Howard Johnson Co.

National Labor Relations Board - Board Decisions

Aug 8, 1972

198 N.L.R.B. 763 (N.L.R.B. 1972)

HOWARD JOHNSON 763
Howard Johnson Company and Bartenders & Culinary
Workers Union , Local 340, Hotel and Restaurant
Employees & Bartenders International Union,
AFL-CIO
Howard Johnson Company and Freight Checkers,
Clerical Employees & Helpers Union Local 856,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Cases 20-CA-6449 and 20-CA-6441
August 8, 1972
DECISION AND ORDER
On March 10, 1972, Trial Examiner James T.
Rasbury issued the attached Decision in this pro-
ceeding . Thereafter, Respondent filed exceptions and
a supporting brief, the Charging Party filed cross-
exceptions and a supporting brief as well as an
answering brief, and the General Counsel filed cross-
exceptions with a supporting brief and an answering
brief. Subsequently, Respondent filed a Motion To
Dismiss , and the Charging Party and the General
Counsel each filed a brief in opposition thereto.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions to the extent they
are consistent herewith, in view of the Supreme
Court's recent decision in N.L.R.B. v. Burns Interna-
tional Security Service, Inc.2
1. The Trial Examiner found, and we agree, that
Respondent is a successor to Pacific Gulf Develop-
ment Corporation in the operation of its Howard
Johnson Motor Lodge in Redwood City, California.
2. The Trial Examiner also found that Respon-
dent's refusal to recognize and/or bargain with
Bartenders & Culinary Workers Union, Local 340, or
with Teamsters Local 856 violated Section 8(a)(5)
and (1) of the Act, and he recommended that
Respondent be ordered to bargain with these Unions
upon request.3 Citing the Board's decision in Burns,
he further recommended that Respondent be ordered
to honor the contracts which were in effect at the
time of the takeover.4 However, in light of the
Supreme Court's holding in Burns that a successor
employer is not required, as a matter of law, to
assume the contractual obligations of the predeces-
sor, we shall delete this portion of the Remedy.
The facts show that at or about the time of the
November 1, 1970, takeover, Paul Hower, regional
manager of Respondent, held group meetings with
the motel employees in which he introduced the new
motel manager, informed the employees of the
change in management, stated that Respondent
would operate as a nonunion house, reassured the
employees of their jobs, and advised them of the
wages and employee benefits which they would
receive from Respondent, comparing them to those
they had been receiving pursuant to the predecessor's
union contracts.5 The Trial Examiner found that this
unilateral change of the terms and conditions of
employment violated Section 8(a)(5) and (1) of the
Act. While we agree that Respondent has violated
Section 8(a)(5) and (1), we do go on the grounds
explicated below.
In Burns, the Supreme Court said that a successor
employer is ordinarily free to set initial terms on
which it will hire the employees of a predecessor
since until it has hired a full complement of
employees it will not be evident whether the union
representing the prececessor's employees is also the
majority representative of the successor's employees.
However, the Court also indicated that "there will be
instances in which it is perfectly clear that the new
employer plans to retain all of the employees in the
unit and in which it will be appropriate to have him
initially consult with the employees' bargaining
representative before he fixes terms ."6 The present is
just a case. As noted, Respondent's regional manager
told the predecessor's employees that their employ-
ment would continue after the change in ownership.
This retention of all of the employees in the units
obligated Respondent to bargain with the Unions
before it fixed initial wages and terms of employ-
ment, and we find that Respondent, by failing to do
so, violated Section 8(a)(5) and (1) of the Act. To
remedy these unfair labor practices, we shall in our
Order require Respondent to make whole the
employees in the units for any loss of pay or other
benefits they may have suffered as a result of
Respondent's initial implementation of wages and
1 The record discloses that on March 8 , 1971, Respondent 's general
manager assembled front desk employees in the lobby of the motel and
asked each whether he was a member of Local 856 . While this conduct was
not specifically alleged in the complaint to be unlawful , the evidence was
uncontradicted and fully litigated at the hearing . Inasmuch as no
explanation was offered for the interrogation, and no assurances were given
that reprisals would not be taken against the employees because of their
responses , we find, in agreement with the General Counsel's exception, that
Respondent 's conduct violated Sec. 8(a)(l) of the Act. See Struksnes
Construction Company, 165 NLRB 1062 . Accordingly, we shall order that
Respondent cease and desist from such unlawful activity and shall so
provide in our Order and notice.
