
the scope of a production and maintenance unit, there is no
statutory reason why such a unit definition must occur in
every case. When, as here, there is bargaining history to sup-
port a finding that the parties agreed to incorporate a clerical
position in a food service unit, that history should be control-
ling.
The Respondent points out in its brief that the question of
transferring of unit work outside the unit is a mandatory sub-
ject of bargaining while a relocation of unit positions outside
the unit is not. Often the distinction is difficult to discern.
See Bridgeport & Port Jefferson Steamboat Co., 313 NLRB
542 (1993). This distinction need not concern us here, how-
ever, since neither a transfer of bargaining unit work to
nonunit employees nor the transfer of a unit position to
nonunit status may be accomplished unilaterally by an em-
ployer. The Respondent here performed both acts and did so
without bargaining, either to impasse or otherwise. The Re-
spondent simply told Florentine, the AFMIS clerk, that her
work was being given to management employees, thereby
transferring unit work to nonunit personnel. Later, the Re-
spondent’s attorney refused to discuss the placement of the
job with union negotiators, stating that the job was outside
the bargaining unit and would continue to be outside the
unit. When, in the summer of 1993, the Respondent hired a
nonmanagement employee as a computer operator to perform
the AFMIS work, she was employed as a nonunit employee.
By these acts, the Respondent unilaterally transferred the job
in question to nonunit status and transferred unit work to
those employees. By performing each of these acts unilater-
ally, the Respondent violated Section 8(a)(1) and (5) of the
Act.
The reasons that the Respondent advanced for transferring
the AFMIS work to nonunit employees and for transferring
the job out of the unit also bear scrutiny. Doubtless part of
its reason was economic, in that it could eliminate a position
and use management personnel to handle the task as part of
their duties. Later, the Respondent was able to prevail on the
Army to provide it with an extra $19,000 to cover what is
now an 8-hour-a-week job and pocket the difference.
Ashburn’s stated reason to Florentine is also cogent, how-
ever, and bears on her motivation. She told Florentine that
she did not want a union member handling the job because
she felt there might be a conflict of interest. The fact that
Florentine was shop steward as well as a union member
doubtlessly sharpened Ashburn’s resolve. In the same con-
versation, she also asked Florentine if the latter would be
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 These rules and refinements thereof, including how restrictive
rules might be properly or improperly expressed, have been the sub-
ject of a long line of Board decisions reaching back over a great
many years. See Peyton Packing Co., 49 NLRB 828 (1943); Essex
International, 211 NLRB 749 (1974); TRW Bearings, 257 NLRB
442 (1981); and Our Way, Inc., 268 NLRB 394 (1984).
willing to withdraw from the Union, a clear suggestion to
Florentine that her old job might still be hers if she would
only abandon her current allegiance. Accordingly, I conclude
that, by reclassifying the position of AFMIS clerk outside the
bargaining unit and transferring unit work to the holder of
that position for the reason asserted, the Respondent not only
violated Section 8(a)(5) of the Act but Section 8(a)(3) as
well.
4. Instructions to employees not to discuss job-related
matters outside the dining hall
Since the Supreme Court’s decision in Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945), unreasonable employer
restrictions on employee communications with each other
have been held to be a violation of Section 8(a)(1) of the
Act, even though such communications might take place on
company premises. Hence a restriction on solicitation during
an employee’s own time has been deemed to be presump-
tively invalid.33 Certainly, any restriction on employee com-
munications off company premises is a clear infringement of
Section 7 rights. While a restriction on dining hall employees
from socializing or discussing company matters with soldiers
on dining hall premises might not be a violation of Section
8(a)(1) of the Act, since soldiers are not ‘‘employees’’ within
the meaning of the Act, a blanket restriction on employees
communicating with each other concerning company activi-
ties, either on or off company premises is a plain and obvi-
ous violation. Moreover, Section 7 of the Act protects the
rights of employees, acting in concert, to bring complaints
concerning wages, hours, and working conditions to the at-
tention of a wide variety of public officials. See Grandview
Country Manor, 267 NLRB 1046 (1983), and cases cited
there at 1049, 1050.
