Oklahoma Sheraton Corp.

National Labor Relations Board - Board Decisions

Jan 7, 1966

156 N.L.R.B. 681 (N.L.R.B. 1966)

OKLAHOMA SHERATON CORPORATION 681
WE WILL NOT coercively interrogate our employees concerning their union
membership, activities, and desires.
WE WILL NOT interrogate employees concerning, or request that they furnish
us copies of, the statements which they give the National Labor Relations Board
during its investigations.
WE WILL NOT threaten employees with discharge for signing membership
cards in the above-named or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of their right to self-organization, to form, join, or assist said
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local Union No. 667, or any other labor organization, to
bargain collectively thiough representatives of their own choosing, or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
WE WILL offer to Barry James Looney immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay which
he may have suffered as a result of our discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization.
BRASWELL MOTOR FREIGHT LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE -We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be alteied, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161.
Oklahoma Sheraton Corporation and Hotel & Restaurant Em-
ployees and Bartenders International Union , Local 246, AFL-
CIO. Case No. 16-CA-2356. January 7,1966
DECISION AND ORDER
On October 25, 1965, Trial Examiner Frederick U. Reel issued his
Order Granting Motion To Dismiss in the above-entitled proceeding,
finding that the Respondent had not engaged in the unfair labor prac-
tices alleged in the complaint, and recommending that the complaint
be dismissed in its entirety, as set forth in the attached Trial Exam-
iner's Order. Thereafter, the Charging Party filed a request for
review.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
156 NLRB No. 69.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Order, the request for review, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as modified herein.'
[The Board adopted the Trial Examiner's Order dismissing the
complaint.]
1In adopting the Trial Examiner ' s recommendation for the dismissal of the complaint,
we rely only on the finding that the General Counsel had failed to establish that the
Respondent in bad faith declined to recognize the Union on the basis of the Union's
proffered card showing . John P. Serpa, Inc., 155 NLRB 99. We do not adopt the
Trial Examiner ' s conclusion that the Respondent's good-faith doubt as to the appropriate-
ness of the unit, even If it had been erroneous , would constitute an independent defense
to the alleged refusal to bargain. United Aircraft Corporation ( Hamilton Standard
Division) v. N.L.R.B., 333 F. 2d 819 (C.A. 2), cert. denied 380 U.S. 910; Southhand Point
Company, Inc., 156 NLRB 22
TRIAL EXAMINER'S ORDER GRANTING
MOTION TO DISMISS
This proceeding 1 is before Trial Examiner Frederick U. Reel on Respondent's
motion to dismiss which was made following the close of General Counsel 's case-in-
chief, which I heard at Oklahoma City, Oklahoma, on September 28 and 29, 1965,
pursuant to a complaint issued July 16, 1965, on a charge filed June 1 , 1965. Upon
considering the evidence adduced by General Counsel, and the memorandum filed
in his behalf , I am of the view that the motion to dismiss should be granted , pursuant
to the following.
FINDINGS OF FACT 2 AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
As found in a prior proceeding involving the same parties (Case No. 16-CA-2049,
152 NLRB 759), and as established by the pleading herein, Respondent , herein called
the Company, an Oklahoma corporation engaged at Oklahoma City in operating a
hotel, is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act, and the Charging Party, herein called the Union , is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
In 1961 the Union attempted to organize the Company's employees. At this time
the Union originally sought a bargaining unit embracing all the employees of the
Company, with statutory exclusions. The Company stated that it would agree to a
consent election in a smaller unit, excluding office clericals, cashiers , and other
"white collar" employees. The unit placement of certain casual and part-time
employees was also discussed , and the parties eventually agreed to a consent election
in the unit urged by the Company. The Union at this time had authorization cards
signed by 190 employees. Nevertheless, the Union lost the first election in 1961 by
a vote of 132 to 38. This election was set aside pursuant to objections filed by the
Union, and in a second election held in 1961, the Union lost 92 to 41.
