Holiday Inn of Niles Michigan

National Labor Relations Board - Board Decisions

Mar 28, 1979

241 N.L.R.B. 555 (N.L.R.B. 1979)

HOLIDAY INN OF NILES MICHIGAN
Half-Century, Inc., d/b/a Holiday Inn of Niles Michi-
gan and Local No. 103, Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-
CIO. Case 7-CA 14867
March 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PFNELIO
On January 3, 1979, Administrative Law Judge
Robert C. Batson issued the attached Decision 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.
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.
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 Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Half-Century, Inc., d/b/a
Holiday Inn of Niles Michigan, Niles, Michigan, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
In the absence of exceptions, we adopt the Administrative Law Judge's
finding that Respondent did not violate Sec. 8(aX5) of the Act by unilaterally
changing terms and conditions of employment on December 19, 1977.
DECISION
SIA1EMENT OF IHE CASE
ROBERI C. BATSON. Administrative Law Judge: This
proceeding, under the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151 et seq. (herein the Act), was
tried before me in Niles, Michigan. on August 4, 1978,1
based upon a complaint and notice of hearing issued by the
Regional Director for Region 7 (Detroit, Michigan) on
April 4, growing out of a charge filed by Local No. 103,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, herein the Union, on February 9.
alleging that Half-Century, Inc.. d/b/a Holiday Inn of
Niles. Michigan. herein Respondent, had violated Section
8(a)(5) and ( I ) of the Act. All parties participated through-
' All months and dates hereafter are 1978 unless otherwise indicated.
out by counsel and were afforded full opportunity to pre-
sent evidence and arguments, and to file briefs. Briefs have
been received from counsel for the General Counsel and
Respondent.
The first issue presented here involves the question of
whether a successor employer may establish different initial
terms and conditions of employment of all the predecessor's
employees subsequent to the decision to offer employment
to all employees. The counsel for the General Counsel con-
tends that on the facts of this case the successor employer
must bargain with the Union concerning the establishment
of initial terms and conditions of employment under the
narrow exception to the general rule concerning such right
carved out by the Supreme Court in .L.R.B. v. Burns In-
ternational Security Services, Inc., et al., 406 U.S. 272, 294
(1972). wherein the Court stated,
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 per-
fectly clear that the new employer plans to retain all of
the employees in the unit and in which it will be appro-
priate to have him initially consult with the employees'
bargaining representative before he fixes terms.
Under the rationale hereinafter set forth, I find that the
successor employer's offer of different terms of employment
was simultaneous with the expression of intent to retain the
predecessor's employees, and therefore no duty to bargain
over the initial employment terms existed. See, e.g., The
Boeing Company, 214 NLRB 541 (1974), enfd. (D.C. Cir.
1978); Henry M. Hald High School Association, The Sisters
of St. Joseph, 213 NLRB 415 (1974); Collinge Enterprises,
Inc., d/l/a Jerrv's Finer Foods, 210 NLRB 52 (1974). Cf.,
Joe Costa Trucking Company d/h/a Joe Costa Trucking, 238
NLRB 1516 (1978).
The principal issue litigated was whether or not Respon-
dent refused to bargain with the Union as an admitted suc-
cessor employer under the rationale of Burns, supra. Re-
spondent contends, in substance, that it did not refuse to
bargain with the Union after it succeeded to the operation
of the business since the Union did not vigorously press its
request to bargain. It further contends that its delay in bar-
gaining with the Union until April 19 was necessitated by
problems of the transition of ownership and the lack of an
innkeeper at its Niles, Michigan, facility. Finally, Respon-
dent appears to argue that in any event it had a reasonably
grounded good-faith doubt that the Union represented a
majority of the employees. As hereinafter set forth, I find
and conclude that Respondent unlawfully failed and re-
fused to bargain with the Union as the collective-bargaining
representative of its employees in accordance with its duty
as a successor employer.