In this case, Ashburn’s instructions to employees about
discussing company matters went far beyond talking with
soldiers as they came through the cafeteria line to buy their
meals. Employees were told by her that ‘‘what happens in
the dining facility stays in the facility’’ and anyone caught
discussing such matters with anyone, including each other,
outside the facility, would be fired ‘‘and prosecuted.’’ More-
over, as discussed infra, Ashburn and Chiado went about en-
forcing this rule with single-minded intensity not long after
it was announced when they tried to find out who had com-
plained to a government agency about how the Company was
handling DuPont’s work-related eye injury. These statements
were an infringement of Section 7 rights and constituted a
violation of Section 8(a)(1) of the Act. I so find and con-
clude.
5. Renouncing the contractual grievance procedure
Among the many provisions of a contract that survive the
expiration date and that may not be unilaterally eliminated is
contractual grievance machinery. With respect to preex-
piration grievances arising under the contract but which ripen
after expiration, the duty to arbitrate survives. Nolde Bros. v.
Bakery Workers, 430 U.S. 243 (1977). With respect to
postexpiration grievances, the grievance machinery survives
the expiration of the contract although the arbitration provi-
sions may not. Hilton-Davis Chemical Co., 185 NLRB 241
(1970); Indiana & Michigan Electric Co., 284 NLRB 53
(1987). As the Respondent’s duty to observe the grievance
machinery found in article IX of the Son’s contract survived
the expiration of that contract, the Respondent was not free
under the Katz rule unilaterally to renounce its duty to grieve
or the machinery established to resolve a grievance.
In this case, Ashburn told employees who had filed griev-
ances about work scheduling and favoritism in shift assign-
ments that she should have thrown away the grievances in
a drawer because there was no union and no union agree-
ment. Her only reason for engaging in any discussion was
‘‘to keep communications open.’’ In doing so, she was uni-
laterally repudiating article IX of the expired contract that
obligated her to discuss with union representatives any griev-
ance that had been filed relating to ‘‘an interpretation or ap-
plication of the agreement.’’ Accordingly, the Respondent
violated Section 8(a)(1) and (5) of the Act.
6. The Weingarten violation
The Supreme Court’s decision in NLRB v. J. Weingarten,
supra, imposes on an employer a statutory duty to permit an
employee to have union representation during a disciplinary
interview or an interview that he or she reasonably believes
will lead to discipline. Such representation must be requested
in a timely manner. In this case, following the accidental in-
jury to DuPont on October 9 and a visit to the premises by
Neimeyer and McAfee, the Respondent’s management con-
ducted an inquiry during which several employees were
called into the company office and interviewed behind a
closed door by all three of the Respondent’s management of-
ficials. One of those employees was Varner.
There is no dispute that, on this occasion, Varner asked for
union representation and that she received none. Respondent
claims that the interview was not disclplinary in character but
was being conducted merely to provide Respondent’s man-
agement with information to assist it in filling out OSHA
and workers’ compensation forms. Hence, it was not gov-
erned by the Weingarten rule. Respondent also argues that,
after requesting union representation, Varner consented to
proceed without it.
The thrust of the interviews in question was not to elicit
information necessary to report an injury to public authority
but to find out who in the work force had brought the matter
to the attention of public authority in the first place. Over
and over again Varner was peppered with questions concern-
ing to whom she had spoken to regarding the incident, where
she had taken her break, with whom she had taken her break,
and even whether she had rolled down the window of her
car when she was on break in her automobile with her moth-
er. These questions had not the slightest relevance to how
DuPont was injured or the nature of his injury. The manner
in which the interview was conducted was hostile and de-
manding. Only a day or two earlier, Ashburn had threatened
employees with discharge and prosecution if they discussed
company matters with other employees or discussed such
matters outside company premises. On October 9, within an
hour or two of the incident in which DuPont was injured, the
Army’s contracting representative and the Post safety officer
had become aware of the incident and had visited the dining
455HILTON’S ENVIRONMENTAL
hall to find out what had happened. What Ashburn wanted
to know was who had tipped them off. The interrogation of
Varner was part of her investigation. Not only did Varner
have reason to believe that the interview was disciplinary in
character; it was disciplinary in its thrust and motivation.
