Holiday Inn

National Labor Relations Board - Board Decisions

Jul 10, 1987

284 N.L.R.B. 916 (N.L.R.B. 1987)

916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Edith L. Davis & Jack L. Davis d/b/a Holiday Inn
of Victorville and Culinary Workers, Bartender
and Hotel Service Employees Local #535,
Hotel & Restaurant Employees and Bartenders
International Union. Case 31-CA-8195
10 July 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 21 May 1980, Administrative Law Judge
Maurice M. Miller issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed cross-excep-
tions, a supporting brief, and an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
conclusions and to adopt the recommended Order.
The judge found, correctly, that the Respond-
ent's unilateral implementation of a change in
group insurance plans for unit employees was ade-
quately announced simultaneously with the Re-
spondent's first indication that it would hire its
predecessor's work force. Respondent was, there-
fore, as the judge concluded, acting within its right
to set initial terms and conditions of employment,
although these employees continued to be repre-
sented by a labor organization. Spruce Up Corp.,
209 NLRB 194 (1974). 2 The General Counsel al-
The General Counsel has excepted to some of the judge's credibility
findings. The Board's established pohcy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect 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 re-
versing the findings
As the judge's credibility findings include his finding that owner Edith
Davis did not tell employees that Respondent would not "carry on as a
union house," we find it unnecessary to pass on the judge's alternative
findmg that such a statement, if made, would have been lawful
2 Contrary to the dissent, we find that the Respondent did not forfeit
its right unilaterally to set initial terms by offenng employment while si-
multaneously announcing some new terms and indicating that the insur-
ance benefits were subject to change. Spruce Up Corp., supra, preserves
this option. Thus, the Respondent did not mislead employees into believ-
ing that their retention would be without change in their wages, hours,
or conditions of employment, but expressly put them on notice that their
future employment would be under new conditions, giving them the
option of refusing employment if that arrangement was not to their satis-
faction. We do not agree with the dissent that the Respondent's reference
to its "hope" to provide a new insurance plan was too vague or tentative
It expressed the Respondent's intention to provide its own group msur-
ance plan and thereby put the employees on notice that they could not
rely on the continuance of the old plan. Given the nature of insurance
it is understandable that the Respondent might not have been
able to work out all details with an insurer in advance
leges, however, that the Respondent made other
unilateral changes by subsequently posting a list of
specific "infractions which may result in immediate
termination."
The judge dismissed this allegation because, in
his view, promulgation of this list fell within the
management rights granted in the existing contract
between the Respondent's predecessor and the
Union, and therefore did not affect any change in
terms and conditions of employment. We agree
that this allegation must be dismissed, but cannot
accept the judge's reasoning.
Except for matters on which a successor employ-
er sets its own initial terms, the terms and condi-
tions of employment of union-represented employ-
ees will normally be those established by the prede-
cessor's collective-bargaining agreement or by the
predecessor acting unilaterally to the extent that
the union had waived bargaining. Practices thus es-
tablished are the existing practices. They are kept
in place simply by virtue of Section 8(a)(5) of the
Act rather than by force of contract, however, be-
cause a successor employer is not bound to adopt a
predecessor's collective-bargaining agreement.
NLRB v. Burns Security Services, 406 U.S. 272, 281-
291 (1972).
A management-rights clause is not a term and
condition of employment in the same sense. To the
extent that it authorizes unilateral action to change
matters that are mandatory subjects of bargaining,
it is, in effect, a union's waiver of its statutory right
Lo bargain over those matters. Given the estab-
lished rule that such waivers must be clear and un-
mistakable (Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 702 (1983)), we would not presume that
the granting of management rights to one employer
was intended, without more, to apply to a succes-
sor employer who does not adopt the contract.
Rather, the waiver normally would be limited to
the time during which the contract that contains it
is in effect. Thus, contrary to the judge, a succes-
sor employer, having chosen not to adopt the con-
tract, cannot as a general proposition rely on the
management-rights clause to promulgate new rules
unilaterally without affording the union an oppor-
tunity to bargain. Further, there is no indication in
the management-rights clause at issue here that it
was intended to outlive the contract.
It does not follow from the foregoing, however,
that work rules and practices promulgated by
virtue of the management-rights clause during the
term of the contract expire with termination of the
contract or its rejection by the successor. They,
too, are kept in place by virtue of Section 8(a)(5).
Because work rules themselves are mandatory sub-
284 NLRB No. 101
HOLIDAY INN OF VICTORVILLE 917
jects of bargaining, 3 a successor employer, such as
the Respondent, has a statutory obligation to bar-
gain with the union about proposed changes in
such rules, except for those changes that it made
when setting initial terms and conditions. NLRB v.
Burns Security Services, supra, 406 U.S. at 293-294.
Once initial terms are set, a successor's proposal of
new work rules is subject to bargaining.
The flaw in the General Counsel's case here is
that the record does not support the contention
that the posted work rules were new. Counsel for
the General Counsel presented one witness, Bessie
Shagensky, on the alleged rule changes. Shagensky
testified that she saw a list of infractions posted on
or after the date that the Respondent actually took
over the operation of the facility. She denied, in
the words of the question propounded by counsel
for the General Counsel, that she had "ever seen
any notice from the Employer, before that time,
which delineated those particular rules." 4 Sha-
gensky was then asked, "Had you ever been ver-
bally informed by anyone in management, after the
[Respondent] took over, before you saw this docu-
ment [referring to the list of infractions], had you
ever been told verbally about these particular
rules?" She replied in the negative and testified no
further on this subject except to reaffirm her testi-
mony on cross-examination.
Significantly absent on this record is evidence
that any of the listed infractions were new or dif-
ferent from those which could have subjected the
employees to immediate termination before the pre-
vious owner transferred the business to the Re-
spondent, or evidence that the employees had not
previously been informed systematically of these
rules. See Boland Marine & Mfg. Co., supra, 225
NLRB at 830. In this posture, it still may have
been possible for the General Counsel to argue that
an inference could be drawn from the general
tenor of Shagensky's testimony that the rules had
been changed in some way. We need not pause
long over the permissibility of such an inference,
however, because Respondent's witness, Helen
Deichler, testified unequivocally that all the infrac-
tions listed on the posting were among those pre-
sented by the previous owner to all who applied
for jobs with it and that none of the disciplinary
rules was changed by the Respondent. 5 Counsel
'Moody Chip Corp., 243 NLRB 265, 272 (1979), Boland Marine & Mfg.
Co., 225 NLRB 824, 829-830 (1976), enfd. 562 F 2d 1259 (5th Cn- 1977).
4 In his opening statement the Respondent's counsel had indicated that
he intended to prove that all matters announced on the takeover date had
been posted 10 days earlier, simultaneously with the Respondent's indica-
tion that It would hire the existing work force. Later, he presented evi-
dence to that effect, creating a credibility dispute that the judge did not,
and we need not, resolve.
5 We find insignificant Deichler's admission that some infractions on
the previous owner's hat, which she could not remember, were not car-
for the General Counsel recalled Shagensky for re-
buttal testimony, but he did not, although faced
with Deichler's testimony that the rules were not
new, adduce further evidence on this subject. In
these circumstances, we do not find that a change
has been proved by the preponderance of the cred-
ible evidence. The General Counsel's failure to
controvert Deichler's specific testimony about the
contents of the previous rules precludes our finding
that the minimal support Shagensky gave to the al-
legation of a unilateral change may carry the day.6
Because we agree with the judge, for the reasons
stated above, that the Respondent made no unlaw-
ful unilateral changes, and because we agree that
the Respondent had committed no other unfair
labor practices which might have tainted the em-
ployee petition on which the Respondent relied in
withdrawing recognition from the Union, we con-
clude that the judge was correct in recommending
dismissal of the complaint in its entirety.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER JOHANSEN, dissenting.
Contrary to my colleagues, I would find that the
Respondent 'violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union over the
initial terms and conditions of employment for unit
employees.
The judge found, and I agree, that the Respond-
ent was a successor employer to Mojave Manage-
ment. In NLRB v. Burns Security Services, 406 U.S.
272 (1972), the Court stated at 294-295 as follows:
Although a successor 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 perfectly clear that the
new employer plans to retain all of the em-
ployees in the unit and in which it will be ap-
propriate to have him initially consult with the
employees' bargaining representative before he
fixes terms. In other situations, however, it
may not be clear until the successor employer
has hired his full complement of employees
that he had a duty to bargain with a union,
since it will not be evident until then that the
bargaining representative represents a majority
ried over. There is no evidence that the Respondent changed any policy
regarding the treatment of these unidentified infractions
6 The judge found It unnecessary to vouchsafe any opinion on
Deichler's reliability on this subject or in general but apparently relied on
her testimony in other respects.
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the employees in the unit as required by §
9(a) of the Act. . . .
This case involves a situation in which it was
perfectly clear that the successor employer planned
to retain all of the employees in the unit. Thus, the
Respondent, in its initial 8 May notice to employ-
ees, stated, "[W]e have no immediate plans for
changes in personnel." In its 18 May notice (i.e., on
the date the purchase of the predecessor's business
was effectuated), the Respondent similarly assured
employees "[P]lease do not be nervous as the only
[personnel] changes we will be making is in top
management positions.. . ."
Based on the Respondent's statements, it could
not be clearer that the Respondent intended all
along to retain all the unit employees of the prede-
cessor. Thus, under Burns, it had an obligation,
which it did not fulfill, to bargain with the Union
over the initial terms and conditions of employ-
ment for unit employees.'
I have no substantial quarrel with the Board's
holding in Spruce Up Corp., 209 NLRB 194 (1974),
relied on by the judge. However, the factual situa-
tion in Spruce Up was significantly different from
that in this case.
In Spruce Up, a successor employer sent letters
to the predecessor's employees, offering them em-
ployment with changed commission rates. The suc-
cessor employer requested all employees who de-
sired to work under the new terms and conditions
of employment return the letters with their signa-
tures. Thus, unless and until the employees accept-
ed the successor employer's offer, it was not clear
how many employees would be retained. Surely,
that was not an instance in which a successor em-
ployer demonstrated that it planned from the be-
ginning to retain all employees in the unit. Accord-
ingly, the Board properly held that the successor
employer had no obligation to bargain over initial
terms and conditions of employment.
However, the holding in Spruce Up should be
limited to those situations in which a successor em-
ployer announces new terms and conditions of em-
ployment and invites employees—at their option—
to accept or decline those new terms. A successor
employer who offers employment under new terms
1 In Fall River Dyeing Corp. v. NLRB, 107 SQ. 2225 (1987), the Su-
preme Court approved the Board's finding that a new employer was a
successor of another employer and was obligated to bargain with the
union that represented the predecessor employer's employees In so
doing, the Court agreed with the Board that, in determining successor-
ship, consideration of the employees' perspective furthers industrial
peace. A similar analysis is warranted here. In light of the Respondent's
pronouncements, the employees, having been retained, would reasonably
believe that their employment conditions would remain the same pending
negotiations with their representative Thus, stability in labor relations is
fostered by requiring bargaining over initial terms and conditions of em-
ployment in cases like this one
has not demonstrated an intention to retain all unit
employees. Rather, it has merely shown a willing-
ness to accept the predecessors employees if they
agree to accept the new terms and conditions of
employment.
Here, the Respondent's pronouncements to em-
ployees were not couched in terms of an offer to
employees—which might or might not be accept-
ed—but rather were affirmative statements that no
personnel changes were contemplated. If the Board
is to recognize the Court's holding that there are
instances in which it is "Perfectly clear that a new
employer plans to retain all of the employees in the
unit" it must do so here.
Thus, I find that the Respondent's failure to bar-
gain with the Union over initial terms and condi-
tions of employment violated Section 8(a)(5) and
(1) of the Act. 2 Further, in accord with this find-
ing, the Respondent's subsequent withdrawal of
recognition occurred in an atmosphere of unreme-
died unfair labor practices and was therefore un-
lawful.