I. THE BUSINESS OF RESPONDENT
Half-Century, Inc., is a corporation licensed to do busi-
ness in the State of Illinois as Holiday Inn of Niles Michi-
gan, where it is, and has been at all times material herein,
engaged in the operation of a motel and restaurant provid-
ing food, beverage, and lodging services to the general pub-
lic at 930 S. Eleventh Street. At the hearing Respondent
stipulated that during the period beginning December 19,
241 NLRB No. 101
555
DECI)ISIONS OF NATIONAL LABOR RELATIONS BOARD
1977, through July 31. 1978, it derived gross revenues from
the operation of its Niles. Michigan facility in excess of
$400,000 and projected for a 12-month period its gross rev-
enues would exceed $500.000. uring the same period it
purchased and received goods, services, and materials val-
ued in excess of $50.000 from suppliers located directly out-
side the State of Michigan.
Accordingly. I find that at all time material herein. Re-
spondent was. and is. an employer as defined in Section 2(2)
of the Act, engaged in commerce and operations affecting
commerce as defined in Section 2(6) and (7) of the Act.
11. '111i IABOR OR(GANIZAIO()N INVOL().VED
The Union. Local No. 103, Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-CIO. is.
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
111. IllF AI.I.EGED UNFAIR I.ABOR PRA('IICES
Facts as Found
On March 19, 1973. the Union herein was certified by the
Regional Director for Region 7 in an appropriate unit as
Respondent's admitted predecessor. Niles Innkeepers, Inc.
Thereafter. Niles Innkeepers. Inc., herein the predecessor.
and the Union, entered into successive collective-bargain-
ing agreements covering the employees in the certified unit.
The collective-bargaining agreement, effective on Decem-
ber 19, 1977. (the date Respondent herein assumed owner-
ship and operation of the facility) was executed on Novem-
ber 29. 1976, to be effective until August 6, 1979.
The record discloses that the unit employees were ad-
vised by their respective supervisors on December 18. 1977,
apparently for the first time, that a new owner was to as-
sume operation of the facility on December 19. The em-
ployees were advised to report for work as usual. On the
morning of December 19, the new owner, Edward G. For-
ester, had the employees assembled in the meeting room of
the motel facility. At the meeting with Forester, was his
son-in-law. James M. Barbeau, who was to become the inn-
keeper of the Niles facility, and the previous owner. While
there are some conflicts between the testimony of the wit-
nesses presented by the General Counsel to testify with re-
spect to what transpired at this meeting, and the testimony
of Forester and Barbeau, such conflicts in their testimony is
not crucial to a resolution of the issues presented here.
Forester introduced himself to the assembled employees
as the new owner of the facility and told them something of
his own background and other business interests. Forester
then invited all the employees to continue working for him
and stated in effect that there would be no changes in the
terms and conditions of employment from those of the
predecessor. A few moments later Forester told the employ-
ees that the only change he would make in their terms of
employment was to permit all the restaurant employees to
2 The appropriate unit is "all regular full-time and regular part-time em-
ployees employed by the employer at its facility located at 930 S. Eleventh
Street. Niles. Michigan; but excluding office clerical employees, confidential
employees, manager, assistant manager, chef, innkeeper. housekeeper, host-
esses, guards, and other supervisors as defined in the Act."
have free meals while they were at work and the motel
employees would be permitted to obtain their meals at half-
price. Furthermore, the employees were invited to eat with
their families at the motel facility when off duty at one-half
the menu price. The predecessor had required both the res-
taurant and motel employees to pay full price for all meals
consumed while at work, and they were apparently discour-
aged from eating at the facility when off duty.3
Forester then invited questions from the employees. An
unidentified employee asked Forester "What about the
Union?" According to Sandra Spohn. the union stewardess
at that time. Forester replied, "there would be no Union."
An inquiry was then made of Forester as to whether or not
union dues would be withheld, and again, according to
Spohn. Forester stated that no union dues would be with-
held. Cooper testified that "I believe somewhere along the
way Forester said, 'I do not like unions, I see no need for
unions if the employees and owners can work together'."
Forester testified that in response to the question concern-
ing union dues, he told the employees that he did not have
a contract with the Union and therefore dues would not be
withheld. Barbeau testified that in response to the question,
"What about the Union?", Forester told the employees he
really did not know about the Union and that it would be
up to a majority of the employees as to whether or not they
wanted it. Cooper remembered Forester saying that he
would go along with what the employees wanted about the
Union.
Spohn testified that when Forester announced there
would be no dues withheld from the employees, "just a few
people clapped their hands." Cooper testified that there was
some cheering and applause by approximately half the em-
ployees, whereas Barbeau and Forester testified that practi-
cally all the employees clapped and cheered at the an-
nouncement. The meeting then adjourned.
