Olympic Villas

National Labor Relations Board - Board Decisions

Mar 23, 1979

241 N.L.R.B. 358 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. B. Johnson Properties, Inc., d/b/a Olympic Villas
and Hotel, Motel, Restaurant Employees & Bar-
tenders Union, Local 737, AFL-CIO. Cases 12-
CA-7848 (1-2) and 12-CA-7910
March 23, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On October 25, 1978, Administrative Law Judge
George Norman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
cross-exceptions and a supporting and answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,' as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, W. B.
Johnson Properties, Inc., d/b/a Olympic Villas, Or-
lando, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) Maintaining, in effect, rule 12 of group II of
the Guide Book for Employees which prohibits solici-
tation or distribution of literature of any kind, by any
employee, anywhere on the premises without the gen-
eral manager's approval."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I We have modified the Administrative Law Judge's notice to conform
with his recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question you about your union
membership, activities, or desires.
WE WILL NOT create the impression of surveil-
lance.
WE WILL NOT threaten an employee by telling
him that if he is not satisfied with the conditions
at Respondent he can seek employment else-
where.
WE WILL NOT maintain, in effect, rule 12 of
group II of the Guide Book for Employees which
prohibits solicitation or distribution of literature
of any kind, by any employee, anywhere on the
premises without the general manager's ap-
proval.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed to them under Section 7
of the Act.
W.B. JOHNSON PROPERTIES, INC., D/B/A
OLYMPIC VILLAS
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: The origi-
nal charge herein (Case 12-CA 7848 1) was filed on Sep-
tember 6, 1977,' by Hotel, Motel, Restaurant Employees &
Bartenders Union, Local 737, AFL-CIO, herein called the
Union. The next charge (Case 12-CA-7848-2) was filed on
September 16, 1977, by the Union. A complaint thereon
was issued on October 12, alleging violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, herein called the Act. Another charge (Case 12-
CA-7910) was filed by the Union on October 13.
A consolidated complaint and notice of hearing based on
all the charges was issued by the General Counsel of the
National Labor Relations Board on November 8, charging
W. B, Johnson Properties, Inc., d/b/a Olympic Villas,
herein called Respondent, with violations of Section 8(a)(1),
(3), and (5) of the Act. On November 18, Respondent filed
an answer denying any violations of the Act as alleged.
A trial was held before me in Orlando, Florida, on De-
cember 20, 21, and 22 and February 8 and 9, 1978, at which
all parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs filed on
behalf of the General Counsel and Respondent have been
carefully considered.
Upon the entire record of the case and from my observa-
tion of the witnesses. I make the following:
FINDIN(iS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Georgia corporation licensed to do busi-
ness in the State of Florida where it has been engaged in the
management of hotel the lodging facilities, including Olym-
I All dales refer to 1977 unless otherwise indicated.
241 NLRB No. 54
358
OLYMPIC VILLAS
pic Villas located in Orlando, Florida, the only facility in-
volved in this case. During the past 12 months Respondent,
in the course and conduct of its business operations, had a
gross volume of business in excess of $500,000, and received
goods valued in excess of $10,000 from Florida distributors
who received such goods directly from points outside the
State of Florida. Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, Hotel, Restaurant Employees & Bartenders
Union, Local 737, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Olympic Villas was constructed in about 1972 and
operated as the "Sheraton Olympic Villas" until June 1977.
During that period the hotel had been operated by several
different management companies, all Sheraton franchises.
The hotel was in receivership from October 1974 until No-
vember 1976.
Respondent assumed ownership and management of the
Olympic Villas on June 24, and from the beginning Respon-
dent planned on operating the hotel under a Marriott fran-
chise by agreement with the Marriott Corporation of Wash-
ington, D.C.2 The franchise agreement between Respondent
and Marriott included detailed construction and renovation
plans which Respondent agreed to complete prior to actu-
ally commencing operations under the Marriott name. The
construction work was still under way at the time of the
trial in the instant case.
Respondent's officials were on the premises for the first
time on June 10 but were not allowed access to operating or
personnel records until the date of management change,
June 24. Upon assuming control of Olympic Villas, Re-
spondent effected almost a complete management change.
Its general manager, Jerry Temple: resident manager, Rich-
ard Arsenault; and executive housekeeper, Patsy Lairmore
were transferred to Olympic Villas from Respondent's hotel
facilities located elsewhere.
Upon assuming operation of Olympic Villas, Respondent
implemented the personnel policies contained in its divi-
sionwide employee handbook. Thus, the fringe benefits
(holidays, vacations, group insurance, etc.) became effective
June 24. Respondent's policy was to maintain a wage struc-
ture at each of its hotels which is competitive with the ho-
tels in the geographical area. At its other hotels; Respon-
dent had either conducted a wage survey or used the
facilities of franchisor Holiday Inn, Inc., to perform a sur-
vey before establishing a wage structure for the particular
hotel.
The Olympic Villas is Respondent's first hotel in the Or-
lando, Florida, area. Respondent's vice president, Mickey
Williams, requested Marriott Corporation to conduct a
' The non-Marriott owned "Marriott" hotels are owned and operated by
independent companies under a franchise agreement with Marriott.
wage survey for Respondent in the Orlando area. By letter
dated June 10, Williams was notified by Marriott that a
Marriott representative would spend 3 days in Orlando
starting June 29 "to develop a comprehensive wage, salary
and benefit program for the Olympic Villas upon your take-
over."' It was understood between the Marriott official and
Respondent's vice president, Williams, that the wage survey
recommendations would be implemented at Olympic Vil-
las. By letter dated July 6, Respondent's general manager,
Temple, sent to the Marriott representative the information
regarding Olympic Villas' wages and benefits which was
needed in connection with the contemplated survey. The
survey was undertaken and a report was prepared by the
Marriott representative.
The report was received by Respondent in mid-August.
The wage structure recommended in the report was imple-
mented without change by Respondent effective September
I following a review of cost impact by Respondent. The
recommended changes in titles of various job classification
at Olympic Villas contained in the report were also imple-
mented by Respondent. For example, "Houseman" was
changed to "housekeeping aide" and "inspectress" was
changed to "Sr. housekeeper." Pursuant to the franchise
agreement, Respondent started the remodeling and other
construction work.
On the day before Respondent's official takeover of the
operational control of Olympic Villas (June 23), a meeting
was held among the housekeeping department employees.
Vice President Williams and General Manager Temple in-
troduced themselves to the employees and spoke to them.