2 406 U.S. 272.
3 The Trial Examiner correctly held that the legality of the initial
recognition of the Unions by the predecessor, some 2 years prior to the
takeover, could not be litigated , citing Barrington Plaza & Tragniew, Inc.,
185 NLRB 962 . We therefore find that it was erroneous for him to comment
that Pacific Gulf's recognition and acceptance of the union contracts was
illegal at the time it occurred , and we do not adopt that statement.
4 At the time of the takeover , the predecessor , through an employer
association, had a contract with Local 856 covering front desk employees
and a contract with Local 340 covering housekeepers and bellmen.
5 This conduct was not alleged to be violative of the Act.
6 Burns, supra.
198 NLRB No. 98
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms and conditions of employment on November
1, 1970, with interest at 6 percent per annum, and to
continue such payments until such time as Respon-
dent negotiates in good faith with the Unions to
agreement or impasse.?
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Howard Johnson Company, Redwood City, Califor-
nia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Freight Checkers,
Clerical Employees & Helpers Union Local 856,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees
in the appropriate unit found above, by failing to
recognize the Union as the majority representative of
such employees, and by implementing rates of pay,
wages, hours, and other terms and conditions of
employment without consulting with the Union.
(b) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Bartenders & Culi-
nary Workers Union, Local 340, Hotel and Restau-
rant Employees & Bartenders International Union,
AFL-CIO, as the exclusive bargaining representative
of its employees in the appropriate unit found above,
by failing to recognize the Union as the majority
representative of such employees, and by implement-
ing rates of pay, wages, hours, and other terms and
conditions of employment without consulting with
the Union.
(c) Interrogating employees in violation of the Act
with respect to their union membership.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with each of the above-
named labor organizations as the exclusive bargain-
ing representative of all employees in the respective
aforesaid appropriate bargaining units with respect
to rates of pay, wages, hours, and other terms and
conditions of employment.
(b) Make whole the employees in the appropriate
units for any loss of pay or other benefits they may
have suffered as a result of Respondent's unilateral
implementation of rates of pay, wages, hours, and
other terms and conditions of employment on
November 1, 1970, with interest at 6 percent per
annum, and continue such payments until such time
as Respondent negotiates in good faith with the
Unions to agreement or to impasse.
(c) Post at its Howard Johnson Motor Lodge in
Redwood City, California, copies of the attached
notice marked "Appendix." 8 Copies of said notice,
on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days of the date of this Order, what
steps the Respondent has taken to comply herewith.
7 See Harold W. Hinson, d/b/a Hen House Market No. 3, 175 NLRB 596,
enfd . 428 F.2d 133 (C.A. 8, 1970); Overnite Transportation Co., 157 NLRB
1153, enfd. 372 F.2d 765 (C.A. 4), cert. denied 389 U.S. 838.
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with Freight Checkers, Clerical Em-
ployees & Helpers Union Local 856, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the
exclusive bargaining representative of the em-
ployees in the following appropriate unit:
All employees employed by Howard John--
son Company as front desk employees,
excluding guards and supervisors as defined
in the Act.
WE WILL NOT refuse to recognize and bargain
collectively with Bartenders & Culinary Workers
Union, Local 340, Hotel and Restaurant Employ-
ees & Bartenders International Union, AFL-CIO,
as the exclusive bargaining representative of the
employees in the following appropriate unit:
All employees employed by Howard John-
son Company in the housekeeping depart-
ment and as bellmen, excluding guards and
supervisors as defined in the Act.
WE WILL NOT interrogate employees in viola-
HOWARD JOHNSON 765
tion of the Act with respect to their union
membership.
WE WILL make whole all persons employed in
each of the respective appropriate units described
above for any loss of pay or other benefits they
may have suffered as a result of our implementa-
tion of rates of pay, wages, hours, and other terms
and conditions of employment on November 1,
1970.
WE WILL bargain with Local 340 as the
exclusive bargaining representative of all employ-
ees employed by us in the housekeeping depart-
ment and as bellmen, exclusive of guards and
supervisors as defined in the Act.