Sometime in December, the Union's business agent, Dale
Hudson, learned from his shop steward a rumor that there
was going to be a new owner. Hudson did not attempt to
verify the rumor until January 4, when he telephoned the
Inn and talked with Emma McCarty. the bookkeeper. Hud-
son inquired as to whether or not ownership had changed.
McCarty assured him that it had and gave him Forcster's
telephone number in Mendaline, Illinois. On January 4,
Hudson telephoned Forester at the number he had ob-
tained from McCarty and requested that Forester meet
with him and bargain with respect to a new labor agree-
ment. According to Hudson, Forester indicated that he had
had no experience with unions and that he was not aware
that he was obligated to meet with Hudson and would have
to check on his obligation in that respect. He suggested that
Hudson call back in approximately a week. According to
Forester, he told Hudson that he was busy at that time, but
would attempt to set a date as soon as possible and sug-
' Forester and Barbeau testified that Forester told the employees initially
that the only change in the terms and conditions of employment would be
his policy of permitting the free meals and the half-priced meals as described
above. The only other witness testifying to the sequence of events at this
meeting with respect to this issue, was Shirley Ann Cooper, who testified
there was some time between Forester's inviting the employees to remain
with him under the same terms and conditions of employment and his an-
nouncement to them of his more benevolent food plan.
556
HOLIDAY INN OF NILES MICHIGAN
gested that Hudson call him back in a week. Forester denies
that he said tht he did not know whether he had an obliga-
tion to meet with Hudson.
On January II. Hudson again telephoned Forester and
requested a meeting. According to Hudson, Forester indi-
cated that he had been busy opening new properties and
did not have time to meet, but "indicated" he would get
back to him for a possible meeting in about a week. Ac-
cording to Forester, Hudson requested that he. Forester.
call him when he was next in Niles, and gave him his office
telephone number. Forester further testified that he advised
Hudson that he was normally in Niles only over the week-
ends. Forester went to Niles on Friday, January 13, and
remained there until Sunday, January 15. Forester asserts
that he attempted to telephone Hudson on Sunday. the
15th, but did not receive an answer at the number supplied
to him by Hudson and could not find Hudson's residence
telephone number in the directory. Hudson admitted that
his residence telephone was unlisted and that the office tele-
phone was not manned on the weekends.
On January 13, Hudson wrote a letter purporting to con-
firm the telephone conversations of January 4 and 1 I. and
stated that he would be available for negotiations on Janu-
ary 17, 18, 19, and 20. Forester did not receive the letter
until January 16 or 17. Forester did not reply to the Janu-
ary 13 letter, but testified that, upon receipt of the letter he
decided to keep his eves and ears open, attempt to ascertain
the employees' desires with respect to continued union rep-
resentation, and to wait for a while before replying.
On January 25, Hudson again wrote Forester, this time
addressing the correspondence to the Niles, Michigan facil-
ity, again requesting that Forester meet with him for pur-
poses of negotiating a collective-bargaining agreement. and
advised him that he was available on January 30 and 31
and February 1. 2. and 3, "or any mutually agreeable date
in the near future." To this correspondence he attached a
copy of his contract proposals with the exception of a wage
proposal.
Forester testified that he did not receive the January 25
letter until February 3 or 4, since it had to be forwarded to
him from the Niles, Michigan Motel. On February 7, For-
ester responded to Hudson's request to negotiate a new col-
lective-bargaining agreement as follows:
I just received your letter of the 25th as it was sent to
Niles and they in turn forwarded it to me at the ad-
dress below.
I have been most concerned about the desires of my
fellow workers at the Holiday Inn and apparently they
do not seem to want me to pursue the negotiating of a
contract.
I therefore wonder if either one of us could accomplish
anything by getting together. If you have any further
questions, mail can be sent to the corporate address.
Sincerely,
Edward G. Forester, President
Half-Century, Inc.
41 Long Meadow Road
Winnetka, IL 60093
Upon receipt of Forester's February 7 letter, Hudson had
new authorization cards circulated among the employees
and claims to have gotten signatures on 29 cards. However,
Hudson admits that he did not advise Forester of this fact.