In 1964 the Union again started to organize. On March 13, 1964, the Company
discriminatorily discharged the union leader, Leslie Brown. The Board ordered
Brown reinstated (152 NLRB 759, decision dated May 21, 1965, not yet complied
i The caption of the case reflects the correct name of the Respondent , pursuant to
amendment of the complaint made at the outset of the hearing.
2 All facts here found are based on giving the fullest possible weight to the testimony
and offers of proof on behalf of General Counsel. Some of these "facts" may be con-
troverted by the Respondent if the case should be remanded for further hearing.
OKLAHOMA SHERATON CORPORATION 683
with, awaiting review in the Tenth Circuit). Notwithstanding Brown's discharge,
the organizing campaign continued, and led to the instant proceeding.
B. The Union again obtains a card rnajoi ity, and vainly requests bargaining
After Brown's discharge, Union Representative Ellenbarger told Hotel Manager
Pennella that the Union would conduct a campaign at the hotel, and expressed the
hope that the Company would also conduct a fair campaign. The Union did obtain
a number of signed authorization cards, and on Friday, April 9, 1965, Ellenbarger
called on Pennella and presented him with both an oral and a written request for
recognition and bargaining.
At this meeting Ellenbarger handed Pennella 112 authorization cards signed by
employees between February 17 and April 9, 1965. Ellenbarger also handed Pen-
nella a letter which recited that a majority of the employees "in a unit consisting of
all employees in housekeeping, food and beverage, uniform services, repair and
maintenance, heat, light and power departments, parking lot attendants and telephone
operators" had designated the Union as their bargaining representative. The letter
continued, "We offer to prove this majority status through a card check" and con-
cluded by requesting a meeting for contract negotiations. Pennella read the letter
and looked over the cards, commenting with respect to a few that the employees had
left the Company or had been promoted to supervisors He stated, "You know I
will have to check these with the Payroll Department, I don't know whether they
are my employees or not." Ellenbarger replied that he would be happy to have
Pennella check with the payroll clerk and with a disinterested party, such as a clergy-
man. Pennella then commented about the inclusion of waiters, to which Ellenbarger
returned, "This is the same unit that the Hotel, the Company, and the Union con-
sented to in the last election." Pennella pointed out that he had not been with the
Oklahoma hotel at that time, and Ellenbarger said that he would get the pertinent
papers from his files and furnish Pennella with copies.
Pennella then said, "Well, I will have to check this out with Boston [headquarters
of the Sheraton Hotel chain].... Well, of course, I will have to do whatever Boston
says.... Well, I'll have to check out with Boston, and, whatever Boston says, well,
this is what I will do."
Ellenbarger returned to his office, extracted the pertinent papers from the 1961
case, and telephoned Pennella, offering to bring him the papers. Pennella "said that
this would be helpful, and said that he would have to check this out with Boston."
Ellenbarger replied that he realized this as he "had a boss, too." Ellenbarger that
afternoon delivered the 1961 documents to Pennella's secretary
On April 12 Ellenbarger again wrote Pennella, reciting that on April 9 Pennella
had examined the Union's cards and had expressed a desire to have the cards checked
by the payroll department The letter continued: "We offer to comply with your
request by presenting the cards to a mutually agreeable disinterested party, such as
a clergyman." In the letter Ellenbarger again suggested the unit used in the 1961
election as appropriate. He concluded by requesting an early meeting to negotiate
a contract. The letter made no reference to Pennella's oft-repeated statement that
he was going to check with the Boston office of the Company. One week later
Ellenbarger called Pennella and asked for a meeting, and Pennella replied that under
instructions from Boston he could not meet with Ellenbarger unless the company
attorney were also present, a condition to which Ellenbarger readily agreed On
April 23 Pennella replied in writing to the letter of April 12, taking issue with Ellen-
barger's assertions that Pennella had examined all the cards and that he had mentioned
the payroll department. Pennella's letter concluded.
Not only is there doubt as to the validity on the basis on which the union's
claim for representation is made, but also there is disagreement that the unit
requested is appropriate under the law. Therefore, the company must decline
your request for recognition unless and until the pertinent issues are resolved
by the National Labor Relations Board, which is the appropriate forum for
handling the issues here involved.