WE WILL bargain with Local 856 as the
exclusive representative of all employees em-
ployed by us as front desk employees, exclusive of
all guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce the employees in
the exercise of their right to self-organization, to
form, join, or assist unions, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or
protection, or to refrain from such activities,
except to the extent that such right may be
affected by an agreement requiring union mem-
bership as a condition of employment, as author-
ized in Section 8(a)(3) of the Act.
HOWARD JOHNSON
COMPANY
(Employer)
November 27, 1970, and complaint was issued on March
30, 1971. An order consolidating cases was issued on April
30, 1971. The complaints allege that prior to November 1,
1970, the Pacific Gulf Development Corporation, herein
called Pacific Gulf, operated a motor lodge in Redwood
City, California, known as the Howard Johnson Motor
Lodge; Pacific Gulf was a member of the San Mateo
County • Restaurant-Hotel Operators Association, here-
inafter called Association; the front desk employees of the
motor lodge were represented by the Freight Checkers,
Clerical Employees and Helpers Union, Local No. 856,
hereinafter referred to as Local No. 856 ; said Local 856
had executed a labor contract with the Association; the
employees in the housekeeping department and those
employees employed as bellmen were represented by the
Bartenders & Culinary Workers Union, Local 340, here-
inafter referred to as Local 340; Local 340 had executed a
labor contract with the Association; and said labor
contracts were binding on Pacific Gulf as a member of the
Association . The complaints further allege that since
November 1, 1970, the Howard Johnson Company,
hereinafter referred to as Respondent , is a successor to
Pacific Gulf in the ownership and operation of the Howard
Johnson Motor Lodge in Redwood City, California, and
has refused to recognize or bargain with either Local 340 or
Local 856 ; and that Respondent's conduct in refusing to
recognize or bargain with either of the aforesaid Unions is
a violation of Section 8(a)(5) and (1) of the National Labor
Relations Act, herein called the Act. The Respondent has
filed answers admitting certain jurisdictional facts but
denying the commission of any unfair labor practices.
Briefs have been filed and have been carefully consid-
ered. Upon the entire record and my observation of the
witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, 450 Golden
Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 415-556-3197.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T . RASBURY , Trial Examiner : This case was heard
in San Francisco , California, on December 16, 17, 18, and
20, 1971. The charge in Case 20-CA-6441 was filed on
November 20, 1970, and complaint was issued on April 30,
1971. The charge in Case 20-CA-6449 was filed on
Respondent is a Maryland corporation engaged in
operating motor lodges in several States of the United
States and in granting licenses to licensees to operate
motor lodges under the name of Howard Johnson Motor
Lodge. During the past year, in the course and conduct of
its business operations , Respondent purchased and re-
ceived goods and supplies at its California facilities valued
in excess of $50,000 from points located outside the State
of California, and, during the past year, Respondent's
gross revenues have been in excess of $500,000. The
complaint alleges , and the Respondent 's answer as amend-
ed at the hearing admits , that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and I so find.
II. THE LABOR ORGANIZATION
The complaint alleges, and the answer admits, that the
Bartenders & Culinary Workers Union, Local 340, Hotel
and Restaurant Employees & Bartenders International
Union, AFL-CIO; and the Freight Checkers, Clerical
Employees & Helpers Union, Local No. 856, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Helpers of America, are labor organizations within the
meaning of Section 2(5) of the Act, and I so find.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Is Respondent a successor to Pacific Gulf? 2. Has
Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to recognize and/or bargain with either of the two
unions involved by refusing to give affect to the labor
contracts that were effective at the time of takeover by the
Respondent?
B. The Background Facts
While Respondent contends it is not a successor to
Pacific Gulf, there was little or no evidence presented that
provides a basis for such a conclusion.
Pacific Gulf began operating a motel under the name
Howard Johnson Motor Lodge located in Redwood City,
California, on or about June 1, 1968, under the terms of a
license agreement executed by Respondent, as licensor,
and Pacific Gulf, as licensee (see Resp. Exhs. 7 and 8).
Pacific Gulf is a Texas corporation and Respondent is a
Maryland corporation. These are two separate and distinct
corporations, each with its board of directors and officers.