2 Assuming that, as my colleagues find, the General Counsel failed to
prove that certain work rules announced by the Respondent were new, I
would, at least, find the Respondent's unilateral implementation of a new
group insurance plan was unlawful. The 8 May reference by the Re-
spondent to its "hope" about an insurance plan was vague and tentative.
The Respondent's 18 May notice to employees constituted an announce-
ment and implementation of the new group insurance plan.
Lawrence D. Wheeler, for the General Counsel.
Fletcher L. Hudson (McKnight, Hudson, Lewis and Hen-
derson), of Memphis, Tennessee, for the Respondent.
Thomas S. Jones, of Bloomington, California, for the
Complainant Union.
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge. On
a charge filed July 18, 1979, and duly served, the Gener-
al Counsel of the National Labor Relations Board caused
a complaint and notice of hearing, dated September 29,
1978, to be issued and served on Edith L. Davis & Jack
L. Davis d/b/a Holiday Inn of Victorville (Respondent).
Therein Respondent was charged with the commission
of unfair labor practices within the meaning of Section
8(a)(1) and (5) of the National Labor Relations Act, 61
Stat. 136, 73 Stat. 519, 88 Stat. 395. Respondent's answer,
duly filed, conceded certain factual allegations within the
General Counsel's complaint but denied the conunission
of any unfair labor practice.
Pursuant to notice, a hearing with respect to this
matter was held on December 12 and 13, 1978, in San
Bernandino, California, before me. The General Counsel
and Respondent were represented by counsel; Complain-
ant Union's business representative, likewise, noted his
appearance. Each party was afforded a full opportunity
to be heard, to examine and cross-examine witnesses, and
HOLIDAY INN OF VICTORVILLE 919
to introduce evidence with respect to pertinent matters.
Since the hearing's close, briefs have been received from
the General Counsel's representative and Respondent's
counsel; these briefs have been considered.
On the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent raises no question with respect to the
General Counsel's present jurisdictional claims. On the
complaint's relevant factual declarations—more particu-
larly, those set forth in the detail within the second para-
graph thereof—which Respondent's counsel concedes to
be correct, and on which I rely, I conclude that Re-
spondent was, throughout the period with which this
case is concerned, and remains, an employer within the
meaning of Section 2(2) of the Act, engaged in com-
merce and in business activities affecting commerce
within the meaning of Section 2(6) and (7) of the statute.
Further, with due regard for presently applicable juris-
dictional standards, I find assertion of the Board's juris-
diction in this case warranted and necessary to effectuate
statutory objectives.
II. COMPLAINANT UNION
Culinary Workers, Bartenders and Hotel Service Em-
ployees Local No. 535, Hotel & Restaurant Employees
and Bartenders International Union (Complainant Union)
is a labor organization within the meaning of Section
2(5) of the Act, which admits certain of Respondent's
employees to membership.
III, THE UNFAIR LABOR PRACTICES CHARGED
A. Issues
This case, which derives from a relatively simple,
straightforward sequence of events, presents three princi-
pal questions for resolution. They may be summarized as
follows:
1. Whether Respondent partnership, clearly a succes-
sor employer following its purchase of the hotel with
which this case is concerned, violated Section 8(a)(5) and
(1) of the statute by promulgating new work rules, pro-
viding for certain paid holidays, and defining Respond-
ent's vacation policy unilaterally, concurrently with its
May 18, 1978 managerial takeover, and by notifying
hotel employees, further, that a new group insurance
plan would subsequently be provided for them.
2. Whether Respondent partnership, likewise, violated
Section 8(a)(1) and (5) of the statute by notifying hotel
employees that Respondent would not operate as a union
house, and that they would not have to pay Complainant
Union's dues.
3. Whether Respondent partnership violated Section
8(a)(5) and (1) of the statute by refusing to recognize and
bargain with Complainant Union on June 9, 1978, and
thereafter.
Respondent denies responsibility for any statements,
whatsoever, reasonably calculated to interfere with, re-
strain, or coerce employees, with respect to their exer-
cise of rights statutorily guaranteed. Further, Respondent
contends that its definitive pronouncement with respect
to initial terms and conditions of work for hotel employ-
ees were posted unilaterally, simultaneously with, or
prior to Respondent's determination to restrain its prede-
cessor's workers, and that such pronouncements, there-
fore, flouted no duty to bargain with the purported rep-
resentative of Respondent's retained employees. Finally,
Respondent contends that, when finally requested to bar-
gain, it held a reasonably based, good-faith doubt that
Complainant Union still represented a majority of its
hotel employees, within a defined unit appropriate for
collective-bargaining purposes.
B. Facts
1. Background
Respondent partnership concurrently maintains offices
both in Victorville and Orange, California, where it
maintains and operates two Holiday Inns, with associated
restaurant facilities.
Respondent's Victorville hotel, with which this case is
concerned, had previously been owned and managed by
Pyramid Hotels, Inc., d/b/a Hilton Inn. Pursuant to a
representation petition filed on September 28, 1973 (Case
31-RC-2579), which generated a Decision and Direction
of Election promulgated by the Board's Regional Direc-
tor, with a secret-ballot election conducted thereafter,
Complainant Union was certified on February 14, 1974,
as the collective-bargaining representative of Pyramid's
employees within a bargaining unit defined as follows:
All full-time and regular part-time restaurant and
bar employees of the employer at its facility located
at Interstate 15 at Palmdale Road, Victorville, Cali-
fornia; excluding all hotel service employees, office
clerical employees, guards, watchmen, professional
employees and supervisors as defined in the Act.
Shortly thereafter, however, Pyramid Hotels, Inc. filed a
bankruptcy petition. In July 1974 court-appointed receiv-
ers took over that firm's Victorville Hotel operations.
They conducted contract negotations with Complainant
Union; subsequently, however, Complainant Union filed
Board charges, contending that the receivers had, unlaw-
fully, refused to bargain. Pursuant to a settlement agree-
ment reached in connection therewith, Mojave Manage-
ment Corporation and Ace Hosts of Brookfield, Inc.,
then responsible for the Victorville facility, agreed to
recognize and bargain with Complainant Union. Ace
Hosts, subsequently designated as Hotel Managers and
Hosts Corporation, and finally as Hotel Investors, Inc.,
was then the hotel's proprietor; Mojave Management
Corporation had been retained as the facility's manager.
On July 24, 1976, Complainant Union and Mojave
Management Corporation entered into a collective-bar-
gaining contract that covered Victorville hotel employ-
ees within the certified bargaining unit previously noted.
This contract had been negotiated for a 3-year term,
with a stated July 24, 1979 termination date.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Respondent purchases the Hotel
Respondent partnership, subsequently, purchased the
Victorville Hilton Inn from Hotel Investors, Inc. The
partnership, so the record shows, took over the facility's
ownership and management responsibilities on the morn-
ing of May 18, 1978, when Respondent's purchase con-
tract escrow closed. Thereafter, Respondent continued
to operate the facility, which would be designated a Hol-
iday Inn, though its publicly advertised name was not
"formally" changed until June 19. The Hilton Inn's res-
taurant and bar employees, inter alia, were retrained in
Respondent's hire. They continued work without inter-
ruption, and were not required to file new job applica-
tions with Respondent partnership.
When they took over the hotel's ownership, Respond-
ent's partners, concededly, knew that Complainant Union
represented their restaurant and bar employees and that a
collective-bargaining agreement, negotiated by Mojave
Management Corporation and Complainant Union was,
currently, fully in force.
3. Managerial changes
Within the 5-month period that preceded their pur-
chase of the Victorville facility, Respondent's partners
had visited the premises several times; during these visitt
they had discussed the hotel's operations and the prob-
lems that they might encounter following their pur-
chase's consummation, with several Hotel Investors' offi-
cials and Mojave's management representatives.
More particularly, some 10 days before their purchase
was finalized, Respondent's partners—together with
some of their prospective management people—had vis-
ited the facility to initiate Respondent's takeover proce-
dures. On May 8, someone representing Respondent had
posted a notice next to the hotel's timeclock, signed by
General Manager Dana Barr for the partnership; that
notice, specifically directed to "all" hotel employees, had
read as follows:
Escrow is to close on May 16th, at which time Mr.
& Mrs. Jack Davis will be here to meet all of you.
Mr. Barr and Mr. Ditmar are presently on property
for inventory purposes and a "get acquainted" pro-
gram. While we have no immediate plans for
changes in personnel, we ask that you observe the
following rules of Davis Hotels in order to establish
a good working relationship at the start. 1-Payroll
accounting will be slightly altered in that the pay
periods will end on the 15th and the last day of the
month, with checks issued one week later (the 7th
and 22nd). Please plan ahead so advances will not
be necessary. 2-Holidays paid: New Years, Easter,
July 4th, Thanksgiving and Christmas. We will pay
time and a half ONLY to employees who work on
those days. 3-Vacation pay will be calculated
ONLY on one years accumulated service with
Davis Hotels. You will be entitled to one weeks
paid vacation, or the money. 4-We hope to provide
an adequate Group Insurance plan for all who are
interested in same.
The notice, in short, had reported Respondent's determi-
nation to retain their newly purchased hotel's current
staff; further, however, it had provided information, di-
rected to staff personnel, with respect to several prospec-
tive "rule" changes, particularly concerned with certain
terms and conditions of work which Mojave Manage-
ment Corporation had maintained, pursuant to Complain-
ant Union's contract.
Inter alia, that contract had provided for six observed
holidays, for which qualified employees not scheduled to
work would receive compensation computed at regular
hourly rates, merely, while those scheduled to work
would receive one and one-half times their regularly
hourly pay rates. Respondent's notice reported that five
designated holidays, merely, would be observed; employ-
ees working on those holidays would receive "time and a
half" pay, while those not working would not be so paid.
Further, Complainant Union's contract with Mojave
Management Corporation had defined a graduated paid
vacation schedule—for covered hotel personnel—which
ranged from 1 week for those who had completed 1
year's service, to 3 weeks, presumably for covered work-
ers, with 10 or more years of service. Respondent's
notice, however, declared that 1 week's paid vacation,
merely, or 1 week's pay in lieu thereof, would be grant-
ed employees who had accumulated a year's service spe-
cifically in Respondent's hire. The partnership's prospec-
tive employees, finally, were notified that their prospec-
tive employer hoped to provide a satisfactory "Group
Insurance" plan, sometime thereafter, for those "interest-
ed" with respect to coverage: Respondent's promise,
clearly, suggested that such coverage would be substitut-
ed for Complainant Union's contractually mandated
medical, life, and dental group insurance and pension
programs.
Respondent's concurrent declaration within its May 8
notice, that "slightly altered" payroll procedures would
be instituted, necessarily implied that some sort of pay
period and payday changes would be made following
Respondent's takeover. The present record, however,
provides no data with respect to Mojave Management's
previously maintained payroll practices; consequently, no
determination can be made with respect to whether any
significant "conditions of work" that might concern Re-
spondent's retained personnel would be scheduled for
modification, thereby.
Respondent contends that—together with the May 8
notice noted above—the hotel's prospective general man-
ager, Dana Barr, had posted a further "Operating
Policy" bulletin in which certain standards of conduct
that prospective employees would be required to satisfy
were set forth, and some 20 "infractions" that manage-
ment might consider dischargeable offenses, were listed.
Several witnesses summoned in Respondent's behalf so
testified. The General Counsel's representative, however,
challenged Respondent's copy of the purportedly posted
bulletin, proffered for the record; within his brief he calls
Respondent's proffered document, plus the supportive
testimony presented with respect thereto, by partnership
witnesses, clearly fabricated.
