Louis Pappas' Homosassa Springs Restaurant, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1985

275 N.L.R.B. 1519 (N.L.R.B. 1985)

LOUIS PAPPAS'. RESTAURANT
Louis Pappas' Homosassa Springs Restaurant, Inc.
and Hotel Employees and Restaurant Employ-,
ees International Union , AFL-CIO-CLC. Case
12-CA-104313(3)(4)
27 August 1985
DECISION AND ORDER
BY MEMBERS HUNTER, DENNIS, AND
JOHANSEN
On 7 June 1983 Administrative Law ' Judge
George Norman issued the attached decision. The
General Counsel and the Respondent filed, excep-
tions and supporting briefs, and both these parties
submitted answering briefs to the other's excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to, a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions 'and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
We agree with the judge's findings that the Re-
spondent did not, as' alleged, violate Section 8(a)(3)'
of the Act by refusing to hire Linda Locklear2 nor
violate Section 8(a)(1) of the Act by a statement
that Supervisor Juanita Bell made while employed
by the Respondent's predecessor, Homosassa
Springs, Inc. (HSI).3 While we also adopt the
i The General Counsel has excepted to some of'the judge's credibility
findings The Board 's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d 'Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
2 In dismissing the 8 (a)(3) allegation involving Locklear, the judge
relied in part on his finding that the Respondent 'hired another former
HSI employee , Pam Mijewski , who also had been active in the. Union
The judge failed to note , however, that Mijewski resigned her member-
ship in the Union about 4 months before the Respondent commenced op-
erations He also found that the Respondent relied on'recommendations
made by four of HSI 's supervisors in deciding which HSI employees it
would hire During the hearing, however , the parties stipulated that two
of the employees making those recommendations ;' Suzy Hibbard and,
Mary Hines , were not supervisors as defined by the At The judge fur-
ther noted in considering this issue ' that 14 of the 48 rank-and -file em-
ployees that the Respondent hired were union , members Rather, the
record shows that 16 of the Respondent 's newly hired employees had
been on dues checkoff when they worked for HSI We find that correc-
tion of these misstatements is insufficient to affect the judge 's conclusions
3 We agree with the judge that the Respondent was not responsible for
the conduct of Juanita Bell which was alleged to violate Sec 8 (a)(1) We
reach that conclusion , however , simply on the ground that the incident
occurred before'the Respondent became a successor and the predecessor
is not a respondent in this proceeding
Member Hunter does not reach the issue of the Respondent 's responsi-
bility for Bell's alleged unlawful conduct Rather, Member Hunter finds
that even assuming Bell was acting as the Respondent 's agent, she did not
engage in unlawful conduct by telling employees before the Respondent's
takeover of the restaurant "that she felt that there was no reason to feel
that [under the new operation ] there would be a union, and there would
be no union " Bell's remarks , in Member Hunter's view , merely constitut-
ed her own opinion of what might happen when the Respondent com-
1519
judge's finding that the Respondent is a successor
employer and violated Section 8(a)(5) by rejecting
the Union's bargaining demand, we do so for the
reasons that follow in addition to those set out. in
the judge's decision.
Until 1 November 1982,4 when..the• Respondent
acquired certain HSI assets for $1 million, HSI op-
erated the Homosassa Springs Restaurant and
Lounge,, the Sportsmen 's Bar , a gift shop,- and two
warehouses in Homosassa Springs, Florida. HSI,
also conducted other operations valued in excess of -
$10 million that serve the Florida tourist industry.
The Union represented 216 of the 224 employees
working at HSI's various facilities.5 Upon com-
mencing operations in Homosassa Springs on 1 No-
vember, - the Respondent hired 55 employees, in-
cluding 4 supervisors, 3 office clericals, and a secu-
rity guard, .of whom 50 formerly ,were HSI, em-
ployees. On 2 November, the Union made a bar-
gaining demand that the Respondent immediately
rejected.
In excepting to the judge's finding that it is a
successor employer, the Respondent argues, inter
alia, that he has completely ignored the changes
that have taken place in the operational structure
of the unit since the sale occurred. The "major
thrust" of HSI's previous operations, according to
the Respondent,' had been the hotels, attraction
park, and bait store where 60 of the 216 unit' em-
ployees worked.6 The Respondent notes, by con-
trast, that it is principally engaged in operating ,a
restaurant. Before the sale, in the Respondent's
view, that, restaurant was only incidental to the
other business activities that HSI conducted. Ac
cordingly, the Respondent asserts that it is not en-
gaged in substantially the, same operations' 'as it
predecessor and thus under NLRB v. Burns Security
Services, 406 U.S. 272 (1972), the administrative law
judge's successorship finding was improper.,
It is well established, however, "that successor-
ship obligations are not defeated by the 'mere fact
that only a portion of a former union-represented
operation is subject to the sale or transfer to a new
owner,' so long as';the employees in the conveyed
portion, constitute a separate appropriate unit, and'
menced operations In so concluding , Member Hunter places no reliance
on the judge ' s finding that Bell was a low -level supervisor when she
made that statement -
' All dates are 1982 unless otherwise noted
s The unit excluded "all office clerical employees , watchmen , guards,
and supervisors as defined in the Act " ' -
6 In finding the 8 (a)(5) violation, the judge noted that only 20 of the
bargaining unit employees that HSI employed did work at its hotels, at-
traction park , and bait store different from that the Respondent 's employ-
ees perform As the Respondent points out , however , the record shows
that there were about 60 HSI employees engaged in such different activi-
ties Again , we find that correction of this misstatement does not affect
the judge 's ultimate conclusions
275 NLRB No. 213
1520 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
they comprise a majority of the unit under the new
operation."7 Here, the Union sought recognition in
a unit of all employees, excluding office clericals,
that the Respondent employed. As for the appro-
priateness of that unit, the record shows that the
Respondent's smaller warehouse, facility is adjacent
to the building that houses the Homosassa Springs
Restaurant and Lounge` as well as the gift shop.