On June 15, 1968, James Grisebaum, president of Pacific
Gulf, signed two authorizations empowering the Associa-
tion to negotiate and enter into collective-bargaining
agreements with Local 340 and with Local 856 (see G.C.
Exhs. 15 and 16). Mr. Andrew Castle, executive secretary
of the Association, testified that Pacific Gulf was a
member of the Association. The application for member-
ship signed by James Grisebaum appears in the record as
Respondent's Exhibit 30. On June 15, 1968, there was a
labor agreement in effect between Local 340 and the
Association effective for the period from January 1, 1967,
through December 31, 1969. The preamble of said
agreement states that the agreement was entered into "on
behalf of all the members of the San Mateo County
Restaurant-Hotel Owners Association, and all members
who become such during the term of this agreement" and
Local 340. Local 340 is recognized as the bargaining agent
"for all the employees . . . . coming under the jurisdiction
of the Union." While this language appears vague and
uncertain, the complaint alleges the unit to be all
employees in the housekeeping department and the
bellmen. There was no evidence presented to indicate the
parties hereto were in any way confused or misled as to
which job classifications or employees were represented, or
allegedly represented, by Local 340. The agreement
contained a typical union-shop security clause. The
agreement also contained a clause binding the terms
thereof on "successors, transferees, licensees, or assigns."
The aforementioned labor agreement between Local 340
and the Association (G.C. Exh. 2) was followed by an
1 There was some evidence adduced by Respondent through cross-
examination tending to show that neither of the bargaining units herein
involved was ever certified by a Board election. Over objections made and
sustained , offers of proof were tendered by Respondent purporting to show
that neither Local 340 nor Local 856 represented a majority of the
employees at the Howard Johnson Motor Lodge at the time Pacific Gulf
agreement dated January 21, 1970, to be effective for the
period from January 1, 1970, until December 31, 1973
(G.C. Exh. 3). The pertinent contract language noted
above remained unchanged in the latter agreement.
On June 15, 1968, the date Pacific Gulf provided the
Association with an authorization to represent it in
collective-bargaining, there was in effect a labor agreement
between Local 856 and the Association to be effective for
the period from January 14, 1968, to January 14, 1971
(G.C. Exh. 17). Again this contract is less than crystal clear
as to which job classifications or employees are included in
the bargaining unit, but the job titles and rates of pay set
forth are those of typical clerical or accounting employees
that might be working in an office . The complaint alleges
the unit to be front desk employees and there was no
evidence adduced to indicate any misunderstanding or
confusion between the parties as to which employees or job
classifications were to be included under this contract. The
contract did not contain a "successor or assigns" clause but
did contain a typical union-shop security clause. While
there is nothing contained within the labor agreement
(G.C. Exh. 17) that would appear to bind Pacific Gulf, it is
abundantly clear from the testimony of Mr. Castle,
executive secretary of the Association, that Pacific Gulf, at
the time of executing the bargaining authorizations and
joining the Association, adopted the contract and agreed to
be bound thereby.' Sometime prior to November 1, 1970,
business differences arose between Respondent and Pacific
Gulf. These differences concerned not only the motor
lodge at Redwood City, but another lodge, or proposed
lodge, in San Jose, California (see Resp. Exhs. 10 through
21). I find it unnecessary to burden this Decision with
detailed analyses of these documents. Suffice it to say that
their legal effect was to settle the differences between
Pacific Gulf and Respondent and resulted in Pacific Gulf
relinquishing its license agreement for the control and
operation of the Howard Johnson Motor Lodge in
Redwood City and disposing of their interest in said lodge
to the Respondent. As a part of this settlement, Respon-
dent made it clear to the attorneys representing Pacific
Gulf that Respondent would not become a member of the
Association or accept and recognize either of the two labor
agreements between the Association and Local 856 and the
Association and Local 340.