HOLIDAY INN OF VICTORVILLE

921
While a witness, Respondent's partner, Edith Davis,
testified that—with two separate covering letters, dis-
patched sometime previously pursuant to a Regional
Office representative's request—she had submitted, for
Board consideration, whatever documents she considered
relevant, which Respondent had posted or distributed to
hotel personnel during the period with which this case is
concerned. She conceded, however, that no copy of Re-
spondent's undated "Operating Policy" bulletin, purport-
edly posted on May 8, had then been submitted. When
questioned with regard to this presumptive omission, she
contended, merely, that the document had belatedly been
found some "few days" before the hearing with respect
to this case began, within a Mojave Management Corpo-
ration file, containing Culinary Union documents, which
had fmally been "looked through" pursuant to her coun-
sel's request. Davis, though presumably chargeable with
personal knowledge regarding any documents that Dana
Barr and her husband, Jack Davis, had drafted and
posted on May 8, near the Victorville Hotel's timeclock,
had never, previously, mentioned the purported "Operat-
ing Policy" bulletin's posting while Complainant Union's
charges were being investigated; further, she had neither
reported her belated discovery of that presumptively rel-
evant document, nor provided Regional Office represent-
atives with a copy before the hearing covened.
For various reasons, which will be reported and re-
viewed subsequently within this decision, I have, howev-
er, refrained from any determination regarding the Gen-
eral Counsel's challenge. The significance, and possibly
probative worth, of Respondent's proffered bulletin—
with its purported May 8 posting, arguendo, presumed
for decisional purposes—will be considered further.
On May 18, Respondent's partners posted a signed
notice, directed to "all" hotel employees, which, in rele-
vant part, read as follows:
As of this date we have become the new owners of
the hotel. Mr. Barr will be the General Manager
and Mr. Ditmar the Assistant Manager. We do not
plan to make any other changes . . . the only
changes we will be making is [sic] in top manage-
ment positions. . . . Additional memos will be
posted in the near future to advise and help you
perform according to the standards set by Davis
Hotels.
Later on May 18, Respondent posted a memorandum
notice, likewise directed to hotel, restaurant, and bar per-
sonnel. This memorandum, though typed on Mojave
Management Corporation's letterhead stationery, was
signed by Respondent's general manager, Dana Barr; by
Virgil Ditmar, Respondent's food and beverage manager,
and both new Victorville hotel proprietors, Jack and
Edith Davis. Inter alia, the hotel's employees were noti-
fied that:
Although we have been on the property since May
16, 1978, we did not officially become the new
owners until escrow closed and title recorded at 8
a.m. this date.
The partnership's operating policy and basic require-
ments, with respect to employment, were then delineat-
ed. Seventeen designated "infractions" that might result
in termination were listed. The new management's policy
with respect to holidays observed for pay purposes—
which had previously been set forth within General
Manager Barr's May 8 notice—was recapitulated without
change. The partnership's previously proposed vacation
policy was, likewise, reaffirmed. The employees were
told that Barr and Ditmar, solely, would hire and dis-
charge personnel, and would, likewise, be responsible for
authorizing overtime work. Finally, Respondent's man-
agement spokesmen reported that they were, currently,
investigating a particular group insurance plan for their
Orange Holiday Inn personnel; they declared their "in-
tention" to "incorporate" their Victorville hotel employ-
ees into that plan, which they expected to effectuate
within a few weeks.
4. Subsequent developments
Shortly prior to the last designated memorandum's
posting, presumably at 1 o'clock, on May 8, pursuant to
a notice previously posted, Respondent's management
representatives had conducted a meeting, purportedly
confined to department heads within the hotel, restau-
rant, and bar facilities.
For Respondent, Edith and Jack Davis had presided.
Those present had included General Manager Barr, As-
sistant Manager Ditmar, Chef Paul Harris, Ms. Rosen-
grants, Respondent's coffeeshop hostess-manager, and the
dining room maitre d'hotel, Nino Archuleta, plus several
workers who presumably discharged "departmental" re-
sponsibilities with respect to banquet arrangements,
housekeeping, and general sales.
With respect to this meeting, Mrs. Davis testified that
those present were told Mr. Davis would be the hotel's
innkeeper; that Barr and Ditmar would be designated the
hotel's general manager and assistant manager, respec-
tively; but that Respondent's partners, solely, would
have the right to hire, discharge, or grant raises. (The
record warrants a determination, which I make, that As-
sistant Manager Ditmar was, likewise, authorized to hire
food and beverage workers and discharge them in cases
of serious misconduct. Mrs. Davis, however, may not
have mentioned this.) When asked whether the hotel
would "belong" to Complainant Union, Mrs. Davis re-
plied, so I find, that she and her husband had "not signed
any contract" with Complainant Union; she may have
commented further, so her subsequent testimony shows,
that they had not done "anything" with respect to their
union relationship.
Within a previous sworn statement, her second, that
Mrs. Davis had signed on August 24, 1978, certain lan-
guage appears that seemingly reflects her concession
that, during this May 18 department head meeting, those
present had been told "that we had no contract and
would not follow any of the contract," which she had
seen, but not read. While a witness, however, Mrs. Davis
denied that she had gone so far as to proclaim Respond-
ent's determination during the May 18 meeting not to
"follow" contract terms. She testified that, when she
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gave her second statement, she had spent 2 or 3 hours
with the Regional Office's investigator; that she had,
inter alia, recapitulated the conversational exchanges that
had taken place during the meeting in great detail; that
the Regional Office's representative had not, however,
recorded her "exact" words; that she had commented
about his failure to do so while reviewing the statement
prepared for her signature; that he had then asked
whether the statement "basically" covered what they
had discussed; that she had responded affirmatively; and
that she then signed it. Mrs. Davis conceded, while a
witness, that she had, indeed, told the hotel's department
heads Respondent's partners had not signed a union con-
tract, but categorically denied that she had further de-
clared Respondent's determination not to follow "any"
contract terms. She testified that the written-out state-
ment, though she had signed it, did not "accurately"
report her May 18 remarks. Confronted with Mrs. Davis'
present witness-chair refusal to concede the correctness of
certain purported comments set forth within her state-
ment, the General Counsel's representative proffered nei-
ther testimony nor documentation calculated to demon-
strate that prior statement's superior trustworthiness.
With matters in this posture, I find the correctness of the
investigator's summarization contained therein, with re-
spect to precisely what Mrs. Davis told Respondent's de-
partment heads, has not been preponderantly established,
for present purposes.
Before the meeting concluded, consensus was reached
that the hotel's employees should be "notified" regarding
the "important highlights" that Respondent's manage-
ment spokesmen had discussed, and that "everyone"
should be "advised" with respect to where Respondent's
partners stood. Pursuant to that understanding, the May
18 memorandum, previously noted, was posted.
On several occasions thereafter, Mr. and Mrs. Davis,
while walking through their new hotel, spoke with vari-
ous employees, individually and in groups. While a wit-
ness herein, Mrs. Davis testified, inter alia, that she had
been approached by employees with two questions:
Whether personnel changes would be made and whether
Victorville would be a union house. She had replied, so
her cross-examination testimony shows, that Respondent
had no "signed contract" with Complainant Union; that
Respondent was not Union; and that Respondent's part-
ners did not know what they were "going to do" with
respect to Union relationships.
Mrs. Davis' sworn prehearing statement, previously
noted, contains a declaration that various employees
were told Respondent had no contract with Complainant
Union, and would not "carry on" as a union house.
While a witness, Mrs. Davis conceded that she had
signed the statement that contained that recital; she
"guessed" that, when questioned, she had told the Re-
gional Office's investigator what he recorded. The
present record, however, reveals her "belief' that she
had not, previously, told Victorville's employees Re-
spondent "would not carry on as a Union house" there-
after. With due regard for the present record, which re-
flects no categorical repudiation by Mrs. Davis with re-
spect to this portion of her prehearing affidavit, I consid-
er it possible that she may have made the remark noted,
or something comparable. Within its context, however,
that statement carries equivocal connotations. It could
mean, merely, that, because Respondent had not yet
signed a union contract, or been requested to negotiate,
the hotel's management would not, at that moment, con-
sider itself committed to maintain union contract condi-
tions. Within my view, no definitive determination
would preponderantly be warranted, on this record, that
Mrs. Davis had, rather, proclaimed Respondent's defini-
tive determination not to recognize or bargain with
Complainant Union thereafter.
Elsewhere within her testimony, Mrs. Davis had re-
ported prior conversations with employees, during which
she had been told, inter alia, that they were dissatisfied
with Complainant Union's performance as their bargain-
ing representative.
On some date, never specified for the record, shortly
after Respondent's takeover, Chef Paul Harris met with a
group of employees in one of the Victorville hotel's ban-
quet rooms. Though a notice, previously posted, had
purportedly announced that "all of the employees"
would meet, those present at Chef Harris' call encom-
passed merely Respondent's cooks, several dishwashers,
one coffeeshop waitress, Betty Shegensky, and one bell-
man.
Testimony with respect to this meeting was provided
by Shegensky solely without corroboration. Her prof-
fered recollections, however, stand without contradic-
tion; neither Harris nor any other persons present testi-
fied. According to Shegensky, Harris had initially de-
clared that the meeting would be recorded. She had not,
however, seen the tape recorder, which the chef pro-
duced, running; nor had she seen him handling any tapes.
No tape recording of the meeting has been proffered for
the record.
While a witness, Shegensky recalled that the meeting
had lasted "approximately" 1 hour. Her recollections
with respect to the chefs remarks, relevant herein were,
however, briefly reported. According to Shegensky,
Harris declared:
[T]hat we were no longer Union. He said that he
didn't see any reason why that the employees
should pay Union dues to hold their jobs, because it
wasn't necessary, and he went on to say that the
employers, our business, paid in so much cents an
hour on each—he quoted some figure—to the
health and welfare. And he said that he didn't see
any reason why that the establishment wouldn't put
that, those cents that they paid on the employees,
on their paycheck.
The coffee shop waitress testified further that Re-
spondent's chef then proceeded to discuss food prepara-
tion. Assistant Manager Ditmar, who had not been
present when Harris made his union comments, came in
during the meeting's latter portion. Shegensky's prof-
fered recollections reflect no reaction with respect to
Harris' remark, vouchsafed by his employee listeners.
Previously, sometime between May 5 and 10, waitress
Theresia Lively had begun to draft a petition whereby
the hotel's restaurant and bar employees might demon-
HOLIDAY INN OF VICTORVILLE 923
strate their disaffection with union representation. Ac-
cording to Lively, she had, pursuant to her own initia-
tive, undertaken that task: First, because several "unhap-
py" employees, who had previously spoken about their
desire to get such a petition started, had never followed
through; second, because her own conversations with nu-
merous fellow workers—during the previous 2 or 3
months—had persuaded her that "everybody would sign
such a document. After several drafts, prepared with
help from her boyfriend—designated merely as a military
officer, connected with the U.S. Air Force Inspector
General's staff—the waitress fmally completed a petition
form shortly before May 30, addressed to Complainant
Union, which, in relevant part, read as follows:
Due to Union noninvolvement and lack of support
concerning wages and benefits. We the undersigned
employees of the Hilton Inn, Victorville, California,
hereby withdraw our membership and conunitt-
ments for Union representation effective this date
May Thirtieth nineteen hundred seventy eight.
We the undersigned employees, fully understand
that once Union representation is terminated, that
personell [sic] will individually represent themselves
to management.
Those employees who might "concur and agree" with
these statements were requested to print their names and
date and sign the petition. Lively and her friend, Wait-
ress Helen Diechler, signed the petition on May 30 and
cooperated with respect to its subsequent circulation,
within Respondent's restaurant and bar employee com-
plement. (Lively, so her testimony shows, kept the peti-
tion in her possession when not at work.) By Saturday,
June 3, Lively and Diechler had, collectively or sepa-
rately, procured and witnessed petition signatures pro-
vided by 37 employees personally.
Diechler testified that before May 30, two more wait-
resses—M. Palmer and J. Joyce—who knew that a peti-
tion was being drafted, had authorized Lively to list
them subsequently as petition supporters because they ex-
pected they would be away on vacation when it was fi-
nally ready for circulation. Lively had done so. The peti-
tion describes them as workers who would sign on their
return from vacation. While a witness, however, She-
gensky testified that Maureen Palmer had subsequently
told her, following her resumption of work, that she was
a union supporter.
