Holiday Inn of Perrysburg

National Labor Relations Board - Board Decisions

Jul 2, 1979

243 N.L.R.B. 280 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
Motor Inn of Perrysburg, Inc. d/b/a Holiday Inn of
Perrysburg, Ohio and Hotel & Restaurant Employ-
ees and Bartenders Union, Local 868, AFL-CIO.
Cases 8 CA 9873, 8 CA 9982, 8 CA 10070. 8
CA-10309, and 8 CA-10318
July 2. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEIMBERS JENKINS
AND PNEI.()
On December 21, 1978, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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, Motor Inn of Perrysburg,
Inc. d/b/a Holiday Inn of Perrysburg, Ohio, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order.
IT IS FURTHER ORDERED that the complaint allega-
tions not specifically found herein be, and they
hereby are, dismissed.
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
SIAMENT ()OF TllI1 CASE
LEONARD M. WAGMAN, Administrative Law Judge:
Upon a charge filed by Hotel & Restaurant Employees and
Bartenders Union, Local 868, AFL-CIO, referred to herein
as the Union, in Case 8-CA-9873 and subsequent charges
filed by the same union in Cases 8 CA 9982, 10070, 10309.
and 10318 on various dates in 1976, the General Counsel of
the National Labor Relations Board, by the Regional Di-
rector of' the Board's Region 8, issued a consolidated com-
plaint on June 4, 1976, and a second consolidated com-
plaint on September 30, 1976. against Holiday Inn of
Perrysburg. Inc. d/b/a Holiday Inn of Perrysburg, Ohio.
referred to herein as Respondent, alleging that Respondent
had engaged in unfair labor practices within the meaning of
Section 8(a)( ). (3), and (5) of the National Labor Relations
Act, as amended, herein called the Act. Respondent an-
swered, denying commission of' the alleged unlawful con-
duct.
Pursuant to notice. a hearing was held before me in To-
ledo, Ohio, on 22 days during January, February. and
March 1977. Post-hearing briefs were submitted by the
General Counsel, the Charging Party. and Respondent.
Upon the entire record in this case. my consideration of
the briefs, and from my observation of the demeanor of the
witnesses, I make the following:
FINIIN(,S OF FA(I
1. IIFE BUSINSS ()F RSP(ON)EN I
Respondent, Motor Inn of Perrysburg, Inc. d/b/a Hioli-
day Inn of Perrysburg, Ohio, is an Ohio corporation which
operates a motel. restaurant, and bar in a single location at
Perrysburg. Ohio. where it provides motel accommodations
and engages in the retail sale of food, beverages, and related
services. In the course and conduct of its business opera-
tions. Respondent annually receives gross revenues in ex-
cess of $500.000. Respondent also annually receives goods
valued in excess of $6,000 at its Perrysburg. Ohio, facilities
directly from points located outside the State of Ohio. Re-
spondent admits, and I find from the foregoing commerce
data, that Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
1. IIiF l.ABOR )R(iANIZAIION INVOLVED
Respondent concedes, and I find, that Hotel & Restau-
rant Employees & Bartenders Union. Local 868, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
IIl. IHE UNFAIR LABOR PRA(TI('ES
A. Background and Issues
In the summer of 1974, Betty Carman, then employed by
Respondent as a night dining room waitress, contacted the
Union's financial secretary-treasurer, William Parson, re-
garding the inception of an organizing campaign. Parsons
met with Respondent's night dining room waitresses Kath-
leen Richmond. Doris Mullins, Joyce Roberge., and several
other employees to begin the organizing campaign. There-
after, the Union sought recognition as bargaining represent-
ative of Respondent's food and beverage employees from
Respondent's director of operations, Donald Loss, Loss de-
clined to recognize the Union and suggested an election.
Pursuant to a Stipulation for Certification Upon Consent
Election in Case 8 RC-971 I, the Regional Director con-
243 NLRB No. 55
280
HOLIDAY INN OF PERRYSBURG. OHIO
ducted an election on December 11. 1974, in the following
unit:
All full-time and regular part-time food and beverage
department employees at the [Respondent'sj Perrys-
burg. Ohio. facility, including cooks, salad help, dish-
washers, porters, waitresses, bartenders, and bus help;
but excluding all desk clerks, maintenance employees.
housemen, maids, managers, assistant managers, office
clerical employees, professional employees, guards, su-
pervisors as defined in the Act, and all other employ-
ees.
The tally of ballots issued after the election showed that of
approximately 197 eligible voters, 167 cast ballots, of which
63 were cast for, and 84 against, the Union. The 20 chal-
lenged ballots were insufficient in number to affect the out-
come of the election.
Following the election, the Union filed objections to con-
duct affecting the results of the election. In addition, the
Union filed an unfair labor practice charge against Respon-
dent in Case 8-CA-8823. On May 21. 1975. the Regional
Director for Region 8 issued a complaint in Case 8 CA-
8823 alleging that Respondent committed a number of vio-
lations of Section 8(a)(1), (2), and (3) of the Act during the
preelection period. On July 15. 1975, the Regional Director,
at the Board's direction, consolidated the objections in Case
8-RC-9711 with the complaint in Case 8 CA-8823. Two
weeks later, Respondent and the Union entered into an in-
formal settlement agreement which was approved by the
Regional Director. As part of the settlement, Respondent
and the Union entered into a stipulation calling for a sec-
ond election to be held on September 17. 1975.
In the preelection campaign which followed, a group of
night dining room waitresses were among the leaders in the
Union's organizing effort. After the second election, which
took place on September 17, 1975, the tally of ballots
showed that out of approximately 151 eligible voters in the
unit, 111 cast ballots of which 42 were for the Union, 68
were cast against the Union, and I was challenged.
The pleadings as amended present the following ques-
tions:
I. Whether Respondent violated Section 8(a)(3) and (1)
of the Act on February 23, 1976, by imposing more onerous
conditions of employment in the form of a limited or ex-
perimental captain system upon its night dining room per-
sonnel because they supported the Union.
2. Whether Respondent violated Section 8(a)3) and (I)
of the Act on April 5, 1976, by implementing a revised
captain system and thereby constructively discharged night
dining room personnel because they exercised their right
under Section 7 of the Act' to support the Union.'
Sec. 7 of the Act reads:
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing. and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, and shall also have the nght to refrain from an)y or all such activi-
ties except to the extent that such right may he affected by an agreement
requiring membership in a labor organization as a condition of employ-
ment as authorized in section 8(a)3).
'At the hearing on February 3, 1977. I granted the General Counsel's
motion to amend the complaint In Case 8CA-9982 and the consolidated
3. Whether Respondent violated Section 8(a)(I) of the
Act by threatening employees with discharge if they did not
perform satisfactorily under the captain system.
4. Whether Respondent violated Section 8(a)( l of the
Act by threatening employees with economic reprisals, in-
cluding discharge, if they support the Union.
5. Whether Respondent violated Section 8(a)(I) of the
Act by interrogating employees regarding their union ac-
tivity and sentiment.
6. Whether Respondent violated Section 8(a)(I) of the
Act by photographing employees engaged in picketing on
the Union's behalf.
7. Whether Respondent violated Section 8(a)(1) of the
Act by promulgating rules preventing or prohibiting em-
ployees from wearing union pins and distributing union lit-
erature during nonworking time and in nonworking areas
of Respondent's facility.
8. Whether Respondent by refusing on and after April I,
1976. to recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of its employees in
an appropriate unit violated Section 8(a)(5) and (I) of the
Act.
9. Whether Respondent imposed split shifts, reduced
work time, and early morning hours upon banquet cooks
Elizabeth Hollers and Delores Nercurion and construc-
tively discharged Delores Mercurio in violation of Section
8(a)(3) and (1) of the Act.
B. The Captain Ssteim
I. Facts
Prior to the inception of the so-called captain system,
Respondent operated its night dining rooms with waiters,
waitresses, and buspersons. The waiter or waitress took the
patron's food and drink order and served it. The buspersons
assisted the waiters and waitresses by setting tables, supply-
ing them with water and butter, brining in trays from the
kitchen, clearing tables after meals were completed, stock-
ing the work areas with flatware, glasses, and other neces-
saries. and removing trays of dirty dishes and utensils from
the dining rooms to the kitchen. Waiters and waitresses col-
lected the tips given by their patrons and usually paid 10
percent of these receipts to the buspersons assisting them.
Respondent's records covering 1975 show that the average
hourly wage of a waiter or waitress during that period was
$1.43 and that the hourly average amount of tips was $1.19.
Respondent's director of operations, Donald J. Loss, be-
came aware that Respondent's restaurant operations were
losing money beginning with the spring of 1975. Loss feared
that his position as Respondent's chief operating officer was
in jeopardy. As he pointed out in his testimony "the people
I work for were not accustomed to operating without mak-
ing a profit. I'm a minority stockholder and I serve at the
will of the Board of Directors." Loss examined Respon-
dent's restaurant operations and saw the waiter-waitress-
complaint in Cases 8 CA 9873 and 8-CA 9982 by deleting allegations that
the implementation of the modified captain system on and after April 5,
1976. imposed reduced compensation or loss of compensation upon Respon-
dent's night dining rx)m personnel.
281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
busperson system as a substantial weakness in Respon-
dent's restaurant operations.
Loss developed his reorganization plan during the au-
tumn of 1975. In mid-December, Loss told then Night Din-
ing Room Supervisor, Mary Heppeny, about the contem-
plated captain system. Happeny envisioned a harmful
impact of the captain system upon her job and the jobs of
the night dining room personnel. She telephoned a few of
the night dining room waitresses, and, while crying because
of her fear, explained her understanding of the contem-
plated captain system. Heppeny testified that coupled with
this fear was the thought that Respondent was implement-
ing this new system as a response to the union activity of
the night dining room waitresses. And, indeed, she ex-
pressed that sentiment to the several waitresses she spoke
to.
In January 1976, Loss's subordinate in Respondent's
management, Innkeeper Chip Dennison called Happeny
into his office for a discussion of the captain system. He told
her that she would cease being a dining room supervisor
and become a captain in the new system. Again it crossed
Happeny's mind as she listened to Chip Dennison that the
Company was using the captain system to eliminate the
night dining room waitresses jobs in reprisal for their union
activity. Happeny also testified that after she had observed
the captain system in action and had participated in it as a
captain, she no longer suspected that the system's objective
was to eliminate the night dining room employees.
Donald J. Loss focused attention on night dining room
operations in a memo to Chip Dennison on the subject of
Respondent's 1976 food, beverage, and inn operations. The
memo announced that in 1975, Respondent's restaurant op-
erations enjoyed food sales of $1,813,971.14 "which was the
largest year in [Respondent's] history." The memo pointed
out that Respondent's food sales operations would show "a
$40,000 to $50,000 loss for the year." Loss announced plans
to reverse this unfavorable trend and achieve a profitable
operation by reorganizing food operations effective Febru-
ary 1. One of the innovations mentioned in this memo was
"a dining room service concept known as the 'captain's pro-
gram.' " Loss described the "captain's program" as follows:
The basic concept is that each captain is assisted by 3
or 4 waitresses such (sic) as a captain in each of our
smaller dining rooms and two in the main dining room.
The captains take all orders fbr food and drink and
supervise the serving of all orders by the waitress. The
captains are responsible for the training and supervis-
ing of the waitresses assigned to them. Bus help is
eliminated as the waitresses do their own resets. The
captains are paid $2.00 per hour and receive 1/3 of all
gratuities received in their stations. Sunday, we would
not use the captains program because of the limited
menu. There are some very positive plus' (sic) to this
type of nite (sic) dining room service that will help us
reach our goals this year.
Later in January, Donald Loss sat down with High and
spelled out his design of the contemplated captain system to
Assistant Innkeeper George High and directed him "to put
the system together and get it going for him within three
weeks." High, who became Respondent's night dining room
supervisor on February 1, 1976, drafted an outline of the
system for the most part in accordance with Loss's design.
Under Loss's original concept, a captain would lead a team
of waiters and waitresses without buspersons, collect the
tips, and give two-thirds to the waitresses. High modified
that scheme by adding buspersons and requiring the waiters
and waitresses to collect the tips and distribute 30 percent
to their respective captains and 10 percent to assisting
buspersons. High also discussed the system with Innkeeper
Dennison who approved it after changing some of its word-
ing.
On February 5, Respondent called a meeting of night
dining room personnel and distributed copies of George
High's written description of the captain system to the as-
sembled employees.