Sometime during March, James M. Barbeau, Forester's
son-in-law, became innkeeper of the Niles, Michigan, facil-
ity. On April 4, the date of the issuance of the original
complaint herein, Barbeau telephoned Hudson and advised
him that he was available and suggested that they get to-
gether and discuss a contract.'
On April 7, Barbeau met Hudson at the Ramada Inn in
South Bend, Indiana, approximately 8 miles from Niles,
Michigan, and advised him that he was willing and able to
sign the old contract, i.e., the contract in existence with the
predecessor, and be done with it. According to Barbeau's
uncontradicted testimony, Hudson stated that he could not
live with the old contract, but needed a few changes. Ap-
parently, at that time, Barbeau agreed to meet on April 19,
with the Union's negotiating committee which consisted of
Hudson and two employee representatives. Barbeau testi-
fied that on April 19, he again offered to sign the old con-
tract and Hudson insisted that he needed some changes in
the contract. Hudson testified that Barbeau advised the
committee that he was not authorized to enter into any
collective-bargaining agreement. but would merely discuss
the differences with the committee. Barbeau testified that
he advised Hudson and the committee that he was not au-
thorized to sign a new contract, but that it would have to be
sent to Chicago for review and action. Barbeau met with
tludson and his committee for 3 or 4 hours on April 19, and
again, for about the same length of time on April 20 and 21.
While it appears from the proposals admitted into evidence
that Barbeau and the Union agreed upon a number of pro-
visions of the contract, there were many areas in which
agreement was not reached. There was apparently no dis-
cussion of economics.
Barbeau testified that on or about April 28, he received a
petition signed by 39 of the employees which stated in effect
that those employees, a majority of the unit, desired that
the Union cease their functions as their collective-bargain-
ing representative. Based upon this consideration Respon-
dent thereafter declined to meet with the Union for pur-
poses of negotiating a collective-bargaining agreement.
IV. ANALYSIS AND CONCLUSIONS
A. Unilateral Changes
As heretofore noted, the counsel for the General Counsel
contends that the successor employer, Respondent herein,
violated Section 8(a)(5) and (1) of the Act by unilaterally
altering terms and conditions of employment of its employ-
ees by announcing and granting to the restaurant employ-
ees free meals and the hotel employees meals at one-half
the menu price, as well as one-half menu price for off-duty
meals consumed on the premises. He argues that the succes-
sor was not free to alter any terms or condition of employ-
ment without first negotiating with the Union once it had
"evidenced a plan" to employ all of the predecessor's em-
ployees. In this regard, Forester testified that he was aware
of the union contract, had familiarized himself with it. and
' According to the testimony of Barbeau.
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter, prior to December 19, made the decision to offer
employment to all of the predecessor's employees.
Respondent contends, in substance, that it was under no
duty to bargain over the initial terms and conditions of
employment and that it at no time adopted the prede-
cessor's terms and conditions of employment. Therefore,
there was no unilateral change.
In N.L.R.B. v. Burns International Security Services, su-
pra, the Supreme Court held that a successor employer
would ordinarily be free to set the initial terms and condi-
tions upon which it will hire employees of a predecessor.
However, the Court carved out a narrow exception, stating:
There will be instances in which it is perfectly clear
that the new employer plans to retain all the employees
in the unit and in which it will be appropriate to have
him initially consult with the employees' bargaining
representative before he fixes terms.
The General Counsel contends that since Respondent ad-
mittedly decided to offer employment to all of its prede-
cessor's employees prior to assuming operation of the busi-
ness, it was not free to establish initial terms and conditions
of employment without consulting with the employees' rep-
resentative.
The Board has had occasion to consider the Burns caveat
in a number of cases. In Spruce Up Corporation, 209 NLRB
194, 195 (1974), the Board defined this general principle of
Burns stating:
When an employer who has not yet commenced opera-
tions announces new terms prior to or simultaneously
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 phrase was in-
tended by the Supreme Court.
In Spruce Up, the Board held that the caveat in Burns
should be restricted to circumstances in which the new em-
ployer had either actively, or by tacit inference, misled em-
ployees into believing they would all be retained without
change in their wages, hours, or conditions of employment
or where the new employer had failed to clearly announce
his intent to establish a new set of conditions prior to invit-
ing the former employees to accept employment.
