Holiday Inn of Dayton

National Labor Relations Board - Board Decisions

Jul 26, 1974

212 N.L.R.B. 553 (N.L.R.B. 1974)

HOLIDAY INN OF DAYTON 553
Dayton Motels , Inc., d/b/a Holiday Inn of Dayton and
Bartenders , Hotel, Motel and Restaurant Workers,
Local Union No. 222, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-CIO.
Case 9-CA-5837
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
July 26, 1974
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On March 26, 1974, Administrative Law Judge
George J. Bott issued the attached Supplemental De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
On August 16, 1971, the National Labor Relations
Board issued a Decision and Order in this proceed-
ing,' in which it found that the Respondent violated
Section 8(a)(1), (3), and (5) of the Act, as amended, by
interfering with, restraining, and coercing employees
in the exercise of their Section 7 rights and by refusing
to bargain with the Union, which it had voluntarily
recognized, on the basis of a card check, on August
21, 1967. Subsequently, the Board filed with the Unit-
ed States Court of Appeals for the Sixth Circuit an
application for enforcement of its Order, to which
Respondent filed an answer and crosspetition to re-
view and set aside said Order. Thereafter, on Febru-
ary 14, 1973, the court issued an order enforcing the
Board's Order with respect to the 8(a)(1) violations
found' and remanded the 8(a)(5) part of the case to
the Board for further consideration in light of its opin-
ion that the Board had erred in rejecting evidence
regarding a supervisor's alleged assistance to the
Union in 1967, if any, and Respondent's knowledge
thereof, in order to determine whether Respondent
had a good-faith doubt of the majority status of the
Union.
On November 2, 1973, the Board issued an order
reopening the record and remanding the proceeding
to the Regional Director for hearing. On March 26,
1974, Administrative Law Judge George J. Bott issued
the attached Supplemental Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
' 192 NLRB 674
2 Respondent reinstated the discriminatee , posting appropriate notices,
and enforcement was therefore not sought as to the v iolation of Section
8(a)(3)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Dayton Motels, Inc., d/b/a
Holiday Inn of Dayton, Dayton, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
CHAIRMAN MILLER , dissenting:
The decision of the Administrative Law Judge, here
affirmed by my colleagues , may conform to a literal
reading of the court's remand order, which required
us to receive evidence as to the supervisory assistance
alleged to have contributed to the Union's initial "ma-
jority status." The court also told us that, after receiv-
ing and evaluating that evidence, we should consider
it in determining whether Respondent had a "good-
faith doubt" of the Union's majority status at the time
of the withdrawal of recognition herein.
The Administrative Law Judge below found that
there was supervisory assistance , but that said assis-
tance was not a part of Respondent's subjective con-
siderations when it withdrew recognition. Thus he
finds no "good-faith doubt" to have been created at
the relevant time , and hence he affirms the Board's
original finding of an 8(a)(5) violation.
The syllogistic reasoning cannot be faulted. But the
result is contrary to law, unless we are to put on, and
carefully adjust, our blinders to conform to the literal
language of the remand.
If we take those blinders off, we must now perceive
that the Union never had bona fide majority status,
in that, as the Administrative Law Judge below found,
the supervisory "assistance to the Union was substan-
tial."
Thus, if the Union never had bona fide majority
status, the withdrawal of recognition cannot be un-
lawful unless General Counsel had proved that major-
ity status existed at the time of withdrawal, without
3 We agree with the Administrative Law Judge that the initial taint to the
Union's majority was not a factor in Respondent 's refusal to bargain with
the Union . As recognized by the court, the only relevance the original taint
has in this case is in determining whether Respondent relied on that fact in
asserting its alleged "good-faith doubt" of the Union's majority status Inas-
much as the record shows that Laut's assistance to the Union played no part
whatsoever in Respondent 's decision to withdraw recognition from the
Union, her actions have no legal significance in our decision to reaffirm the
bargaining order issued herein
212 NLRB No. 87
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefit of any presumptions flowing from the original
recognition , since that original recognition no longer
establishes anything about the independent desires of
the employees . No such proof of majority at the time
of withdrawal was made on this record . Looked at,
therefore , in toto, the record will not support an 8(a)(5)
finding.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GEORGE J BoTT, Administrative Law Judge: This pro-