After the meeting, night dining room waitress Joyce Ro-
berge contacted Union President William Parson and at his
instruction mailed a copy of George High's plan to him.
Roberge complained to Parson that giving 30 percent of the
tip to a captain and 10 percent to a busperson would de-
prive her of 40 percent of her income.
The captain system began on an experimental basis in
one of Respondent's three night dining rooms, the Wince
Cellar, during the week of February 16. Respondent
adopted the same system in all three of its night dining
rooms beginning on February 23. Gloria Harrigan, a night
dining room waitress employed by Respondent since Sep-
tember 30, 1974, quit on February 23, 1976. Her reason for
quitting was the captain system.
During the week of February 23, Joyce Roberge and
other night dining room waitresses, who now were working
under the captain system asked that the captains provide
them with slips stating that, the waitresses had properly
divided up their tips between the captains and buspersonnel
in accordance with the system. The captains refused to give
the requested slips and George High supported that refusal.
In the course of the discussion, Joyce Roberge commented
that she believed that this captain system was installed in
response to union activity. Although George High was pre-
sent when she made the comment, he made no reply. Ro-
berge's hostility toward the captain system, centered on the
distribution of tips, and reflected the sentiments of many
other night waitresses, involved in the initial captain sys-
tem.
On the evening of February 18, former night dining room
waitresses Kathleen Richmond and Mary Ladd, visited Re-
spondent's inn where they encountered Donald Loss. Loss,
while hosting a party in the Wine Cellar, saw the two for-
mer employees and met them in the hall outside the Wine
Cellar.
In the conversation which ensued, he explained that Re-
spondent was installing a new captain system in its night
dining room. He detailed the manner in which the system
would work. The conversation then turned to the reason
why Richmond and Ladd had quit their employment soon
after the Union lost the 1975 representation election. Loss
expressed resentment toward the two former night dining
room waitresses because they had voted for the Union in
that election. Loss said he did not want the Union coming
in and telling him what to serve or how to serve it. He also
complained about the cost of the election to Respondent
both in expenses and loss of restaurant business. He warned
that if the Union came in he would "shut the doors." He
282
HOLIDAY INN OF PERRYSBIIRG, OHIO
remarked that he felt free to express displeasure with their
support for the Union cause, now that the'v were no longer
employees. oss asserted that he knew that all of the night
waitresses had voted for the Union and that their efforts
were responsible for the inception ofthe Union's organizing
campaign. Loss declared that he had enough money to sat-
isfy his needs for the rest of his life and if the Union got in
he would end his connection with the operation and get out
of the business.
Mary Ladd asked him if his motives for installing the
captain system was "to get rid of the girls, either get rid of
them or make them mad enough to guit." oss laughed and
did not respond with a yes or no. Instead, he remarked "we
had to do something to make service better." ie added that
he only had "4 more months until they tried to start getting
in again." At this point, he stated that he was very disap-
pointed that Mary Ladd and Kathleen Richmond had sup-
ported the Union. lie stated that he "took it personally. lie
advised them that "if you didn't like the way things were
run, instead of going to vote for the Union. you could just
quit."'
On another occasion in late February or early March
Donald Loss, in a conversation with Night Dining Room
Supervisor George High, overheard by night waitress Glen-
dine Bernt and cashier Judy Beebe, said that High had four
months to eliminate the "old girls." Loss, added that he was
unconcerned about how High accomplished that objective
and that Respondent would "back him 100 percent."4
There were other manifestations of Respondent's concern
about the Union's presence. I find from High's testimony
that during January and February 1976. he and Loss occa-
sionally discussed the Union's previous organizing attempt
in August and September 1975. The two also talked of' the
possibility of a third attempt later in 1976. one year after
3 When Donald Loss first testified about this conversation, on the second
day of the hearing, he gave a short version which he offered as "all I recall
basically about the conversation to my recollection." On the last da) of the
hearing, after Ladd and Richmond had testified Loss provided a longer v5er-
sion, including remarks addressed to Ladd to the effect that the captain
system was not motivated by the Union. From the later embellishment and
his testimony as to what he "probably" said at another point in the conver-
sation, it appears that Loss was more interested in shielding Respondent
than in providing his full recollection. I also noted that Loss left much of
Ladd's and Richmond's testimony undenied, particularly that portion de-
scribing Loss's attitude toward Ladd and Richmond's union sentiment. In
contrast to Loss. Ladd and Richmond seemed to be providing their full
recollection. Accordingly, my findings were based upon Ladd and Rich-
mond's testimony. However as Ladd appeared to have better command of
details I have principally relied upon her version.
' Donald Loss denied Bernt's version of the conversation. However. in
denying Bernt's version, Loss appeared to be giving a cropped version of his
remarks to High. ending with a denial that he said "four months." On cross-
examination. High could not corroborate Loss's denial. Instead. he corrobo-
rated much of Bernt's testimony. Further. Bernt's version was corroborated
by the credible testimony of employee Glona Harrigan which, although
hearsay, was given without objection. Hamgan testified that in February.
Bernt came to her and said that she had overheard a conversation in which
Loss told High. "that he had a certain amount of time to get rid of us." I was
also impressed that notwithstanding her uncertainty about the precise date
of this incident Bernt not only testified as to her recollection of the remarks,
but also gave a vivid and reasonable account of the shocked reaction which
she and Beebe exhibited at hearing Loss' remarks. As I was thus impressed
that of all the witnesses involved including Beebe, Bernt was the most consci-
entious about trying to search her memory for details. I have credited her
account of this incident.
the last campaign. George High. also :onceded that as early
as the beginning of March 1976, the thought crossed his
mind that a possible reason for Respondent's use of the
captain system was the elimination of the night dining room
waitresses because of their union activity. High also testi-
fied that on occasion, Innkeeper ('hip Dennison discussed
that possibility with High.
Under the captain system which Respondent inaugurated
on a full scale in its night dining room operations on Febru-
ary 23, the hourly wages of the waiters and waitresses re-
mained the same as they were under the waiter-waitress-
busperson system. However, waiters and waitresses were
required to share 30 percent of their tips with the captains
and 10 percent with the buspersons.
I find from the testimons of Respondent's witness Mary
Happen) that prior to the inauguration of the February 23
captain system, Chip D)ennison. and George High in sub-
stance warned the night dining room employees that they
must chose between working under the captain system or
quitting.
According to George High's credited testimony and that
of Mary' Happeny, who served as a captain in both the
February and the April captain systems, the night wait-
resses resented the required sharing of tips with the cap-
tains. At one point during the week of February 23 night
waitress Joyce Roberge told George High that she believed
that Respondent was imposing the captain system "because
of union activity ... ." High did not respond. In his testi-
mony, High attributed the breakdown of February 23 cap-
tain system to the tip-splitting requirement.
On the evening of March 8, one of the captains failed to
report for work. As there was no replacement for the absent
captain, Respondent decided to return to the waiter-wait-
ress-busperson system in the affected dining room. When
the waitresses in the two dining rooms headed by captains
learned that their colleagues in the third dining room would
not be required to split tips with the absent captain, they
threatened a work stoppage. In the interest of maintaining
night dining room operations, Respondent's management
abandoned the captain system that night.
At a meeting on March 9, Respondent's management
criticized the captain system's operations. Loss scolded
those responsible for implementing the system. Mary Hap-
peny responded, telling loss that the waitresses resented
sharing tips. Whereupon, Donald Loss undertook a revision
of the captain system.
The captain system's spectre stirred up union activity
among Respondent's employees. The Union renewed its or-
ganizing efforts. High conceded that during January, Feb-
ruary, and March he noted an increased wearing of union
pins among the night dining room waitresses. On an occa-
sion in January or February. Chip Dennison told a group of
supervisors that "they were still wearing those damn union
pins." Respondent's food and beverage director. Neal
Kovacik testified that during February and March he had
heard rumors regarding a union organizing campaign
among Respondent's employees and that he had discussed
those rumors with other members of management. Kovacik
also conceded that in February and March, Donald Loss
was apprised of these rumors and that Chip Dennison
raised the topic of union activity at staff meetings. During
283
DECISIONS OF NATIONAL LABOR RELATIONS BOAR)
the same period, Mary Happeny became aware that union
authorization cards were ciculating among the employees.
She immediately conveyed this to George High. Finally, on
cross-examination George High conceded that in January,
February, and March 1976 Respondent's management, in-
cluding Loss and Dennison, were aware "that the people
who were very pro-union, were in the night dining room
department .... "
Director of Operations Loss monitored the captain sys-
tem from February 16 until March 8, when the system was
terminated. In his opinion, the night waitresses were not
cooperating or giving the captain system "an opportunity to
work." In his view, "there was massive resistance from the
waitresses." He noted from the comments of customers that
the night dining room waitresses were dissatisfied with the
captain system and were disgruntled. As Loss saw it, the
waitresses' attitude fostered absenteeism and slowdowns in
the kitchen.
Loss was at Respondent's facility on March 8, when the
night waitresses refused to take the floor. That night, the
management decided to abandon the captain system and
revert to the waiter-waitress-busperson system in the face of
employee objections. Against this back drop, Loss designed
what has been referred to in the record as the second cap-
tains program.
On March II1 Innkeeper Chip Dennison announced the
second captains program to a meeting of about 15 night
dining room waitresses and 8 or 9 busboys. Present also
were Donald Loss, George High, and then director of food
and beverage operations, Betty Timko. Dennison read from
a prepared memorandum entitled "Change in Night Dining
Room Job Classifications." He read:
Effective April 5th, we are refining our night captains
dining room service program in a continued effort to
improve our service and quality control. To accom-
plish this, we will have two new job classifications in
the night dining room and two existing classifications
will be eliminated.
The "new job classifications" were described as dining
room "night captain" and "service assistant." The captain's
hourly rate would be $1.10. The service assistant's rate
would be $3 per hour. The two classifications to be elimi-
nated were night dining room waitress and night dining
room bus.
The memorandum described the captain's job as follows:
The captain ... will be assigned a station in the dining
room and this station will be staffed by three or four
service assistants .... The captain will be available to
work six nights per week, Monday through Saturday.
Dennison went on to describe the qualifications, du-
ties, and responsibilities of the captains as follows.
1. THE CAPTAIN MUST BE TWENTY ONE YEARS OF
AGE.
2. THE CAPTAIN MUST HAVE HAD EXTENSIVE FOOD
SERVICE EXPERIENCE AS WELL AS A BACKGROUND IN SU-
PERVISION.
3. THE CAPTAIN WILL BE RESPONSIBLE FOR THE
TRAINING AND SUPERVISION OF HIS SERVICE ASSISTANTS
ASSIGNED TO HIM.
4. AI. FOOD (HE(KS WILl. B ISSUEDI) FROM IHE
CASHIER TO THE CAPTAIN AND THEY WILL. BE RESPON-
SIBI.E FOR THEIR PROPER DEPOSIIION.
5. HE CAPTAIN WI.I. SIGN FOR AND RE('EIVE Al.I.
(HARGE IPS RE('ORDEI) IN HIS SATION.
6. THE ('APTAIN WILL RC('IIVE AI. ('ASII IIPS
EARNEI) IN IlIS SIATION.
7. AS A I'IPPED EMPI.OYEE 11 IS IHIe (CAPIAIN'S RE-
SP()NSIBII.IY 1() DI)EARE A I. (GRAltIIIlES IN A MANNER
CONSIS IAN1 WITH FEI)DRAI. & SAIE LAWS.
8. THE (CAPIAINS W'II.I ROIAIE DINING ROOM SIA-
lIONS EA(H WIEEK Al TIlE IIRE(C]ION ()F IEIR IMMEDI-
ATE SUPERVISOR, THI Nl(iH DININ(i ROOM SUPERVISOR
9. ite ('CAPTAIN WII. IAKE A DRINK AND FOOD
ORDERS IN 111EIR SAI'ION AND SUPERVISE IlS SERVI(CE
()F THESE ORDERS.
10. IF IHE (CAPTAINS WISHI 10) GIVE HEIR SERVICE
ASSISTANTS A PORTION OF HEIR (iRAIUITIES EARNED IN
THEIR STATION, HAT IS THEIR OWN DECISION.