The Sportsmen' s Bar is -located a short distance
away on the same highway, and the other ware-
house facility is situated about 400 feet west of the
restaurant .' All the employees working at these fa-
cilities, as the Respondent has conceded, perform
functions directly related to the restaurant oper-
ation. Under these circumstances, - we adopt the
judge's finding that the overall unit in which the
Union demanded recognition is appropriate for
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act. Indeed, the Re-
spondent does not contend otherwise.
The Respondent further argues that the judge
erred in determining the Union's majority status as
of the date, 1 November, that its operations com-
menced. It contends that the proper time for
making this determination occurred when its work
force had allegedly "stabilized," less than 4 months
later, on 20 February 1983. By this date, the Re-
spondent emphasizes, the Union no longer held ma-
jority status in its expanded work force of 88 em-
ployees.
Contrary to the Respondent's argument, the
Board has held that "bargaining rights and the in-
terest of the former unit members now employed
by the new employer, newly hired employees and
the new employer are best accommodated and bal-
anced by determining the majority status of the
union as of the date the new employer began full-
scale operations with a representative complement,
even though the hoped for expansion of [oper-
ations] had not been fully achieved."8 In this case,
there was no hiatus in operations after the Re-
spondent acquired the facilities from HSI. -Rather,
as the judge found, the Respondent immediately
commenced full-scale operations at the restaurant
employing a majority of employees who formerly
were unit members. Although the Respondent sub-
sequently modified the menu that its predecessor
had offered and remodeled the facilities, the
changes noted by the Respondent were not so sig-
nificant as to invalidate the judge's finding that the
Respondent began operations with a representative
See Stewart Granite Enterprises, 255 NLRB 569, 573 (1981), and cases
cited therein
8 See Premium Foods, 260 NLRB 708, 718 (1982), enfd 709 F 2d 623
(9th Or 1983)
complement of employees.9. For these reasons and
those set out by the judge, we find that the Re-
spondent was a successor employer and violated
Section 8(a)(5) of the Act by rejecting the Union's
bargaining demand. Accordingly, we shall affirm
the judge's recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders - that the Respondent, Louis
Pappas' Homosassa Springs Restaurant, Inc., Ho-
mosassa Springs, Florida, its officers, agents,-suc-
cessors, and assigns, shall take the action set forth
in the Order, except that the attached notice is sub-
stituted for that of the administrative law judge.
s See Jeffries Lithograph Co, 265 NLRB 1499 (1982)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage. in any of these
protected concerted activities.
WE WILL NOT refuse to recognize or bargain in
good faith with Hotel Employees and Restaurant
Employees , International Union , AFL-CIO.-CLC
over the terms and conditions of employment in
the unit set forth below.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by. Section 7 of
the Act.
WE WILL, on request , recognize ' and bargain
with Hotel Employees and Restaurant Employees
International Union , AFL-CIO-CLC as the exclu-
sive representative of all employees 'in the appro-
priate bargaining unit concerning rates of pay,
hours of work , or other terms and conditions of
employment and, -should any understanding or
LOUIS PAPPAS' RESTAURANT
agreements be reached, on request of the Union,
embody the same in a. written and signed instru-
ment. The appropriate unit is:
All employees employed at Louis' Pappas' Ho-
mosassa Springs Restaurant, Inc.'s facility; but
excluding all office clerical employees, guards
and supervisors as defined in the Act.
LOUIS PAPPAS' HOMOSASSA SPRINGS
RESTAURANT, INC.
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge This
case was tried before me in Tampa , Florida, on May 2
and 3, 1983. The original charge was filed on November
17, 1982 . On February 18, 1983, amended charges were
filed in both cases and on February 24, 1983, a second
amended charge was filed in Case 12-CA-10431(4) A
complaint and notice of hearing based on those charges
was issued against Respondent Louis Pappas' Homosassa
Springs Restaurant . Inc (Respondent) by the Regional
Director for Region 12 on January 28, 1983, alleging
violations of Section 8(a)(1) and (3) of the National
Labor Relations Act for refusing to hire Linda Locklear
and Section 8(a)(5) of the Act for Respondent 's refusal to
bargain with the Hotel Employees and Restaurant Em-
ployees, International Union , AFL-CIO-CLC (the
Union). -
On consideration of the entire record ' and the briefs
filed , and from my observation of the demeanor of each
witness while testifying , I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a Florida corporation with an office and
place of business in Homosassa Springs, Florida, has
been engaged in the operation of a public restaurant,
lounge, and bar selling food and beverages. Based on a
projection of its operations since about November 1,
1983, at which time Respondent commenced its oper-
ations, Respondent, in the course and conduct of its.op-
erations described above, will annually derive gross reve-
nues in excess of $500,000 During that period, Respond-
ent, in the course and conduct of-its operations, will pur-
chase and receive at its Homosassa Springs, Florida facil-
ity products, goods, and materials valued in excess of
$50,000 from suppliers located within the State of Flori-
da, which suppliers received, these products, goods, and
materials directly from points located outside the State of
Florida Respondent is` an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
I The General Counsel filed a motion to correct the transcript Re-
spondent indicated it did not oppose said motion It is granted
1521
II. THE LABOR ORGANIZATION
The Union is now , and has been at all rimes material
hei•em , a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III BACKGROUND
On October 23, 1969, the • Regional Director for
Region 12 issued a Decision and Direction of Election in
Case .12-RC-3397 involving Norris Developing Compa-
ny, a Division of -Norris Grain Company, Employer, and
Laborers International Union of North America, Local
1207, AFL-CIO, as joint petitioners. The Regional Di-
rector directed an election in a unit comprised of:
All employees employed at Employer's Homosassa
and Homosassa Springs, Florida, facilities, including
its tourist attraction, restaurant, bars, gift shops,
motel and hunting preserves; but excluding all
office clerical employees, watchmen, guards, and
supervisors as defined in the Act.