ceeding was heard before me at Moraine, Ohio, on Febru-
ary 1, 1974, with all parties represented, pursuant to remand
by the United States Court of Appeals for the Sixth Circuit,
as set forth in its opinion dated February 14, 1973 (474 F.2d
328), and an order of the National Labor Relations Board
(herein the Board) dated November 2, 1973, reopening the
record pursuant to the remand. The court of appeals en-
forced the Board's Order with respect to the 8(a)(1) viola-
tion found,' but remanded the 8(a)(5) part of the case to the
Board for further proceedings in light of its opinion that the
Board had erred in rejecting evidence regarding a
supervisor's assistance to the Union in 1967 and the
Company's assertion that the supervisor's activities did not
come to its attention until a year or more after an agreement
with the Union had been signed. The court directed the
Board "to receive evidence on the circumstances surround-
ing the procurement of union authorization cards in 1967,
and to consider such evidence, along with other events sub-
sequent thereto, on the issue of whether the Company did
in fact have a good-faith doubt as to the majority status of
the Union."2
The Board's order reopening the record and remanding
the proceeding for further hearing provided that the Admin-
istrative Law Judge3 should "permit the parties to adduce
evidence as to: (I) the circumstances surrounding the pro-
curement of union authorization cards in 1967 by the al-
192 NLRB 674
2 474 F 2d at 335
3 Administrative Law Judge Melvin Pollack, who heard the original case.
retired on June 30, 1973 Although he was "unavailable" to the Agency
within the meaning of Section 5 of the Administrative Procedure Act, the
Board's order reopening the record and remanding the proceeding errone-
ously directed that the additional hearing be held before Judge Pollack
Because of Judge Pollack's unavailability, Chief Administrative Law Judge
Eugene G Goslee designated me to conduct the hearing in his place Respon-
dent contends that it has been deprived of due process by having two judges
participate in the whole proceeding, but I fail to see how it has been preju-
diced The issues before me were not the issues before Judge Pollack, and I
have not been handicapped in any way in making credibility findings by not
having presided at the earlier heanng For example, the six maid witnesses
presented by Respondent at the remand hearing on the question of assistance
to the union did not testify at the original hearing it also appears that
General Manager Geurdat testified before me on some matters that he was
not permitted to testify about in the original hearing, and where he touched
on other subjects, his testimony was consistent with his testimony in the first
hearing Finally , as will appear , even if all of Respondent 's witnesses are fully
credited, Geurdat's own testimony establishes that Supervisor Laut's assis-
tance to the Union, prior to recognition, did not enter into Respondent's
decision to refuse continued recognition to the Union at the expiration of the
collective-bargaining contract
leged supervisor who purportedly rendered assistance to the
Union; (2) whether the said supervisor was, at all times
material, in fact a supervisor within the meaning of the Act;
and (3) when and how Respondent acquired knowledge of
the alleged supervisor's assistance, if any, to the Union."
Subsequent to the hearing, General Counsel and Respon-
dent filed briefs which have been considered.
Upon the basis of the entire record, including the opinion
of the court of appeals, and from my observation of the
witnesses who testified before me, I make the following
findings of fact, conclusions of law, and recommendations:
FINDINGS OF FACT
A. Supervisory Status of Mary Laut
It was stipulated at the reopened hearing that Executive
Housekeeper Mary Laut was a supervisor within the mean-
ing of the Act at all material times
B. Lout's Activities in Connection with the Procurement of
Union Authorization Cards
Housekeeper Laut was the immediate supervisor of the
approximately 25 maids Respondent employed in July and
August 1967 Although all witnesses had some difficulty
remembering what had happened just prior to August 21,
1967, when Respondent, on the basis of signed authoriza-
tion cards, agreed to recognize the Union as collective-
bargaining agent of the maids, I find that Laut played a
significant role in getting the union campaign underway and
in encouraging employees to sign authorization cards.
Former employee Brineqar, now retired, remembered a
meeting in a guest room at the motel in 1967 where "we all
decided to join" the Union. Although somewhat uncertain
about it, she said she "believed" that Laut was present in the
room. Sometime later she went to a union meeting at a
bowling alley in a car driven by Laut.
Marjorie Elliott, also retired, was also at the gathering of
maids in a guest room in 1967 before the Union was recog-
nized. She testified credibly that Laut notified them of the
meeting and attended it. She recalled Laut stating at the
meeting that a union would be to their benefit, because it
would get them raises and intervene with management on
their behalf in case of discharge She said that Laut did not
tell them to sign or not to sign union authorization cards,
but "advised" them that it would benefit them if they did.
Elliott also went to the meeting at the bowling alley. Laut
was present, and I credit Elliott's testimony that Laut trans-
ported some maids to the meeting in her car.