II. IF THE ('APTAINS ARE DISSAIISFIEI) WIIl THtie
PERFORMANCE OF ANY OF THEIR ASSI(INED SERVICE AS-
SISTANTS, THEY Wll.l. NOTIFY THEIR NICiIIT I)NING
ROOM SUPERVISORS W!0 WILL FOI..LOW 1'THE COMPANY
WARNING PROCEDURE.
Similarly, Dennison, reading from his prepared statement,
described the job description and qualifications for the ser-
vice assistants as follows:
THE SERVICE ASSISTANTS . . . WIL1. BE ASSIGNED TO A
CAPTAIN . .. AND THE CAPIAIN ... IS THEIR IMMEDIATE
SUPERVISOR. THE QUAI.IFICATIONS, DUTIES, AND RE-
SPONSIBILITIES OF IHE SERVICE ASSISTANTS ARE LISTED
BELOW.
1. THE SERVICE ASSISTANTS MUST BE TWENTY ONE
YEARS OF AGE.
2. THE SERVICE ASSISIANT WILI. ASSIST THE CAPTAIN
IN COMPLETING( DRINK AND FOOD ORDERS.
3. THE SERVICE ASSISIANTS WILL PERFORM REQUIRED
SIDEWORK AS DETERMINED BY THE NIGHT DINING ROOM
SUPERVISOR UNDER THE SUPERVISION OF THEIR CAP-
TAIN.
4. THE SERVICE ASSISTANTS WILL ROTATE STATIONS
WEEKLY WITH THEIR CAPTAINS.
5. IT IS THE SERVICE ASSISTANTS RESPONSIBILITY TO
DECLARE ANY GRATUITIES GIVEN TO THEM BY THE CAP-
TAIN IN A MANNER CONSISTANT WITH THE FEDERAL AND
STATE LAW.
After Dennison described the new positions, George
High concluded the meeting. He advised the employees
that from March II until April 4 Respondent would use the
"old waitress-waiter type service" to permit the planning
and organizing of the revised captain program. George
High called attention to the following application which
was attached to the memorandum, copies of which were
distributed to the assembled employees:
Sign your name and please make a check mark next to
one of the below statements and return to George High
by Monday, March 15, 1976.
Your name -----
1. --- I understand that my present job classifica-
tion "Waitress", "Waiter", and/or present "Captain"
284
HOLIDAY INN OF PERRYSBURG, OHIO
position is being terminated April 4th, and a new job
classification "Service Assistant" is being implemented
April 5th. I have read all information given and totally
understand the service assistant's job responsibilities,
wages, and duties. I agree to conform to the above job
requirements and wish to have a transfer April 4th to
the position of "Service Assistant."
2. -- I have read all information given and totally
understand the "Revised Captain's Position", job re-
sponsibilities, wages, and duties, and wish to apply and
interview for that position.
3. ---- I am not interested in either position and will
be leaving the Company's employ as of---(date).
After assuring his audience that either he or other members
of management would be glad to answer questions, High
ended the meeting. In his testimony, Donald Loss admitted
that the elimination of the bus personnel and the job de-
scription for service assistants together indicated that the
busing duties would fall upon the service assistants. Ac-
cording to Loss, those duties included cleaning and reset-
ting dining room tables and carrying trays of dirty dishes to
the kitchen, where they scraped them in preparation for
washing. In his testimony, George High conceded that un-
der the second captain's system, service assistants would
perform the busing tasks.
The immediate reaction of the night dining room wait-
resses to the new program was negative. Waitress Gene-
vieve J. Paternite decided at the meeting that she would
have no part in the new program. She read over the job
descriptions and the requirements for captain and service
assistant. As she had no supervisory background, Paternite
could not qualify for the position of captain. She did not
apply for the service assistant job because of the uncer-
tainty of her tip income plus the added burden of busing
duties. Paternite did not turn in an application to Respon-
dent.
Night waitress Doris Mullins who also attended the
March I meeting reacted similarly. Mullins studied the
revised captain system and the job preference form, and
was repelled by what she read. "The way I read it and
understood it when I did read it is that there just wasn't
anything on there for me." She credibly explained in her
testimony that she did not consider herself qualified for the
captain position because she did not have any supervisor or
management experience. Mullins rejected the service assist-
ant position as being below her dignity. Mullins had been a
waitress for 22 years. She looked upon busing work as de-
meaning and resented the inter position of the captain be-
tween herself and her customer.
Night dining room waitress Glendine Bernt considered
the proposed captain system and did not fill out the job
preference form. Bernt's reason was that she was ineligible
to apply for the captain position because she did not have a
supervisory background. As for the service assistant job, she
credibly testified: "I just felt it was a glorified bus kid's job,
and I just didn't want it. I didn't like the idea of the captain
picking up my tips that I worked for." She continued: "I
would have lost all personal contact with my guests and I
think the first contact with your guests is very important."
Night waitress Betty Cox also refrained from completing
the job preference form. Her first ground was that she did
not have the requisite supervisory experience to be a cap-
tain. Second, taking into account her 30 years experience as
a waitress and her 3 years at Holiday Inn, Cox resented the
inconvenience of reapplying for what amounted to her for-
mer job as a waitress. Finally, she saw that elimination of
bus personnel would impose additional work upon the ser-
vice assistants. Cox did not wish to face that burden.
Night waitress Margaret Rollins, who had no supervisory
background decided that the Company's captain program
added up to her being converted into "a glorified bus girl."
She did not apply.
Night dining room waitress Joyce Rechtine did not apply
for work under the second captains program. She lacked a
background in supervision. She declined to apply for the
service assistant position because she feared that her cap-
tain might deprive her of all possible tips. Rechtine also
testified that under the new system she envisioned more
onerous work due to the absence of busing personnel. Night
waitresses Inez Fallon, Patricia Roberts, and Florena Tay-
lor similarly testified credibly as to their reasons for not
applying for positions in the second captains program.
By March 15 only two members of the night dining room
staff, Mary Happeny, and night waiter, Souheil J. Kabbara,
filed job preference forms with Respondent. Both applied
for captain's positions. In an effort to obtain sufficient em-
ployees to implement the new captain system, Respondent
placed an advertisement for service assistants in "The To-
ledo Blade" on March 17, 1976. The advertisement stated
that the service assistant's wage would be $3 an hour and
invited inquiries to George High. From responses to the
advertisement and other recruitment, Respondent obtained
a sufficient number of applicants. In addition to Kabbara
and Happeny, as of April 5, Respondent's night dining
room captains were Chris Timko Kozeni, Nitja McGrane,
and Dwight Monroe.
On April 4, the last day before the revised captain system
went into effect, the night dining room staff designated as
department 14 in Respondent's records numbered about 45
including Happeny and Kabbara. Of this group, only Hap-
peny and Kabbara remained on the night dining room staff
on and after April 5.
Night waitress Joyce Roberge's last work day was on
March 6, 1976. From March 9, until the fourth week in
May 1976, Roberge was ill. Respondent carried her on sick
leave from March 8 until August 22, 1976. On June 5, Ro-
berge contacted Donald Loss and requested reinstatement.
Loss informed her of the new captain system. Loss ex-
plained to Roberge that the captains were authorized to
collect the tips. He also told Roberge that service assistants
were being paid $3 an hour. Roberge decided that she could
not qualify for the captain's position. Roberge told Loss
that she knew that none of the other night waitresses had
qualified for the captian's position and that she recognized
that her 9 years with Respondent did not qualify her for the
captian's position. After telling Roberge that none of the
other waitresses applied for the job of service assistant and
that Respondent was obliged to advertise for employees,
Loss asked her to apply for either of the jobs. Roberge did
not make any application. On June 10, Roberge read a
copy of the job descriptions and the job qualifications for
captain and service assistant from the material distributed
285
I)f[-'ISIONS O() NATIONAI IABOR RLA'I IONS BOARKI
by Respondent on March II. Robherge concluded that she
qualified only for the service assistant job. She did not ap-
ply because she felt "like a glorified busgirl."
Night waitress Kathy Klein, an alleged discriminatee,
came to work on April 2 and quit that same evening. I he
record is unclear as to the reason or reasons she gave for
quitting. However, it does not appear that she applied for a
position on the second captain's program.
Between March I I and April 4, Night Dining Room Su-
pervisor George igh held a meeting with the night bus
personnel at which he told them that their job classification
was being terminated as of the end of business on April 4.
He offered to "do everything" he could to place them in
new jobs at Respondent's inn. Two of them requested and
received his assistance in obtaining new jobs. Similarly on
or about March 28, High assured busboy Tony Lynott, who
was not at the meeting, that he would help Lynott obtain a
job in Respondent's banquet department. However, follow-
ing this conversation Lynott did not hear from High again.
2. Analysis and conclusions
The question presented here is whether the so-called cap-
tain system, first from February 23 until March 8, 1976,
and later in a revised form on and after April 5. 1976. was
designed to get rid of a group of known or suspected union
supporters. I find, contrary to Respondent's contention,
that both captains programs were designed to bring about
that unlawful purpose. The record makes plain that Direc-
tor of Operations Donald Loss, the chief architect of the
captain system at least suspected that the night dining room
waitresses had provided the Union with strong support. His
remarks to former employees Ladd and Richmond on the
evening of February 18 revealed his intention of using the
captain system to eliminate the night dining room waitress
before a union organizing drive which he and High ex-
pected would begin in late summer.
Loss' hostility toward employee support for the Union
surfaced in this same conversation. He censured Ladd and
Richmond for supporting the Union in the most recent rep-
resentation election. He complained that the election had
been costly to Respondent. Loss also warned that he would
close Respondent's restaurant operations if the unit em-
ployees voted for the Union. This warning revealed union
animus and was also violative of Section 8(a)( ) of the Act.
Loss' remarks to George High in late February or early
March again reflected an intent to rid Respondent of the
night dining room waitresses and thus weaken the Union's
expected organizing campaign. In this conversation, Loss
reminded High that he had 4 months to achieve the desired
result. High's silence in the face of Joyce Roberge's ex-
pressed belief that Respondent was imposing its captain
system "because of union activity" suggested that he agreed
with her. Indeed, High conceded that such a thought
crossed his mind in early March.
The initial captain program implemented on February
23, represented the combined thinking of Director of Op-
erations Loss, Innkeeper Dennison, and Night Dining
Room Supervisor High. However, the impetus for the sys-
tem and most of its design came from the director of opera-
tions. who wanted to get rid of the night waitresses before
the Union could begin a new election campaign.
I have little doubt that Loss. an experienced member of
Respondent's management, knew how to motivate employ-
ees. lie was well aware that the night waitresses whose
hourly wages were no more than $1.50. were jealous of their
tips. Such sentiment was exemplified by night waitress Ro-
berge's complaint to the Union when infirmed of Respon-
dent's first captain program. Nor do I doubt that Loss was
unaware of the waitresses' attitude toward busing. Yet
Loss's initial captains program required the waitresses to
give one-third of their tips to a captain and imposed busing
duties upon them. Given Loss' stated desire to get rid of
these same waitresses his captains program provided the
means of' fulfillment. These two conditions were likely to
persuade the night waitresses to abandon their jobs.
Ilowever. Hligh added buspersons to the plan. This weak-
ened the intended impact. Though displeased with the tip-
ping arrangement, all but one of the night waitresses re-
mained in Respondent's employ. Though this displeasure
finally welled up on March 8 and disrupted the first cap-
tains program, the desired result was not attained.
On March 9. Loss took full charge of revising the captain
system. His desire to eliminate the night waitress guided his
hand. Loss made three major revisions of the February 23
captains program. He eliminated the bus personnel.
changed the designation of the waiters and waitresses to
service assistant, and provided that the captain would col-
lect all tips and decide whether a service assistant would get
any portion and the amount of such portion. Given the
grumbling which attended the first program, it was likely
that the night dining waitresses would be repulsed by these
revisions.
In apparent recognition of this likelihood. Loss added a
job application to his handout. At first glance, the applicant
was free to select either the captain position or the service
assistant position. However. as Loss probably recognized,
few if any of the waitresses were likely to have the supervi-
sory background apparently required for selection as one of
the few captains. Thus, only the unattractive position of'
service assistant would be available. Failure to apply for
that position within four days of the announcement meeting
meant automatic termination on April 4, 1976.
On March II. Respondent revealed the new plan in stark
detail. Absent was any attempt to allay fears of economic
loss, which the assembled waitresses might envision. Nor
did Respondent attempt to soften the impact of the removal
of bus personnel and the imposition of busing upon the
service assistants.