On April 28 Ellenbarger and two associates met with Pennella and company
counsel. Ellenbarger expressed the view that they could easily negotiate a contract.
Company counsel replied that the Company did not recognize the Union and would
not negotiate in the absence of an election and certification. As the meeting ended,
Ellenbarger offered to show the authorization card to company counsel, but the
latter declined to examine them. Subsequent correspondence passed between the
parties, but reflected no change of position. The Union continued to obtain author-
ization cards, and the Company continued to decline to recognize the Union unless
and until it was certified.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination Ellenbarger testified that at the Skirvin Hotel in Oklahoma
City the Union represented the employees in a large unit , comparable to that which
the Union had -first sought at the Sheraton in 1961 . Pennella, called as a witness by
General Counsel , testified that the present policy of the Sheraton , as he was advised
in Boston , was to seek more comprehensive units than that agreed to in the 1961
election.
C. Concluding findings
On the foregoing facts, which are either undisputed or rest on testimony of wit-
nesses called by General Counsel, and resolving all factual questions in favor of
General Counsel's version, I believe the complaint must be dismissed. First, there
is a good-faith dispute over the appropriate unit. In Arlington Hotel Company, Inc.,
126 NLRB 400, the Board indicated a preference for the all-inclusive unit here
sought by the Company but stated that it would honor agreements of the parties
excluding or including such groups as office clericals. In the instant case, no such
agreement had been reached. To be sure, agreement existed in 1961, but a change
of managers and a change of company policy since then left the matter open, par-
ticularly as no bargaining history resulted from the 1961 agreement. The unit
matter was thus one to be resolved by the Board, as the Company in apparent good
faith insisted. Under the recent decision in Clerniont's, Inc., 154 NLRB 1397,
no violation can be found, based on a card majority where the employer had a
good-faith doubt as to the appropriate unit. Second, the Company engaged in no
unfair labor practices after the demand for recognition, and, applying John P. Serpa,
Inc., 155 NLRB 99, it cannot be said that the Company "has completely rejected
the collective bargaining principle or seeks merely to gain time within which to
undermine the union and dissipate its majority."
Even accepting Ellenbarger's testimony that Pennella said of the cards, "I would
have to check these with our Payroll Department and our Payroll Clerk. . . .
You know, I will have to check these with the Payroll Department. I don't know
whether they are my employees or not," this is far short of an agreement, such as
existed in Fred Snow, et al. d/b/a Snow & Sons, 134 NLRB 709, to abide by a
card check by a neutral. Ellenbarger's testimony is most explicit that Pennella in
each of the conversations on April 9 stated that he would have to submit the matter
"to Boston," and Ellenbarger testified that he "assumed that [Pennella] was going
to tell them that [Ellenbarger] had met with him, showed the cards, and gave him a
letter requesting recognition."
Finally, General Counsel argues that the Company was not acting in good faith,
and that a fair election could not be held, because of the unremedied unfair labor
practice found in the prior case. But this unfair labor practice was committed in
March 1964, and the Union's cards were all signed in 1965. The unfair labor prac-
tice did not prevent the Union from obtaining the cards, and as no unfair labor
practices have been committed since the cards were obtained, it cannot be said that
the unremedied unfair labor practice has any tendency to dissipate a majority
acquired subsequent to its commission, or would prevent the holding of a fair
elections
It is therefore ordered that the Respondent's motion to dismiss the complaint be
granted, and said complaint is hereby dismissed .4
'In such an election the discriminatee could cast a challenged ballot . See Old-King
Cole, Inc. v . N.L.R.73., 260 F . 2d 530 (C.A. 6).
4 Under Rule 102.27 the parties have 10 days from the date hereof to which to file
with the Board a request for review of this Order.
Holly Hill Lumber Company and International Woodworkers of
America , AFL-CIO. Cases Nos. 11-CA-2593 and 1.7-RC-2048.
January 7, 1966
DECISION AND ORDER
On September 2.7, 1965, Trial Examiner Robert L. Piper issued his
Decision in the above-entitled proceedings, finding that the Respoiid-
156 NLRB No. 72.