Employee Robinson testified credibly that Laut spoke to
the maids at a meeting in a guest room in 1967 and advised
4them that it would be better for them if they had a union
Laut testified that it was her practice while employed by
Employees Edwards, Shirley, and Donna Strine had little or nothing to
offer in the way of reliable evidence about Laut's activities Edwards placed
Laut at the bowling alley meeting, which Laut admitted attending, but al-
though she remembered Laut driving to the meeting, she did not say that she
had any employee passengers with her The Strive sisters were hired in July
and August 1967, respectively Shirley Strine was in all probability referring
in her testimony to a time after recognition when she saw Laut and two union
officials talking in the motel, and, in any case, she did not hear what they
HOLIDAY INN OF DAYTON 555
Respondent to hold meetings with the maids regularly to
discuss work problems or to air their grievances. She re-
called such a meeting in July 1967, she said, at which the
employees asked her what she thought of the union move-
ment. She said she advised them to be patient until Respon-
dent gave them some indication about what it intended to
do to better their working conditions.
Laut admitted attending a meeting of Respondent's em-
ployees at the Pastimes Bowling Alley at which the employ-
ees signed union cards. The meeting was conducted by
Mike Zinaich, one of the Union's officials, but Laut said
that she sat 25 feet away from the employees and made no
remarks. She said that Zinaich first spoke to the employees
about the advantages of being unionized, and that she left
the meeting while the employees were signing union author-
ization cards. Laut denied that she had taken any of the
employees to the meeting in her car.
Zinaich testified, without contradiction, that he arranged
for the meeting of Respondent's maids at the Pastimes
Bowling Alley after a maid, who later became the union
steward, advised him that the employees would like to meet
with him. He conducted the meeting, and he and another
official of the Union distributed and had returned to them
signed authorization cards, which he later presented to Re-
spondent in support of his claim that the Union represented
a majority in the appropriate unit. All the cards he presented
were obtained at the meeting at the bowling alley. He admit-
ted that Laut was at the meeting, but he said she did not
speak. He said he had known Laut's husband for 25 or more
years, but had met Mrs. Laut for the first time when he
visited the Respondent's premises in an attempt to organize
the employees.
Although it is possible that time has also dimmed Laut's
vision of her part in the Union's 1967 organizational activi-
ties, I am convinced that she has played down the degree of
her activity and influence. As indicated, I credit the employ-
ee witnesses, and I find that Laut's assistance to the Union
was substantial. More specifically, I find that before any
employee had signed a union authorization card or had
been to an official union meeting, Laut gathered the maids
together and spoke favorably to them about joining the
Union. Not long thereafter, Laut again indicated approval
and encouragement of employee leanings in the Union's
direction by driving at least one employee to the meeting at
the bowling alley where all the Union's cards were signed
and by remaining in the meeting room until the employees
were all signing the cards used by the Union to obtain
recognition .5
were talking about. Donna Strine testified that Laut "seemed" to be for the
Union, but she apparently was confused when she placed Laut in a "linen"
room meeting with employees, attended by two officials of the Union She
could not fix the time of this meeting, but it took place after the bowling alley
meeting, which she did not attend because it occurred before she was hired.
My reconstruction is that she was probably referring to a third meeting.
which took place after recognition, at which a contract was considered.
5 Additional evidence that Laut was closer to the Union than she remem-
bers is the fact that the Union's records reflect a payment to her, on or about
October 2, 1967, of $47.30, after deductions, to compensate her for "help she
rendered" the Union in connection with a strike at another motel in Dayton,
Ohio.
C. When and How Respondent Acquired Knowledge of
Laut's Activities
None of the six witnesses presented by Respondent on the
issue of Laut's participation in union activities communicat-
ed whatever information they had in that regard to Respon-
dent until shortly before the remand hearing. Innkeeper
Wilkens, however, testified that about a year after the
Union was recognized, "one of the maintenance workers
and a maid or two told [him] that the housekeeper had
known about the union." Wilkens added that "these people
told [him] that she did influence and helped them join the
Union." He was unable to remember who the two maids
were, and he stated that Roberts, the maintenance employ-
ee, no longer worked for Respondent, but that no effort had
been made to reach him.
Wilkens testified that he immediately reported to General
Manager Geurdat what he had learned about Laut and that
Geurdat instructed him to terminate her, which he did. He
said that he had also become dissatisfied with Laut's perfor-
mance prior to that time and that this entered into the
decision to discharge her. When he advised Laut of her
separation, he did not mention the fact that she had assisted
the Union, but gave as the reason for her termination an
apparent "lack of communication" between them.