There is nothing in the record to support the Respondent’s
claim that, having made a request for union representation,
Varner then consented to proceed without her shop steward
in the room. Varner made not one but three requests for her
steward, none of which were granted because Florentine was
not in the area at the time. These repeated requests on her
part are totally inconsistent with any suggestion that she
stayed in the office with three management officials volun-
tarily or that she consented to have them grill her in the
manner in which they did. The fact that she became so nerv-
ous over this incident that she eventually had to go to the
hospital and seek medical treatment for stress lays the Re-
spondent’s contention firmly to rest. By denying Varner
union representation during a disciplinary interview after her
timely requests, the Respondent here violated Section 8(a)(1)
of the Act.
7. The refusal to hire Manahan and Emory
Normally speaking, a successor has no duty to hire the
employees of its predecessor and is free to hire a brand new
work force. It must hire its work force, however, for non-
discriminatory reasons. See Harvard Industries, 294 NLRB
1102 (1989); Weco Cleaning Specialists, 308 NLRB 310
(1992). Its right to hire or not to hire its predecessor’s em-
ployees is further circumscribed by one other consideration.
If it makes a commitment prior to starting its new operation
that it will hire its predecessor’s employees, it must honor
that commitment. Double A Coal Co., 307 NLRB 689
(1992). In this case, the Respondent promised to hire all of
Son’s employees. Indeed, it made that promise twice. More-
over, the Respondent was under a duty to observe Son’s se-
niority rankings, both because the Son’s labor agreement had
been incorporated by the Army into the Army’s contract with
the Respondent and because the Respondent had at least im-
plicitly promised to do so.
Both employees whom it refused to hire were on the Son’s
seniority list. Contrary to the excuse proffered to each of
them them when they reported for work, Son’s had not indi-
vidually discharged either of them and their names were still
on the seniority list. Although its reasons for not hiring
Manahan and Emory may not have been discriminatory in
character, Respondent had a duty to hire them, a duty that
was imposed by Section 8(a)(5) of the Act as set forth in
Double A Coal Co., supra. By failing and refusing to hire
Manahan and Emory, the Respondent here violated Section
8(a)(5) of the Act. I so find and conclude.
8. The strike on October 14, 1992
Before the commencement of the strike on October 14,
1992, the Respondent had, in a very short period of time,
committed several egregious unfair labor practices noted
above. It had promulgated an overly broad rule prohibiting
employees from discussing job-related matters among them-
selves and presumably with anyone else. It had repudiated
the existing grievance procedure and the seniority provisions
in the expired contract. It had completely revamped, on a
unilateral basis, the established method for making work as-
signments. It had denied Varner her Weingarten rights, and
it had unilaterally transferred the AFMIS clerk position out
of the bargaining unit and unilaterally transferred the AFMIS
bargaining unit work to nonunit employees. It had also failed
to hire two former Son’s employees whom it had a duty to
hire.
On the evening of October 13, before taking a strike vote,
members of the bargaining unit held a meeting at the Sports-
men’s Club where they discussed these matters and vented
their anger at the manner in which their new employer had
been treating them. Then they took a secret ballot and voted
unanimously to go on strike. Their picket signs have, from
the outset, carried the legend ‘‘Unfair’’ and the boycott leaf-
lets that they distribute bear the same charge. There is no
prudent doubt that the Respondent committed a series of un-
fair labor practices and that these violations of the Act were
reasons why its employees decided to strike. Accordingly, I
conclude that the strike in question was caused by the Re-
spondent’s unfair labor practices and is an unfair labor prac-
tice strike.
9. Bargaining to impasse over withdrawal of charges
It is well settled that a party to collective-bargaining nego-
tiations may request the other party to withdraw pending un-
fair labor practice charges as part of an agreement to a con-
tract package. It may not insist to impasse over the question
of withdrawal, however, and condition any final agreement
on withdrawal because the question of withdrawing charges
is a nonmandatory subject of bargaining. See Laredo Packing
Co., 254 NLRB 1 (1981), and cases cited therein at 19 and
in fn. 42. Respondent acknowledges, as it must, that
Maciejczyk repeatedly proposed to the Union the withdrawal
of an unfair unfair labor practice charge that the Union filed
shortly after the strike began in October. It contends, how-
ever, that these requests were not pressed to impasse. I dis-
agree.