At the time, Respondent's kitchen, dining room, cof-
feeshop, and lounge complement—so the record shows—
compassed some 45 to 50 full-time and part-time employ-
ees. On Saturday, June 3, Lively mailed the petition,
with its 37 signatures, to Complainant Union.
Though Mrs. Davis had not, prior thereto, seen the
petition, her testimony, proffered without contradiction,
warrants a determination, which I make, that sometime
within June's first 6 days, Respondent's dining room
maitre d' hotel, Nino Archuleta, told her a petition "to
get out of the union" was being circulated within the
hotel's restaurant and lounge employee complement, and
that "all of them" would sign it.
5. Complainant Union's recognition demand
Shortly before these June developments, on May 23
specifically, Complainant Union's business agent, Frances
Lloyd, who had previously been responsible for servic-
ing the Victorville hotel's contractually covered work-
ers, visited the facility. General Manager Barr told her
that he knew there had been a collective-bargaining con-
tract in force covering certain hotel workers. Bar noti-
fied Lloyd that Mr. and Mrs. Davis were not on the
premises; he said he would have them contact her and,
meanwhile, granted her permission to speak following
Lloyd's visit or several telephone calls that she made
thereafter.
On Monday, June 6, Complainant Union's representa-
tives—presumably with their regular mail delivery—re-
ceived Lively's previously mailed petition form bearing
37 signatures. That same day, Lloyd typed, signed, and
dispatched a letter to Respondent's partners, by certified
mail, in which Mr. and Mrs. Davis were notified that
Complainant Union claimed to represent Victorville
hotel employees; the business agent requested a meeting,
during which "wages, working conditions and fringe
benefits" for Respondent's workers could be discussed.
On voir dire, Lloyd testified that Complainant Union's
letters are routinely deposited in the mail at day's end.
Presumably, therefore, her letter was committed to the
mails after Complainant Union's receipt of Lively's peti-
tion. I so find.
Respondent received Lloyd's recognition demand, so a
certified mail return receipt shows, on June 9. That same
day, coincidentally, Complainant Union's representative
spoke with Mrs. Davis at Respondent's hotel. Lloyd reit-
erated Complainant Union's claim to represent Respond-
ent's workers; she requested Mrs. Davis to meet, some-
time thereafter, with Tom Jones, Complainant Union's
secretary-treasurer, to negotiate a collective-bargaining
contract.
While a witness, Lloyd contended that Mrs. Davis had
not been requested to honor the contract negotiated by
Respondent's predecessor; she conceded, however, that
Mrs. Davis had "very possibly" declared Respondent's
position that she and her husband were "new" people,
and were not bound by their predecessor's commitments.
Mrs. Davis recalled telling Lloyd, by way of reply,
that Respondent would not negotiate a replacement con-
tract because she had "overwhelming evidence" that
Victorville's employees did not desire union representa-
tion.
Complainant Union's representative, while a witness,
proffered no clearcut contradictory testimony with re-
spect to Mrs. Davis' purported reaction. The hotel
owner's proffered recollections—with particular refer-
ence to this portion of their conversation—merit cre-
dence, within my view.
Complainant Union's representative, nevertheless, per-
sisted; she requested a further meeting, during which she,
together with Secretary-Treasurer Jones, might persuade
Respondent's partners that a newly negotiated contract
would bring their hotel business, and collateral financial
benefits. Mrs. Davis finally consented to meet with Com-
plainant Union's spokesmen on June 14; the record, how-
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever, warrants a determination, within my view, that she
consented merely to discuss Complainant Union's con-
tract presentation, but did not concede Respondent's
readiness to negotiate a contractual consensus.
On June 14, pursuant to their prior arrangement, Mr.
and Mrs. Davis, together with Food and Beverage Man-
ager Ditmar, conferred with Complainant Union's repre-
sentatives within Respondent's hotel. Their respective
testimonial recitals, with respect to what happened, how-
ever, reflect some significantly divergent recollections.
None of those who testified, with respect to this con-
ference, could provide completely reliable, coherent
recollections, within my view, with respect to their
hour-long discussion. In most cases, subsconcious, self-
serving rationalizations, derived from post hoc retrospec-
tion, seem to have colored memory. My factual determi-
nations in this connection, therefore, have not been de-
rived from any single participant's testimonial recitals
considered generally credible; they reflect a synthesis,
rather, derived from the complete record, that I have
considered and weighed, with particular regard for logi-
cal probabilities.
Essentially, I find, Complainant Union's secretary-
treasurer claimed to represent Respondent's Victorville
restaurant and bar employees covered by his organiza-
tion's contract with Respondent's predecessor; he de-
clared his desire to discuss their wage rates, working
conditions, and fringe benefits.
Preliminarily, Complainant Union's representatives—
possibly in response to Mrs. Davis' query regarding what
their organization could do for Respondent's hotel—may
have tried to persuade Respondent's partners that their
negotiation of some proffered union contract might stim-
ulate future union-generated patronage for Respondent's
hotel, while their rejection of Complainant Union's pro-
posals might, rather, produce a counter "picket line" re-
action. However, such hortative comments, assuming, ar-
guendo, that they were made—do not seem to have in-
fluenced the meaningful course that the discussion now
under consideration took; nor did they, within my view,
influence its result. No finding with respect to such com-
ments, therefore, would seem required.
Jones, I find, produced three sample contracts for Re-
spondent's consideration; the first was Complainant
Union's contract with Mojave Management Corporation,
the Victorville hotel's previous operator. Complainant
Union's spokesman suggested that if none of the con-
tracts produced would satisfy Respondent, something
"new" could be negotiated.
During the discussion that followed, Mrs. Davis com-
mented, I find that Respondent's Orange County hotel
had not been unionized; that Respondent had provided
their Orange County workers with a medical benefit plan
that they proposed to make available for Victorville em-
ployees; and that she did not "feel" Respondent's person-
nel should have to pay union dues to qualify for benefits
that their new employer would, in any event, provide.
Complainant Union's representatives, contending that
their organization could provide a good "insurance"
plan, thereupon supplied Respondent's representatives
with several pamphlets, in which their collectively bar-
gained "Welfare Benefit" and "Pension" trust fund
agreements were set forth, and their group insurance and
pension programs described.
The record reflects divergent recollections with re-
spect to whether Jones or Lloyd left the meeting, for a
short time, to procure these pamphlets from their parked
car and submit them for Respondent's consideration. For
present purposes, however, no determination should be
considered required, within my view, with respect to
which union representative left. Though the General
Counsel's witnesses and Respondent's spokesmen prof-
fered divergent testimonial recitals with respect to their
conversation's course while one union representative or
the other was gone—that conversation's subject matter
was, substantially, canvassed following the departed
union representative's return.
Assistant Manager Ditmar, I find, briefly reviewed
Complainant Union's descriptive booklet; concluded that
Complainant Union's welfare benefit program was not a
good one; voiced his opinion; and relinquished the pam-
phlet. Though current trust fund contribution require-
ments for Complainant Union's program—which con-
tractually bound employers would be required to satis-
fy—were cited, pursuant to Mrs. Davis' request for infor-
mation with respect thereto, Complainant Union's wel-
fare benefit program, I find, was never thoroughly re-
viewed.
During the temporary break generated by the depar-
ture of Complainant Union's secretary-treasurer, or busi-
ness representative, previously noted, Mrs. Davis had, so
I find, reported that she had "heard and pretty well
knew" that there was a petition, which Victorville hotel
workers had been circulating, whose signers had pro-
claimed their rejection of further union representation.
Respondent's partner had declared she was "sure that
Secretary-Treasurer Jones had knowledge regarding the
petition. Confronted with these declarations, Jones had
concededly tried to initially forestall discussion. Finally,
however, Respondent's management representatives
were told, substantially, that Complainant Union had,
indeed, received such a signed petition. Jones declared,
however, that he considered the document's submission
meaningless: First, because it had been mailed, and he
could not be certain that it had been signed by Respond-
ent's represented employees; second, because previously
such petitions, within his experience, had frequently been
initiated by employers, who might have coerced their
employees to sign; third, because he did not, therefore,
consider it a proper "legal" document, for the reasons
stated; fourth, because employers, such as Respondent,
who might claim a good-faith doubt with respect to
Complainant Union's representative status, or workers
who might wish to reject union representation could
have resorted to Board procedures for that purpose. Fur-
ther, Respondent's secretary-treasurer, I find, told Mrs.
Davis that Lively's petition, in any event, was none of
her business.
Inter alia, Jones commented, so I find, that, because
Respondent had retained contractually bound Mojave
Management Corporation's former employees, the part-
nership was obligated to recognize Complainant Union's
representative status and bargain on request.
HOLIDAY INN OF VICTORVILLE 925
He repeated his claim that Respondent's employees
wanted union representation, and that he was there to
represent them. Mrs. Davis, however, reiterated her con-
tention that Respondent had "evidence" sufficient to per-
suade her that Victorville's employees no longer desired
unionization.
Respondent's partners, so I find, proffered no categori-
cal contention, specifically on June 14, that Complainant
Union did not represent a majority of their Victorville
hotel's restaurant and bar workers. While a witness, Sec-
retary-Treasurer Jones conceded, however, that Mrs.
Davis had clearly conveyed "negative" reactions when
confronted with Complainant Union's suggestion that
Respondent was obligated to negotiate some sort of con-
tract for them. During their discussion, now under con-
sideration, Jones finally suggested that Mrs. Davis should
"look over" those contract exemplars with which she
had been supplied; Respondent's representative, I find,
accepted his suggestion.
, Jones testified that Mrs. Davis said she could see "no
harm" consequent on such a contract review. While a
witness, Mrs. Davis tacitly conceded that within her pre-
hearing statement previously noted she had reported,
though not with the "exact" words set forth therein, her
response that she would "consider what [Complainant
Union] had to offer" with an open mind.
The record, considered in totality, nevertheless war-
rants a determination, which I make, that Mrs. Davis, in
words or substance, declared that Respondent would not
sign a contract; that she and her husband would not ne-
gotiate; and that they would even commit themselves to
negotiate, thereafter, before consulting their attorney.
She stated, substantially, that she would discuss with Re-
spondent's legal counsel Complainant Union's contention
that because she and her husband had retained Mojave
Management Corporation's restaurant and bar workers,
they were obligated to bargain. Finally, Mrs. Davis de-
clared that she would "get back" with Complainant
Union's representatives, subsequently, whereupon they
would lae told whether Respondent would "agree to ne-
gotiate" pursuant to request. On this note, Complainant
Union's spokesmen and Respondent's partners concluded
their discussion.
6. Respondent's reaction
Shortly after June 14, Complainant Union's business
agent, during a visit to Respondent's hotel, left copies of
the several contracts, which Secretary-Treasurer Jones
had proffered, for Mrs. Davis' perusal.
On June 29, Lloyd spoke with Mrs. Davis briefly
during another visit to Respondent's facility. According
to the business representative's testimony, which I credit
in this connection because I find it consistent with logi-
cal probabilities, Mrs. Davis reported that, for lack of
time, she had not yet studied Complainant Union's prof-
fered draft contracts, but that she had decided "they
didn't want the Union" there.
Lloyd testified, further, that Mrs. Davis had, neverthe-
less, promised to review Complainant Union's contracts
and communicate with her sometime after July 4. This
portion of the business representative's testimony, within
my view, merits no credence; I consider it highly unlike-
ly that Mrs. Davis would have promised to consider and
discuss Complainant Union's contract proffers some time
later, while concurrently proclaiming Respondent's de-
termination not to negotiate a collective-bargaining
agreement.
So far as the record shows, their brief June 29 conver-
sation, which Mrs. Davis purportedly did not recall,
marked the last occasion on which Lloyd and Respond-
ent's partner met.