In Anita Shops, Inc., db/la Arden's, 211 NLRB 501
(1974), the Board held that Respondent did not violate the
Act by initially establishing wages and terms of employ-
ment at the time it offered employment to the predecessor's
employees, although it had previously notified the Union of
its intent to retain all of the predecessor's employees which
it determined it needed to operate the business. However,
cf., C.M.E., Inc., 225 NLRB 514 (1976).
The Board appears to have consistently held that it be-
comes "perfectly clear" that a successor employer plans to
retain all, or a majority, of the employees in the unit, as that
phrase was intended by the Supreme Court, when it evi-
dences a plan or intention to do so. What constitutes such
"expression of intent" turns upon the facts of each case.
Here Forester admittedly decided to offer employment to
all the unit employees prior to December 19, when the offer
was actually made and the employees were given the op-
portunity to accept or reject the offer. Forester testified that
it was his intention at all times to provide the employees
with free and reduced cost meals in accordance with this
practice at another motel operated by him. However, this
was not made known to the employees here until December
19, at the time they were offered employment.
On these facts I find and conclude that Respondent first
expressed its intention to retain all the unit employees at
the December 19 meeting and simultaneously therewith es-
tablished initial terms of employment different from the
predecessor by granting free and reduced cost meals. At no
time were these employees misled into believing their terms
of employment would remain unchanged and at no time
did Respondent adopt all the terms and conditions of em-
ployment of the predecessor.
Accordingly, I find and conclude that Respondent did
not violate Section 8(a)(5) or (I) of the Act by unilaterally
changing terms and conditions of employment as alleged in
the complaint.
B. The ReJusal To Bargain
Respondent does not deny that it became a successor
employer to Niles Innkeepers, Inc., on December 19, 1977,
when it assumed the lease and assets of the Niles, Michigan,
Holiday Inn, continued identical operations without any
break in continuity, and employed precisely the same work-
force. See Border Steel Rolling Mills, Inc., 204 NLRB 814,
815 (1973). Nor does it deny that under the Board's well
settled successor employer doctrine approved by the Su-
preme Court in Burns, supra, a successor employer, absent a
reasonably based good-faith doubt of the incumbent
union's majority, is obligated to recognize the continuing
representative status of the bargaining agent of its prede-
cessor's employees in an appropriate unit.
The sole contention made by Respondent in this regard is
that it did not refuse to bargain with the Union prior to
April 28, when it received a petition signed by 39 of its
approximately 60 employees stating, in effect, that they no
longer wanted the Union to represent them. Respondent
tacitly admits, as it must, that on January 4, union business
agent, Dale Hudson, by his telephone call to Forester, re-
quested Respondent to recognize the continuing majority
status of the Union and to meet and bargain with it for a
collective-bargaining agreement. It also admits that on
January 1 I1, Hudson reiterated this request. Similar requests
were made by Hudson's January 13 letter to Respondent, to
which Forester did not reply, and the January 25 letter to
which Forester responded on February 7.
Respondent's argument that at no time, as alleged in the
complaint, it refused to bargain with the Union, is
grounded on the contention that in the January 4 and 11
telephone calls from Hudson to Forester, Forester did not
state that he would not bargain with the Union, but stated
legitimate reasons why it could not agree to a specific date
at that time, i.e., the exigencies of other business. This, Re-
spondent argues, is true regardless of which version of the
telephone conversations is credited.
Were the two telephone calls the extent of Union's efforts
to obtain a commitment from Respondent to bargain, I
would be inclined to agree with Respondent that its re-
sponses to the Union's requests did not constitute an unlaw-
ful refusal to bargain. However, the Union's endeavor to
558
HOLIDAY INN OF NILES MICHIGAN
perform its statutory obligation to the employees did not
stop there. Perhaps recognizing that Forester's responses to
his telephonic requests to bargain were ambiguous, Hudson
followed-up the January I 11 call with a letter reiterating his
request. Forester testified that upon receipt of Hudson's
January 13 letter, he decided to delay in replying to the
letter and to "keep my eyes and ears open regarding the
employees and their desires ... " with respect to the Union.
Forester received Hudson's second request to bargain in
early February and replied as set forth above, on February
7. On February 9, the Union filed unfair labor practice
charges alleging a refusal to bargain.