Loss' captain program and the handout had the desired
effect. None of the night dining room waitresses had super-
visory background. Thus, none of them applied for the cap-
tain's position. Respondent's portrayal of the service assis-
tant's position repelled the night waitresses. They found
themselves confronted with a loss of status and income if
they accepted a service assistant's position. Accordingly
none of them applied for the position.
Loss accomplished his purpose. On April 5, when the
second captain system went into effect, Respondent opened
its night restaurant operations free of the night dining room
286
HOLIDAY INN OF PERRYSBURG, OHIO
waitresses who had provided the Union with a strong base
of support. All had been replaced.
Respondent attempted to show that the employees mis-
conceived the intent of the second captain program. Re-
spondent's comptroller, Steven M. Suelzer, offered as testi-
mony an array of figures to show that even under the first
captain system, which began on February 23, the waitresses
suffered no loss of income. Further, counsel for Respondent
attempted to elicit testimony from the night waitresses that
prior to the promulgation of the second captain program
they had performed some of the so-called "sidework" which
was- in larger part performed by the bus personnel. How-
ever, such attempts to portray the system in a favorable
light came too late to assist Respondent's cause. For no
such attempt was made in February or in March 1976 when
Respondent was presenting its captain programs to the
night waitresses.
Instead, Respondent was content to let the waitresses
fear the worst. Nor did Respondent give them hope of
change in the system. Indeed, Innkeeper Chip Dennison
and Night Dining Room Supervisor George High notified
the employees on two occasions that they could either ac-
cept the captain system as is, or leave. Thus, Respondent
attempted to present the employees with hard choices: Ei-
ther accept what appeared to them as a downgrading of
their jobs as waitresses and a concommitant loss of income,
or quit the Company's employ. I find that such warnings
were attempts to add to the coercive pressure created by
Respondent's implementation of the first captain program
which I find was designed to persuade the waitresses to quit
Respondent's employ. This first attempt failed. Only Gloria
Harrigan quit. The remaining waitresses viewed the first
system as demeaning because it interposed a captain be-
tween them and their patrons. They also saw a threat to
their income because the captain took 30 percent of their
tips. Nevertheless, they came to work. Their grumbling and
protest on the night of March 8, 1976, persuaded Loss that
more pressure was needed. Loss hit upon the proper for-
mula for dislodging the tenacious night waitresses in the
second captain program.
In sum, I find that the first captain program, imple-
mented during the week of February 23, and the second or
revised captain program, implemented on April 5, were de-
signed to cause the night waitresses to quit their jobs with
Respondent. I further find that the announcement of the
second captains program on March 11 amounted to a no-
tice to the bus personnel that they were discharged effective
April 4 and except as to Joyce Roberge, amounted to a
notice of constructive discharge to the night waitresses also
effective no later than April 4. Having found the discrimi-
natory motive in Respondent's design, i.e., to eliminate a
source of union support among its employees, I find, there-
fore, that the February 23 captain system, and the April 5
captain system constituted violations of Section 8(a)(3) and
(1) of the Act. I also find that Respondent constructively
discharged Gloria Harrigan on February 23, 1976, Kathy
Klein on April 2, 1976, and Joyce Roberge on June 5, 1976.
In sum, I find, as alleged in the amended complaint, that
Respondent, by its unlawful conduct described above, vio-
lated Section 8(a)(3) and (I) of the Act by discharging or
constructively discharging the employees listed below in
Appendix "A." I also find that the remarks of George High
and Chip Dennison to the effect that employees would ei-
ther comply with the captain system or would have to leave
their jobs with Respondent were nothing less than attempts
to pressure the night waitresses into quitting their jobs
rather than face the onerous task of complying with the
distasteful captain system. Thus, these warnings were but
further efforts by Respondent to cause the waitresses to
leave Respondent and thus abandon their support for the
Union. I find, therefore, that these two warnings interfered
with, restrained, and coerced employees in the exercise of
their right to support a union, and, therefore, were violative
of Section 8(a)( I ) of the Act.
C. Rules 17 and 31 of the "Emplovee Handbook and
Guide"
Respondent's "Employee Handbook and Guide" for
1976 contains a section entitled "Rules of Operation." The
first page of this section contains the following warning:
Violations of these rules necessarily result in disciplin-
ary action, ranging from reprimand to terminations of
employment, depending upon the nature and severity
of the infraction. Therefore, I must ask that you be-
come thoroughly familiar with the company rules and
regulations.
Among the prohibitions contained in Respondent's rule
book are the following:
17. Wearing pins, or other adornment, that are not
part of the approved uniform.
31. Posting or distributing unauthorized pictures or
literature.
There is no showing that any employee suffered any pun-
ishment for violating either of these rules. Nor is there any
showing of any specific attempt by Respondent to enforce
either of the two rules.
The General Counsel and the Union urged that the two
rules were overly broad in that they appear to prohibit so-
licitation and distribution during nonworking time and in
nonworking areas of Respondent's Holiday Inn. Respon-
dent conceded that rule 31 is ambiguous and could be con-
strued in the manner suggested by the Charging Party and
the General Counsel. As for rule 17, Respondent denied
that the rule violates Section 8(a)(1) of the Act. Further,
Respondent argued that its revocation of rule 31 cured
whatever unfair labor practice it may have committed and
a finding of violation and further remedy would be super-
fluous. I find that both rules trespass upon employee rights
under Section 7 of the Act and that a remedy is warranted
in both instances.
The Board had provided guidance for limiting such rules.
Absent "special circumstances" demonstrating that such a
rule was necessary to maintain production or discipline, the
promulgation of a rule prohibiting employees from wearing
union insignia on an employer's premises is violative of Sec-
tion 8(a)(I) of the Act. Florida Hotel of Tampa, Inc., 137
NLRB 1484, 1486 (1962). Similarly, absent "special circum-
stances" showing that production or discipline require pro-
287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hibition of such distribution, a rule prohibiting employees
prohibiting employees from distributing union literature
during nonworking time and in nonworking areas is viola-
tive of Section 8(a)(1) of the Act Stoddard-Quirk Manufai-
luring Co., 138 NLRB 615. 621 (1962).
Here, the language of the challenged rules appeared to
run afoul of both Board policies. Thus, rule 17 flatly pro-
hibited employees from wearing any "pins, or other adorn-
ments" which would include union buttons. Rule 31. with-
out providing any words of limitation, prohibited
distribution of literature. Thus. an employee could reason-
ably conclude that distributing union literature anytime
and anywhere on Respondent's premises would subject him
or her to punishment. I find, therefore that these rules im-
posed broad limitations violative of Section 8(a)(1) of the
Act. In light of Respondent's other unfair labor practices.
revocation of rule 31 did not militate against the imposition
of a Board remedy directed at curing the continuing effect
of that unlawful rule. Bandag Incorporated, 225 NLRB 72.
82 (1976), and cases cited therein at footnote 17.
D. The Refusal To Recognize the Union
On April 1, Respondent rejected the Union's request for
recognition as the collective-bargaining representative of
the following unit which the parties agreed was appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All full-time and regular part-time food and beverage
department employees employed by the Respondent
at its Perrysburg, Ohio facility, including cooks, salad
help, dishwashers, porters, waitresses, bartenders, and
bus help: but excluding all desk clerks, maintenance
employees, housemen, maids, managers. assistant man-
agers, office clerical employees, all professional em-
ployees, guards, supervisors as defined in the Act, and
all other employees.
Respondent contended that it properly rejected the Union's
request on the ground that the Union did not represent an
uncoerced majority of the employees in the appropriate
unit.
Respondent's payroll covering the appropriate unit for
the week ending April 4, 1976. contained the names of 163
individuals. The parties stipulated to omit the name of em-
ployee Ann Burmeister as she was no longer an employee
on April I. The parties also agreed to add Judith Beebe,
whose name was inadvertently omitted from the payroll list
for the week ending April 4, 1976. The evidence pertaining
to the status of 25 persons whose unit placement status was
disputed is set out and evaluated below.
Jake E. Sweede and Charles Tisdale
The Union contended that employees Jake E. Sweede
and Charles Tisdale should not be included in the unit as of
the date of the demand for recognition. The parties stipu-
lated. and I find, that neither Sweede nor Tisdale was hired
by Respondent until April 3. 1 find, therefore that neither
Sweede nor Tisdale were in the unit as of April 1, the date
of the Union's demand. Accordingly, I shall not include
them in the unit for purposes of determining the Union's
majority status as of April 1.
Jim Steftanelli
Busboy Jim Stefanelli signed an authorization card for
the Union on March 14, 1976. arly in the hearing on this
matter, I rejected the General Counsel's offer of Stefanelli's
authorization card on the ground that his termination date
of April 4 removed him from the unit prior to April 9. the
alleged date of the Union's demand for recognition. How-
ever, thereafter the General Counsel amended the com-
plaint to allege that April I was the date of the Union's
initial demand for recognition. Having fiound that April 1
was the date of the Union's initial demand I have now
reconsidered my ruling on Stefanelli's card. As Stefanelli
was in the unit on April 1. I now receive his authorization
card in evidence as General Counsel's Exhibit 52.
Tony Mercurio
Tony Mercurio signed an authorization card for the
Union on March 15. 1976. two days after he left his em-
ployment in Respondent's banquet department to take up
his enlistment in the United States Army. Thus, as of April
I Mercurio was a member of the United States Army.
Contrary to the Union's contention, the Board has held
that in determining a union's majority status, employees on
military leave shall be excluded from the unit. Lawrence
Rigging, Inc., 202 NLRB 1094. 1101 (1973): Tri-('ount
Tube, Inc.. 194 NLRB 103, 105 (1971). Consequently. in
accordance with Board policy. I conclude that with respect
to the determination of the Union's majority status as of
April I, 1976, Tony Mercurio should be excluded from the
unit.
Kathy Shull and Stephen Tucker
Unit employee Kathy Shull was in Respondent's employ
as of April 1, 1976. However 2 days later, she terminated
her employment. Inasmuch as Shull was a unit employee
on the date of the Union's demand for recognition, I find
that she is properly included in the unit as of that date for
purposes of determining the Union's majority status.
The Union argued that employee Stephen Tucker's name
should be deleted from the list on the ground that his em-
ployment from March 18 until April 4. 1976, was too brief
to give him a sufficient community of interest with the food
and beverage employees to warrant his inclusion in the
unit. The parties stipulated, and I find, that Tucker's first
day of employment by Respondent was March 18, 1976.
and that his last day of employment in the unit was April 4.
1976. There is no showing that Respondent hired Tucker
with any understanding that his tenure would end on April
4. In these circumstances, I find that Tucker was in the unit
on April I for purposes of determining the Union's majority
status on that date. See C'olecraft M/g. Co., Inc.. 162 NLRB
680, 689 1967).
Joan Hahn
The parties stipulated that Joan Hahn's last day of em-
ployment in the unit was April 4, 1976, and I so find. As
288
HOLIDAY INN OF PERRYSBURG, OHIO
Respondent's records show, that Joan Hahn was employed
in the appropriate unit on April , 1976. 1 shall include her
in my determination of the Union's majority status as of
that date.
Gloria Swanson
Respondent hired Gloria Swanson in the nonunit posi-
tion of switchboard operator on March 22, 1976. However,
as of April I and for the week ending April 4, Respondent
employed Swanson as a hostess on its dining room staff and
thus had apparently transferred her into a unit position.
However, in a progress report evaluating her performance
in April, Respondent classified her as a switchboard opera-
tor. Further, Respondent's records reveal that Swanson
worked as a hostess during the weeks ending April 4, 11,
and 18 and then was transferred back to the switchboard.
There is no showing that Respondent issued a written
evaluation of Swanson's performance as a hostess on the
night dining room staff. I find from these circumstances
that Swanson's transfer into the unit was temporary in na-
ture. Accordingly, I shall not include her in the unit for
purposes of determining the Union's majority status as of
April 1.
Michael Stepnick
The Union urged deletion of Michael Stepnick's name
from the unit list on the ground that his name was included
on two departmental lists. The payroll list shows Stepnick
employed both by the night dining room and by the night
kitchen during the week of April 4, 1976. However, Re-
spondent's records showed Stepnick as a busboy in the
night dining room from the week ending February 29, 1976,
until the week ending April 4, 1976. Respondent's records
also show Stepnick as a dishwasher in the night kitchen
during the week ending April 11, 1976. Both classifications
were included in the unit description above. There was no
dispute as to Stepnick's status as a night dining room bus-
boy as of April 1, 1976. I shall, therefore delete Stepnick's
name from the portion of the eligibility list pertaining to the
night kitchen, and include him with the night dining room
employees as of April 1, 1976.