By letter dated October 30, 1970, from James Grisebaum
to A. F. Castle, Pacific Gulf advised the Association that it
no longer would operate the motor lodge, terminated its
membership in said Association, and withdrew all authori-
zations previously given said Association to bargain with
Local 340 (see Resp . Exh. 5). As of November 1, 1970,
Respondent took control of the lodge. Mr. Fuqua, who had
been manager of the lodge from the day it opened (June 1,
1968), was replaced by Mr. Delmar Poteete, an employee
of Respondent. At or about the time of the official
takeover of the lodge by Respondent, employee meetings
were held at which time Mr. Poteete was introduced as the
joined the Association and adopted the then current contracts between the
respective unions and the Association . I excluded this evidence on the basis
of the Board's decision and language in Barrington Plaza and Tragniew, Inc.,
185 NLRB 962 . By virtue of the limitations proviso of Sec. 10(b) of the Act,
the legality of the Unions' initial recognition was no longer subject to direct
attack under Sec. 8 of the Act at the time of the alleged refusals to bargain.
HOWARD JOHNSON 767
new manager ; Mr. Paul Hower, the regional manager for
Respondent , was present and was introduced to employ-
ees. The employees were advised of the change in
management ; told that Respondent would operate as a
nonunion house ; invited to continue their employment
relationship ; advised of Respondent's managerial policies
and employment benefit plans ; and generally shown the
comparison of the Company wages , holidays , and employ-
ee benefits with those that had been applied under the
Union contracts prior to November 1, 1970. Employee
questions were invited and answered . There were no
independent acts or conduct committed by Respondent
alleged to be violative of Section 8(a)(1). After November
1, most of the employees remained ; Mrs. LeNeve, the
housekeeping supervisor , remained ; the services rendered
from the same facilities remained unchanged ; the name of
the lodge was unchanged . Prior to November 1, 1970, the
employees ' paychecks had been issued by the Pacific Gulf;
after November 1, 1970, the employees ' paychecks were
issued by Respondent.
By letter dated November 5, 1970 , V. E. Burks, vice
president of industrial relations for Respondent , advised
Local 340 that Respondent had purchased the lodge from
Pacific Gulf and assumed operations on November 1,
1970; that Respondent did not recognize the agreement
between the Association and Local 340 ; and that Respon-
dent was not and never had been a member of the
Association . The letter asserted that the employees of the
lodge had never been given an opportunity to express their
free choice and that Local 340 was an assisted and
supported union in violation of the Act (G.C. Exh. 4). By
letter dated March 1 , 1971, John Collins , president-
organizer of Local 340, advised V . E. Burks that Respon-
dent had not made timely reports or payment to the Health
and Welfare Fund or to the Pension Fund as required by
the labor agreement (G.C. Exh. 5). In response Mr. Burks
advised Collins by letter dated March 10 , 1971, that
Respondent 's position remained unchanged from that
expressed in his November 5, 1970, letter (G.C. Exh. 6).
Mr. George Kane, who is employed by the Associated
Medical Plans , Inc., and is the administrator of the San
Mateo Bartenders & Culinary Workers Welfare and
Pension Fund , testified without contradiction that he had
received funds from Pacific Gulf prior to November 1,
1970, but had not received moneys for any funds from
Respondent.
By letter dated October 26, 1970, Rudy Tham, secretary
of Local 856 , gave the Association notice of its desire to
terminate the existing contract and requested a meeting to
commence negotiations on a new contract (G.C. Exh. 27a).
By letter dated October 30, 1970, Pacific Gulf advised
Local 856 that as of November 1, 1970, the operation of
the motor lodge in Redwood City would be transferred to
Respondent . The letter referred to the existing contract
and advised that Respondent had been notified of the
labor agreement prior to the transfer of the operation (G.C.
Exh. 19). By letter dated November 6, 1970 , V. E. Burks
advised Local 856 that Respondent had purchased the
lodge and started operating it on November 1, 1970. The
letter further stated that Respondent "is not . . . . and has
never been a member" of the Association and does not
recognize any agreement alleged to exist between the
Association and Local 856. The letter further related that
the employees of the lodge had never been given an
opportunity to determine if a majority desired Local 856 as
a bargaining representative and that the employees of
Pacific Gulf had been unlawfully solicited, forced, and
required to become members of Local 856 all in violation
of the Act (G.C. Exh. 18). Mr. William Esmarch , business
representative and organizer for Local 856, testified that
after receipt of the aforementioned letter dated November
6, 1970 from V. E. Burks he telephoned Mr. Burks. Mr.