On December 17, 1969, 110 employees were eligible to
vote in the election held in Case 12-RC-3397 Of the eli-
gible voters, 89 cast valid ballots, 48 in favor of union
representation, and 41 opposed to such representation.
On February 5, 1970, the Regional Director for
Region 12 issued a Certification of Representatives certi-
fying the joint petitioners described above as the collec-
tive-bargaining representative of the employees in the
unit also described above
In March 1971, Laborers International Union of North
America, Local 1207, AFL-CIO, assigned , with the con-
sent of Norris Developing Company, its bargaining rep-
resentative functions for the unit, to Local 512 of the La-
borers International Union of North America.
In 1972, Norris Developing Company, a Division of
Norris Grain Company, sold its assets to Homosassa
Springs, Inc., which continued the operations of the
tourist attraction, restaurant, bars, gift shops, and motel.
About this time, the operation of the hunting preserve
was terminated
From about March 1971 until 1979, the Laborers
International Union of North America, Local 512, and
Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO were the collective-bargaining
representatives of Homosassa Springs employees in the
bargaining unit and for that period of time the Unions
were recognized as such representative by Homosassa
Springs. During that period the parties entered into suc-
cessive , collective-bargaining agreements, the last of
which was effective until June 15, 1979.
In 1979, the Laborers International Union of North
America, Local 512, abandoned its claim as bargaining
representative of the employees in the bargaining unit
and, since 1979,. the Hotel Employees and Restaurant
Employees International Union, AFL-CIO-CLC has
been the exclusive collective-bargaining representative of
the employees employed by Homosassa Springs in the
bargaining unit and, since such date, the Union has been
recognized as such representative by Homosassa Springs.
Such recognition has resulted in the parties entering into
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
successive collective-bargaining agreements, the most
recent of which was effective by its terms for the period
from June 15, '1982, to December 31, 1982. -On Decem-
ber 29, 1982, Homosassa Springs and the Union entered
into a collective-bargaining agreement which expires on
June 30, 1983.
On October 16, 1982, a letter from G A. Furgason,
general manager of Homosassa Springs, was posted by
the timeclock in the Springs Restaurant and elsewhere
to: "All Employees of Homosassa Springs Attraction,
Sheraton. Homosassa Springs Inn, Springs Restaurant and
Lounge, Sportsmen' s Bar and Warehouse," notifying
them that effective November 1, 1983, Homosassa
Springs would no longer be operating these facilities and
the employees were all laid off as of that date. The name
and address of the new owner of each of the facilities
was contained in the memorandum as well as the infor-
mation that "any employee desiring to seek employment
with them may do so by contacting them at the follow-
ing address "
On November 1, 1982, Respondent began operations
of Louis - Pappas' Homosassa Springs Restaurant,
Lounge, Sportsmen's Bar, Warehouse and Gift Shop in
the facilities purchased from Homosassa Springs. At the
time of the sale on November 1, 1982, Homosassa
Springs had in its employ 216 bargaining unit employees
out of a total of 224 employees. The assets are valued at
$11.5 inillion. The sale of Pappas was approximately for
$1 million.
Respondent is a Florida corporation formed on Oc'to-
ber 5, 1982, for the purpose of purchasing certain assets
from Homosassa Springs. Its shareholders are Michael L.
Pappas, Jack ' L. Pappas, Lucas Pappas, .and Frank Zeiss.
Frank Zeiss is the president of the corporation and its
chief operating officer.-No officer or shareholder of Re-
spondent had any prior connection to or involvement` in
either Homosassa Springs or Norris Developin'g'-Compa-
ny, a Division of Norris-Grain Company.
Respondent is engaged in the sale of food, gifts, and
liquors, 'as was its predecessor Homosassa Springs, Inc.,
in- the operation of the Springs Restaurant and Lounge,
Sportsmen's Bar, and gift shop
-Respondent began operating 'on November 1, 1982,
when Homosassa Springs ceased its operations and con-
trol of its Springs Restaurant and - Lounge, Sportsmen's
Bar, and warehouse and gift shop. Respondent began its
-operation with 55 individuals, including 4 supervisors, I
security guard, and 3 office clericals. Of the 55.,individ-
uals 50 were ' formerly -employed by Homosassa 'Springs.
The' following is a comparison of working 'condition
and benefits between Homosassa Springs' and Respond-
ent:
. Management structure: -
.Under Homosassa Springs -. -
President,' geiIeral manager; 19 depai•tments; 22.4 em-
pl'oyee`s
Under Luis Pappas: '
President and general manager; 1 department; 54
employees . _
=Wage increases:
Homosassa Springs
By collective bargaining negotiation on contract an-
niversary by department and classifications
Louis Pappas:
Periodic by merit
Seniority:
Homosassa:
By department based on date of hire for layoff, va-
cation, selection, etc.