The Replacements
The payroll list included the names of individuals hired
for service assistant positions to replace the night dining
room employees, who were unlawfully discharged or con-
structively discharged effective April 4, 1976. The hiring of
these service assistants as replacements for the night wait-
resses and bus personnel was part of Respondent's unlawful
plan to eliminate the night waitresses and buspersons be-
cause they supported the Union. Under Board policy, the
replacements hired in furtherance of Respondent's unlawful
discrimination are ineligible to participate in the determina-
tion of the Union's status as collective-bargaining repre-
sentative on April 1, 1976. Lock Joint Tool Company, 127
NLRB 1146, 1163 (1960); Sioux City Brewing Company, 85
NLRB 1167-68 (1949). I shall therefore exclude the follow-
ing individuals from the unit for purposes of determining
the Union's majority status as of that date: Sandra L. Rick-
ard, Eduardo Hernandez, Randall Dixon, Michael D. Schi-
avo, Dwight Monroe, Paula Crouse, Mary K. Durham, Al-
lan Kozeni, Rita Coutcher, Sulaiman Aboul Karim, Roger
Bowne, Neil McGilvery. and Shelly Derkin.
Craig Hohler
The parties stipulated, and I find, that at all times mate-
rial to this case, Craig Hohler whose name appears on the
unit payroll for the week ending April 4, 1976, was a super-
visor within the meaning of Section 2(1 1) of the Act. Conse-
quently, I shall exclude Hohler from the unit.
Sandy Baker
On and after March 28, 1976, Respondent employed Ba-
ker as manager of a small bar known as the Hide-Away
which is an extension of Respondent's bar service. Al-
though Baker was charged with operating the bar she did
not have any subordinate. There was no showing that Re-
spondent had assigned subordinates to assist Baker's prede-
cessor. Nor was there any showing that Respondent
planned to expand the Hide-Away staff to include subordi-
nates. Thus, notwithstanding that Respondent classified the
position of Hide-Away manager as a supervisory position,
there was no showing that Baker's predecessor had ever
exercised, or that Respondent expected Baker to exercise
any of the indicia of supervisory authority set out in Section
2(11) of the Act.' Accordingly, contrary to the Union's po-
sition, I find that Baker was not a supervisor and will in-
clude her in the unit for purposes of determining the
Union's representative status as of April , 1976. Montgom-
en' Ward & Co., Incorporated, 198 NLRB 52, 58 (1972).
Helen Mulrooney
The Union and the General Counsel would exclude
Head Waitress Helen Mulrooney on the ground that at all
times material to this case, she was a supervisor within the
meaning of Section 2(11) of the Act. Respondent claimed
that Mulrooney was not a supervisor and would include her
in the unit. The relevant facts as of April , 1976 were as
follows:
Mulrooney, who was hourly paid and received 25 cents
per hour more than the highest paid banquet waitress,
worked under the direction of Banquet Department Super-
visor Alice Wisbon. As a rule, Wisbon scheduled waitresses
and bus personnel for banquet work. From time to time,
Mulrooney prepared the work schedule for banquet wait-
resses and bus personnel. However, Mulrooney assigned
them to stations when they reported for work and had dis-
cretion to change employees' work assignments during a
'Sec. 2( 1) of the Act reads:
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exercise
of such authority is not a merely routine or clerical nature, but requires
that use of independent judgment.
289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
banquet. Although she worked along with the waitresses at
a banquet, Mulrooney directed the service of food and re-
ported unsatisfactory waitresses to Wisbon. She also
checked the preparation of the food. Scheduled employees
reported to her when they were unable to appear for work.
Upon receiving such a report Mulrooney, on her own initia-
tive, adjusted the schedule or the assignments to meet the
problem created by absence. She occasionally gave written
job evaluations for banquet waitresses and bus personnel.
Mulrooney did not attend staff meetings with department
managers and other undisputed supervisors. I find from
Banquet Department cook Delores Mercurio's undisputed
testimony, that during 1976 Mulrooney reprimanded 3 em-
ployees and sent an employee home from work. I find from
the foregoing that as of April 1, 1976, Helen Mulroonev
responsibly directed the work of banquet department em-
ployees. Accordingly, I find that she was a supervisor
within the meaning of Section 2(11) of the Act and shall
exclude her from the unit.
Ruth Roberts
The Union and the General Counsel urge the exclusion
of cashier Ruth Roberts from the alleged bargaining unit on
the ground that she was a supervisor within the meaning of
the Act. Respondent included her on the payroll list for the
period ending April 4 as a member of the day restaurant
staff.
I find from the testimony of Innkeeper Chip Dennison
that throughout 1976 Respondent employed Ruth Roberts
as head cashier. I also find from his testimony that Roberts,
while so employed, made out work schedules for her fellow
cashiers, trained new cashiers, interviewed new hires, and
had authority to hire new cashiers after consultation with
Dennison. Her hourly wage was 50 to 75 cents higher than
the other cashiers. During 1976, Roberts exercised her au-
thority over a complement of cashiers usually numbering
three.
I find from the uncontradicted testimony of cashier Judy
Beebe, that Roberts scheduled cashiers, assigned them their
days off, and had authority to chaige the work schedule to
satisfy a cashier's request. Cashiers unable to report for
work as scheduled were required to notify Roberts, who
then made the appropriate change in the schedule.
Roberts also prepared quarterly evaluations of individual
cashier's work performance and signed such forms next to
the printed work "supervisor." According to Director of
Operations Loss, Respondent considered such evaluations
in determining whether a cashier would receive a raise in
salary. Respondent's policy was to distribute such evalu-
ation forms only to the supervisor of the employee to be
evaluated. I find from the foregoing that throughout 1976,
Ruth Roberts responsibly directed the work of other cash-
iers. Accordingly, I find that Roberts was a supervisor
within the meaning of Section 2(11) of the Act and shall
therefore exclude her from the unit.
Mary Happeny
Mary Happeny, who Respondent employed since Janu-
ary 1972, was designated a captain from February 23, until
July 5, 1976. Happeny also functioned as a waitress when
the captain program was suspended between March 8 and
April 4, 1976. Until February 23, Happeny had been a
night dining room supervisor. As a captain, Happeny was
responsible for the performance of three or four service as-
sistants on the night dining room staff under George High,
the night dining room manager. As a captain, Happeny had
authority to recommend the discharge of unsatisfactory ser-
vice assistants to High. Whether such recommendations
would have been effective was not shown. Happeny was
expected to evaluate the service assistant's performance and
also had authority to recommend wage increases. Again
there was no showing that such a recommendation would
have been effective. However, under the second captain
program, Happeny had discretion to reward service assis-
tants by paying to them portions of gratuities left by restau-
rant patrons based upon her evaluation of their individual
performances.
Happeny also scheduled service assistants on a weekly
basis. In the event a scheduled service assistant was absent
or contemplated absence a captain such as Happeny had
authority to direct a substitute service assistant to come to
work. In an emergency, the captain also had authority to
grant service assistants time off from work either before the
service assistant came to work or during work.
Respondent's captains were responsible to direct correc-
tive action including the provision of a free meal if a service
assistant made a mistake in serving an order. In addition,
the captains had authority to discipline service assistants.
Manager George High had weekly meetings with his cap-
tains to criticize system's operation during the period when
it was in effect.
I find that under second captain program, Respondent's
captains had authority to reward and responsibly to direct
the service assistants in their work. The exercise of that
authority required the use of independent judgment. I
therefore find that Respondent's captains, under the April
5, 1976 captains program, were supervisors within the
meaning of Section 2(11) of the Act. As Happeny was a
designated captain on April 1. 1976, I shall exclude her
from the unit.
Gloria Harrigan
Respondent employed Gloria Harrigan as a night dining
room waitress from September 30, 1974, until she quit on
February 23, 1976, in response to Respondent's implemen-
tation of its first captain program. The amended complaint
alleged, and I have found above, that Respondent construc-
tively discharged Harrigan in violation of Section 8(a)(3)
and (I) of the Act on February 23, 1976. Contrary to Re-
spondent's contention, under Board policy, Harrigan's sta-
tus as a discriminatee entitled her to participate in the selec-
tion of a representative for the bargaining unit sought by
the Union on April 1, 1976. Commodore Watch Case Co.,
Inc., 114 NLRB 1590, 1599 (1955). I shall include Gloria
Harrigan in that unit.
Joyce Roberge
Respondent hired Joyce Roberge in May 1967 as a night
dining room waitress. Roberge's last active day in that posi-
290
HOIIDAY INN OF PERRYSBURG, OHI0
tion was on March 6, 1976. Thereafter, because of illness.
Respondent placed Roberge on a leave of absence effective
from March 21, 1976. Respondent terminated her leave sta-
tus on August 22. 1976. Further, as I have found above, her
unlawful constructive discharge occurred on June 5. 1976.
However, under Board policy, Roberge's leave of absence
status on April I entitled her to inclusion in the unit for
purposes of determining the Union's majority status. E. H.
Sargent and Co., 99 NLRB 1318. 1319-20 (1952). Accord-
ingly, I shall include Roberge in the unit.
Monique Perrin and Michelle Wagener
The General Counsel and the Union would exclude
Monique Perrin from the unit on the grounds that her em-
ployment as a lifequard deprived her of a sufficient commu-
nity of interest with the food and beverage employees to
warrant inclusion with them in the unit sought by the
Union. The Union would also exclude Michelle Wagener
on the same ground. There was no dispute as to the inclu-
sion of Karen Gould, Diane Powell, and Linda S. Cocke
who were employed with Perrin and Wagener in a portion
of Respondent's facility known as the French Quarter dur-
ing the week ending April 4, 1976.
The French Quarter is an 85' x 140' indoor area adja-
cent to a 25' x 50' swimming pool. This facility includes a
snack bar, tables and chairs, a whirlpool bath, a putting
green, a pool table, ping-pong tables, and other amuse-
ments.
The five employees servicing the French Quarter were
under the immediate supervision of Innkeeper Chip Denni-
son. All five employees were hourly paid. Of the five em-
ployees included in the French Quarter on April I. 1976.
three, Karen Gould, Diane Powell, and Linda S. Cocke,
were classified as snack bar attendants. The duties of the
snack bar attendants included the service of beverages and
food and the cleanup of tables. Respondent classified Perrin
and Wagener as pool attendants and from time-to-time re-
quired that they wear bathing suits or tee shirts bearing the
inscription "French Quarter Lifeguard." Respondent also
required Perrin and Wagener to act as lifeguards during
periods when guests were using the pool. However, both
spent substantial portions of their working time performing
duties similar to those of the snack bar waitresses.
In sum, I find that as of April 1,. 1976. Perrin and Wagen-
er spent a substantial portion of their work time performing
functions similar to those of agreed unit employees with
whom they shared common immediate supervision, a com-
mon work area, and similar conditions of employment.
From these circumstances, I further find that Perrin and
Wagener enjoyed a sufficient community of interest with
Gould, Powell, and Cocke to warrant inclusion of all five in
the same unit. Consequently, I shall include Perrin and
Wagener in the unit as of April 1. 1976.
In sum, I find that as of April 1. 1976. the following
employees should not be included in the unit:
Jake A. Sweede
Helen Mulrooney
Craig Hohler
Charles Tisdale
Ruth Roberts
Sandra L. Rickard
Randall Dixon
Rita Coutcher
Michael Schiavo
Sulaiman Aboul Karim
Dwight Monroe
Gloria Swanson
Mary K. Durham
Edduardo llernandez
Allen Kozeni
Ann Burmeister
Mary Happen?
Roger Bowne
Paula Crouse
Neal McGilvery
Shelley Derkin
I also find that the folloing named employees not on Re-
spondent's payroll list for the week ending April 4. 1976.
were in the unit as of April 1, 1976: Judith Beebe. Gloria
Harrigan. and Joyce Roberge. Consistent with my finding
that Michael Stepnick was night dining room employee as
of April I. I shall delete his name from the portion of the
payroll list pertaining to the night kitchen. From the Iorc-
going additions and deletions. I find that as of April 1.
1976. the appropriate unit herein included 144 employees
whose names are listed below in Appendix "B."