The employees were told about Respondent and the con-
struction and renovations on the property that Respondent
was about to commence pursuant to the Marriott Corpora-
tion franchise agreement. The housekeeping employees
were also informed that they were going to receive new
equipment and uniforms as soon as construction got under
way. Near the end of the meeting an employee asked
whether the employees would be receiving a raise. General
Manager Temple responded, "We will begin as soon as pos-
sible a wage survey of the area, and every employee in the
Olympic Villas will be reviewed. Their salary presently will
be reviewed with this wage survey's results."
On July 5 another meeting was held to introduce Resi-
dent Manager Richard Arsenault, and the executive house-
keeper, Patsy Lairmore, to the employees. At that meeting,
housekeeping employees were again told of the construc-
tion and renovation that were to take place at the facility.
The question of a raise was brought up and Mr. Temple
responded that he could not tell her about a raise at that
time but that "a lady" was coming to conduct a survey of
wage rates in the area and then he would let them know.
Mr. Temple testified that his response was "When the sur-
vey is completed I would certainly hope that everybody's
going to get a raise." Employee Bonnie Rieders testified
that at the July 23 meeting the employees were told that
they would get an increase in pay, that the laundry would
be fixed up, that they would get uniforms and have better
The Marnott representative's trip to Orlando was rescheduled and actu-
ally occurred on July 20, 21, and 22.
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working conditions, and that would not have so many
rooms to clean and make up.4
From the beginning of Respondent's takeover of the op-
eration of the Olympic Villas the morale of the employees
was low. Apparently, the low morale was caused by low
wages, poor benefits and working conditions, worn out
equipment, and frequent management changes. Respon-
dent, immediately upon takeover, implemented its fringe
benefit program and ordered new equipment. Upon the ar-
rival of Executive Housekeeper Patsy Lairmore on July 1,
she reported to Resident Manager Arsenault that the
housekeeping employees needed a wage increase immedi-
ately. Arsenault decided that it would improve morale if a
wage increase were given to the employees with longer ser-
vice so they proposed to General Manager Temple that
housekeeping employees be given a wage increases of 10
cents per hour for each year of service at Olympic Villas.
Pursuant to that recommendation, a proposed wage in-
crease was approved by Respondent and announced to
housekeeping employees on July 20, effective on the semi-
monthly pay period beginning July 15.
Of the 95 employees in the housekeeping department,
approximately 25 percent had been employed for the mini-
mum 1 year necessary to receive any wage increase, and
they received the increase. The remaining employees re-
ceived no increase as a result of the July 20 interim wage
announcement.
B. The Union's Organizing Campaign
The Union's organizing campaign at Olympic Villas be-
gan July 19.' Employee Rieders called union representative
Ed Page of that morning and obtained from Page a packet
of blank authorization cards.
On July 26, union business representative Litto sent Re-
spondent a letter claiming majority status and requesting
recognition in the employee unit described in a representa-
tion petition attached to his letter. The unit for which Litto
claimed representation was described as follows:
All full-time and regular part-time employees in the
housekeeping department, laundry and maintenance
department including gardeners.
At about the same time the Union filed a representation
petition with the Board.
From the beginning, Respondent's position has been that
only a hotelwide unit of employees would be appropriate. A
hearing on the representation petition was held on August
15. On August 31, 1977, the Regional Director issued his
Decision, Order, and Direction of Election finding the fol-
lowing described unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act:
All housekeeping and laundry employees, general
maintenance and groundskeeping employees, and bell-
4 Inasmuch as the Olympic Villas employees' wage rate, particularly in
housekeeping, was minimum wage (S2.30 or S2.35 per hour), there was a
high probability at the time that the wage survey would result in a recom-
mendation for wage increases.
5 Although union business representative John F. Litto testified that ac-
cording to his recollection the union campaign began in mid-June. I credit
employee Bonnie Rieders who initiated the campaign and who testified, as
did others, that it began on July 19.
man, employed by the employer at the Olympic Villas;
but excluding all other employees, food and beverage
employees, front desk employees, bottle shop and Vil-
las market employees, office clerical employees, guards
and supervisors as defined in the Act.
Respondent requested a Board review of this decision, but
the request was denied and an election was scheduled for
September 29.6
C. Respondent Terminates 60 Employees on
August 25 and 26
Anticipating a seasonal decline in occupancy, Respon-
dent decided to reduce its employee complement by termi-
nating 60 employees on August 25 and 26.' Reductions in
force were made in all departments except maintenance,
which was needed in connection with the general overhaul
and construction work of Olympic Villas. The housekeep-
ing department which is most directly related to room occu-
pancy received the heaviest cuts, including a reduction in
hours worked for the remaining employees to less than 40
hours during the slow season. The employees involved in
the reduction in force were terminated by Respondent
rather than "laid off." As in the case of other resort hotels
involved in seasonal reductions in force, Respondent fol-
lowed the practice of terminating rather than laying off em-
ployees and rehiring only those which it wishes to rehire
when the new season begins. Respondent followed his prac-
tice a month earlier on July 17, when it terminated several
employees upon closing the night laundry.'
Respondent's personnel manager, Peggy Rhoades, testi-
fied that in every case during her employment at Olympic
Villas (since 1973), when an employee who had previously
been involved in a reduction in force was rehired by Olym-
pic Villas, the employee was rehired as a new employee
with a new date of hire for such purposes as vacation enti-
tlement, group insurance, waiting period, and probationary
period. The action taken by previous management at Olym-
pic Villas, and indeed, in at least one instance, by Respon-
dent, was sometimes referred, to in personnel records as
"termination" and in other cases as "layoff" or "laid off;"
but all of these actions, regardless of the terminology used
at the time of separation, had the effect of completely and
permanently severing the employment ties until a rehire oc-
curred.
6 As previously noted, the Union filed an unfair labor practice charge in
Case 12-CA-7848-1 on September 6, and in Case 12-CA-7848-2 on Sep-
tember 16. As a result, Region 12 notified the parties that the election would
be held in abeyance pending disposition of the charges. The complaint issued
on October 12; a new charge, Case 12-CA-7910, was filed on October 13;
and the consolidated complaint issued on November 8.
1 The Orlando area where Olympic Villas is located is also the location of
Disney World, Sea World, Stars Hall of Fame, Circus World and similar
attractions. The summertime, when children are out of school and families
usually take their vacations, represents the peak occupancy period for the
hotels and motels in that area. For example, on August 22 the percentage
occupancy was 86.98 percent. On August 25 it was 53.02 percent and on
August 30, 36.68 percent. On September 30, occupancy was 19.52 percent;
on October 31, 16.57 percent; on November 30, 7.46 percent, and on Decem-
ber 31 35.2 percent.