Louis Pappas:
None
Vacation:
Homosassa Springs:
1 week after 1 year
2 weeks after 3 years
3 -weeks after 8 years
4 weeks after 13 years
Louis Pappas:
1 week after 1 year
2 weeks after 3 years from LP date of hire
Holidays:
Homosassa: 8
Louis Pappas: 6
Paid sick leave; Miry duty leave; funeral leave:
Homosassa : By contract
Louis Pappas: At employer discretion
Uniforms:
Homosassa : 3 provided
Louis Pappas: None provided
Health insurance:
Homosassa: Family coverage paid by employer
to union plan -
Louis Pappas- Employer pays 1/2 employee cov-
erage .
Respondent purchased all food and beverage inventory
on the premises it bought from Homosassa Springs, to-
gether with, all kitchen, dining room, lounge, and gift
shop _ "fixtures - aril equipment Respondent has added
stoves and oyeris' to the kitchens as well as other •equip-
ment, including new, logos, decorations, signs, and inven-
tory.
The Request for Bargaining ' •
On November,2, 1982, the,Union through Hotel Em-
ployees and, Restaurant Employees, International Union,
Local 737, AFL-CIO; ;Secretary-Treasurer , and former
Business Agent Harvey Totzke Jr. requested Respondent
President and Operating Manager Frank Zeiss by tele-
phone and by letter of the same date'to bargain with the
Union as the certified representative of the employees in
the employ of Respondent.
LOUIS PAPPAS' RESTAURANT
About November 2, 1982, Respondent refused to bar-
gain with the Union on matters concerning wages , hours,
working conditions, and other terms and conditions of
employment, for the employees employed by Respond-
ent.
Since 1972, Hotel, .Motel, Restaurant Employees and
Bartenders Union, Local 737, AFL-CIO has acted on
behalf of the, Hotel Employees and Restaurant Employ-
ees, International Union, AFL-CIO-CLC.
The following is a list of assets owned or operated by
Homosassa Springs prior to October 31, 1982:
1. Sheraton Homosassa Springs, Inc.
2. Springs Restaurant
3. Springs Lounge
4 Sportsmen's Bar
5. Springs Gift Shop
.6 Springs Warehouse
7. Attraction Park and Boats
8. Yardarm Restaurant -
9. Ships (Captains) Lounge
10. Bait Store
11. Riverside Villas Motel
12. Riverside Gift Shop
13. Riverhaven Apartments
14. Crow Nest Restaurant
15 Riverside Warehouse
On November 1, 1982, Attraction Park and Boats and
the Sheraton Homosassa Springs were sold by Homo-
sassa Springs, Inc. to two other parties. At the time of
the sale 19 employees were employed at the hotel and 15
at the attraction.
Homosassa Springs, Inc. retained its ownership, con-
trol and operation of the Riverside Villas Motel, Bait
Store, Yardarm Restaurant and Ships Lounge, Riverha-
ven Apartments, Crows Nest Restaurant , and Riverside
Villa Warehouse.
IV THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent discriminated
against Linda Locklear in hiring because of her union ac-
tivity 2
In March 1982, Union Business Agent Harvey Totzke
met with Troy Baker and Lucius Dyal Jr., counsel for
Homosassa Springs (HSI),3 for the purpose of negotiat-
ing an extension of the collective -bargaining agreement
between the parties. The negotiators for the Union were
Totzke, Shirley MacCourt (union president), and bar-
_ gaining unit employees Linda K. Locklear, Margaret
Hartung, Salley Stobaugh, and Pamela Mijewski. During
the negotiations it was revealed that HSI was attempting
to sell its assets. Totzke asked whether a new owner
would assume the union contract or be willing to bargain
with the Union. Attorney Dyal responded that HSI
would not -obligate a prospective buyer to assume the
contract, but -a prospective buyer would be "made aware
of the fact that a contract did exisi." '
2 At the commencement of the hearing the complaint was amended in
several respects on motion of the General Counsel Those amendments
'are discussed in the transcript
3 Dyal is also counsel for Respondent
1523
In June or July, Frank Zeiss and several members of
the Pappas family, which has owned a restaurant in
Tarpon Springs, Florida, began discussions with -HSI
concerning the purchase of certain HSI assets. In August
1982,4 the group decided to purchase the Springs Res-
taurant and Lounge, Sportsmen's Bar, Gift Shop and
Warehouse located at Homosassa Springs, Florida. The
restaurant and lounge and gift shop were housed in the
same building. The Sportsmen' s Bar is located a short
distance away (also on U.S. Route 19). The warehouse is
400 feet west of the restaurant facility. A smaller ware-
house is located adjacent to the restaurant facility. As
previously indicated sale was consumated on November
I and Respondent assumed control and began operating
on that date.'
Juanita Bell, food and beverage director for HSI, told
Linda K Locklear, who was a union steward and wait-
ress on the night shift, about the pending sale. Bell told
Locklear to "make sure that everyone was working up
to par." Bell also told Locklear that she doubted very se-
riously if there would be a union. After that, Bell told a
group of waitresses in the waitress area that the restau-
rant was being sold to the Pappas, that there was no
reason to feel that there would be a union.
Linda Locklear was a steward, a negotiator for the
Union , and an otherwise active member of the Union
and everyone knew it. Business Agent Harvey D. Totzke
testified that Locklear was a union steward and that she
participated along with Pamela Milewski in the last
union negotiations.
Linda Locklear testified that Jack Pappas had told her,
along with Pam Mijewski , and others, that everyone
would be hired. She further testified that she thought she
got along with Juanita Bell, Susan Hibbert, and Mary
Hines . She also testified that she was a good waitress and
a very active union member; that both Lottie Bresler and
Pam Mijewski were hired by Respondent, but she was
not.