At the hearing. the General Counsel otfered signed au-
thorization cards in support of the Union's claim that as of
April 1, 1976. it had achieved majority support in the bar-
gaining unit. I rejected the authorization cards of emplo,-
ees Tony Mercurio. Jim Stefanelli. and Jennifer Teschner. I
have now found that Stefanelli was eligible to participate in
the selection of a bargaining representative on April 1., the
date of the Union's initial demand for recognition and bar-
gaining. I now find further that his authorization card, ex-
ecuted on March 14. 1976, was valid and will be counted in
determining the Union's majority status as of April I. 1976.
Respondent challenged 14 other cards signed by unit em-
ployees. The evidence pertaining to the validity of these
disputed cards is set out and evaluated below.
Diana Dauer
Employee Diana Dauer signed her authorization card on
April 9. eight days after the critical date. I find that l)auer's
card came too late to support the Union's claim ot majority
on April I. Thereftre her card will not be counted.
Cathy Craig, nee Jacobs
Employee Cathy C('raig using her maiden name. Jacobs.
executed an authorization card in favor of the Union on
April 5 1976. Accordingl. her card can not be counted in
support of the Union's demand for recognition 4 days ear-
lier. I shall therefore exclude it.
Bonnie Moyes
Bonnie Moyes signed an authorization card in favor of
the Union on April 3 1976. Thus, as her card cannot be
counted in support of the Union's claim of majority status
on April . 1976. 1 shall exclude it.
Joyce Roberge
Employee Joyce Roberge signed an authorization card
supporting the Union on March 31. 1976. However. it ap-
pears from a postmark on the card that it was not mailed to
the Union until April 3. 1976. 2 days after the Union's
claim of majority status. Under Board policy, notwith-
standing the late mailing of the card, its signing by Roberge
on March 31. 1976. was a valid designation of the Union to
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represent her as of the date of her signature, International
Metal Specialties, Inc., 172 NLRB 1338, 1339, fn. 7, (1968)
enfd., 435 F.2d 870, 872 (2d Cir. 1970); Retail Clerks Inter-
national Association. AFL-CIO, 153 NLRB 204, 226-227
(1965).
Respondent challenged the timely executed authorization
cards of employees Terry Saunders, Patricia Lehmann. Le-
Vonne Green, Brian Brandenburg, Lucianne Bortel, Patri-
cia Soldwish, Thomas Goede, Kevin Smith, Brian L. Over-
myer, and Sue Mutchler on the ground "that they were told
that the sole reason for the signing of the card was to enable
a union to obtain another Election (sic)." (Respondent's
brief.)
The challenged authorization cards contained no refer-
ence to an election. Instead, each card declared its purpose
as follows:
I hereby authorize the above mentioned Union affili-
ated with the Hotel and Restaurant Employees and
Bartenders International Union to represent me as my
bargaining agent in all relations with my employer.
and to negotiate for me in regard to wages. hours of
employment and working conditions.
Under the Board's doctrine in Cumberland Shoe Corpora-
tian, 144 NLRB 1268, 1269 (1963), where, as here, the au-
thorization card unambiguously recited that the signer au-
thorized the specified union to represent the employee for
purposes of collective bargaining and made no mention of
an election, that card would be counted in favor of the
specified union unless it was shown that the solicitor told
the employee that the sole purpose of the card was to ob-
tain a Board-held election. The Supreme Court has ex-
pressed its approval of the Board's policy as follows:
In resolving the conflict among the circuits in favor
of approving the Board's Cumberland rule, we think it
sufficient to point out that employees should be bound
by the clear language of what they sign unless that
language is deliberately and clearly conceled by a
union adherent with words calculated to direct the
signer to disregard and forget the language above his
signature. There is nothing inconsistent in handing an
employee a card that says the signer authorizes the
union to represent him and then telling him that the
card will probably be used first to get an election.
[N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
606-607 (1969)].
Of the 10 cards, only that of Terry Saunders runs afoul of
the Cumberland doctrine. For Saunders' credited testimony
shows that the solicitor on behalf of the Union told him
that the purpose of the authorization card "was just to get
another vote, to be able to get another vote." (Emphasis
supplied.) I find that the use of the word "just" was calcu-
lated to give Saunders the impression that the only purpose
of the card was to obtain a representation election. This
contradiction of the stated purpose of the card was suffi-
cient to nullify Saunders' apparent designation of the
Union as his bargaining agent. I shall not count Saunders'
authorization card. Levi Strauss & Co., 172 NLRB 732, 733
(1968).
Each of the remaining nine authorization cards satisfies
the Cumberland doctrine. None of the nine signatories was
told that his or her card would be used only for the purpose
of securing a Board representation election. There was no
showing that in any of the nine instances the solicitor con-
tradicted the language of the card or told the employee to
disregard it. Instead, in each instance, the solicitor stated in
substance that a purpose of the card was to secure such an
election. That the solicitor in each instance did not restate
the bargaining authorization expressed clearly by the card
did not establish that the Union was abandoning or ignor-
ing that authorization. Consequently, I find that the autho-
rization cards signed by Patricia Lehmann, LeVonne
Green, Brian Brandenburg, Luciann Bortel, Patricia
Soldwish, Thomas Goede, Kelvin Smith, Brian L. Over-
myer, and Sue Mutchler to be valid for purposes of deter-
mining the Union's representative status. Hedstroni Com-
pany, 223 NLRB 1409, 1410-11 (1976).
For the reasons set forth above, I find that Respondent
demonstrated the invalidity of only four of the Union's 84
authorization cards described above. Thus, valid authoriza-
tion cards of a majority of 80 of the 144 bargaining unit
employees supported the Union's unsuccessful request for
recognition and bargaining on April I, 1976. See Appendix
"C."
I agree with the contention of the C'harging Party and the
General Counsel that it was highly improbable that the
Board could conduct a fair election among Respondent's
employees in light of Respondent's serious unfair labor
practices including the unlawful constructive discharge of
25 unit employees by the close of business on April 4, 1976.
In these circumstances, I find that the Union's authoriza-
tion cards were the most reliable indication of the desires of
the unit employees concerning representation. The Union
had obtained authorization cards from a majority of the
employees in the appropriate unit by April 1, 1976. the date
it demanded recognition. Respondent, which had engaged
in a succession of unfair labor practices beginning with the
implementation of the first captain system on February 23,
1976. refused the Union's demand. I find therefore that Re-
spondent violated Section 8(a)(5) of the Act by this refusal
to recognize the Union on and after April 1, 1976. Albertson
Manufacturing Compans. 236 NLRB 663 (1978).
E. Delores Mercurio and Elizabeth Hollers
Respondent hired Delores Mercurio and Elizabeth Hol-
lers as banquet cooks on October I, 1973. Mercurio ended
her employment in that position by resignation on July 6,
1976. Hollers' employment by Respondent ended in dis-
charge on or about July 29, 1976.
Mercurio and Hollers actively supported the Union. On
March 14, 1976, both signed authorization cards. There-
after each wore a union button on her uniform until she left
Respondent's employ. Both were active participants in the
Union's organizing campaigns in 1974, 1975, and 1976.
Mercurio and Hollers passed out a total of eight union au-
thorization cards during the 1976 campaign. They attended
all three of the Union's meetings held respectively on
March 10, 14, and 31 with Respondent's employees. They
also joined in the Union's picketing of Respondent's facili-
ties on April 5 and 7, 1976.
It appears that by mid-March, Respondent at least sus-
pected that Mercurio and Hollers were union activists.
292
HOLIDAY INN OF PERRYSBURG. OHIO
Thus, I find from Mercurio's testimony that on March 17.
1976. Director of Operations Donald Loss asked her
whether she and her cousin, Elizabeth Hollers, were trying
to have a union come in. Mercurio replied that she was not
so engaged, and suggested that he look elsewhere.'
Later in March. Mercurio and Hollers were present in
the kitchen when Banquet Manager Alice Wisbon told
Head Waitress Helen Mulrooney that the bus personnel
would be dismissed if Wisbon found out that they were
signing union authorization cards. Wisbon made no at-
tempt to take Mulrooney out of the banquet kitchen.
On April 5. 1976. a number of night dining room wait-
resses with union signs began picketing Respondent's facil-
ity in response to the implementation of the second captain
program. That same evening. Mercurio and Hollers joined
the pickets after their shift ended. Two days later. Mercurio
and Hollers returned to the picket line.
During the picketing, on April 7. Banquet Kitchen Su-
pervisor Curtis White and Innkeeper Chip Dennison ap-
proached the picket line with cameras and took pictures of
the pickets. White directed his photography at pickets Mer-
curio and Hollers.
Turning to Mercurio's and Hollers' conditions of employ-
ment I note the following:
Beginning January and throughout 1976. Respondent
scheduled Mercurio. Hollers, and its other banquet cooks to
work split shift, as it had done the previous year. This
scheduling depended upon variations in the banquet sched-
ule. Mercurio and Hollers had both worked split shifts in
previous years.
On April 21, Respondent hired Randy Fox as a banquet
cook. Respondent's records show that its banquet cooks
worked the following hours during the period from and in-
cluding the week ending February 8. 1976. prior to Fox's
rehire and up to an including the week ending May 16.
1976. about 4 weeks after his hire:
Holiday Inn of Perrysburg-Banquet Cook's Hours-
Week ending 2/8/76-5/16/76
Dates Kern
2/8
2/15
2/22
2/29
3/7
3/14
3/21
3/28
38.9
47.5
19.5
22.8
45.1
21.3
34.9
39.4
Over- Hol- Mer-
meyer lers curio
51.6
50.9
32.3
33.6
39.7
36.0
42.8
42.8
71.1
51.7
40.4
30.3
45.7
30.6
49.4
45.9
Fox
71.1
52.3
45.2
32.1
46.8
31.0
28.3
43.5
4/4
4/11
4/18
4/25
5/2
5/9
5/16
39.6
30.6
20.8
34.6
15.2
33.9
29.9
47.1
43.8
19.7
40.9
17.2
31.0
25.4
Total 474 544.8
51.0
45.2
24.7
29.0
12.7
24.4
26.1
56.0
37.2
19.8
24.4
13.0
28.4
32.0
22.7
13.5
28.3
31.6
588.2 561.1 96.1
At the end of April. Curt White changed that Banquet
Department's operational instructions and pasted them in
the banquet kitchen. He told Hollers that violation of the
new instructions would result in a warning slip. There is no
evidence that Hollers thereafter received a warning slip
charging her with violation of those instructions.
In the middle of May, Hollers and Mercurio asked White
not to schedule them before 3 p.m. They gave as their rea-
son that it was too costly to drive to work in the morning
for an hour or two, and then return for a few more hours in
the afternoon. Soon after their request, White warned Mer-
curio that she would suffer a substantial reduction in total
hours per week if she insisted upon this limitation on her
availability. There is no showing that other banquet cooks
asked for a similar restricted schedule.
Beginning in May and through July, Respondent experi-
enced its usual slow banquet season. By the middle of June,
all of the banquet cook's were drastically reduced.
On June 14, 1976, White and Food and Beverage Man-
ager Kovacik approved Hollers' request for a leave of ab-
sence effective that day until August 1, 1976, when Hollers
anticipated returning to her job.
Mercurio credibly testified, that by July I, White's atti-
tude toward her had become hostile. Thus, in early July,
White told Dishwasher Dan Williams, while pointing at
Mercurio. "You see that bitch'? I am going to get rid of
her."
In a letter to Loss and Dennison dated July 6, 1976, Mer-
curio announced her resignation, effective that same day, as
follows:
Due to my husband having no income & (sic) my get-
ting proper help for my family from the State. (sic) I
regret that I have to terminate my job with Holiday
Inn Perrysburg today July 6, 1976. 1 myself need an
operation and can't afford it any other way. I regret
leaving, (sic) you, the friends I've made but please un-
derstand. it's for the above reasons only.
Thank You
6 1 did not credit Donald Loss' estimony to the effect that prior to April 2
he did not speak to any employees about the Union's organizing activities
among Respondent's employees. As I have previously noted. Loss impressed
me as being a less than candid witness, more interested in protecting Respon-
dent than in providing his full recollection. Here, instead of an attempt to
recall specific conversations with employees, Loss made a sweeping self-
serving denial. In contrast, Mercurio in relating her recollection of the inci-
dent testified in a full and forthright manner. Consequently. I have credited
Mercuno's testimony in this regard.