The Olympic Villas' past practice indicates that during the off season the
following numbers of housekeeping employees were reduced from the pay-
rolls: in August 1975, 57: in August 1976, 19; and in August 1977, 69.
360
OLYMPIC VILLAS
General Counsel's witness Catherine Anthony testified
that while employed with the previous owners of the Olym-
pic Villas she had been seasonally "laid off" in January
1975 and recalled to work in February 1975. Anthony also
testified that no employees were "permanently terminated"
at the end of a busy season. However, the documents from
Anthony's personnel file reveal the following: a termination
of employment form dated January 8, 1975, contains a
checkmark under the "Laid Off" column beside "lack of
work." This form does not contain any heading "termi-
nated" but merely contains under reason for separation
three columns headed "resigned," "discharged" or "laid
off." Her file also contains an application for employment
form dated February 3, 1975; a new hire form with "new"
scratched and "re" written in with a starting date of Febru-
ary 3, 1975, a Sheraton "house rules" form signed by An-
thony, dated February 3, 1975; a Sheraton "Request for
Vacation Pay" form, signed by Anthony, requesting 1977
vacation and showing as hire date "2/3/75;" and Respon-
dent's notification of change in employee status showing in
the termination column "laid off' checked and reason "end
of season." This form also shows the date of employment as
"2/3/75" and date last worked as "8/25/77."
Thus, even though the original separation on January 8,
1975 is marked "laid off," "lack of work," Anthony was
rehired on February 3, 1975 and that date, not the January
date, became her starting date or "new hire" date on subse-
quent forms.
Respondent's August 25 and 26 reduction in force was
based on seniority or length of service of employees within
each classification to be affected by the reduction. Upon
experiencing a seasonal buildup of business in December,
Respondent decided to increase its forces. Accordingly, Re-
spondent sent letters to all of the August terminatees and
invited them to apply for reemployment. Only a few ap-
plied, but all who applied were offered a job and were re-
hired.
D. The Employment Status of Olden Hall
In issue is whether Olden Hall of the laundry department
was a supervisor within the meaning of Section 2(1 1) of the
Act in connection with certain allegations of Section
8(a)(1). The facts are as follows:
General Manager Temple testified that the decision to
hire a new employee is made by both the department head
and the personnel director and that such policy applied to
the laundry department. Under previous management Old-
en Hall was referred to as a laundry supervisor but his title
was changed by Respondent to "lead laundry aide." Hall
could effectively recommend disciplinary action; he was re-
sponsible for training new employees in the laundry; and
although he was on hourly rates rather than salary. Mr.
Temple testified that Respondent tried to put as many su-
pervisors as possible on hourly rates. Hall testified that he
determined the schedule of work in the laundry and made
work assignments. Ann McCarthy, an acknowledged super-
visor, received the same pay (as of October) as Olden Hall
who received significantly higher wages than any other em-
ployee in the laundry department. I find that at all time
material herein, Olden Hall was a supervisor within the
meaning of the Act. Monroe Manufacturing Company, Inc.,
200 NLRB 62 (1972): F Strauss & Son, Inc., 200 NLRB
812 (1972).
E. The Alleged 8(a)(1) Activity Involving Olden Hall
Olden Hall was alleged to have threatened the discharge
of employees for union activities and to have created the
impression of surveillance of union activities.
The General Counsel's witness, Joann Calhoun, laundry
employee, testified that on or about August 25, Hall mo-
tioned Calhoun away from a group of employees and told
her that Mrs. Lairmore said they were going to have a big
layoff here today and that she was going to get rid of a lot
of people that had been doing a lot of talking. Calhoun also
testified that on another occasion Hall said that Lairmore
knew that Catherine Anthony was for the Union. On an-
other occasion, Hall said that Mrs. Lairmore knew about
"all the people that are in the Union." Hall denied ever
discussing the Union or ever having had a discussion with
Joann Calhoun about the reduction in forces or cutback in
people. He also denied that Mrs. Lairmore ever told him
that Catherine Anthony was for the Union or how she felt
about the Union. He also denied telling Ms. Calhoun that
Mrs. Lairmore had told him that Catherine Anthony was
for the Union. Hall testified emphatically that Mrs. Lair-
more never discussed the Union with him. I credit Hall and
not Calhoun.9
F. The Alleged Violation of Section 8(a)(3) Involving
Bonnie Rieders
The complaint alleges that on or about July 25, Respon-
dent imposed a more onerous working condition on Bonnie
L. Rieders by transferring her from driver to maid and
failed and refused to reinstate her to her "former or sub-
stantially equivalent position" because she had joined or
assisted the Union or engaged in other union and concerted
activities.
The facts with respect to Bonnie Rieders are as follows:
She was employed in the housekeeping department and
was very active in the union campaign. In early July, Rie-
ders was assigned to driving a laundry truck delivering lin-
en to the various guest buildings. The assignment did not
involve any increase in pay, promotion, or demotion. It is
undisputed that the truckdriving assignment requires the
lifting of bundles of linen on and off the truck.
Before the laundry truckdriver assignment Rieders was a
maid in housekeeping. Because of her dislike for the job of
being a maid she asked Lairmore if any other jobs were
open. Within a few days after Rieder's request Lairmore
told her she was assigned to the job of driving the laundry
truck. '
9 From my observation of the demeanor and responses while testifying of
Joann Calhoun and Olden Hall, I am convinced that Hall did not in fact
have any such conversation with Joann Calhoun, as testified by Ms. Cal-
houn. I believe Hall's statement that he never discussed the Union with Mrs.
Lairmore. Hall impressed me as being a sincere, conscientious, hardworking,
truthful person who responded to questions candidly, consistently, and un-
hesitatingly. He was steady and gave short, simple, uncomplicated answers.
1o The maids' work consisted of changing and making up beds and clean-
ing guestrooms. During the construction period maids were also assigned to
scrubbing bathroom floors in remodeled rooms.
