Pick-Mt. Laurel Corp.

National Labor Relations Board - Board Decisions

Jan 5, 1979

239 N.L.R.B. 1257 (N.L.R.B. 1979)

PICK-MT. LAUREL CORPORATION
Pick-Mt. Laurel Corporation and Local 170, Bartend-
ers, Hotel, Motel & Restaurant Employees Union,
AFL-CIO. Case 4-CA-8533
January 12, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHIY. AND TRUESDALF.
On May 5, 1978, Administrative Law Judge Leo-
nard M. Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed an 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.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, which has been mod-
ified in certain respects.3
ORDER
Pursuant to Section 10(c) of the National Labor
Respondent has requested oral argument. This request is hereb) denied
as the record, the exceptions, and the bnefs adequately present the Issues
and the positions of the parties.
2 The Administrative Law Judge found that Respondent could not rely on
the Union's solicitation of authorization cards as an objective consideration
supporting its belief that the Union had lost its majority status because he
found that the solicitation occurred on February 25, 1977. after Respon-
dent's refusal to bargain. The record shows, however, that the Union's card
solicitation took place on February 23, 1977, before Respondent's refusal to
bargain. Nevertheless, we agree with the Administrative Law Judge's con-
clusion that Respondent may not rely upon the solicitation because, as the
Board has previously held, a union's organizational efforts may not be
equated with a lack of majority status as organizational efforts only indicate
a union's desire to have more members. (See. e.g.. Tahoe Nugget, Inc. d:b a
Jim Kelley's Tahoe Nugget, 227 NLRB 357 (1976), enfd. 585 F.2d 293 (9th
Cir. 1978).)
The Administrative Law Judge further found that Respondent could not
rely upon the circumstances surrounding the execution of the contract out-
side the 10(b) penod to attack the validity of the contract. He did not
consider, however, Respondent's further contention that those circumstanc-
es should constitute an objective consideration supporting a reasonably
based doubt of majority status.
For the reasons noted by the Court of Appeals in Tahoe .Vugge . rupra, we
find that Respondent may not rely on the circumstances surrounding the
Union's initial recognition by Respondent's predecessor as a basis to sup-
port a reasonably based doubt of majority status. And we find that the
relationship within the 10(b) period would also not give a basis for doubt of
majority status. See Ivo H. Denham and Geraldine A Denham, d b a The
Denham Company. 187 NLRB 434, 444-445 (1970). enfd. in pertinent part
469 F.2d 239 (9th Cir. 1972).
J The Administrative Law Judge found, and we agree, that Respondent's
employees engaged in an unfair labor practice strike. He neglected, ;ovu-
ever. to order that they be offered reinstatement upon their unconditional
offer to return to work. Our Order remedies this inadvertent error
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Pick-Mt. Laurel Corporation, Mount Laurel, New
Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively
with Local 170. Bartenders, Hotel, Motel & Restau-
rant Employees Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All employees engaged in housekeeping, laun-
dry', repair and maintenance, restaurant and bar
activities, exclusive of front desk, telephone of-
fice, security (including guards), supervisory
personnel and employees of concessionaires.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them by the Act.
2. Take the following affirmative action which is
necessary' to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collec-
tively with the above-named Union as the exclusive
representative of all employees in the appropriate
unit described above with respect to rates of pay,
wages. hours of employment, and other terms and
conditions of employment, and, if an understanding
is reached, embody such an understanding in a
signed agreement.
(b) Upon their unconditional applications to re-
turn to work, give its striking employees immediate
and full reinstatement to their former jobs or, if these
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority and other
nghts and privileges, dismissing, if necessary, any re-
placements, and make them whole for any loss of
earnings they may suffer as a result of Respondent's
refusal, if any, to reinstate them in a timely fashion,
by paying to each of them a sum of money equal to
that which each would have earned as wages during
the period commencing 5 days after the date on
which each unconditionally offers to return to work
to the date of Respondent's offer of reinstatement,
less any net earnings during such period, with back-
pay and interest thereon to be computed in the man-
ner prescribed by the Board in F. W. Woolworth
Company. 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).'
4See. generally. Is.r Plumbing & Heating Co., 138 NLRB 716 (19621.
The Board has found that the 5-day period is a reasonable accommoda-
hion between the interests of the employees in returning to work as quickly
as possible and tie Emploer's need to effectuate that return in an orderly
manner. See Drug Plackage Company, Inc., 228 NLRB 108 (1977). Accord-
ingl,s if Respondent herein has already rejected, or hereafter rejects, unduly
delays. or Ignores any unconditional offer to return to work, or attached
Cotinued
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Mount Laurel, New Jersey, hotel
and restaurant facilities copies of the attached notice
marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region
4, after being duly signed by Respondent's represen-
tative, shall be posted by it immediately upon receipt
thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
unlawful conditions to its offer of reinstatement, the 5-day period serves no
useful purpose and backpay will commence as of the unconditional offer to
return to work. Newport News Shipbuilding & Dry Dock Company. 236
NLRB 1637 (1978).
5 In the event that this Order is enforced by a judgment of a United States