As noted above, upon these facts, Respondent argues
that it did not refuse to bargain in good faith with the
Union. In support of this defense Respondent argues, in its
brief, that its February 7 letter may not be construed to
constitute a refusal to bargain in view of the last sentence.
"If you have any further questions, mail can be sent to the
corporate address." It urges that notwithstanding the state-
ment that the employees "apparently . ..do not seem to
want me to pursue the negotiating of a contract." and "I
therefore wonder if either one of us could accomplish any-
thing by getting together," it left the door open for the
Union to communicate further with it. The Union did not
avail itself of this opportunity.
In view of Forester's equivocal responses to Hudson in
their two telephone conversations and the failure to re-
spond to the first written request, it would have been diffi-
cult for Respondent to have composed a response that
would have more clearly conveyed the futility of the
Union's pursuit of its bargaining demands. Accordingly, I
find and conclude that by the letter of February 7, Respon-
dent clearly refused to bargain with the Union in accord-
ance with its duty as a successor employer.
Respondent had a duty to recognize the incumbent
Union and. upon request, to meet with the Union at reason-
able times and places and confer with it in good-faith to
reach an agreement with respect to the wages, hours, and
other terms and condition of employment on December 19,
when it employed all the predecessor's unit employees.
While Respondent, so long as it refrained from making any
unilateral changes in the terms of employment, had no duty
to seek the Union out and initiate the bargaining process
once the Union requested it to bargain the obligation to
bargain ripened and absent a reasonably based good-faith
doubt of the Union's majority status at that time, Respon-
dent is required to enter into good-faith negotiations with
the Union. It was not free to defer meeting with the Union
for bargaining purposes pending an independent determi-
nation as to whether or not the employees continued to
desire the Union to represent them. The presumption of the
Union's continued majority status survived the change of
employer identity and by operation of the well settled law
with respect to a successor's duty to bargain as established
by the Board and courts, Respondent is obliged to bargain
in good faith with the Union for a reasonable time before
asserting a good faith doubt of the Union's continuing ma-
jority status. This. Respondent did not do.
I am not persuaded, as Respondent argues in brief, that
the exigencies of the transition of ownership justifiably war-
ranted a delay of 3 months before agreeing to bargain with
the Union.5 From the inception of the duty to bargain Re-
spondent evidenced a clearly articulated intent to defer bar-
gaining with the Union pending its own determination of
employee sentiment for the Union. At the January 19 meet-
ing, Forester told the employees that whether there contin-
ued to be a union would be left to the employee's desires.
Again, in explaining his failure to reply to the Union's
January 13 letter. Forester testified that he decided to delay
his response to enable him to ascertain the desires of the
employees with respect to the Union. Although Respondent
alludes to the employees' applause at the December 19
meeting when Forester advised them that union dues would
not be withheld and the alleged statements of several em-
ployees to the effect that they were glad the Union was out,
it is not asserted to constitute a reasonably grounded good-
faith doubt of the Union's majority status.
A successor who establishes a reasonably grounded good-
faith doubt of the Union's majority status at the time the
Union requests bargaining may decline to do bargaining
until the Union proves its majority status. Absent such a
good-faith doubt at that time a successor is required to bar-
gain in good faith with the Union for a reasonable period
before withdrawing recognition. Clearly a successor may
not defer bargaining with the incumbent union until such
time as it has made its own independent determination as to
whether the employees continue to want the Union to rep-
resent them. As noted above, it is well settled that the pre-
sumption of continued majority status survives a transition
of ownership where, as here, all the predecessor's employees
are retained without a hiatus in operation. If this presump-
tion is to have any efficacy, it must survive for a reasonable
time during which the successor bargains in good faith with
the incumbent union.
Accordingly, I find and conclude that at all times since
January 4, 1977, Respondent failed and refused to bargain
in good faith with the Union with respect to wages, hours,
and other terms and conditions of employment in violation
of Section 8(a)(5) of the Act.
Finally, Respondent argues that a bargaining order
should not issue here since a majority of the employees (39)
expressed their free choice in writing on April 28 that the
Union stop functioning as their bargaining agent. This ar-
gument is predicated upon the contention that the petition
was circulated, signed, and presented in an atmosphere free
of antiunion animus and unilateral actions by the employer.