361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, on the morning of July 19, Rieders tele-
phoned the Union and talked to Ed Page, secretary-trea-
surer. She told him that "the Hotel is in a wreck, and we
were made promises, and we weren't satisfied, and we
needed some help." Page told Rieders that she would have
to get some union cards, have them signed and returned to
his office, and that he would meet her at 12 o'clock. Rieders
met Page at 12 o'clock in the parking lot of the Olympic
Villas, and after receiving the cards, Rieders and maid An-
gel Graves went back to "H" building where Dottie, one of
the inspectresses for "H" building, told Rieders that she
had to perform the work of maid Mary Moore. Apparently
Mary Moore was absent that day and Rieders was asked to
fill in for her. At this point inspectress "Dottie" and Rieders
got into an argument culminating in Mrs. Lairmore calling
Rieders up front and suggesting that she go home for the
rest of the day. After that, Rieders was taken off the laun-
dry truck and was reassigned to housekeeping to perform
maids' work.
G. The 8(a)(1) Allegations Involving General Manager
Temple and Employee Dewitt Goodwin
The allegations regarding Temple (impression of surveil-
lance, threat of discharge, and interrogation) are based on
an incident involving employee DeWitt Goodwin. Some-
time in the latter part of July two housekeeping employees
told Lairmore that they had been threatened with bodily
harm or death. DeWitt Goodwin's name was mentioned in
each case as the alleged culprit. Lairmore reported this to
her supervisor, Arsenault, who in turn reported it to Gen-
eral Manager Temple.
Temple testified that he was in Lairmore's office discuss-
ing this matter when Goodwin came by. Whereupon Tem-
ple asked Goodwin to come in, and he told Goodwin that
for some reason every time there was a threat reported his
name was brought up by the people who were threatened,
and that the next time he heard Goodwin's name brought
up in connection with a threat he would call the police and
let them handle it. Goodwin denied threatening anybody,
stating he did not know what Temple was talking about."
Temple denied using the term "troublemaker" or any simi-
lar term during that conversation. Arsenault, who was pre-
sent during that conversation, corroborated the testimony
of Temple.
Goodwin testified that Annie Johnson was spreading ru-
mors about Goodwin making bomb threats. He admitted
on cross-examination that Annie Johnson's father talked to
him on Olympic Villas property about bomb threats.'
H. Patsy Lairmore
Executive Housekeeper Patsy Lairmore is alleged in the
complaint to have solicited an employee to have her dis-
suade another employee from engaging in union activities;
interrogated an employee regarding union activity; created
" Goodwin's version of the conversation differed in that he said Temple
accused him of being a troublemaker and that he was going to get rid of the
troublemakers.
12 Annie Johnson's father was not an employee of Olympic Villas and had
come to the Olympic Villas property and asked Goodwin "What about you
supposed to be putting a bomb in my daughter [sic) car?"
the impression of surveillance; and threatened an employee
by telling him that if he was not satisfied with conditions at
Respondent, he could seek employment elsewhere. These
allegations will be considered separately.
The evidence concerning soliciting an employee to dis-
suade another employee from engaging in union activity is
summarized as follows:
Employee Frances Lane (Bonnie Rieders' mother) testi-
fied that on or about July 19, 1977, Lairmore called her
aside and told her that Bonnie was passing out cards and
asked her to speak to her daughter about it. Lane said she
would. With respect to that conversation, Lairmore admit-
ted speaking to Lane about Bonnie but denied that she had
asked Lane to speak to Bonnie about passing out cards.
Lairmore testified that she told Lane that Bonnie was in her
office earlier that day, that she was upset, that she had sent
her home, and to please check on her and see what was the
matter with her.
With respect to the allegation that Lairmore interrogated
an employee concerning union activities, Goodwin testified
that he was in Lairmore's office on July 27 and he asked
Lairmore why so many people kept "hassling" him. He
said, "I asked her why was it they kept hassling me, was it
because they thought I was a union organizer or leader of
the Union?" Goodwin said Lairmore replied, "Are you?"
and Goodwin said no and that he had not even signed a
union card. He said she asked him "Do you know about the
peoples [sic] that are signing union cards?" He told her he
had not been working there long enough and did not know.
Lairmore asked him what Yvonne and he were talking
about the evening that Richard Arsenault came around,
and Goodwin told her that it was not about the Union that
it was about Yvonne taking off a couple days to go to Geor-
gia to see her children. (It is noted that Goodwin initiated
the inquiry about his role in the Union.)
Lairmore denied that she ever discussed the Union with
Goodwin. I credit Goodwin and not Lairmore. Even
though he raised the subject of "Union" in the conversa-
tion, Lairmore interrogated him about himself and others
who may have signed union cards. In the same vein, she
also interrogated him about a conversation he had with
"Yvonne." Lairmore was inconsistent and wavy in her tes-
timony. She gave the impression of being under a compul-
sion to den)' everything involving union matters while testi-
fying.
The allegation concerning Lairmore creating the impres-
sion of surveillance and threatening an employee is based
on a coversation she had with houseman Richard Jerry in
connection with the Royal Plaza and the other hotels. The
conversation took place on about July 20. A senior house-
keeper told Lairmore that Jerry was telling the housemen
that the Royal Plaza housemen were getting $3.75 per hour.
Lairmore inquired about it by calling the Royal Plaza and
talked to a male housekeeper. She ten informed Jerry it was
not true that the housemen at the Royal Plaza were getting
$3.75 an hour. She told him that she called the Royal Plaza
and checked on the housemen's pay and that it was not
$3.75 but $2.75. She said if he would like to work over there
she would see if she could help him get a job. Nothing else
was mentioned in that conversation. There was no mention
of the Union, and Lairmore testified that she did not intend
362
OLYMPIC VILLAS
that the remark was in any way a threat to Mr. Jerry as
alleged in the allegation. Jerry testified that he had a con-
versation with Lairmore around the middle of August: that
he approached her and she said she was aware of the con-
versation that Jerry had had the day before with Janet Al-
len: and that if he was interested in employment at the
Royal Plaza that she, Lairmore, would assist him in finding
a job there. He said that he told Lairmore he was not inter-
ested in working there, and if he were he would make it his
business to be there. Jerry denied that Lairmore mentioned
the subject of wage rates of the Royal Plaza and that Lair-
more told him she checked the wage rates at the Royal
Plaza. He did admit, however, that he and Janet Allen and
discussed the subject of wage rates at the Royal Plaza.
As may be seen. the Jerry version is not at great variance
with the Lairmore version. However, to the extent Lairmore
left out the details of wage rates and checking with the
Royal Plaza, the remaining is cryptic and to that extent
threatening. Moreover, why would she offer to help Jerry
get a job with a competitor? I believe the reasonable impli-
cation is the "assistance" would come in the form of being
free from his present job by firing.