Esmarch testified that he requested Mr. Burks to recognize
and honor the existing contract. According to Mr.
Esmarch, Mr. Burks , in essence , repeated the position
taken in the November 6, 1970, letter . On February 8,
1971, Mr. Rudy Tham directed a letter to Respondent at
Redwood City advising that negotiations for a new
contract between Local 856 and the Association were in
progress and enclosed a copy of the Union's new contract
proposal. The letter noted that since Respondent had not
given a "power of attorney" (meaning that Respondent
was not a member of the Association), it requested a
meeting with Respondent 's labor relations representative
to arrange a date for negotiations (G.C. Exh. 20). V. E.
Burks responded on February 17, 1971, to Tham's letter,
advising that Respondent had a good-faith doubt that
Local 856 represented a majority of the employees and
stated that he was filing an employer petition with the
National Labor Relations Board requesting the majority
issue to be decided by an election (G.C. Exh. 21). By letter
dated March 4, 1971, Tham wrote directly to Burks and
expressed again the willingness of Local 856 to bargain
individually with the Respondent (G.C. Exh. 22).
Upon these relatively uncomplicated and uncontroverted
facts , what were Respondent' s obligations toward Local
856 and Local 340?
C. Respondent's Arguments
1. As to successorship
Respondent argues that the takeover of the lodge was
not entirely voluntary. This argument is rather shallow. No
one compelled Respondent to take over the lodge.
Termination of the license agreement with Pacific Gulf and
the assumption of the operation of the lodge by Respon-
dent undoubtedly appeared , at the time , to be the wisest
solution to their business differences with Pacific Gulf.
This is not uncommon in the everyday business world.
Furthermore , this argument was unsuccessfully advanced
in Interstate 65 Corporation, 186 NLRB No. 41. There, the
respondent reacquired interest in a motel because the
predecessor had defaulted in its debt obligations and the
action of respondent was necessary to protect its invest-
ment. The argument was made by the successor that its
conduct in taking over the operation was not voluntary.
Nevertheless the respondent was found by the Board to be
a successor and in relevant part was sustained by the court
of appeals , 453 F.2d 269 (C.A. 6). Respondent argues that
it has never been and never intends to be a member of the
Association. This argument has been considered and
determined adversely for the Respondent by the Board in
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ranch-Way, Inc., 183 NLRB No. 116, enfd. 445 F.2d 625
(C.A. 10), Standard Plumbing & Heating Company, Inc., 185
NLRB 444, and Sacramento Automotive Association, 193
NLRB No. 117. Failure or refusal to become a member of
the Association is not so unusual as to justify a finding of a
different employing industry.
On November 1, 1970, Respondent took over complete
operation of the motel with no hiatus between the regime
of Pacific Gulf and its own. The general manager was
replaced but otherwise the supervision remained the same.
There were seven employees in the front desk unit
employed by the Pacific Gulf and they all continued after
Respondent took over. There were 17 back-of-the-house
employees and they all remained after Respondent took
over.2 Apparently the employees were not asked to
complete new job application forms, although the Respon-
dent did have the employees complete an employee data
form, a bonding application, a W-4 form, and an insurance
enrollment card. The same services were continued by
Respondent under the same name. As the Respondent
argues, "the Board has not accorded controlling weight to
any single factor, but has evaluated all the circumstances
present in any given case in arriving at an ultimate
conclusion." But having looked at all of the circumstances
accompanying the transfer of ownership to determine if the
employing industry has undergone a basic change, we must
conclude that in this case it has not. Respondent's reliance
on N.L.R.B. v. Alamo White Truck Service, Inc., 273 F.2d
238 (C.A. 5), is not valid. There the successor retained none
of the predecessor's employees and the nature and purpose
of the business operation was changed from that of a
manufacturer and seller of trucks to one which was
primarily a service operation.
The finding of successorship involves a judgment that
the employing industry has remained essentially the same
despite the change in ownership. I find under all the
circumstances in this case that the employing industry
remained essentially unchanged and Respondent is a
successor to Pacific Gulf.
2. Has Respondent violated Section 8(a)(5) and
(1) of the Act?