On July 10, Complainant Union received a letter,
signed by Mary Lou Olson, Respondent's employee, in
which she reported that she had been under "heavy pres-
sure" when she signed Lively's circulated petition more
than a month earlier, and currently wanted her name re-
moved. Later that same day, Lloyd dispatched a letter to
Respondent's partners that, save for its first few words,
replicated Complainant Union's June 6 representation
claim and meeting request. On July 11, when Mrs. Davis
received Lloyd's letter, she telephoned Complainant
Union's business representative. Inter alia, Respondent's
partner reminded Lloyd, with some heat, that she, Mrs.
Davis, had previously declared the "evidence . . . over-
whelming" that Complainant Union did not represent a
majority of Respondent's Victorville employees; that she
was still of that view; and that Respondent would not
negotiate a collective-bargaining contract.
On July 18, Complainant Union charged Respondent
with 8(a)(1) and (5) unfair labor practices; the General
Counsel's complaint followed.
C. Discussion and Conclusions
I. General statement
On this record, the General Counsel contends that Re-
spondent partnership, functioning as Mojave Manage-
ment Corporation's successor, was obligated to recognize
and bargain with Complainant Union as the previously
certified and contractually confirmed representative of
certain Victorville, California hotel workers, within a de-
fmed bargaining unit found appropriate for collective-
bargaining purposes. His representative seeks a determi-
nation that Respondent partnership flouted its bargaining
duty by promulgating new work rules unilaterally; by
notifying its concerned employees that it would procure
certain group insurance coverage for them, and by pro-
curing such coverage, subsequently, without bargaining
with Complainant Union; by telling various employees
that it would not operate as a union house, and that they
would not need to pay union dues; and by refusing spe-
cifically to recognize and bargain with Complainant
Union on July 11, 1978, and thereafter.
2. The unit appropriate for collective bargaining
The General Counsel, within his complaint, contends
that the bargaining unit found appropriate for collective-
bargaining purposes at Victorville's hotel facility, within
the Regional Director's November 20, 1973 Decision and
Direction of Election, previously noted, should likewise
be considered appropriate. That bargain unit encom-
passed:
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time restaurant and
bar employees of the Employer at its [Victorville,
California] facility, excluding all hotel service em-
ployees, office clerical employees, guards, watch-
men, professional employees and supervisors as de-
fined in the Act.
Such bargaining units, confined to full-time and regular
part-time restaurant and lounge employees, within the
hotel facilities, have heretofore been found appropriate
for collective-bargaining purposes. Howard Johnson Co.,
236 NLRB 1206 (1978). Further, the General Counsel
notes that, when Complainant Union, following its certi-
fication, finally negotiated a collective-bargaining con-
tract with Mojave Management Corporation, the Victor-
vile hotel facility's previous operator, their contract
covered employees within the bargaining unit precisely,
for which Complainant Union had been certified. That
contract was, subsequently, maintained in force for
slightly less than 2 years before Respondent purchased
the facility. Subsequent to Respondent's replacement of
Mojave Management's managerial personnel, so the
record shows, the Victorville hotel's restaurant and
lounge operations were continued without interruption,
and with substantially the same employees, facilities, sup-
plies, standards, and level of service. Though Respond-
ent has noted its formal denial, with respect to the Gen-
eral Counsel's bargaining unit contention, no record
proffers have been made calculated to counter his claim
that the bargaining unit, defmed within both the Region-
al Director's certification and Complainant Union's sub-
sequently negotiated contract, should still be considered
appropriate for collective-bargaining purposes. No per-
suasive showing has been made that Respondent's man-
agement representatives have significantly modified their
newly purchased facility's restaurant and lounge oper-
ations.
Mindful of the Regional Director's prior unit determi-
nation, Complainant Union's previously negotiated con-
tract and consistent bargaining history concerned with
that unit, the clear "community of interest" that the Vic-
torville hotel's restaurant and bar employees compassed
within the unit share, and Respondent's failure to proffer
significant "evidence" that might warrant a contrary de-
termination, I conclude, consistently with the General
Counsel's Contention, that the bargaining unit previously
defined should be considered appropriate for collective-
bargaining purposes.
3. Respondent's status as Mojave Management's
successor
Whenever a purchaser takes over a predecessor's busi-
ness, continues the predecessor's operation without a
substantial break in continuity, and thereafter provides
similar services for similar customers, within the same fa-
cility, while employing the same work force in precisely
the same job capacities, that purchaser will be considered
a successor employer for statutory purposes. Compare
Virginia Sportswear, 226 NLRB 1296, 1300 (1976); NLRB
v. Continental Inn, 453 F.2d 269, 272-274 (6th Cir. 1971).
Within his brief, the General Counsel's representative
contends:
that on May 18, 1978 Respondent purchased the
hotel and other assets from Hotel Investors, Inc.
and continued the operation of the hotel and restau-
rant without change or hiatus in operations and
with all of the predecessor's employees. Therefore,
based upon the record evidence and appropriate
case law, it can only be concluded that Respondent
is a successor employer. . . .
Respondent, however, challenges the General Counsel's
successorship contention. Its counsel suggests that, fol-
lowing Respondent's acquisition, Mr. and Mrs. Davis
made certain "organizational" changes, sufficient to war-
rant a determination that any bargaining unit confined to
their food and beverage employees should no longer be
considered appropriate for collective bargaining. That
suggestion, within my view, carries no persuasion.
Within his brief, the counsel cites: First, Respondent's
designation of General Manager Barr as the Victorville
hotel's innkeeper, vested with complete overall responsi-
bility; second, Respondent's purported centralization of
"supervisory authority" that hotel department heads
would no longer possess; third, Respondent's organiza-
tional changes, which purportedly established a high
degree of functional integration and mutuality of interest
within the partnership's complete personnel complement.
It should be noted, however, that Assistant Manager
Ditmar was given specific responsibility for food and bev-
erage operations; General Manager Barr's supervisory re-
sponsibilities with respect to food and beverage person-
nel may, therefore, properly be considered general
"oversight" responsibilities, rather than direct supervi-
sion. Further, Respondent's claim that Victorville's food
and beverage personnel were "functionally integrated"
with Respondent's other hotel service workers simply
lacks record support. Purportedly common supervision,
assuming, arguendo, that such supervision could be
found on the present record, will not suffice. Respondent
partnership, I find, must be considered a successor em-
ployer for present purposes.
4. Respondent's changes with respect to conditions
of work
Whenever some changes of ownership have not affect-
ed a business enterprise's essential nature, that enter-
prise's purchaser must, consistently with settled princi-
ples, recognize the continued representative status of
whichever labor organization the seller-predecessor may
have recognized, and with which that predecessor may
have bargained, for particular employees. Further, absent
some reasonably based good-faith doubt with respect to
such a designated "incumbent" labor organization's ma-
jority representation status, the purchaser-successor will
be considered obligated to bargain with that labor orga-
nization. Tom-A-Hawk Transit v. NLRB, 419 F.2d 1025,
1026-1027 (7th Cir. 1969), cited with approval in NLRB
v. Burns Security Services, 406 U.S. 272, 281 (1972); see
also Golden Gate Bottling Co. v. NLRB, 414 U.S. 168,
184-185 (1973), in this connection. This follows because
whenever a purchaser may properly be considered a true
"successor" for statutory purposes, whatever labor orga-
HOLIDAY, INN OF VICTORVILLE 927
nization that purchaser's predecessor may have recog-
nized and bargained with continues to enjoy a presump-
tion of representative status. That presumption—particu-
larly when based on some prior Board certification—has
been considered "almost conclusive" throughout the first
year following the labor organization's designation; it
continues, thereafter, unless and until rebutted by some
"objective" facts, sufficient to provide a reasonable basis
for doubt regarding that labor organization's majority
representative position. See NLRB v. Burns Security Serv-
ices, supra at 279 fn. 3, and cases therein cited. A succes-
sor employer's claim that it should be considered re-
lieved from its bargaining obligation must, therefore, be
motivated clearly by a demonstrably "good faith" doubt;
such claims, when proffered for the purpose of gaining
time within which the concerned labor organization's
representative status might be undermined, will be reject-
ed. Terrell Machine Co., 173 NLRB 1480, 1480-1481
(1970), enfd. 427 F.2d 1088 (4th Cir. 1970).
Ordinarily, the duty to bargain compasses a duty to re-
frain from changes in wages, hours, or conditions of
work, effectuated without prior consultation and negotia-
tions, if requested, with a recognized bargaining repre-
sentative. In NLRB v. Burns Security Services, supra at
294-255, however, the Supreme Court declared that "a
successor employer is ordinarily free to set initial terms
on which it will hire the employees of a predecessor.
. . ." without first bargaining with the employees' bar-
gaining representative. Having so held, the Court, never-
theless, recognized a particular exception, with respect to
that principle; the Court noted that:
there will be instances in which it is perfectly clear
that the new employer plans to retain all of the em-
ployees in the unit and in which it will be appropri-
ate to have him initially consult with the employees
bargaining representative before he fixes terms.
Herein, the General Counsel contends that, because Re-
spondent partnership clearly manifested its purpose to
offer continued employment to Mojave Management
Corporation's entire hotel service, restaurant, and bar
personnel complement on May 8, before Mr. and Mrs.
Davis took over hotel operations, they were not free to es-
tablish initial terms and conditions of employment, there-
after, without consulting with Complainant Union.
This Board has considered and construed the Burns
caveat in several cases; the circumstances under which a
successor employer will not be considered "free to set
initial terms" have, therein, been somewhat restricted. In
Spruce Up Corp., 209 NLRB 194, 195 (1974), the Board
declared that:
When an employer who has not yet commenced
operations announces new terms prior to or simulta-
neously with his invitation to the previous work force to
accept employment under those terms, we do not
think it can fairly be said that the new employer
"plans to retain all of the employees in the unit," as
that phase was intended by the Supreme Court
. . . . We believe the caveat in Burns, therefore,
should be restricted to circumstances in which the
new employer has either actively, or by tacit infer-
ence, misled employees into believing they would all be
retained without changes in their wages, hours or con-
ditions of employment, or at least to circumstances
where the new employer . . . has failed to clearly
announce a new set of conditions prior to inviting
former employees to accept employment [emphasis
supplied].
These decisional pronouncements then provide the fun-
damental rubric by which Respondent's conduct must be
tested. Consistently therewith, I find that Respondent's
course of conduct did not encompass unilateral changes
in terms and conditions of work, statutorily proscribed.
This Board has held that a successor employer's plan
to retain all, or a majority, of its predecessor's employees
within a given bargaining unit becomes "perfectly clear"
within the meaning of the Supreme Court's decision,
when it reveals its plan or intention to do so. What con-
stitutes such a revelation will, necessarily, turn on the
particular facts of the case. On this record, I find, deter-
mination seems clearly warranted that Respondent re-
vealed its purpose when, within its May 8 posted notice,
Victorville hotel employees were told that Mr. and Mrs.
Davis would shortly meet "all" of them, and that their
facility's prospective purchaser had "no immediate
plans" for personnel changes. Simultaneously therewith,
the employees concerned were notified, however, that
payroll procedures would be modified; that Respondent
would recognize five, rather than six, paid holidays; that
their vacation pay would be calculated differently; and
that Respondent planned to provide a group insurance
plan under which those "interested" could choose cover-
age. At no time were Respondent's prospective employ-
ees "misled into believing" that their terms and condi-
tions of employment would remain unchanged; Respond-
ent's management cannot be charged with a failure to de-
clare, clearly, that it proposed to establish a new set of
conditions, when Mojave Management Corporation's
personnel were essentially told they could retain their
positions.
The General Counsel contends, nevertheless, that Re-
spondent's management made two unilateral changes,
shortly after May 8, with respect to which its clearly de-
fined statutory duty to bargain following the Victorville
hotel's takeover was disregarded. Specifically, the Gen-
eral Counsel's representative cites Respondent's May 18
specification of 17 "infractions" that might result in dis-
charge, plus the partnership's concurrent declaration that
Victorville employees would, shortly thereafter, be "in-
corporated" within a group insurance plan, then being
investigated, which Respondent proposed to procure for
its unrepresented Orange County hotel personnel. These
contentions, within my view, carry no persuasion.