IV. DISCUSSION ANt) FURTHER CON(ICLUSIONS
A. The No-solicitation, No-distribution Rule
While presenting its case, Respondent introduced into
evidence its employee manual for the purpose of showing
that the employee policies, benefits, and rules implemented
by Respondent on June 24 at the Olympic Villas are the
same personnel policies, benefits, and rules in effect in Re-
spondent's other hotel properties. Rule 12 under group II
provides as follows:
The following acts or activities will bring disciplinary
action. The severity of which will be dependent upon
the gravity of the case, the penalty imposed by may be
up to and including discharge.
12. Solicitation or distribution of literature of any kind
by any employee anywhere on the Inn premises with-
out the general manager's approval.
Respondent made no effort whatsoever to inform its em-
ployees either before or during the union campaign that the
rule was not in effect. The rule remained there to be in-
voked anytime Respondent chose to invoke it. By the mere
existence of the rule the employees remained under a con-
tinuous threat that Respondent might at anytime invoke the
rule with respect to the solicitation which took place on
Respondent's premises without the expressed permission of
the general manager of Respondent. Thus, the rule consti-
tutes interference with the organizational rights of employ-
ees that Section 8(a)(1) of the Act condemns. Leece-Neville
Company, 159 NLRB 293, 298 (1966), enfd. 396 F.2d 773
5th Cir. 1968); Firestone Textile Companyv. A Division of
Firestone Tire & Rubber Company, 203 NLRB 89 (1973):
Farah Manufacturing Company, Inc., 187 NLRB 601, 602
(1970), enfd. 450 F.2d 942 (5th Cir. 1971): N.L.R.B. v.
Speed Queen, a Division of McGraw-Edison Co., 469 F.2d
189, 192, 193 (8th Cir. 1972), enfg. 192 NLRB 995 (1971).
Accordingly, I find that by maintaining in effect a rule
which prohibits employees from soliciting or distributing in
nonworking areas of the plant during their nonworking
time, Respondent interfered with, restrained and coerced its
employees in the exercise of their organizational rights in
violation of Section 8(a)( ) of the Act.
B. The Employee Terminations of August 25 and 26
Respondent contends that it terminated, rather than tem-
porarily laid off, these employees not because of their union
activity or because of the pendency of the secret-ballot rep-
resentation election to be conducted by the Board but be-
cause it is Respondent's corporatewide policy to terminate
employees involved in a seasonal reduction in force.
Respondent's contention is supported by the evidence.
Respondent showed that its practice at its other resort ho-
tels is to terminate rather than to lay off employees during
seasonal reductions in force. As to prior practice at Olym-
pic Villas, the evidence shows that in prior reduction in
force under the previous Sheraton franchises, employees
were in fact "terminated" rather than "laid off' during sea-
sonal declines in business. When such employees were re-
hired, they were rehired as new employees for all purposes
and did not pick up any seniority or other benefits deriving
from any prior period of employment at Olympic Villas.
At the time of the August 25 and 26 reduction in force,
the Decision and Direction of Election had not yet issued.
Neither the date of the election nor the scope of the unit
had been determined. The fact that the August 25 and 26
reduction in force was at least in part economically moti-
vated and seasonal is not in dispute:' 3 nor is it in dispute
that the reduction in force was hotelwide, on a seniority
basis, and affected employees in practically all classifica-
tions (except maintenance) including those which were not
involved in the representation case. The terms "terminated"
and "laid off' were used interchangeably in personnel
documents used by the previous Sheraton franchisees and
by Respondent. Regardless of terminology used when an
employee was reemployed, his or her date of hire was the
most recent date of hire and not the earlier date of hire. The
General Counsel, in his attempt to show that employees in
the hotel industry were "laid off"' rather than "terminated"
during seasonal reduction in force, called union representa-
tive John Litto whose first-hand knowledge was limited to
union hotels as opposed to nonunion hotels such as Re-
spondent and previous Sheraton franchises of Olympic Vil-
las. Accordingly, inasmuch as the General Counsel has
m
1
The only evidence presented by the General Counsel which appears to
place in issue the economic nature of the reduction in force is that there was
an excessive amount of linen on hand at the end of the season which became
mildewed and otherwise ruined because allegedly there was an insufficient
number of laundry employees to handle the work after the reduction in
force.
Respondent adduced evidence that it had not planned to use the old
Sheraton linen upon opening under the "Marnott' name, and that it in-
tended to donate it to charitable organizations. Respondent also showed that
there was little or no overtime work in the laundry following the termination
of the night shift, inferring that the reverse would have been true if there had
been pressure because of an excessive amount of linen accumulating and a
shortage of workers to process it
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to show by a preponderance of the evidence that the
employees who were terminated on August 25 and 26 were
terminated rather than temporarily laid off because of their
union activities or because of the pendency of the represen-
tation election, I shall recommend that those allegations of
the complaint be dismissed.
C. The Promise and Grant of an Increase in Wages,
Improved Facilities, New Equipment, and New lUniforms
On the day before Respondent officially took over the
operational control of Olympic Villas (June 23), it called a
meeting of the housekeeping department employees. At
that meeting employees were told about the construction
and renovations contemplated by Respondent and that
they were going to receive new equipment and uniforms as
soon as construction got under way. They were also told
that as soon as possible a wage survey of the area would
take place, and that their wages would be reviewed. Gen-
eral manager Temple testified that at a meeting of the em-
ployees he said, in response to an inquiry from an employee
present, that when the survey was completed he certainly
hoped that everybody would be getting a raise. Immedi-
ately upon taking over Respondent implemented its fringe
benefit program and ordered new equipment. Because of
the low morale of the employees, Respondent gave certain
employees a 10-cent-per-hour interim wage increase for
each year of service of Olympic Villas.'4 That decision, as
well as the decision to provide new equipment and better
facilities, was made before Respondent had any knowledge
that a union campaign was about to begin and before the
union campaign began on July 19. Following the wage sur-
vey and the report which contained recommendations for
increases to bring the Respondent's employees in line with
the employees of competitors in the area, Respondent
adopted and implemented the recommendation contained
in the report as it had intended from the beginning. Inas-
much as Respondent's employee wage rates, particularly in
housekeeping, were essentially minimum wage ($2.30 or
$2.35 per hour), there was little doubt that the wage survey
would show a need for a wage increase. Indeed, if Respon-
dent had not granted the increases or provided the improve-
ments it promised before knowledge of union activity be-
cause of the union activity, it would have violated the Act.