Respondent argues in its brief that the Burns case3 is
distinguishable because in Burns the union had been
certified as the collective-bargaining representative. Board
certification is not the only method of establishing a bona
fide collective-bargaining relationship. It is only one
method provided by statute to which the parties may resort
if they are not otherwise able to settle their differences.
Respondent next argues in his brief that because both
Local 340 and Local 856 were assisted and supported
through the acts and conduct of Pacific Gulf at the time
Pacific Gulf joined the Association and adopted the then
existing labor contracts covering the employees herein
involved, the employees were coerced in violation of the
Act. The brief of Respondent cites Lunardi-Central
2 While some of these employees only remained a short time after
November 1, 1970, there was no evidence presented to indicate any drastic
change in either the size of the work force or any change in the type of work
performed by these employees . I am satisfied that all the work force
remained intact after Respondent took over and those employees who
Distributing Co., Inc., 161 NLRB 1443, and Meyers Bros. of
Missouri, Inc., 151 NLRB 889. While these cases stand for
the argument advanced, they are inapposite . In the instant
case the recognition and acceptance of the union contracts
by Respondent's predecessor, albeit illegal at that point in
time, occurred more than 2 years prior to the change in
ownership of the lodge and is not now subject to attack by
Respondent. In excluding much of Respondent's proffered
testimony on this subject, I cited Barrington Plaza and
Tragniew, supra, wherein this language is used by the
Board: "As the Supreme Court has noted, the 10(b)
proviso reflects, in part, the manifestation of a congression-
al policy `to stabilize existing bargaining relationships' by
preventing the resurrection of legally defunct unfair labor
practices." [Citing Local Lodge No. 1424 (Bryan Mfg. Co. )
v. N.LR.B., 362 U.S. 411, 419, 428.] That statutory policy
is subverted no less when a legally defunct unfair labor
practice is used as a shield than when it is used as a sword,
if the effect of its use is to disrupt an established bargaining
relationship." Realistically such a determination may seem
harsh in this case, but it is the law and, until changed, I am
bound thereby. I find no merit to Respondent' s argument
that Local 340 and Local 856 were assisted . The evidence
submitted by Respondent in connection with the election
petition (see G.C. Exh. 21(a) and (b) and Resp. Exh. 33) is
tainted, because the Board has held that the majority issue
must not have been raised by the employer in a context of
illegal antiunion activities, or other conduct by the
employer aimed at causing disaffection from the union, or
under circumstances indicating that in raising the majority
issue the employer was merely seeking to gain some time in
which to undermine the union.4 Next the Respondent
argues that this case is different from Burns because there
is no 8(d) allegation in the instant case. I have carefully
read both the complaint and the Trial Examiner's decision
in Burns and nowhere can I find reference to an 8(d)
allegation. Section 8(d) is first mentioned in the Burns case
by the Board in its explication of the 8(a)(5) violation. This
is logical because it is in Section 8(d) that Congress defined
in some detail the duty of the parties to bargain
collectively. Again Respondent's argument is without
merit. The Respondent's conduct in refusing to recognize
and/or bargain with Local 340 or Local 856 at a time when
the Association and these unions had negotiated effective
labor contracts binding on the predecessor was violative of
Section 8(a)(5) and (1) of the Act. As the Board said in
Ranch-Way, supra, "It would seem that no special case can
be pleaded for the greater right of a successor, as opposed
to his predecessor, to raise a doubt of the Union's
representative status and be immune from liability under
the Act. The similarity of the applicable considerations
dictate that the same policy should be applied to the old
and the new employer alike. There seems to be no sound
distinction arguing in favor of allowing the latter to
introduce uncertainty into the plant's labor picture, by
refusing to bargain during the term of the contract, while
forbidding the former to do so."
terminated did so voluntarily.
3 William J. Burns International Detective Agency, Inc., 182 NLRB 348;
441 F.2d 911 (C.A. 2); certiorari granted 404 U.S. 822 (1972).
4 Celanese Corporation of America, 95 NLRB 664.
HOWARD JOHNSON
I find, therefore, that the normal presumption of union
majority status which attaches during the term of a
contract executed by the predecessor applies equally to the
successor and that the successor may not, during the life of
the contract, assert a doubt as to its obligation to bargain
with an incumbent union. Accordingly, I find that
Respondent, by unilaterally changing the contract terms
and conditions of employment and by refusing to
recognize and bargain with Local 340 and/or Local 856,
violated Section 8(a)(5) and (1) of the Act.