With respect to Respondent's pronouncement regard-
ing future group insurance coverage, little need be said.
Victorville's hotel service, restaurant, and bar personnel
had previously been told, within Respondent's posted
May 8 notice, that their prospective employer "hoped to
provide" such coverage. The partnership's May 18 decla-
ration of intent, therefore, promised nothing new; it
merely conveyed a message that Respondent's previously
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
professed May 8 hope should be considered somewhat
closer to realization.
Mindful of this, I find the General Counsel's reliance
on CME. Inc., 225 NLRB 514 (1976), and Pride Refin-
ing, 224 NLRB 1353, 1356, (1976), misplaced; those cases
were clearly concerned with situations distinguishable
from the situation revealed within the present record.
Within my view, therefore, Respondent's subsequent
procurement of group insurance coverage for Victor-
vine's workers did not constitute a clearly "new" term
or condition belatedly instituted; rather, it represented
merely the fruition of plans and purposes previously de-
tailed, simultaneously with Respondents May 8 tacit indi-
cation that Mojave Management Corporation's work
force would be assured continued employment.
With respect to Respondent's May 18 list of grounds
for discharge, likewise, no determination should be con-
sidered warranted, within my view, that "new terms"
were, therein, being unilaterally promulgated.
Previously, within this decision, Respondent's testimo-
nial and documentary proffers, calculated to dictate a
factual conclusion that management's May 18 notice,
inter alia, represented a mere recapitulation, with de min-
imis modifications, of certain matters set forth within a
so-called Operating Policy bulletin previously posted
have been noted. The General Counsel's barrage of chal-
lenges regarding the reliability of those proffers, and
their probative worth, have likewise been considered.
With respect thereto, however, I have not set forth defi-
nite conclusions; within my view, no statutorily pro-
scribed "unilateral" change has been demonstrated, for
the present record, whether Respondent's list of dis-
chargeable offenses was posted twice, both on May 8
and 18, or merely on the date last designated.
If posted on May 8, that list was publicized simulta-
neously with Respondent's invitation to Mojave Management
Corporation's personnel complement, previously noted; its
subsequent recapitulation, with some minor, primarily
nonsubstantive changes, could not, therefore, properly be
considered a belated, statutorily proscribed promulgation
of new terms. If posted on May 18 within a clearly more
comprehensive memorandum notice, the list within my
view, would still raise no question requiring resolution.
Complainant Union's contract with Respondent's prede-
cessor had specified certain management rights; inter alia
these had encompassed:
The right to . . discharge or discipline, maintain
discipline and efficiency of employees . . . and
qualifications of employees. . . .
Respondent's pronouncement that certain specified types
of conduct might lead to discharges, therefore, represent-
ed nothing more than a detailed description of various
circumstances that might, thereafter, trigger Respond-
ent's determination to exercise previously conceded man-
agerial prerogatives. No unilaterally determined "new
terms" were, thereby, being promulgated. Thus, no de-
terminations need be made, within my view, with respect
to whether Respondent's specification of 17 "infractions"
that might lead to discharge tracked, or did not track,
some comparable list of dischargeable offenses that the
partnership's predecessor had purportedly promulgated
and maintained. The fact that Respondent's list may have
paralleled some similar list purportedly disseminated pre-
viously may properly be considered neither material nor
relevant. Clearly, Respondent's decision that such a list
should be posted reflected nothing more than a determi-
nation that the hotel's new proprietors would exercise
managerial prerogatives that their predecessor-seller had
previously possessed. As such, Respondent's May 18
posting, whether it reflected a more detailed or different
policy with respect to discharges, generated no "new
term or condition of employment" with respect to which
Complainant Union could properly have requested bar-
gaining.
Consistently with these views, I conclude that Re-
spondent did not flout or disregard its statutorily defined
duty to bargain, by unilaterally changing terms and con-
ditions of employment for Victorville's hotel employees
within the bargaining unit found proper.
5. Interference, restraint, and,coercion
The General Counsel contends, further, that Respond-
ent partnership interfered with, restrained, and coerced
its food and beverage department personnel, while con-
comitantly flouting its bargaining duty, through certain
statements purportedly chargeable to Mrs. Davis, her
husband, and Paul Harris, Respondent's chef, directly
subsequent to Respondent's May 18 Victorville takeover.
I have not, however, been persuaded.
Relying on testimonial recitals proffered by Bessie
Shegensky, Respondent's former coffeeshop waitress, the
General Counsel seeks a determination that—during a
meeting presumably convened primarily to discuss food
preparation—the partnership's chef,' Paul Harris, prelimi-
narily volunteered a comment that "we [are] no longer
union" coupled with a further statement that he saw no
reason why Respondent's employees should continue to
pay union dues for the purpose of retaining their posi-
tions.
Further, Shegensky purportedly recalled that Chef
Harris had told those present he "didn't see any reason"
why Respondent would not add "cents , per hour" which
had theretofore been contributed to Complainant Union's
contractually created trust fund for health and welfare
benefits to their paychecks.
Respondent's counsel, however, contends primarily
that whatever statements Harris may have volunteered
should not be charged to his employer since Harris was
not then a supervisor functioning as Respondent's
spokesman, with management's knowledge and consent.
Further, counsel suggests, secondarily, that Harris' pur-
ported statements reflected his "opinion" merely, and
should not be considered statutorily proscribed.
Respondent partnership's contention that Harris held
no supervisory position, when he purportedly made the
statements previously noted, must be rejected. He was
Respondent's salaried chef, supervised food preparation,
directed the work done by Respondent's kitchen person-
nel, and prepared their weekly work schedules. Prior to
Respondent's Victorville takeover, Harris had, further,
been responsible for calling part-time employees for
HOLIDAY INN OF VICTORVILLE 929
work, whenever additional kitchen help might be
needed; he had "authorized" or "approved" kitchen help
compensation for overtime work; he had "interviewed"
many job applicants, while using a desk within Respond-
ent's store room designated for his purposes exclusively.
Throughout the period with which we are concerned,
Harris had, likewise, trained Victorville's food and bev-
erage personnel, When Respondent's management con-
ducted its May 18 "department head" meeting, previous-
ly noted, Harris had concededly been present.
Respondent has, however, proffered testimony calcu-
lated to warrant a determination that, during the 2-week
period that directly followed Respondent's May 18 take-
over, Harris had been temporarily deprived of certain su-
pervisory responsibilities and powers, while Respond-
ent's partners were considering whether he should be re-
tained as their Victorville hotel's chef. Considered in to-
tality, the present record provides no reliable, substantial,
or probative evidence that Harris' subordinates were spe-
cifically notified that Assistant Manager Ditmar had tem-
porarily taken over his supervisory responsibilities.
Within my view, his "apparent authority" was never ef-
fectively withdrawn, so far as Respondent's food and
beverage personnel were concerned.
With matters in this posture, I find Respondent's chef,
directly following the partnership's May 18 takeover, re-
tained sufficient status to warrant a determination that
statements chargeable to him should likewise be consid-
ered chargeable to Respondent's management, consistent
with respondent superior principles.
Nevertheless, no conclusion would be justified, within
my view, that Harris made statements, during the meet-
ing now under consideration that transgressed permissi-
ble limits.
I note first that Shegensky's testimony regarding the
meeting—which stands in the record without corrobora-
tion—leaves considerable room for doubt with respect to
her proffered recollection's reliability. She provided no
clue with regard to precisely why Chef Harris would
have summoned "all" food and beverage employees to
some midafternoon sessions that he planned to devote
largely to discussions concerned with food preparation.
If Harris had really summoned "all" concerned person-
nel, Shegensky's testimony, again, provides no clue with
respect to why she was the sole waitress there, or why a
single "bellman" presumably not concerned with restau-
rant or bar problems was, likewise, present.
Further, with particular reference to what Harris pur-
portedly said, Shegensky's testimonial recital must be
considered ambiguous. The chef's reported comment that
"We [are] no longer union" could have been calculated
to convey a message that Respondent's concerned person-
nel were no longer covered by Complainant Union's pre-
viously negotiated contract; alternatively, Harris could
have been saying that Respondent's management consid-
ered themselves no longer bound thereby. In either case,
his statement would have been a factually "correct"
report, carrying no statutorily forbidden thrust. Any de-
termination, however, that Harris was really saying Re-
spondent would no longer recognize Complainant
Union's representative status, and would not, from that
point forward, negotiate with it, would necessarily have
to be derived merely from surmise.
The chefs purported statements, further, that he "saw
no reason" why Respondent's food and beverage work-
ers should continue to pay union dues, or why Respond-
ent would not supplement their paychecks with what-
ever "cents per hour" their prior employer had contrib-
uted to Complainant Union's health and welfare trust
fund, clearly reflected his merely "opinion"; Harris' lis-
tener's, within my view, could hardly have considered
such statements threatening, or charged with any mean-
ingful "promise of benefit" statutorily proscribed. Cf.
Blue Cross, 219 NLRB 1 (1975), in this connection.
The General Counsel contends that Mrs. Davis par-
ticularly—subsequent to Respondent's May 18 takeov-
er—told various employees that Respondent would not
"carry on as a union house" clearly revealed Respondent
partnership's determination not to comply with its bar-
gaining obligation; necessarily conveyed a message that
further employee support for Complainant Union would
be futile; and, therefore, should be considered a statutori-
ly proscribed attempt to destroy Complainant Union's
presumed majority support, and undermine its represent-
ative status. Cf. Oldfield Tire Sales, 221 NLRB 1275,
1276-1277 (1975), in which a comparable statement was
found violative of both 8(a)(5) and (1) strictures.
Previously, however, within this decision, I have
found the General Counsel's presentation—with respect
to specifically challenged statements purportedly made
by Mrs. Davis particularly—less than sufficient to war-
rant a determination that some of Respondent's food and
beverage employees were told their new employers
would not "carry on as a union house" thereafter.
The General Counsel's record proffer, with respect
thereto, concededly derives, solely, from a purported
concession within Mrs. Davis' sworn prehearing state-
ment.
No food or beverage department employees, to whom
Mrs. Davis' challenged statement was supposedly made,
were summoned or questioned—when this case was
heard—with regard to whatever she may have said.
While a witness, however, Mrs. Davis has denied, like-
wise under oath that, following Respondent's takeover,
she did make statements, to various Victorville hotel em-
ployees, like the statement now under consideration. Her
categorical denial further reflects something more than
simple negation. It stands, for the record, buttressed with
a circumstantially detailed, rationally proffered conten-
tion that, with due regard for the situational context
within which her prehearing "supplemental affidavit"
was taken, the Regional Office representative's recapitu-
lation, set forth therein, with regard to her purported
comments, should not be considered literally correct.
Within his brief, the General Counsel suggests, contrari-
wise, that Mrs. Davis' witness-chair denial, with regard
to her prior sworn statement's correctness, merits no cre-
dence "since it is more likely that the prior statement is
more truthful" because it was given before she realized
the significance of her acknowledgement, recorded
therein, regarding her statements to Respondent's con-
cerned employees. That suggestion, however, carries no
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
persuasion, within my view. Mrs. Davis' witness-chair
denials, with regard to her previously subscribed affida-
vit's correctness, were, like her affidavit noted, proffered
under oath; facially, therefore, they must be considered
equally worthy of credence, absent some further "reli-
able, substantial and probative" record showing, suffi-
cient to warrant a determination consistent with her pre-
viously sworn statement's content. No such testimonial
or documentary showing has been made. Mere surmise
that her prior affidavit should be considered "more
likely" reflective of truth will not suffice.
On this record, the General Counsel's representative,
within my view, has failed to sustain his burden of proof,
with respect to this particular factual charge within his
complaint.