In The Gates Rubber Company, 182 NLRB 95 (1970) the
Board held:
It is well settled that the employer's legal duty is to
proceed as he would have done had the Union not
been on the scene. Here the Respondent withheld in-
creases which would normally have been granted but
for the presence of the Union and the pendency of the
election and advised employees that their wage in-
creases were being withheld for this reason. By such
conduct the Respondent violated Section 8(a)(1) and
interfered with employee free choice.
In Centralia Fireside Health, Inc. d/bla The Fireside House
of Centralia, 233 NLRB 139, 140 (1977) the Board said.
4 Although the interim wage increase became effective on July 20, a day
after the union organizational campaign began, it was decided upon during
the first week of July.
It is well settled that the granting of wage increases
and/or benefits during union organizational activity is
not per se unlawful. Rather, the test is whether, based
on the circumstances of each case, the granting of the
new wages and benefits is calculated to interfere with
the employees' right to organize.... Thus, it is clear
that Gains met with the employees in August, prior to
any union activity, due to their expressed dissatisfac-
tion with their wages and benefits. Gains further indi-
cated Respondent's desire to bring the employees up to
the standards at its other locations, if an evaluation of
the financial situation of the nursing home would per-
mit improvements. In December, after receiving a fa-
vorable report from the accountant, Gains again met
with the employees, as he had previously promised at
the August meeting, and announced the new wages
and benefits. The wages and benefits announced and
ultimately implemented, in fact, were consistent with
those enjoyed by Respondent's employees at its other
locations5 and further, in this connection, appeared to
stem from Respondent's past promises rather than as a
response to union activity.
We further note, as indicated b) the Administrative Law Judge, that
the legal minimum wage was increased to $2.30 per hour, effective Janu-
ary 1, 1977.
As in Centralia, supra, Respondent made the promises
before the union activities began and indeed before it had
any knowledge thereof, and fulfilled those promises in spite
of the commencement of union activities. Not to have ful-
filled such promises because of the ensuing union organiza-
tional drive would have subjected Respondent to a charge
of violating the Act. Accordingly, I shall recommend dis-
missal of those allegations of the complaint for lack of evi-
dence to support them.
D. Bonnie L. Rieders
As for Bonnie L. Rieders, did Respondent violate Section
8(a)(3) by imposing more onerous working conditions on
her by transferring her from truckdriver to maid and by
failing and refusing to reinstate her to her "former or sub-
stantially equivalent position" because she had joined or
assisted the Union or engaged in other union and concerted
activities?
The fact that Bonnie Rieders was very active in and in-
deed was the initiator of the union activity is not disputed.
Before engaging in union activity Rieders was employed as
a maid in the housekeeping department. She requested a
transfer from that job and, in early July, her request was
granted. She was assigned to a job driving a laundry truck
delivering linen to the various guest buildings comprising
the hotel property. The assignment was not a promotion; it
did not involve any increase in pay and, indeed, was not
even reflected in the personnel records. Within a period of 2
weeks Rieders was reassigned to the job of maid. Her per-
sonnel records do not even reflect any change to driver nor
do they show her short assignment as driver. Rieders was
reassigned to the job of housekeeper or maid. Lairmore tes-
tified that during the short period Rieders was on the truck
she was absent on several occasions, and that inasmuch as
the housekeepers are dependent upon the supply of linens
furnished by the laundry truckdriver, reliability is impor-
364
OLYMPIC VILLAS
tant. After a period of 10 days to 2 weeks of driving the
laundry truck, Rieders was reassigned to her housekeeping
job which she did not like. There is little or no evidence to
support the allegation that the maid position was more
onerous than the job of driving the laundry truck. In fact,
the physical activity in the lifting of bundles of linen on and
off the truck and the carrying them into and out of the
buildings would appear more onerous than vacuuming,
cleaning bathrooms, and changing beds. In any event, as
contended by Respondent, there is no probative evidence
that the time of this job assignment and reassignment coin-
cides with the timing of the union activity. Therefore, there
is no basis for a finding that the reassignment was made
because of such union activity. Accordingly, I shall recom-
mend that the allegation in the complaint concerning this
matter be dismissed.
E. Creating the Impression of Surveillance, Threatening To
Discharge Employees Because of Their Union Activities, and
Unlawful Interrogation
The complaint alleges that Respondent through General
Manager Jerry Temple, created the impression of surveil-
lance by telling an employee that Respondent was going to
find out the names of employees who were engaged in
union activities: that Temple threatened to discharge em-
ployees because of their union activities; and that Temple
unlawfully interrogated an employee about union activities.
As previously discussed, I have found that the evidence
concerning these allegations involves a single incident in-
volving employee DeWitt Goodwin. I have credited Tem-
ple and not Goodwin with respect to the use of the word
"troublemakers." I have found that Temple did not use that
word. I also conclude that the circumstances of a report of
an alleged threat by Goodwin to a fellow employee, re-
ported by the employee to whom the threat was allegedly
made, justify an inquiry by Respondent's general manager
and a warning to the accused (Goodwin) that any further
reports of that nature would be referred to the police. A
failure of the general manager to act on a report of a bomb
threat by one employee against another would be a serious
neglect of his responsibilities. I do not find general manager
Temple's conduct to be violative of the Act. Accordingly, I
shall recommend a dismissal of the allegations concerning
that incident (par. 6(a), 6(b), and 9(a)).
F. The 8(a)(1) Allegations Involving Patsy Lairmore
Lairmore is alleged to have solicited Frances Lane, the
mother and fellow employee of Bonnie Rieders, to have
Lane dissuade Rieders from engaging in union activities. In
the context in which the conversation between Lairmore
and Lane came about, Lairmore's version of the conversa-
tion is more plausible than Lane's. There is no dispute that
Rieders was quite upset at having been assigned to the
maid's work of a fellow employee that morning. Because of
her upset condition she was sent home. Therefore, speaking
to the upset employee's mother and informing her of the
fact that she had spoken to the daughter earlier that day,
that the daughter was sent home, and to check on her con-
dition would be what a reasonable person would have done
in the circumstances, especially since there is no evidence
that Lairmore and Lane had any prior relationship other
than supervisor and employee. I find no basis for conclud-
ing that Lairmore would confide in Lane and rely on her to
dissuade her daughter from passing out union membership
cards. It certainly is not credible that Lairmore would have
asked someone she hardly knew (Lane) to stop Rieders'
union activities when she made no effort to stop them her-
self. In my view, the evidence does not support that allega-
tion, and I shall recommend it be dismissed.