General Counsel's witnesses Jerry Lee and Lottie
Bresler testified that Locklear was a good waitress and
that Jack Pappas had assured the girls that everyone
would be hired. Thus, the testimony shows that Linda
Locklear was believed by the witnesses to be a good
waitress and that she was an active union member. It
was also established that Locklear, along with other Ho-
mosassa employees , was assured by Jack Pappas that
none of the girls had anything to worry about.
Linda Locklear and eight other employees were not
hired by Respondent. Of the 48 employees hired by Re-
spondent, 14 were union members. However, the. Gener-
al Counsel presented no direct testimony that Respond-,
ent engaged in discrimination against Linda Locklear be-
cause of her union activities.-
Frank Zeiss, president and chief operating officer of
Respondent, asked Bell for recommendations on who to
hire. He said he did this because he had the final author-
ity but did not know any of the employee applicants.
Bell, in turn , asked her three supervisors for recommen-
dations concerning who to hire and who not to hire. All
4 All events herein occurred in 1982 unless otherwise specified
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three supervisors had recommended that Locklear not be
hired, as- did Bell, who also recommended to Zeiss that
eight others also not be hired. Zeiss accepted the recom-
mendations and none of the nine was hired.
On the issue of whether Linda Locklear's union activi-
ties had anything-to do with the recommendations that
she not be hired, Bell testified that Frank Zeiss and she
had not discussed Locklear's union activity nor that of
any other employee not hired. Bell also testified that she
did not resent either Locklear's complaints about, her or
her union activities. She said that her union activities had
nothing to do with her recommendations nor was the
fact that Linda Locklear was a union steward even men-
tioned in her discussions with Zeiss or the supervisors
concerned. Bell, on the other hand, recommended that
Dottie Bresler and Pam Milewski, both of whom were
active in the Union, be hired.
Of the three supervisors who made recommendations,
Hibbert, Hines, and Holmes, Hibbert testified that she
did not recommended Locklear for hiring because she
was "argumentative, disruptive, had a poor attitude and
disrupted the other girls." Hines testified that she did not
recommended Locklear for hire because of hei "poor at-
titude, loudness, and her argumentative nature." Holmes
did not testify. Supervisor Hines recommended Pam Mi-
jewski, who she thought at the time was a union stew-
ard, thus revealing that she did not hold the union activi-
ties against Locklear, nor considered them in her recom-
mended for employment.
Frank Zeiss -testified, consistent with the other ° wit-
nesses of Respondent, that his decision not to hire' Linda
Locklear was not based on union activities: In fact,'Zeiss
said that at the time he made his decision not to hire her
he could not tell apart from the other applicants.
Respondent 's witnesses Zeiss, Bell, Hibbert , and Hines
all testified credibly, consistently, and without hesitation.
I am convinced that Respondent did not hire-Locklear
because she was a below average employee who -was ar-
gumentative and disruptive, had a poor attitude, and was
unable to get along with her fellow employees: None of
these-reasons are based on her union activity. I find that
the General Counsel has not shown by a preponderance
of the evidence that Linda Locklear was not hired be-
cause of her union activity, in violation of Section 8(a)(1)
and (3) of the Act I, therefore will recommend dismissal
of those allegations of the complaint -
A., The Separate 8(a)(1) Allegation :
Section 6 of the complaint alleges that Respondent
violated Section 8(a)(l)-of the Act by the following con-
duct: ' that about October 24,-1982,, Respondent, acting
.through Marion Juanita Bell, ,at Respondent's facility, ex
pressed to -an employee the futility of 'supporting a labor
- ' 'organization.
In-support of that allegation the-General 'Counsel of---
fered- the following evidence: Marion 'Juanita Bell, ac-
cording to'the-testimony of Linda'Locklear, told a group
of waitresses in the -waitress area-that the restaurant was
being sold to'the Pappas and "that she felt that there was,
no reason to'feel that there would be a union , and there
would be no union." Lottie Bresler testified that between
I and 2 weeks-before the sale, Bell asked Bresler if she
would like to go on the morning shift if she were hired
by the Pappas, or if she could work during the times that
she had had off to attend church. Bresler 'replied that she
would prefer to "play-it by eat,"'but would work morn-
ings if she had to do so. At that point, Bell informed
Bresler, "there would be no union : those were the
words, dust out of the"blue . there would be no
union." - Bell; on the other hand, testified-that although
she did not recall telling employees that there would not
be a union, she adniitted that she "might have said that
with a new company there is usually not a union'or
something like that."
Do these remarks by Bell constitute a violation of the
employee's Section 7 rights and therefore a violation of
Section 8(a)(1) of the Act? It is clear that Juanita Bell
had no actual or apparent authority to decide for Re-
spondent whether there would be a union or not, consid-
ering the fact that her own employment status at the
time was not definite Moreover, there is not any evi-
dence that she may have been.,privy to or participated in
Respondent's decision to refuse to recognize and bargain
with the Union Given those circumstances, her remarks
are an expression of her own opinion and nothing more
Consequently, I do not-consider the remarks as either in-
tended to be or in fact were an interference with the em-
ployees' Section 7 • rights. There-is no evidence, that Bell
had any knowledge whether Respondent would recog-
nize the Union at the time she made them. Moreover, it
was not definite at that time that she would become a
permanent employee of Respondent Thus, in the ab-
sence of a showing of union-animus on Bell's part, an in-
ference can hardly be drawn concerning her motives
The General Counsel cites Love's Barbeque Restaurant
No. 62, 245 NLRB 78 (1979), to support her contention
that a violation of Section 8(a)(1). occurred by Bell's
statements. Ih the Love's case the Board found that tell-
ing employees that it will not be operating a unionized
restaurant and -taking pictures of employees who have
been engaging in picketing or other protected concerted
activities was a violation of Section 8(a)(1) The remarks
were made by the respondent's owner Karl Kallmann,
who unquestionably had the authority to decide whether
the union would be recognized, and not from an unau-
thorized, uniformed low-level supervisory employee who
presumably, according to the facts adduced, at the time
was neither a part-owner nor certain to remain an em-
ployee of the new employer, respondent. In, my judg-,
ment, Love's Barbeque Restaurant No. 62 is distinguish-
able.