Assuming, arguendo, that the General Counsel's prof-
fer of Mrs. Davis' sworn prehearing statement constitut-
ed a prima facie showing with respect to what she had
told Respondent's employees, that prima facie showing
was "overcome" when she repudiated the relevant por-
tion of her supplemental affidavit's purported recapitula-
tion, regarding the scope of her posttakeover comments,
coupling her repudiation with a circumstantially detailed
justification for her witness-chair denials that particular
comments were made. Confronted with her repudiation,
the General Counsel presented no further "independent"
testimony or documentation whatsoever, calculated to
support his contention that Mrs. Davis' prehearing state-
ment should be considered a comprehensive, truthful
report. This Board has long recognized that a respond-
ent's failure to present knowledgeable witnesses, pre-
sumptively qualified to support proffered contentions, or
corroborate testimony previously given, will warrant in-
ferences that their testimony, if produced, would not
have been supportive. Consistently with Respondent's
submission I conclude that the General Counsel's failure
to produce witnesses, presumptively qualified to testify
regarding Mrs. Davis' purported posttakeover comments,
likewise warrants a determination, pan passu, that her
testimonial denials with respect thereto have not been
persuasively countered.
Alternatively, should the Board consider a factual con-
clusion warranted, contrariwise, that Mrs. Davis did
make the particular statement charged several times
when responding to queries posed by various hotel em-
ployees, I would, consistently with Respondent's conten-
tion, fmd such statements, in any event, beyond 8(a)(5)
and (1)'s proscriptive reach. The statement in question,
within my view, conveyed no clear suggestion that Re-
spondent partnership would rebuff Complainant Union's
representation claims; within the situational context in
which it was purportedly made, it could logically have
been taken, by Mrs. Davis' listeners, as nothing more
than a further declaration of her opinion regarding Re-
spondent's lack of a contractual relationship with Com-
plainant Union at that particular point in time. A contrary
determination that it was calculated to convey Respond-
ent's purpose to withhold recognition and refuse to nego-
tiate with Complainant Union thereafter, though conceiv-
ably justifiable, can hardly be considered ineluctable, on
this record. Because the statement, therefore, can reason-
ably be deemed equivocal, rather than definitive, this
Board's interdiction with respect thereto should not,
within my view, by considered warranted.
6. Respondent's refusal to bargain
The General Counsel's representative, finally, contends
that Respondent violated Section 8(a)(5) and (1) of the
statute when Mrs. Davis and her husband, specifically on
July 11 and thereafter, refused to recognize and bargain
with Complainant Union.
A successor employer, claiming the right to withdraw
recognition from a labor organization with which its
predecessor had maintained a collective-bargaining rela-
tionship, must, consistently with settled law, first rebut
that labor organization's presumption of continued ma-
jority support, with "clear, cogent and convincing evi-
dence" sufficient to demonstrate persuasively that, at the
time recognition was withdrawn, the labor organization, in
fact, no longer enjoyed majority support, or that its re-
fusal to bargain was predicated on a reasonable doubt—
based on objective considerations, and generated within
a situational context free of predispositive unfair labor
practices—regarding the labor organization's continued
majority status. NLRB v. Tahoe Nugget, 584 F.2d 293,
297 (9th Cir. 1978), and cases therein cited; see Middle-
boro Fire Apparatus, 234 NLRB 888 fn. 2 (1978), in this
connection. This Board, with judicial support, has gener-
ally found presumptions of majority support overcome
when "some identifiable acts" by a majority of the con-
cerned employees have persuasively supported their em-
ployer's claimed doubt of majority status. NLRB v. Cor-
nell of California, 577 F.2d 513, 516 (9th Cir. 1978).
When, however, respondent employers have relied on
patently equivocal factors, claimed intuition, or mere
"wishful speculation" not "clearly referrable" to some
demonstrable decline in union support, this Board has
routinely found such proffers less than sufficient to rebut
presumptions of continued majority status, save in situa-
tions when the concerned employer's testimonial or doc-
umentary proffers carry some "cumulative inferential
weight" sufficient to warrant a determination that the
firm's refusal to bargain was reasonable. See Tahoe
Nugget, supra at 304-305 in this connection.
With due regard for these dispositive principles, Re-
spondent partnership contends that Mr. and Mrs. Davis
possessed a "good faith" doubt—specifically, a reasona-
ble doubt, bottomed on persuasive "objective" consider-
ations—with respect to Complainant Union's representa-
tive status—when they concluded their May 18 takeover,
noted. Respondent suggests, therefore, that its conceded
refusal to recognize and bargain with Complainant
Union, thereafter, should be considered beyond Board
proscription.
In this connection, Respondent points to testimonial
proffers that the partnership's counsel contends should
warrant determinations that a majority of food and bev-
erage workers, within Respondent's newly purchased
hotel facility, had "expressed dissatisfaction with the
Union as their collective bargaining representative"
before May 18, Respondent's formal takeover date.
Specifically, Respondent's counsel would have this
Board note: First, testimony, proffered by Roy Weldon,
HOLIDAY INN OF VICTORVILLE 931
Mojave Management Corporation's representative—who
had been the Victorville hotel's assistant manager—that,
through conversations with many hotel workers and
their supervisors, he had discovered their general dissat-
isfaction with union representation; that "every dining
room employee" had told him they would either like to
circulate a petition in which their dissatisfaction with
Complainant Union could be expressed, or would like to
procure the designated labor organization's ouster; that,
so far as he could tell, more than 75 percent of Victor-
ville's concerned employees wanted to get rid of Com-
plainant Union; and that five employees named had noti-
fied him regarding their "dislike" with respect to Com-
plainant Union's membership requirements; second, Wel-
don's further testimony that his observations, herein-
above summarized, had been communicated to both Mr.
and Mrs. Davis, as well as Respondent's assistant manag-
er, before Respondent's May 18 takeover; third, testimo-
ny proffered by Waitress Helen Diechler that some 25
percent of concerned employees, 9 of them named—had,
during conversations with her, declared their readiness
to support a petition, should one be circulated, for the
purpose of procuring Complainant Union's removal as
their representative; fourth, Diechler's further testimony
that she had told Mrs. Davis about these conversations,
some 1-1/2 weeks before Respondent's purchase arrange-
ments were completed; fifth, testimony proffered by As-
sistant Manager Ditmar that some 15 employees-10 of
them named—had, during conversations with him on
May 8, 9, or 10, declared themselves dissatisfied with
Complainant Union, and desirous of "getting out" there-
from; sixth, Ditmar's further testimony that he had com-
municated the substance of these conversations to both
Mr. and Mrs. Davis; seventh, Jack Davis' testimony
that—during conversations between May 9 and 18—
some 15 concerned employees had, likewise, told him
"they" were not happy, and no longer desired union rep-
resentation; eighth, testimony proffered by Mrs. Davis
that, before Respondent's May 18 takeover, she too, had
been directly apprised with regard to various employee
discontents, centered on Complainant Union's purported
failure to function effectively as their representative,
during several discrete conversations with Hotel Inves-
tors officials, Roy Weldon, and some hotel employees.
None of Respondent's testimonial proffers in this con-
nection have been direct contradictions. The General
Counsel's representative suggests, however, that for vari-
ous reasons they should be considered highly suspect.
Further, he contends that—should they be taken as
true—those proffers should, nevertheless, be disregarded:
First, because predominantly generalized testimony, pre-
sented to prove employee "dissatisfaction" with union
representation, cannot sustain claims of reasonable doubt
with respect to Complainant Union's majority represent-
ative status; see Wayne Convalescent Center, 192 NLRB
768, 771 (1971), enfd. 465 F.2d 1039 (6th Cir. 1972);
second, because statements of dissatisfaction, which when
made independently of each other, by various employees,
most of whom were never specifically identified, over a
lengthy period, do not reveal "sufficient dissatisfaction"
to establish their desire to relinquish union representa-
tion, provide no reliable, substantial, or persuasive
ground for their concerned employer's claim to possess a
reasonable good-faith doubt; see Lucas County Farm
Bureau Cooperative Assn., 218 NLRB 1150 (1975); third,
because hearsay reports descriptive of purported employ-
ee disaffection, proffered by managerial personnel, carry
no persuasive thrust sufficient to warrant determinations
regarding the reasonableness of some concerned employ-
er's professed doubts; see Sambo's Restaurants, 212
NLRB 788, 797 (1974); fourth, because separately prof-
fered statements, received from a numerical minority of
concerned workers within a bargaining unit, that a nu-
merical majority of their fellow workers no longer desire
union representation, provide no reasonable basis for
doubt regarding a labor organization's representative
status; see Golden State Habilitation Center, 224 NLRB
1618, 1619-1620 (1976), and Cornell of California, 222
NLRB 303, 306, in this connection.
Further, the General Counsel's representative chal-
lenges Respondent's conjoint claims: That Complainant
Union, prior to May 18, had not serviced contractually
covered Victorville hotel employees for some time; that
a majority of those represented workers had, prior there-
to, failed to become union members or maintain their
membership; and that Mr. and Mrs. Davis' professed
doubts with respect to Complainant Union's continued
representative status should, for these reasons, be consid-
ered reasonably based. However, Respondent's claims,
with respect to Complainant Union's purported dorman-
cy, and failure to gain or retain members, lack persuasive
record support; the partnership's contention, that pro-
fessed doubts with respect to Complainant Union's repre-
sentive status should be considered reasonably justified
on these grounds particularly, need not, therefore, be fur-
ther considered.
However, the General Counsel's critical challenges, re-
garding the probative worth of Respondent's testimonial
proffers may, arguably, merit characterization as overly
broad. This Board has, heretofore, held that, considered
in conjunction with other relevant manifestations of
worker disaffection, statements by employees, reported
or communicated directly to an employer regarding their
union sentiments, may constitute reasonable grounds for
that employer's professed doubt regarding a labor orga-
nization's continued representative status. Compare
Naylor, Type & Mats, 233 NLRB 105, 107-108 (1977);
White Castle System, 224 NLRB 1089, 1091-1092 (1976);
Green Oak Manor, 215 NLRB 658, 663, 664 (1974); Lloyd
McKee Motors, 170 NLRB 1278, 1279 (1968); see also
Paramount Paper Products Co., 154 NLRB 1064, 1067-
1068 (1965), in this connection. Though some employer
may claim such a so-called good-faith doubt based, par-
tially, on hearsay reports provided by supervisory subor-
dinates or, as in this case, by a predecessor employer's
managerial representative, their hearsay character will
not per se render the concerned employer's reliance on
them unreasonable. See Stresskin Products Co., 197
NLRB 1175, 1178-1179; compare White Castle System,
supra, arid Lloyd McKee Motors, supra, in this connection.
Normally, however, testimonial proffers with respect
to reports by supervisors or direct employee state-
ments—presented to support a concerned employer's
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
claim of good-faith doubt—will be recognized as possess-
ing probative weight only when accompanied by some
further "objective, identifiable" manifestations, reason-
ably calculated to demonstrate a labor organization's loss
of majority status. Cornell of California, supra; compare
Golden State Habilitation Center v. NLRB, 566 F.2d 77
(9th Cir. 1977), denying enf. 224 NLRB 1618, in this
connection.
Within his brief, Respondent's counsel cites several
factors in Respondent's situation which, within his view,
provide further "objective" bases for his client's purport-
ed good-faith doubt. He would have this Board remark:
Complainant Union's failure to communicate its request
for recognition and the commencement of negotiations
before June 6, when it received Lively's, petition previ-
ously noted; the "fact" testimonially reported by waitress
Helen Diechler that no more than 6 current employees,
within a bargaining unit that compasses 45-50 food and
beverage employee, had been employed by Respondent's
predecessor when Complainant Union won certification;
and Complainant Union's conceded failure to designate a
currently functioning Victorville hotel steward. Whether
these claimed "objective" factors provide sufficient col-
lateral support for Respondent's contention that Mr. and
Mrs. Davis could, legitimately, rely on reports received
by them with regard to employee disaffection, to sustain
a reasonable doubt—may be arguable; such a conclusion,
however, could hardly be considered clearly warranted.
Respondent's contention, therefore, that Mr. and Mrs.