There remains one aspect of this case to be briefly
discussed because the status of the two union contracts
involved is different. Pacific Gulf, the predecessor, effec-
tively terminated its membership in the Association and
withdrew its bargaining authorizations on October 30,
1970, a date prior to any bargaining negotiations between
the Association and Local 856 for a new contract although
at a time following notice by the union of its desire to
terminate the existing agreement and open discussions for
a new contract. The labor contract between Local 856 and
the Association expired on January 14, 1971. Respondent
has never joined the Association or granted bargaining
authority to the multiemployer group. Thus, it is clear that
the withdrawal from the multiemployer group by the
predecessor was valid and timely as it effected the
bargaining relationship with Local 856. Under these
circumstances, had the ownership and control of the lodge
remained unchanged Pacific Gulf would have been bound
by the terms of the contract only until January 14, 1971.
Following the expiration of the contract Pacific Gulf
would have been obligated to bargain in good faith with
Local 856 on behalf of the front desk employees. The
successor's obligation should be the same and I shall so
direct in the remedy and order.
The contract between Local 340 and the Association was
agreed to on January 21, 1970, to be effective from January
1, 1970, until December 31, 1973.. The withdrawal by the
predecessor from the multiemployer bargaining unit was
untimely and illegal insofar as altering the successor's
obligations to honor the contract between Local 340 and
the Association covering the housekeeping department and
the bellmen. I shall, therefore, find Respondent obligated
to honor the terms of the current agreement with Local 340
which agreement will expire on December 31, 1973.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Unions
are labor organizations within the meaning of the Act.
2. The front desk employees (office clericals) at the
Howard Johnson Motor Lodge in Redwood City, Califor-
nia, excluding supervisors and guards as defined in the Act,
constitute an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. The housekeeping department employees and the
bellmen at Howard Johnson Motor Lodge in Redwood
City, California, excluding supervisors and guards as
defined in the Act, constitute an appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The Freight Checkers, Clerical Employees and
Helpers Union , Local No. 856, International Brotherhood
769
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, has been and is the exclusive representative of all
employees in the aforesaid appropriate unit of the front
desk employees for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. The Bartenders & Culinary Workers Union, Local
340, Hotel and Restaurant Employees & Bartenders
International Union, AFL-CIO, has been and is the
exclusive representative of all employees in the aforesaid
appropriate unit for the housekeeping department and the
bellmen for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
6. On November 1, 1970, and at all times since, by
unilaterally changing the wages, working condition, and
other terms and conditions of employment of employees in
each of the two appropriate bargaining units set forth
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
7. By refusing on or about November 6, 1970, and at all
times thereafter, to bargain collectively with the above-
named labor organizations as the exclusive representative
of all the employees in the heretofore described appropri-
ate units, and by refusing to honor and abide by the
existing collective -bargaining contracts , Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
8. By refusing since on or about February 8, 1971, a
date occurring shortly after the contract between Local 856
and the Association expired, and at all times thereafter, to
bargain collectively with Local 856 as the exclusive
representative of all the employees in the appropriate unit,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
9. The aforesaid unfair labor practices are labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found the contract between Local 340 and the
Association to be a valid contract binding on Respondent,
I shall recommend that Respondent honor, adopt, and
enforce the contract. Having found the contract between
Local 856 and the Association to be binding on the
Respondent until its expiration on January 14, 1971, I shall
recommend that Respondent honor, adopt, and enforce
that contract until its normal expiration date. Having
found that Respondent unlawfully refused to recognize or
bargain with Local 856 following the expiration of the
aforesaid contract, I shall recommend that Respondent
bargain with Local 856 and, if any understanding is
reached, embody such understanding in a signed agree-
ment. I shall also recommend that Respondent give
retroactive effect to all the clauses of each of the two
contracts heretofore mentioned and make employees
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole , with 6 percent interest , for any losses suffered by [Recommended Order omitted from publication.]
reason of Respondent 's refusal to adopt, honor, and
enforce the agreements.