The written proposals made to the Union on several occa-
sions by Maciejczyk in the late fall of 1992 and early spring
of 1993 to withdraw the pending charge were met with firm
and repeated rejections. In and of itself, such a scenario
might not support a finding of insistence to impasse. At the
outset of the April 16 negotiations, however, Maciejczyk told
Beins and other union negotiators in no uncertain terms that
there would be no contract if the pending charge remained
before the Board. When Beins capitulated to this demand,
saying that he would recommend withdrawal to members of
the bargaining unit during their contract ratification session,
his retreat was still not enough. Maciejczyk wanted from
union negotiators a commitment then and there to withdraw
the charge. Such demands define an insistence to impasse. I
have found that, by the end of the day, the Respondent had
proposed a 5-1/2 month contract (i.e., 1 year, beginning Oc-
tober 1, 1992) without any strings attached relating to
charges but such a contract term proposal is, in and of itself,
a matter of questionable legality and is arguably just another
indication of bad faith at the bargaining table on the part of
the Respondent. The Respondent did not meaningfully move
off of its insistence on a withdrawal of charges until a sec-
ond charge had been filed, challenging, inter alia, its bargain-
ing stance on April 16, and not until Maciejczyk had with-
drawn from negotiations and St. Ours had assumed the role
of the Company’s lead negotiator. As the Board pointed out
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 F. W. Woolworth Co., 90 NLRB 289 (1950).
35 As something of a makeweight argument, the Respondent also
claimed at the hearing that Wilkes should be denied reinstatement
because, in the spring of 1993, a month or so after the April 16 ses-
sion at which her status was first drawn into question, Wilkes made
a phone call to a transient housing facility on the Post to inquire
whether Ashburn was staying there at the time. During the course
of this phone conversation with the manager, Wilkes referred to
Ashburn as a ‘‘bitch.’’ Such an epithet, used in the course of a pri-
vate conversation with a third person, is not a basis for denying rein-
statement under a claim of egregious and malicious strike mis-
conduct. Indeed, a cognate expression to the term used by Wilkes
was found not to be disqualifying conduct in Emarco, Inc., 284
NLRB 832 (1987). Because of its timing, it could have had no bear-
ing on the Respondent’s April 16 refusal to reinstate Wilkes.
in Laredo Packing, supra, such a change of heart is not a
defense that excuses a previous violation of the Act. Accord-
ingly, I conclude that, by insisting to impasse that the Union
withdraw a pending unfair labor practice charge, the Re-
spondent here violated Section 8(a)(1) and (5) of the Act.
On the foregoing findings of fact and on the entire record
considered as a whole, and pursuant to Section 10(b) of the
Act, I make the following
II. CONCLUSIONS OF LAW
1. Respondent Hilton’s Environmental, Inc. is now and at
all times material has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Teamsters Local Union No. 992, affiliated with the
International Brotherhood of Teamsters, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. All food service employees and AFMIS clerks em-
ployed by the Respondent at its Ft. Ritchie, Maryland facil-
ity, but excluding cooks, guards, and supervisors as defined
in the Act constitute a unit appropriate for collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. At all times material the Union has been and is the ex-
clusive collective-bargaining representative of all the employ-
ees in the unit found appropriate in Conclusion of Law 3 for
the purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By insisting to impasse on a nonmandatory subject of
bargaining, i.e., the withdrawal of unfair labor practice
charges; by unilaterally transferring the position of AFMIS
clerk out of the bargaining unit and transferring bargaining
unit work to her; by unilaterally discontinuing the existing
method of scheduling employees on the basis of bidding; by
announcing that the Respondent no longer had a duty to re-
solve grievances in accordance with existing grievance ma-
chinery; by unilaterally discontinuing to make fringe benefit
payments to the Union’s health, welfare, and pension trust
funds; by repudiating the seniority provisions in an expired
contract covering bargaining unit employees; and by denying
to employees requested union representation during a dis-
ciplinary interview, the Respondent here violated Section
8(a)(5) of the Act.
6. By transferring the position of AFMIS clerk out of the
bargaining unit in order to discriminate against employees on
the basis of union membership and union activities, and by
refusing to reinstate Ann Wilkes because of her membership
in and activities on behalf of the Union, the Respondent here
violated Section 8(a)(3) of the Act.