The General Counsel : also cited Marathon Metallic
Building Co; 224 NLRB 121. (1976), to support a finding
of'an 8(a)(1) violation. There, the plant manager made a
speech advising 'employees that the company' did not
want the union and that it would not be good for them
The Board found that the message - intended and con-
veyed was that by the union's filing a petition-for an
election, the employees were being :deprived of benefits
they might otherwise have received and that these bene-
fits would be restored immediately if the union lost the
election . Conversely the benefits would :not be' restored
for an indefinite period of time if the union won the elec-
LOUIS PAPPAS' RESTAURANT
tion The Board thus concluded that the respondent
thereby coerced, restrained, and interfered with the em-
ployees' right to a free choice in violation of Section
8(a)(l) of the Act No such factual situation exists in this
case As.for Magnolia Manor Nursing Home, 260 NLRB
377,. (1982), also relied on by the General Counsel, the
specific matter contained in the administrative law
judge's decision wherein he found an 8(a)(1) violation is
as follows-
(5) Futility of union support- On May 2 and May
3, respectively,,. Jewell told employees Holloman
and Tucker on different occasions that the Union
was not, going to tell him what,to pay employees or
how he should run the nursing home. [The judge
cited Marathon Metallic Building Co., 224 NLRB
121, discussed above, among other cases in that
footnote I
I do not consider, the Magnolia Manor Nursing Home de-
cision ' in point either. In the first place, Kenneth 'Jewell
was the owner of the nursing home and not just a'super-
visory employee when he ' made those remarks, and as
such was speaking for the respondent. The remarks were
more than an expression of an opinion as to whether or
not a succesor was going to bargain with the union. It
amounted to a real threat that he would not bargain with
the union.
As previously indicated, Supervisor Bell had no au-
thority to speak for her new employer and was merely
expressing an opinion as to whether or not the new em-
ployer would recognize the Union. As it turned out, the
new employer refused to recognize and bargain with the
Union which conduct resulted in 'the 8(a)(5) charge
which is in issue in the instant case.
B. The Successorship Issue
Factors to be considered in reaching a conclusion as to
whether an employer is a successor are: (1) whether
there has been a substantial continuity of the same busi-
ness operations ; (2) whether the new employer. uses. the
same plant ; (3) whether the alleged successor has the
same or substantially the same work force; (4) whether
he employs the same supervisors , (5) whether he uses-the
same machinery , equipment , and methods of production;
and (6) whether he manufacturers the same products or
offers the same services . Stewart Granite Enterprises, 255
NLRB 569 (1981 ), Not all of the above factors need be
present to find a successorship , however . Jeffries Litho-
graph Co., 265 NLRB 1499 ( 1982).
In the instant case Respondent is engaged in substan-
tially the same business operations producing similar
goods and services (food and liquor service and gift
sales). In addition , Respondent uses the same facilities
and essentially the same equipment as did its predecessor
Even though Respondent installed ' newer and more effi-
cient equipment , including a new refrigerator , cooler,
broilers, and ovens, such equipment is the same type-as
used by the predecessor The alteration of .the menu to
emphasize Greek food is not the type of change that
alters the nature of the employing industry .. Food was
served before and food is now served by Respondent.
1525
Although the working conditions were changed by
Respondent -on taking over, i.e., the changes in benefits
including sick, jury duty, and funeral leave, those
changes have no effect on the kind of work being per-
formed or the skills required to perform the work.
When Respondent began its operations all but two of
the new Pappas employees had been bargaining unit em-
ployees in the employ of HSI before the takeover Thus,
95.8 percent of Respondent's employees were former
HSI employees. Respondent retained a clear majority of
the bargaining unit when it took over the HSI oper-
ations The fact that Respondent increased its comple-
ment of employees to a point where 3 months later it
more than doubled the original complement, is not con-
trolling. In- addition , five out of six of the supervisors
employed by Respondent on November 1 had been
working for HSI doing essentially the same type of
work: The sixth, Frank Zeiss, president and operating of-
ficer of Respondent, had not been employed by HSI.
Also of significance is the fact that there is no evidence
to suggest that the employees' desires concerning con-
tinuing to be represented by the Union have changed as
a result ' of_ the transition . Ranch-way, Inc., 183 NLRB
1168 (1970).
Respondent purchased only part of HSI's assets.
Indeed, approximately a month after the sale to Re-
spondent, HSI entered into a new contract with the
Union with a termination date of December 1983. Even
though only part of the. employees of the unit remained
with HSI after the sale to Respondent the contract refers
to the unit described in the Board's certification.
Thus, we are confronted .with a situation in which
only a portion of the predecessor employer's operations
was purchased and less than half of the number of em-
ployess in the former unit were employed by the Re-
spondent Although Respondent employs. fewer employ-
ees in. its operation than were employed by HSI before
the sale, that in itself is not determinative of whether the
smaller unit is appropriate. However, .if coupled with a
smaller number of. employees -there is a change in the
size and structure of the new employer that may.consti-
tute a change in the nature of the employing industry
which might render a finding of successorship improper.
All the factors must be examined in order to resolve the
issue.