Lairmore is alleged to have interrogated DeWitt Good-
win. As previously stated, I credit Goodwin and not Lair-
more's version of the conversation and therefore find that
Lairmore interrogated Goodwin within the meaning of Sec-
tion 8(a)(l) of the Act.
As for the allegation that Lairmore created the impres-
sion of surveillance by inquiring of the Royal Plaza the rate
of pay for the housemen, inasmuch as it was reported to her
that Richard Jerry had stated that it was $3.75 per hour
rather than $2.75 per hour and Lairmore's subsequent
statement to Jerry that if he was interested in finding a job
at the Royal Plaza that she would assist him in that en-
deavor (in the context in which Lairmore made the state-
ment accepting the version of Jerry and not that of Lair-
more), I find that by Lairmore's actions, Respondent did
create the impression of surveillance and did indeed
threaten employee Jerry in violation of Section 8(a)(1) of
the Act.
G. The Unit
The Regional Director, in Case 12-RC-5350, found the
following described unit appropriate. Respondent requested
a review of the Regional Director's decision, but the request
was denied by the Board.'
All housekeeping and laundry employees, general
maintenance and groundskeeping employees and bell-
men, employed by the employer at the Olympic Villas;
but excluding all other employees, Bottle Shop and
Villa Market employees, office clerical employees,
guards and supervisors as defined in the Act.
H. The Claim of Majority Status
In contending that there should be a bargaining obliga-
tion without an election, the General Counsel contends that
the only employees whose status appears to be in question
are Olden Hall, Annie Johnson, and Richard Jerry. The
General Counsel contends that Olden Hall is a supervisor
within the meaning of Section 2(11) of the Act and should
therefore be excluded from the unit. I agree. With respect to
Annie Johnson' 6 and Richard Jerry, they will be discussed
'' Respondent contended that it should be permitted to litigate the appro-
priate unit question in the instant case, since the question has never been
litigated in an adversary proceeding, nor was the decision of the Regional
Director reviewed by the Board. During the tnal in this case, Respondent
offered to prove that the unit sought is inappropriate, but I rejected the offer
of proof and refused to permit evidence concerning this issue because Re-
spondent had already exhausted its remedy before the Board.
16 Counsel for the General Counsel filed a motion to correct the record to
substitute the name "Annie" for "Bessie" on p. 145, 1. 20. That motion is
granted.
365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
below. The parties stipulated that the maximum number of
employees that could be counted in the unit, which is a list
of all employees in the unit as of August 16, 1977, is 120. Of
the 120, 7 individuals were either terminated or were trans-
ferred out of the unit between August 16 and October 3.
Those individuals are Keith Woods, Steward Whightman,
Samuel Kiriazis, Dorothy Lewis, Richard Peralez, Kenny
Justice, and Annie Johnson. Whightman and Peralez left in
late August to return to school. Richard Jerry, also on the
list, is shown on that list to have been terminated "end of
season." However, Jerry intended to quit to return to
school. Accordingly, Jerry, Whightman, and Peralez are ex-
cluded from the unit inasmuch as all three were student-
employees. Annie Johnson is shown to have been trans-
ferred out of the unit to the job of "Administrative Assist-
ant." Thus, with the 8 excluded from the unit (including
Olden Hall), a total of 112 employees (including all invol-
untary end-of-season terminatees) were eligible to sign
cards as of October 3, 1977. Fifty-seven valid signatures (of
the 112 eligible) were necessary to obtain majority status
based on authorization cards.'
As previously indicated, of the 1 12 eligible employees, 51
signatures appeared to be genuine, 53 names do not appear
on any card, and 8 cards are contested by Respondent. The
eight cards contain the names of the following employees:
Lila Fonseca, Maybelle Turner, Bessie Johnson, Shirley
Smith, Linda Washington, Rose Williams, Cynthia Grimes,
and Evonne Tillman. These cards will be discussed sepa-
rately below.
1. Lila Fonseca"
International Organizer Torean Green testified that she
solicited the card from Lila Fonseca who, at the time of the
hearing, was still in the employ of Respondent but was not
called as a witness. Inasmuch as her first name is misspelled
on the card, it appears as "Lilio" instead of Lila, and her
last name instead of ending in "a" ends in "o." Inasmuch as
Fonseca was available to be a witness and was not called,
especially in view of the misspelled name, which fact was or
should have been apparent to the General Counsel, I find
that the card is not a valid card and therefore will not be
counted in determining majority status.
2. Maybelle Turner
Respondent contends that this card, which was also solic-
ited by Union Representative Torean Green, should not be
counted because Mrs. Turner's daughter, Bertha Cooper,
signed it for her mother in the presence of Mrs. Green be-
cause her mother is an elderly person who can neither read
nor write and that there is a question as to whether the card
"expresses the true wishes of Maybelle Turner." I do not
agree with Respondent's contention, and I will accept the
card on the unrebutted testimony of Mrs. Green that it is
authentic and that it was signed for Mrs. Turner by her
daughter with Mrs. Turner's permission.
7 Some of the cards introduced in evidence were apparently signed by
people not within the unit, inasmuch as their names were not listed on the
stipulated list of eligible employees within the unit (Jt. Exh. 1).
I' A dispute concerning the correct last name or spelling thereof remains
unresolved. The spelling contained in the stipulated list (Jt. Exh. I) will be
assumed to be the correct one.
3. Bessie Johnson
Bessie Johnson's signature on her card was solicited by
Service Trades Counsel Coordinator, Doris Charles, a
union organizer, who carries blank cards of various unions
with her at all times so that she can sign up people she
happens to meet. Charles testified that she met Bessie John-
son in the employee cafeteria at Disneyworld on October 3,
1977, about 6 weeks after Johnson was terminated at Olym-
pic Villas. Charles testified that she did not arrange a meet-
ing with Johnson but happened to sit down at a table of
Disneyworld employees including Johnson. Respondent
contends that since the Union represents employees at Dis-
neyworld, it is impossible to determine from Charles' testi-
mony whether Johnson was signing a card as an employee
of Disneyworld or as an employee of Olympic Villas and
that Johnson should have been called to the stand to testify.
I do not accept Respondent's contention. Following the of-
ter of the card into testimony by the General Counsel, the
burden shifted to Respondent, and it was incumbent upon
Respondent to call Johnson to disprove the validity of the
card. The card will be counted in determining majority sta-
tus.