A bargaining order is warranted in this case. As found
above, Respondent had a duty to recognize the incumbent
union on December 19, 1977, when it evidenced a plan to
offer employment to all the predecessor's employees and,
upon request, to bargain in good faith with the Union. The
Union requested Respondent to bargain on January 4, at
which time Respondent did not have, nor does it contend
that it had, a good-faith doubt based upon objective consid-
erations that the incumbent union represented a majority of
the unit employees, thereby overcoming the presumption of
continuing majority status. Respondent clearly had no in-
tention to bargain in good faith with Union as indicated by
Forester's statement to the employees that whether or not
in view of the finding below that Respondent unlawfully refused to bar-
gain in good faith with the Union from the inception of its duty to do so, I
need not decide whether Respondent bargained in good faith on April 19,
20. and 21
559
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was a union would depend upon what they wanted.
Thus, it is clear that Respondent, although not having a
doubt of the union majority based upon the requisite kind
and degree of proof, did not intend to be bound by the
presumption of majority status accompanying the transi-
tion. Respondent was thereafter in violation of Section
8(a)(5) of the Act and no good-faith doubt could be raised.
Accordingly, a bargaining order should issue.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Local No. 103, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. All regular full-time and regular part-time employees
employed by Respondent at its facility (motel and restau-
rant), located at 930 S. Eleventh Street, Niles, Michigan.
but, excluding office clerical employees, confidential em-
ployees, manager, assistant manager, chef, innkeeper,
housekeeper, hostesses, guards, and other supervisors as de-
fined in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section
9(b) of the Act.
4. The Union was on December 19, 1977, and has been
at all times since, the exclusive bargaining representative of
all employees in the aforesaid bargaining unit within the
meaning of Section 9(a) of the Act.
5. By failing and refusing at all times since January 4,
1978, to recognize and bargain with the Union as the exclu-
sive representative of the employees in the appropriate unit,
Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. Respondent has not otherwise violated the Act.
7. The unfair labor practice set forth in item 5 above, is
an unfair labor practice within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, it shall be ordered to cease and desist
therefrom, and from like and related unfair labor practices,
and to take the affirmative action provided for in the rec-
ommended Order below, which I find necessary to effectu-
ate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER 6
The Respondent, Half-Century Inc., d/b/a Holiday Inn
of Niles Michigan, Niles, Michigan, its officers, agents, suc-
cessors, and assigns, shall:
I In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
I. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
the Union, Local No. 103, Hotel and Restaurant Employ-
ees, and Bartenders International Union, AFL-CIO, as the
exclusive bargaining representative of the employees in the
following appropriate unit:
All regular full-time and regular part-time employees
employed by Respondent at its facility (motel and res-
taurant) located at 930 S. Eleventh Street, Niles,
Michigan, but, excluding office clerical employees,
confidential employees, manager assistant manager,
chef, innkeeper, housekeeper, hostesses, guards, and
other supervisors as defined in the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with the above-named union as the exclusive representative
of all its employees in the appropriate unit described above,
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its place of business in Niles, Michigan, the
attached notice marked "Appendix."7 Copies of said notice,
on forms provided by the Regional Director for Region 7,
after being duly signed by Respondent's representatives,
shall be posted by it immediately upon receipt thereof and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 7, in writing
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
7 In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAIl LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or assist unions of their choosing
To bargain collectively through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all these things.
560
HOLIDAY INN OF NILES MICHIGAN
WE WILL NOT refuse to recognize and bargain with
Local No. 103, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO. as the ex-
clusive bargaining representative of our employees in
the following appropriate unit:
All regular full-time and regular part-time employ-
ees employed by the employer at its facility located
at 930 S. Eleventh Street, Niles. Michigan; but ex-
cluding office clerical employees, confidential em-
ployees, manager, assistant manager. chef, inn-
keeper, housekeepers, hostesses. guards, and other
supervisors as defined in the Act."
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of Rights guaranteed them by the Act.
WE WILL recognize, and upon request bargain with,
the Union as the exclusive representative of our em-
ployees in the aforesaid appropriate unit, with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
HALF-CENTURY, INC., D/B/A HOLIDAY INN OF
NILES MICHIGAN
561