Geurdat, who is general manager of a number of Holiday
Inns in the area and Wilkens' superior, testified that after
Respondent had signed a contract with the Union, Wilkens
informed him that Laut had participated in "getting the
Union in," because "she had tried to form the girls-into
joining a union." He said that he instructed Wilkens to
discharge Laut because she had acted contrary to
Respondent's policy. He also said that management was
having "a little trouble with" Laut in regard to her work
before she was discharged.
Wilkens' and Geurdat's scanty and somewhat vague testi-
mony on this issue does not inspire confidence in its accura-
cy. The failure to identify the sources of Wilkens'
information is disturbing, but that can conceivably be ex-
plained by the amount of time which has elapsed. What is
more difficult to accept, however, is their lack of precision
about exactly what Laut was supposed to have done. Wilk-
ens was only able to say that Laut "had known about the
Union" and had "influenced" and "helped" unidentified
maids to join. Geurdat's testimony was no more precise
than Wilkens'. The fact that Laut was not told that her
participation in union activities was behind her termination
also raises a question about the reliability of the testimony,
as does the suggestion that Laut's discharge was based, in
part, on her unsatisfactory performance as an employee, for
I credit her testimony that she was frequently complimented
on her work by Wilkens. Finally, Respondent's other ac-
tions were inconsistent with prior knowledge of the kind
and extent of Laut's activities in helping to organize em-
ployees, because when Respondent withdrew recognition
from the Union, it did not cite Laut's conduct as a basis for
it.
In view of the above considerations, and even though the
testimony is uncontradicted, I am only able to find that at
some uncertain time after the Union obtained recognition,
Respondent learned that Laut had participated in some
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undefined way in the Union 's organizing efforts.
D. Whether Respondent 's Knowledge of Laut's Assistance
to the Union Entered into its Decision to Refuse to Bargain
with the Union in June 1970
It is clear from the testimony of Respondent 's General
Manager , Geurdat , that even if Respondent learned in late
1968 that Laut had assisted the Union to the extent found
above, her conduct in no way entered into Respondent's
decision in June 1970 to withdraw recognition from the
Union and refuse to bargain with it.
Geurdat was twice asked if Laut 's participation in getting
the Union in affected his decision to refuse to negotiate a
contract with the Union in 1970 , and twice he answered that
it did not, adding that the maids had told Respondent that
they did not want the Union . Then asked if there was any
factor other than the maids not wanting the Union to repre-
sent them that entered into his decision to stop bargaining
with the Union, he replied that the maids' attitude "was the
only reason ," and that he believed that if the maids did not
want representation , recognition could be withdrawn. I
agree, as General Counsel points out , that Geurdat 's refer-
ence to the maids not wanting the Union any longer is to
the "petition" which the Board and court found Respon-
dent had sponsored in violation of Section 8(a)(1) of the
Act.'
E. Analysis and Conclusions
If, as Geurdat testified and I have found, the only reason
Respondent discontinued bargaining with the Union in
6 192 NLRB 674, 678-679
June 1970 was because the maids had advised Respondent
that they did not want the Union to represent them, then
Laut's participation in the Union's organizing campaign in
1967 is out of the case, for Respondent did not rely on it to
support its purported good-faith doubt that the Union con-
tinued to represent a majority of the employees. The court
of appeals instructed the Board to consider evidence of
Laut's participation in union affairs, along with other events
subsequent thereto, on the issue of whether or not the Re-
spondent did in fact have a good-faith doubt as to the
majority status of the Union. Since the Respondent did not
base its asserted doubt on Laut's activities, the only "event
subsequent thereto" of any substance left to support the
claim of a good-faith doubt regarding majority is
Respondent's receipt of an antiunion petition from employ-
ees is September 1970, a matter in which the Board found
the Respondent to be substantially involved in violation of
the Act,7 and which, therefore, it could not rely on to sup-
port its contention that it had valid grounds on which to
doubt the Union's majority status.8
Since all of the factors which influenced Respondent's
decision to withdraw recognition from the Union were fully
litigated in the original proceeding and found legally inade-
quate, I conclude, for the same reasons the Board did, that
Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union in June 1970.
RECOMMENDATION
I recommend that the Board reaffirm its Decision and
Order of August 16, 1971, in this case.
7 The Board also noted that Respondent had cited no episode indicating
union disaffection among employees except for the signing of the antiunion
petition 192 NLRB at 679.
s /bid