/s/Delores Mercurio
Delores Mercurio
However, at the hearing in this case. Mercurio offered a
different reason for her resignation. She testified on direct
examination that White's changed attitude coupled with
onerous and disparate conditions of employment caused
her to resign. This testimony also conflicted with assertions
293
)F.DECISIONS OF NATIONAl. I.ABOR RELATIONS BOARI)
in her pretrial affidavit to the effect that she resigned on her
doctor's advice to have necessary surgery. It also conflicted
with her frank concession under cross-examination that the
real reason for her resignation was to obtain state assistance
needed to pay for the surgery. In light of her letter and
affidavit I have credited her testimony on cross-examina-
tion.
The last day Hollers worked for Respondent was June
14, 1976. Thereafter, at her request she was on a leave
which was to end on August 1, 1976.
On July 31, Hollers phoned White about her proposed
schedule for August. White told Hollers that she was not on
the schedule, and that he and Kovacik had agreed to let her
go. White ended the conversation, saying, "I am going to
have to let you go, you've just lost too much time." White
added that if Kovacik wanted her back, he would let her
know.
On August I. Hollers called dishwasher Mike Halloran,
and inquired about the schedule. Halloran told Hollers that
he had heard that she was "fired." On August 6, Hollers
applied for unemployment compensation, stating that her
reason for not working was she had been fired.
On or about August 12. Hollers received a letter of rein-
statement for Chip Dennison. Enclosed was a banquet
kitchen schedule. The letter stated that because of some
"misunderstanding," Respondent had not been able to
schedule her, but that Hollers could return the following
week. Shortly after Dennison's letter, Curt White made two
phone calls to Hollers' home. White's first conversation was
with Holler's husband, who stated that he was not sure of
Hollers' plans. On a second occasion, White talked to Hol-
lers, who told him that she had other plans. By letter of
August 5, 1976. to which was attached a banquet kitchen
schedule, Respondent asked Hollers to indicate the days
and hours she could work. She did not respond. Nor did she
reply to Respondent's letter of August 12, 1976, in which
Chip Dennison asked if she wished to be terminated.
The General Counsel and Charging Party urged that Re-
spondent violated Section 8(a)(l) and (3) of the Act by re-
ducing Mercurio's and Hollers' hours of work, so that nei-
ther could continue working for Respondent, and that
Respondent thereby constructively discharged Mercurio, all
because of their activity on the Union's behalf. Respondent
contended that such reductions in hours as the two employ-
ees suffered were at the employees' own request, and that
Mercurio resigned for reasons other than her reduced
hours. I find that the weight of the evidence does not pre-
ponderate in favor of the General Counsel and Charging
Party's contention.
Respondent at least suspected that Mercurio and Hollers
were engaged in union activities well before they suffered a
reduction in hours. On March 17, Respondent evidenced an
awareness that Mercurio and Hollers were active in support
of the Union. On that day, Loss singled Mercurio out for
questioning about whether she and Hollers were assisting
the Union's organizing campaign. Later that month, Ban-
quet Manager Wisbon made certain that Hollers and Mer-
curio heard her threaten to discharge bus personnel who
signed union authorization cards. Aside from showing Re-
spondent's hostility toward Hollers and Mercurio's sus-
pected union activity, I find l.oss' interrogation, and Wis-
bon's warning violated Section 8(a)(l) of the Act.7
Finally, on the evening of April 7, when both joined the
Union's picket line outside Respondent's facility, Innkeeper
Dennison and their immediate supervisor, White, com-
menced photographing the pickets, paying special attention
to Hollers and Mercurio. Significantly, there was no show-
ing that Respondent's photography was occasioned by
picket line misconduct. Thus, photographing of Mercurio
and Hollers as they picketed violated Section 8(a)( 1) of the
Act. eroy E. Craw, Jr. e al.. dh/a Craw & Son, 227
NLRB 601, 607 (1976).
Granted that Respondent's union animus was directed at
Mercurio and Hollers, the attempt to link that animus with
their reduced hours and Mercurio's resignation falls short. I
recognize as shown above, that Respondent was not above
devising ways of' ridding itself of prounion employees.
However, the admissions of alleged discriminatees Mercu-
rio and Hollers revealed that their reductions in hours in
the spring of 1976 followed their request to he scheduled for
work only after 3 p.m.. thus eliminating them from oppor-
tunities to work on breakfast banquets and luncheons.
Moreover, irrespective of Respondent's real reason for hir-
ing Randy Fox, there has been no showing that Mercurio
and Hollers lost hours because of his hiring. Absent was
any threat or suggestion by White or other members of
management that Respondent intended to inflict reduced
hours upon them as punishment for supporting the Union.
In sum, the evidence casts considerable doubt upon the
propositions urged by the General Counsel and Charging
Party that union animus moved Respondent to curtail Hol-
lers and Mercurio's working hours.
As for Mercurio's resignation, her testimony on cross-
examination and her letter announcing her resignation re-
vealed that she took this step not because of the condition
of employment imposed by Respondent. Instead in her let-
ter, Mercurio attributed her departure to her plan to obtain
public assistance for contemplated surgery.
In conclusion, I find that a preponderance of the evi-
dence does not support the allegations that Hollers and
Mercurio suffered discriminatory treatment at Respon-
dent's hands.
IV. 1111i FII: I 01F 111ii UNFAIR ABOR RA11( iS UPON
(OMMER( I
The activities of Respondent set forth in section II1,
above, occurring in connection with its operations de-
scribed in section I above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
CON(I.L'SIONS OF LAW
I. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act, engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
7 Although not alleged as siolations in the amended complaint. these inci-
dents were lully litigated.
294
HOLIDAY INN OF PERRYSBURG. OHIO
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent interfered with, coerced, and restrained
its employees in the exercise of the rights guaranteed them
in Section 7 of the Act, thereby committing unfair labor
practices prohibited by Section 8(a)(l) of the Act, by:
a. Threatening to terminate its restaurant operation
rather than bargain with a union.
b. Threatening to discharge employees because they
signed union authorization cards.
c. Interrogating employees regarding their union activi-
ties and sentiments and the union activities and sentiments
of other employees.
d. Promulgating and maintaining an unlawful no-solici-
tation rule and an unlawful no-distribution rule.
e. Threatening to get rid of employees because they sup-
ported the Union.
f. Engaging in surveillance by photographic employees
engaged in picketing on behalf of the Union.
g. Telling employees that they must work under the cap-
tain system or quit their employment with Respondent.
h. Promulgating and maintaining a rule prohibiting its
employees from wearing union buttons, or other union
campaign adornment while on Respondent's premises.
4. Respondent discriminated with respect to employees'
hire and tenure of employment, thereby discouraging mem-
bership in a labor organization and committing unfair labor
practices prohibited by Section 8(a)(3) and (I) of the Act.
by imposing more onerous conditions of employment upon
its night dining room employees in the form of a captain
system for servicing patrons, and by constructively dis-
charging night dining room waitress Gloria Harrigan on
February 23, 1976, night waitress Kathy Klein on April 2,
1976, and night waitress Joyce Roberge on June 5, 1976.
and by discharging or constructively discharging the follow-
ing night dining room employees on April 4, 1976: Nancy
Artz, Glendine Berndt, Karyn Ciprian. Betty Cox, Inez Fa-
Ilan, Sharon Hess, Janet Kozlowski, Victoria Langlois,
Terry Lynott, Bonnie McGeorge, Julie McKaig, Sue Myer,
Michael Miller, Doris Mullins, Doug Obensbain, Gene-
vieve Paternite, Stephen Presti, J,,yce Rechtine, Patricia
Roberts, Marge Rollins, Florence Taylor, Tim Zirke, and
Jim Stefanelli.
5. Since April 1, 1976, a majority of the employees in the
following appropriate unit have designated the Union as
their exclusive representative in that unit for purposes of
collective bargaining:
All full-time and regular part-time food and beverage
department employees employed by the Respondent at
its Perrysburg, Ohio, facility, including cooks, salad
help, dishwashers, porters, waitresses, bartenders and
bus help but excluding all desk clerks, maintenance
employees, housemen, maids, managers assistant man-
agers, office clerical employees and all professional em-
ployees, guards and supervisors as defined in the Act
and all other employees.
6. Respondent, by refusing on and since April 1. 1976, to
recognize and bargain with the Union as the representative
of its employees in the appropriate unit, has refused and is
refusing to bargain in good faith and thus has committed.
and is committing, unfair labor practices prohibited by Sec-
tion 8(a)(5) and (1) of the Act.
7. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. Respondent has not committed any other unfair labor
practices except as noted above.
THl- REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices. I shall recommend that
it cease and desist therefrom and take affirmative action
necessary to effectuate the purposes of the Act. I shall also
recommend that Respondent be ordered to terminate the
captain program, and restore its night dining room opera-
tions to the waiter-waitress-bus personnel system as that
system existed prior to February 23, 1976. I shall further
recommend that Respondent be ordered to offer the em-
ployees, named in the portions of this decision entitled Con-
clusions of Law, and Appendix "A" immediate and full
reinstatement to their former positions in the restored night
dining room operations, or if those positions are not avail-
able, to substantially equivalent positions without prejudice
to their seniority or other benefits and privileges. I shall
recommend that Respondent be ordered to make these em-
ployees whole for any losses of pay and tips they may have
suffered by payment to each of the sums they would have
earned but for the discrimination against them, with inter-
est thereon to be computed in the manner described in
F W. Woolworth Companlv, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation. 231 NLRB 651 (1977).? I further rec-
ommend that Respondent be required to preserve and
make available to Board agents, upon request, all pertinent
records and data necessary to analyze and determine what-
ever backpay may be due.
Having found that by April I,. 1976. a majority of Re-
spondent's employees in an appropriate bargaining unit
had authorized the Union to represent them in collective
bargaining with the Respondent, and having found that Re-
spondent committed serious and extensive unfair labor
practices so that it now seems unlikely, if not impossible
that a fair election under Board auspices could be held. I
recommend that Respondent be required to recognize and
bargain with the Union as the representative of those em-
ployees, effective April 1, 1976. N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969).
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER9
The Respondent. Motor Inn of' Perrysburg, Inc.. d/b/a
Holiday Inn of Perrysburg. Ohio, its officers, agents, succes-
sors. and assigns, shall:
8 See, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
9 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, he adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. Cease and desist from:
(a) Interrogating employees concerning their member-
ship in, sentiment toward, and activities on behalf of, Hotel
and Restaurant Employees and Bartenders Union. Local
868, AFL-CIO, or any other labor organization.
(b) Engaging in surveillance of employees engaged in
lawful picketing on behalf of Hotel and Restaurant Em-
ployees and Bartenders Union, Local 868. AFL CIO, or
any other labor organization.
(c) Threatening employees with the discharge or onerous
conditions of employment or other economic reprisals be-
cause of their support for Hotel and Restaurant Employees
and Bartenders Union, Local 868, AFL-CIO, or any other
organization.
(d) Promulgating, maintaining, giving effect to or entbrc-
ing any rule which prohibits employees from distributing
literature in nonworking areas, on nonworking time, relat-
ing to matters involving the exercise by employees of their
rights under Section 7 of the National Labor Relations Act.
as amended.
(e) Promulgating, maintaining, given effect to or enforc-
ing any rule prohibiting employees from wearing buttons.
pins or other adornment, relating to matters involving the
exercise by employees of their rights under Section 7 of the
National Labor Relations Act, as amended.
(f) Telling employees that quitting their jobs is the only
alternative to complying with more onerous conditions of
employment imposed by Respondent to interfere with their
support of an organizing campaign conducted by Hotel and
Restaurant Employees and Bartenders Union, Local 868.
AFL-CIO, or any other labor organization.
(g) Implementing a captain system or any other system
for conducting business in its night dining room operations.
or otherwise imposing more onerous conditions of employ-
ment on its employees because they support or have sup-
ported Hotel and Restaurant Employees and Bartenders
Union Local 868. AFL-CIO, or any other labor organiza-
tion.
(h) Constructively discharging or otherwise discriminat-
ing against employees because they support or have sup-
ported Hotel and Restaurant Employees and Bartenders
Union, Local 868, AFL-CIO, or any other labor organiza-
tion.