Davis can rightfully claim now that they held a reason-
ably based, good-faith doubt with respect to Complain-
ant Union's continued representative status, specifically
when their May 18 hotel purchase was consummated,
may be questionable.
On this record, however, whatever question there may
be, with respect to whether Respondent's partners had a
reasonably based good-faith doubt regarding Coinplain-
ant Union's possible representation claims when they
took over their Victorville hotel's operation, within my
view, need not be resolved. The petition whereby Re-
spondent's food and beverage employees signified their
desire to forgo further union representation, previously
noted, drafted by Waitress Lively, circulated for signa-
ture by Lively and Diechler, signed by a majority of Re-
spondent's food and beverage workers, and thereafter
promptly dispatched to Complainant Union, provided a
clearly "objective" manifestation of union disaffection, I
find, sufficient to justify, within its situational context,
Respondent's subsequent professions of doubt, with re-
spect to Complainant Union's continued majority repre-
sentative status.
Though Complainant Union's business representative
may have sought a conference with Mr. and Mrs. Davis
on May 23, when she visited their newly purchased Vic-
torville facility, she presented no claim, during her visit,
that Complainant Union still represented Respondent's
employees. There can be no doubt, however, that Rep-
sondent's partners were cognizant of that labor organiza-
tion's previously negotiated contract with their newly
acquired hotel's previous operator. Mr. and Mrs. Davis,
nevertheless, sought no contract with Complainant
Union's representatives. For this, they cannot, within my
view, be faulted, retrospectively.
Respondent's partners, because they had refrained
from making posttakeover changes—never previously
proclaimed or promised—with respect to terms and con-
ditions of employment for presumably represented per-
sonnel, had no duty, I find, to seek out Complainant
Union contemporaneously and, thereby, initiate the col-
lective-bargaining process. When, however, Complainant
Union's representatives subsequently requested bargain-
ing, Mr. and Mrs. Davis might conceivably have found
themselves duty-bound to recognize that labor organiza-
tion's contractually grounded representation claim,
absent some reasonably based good-faith doubt, main-
tained or proclaimed at that time, regarding Complainant
Union's majority status. Respondent's partners were, so I
have found, notified with regard to Complainant Union's
demand for recognition, coupled with its request for a
future "meeting . . . within five days . . . to discuss
wages, working conditions, and fringe benefits for Re-
spondent's purportedly represented personnel, through
Lloyd's June 6 letter, delivered 3 days later. By then,
however, Mrs. Davis had been told about Lively's peti-
tion; though she had not yet seen the document, she had
been told, so I have found, that "almost everyone" had
signed it. And maitre d'hotel Archuleta's report with re-
spect thereto had been, so the record shows, correct.
By June 3, 37 employees, within a contractually de-
fined bargaining unit that then concededly compassed
some 45-50 food and beverage workers, had personally
subscribed their names, whether in scripted or printed
form, on Lively's petition. The document containing
their signatures had promptly been dispatched to Com-
plainant Union's office.
Thus, by June 9, when Respondent received Com-
plainant Union's recognition demand and request for
some future discussion, Mrs. Davis had, so I fmd, reason-
able grounds for belief that a majority of Respondent's
food and beverage personnel complement had, effective-
ly, proclaimed their desire to "withdraw [their] commit-
ments" with respect to union representation.
The General Counsel's representative contends that
Respondent's knowledge with regard to Lively's petition
should not be considered sufficient to support any rea-
sonable good-faith doubt with respect to Complainant
Union's continued representation status.
He suggests, rather, that the petition should be consid-
ered "inherently unreliable" for that purpose: First, be-
cause prospective signers were told when solicited that the
petition's purpose was to procure a future election, not to
bring about Complainant Union's removal, as their repre-
sentative, directly; second, because a significant number of
purported signatures were not properly subscribed or
were not witnessed and, therefore, have not been proper-
ly authenticated; third, because the petition signers did
not designate their job classifications, thereby precluding
determinations with respect to whether they were bar-
gaining unit workers, or were "employees" when they
signed. The General Counsel's contention, however,
misses the point now under consideration. Respondent
makes no contention that Complainant Union had, in
HOLIDAY INN OF VICTORVILLE 933
fact, lost majority support; Mr. and Mrs. Davis claim,
merely, that they possessed a reasonably based good-faith
doubt regarding that labor organization's continued rep-
resentative status. With respect to their claim, the Gener-
al Counsel's critical comments lack relevance. See Guer-
don Industries, 218 NLRB 658, 660 (1975), in which the
Board declared that:
[W]e note that the 46 names on the petition on May
6 constituted a majority in the unit but. . . the peti-
tion did not establish that the Union had lost majority
status, in fact, since the signatures on the petition
were never properly authenticated nor was it ever
shown that the employees who signed the petition
were actually in the unit on the date of the with-
drawal of recognition. However, we agree. . . that
the petition, with a majority of the employees apparent-
ly having signed it, could have constituted sufficient
reason for Respondent to have doubted the Union's
continuing majority status, and thereby would have
sanctioned Respondent's withdrawal of recognition.
[Emphasis supplied.]
The General Counsel's representatives, however,
would have Lively's petition, further, considered tainted
and, therefore, less than sufficient to support a reasonable
good-faith doubt, because Respondent's management had
committed unfair labor practices, prior to its preparation
and circulation. Within my view, however, the General
Counsel's contention, in this regard, carries no persua-
sion. Previously, within this decision, I have found Re-
spondent's purported "unilateral" changes, publicized on
May 8 with respect to pay period arrangements, recog-
nized holidays and holiday pay, vacation pay, and pro-
spective group insurance plans, privileged consistently
with the Supreme Court's Burns decision. Further, I
have rejected the General Counsel's contention that par-
ticular statements, which Mrs. Davis and Chef Harris
purportedly made to various employees, transgressed
permissible limits.
With respect to Mrs. Davis, I have found the General
Counsel's record proffer less than sufficient to warrant a
determination that she made the statement challenged;
further, I found that statement, if it was made, sufficient-
ly equivocal, within its situational context, to preclude its
proscription. With respect to Harris, I have found the
General Counsel's testimonial presentation questionable,
but concluded, further, that the chefs challenged state-
ments, if made, were statutorily privileged.
The General Counsel's presentation suggests nothing
more, within Respondent's course of conduct, that might
have tainted Lively's petition circulation, or that might
warrant this Board's determination to disregard it. In this
connection, further, some relevant Board comments,
within Guerdon Industries, should be noted. The Board
there declared (218 NLRB 658, 660-661) that the signed
employee petition, which it considered, would have
sanctioned Respondent's withdrawal of recognition:
[I]f Respondent's action had been taken "in a con-
text free of unfair labor practices." We agree, how-
ever . . . that such a situation did not exist when
Respondent withdrew recognition from the Union.
. . . .
[W]e stress that it is not simply because Respondent,
in first, committed unfair labor practices that we
have found its withdrawal illegal, but rather it is be-
cause of the serious nature of these violations that we
have concluded as we have . . . . [W]e have
viewed "the totality of all the circumstances" sur-
rounding Respondent's withdrawal of recognition.
[Albsent the unfair labor practices we have found
Respondent committed . . . we would be con-
strained to dismiss the complaint allegation alleging
an unlawful withdrawal of recognition. We would
also be constrained to dismiss the withdrawal-of-
recognition complaint allegation, even, in fact,
where Respondent had committed other unfair
labor practices prior to its withdrawal of recogni-
tion, if it could be said that those other unfair labor
practices were not of such a character as to either
affect the Union's status, cause employe disaffection,
or improperly affect the bargaining relationship itself
[Emphasis supplied.]
Consistently with this Board caveat, I would con-
clude—had I found the several statements chargeable to
Mrs. Davis and Chef Harris statutorily proscribable--
that, nevertheless, they should not, within their situation-
al context, be considered sufficiently "flagrant and egre-
gious" to render Lively's petition tainted.
Within his brief, the General Counsel's representative
suggests that Respondent's good-faith doubt defense
should be considered "bogus and fabricated" particularly
because Mrs. Davis, within two comprehensive statements
given while Complainant Union's charges were being investi-
gated, made no references to her purported doubt, or
facts that had supposedly generated it; neither did she
claim therein, that Complainant Union's representatives
had been informed with regard to her doubt's existence.
Mrs. Davis' failure to mention her claimed doubt, when
giving her prior sworn statements, will not, however,
sustain a determination that her witness-chair recitals,
with respect thereto, should necessarily be considered re-
cently fabricated. Nothing within the present record sug-
gests that she was questioned about doubts when she
gave her preheating statements. And, summoned as the
General Counsel's witnesses, both Lloyd and Complain-
ant Union's secretary-treasurer conceded that, during
their June 14 conference with Respondent's management
representatives, references had been made to Lively's pe-
tition, which Complainant Union had previously re-
ceived. Within their June 14 context, I fmd, such timely
references were reasonably calculated to convey Re-
spondent's belief, there and then, that Complainant
Union's representative status was questionable.
Finally, the General Counsel's representative contends
that, by their "negotiations" with Complainant Union's
representatives, specifically during their June 14 confer-
ence, Respondent's partners waived any reasonable
doubt defense that they could, otherwise, have raised.
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This suggestion, however, lacks record support, within
my view. On June 9, Mrs. Davis may have agreed to
meet and confer with Complainant Union's representa-
tives. On this record, however, no determination would
be warranted that she had, thereby, acquiesced with re-
spect to Complainant Union's recognition demand, or
that she had consented to negotiate a collective-bargain-
ing contract; Respondent's partners, I find, had merely
agreed to hear, and discuss, Complainant Union's presen-
tation calculated to persuade her that some negotiated
agreement would not merely settle working terms and
conditions for Respondent's contractually covered per-
sonnel, but would bring Respondent collateral "business"
benefits.
When their June 14 conference convened, Complain-
ant Union had, 6 days previously, received Lively's peti-
tion, bearing 37 signatures. Though Respondent's man-
agement had not been provided with a copy, Mrs. Davis
had been notified regarding its circulation, and the fact
that nearly "everybody" had signed it. Her consequent
queries with respect thereto, directed to Lloyd and Com-
plainant Union's secretary-treasurer, had, fmally, elicited
their concession that a signed petition form, whereby the
signers had purportedly repudiated further union repre-
sentation, had, indeed, been submitted.
I find it noteworthy, in this connection, that Com-
plainant Union's first formal request for recognition and
discussion relative to matters of employee concern had
been dispatched to Respondent following the labor orga-
nization's receipt of Lively's petition.
Nothing within the present record will warrant a de-
termination, within my view, that Lively's petition had
been tainted, either by virtue of Respondent's sponsor-
ship or by virtue of prior unfair labor practices, herein
found not proven, that might, arguably, have persuaded
the hotel's food and beverage workers to sign. With mat-
ters in this posture, the General Counsel's presentation
calculated to suggest that Respondent's management
dealt with Complainant Union's representaives substan-
tively, particularly with regard to fringe benefit matters,
carries no persuasion. I am satisfied that Mr. and Mrs.
Davis, together with Assistant Manager Ditmar, merely
listened, courteously, while Jones and Lloyd discussed
the virtues and value of Complainant Union's Trust Fund
programs; that they promised to declare, thereafter,
whether they would "agree to negotiate" following their
prospective consultation with legal counsel; and that
their June 14 posture, therefore, reflected no consensual
commencement of negotiations and, consequently, no
waiver with respect to their claim of good-faith doubt
regarding Complainant Union's continued representative
status.
Because I have found that Respondent had a reason-
ably based good-faith doubt with respect to Complainant
Union's status—by June 9 specifically—Mrs. Davis' failure
to commit Respondent's management to bargain collec-
tively, either on that date or June 14, cannot be consid-
ered statutorily proscribed. And, finally, her forthright
declaration on July 11—when confronted with Com-
plainant Union's second recognition demand—that Re-
spondent would not negotiate a collective-bargaining
contract, likewise flouted no statutory mandate.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The complaint is dismissed in its entirety.
If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.