4. Shirley Smith
Shirley Smith was approached in the restroom at Olym-
pic Villas by employee Nellie Burkley and was told by
Burkley that everyone had signed a union card and that
Smith was the only one left to sign (an untrue statement).
Smith testified that she would not have signed a card had
Burkley not told her that everyone else had signed. She also
said that she had been in a union before and had no desire
to belong to a union in Olympic Villas. The General Coun-
sel admits that the statement was a misrepresentation but
that "there is no definitive evidence that Smith signed a
card in reliance under false representation." I disagree.
Smith stated clearly and definitely that she would not have
signed a card but for the misrepresentation, and therefore I
will reject the card as invalid.
5. Linda Washington
Linda Washington's card was purportedly solicited by
Torean Green, who also obtained the cards of Fonseca and
Turner. Washington was not summoned to testify to the
validity of the card. Respondent called as a witness Ques-
tioned Document Examiner Ronald M. Dick to give his
expert opinion with respect to the genuineness of the signa-
ture on Linda Washington's card, as well as the cards of
Rose Williams. Cynthia Grimes, and Evonne Tillman. Dick
testified that in his opinion there was no doubt that the
signature on the authorization card was not written by the
same person who completed the personnel documents and
signed as Linda Washington in Washington's personnel
file." Mr. Dick's credentials are impressive, and his testi-
mony withstood cross-examination. The General Counsel
neither called Washington as a rebuttal witness nor ex-
19 The parties stipulated to the genuineness of the personnel file signature
of Washington, Williams, Grimes, and Tillman.
366
plained why he did not. Washington's card will not be
counted in determining majority status.
6. Rose Williams
Dick testified that the signature appearing on the card
bearing the name Rose Williams was not that of Rose Wil-
liams, after comparing that signature with the signature of
Rose Williams contained in her personnel file. Respondent
called Williams to testify and she testified that she did not
sign the authorization card, but that Bonnie Rieders signed
her name to it. She said Rieders asked her to sign the card
and she refused, whereupon Rieders signed Williams' name
to it. Williams further testified that she did not authorize
Rieders to sign the card. Although Rieders had previously
testified that she had witnessed the signature of Rose Wil-
liams' card and was also present during Williams' denial
that she signed the card, Rieders did not testify in rebuttal.
In the circumstances, I find that Williams' card is not valid,
and therefore it will not be counted in determining majority
status.
7. Cynthia Grimes
Again, handwriting expert Dick testified that Grimes did
not sign the card containing her name. Grimes was not
called as a witness. Bonnie Rieders, who has previously tes-
tified that she had witnessed the signing of the card by
Grimes, did not appear as a rebuttal witness to counter the
testimony of handwriting expert Dick. I accept the expert
opinion of Mr. Dick that Grimes did not sign the card and
therefore will not count the card in establishing majority
status.
8. Evonne Tillman
Again, Dick gave his expert opinion that the card bearing
Tillman's signature was not signed by Tillman. Tillman was
called by Respondent and she testified that she did not sign
the card bearing the name. Again, as in the other cases,
Rieders had previously testified that she had witnessed the
Tillman signature to the card. Tillman testified that Rieders
approached her in a guestroom and asked her to sign and
she refused to do so. She testified further that she did not
give Rieders permission to sign her name to the card. Rie-
ders did not testify in rebuttal although she was present
during the entire trial. The Tillmnan card will not be counted
to determine majority status.
In sum, the tally is as follows: Employee eligible to sign
(including terminatees)- I112: cards bearing genuine signa-
tures-53; eligible employees not signing cards 53 cards
rejected as invalid--6. Accordingly, I find that the Union
did not obtain the 57 valid signatures necessary to establish
majority status in the unit found appropriate in this case.
Consequently, the unlawful conduct found to have been
committed by Respondent does not have to be considered
in terms of whether a bargaining order based on .L.R.B.
v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), as re-
quested b the General Counsel, should issue in this case.
OLYMPIC VILLAS
V. THE EFFECT OF 11IE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's unfair labor practices, occuring in connec-
tion with its operation set forth in section 1, above, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in an industry
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By the following conduct, Respondent has engaged in,
and is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(I) of the Act:
(a) Interrogating an employee concerning his union ac-
tivity, sympathies, and desires and the union activities, sym-
pathies, and desires of other employees.
(b) Creating the impression of surveillance and threaten-
ing an employee by telling him that if he was not satisfied
with conditions at Respondent, he could seek employment
elsewhere.
(c) Maintaining in effect a rule prohibiting, among other
things, its employees when they were on nonworking time
from soliciting or distributing handbills or similar literature
on behalf of any labor organization in nonworking areas of
Respondent's property.
TIlE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices. I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. It hav-
ing been found that Respondent has maintained in effect a
no-solicitation, no-distribution of union literature on com-
pany property be employees during their nonworking time,
is presumptively an unreasonable impediment to self-or-
ganization and therefore presumptively invalid, both as to
its provocation and enforcement, I shall recommend that
Respondent be ordered to revoke its rule against the solici-
tation or distribution on Respondent's premises during non-
working time in nonworking areas.
As the unfair labor practices found herein strike at the
heart of the Act, a broad cease-and-desist Order shall be
recommened, precluding Respondent from "in any other
manner" interfering with, coercing, or restraining employ-
ees in the exercise of their rights guaranteed by Section 7 of
the Act.20 Upon the foregoing facts, conclusions of law,
upon the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
0 N. L R B . Entwstle ManuJactzuring (Compant. 120 F.2d 532 (4th Cir.
1941).
367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER2
The Respondent, W. W. Johnson Properties, Inc., d/b/a
Olympic Villas, Orlando, Florida, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union sympathies.
(b) Creating the impression of surveillance.
(c) Threatening an employee by telling him if he is not
satisfied with the conditions at Respondent he could seek
employment elsewhere.
(d) Maintaining in effect a rule prohibiting solicitation or
distribution of literature of any kind by any employee any-
where on the premises without the general manager's ap-
proval.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Expunge from its "A Guide Book for Employees"
group 1, rule 12, which prohibits "solicitation or distribu-
tion of literature of any kind by any employer anywhere on
the premises without the general manager's approval."
(c) Post at its facility in Orlando, Florida, copies of the
attached notice marked "Appendix."22 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 12, after being duly signed by Respondents represent-
ative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that the
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
IT FURTHER IS ORDERED that so much of the complaint as
alleges unfair labor practices not found herein be, and it
hereby is, dismissed.
22 In the event that this Order is enforced by a judgment of a United States
court of appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
368