In Atlantic Technical Services Corp., 202 NLRB 169
(1973), enfd. 498 F 2d 680 (D C. Cir.`1974), cited by both
the General Counsel and Respondent, the court, on. en-
forcing the Board order, recognized that although a ma-
jority or 27 out of 41 accepted positions with Atlantic
Technical Services Corp., the 41 employees (who .consti-,
tuted the entire work force in the distinct and functional-
ly separate operation of mailing and distributing items
throughout a large installation) had been added by accre-
tion to an established bargaining unit of some 1100 other
employees of the TWA Space Center. The acceptance as
an accretion to the unit had been accomplished sometime.
before by mutual informal agreement of TWA and the
.union, apparently without opportunity for a vote on the
part of the 41 persons thus- added to the bargaining unit.
No occasion arose then or thereafter for a formal certifi-
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
cation proceeding or determination of majority support.
The court said that "the fact that the Union had repre-
sented these employees in the past has less evidentiary
weight than it would after Board certification."
The circumstances in the Atlantic case, supra, wherein
the accretion to the unit of the 41 employees by consent
of the employer and the union without an opportunity
for the employees to express whether or not they wanted
to be represented by the union, distinguished that case
from the line of cases recognizing at least a presumption
of majority, support for the union, the leading case of
which is NLRB v. Burns Security Services, 406 U.S. 272
(1972). In enforcing the Board order, the court upheld
the Board's findings that the duty to bargain arose after
Atlantic polled the employees and found that a majority
wished to be represented by the union. Thus, at that
point, and not by virtue of successorship, did an obliga-
tion-to recognize and bargain with the union arise. The
Board found there was no basis to conclude that Atlantic
was a successor-employer to TWA because=of the failure
of any of the 41 employees to have expressed support for
the union at any time prior to the takeover by Atlantic,
and thus a presumption of majority could not have ap-
plied since there was no expression of majority support
for the union by these employees in the first place. Only
after they were given an opportunity by Atlantic to ex-
press their wishes did a majority of the employees dis-
close a desire to be represented by the union. Thus arose
the bargaining obligation and riot by virtue of the doc-
trine of successor-employer discussed and construed in
Burns.
In the instant case the certification occurred several
years before the takeover by Respondent • But in the ab-
sence of-any unusual circumstances, such as accretion to
.the unit by agreement of the parties without participation
of the affected employees, as in Atlantic, supra, the pre-
sumption of majority status continues after the takeover
by respondent. Respondent argues that -the burden of
demonstrating some basis for majority status in the unit
sought'is on the General Counsel. I disagree. The burden
of overcoming the presumption' of continuing majority
status is on the Respondent.
C. The Unit
Respondent argues that there has been a major change
in the unit and thus under Burns, supra, it cannot be
found to be a successor.
The unit began 'in 1969 and `included a tourist- attrac-
tion, a restaurant, a bar, gift shops, a motel, and a hunt-
ing presevere.' The unit had an employee complement of
110. As the, years passed, the employer and the Union
changed but ' the new employer ` (HSI) ' recognized, the
Union '(the Laborers Union dropped out of the 'picture).
However, the unit did not change in the' sense that it
changed in the Atlantic case Over the years, it did in-
crease in size so that on October 31, 1982, there were
216 unit employees 5
5 Although there was an elimination of a portion of the original unit
and the inclusion of a new hotel in the unit, the employees concerned -
were employees of operations which were in place when the original cer-
tification occurred and thus were in jobs that were in existence at the
On the question of recency of certification , the admin-
istrative law judge in Stewart Granite Enterprises, 255
NLRB 569 ( 1981),;m referring to the "recency of certifi-
cation" as was the case in Burns noted that it had been
repeatedly held that when other factors favoring treating
an employer as a successor are present , it is of no signs=
fance that the union may not h ave been "recently" certi-
fied , citing Alondra Nursing Home, 242 NLRB 595
(1979), and other cases
In arguing that it is not a successor within the meaning
of Burns, Respondent states that a radical change in man-
agement structure occurred , the old unit had 19 diverse
departments interacting together with hotels , attractions,
and other activities , while Pappas has only 1 department;
the restaurant bought by Pappas was changed radically;
the theme of the restaurant is now Greek, not coven-
tional ; new logos, equipment, decor , menus, supervisory
structures, products , and hours of operation were insti-
tuted ; and finally in the 3 months time it took to take
over , enough new employees were hired to swing the
percentage of former HSI employees to below the 50-
pecent mark Respondent contends further that this was
all part . of its preconceived plan to change the operation
to a new and different kind of place. They did continue
to sell food , gifts, and liquor, but the similarity stopped
there . They no longer sold boat rides , fish shows, animial
acts, river rides , or hotel rooms . They no longer had the
same customers nor did they have the same kind of oper-
ation . Respondent relies on Atlantic Technical Services
Corp., -supra , to support its position and concludes that
this is a case in which the Union must assert and prove
its majority.
The General Counsel , on the other hand , points out
that although it is true that HSI, in its total operations,
operated restaurants , lounges, gift shops, warehouses,
hotel rooms , a bait store, and an attraction park , and al-
though there were more job classifications and depart-
ments under HSI operation , Respondent , like HSI, oper-
ates a restaurant , lounge, gift shop , and warehouse An
insignificant number-of employees , only 20 of the 180 in
the bargaining unit , were engaged in HSI 's operations of
the hotel rooms , bait store, and attraction park.6 The
General Counsel concludes that except for this- insignifi-
cant portion of the business , HSI and Respondent were
engaged in the same operations , the only difference being
that Respondent is operating on a smaller scale than was
HSI before the sale.