(i) Refusing to recognize or bargain collectively with Ho-
tel and Restaurant Employees and Bartenders Union, Lo-
cal 868, AFL-CIO as the exclusive bargaining representa-
tive of the employees in the following appropriate
bargaining unit:
All full-time and regular part-time food and beverage
department employees employed by the Respondent at
its Perrysburg, Ohio, facility, including cooks, salad
help, dishwashers, porters, waitresses, bartenders and
bus help but excluding all desk clerks, maintenance
employees, housemen, maids, managers, assistant man-
agers, office clerical employees and all professional em-
ployees, guards and supervisors as defined in the Act.
and all other employees.
(j) In any other manner interfering with. restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Rescind and discontinue the captain system and re-
store the night dining room operations to the system known
as the waiter-waitress-busperson system. as it was, prior to
February 23. 1976.
(b) Offer to the employees listed below in Appendix "A"
immediate and full reinstatement to their respective former
positions of employment as waiters, waitresses, or bus per-
sonnel in Respondent's night dining room department, dis-
missing if necessary anyone who may have been hired or
assigned to perlbrm their functions in Respondent's night
dining room operations, and if their respective former posi-
tions do not exist. to substantially equivalent positions with-
out prejudice to their seniority or other rights or privileges,
and make them whole for any loss of pay they may have
suffered as a result of the discrimination each has suffered,
in the manner set forth above in the section entitled "The
Remedv."
(c) Preserve and, upon request. make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Upon request, bargain with Hotel and Restaurant
Employees and Bartenders Union, Local 868, AFL-CIO. as
the exclusive representative of the employees in the appro-
priate unit described above in respect of rates of' pay,
wages, hours of employment and other conditions of em-
ployment and if an understanding is reached embody such
understanding in a signed agreement.
(e) Post at Respondent's Perrysburg. Ohio facility copies
of the notice attached hereto marked "Appendix D."0 Cop-
ies of said notice, on forms provided by the Regional Direc-
tor for Region , after being duly signed by an authorized
representative of Respondent. shall be posted by Respon-
dent immediately upon receipt thereof for a period of 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered. defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHIER ORDERED that unfair labor practices al-
leged in the complaint but not specifically found herein are
hereby dismissed.
'° In the event that this Order is enforced by a Judgment of the 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 Judg-
menl of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX A
Captain Program Discriminatees
Nancy Artz
Glendine Berndt
296
Julie McKaig
Sue Myer
HOLIDAY INN OF PERRYSBURG. OHIO
Karyn A. Ciprian
Betty Cox
Inez Fallon
Gloria Harrigan
Sharon Hess
Kathy Klein
Janet Kozlowski
Victoria Langlois
Terry Lynott
Bonnie McGeorge
Tim Zirke
Michael Miller
Doris Mullins
Doug Obenshain
Genevieve Paternite
Stephen Presti
Joyce Rechtine
Joyce Roherge
Patricia Roberts
Marge Rollins
Florence Taylor
Jim Stefanelli
APPENDIX B
Dorothy R. Harvey
Charlotte Morris
Suzanne L. Townsend
Dawn Hurst
John Kern
Mary Calevro
Mary Fultz
Virginia Keeton
Mary Smetana
Ellie Paterson
Beth Paterson
Rodney L. Shaw
Daniel Desandro
Mary K. Mulrooney
Janet C. Bettenbrock
Virginia Rate
Mike J. Halloran
Linda Greulich
Dan W. Williams
Karen Blevins
Scott Reiter
Vincent E. Davis
Jay Seiler
Brian Overmyer
Sue L. Mulrooney
Bryan W. Terry
Wesley J. Jackson
Kevin Smith
Bill J. Shanks
Elizabeth A. Hollers
Delores Mercurio
Lorraine D. Emmick
Cathy Jacobs
Christopher Welsh
Pamela Smith
Barbara Hudson
Sandra Baker
Anna Danilovic
Bruce Hanna
Therese Neuser
Doloris Snider
Barbara Edwards
Maria Varela
Sarah Alexander
Bart Bowe
Bonnie J. Moyes
Diane Dauer
Cathy Jo Crowthers
Cynthia Paterson
Nabih 0. Dandan
Karen Pitzen
Robert Bostdorf
Daniel Griesinger
Jeffery Hanthorn
Genevieve Jarosz
Jose Martinez
Carlos Sanchez
Kent A. Hoffman
Jay M. Schmidt
Tod Schmidt
Jane Sieczkowski
Sandra A. Johnston
Betty J. Boney
Mark H. Butler
Mildred Decius
Christine D. Fall
Stephen Lucas
Howard Lightner
Tom Goede
Mark Slowinski
Mark G. Newville
Ed L. Kleinfelter
James P. Riehm
Scott Yoder
Steve Tucker
Jimmie Perrine
Richard Butler
William Babcock
Leona Saunders
Mary' K. Smith
Norman Soldwish
Susan Mutchler
Theresa Bowe
Susan Mae Landolt
Lenna Robinson
Karen Shaffer
Sharon Taylor
Helen Koles
Lucianne Bortel
Brian Brandenburg
Arlene Lawson
Jill Aspacher
Jane Oleary
Kathy Shull
(Cass M. Roby
Jana M. Yoder
Tim Oiler
Joan M. Hahn
Eileen M. Miller
Jeri S. homas
Pam Hess
D)ave R. Burdo
l.avonne M. Giren
Sharon S. Britt
Patricia K. I.ehmann
I.ori Hencher
Patti Sold'uish
.lim Stetinelli
Jovce R. Rechtine
('heire Akenberger
Timothy Zirke
Bonnie L. Mc(eorge
D)oris Mullins
Kathleen M. Shaw
Patricia Roberts
Jeanne Smith
(iene, ieve I'atcrnite
Souheil J. Kabbara
Michael Stepnick
Michael ). Miller
Kathleen A. Klein
Karyn A. Ciprian
Terry W. I lnott
Julie A. McKaig
Glendine Berndt
Stephen . Stepnick
Leslie Kozlowski
Florence Ta lor
Marge Rollins
Victoria S. L.anglois
Janet Kozlowsk i
Nanc, Artz
[)ouglas H. ()benshain
Inez . :Fallon
Sharon 1.. less
Bett\ Jean (ox
Karen (iould
Monique N. Perrin
Mlichelle Wagener
[)iane Powell
Linda S. ( ocke
Judith Beebe
Gloria arrigan
Joyce Roherge
,\PPINI)IX ('
The lnion's authorization cards as of April I. 1976
('herie Akenberer
Nancy Artz
Bill Babcock
Judith (. Beebe
Glendine Berndt
Janet ('. Bettenbrock
Lucianne Bortel
Bob Bostdort'
Brian Brandenburg
Mary V. Calevro
Karyn (iprian
Betty Jean C(ox
Vincent [)avis
Mildred L. DeC(ius
Dan DeSandro
Lorraine Emmick
Inez E. Fallon
Mary Fultz
Tom Goede
LaVonne M. Green
Linda Lou Greulich
Sharon I.. Hless
Kent Hofloman
Elizabeth A. ollers
Wesley J. Jackson
Geneviee Jarasz
Sandie Johnston
Virginia . Keeton
Kathleen A. Klein
Ed Kleinfetter
John Kern
Janet Kozlowski
Victoria S. L.anglois
Patricia K. I.ehmann
Howard lightner
Terry Lnott
Stephen ucas
Bonnie l.ou Mc(George
Julie McKaig
Deloris Mercurio
Eileen NM. Miller
Michael Miller
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel Grisinger
Mike Halloran
Jeffery W. Hanthorn
Gloria Harrigan
Doug Obenshain
Brian L. Overmyer
Genevieve J. Paternite
Beth Paterson
Ellie Paterson
Cynthia L. Patterson
Stephen E. Presti
Virginia M. Rate
Joyce L. Rechtine
James P. Riehm
Bryan W. Terry
Charlotte Morris
Doris L. Mullins
Susan J. Mutchler
Mark G. Newville
Rodney L. Shaw
Jane A. Sieczkowski
Mark Slowinski
Mary Smetana
Jeanne Smith
Kevin Smith
Patricia Ann Soldwish
Jim Stefanelli
Florena Taylor
Sharon Suzanna Taylor
Scott C. Yoder
Suzanne L. Townsend Tim Zirke
APPENDIX D
NoI(-i To EMPi.OYiI-S
Posii lI) BY ORDER OFI 11E
NAI()ONAI I.ABOR R.A I()IONS BOARD
An Agency of the United States Government
The National labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
fTo bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities except to
the extent that the employees bargaining representa-
tive and employer have a collective bargaining
agreement which imposes a lawful requirement that
employees become union members.
In recognition of these rights, we hereby notify our
employees that:
WE Wllt. NOI interrogate you regarding your mem-
bership in, sentiment toward, or activities on behalf of
Hotel & Restaurant Employees and Bartenders Union.
Local 868, AFL-CIO, or any other labor organization.
WE Wi.L. NO'I threaten employees with termination
of our operations or discharge because they support
Hotel & Restaurant Employees and Bartenders Union,
Local 868, AFL-CIO, or any other labor organization.
WE WL.l, Nor photograph employees engaged in
peaceful picketing of our facility on behalf of Hotel &
Restaurant Employees and Bartenders Union. Local
868, AFL CIO, or any other labor organization.
WE WILL NOT promulgate, maintain, or enforce any
rule or regulation which prohibits our employees from
soliciting on behalf of any labor organization in work
areas of our facilities during their nonworking time or
from distributing literature on behalf of any labor or-
ganization in nonwork areas of our facilities during
their nonworking time.
WE WILL. NOI promulgate or enforce any rules pro-
hibiting our employees from wearing union buttons or
other union campaign adornment at our facility.
WE WILL NOT confront you with termination of your
employment as an alternative to working under more
onerous discriminatory conditions of employment and
thus attempt to interfere with your right to support
Hotel & Restaurant Employees and Bartenders Union,
Local 868, AFL CIO. or any other labor organization.
WE Wll I. NOI impose onerous conditions of employ-
ment, attempt to cause you to quit your employment
with us by imposing onerous conditions upon you, or
otherwise discriminate against you for supporting Ho-
tel & Restaurant Employees and Bartenders Union,
Local 868, AFLCIO,. or any other labor organization.
WtE WILl. NOT refuse to recognize Hotel & Restau-
rant Employees and Bartenders Union, Local 868,
AFL C10 as the collective-bargaining representative
of:
All full-time and regular part-time food and bever-
age department employees employed by Motor Inn
of Perrysburg, Inc.. d/h/a Holiday Inn of Perrys-
burg. Ohio, at its Perrysburg. Ohio facility, including
cooks, salad help, dishwashers. porters, waitresses.
bartenders, and bus help but excluding all desk
clerks, maintenance employees, housemen. maids.
managers, assistant managers, office clerical employ-
ees and all professional employees, guards. and su-
pervisors as defined in the Act, and all other employ-
ees.
Wi. WllI. NO) in an) other manner interfere with
any of your rights set forth above which are guaran-
teed by the National I.abor Relations Act.
Wt. Wtl.l. abolish the captain system in our night
dining room operations and reinstate the former
waiter-waitress-busperson system as it existed prior to
February 23, 1976.
WE wll.t. offer the following employees immediate
and full reinstatement to their former positions in the
night dining room department dismissing if necessary
any one who may have been hired or assigned to per-
form the work which they had been performing under
the waiter-waitress-busperson system, or, if those jobs
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
they may have suffered as a result of our discrimina-
tion.
Nancy Artz
Glendine Bernt
Karyn A. Ciprian
Betty Cox
Tim Zirke
Julie McKaig
Sue Myer
Michael Miller
298
HO IDAY INN OF1 PRRYSBlR(;. OHI()
Inez Fallon
Gloria Harrigan
Sharon Hess
Kathy Klein
Florena Taylor
Janet Kozlowski
Victoria Langlois
Terry Lynott
Bonnie McGeorge
Doris Mullins
D)oug ()benshain
Genevieve Paternite
Stephen Presti
Joyce Rechtine
Joyce Roberge
Patricia Roberts
Marge Rollins
Jim Stefanelli
Wi wii.iL. upon request recognize and bargain with
llotel & Restaurant Employees and Bartenders Lnion.
L.ocal 86h8 AFL ('10. as the collective-hargaining rep-
resentative of the employees in the unit described
above respecting rates of paN. wages. hours or other
terms and conditions of employment and i an under-
standing is reached embodN such understanding in a
signed agreement.
MOlOR INN ()1 PRRYSIBIR(, IN(.. I)/B/A 1()I1-
DAY INN o01 PRRYSBUR(, O1ll()
299