7. By the acts and conduct set forth above in Conclusions
of Law 5 and 6 and by instituting a rule requiring employees
to refrain from discussing among themselves at any time and
at any place matters arising in the Respondent’s facility relat-
ing to wages, hours, and terms and conditions of employ-
ment or bringing complaints concerning working conditions
to the attention of public authorities, the Respondent violated
Section 8(a)(1) of the Act.
8. The strike that commenced at the Respondent’s Ft.
Ritchie, Maryland facility on or about October 14, 1992, was
caused by the Respondent’s unfair labor practices.
9. The aforesaid unfair labor practices have a close, inti-
mate, and adverse effect on the free flow of commerce with-
in the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend to the Board that it
be required to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes and
policies of the Act. As the violations of the Act found here
are serious and pervasive and evidence an attitude on the part
of the Respondent of total disregard for its statutory obliga-
tions and the rights of its employees, I will recommend a so-
called broad 8(a)(1) remedy designed to suppress all viola-
tions of that section of the Act. Hickmott Foods, 242 NLRB
1357 (1979). I will recommend inter alia that the Respondent
cease and desist from making unilateral changes in wages,
hours, and working conditions unless and until the Union has
consented to those changes or the Respondent has bargained
in good faith to impasse concerning them. I will also rec-
ommend that the Respondent be required to offer employ-
ment to Annamarie Manahan and Wendy Emory to their
former or substantially equivalent positions and make them
whole for any loss of earnings they may have sustained by
reason of the Respondent’s unlawful failure to hire them, in
accordance with the Woolworth formula,34 with interest
thereon at the rate prescribed by the Tax Reform Act of
1986, New Horizons for the Retarded, 283 NLRB 1173
(1987). I will recommend that the Respondent be required to
reimburse union fringe benefit trust funds for all moneys that
have been unlawfully withheld from those funds since Octo-
ber 1, 1992, with interest computed at the compliance stage
of these proceedings. Merryweather Optical Co., 240 NLRB
1213 (1979).
As unfair labor practice strikers, the employees are entitled
to full reinstatement to their former positions within 5 days
of making an unconditional offer to return to work. A special
problem has arisen in this case concerning striker Ann
Wilkes, who has served as the Union’s shop steward since
on or about December 19, 1992, when Florentine resigned.
In her position as shop steward, Wilkes had been present
at three bargaining sessions as part of the Union’s negotiat-
ing team and had assisted several strikers in pressing a claim
for unemployment compensation that apparently the Re-
spondent had contested. At the April 16, 1993 bargaining
session the Respondent announced that Wilkes was persona
non grata and would not be permitted to return to work even
though it agreed that the other strikers would be reinstated
in the event of a contract settlement. The basis for its objec-
tion was certain remarks that Wilkes was heard to make not
long after the strike began.35
457HILTON’S ENVIRONMENTAL
36 On cross-examination, Henderson said at first that during his
conversation with Wilkes the latter had said nothing about the use
of a cleaning solution being used at the mess hall to clean pots and
pans. When confronted with a pretrial statement to this effect, he
then changed his story and admitted that she had in fact mentioned
this subject to him.
37 In light of the DuPont incident, discussed above, it is entirely
possible that cleaning sprays were used in the Respondent’s kitchen
and that they might have an injurious effect.
I credit the testimony of Sergeant William G. Johnson
that, shortly after the strike began, Wilkes came to the head-
quarters building on the Post to see the garrison commander.
While she was waiting, she spoke with Johnson. She told
him that things were happening in the dining facility that
were not right. Specifically, she complained that pots were
being used for cooking purposes that had been cleaned on
the inside with cleaning solution and that oven cleaner had
been sprayed in the oven where cooking took place. She said
she needed to talk to someone about these matters because
otherwise somebody might get sick.
Johnson did not mention this conversation to anyone in the
military chain of command but continued to eat at the dining
hall. About 2 months later, he brought his conversation with
Wilkes to Ashburn’s attention in the course of a casual con-
versation. Sometime later, at Ashburn’s request, he gave a
statement to Respondent’s attorney. On cross-examination,
Johnson denied that Wilkes used the work ‘‘poison’’ in
speaking to him or that he had told anyone that she had used
that word.