Although Respondent contends that it had not
achieved a substantial compliment of employees at the
time the bargaining demand was made, the Respondent
did assume ' an ongoing business without a hiatus in oper-
ation and began its operations with 'a majority of the
former 'bargaining unit employees . Although the hoped-
for expansion of business had not been fully achieved,
the bargaining rights , and the interests of the former unit
members and the , new employees and those of the em-
time of the original certification They were never part of a distinct and
functionally separate operation that was added by "accretion" as was the
case in the Atlantic, supra
6 The stipulated facts indicate that 19 were employed at the hotel and
15 at the attraction park -
LOUIS PAPPAS' RESTAURANT
-ployer are best accommodated and balanced by deter-
mining the majority status of the Union as of the-date the
new employer began operations with a representative
complement, even though the hoped-for expansion of
customers and operating • personnel had not been fully
achieved Premium Foods, 260 NLRB 708 (1982).
As' pointed out by the General Counsel, Respondent's
busiest season of the year extends from the end of De-
cember until Easter. Therefore, Respondent needed a
larger work force during February than it did in Novem-
ber when it assumed operations of the facilities. In addi-
tion, the nature of the restaurant business is such that it is
not unusual to have a higher. turnover of employees.
Thus, the use of the peak period as a determining point
would permit Respondent to unjustly benefit from
having on its rolls a large number of employees to ac-
commodate the peak season , which employees probably
would not have been retained by Respondent when the
peak season ended.
In these circumstances, it would seem that the unit size
should be determined not during the peak season when
the rolls are inflated (about 3 months of the year) but
during the nonpeak times. The unit size should be based
on the number employed for the greater part of the year.
Nor does Respondent's argument that it had good-faith
doubt as to the Union's majority status as of November 2
have merit. Even though only one of the employees who
voted in the representation election remained an employ-
ee at the time of the takeover, and only a part of the
former HSI employees employed by Respondent were
on dues checkoff, those factors, alone do ,not establish
good-faith doubt. Membership in or financial support of
a labor organization does not establish the number of em-
ployees who still desire union representation. Premium
Foods, supra, 260 NLRB 708 (1982); Orion Corp., 210
NLRB 633 (1974). An employer's good-faith doubt of a
union's continued status as representative of the majority
of its unit employees is, not established `merely by show-
ing that a majority of employees do not belong to the
union. The employer must show 'sufficient evidence to
support the reasonable good-faith doubt upon which the
refusal to bargain 'is based. B & B Gallo Pest'Control ,Serv-
ices, 265 NLRB 535 (1982), Here Respondent has pre-
sented no evidence to support a good-faith doubt of the
Union's majority status, either at the' time 'of the Union's
demand, or in February 1983 The burden is not-on the
General Counsel to show Respondent's-lack of a good-
faith doubt of majority status, but on the Respondent to
prove'a good-faith doubt:of majority status.
I' conclude, therefore, that Respondent is a successor-
employer and as sucli violated Section 8(a)(5) and (1) of
'tlie `Act by refusing `to bargain with' the. Union in-re-
sponse to the Union's demand for'bargaining` on Novem-
ber' 2
CONCLUSIONS'OF'LAW -
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2' The Union is labor organization within the meaning
of Section 2(5) of the Act
3.1 An appropriate unit ' for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act is:
1527
All employees employed' at Louis Pappas' Homo-
sassa Springs Restaurant, Inc.'s facilities; excluding
all office clerical employees, guards and supervisors
as defined in the Act.
4. At all times material herein, the Union has been the
'exclusive collective-bargaining representative of the em-
ployees in the above-described unit.
5. Respondent is a legal successor for labor relations
purposes to Homosassa Springs Incorporated's operations
of the Springs Restaurant and Lounge, Sportsmen's Bar,
gift shop, and warehouse.
6.' Since about November 2, 1982, and at all times
thereafter, Respondent has failed and refused to recog-
nize and bargain collectively in good faith the Union as
the exclusive representative of Respondent's employees
in the above-described unit and has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(5) and Section 8(d) and, derivatively, Sec-
tion 8(a)(1) of the Act
Respondent did not violate any provision of the Act
by not hiring employee Linda K. Locklear nor by any
remarks made by Respondent Supervisor Marion Juanita
Bell.
Insofar as the complaint alleges that Respondent, by
not hiring Linda K. Locklear, is in violation of Section
8(a)(3) and (1) of the Act, the complaint is pro tanto dis-
missed.
Insofar as the complaint alleges that Respondent,
through Marion Juanita Bell, violated Section 8(a)(1) of
the Act by remarks made to any employee concerning
the futility of•supporting a .labor organization, the com-
plaint is pro tanto dismissed.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7 `
ORDER
The Respondent, Louis Pappas' Homosassa Springs
Restaurant, Inc., Homosassa Springs, Florida, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing - to recognize and to bargain
collectively in good faith with the Union, Hotel Employ-
ees and Restaurant Employees, International Union,
AFL-CIO-CLC as the exclusive collective-bargaining
representative of Respondent's employees in the- unit
'found appropriate. - ' '
(b) In 'any like or related manner interfering 'with, re-
straining, ` or coercing employees ' iii the exercise 'of the
rights' guaranteed them by Section`7 of the'Act.
2.' Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and on request bargain in-go- -faith
With the' Union as the -exclusive` collective-bargaining
representative of its employees in'the' "unit found appro
7 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all'bbjections to them shall'be deemed'waived for all pur-
poses
1528 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate respecting rates -of pay, hours of work, or other
terms and conditions of employment; and, should any un-
derstanding or agreements be reached, on request of the
Union, embody the same in a written and signed instru-
ment.
(b) Post at- its Homosassa Springs, Florida restaurant
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Regional
8 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals. Enforcing an Order of the Nation-
al Labor Relations Board "
Director for Region 12, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. -
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the 'Re-
spondent has taken to comply. - - - - -