On another occasion late in October or early in November,
Wilkes came to the office of Sergeant-Major Findley Hender-
son to solicit his support for the boycott of the dining hall
that was then in progress. Henderson said he could not be-
cause of Army regulations. Then he added jocularly that, be-
fore he could do so, Wilkes would have to pick him up at
meal times, bring him to her house and feed him, and then
drive him back to his office.
According to Henderson, she then told him that two sol-
diers had been poisoned at the dining facility and had been
taken to the hospital. Wilkes flatly denies making the latter
statement. Henderson said that he did not take her seriously
and did not report her allegation to his commanding officer.
Some weeks later he asked several soldiers if they had heard
anything about the poisoning of soldiers who had eaten at the
dining facilities and each replied that he had heard nothing.
Toward the end of January, while he was going through the
cafeteria line, Henderson met Ashburn, whom he had known
socially, and jocularly said, ‘‘I hear you are poisoning sol-
diers.’’ This remark led him to tell Ashburn the rest of his
asserted conversation with Wilkes. Eventually, he, too, gave
a written statement to Ashburn’s attorney.36
Strikers have wide latitude in the messages they convey to
members of the public in support of their strike, whether
orally or in writing, but they may not disseminate false, vi-
cious, or malicious statements about their employer, its prod-
ucts, or its methods of production. If they do so, they lose
the protection that the law give to strikers in bringing eco-
nomic pressure against their employers in the course of a
labor dispute. NLRB v. Electrical Workers IBEW Local 1229
(Jefferson Standard Broadcasting), 346 U.S. 46 (1953). So
long as the statements made by strikers are linked to the dis-
pute in question, the fact that they may be biased or contain
hyperbole do not render them unprotected. Emarco, Inc.,
supra. The fact that such statements may turn out to be false
or inaccurate does not mean that they are unprotected so long
as they are not malicious in character. American Cast Iron
Pipe Co., 234 NLRB 1126 (1978), and cases cited there at
1131. The burden is on the employer to establish that a strik-
er’s statements are false and malicious in order to justify de-
nying the employee reinstatement. See American Hospital
Assn., 230 NLRB 54 (1977), and cases cited therein at 56.
The statements attributed to Wilkes by Johnson, namely,
that the Company was using cleaning solution to clean the
inside of cooking pots and someone might get sick, is an as-
sertion of fact and opinion that may or may not be true. The
Respondent did not establish the falsity of these claims and
thereby cannot claim that they were uttered either wantonly
or maliciously.37 It is clear from the context of these remarks
that Johnson did not take them seriously. He continued to eat
at the dining hall and did not bring the matter to Ashburn’s
attention until months later.
The statement attributed to Wilkes by Henderson is more
critical since it is a direct allegation of serious wrongdoing
on the Respondent’s part. I credit Wilkes’ denial and believe
that the statement she made to Henderson was along the
same lines as those made to Johnson and that Henderson
who was using hyperbole in recounting the conversation.
Like Johnson, Henderson also did not take Wilkes’ remarks
seriously and he said so specifically during his testimony. He
continued to eat at the dining hall, did not bring the matter
to Ashburn’s attention until months after the conversation
took place and, when he did so, spoke of it in jest. There
is no reason the Board should take it more seriously. Accord-
ingly, I would conclude that the Respondent was not entitled
to rely on these remarks as a basis for denying Wilkes rein-
statement. When it did so on April 16, it was targeting the
Union’s leading in-house adherent but had delayed its com-
plaint against her until it appeared that a strike settlement
might actually be in the offing. In the event of a strike settle-
ment, Respondent would have to take back a militant band
of union adherents and discharge a more pliant group of
strike replacements who had crossed their picket line and
kept the dining hall functioning for a period of several
months throughout the strike. Dropping a last-minute charge
like this one at a member of the negotiating committee was
an excellent ploy for avoiding an undesired strike settlement
and it worked.
When Maciejczyk told Beins that Wilkes would not be al-
lowed to return, the Respondent was in effect discharging her
for union activities in violation of Section 8(a)(1) and (3) of
the Act. At that moment she became a discriminatee, not
merely a striker. Accordingly, I will recommend that the
Board order the Respondent to offer her full and immediate
reinstatement and that she be awarded backpay, with interest,
in the same manner as Manahan and Emory. I will also re-
quire the Respondent to post the usual notices, advising its
employees of their rights and of the results in this case.
[Recommended Order omitted from publication.]