Court of Appevls, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with Local 170, Bartenders, Hotel,
Motel & Restaurant Employees Union, AFL-
CIO, in the following appropriate unit:
All employees engaged in housekeeping, laun-
dry, repair and maintenance, restaurant and
bar activities at the Employer's Mt. Laurel,
New Jersey, hotel and restaurant facilities, but
excluding front desk, telephone, office, securi-
ty (including guards), supervisory personnel
and employees of concessionaires.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them under
the Act.
WE WILL recognize and, upon request, bargain
with the Union as the exclusive representative of
our employees in the aforesaid appropriate unit,
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
WE wi.LL. upon their unconditional offer to re-
turn, give the employees who engaged in the
strike commencing February 25, 1977, immedi-
ate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges previous-
ly enjoyed, dismissing, if necessary, any replace-
ments, and make them whole with interest from
5 days after the date on which each uncondi-
tionally offers to return to work to the date of
the offer of reinstatement for any loss of pay
during the period less net earnings.
PICK-MT. LAUREL CORPORATION
DECISION
STATEMENT OF THE CASE
LEONARD M WAGMAN. Administrative Law Judge: Upon
a charge and an amended charge filed by Local 170, Bar-
tenders, Hotel, Motel & Restaurant Employees Union,
AFL-CIO (referred to herein as the Union), the Regional
Director for Region 4 issued a complaint and notice of
hearing on April 22, 1977, against Pick-Mt. Laurel Corpo-
ration (referred to herein as Pick). Thereafter, at the hear-
ing held before me on May 31, 1977, the Regional Director
amended the complaint. The amended complaint alleged
in substance that on and since February 24, 1977, Pick has
violated Section 8(a)(5) and (1) of the National Labor Re-
lations Act, as amended, by refusing to bargain with the
Union as the exclusive collective-bargaining representative
of a unit of Pick's employees at its Mt. Laurel, New Jersey,
restaurant and hotel facility. The amended complaint also
alleged that on and after February 25, 1977, Pick's Mt.
Laurel employees engaged in an unfair labor practice
strike. Pick, by its answer, as amended, denied commission
of the alleged unfair labor practices.
Upon the entire record, including portions of the tran-
script and depositions made in an ancillary proceeding en-
titled "Peter W Hirsch, Regional Director of the 4th Region
of the National Labor Relations Board etc. v. Pick-Mt. Lau-
rel Corporation," Civil Action No. 77-0891 in the United
States District Court for the District of New Jersey, which
by stipulation were included in the record of the instant
case,t and my observation of the demeanor of the single
I accept the parties' wnritten stipulation of July 13. 1977. that pp.
6
and 7
of Jt Exh. Ill, which are portions of the testimony given in the same ancil-
lary proceeding be added to the record in this proceeding. I also accept the
additional stipulations of fact tendered by the parties on the same date.
1258
PICK-MT. LAUREL CORPORATION
witness who testified before me, and after due consider-
ation of the briefs filed by the General Counsel and Pick,
respectively, I make the following:
FINDINGS OF FACT
I. JURISDIC'rON
Since February 9, 1977, Pick-Mt. Laurel Corporation, a
New Jersey corporation has operated a hotel and restau-
rant facility at Mt. Laurel, New Jersey, when, as will be
found below, it became an employer successor at that facil-
ity to MLH Development Company (referred to herein as
MLH). Pick admitted that its estimated gross annual reve-
nue from the operation of its Mt. Laurel facility would
exceed $500,000. Pick also admitted that its estimated an-
nual purchases of goods originating outside the State of
New Jersey would exceed $2,000. Pick admitted, and I find
from the foregoing, that Pick is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
Pick admits, and I find, that Local 170, Bartenders, Ho-
tel, Motel & Restaurant Employees Union, AFL-CIO, is,
and, at all times material herein, has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues Presented
The questions presented in the instant case are: (1)
Whether Pick as the successor employer at its Mt. Laurel
Hilton Inn facilities was obligated to recognize and bargain
with the Union as the exclusive bargaining representative
of a unit of hotel and restaurant employees which at the
inception of Pick's successorship were covered by a collec-
tive-bargaining agreement between Pick's predecessor and
the Union, and: (2) Whether the strike of Pick's Mt. Laurel
Hilton Inn employees on February 25, 1977, 1 day after
Pick's refusal to recognize and bargain with the Union, was
an unfair labor practice strike.
B. The Facts
Pick has operated the hotel and restaurant facilities in-
volved in the instant case since February 9, 1977. On that
day, P-B Associates, a limited partnership which included
Pick as a general partner, acquired those facilities, known
as the Mt. Laurel Hilton Inn, from MLH Development
Company, a Michigan Corporation and on the same day
turned over managerial control of that facility to Pick. As
of February 9, 1977, MLH Development Company, doing
business as Mt. Laurel Hilton Inn, and the Union were
party to a 3-year collective-bargaining agreement, executed
on June 1, 1975, and effective from December 5, 1974,
until December 4, 1977. Under article I of that agreement,
MLH recognized the Union:
. . .as the sole and exclusive bargaining representa-
tive of its employees who are engaged in housekeep-
ing, laundry, repair and maintenance, and restaurant
and bar activities, exclusive of front desk, telephone,
office, security (including guards), supervisory person-
nel, and employees of concessionaires, in all matters
relating to collective bargaining, such as wages, hours
of work, workiag conditions and adjustment of griev-
ances.
Article 11, section 1, of the same agreement contains the
following union-security provision:
It shall be a condition of employment, that all employ-
ees of the Employer covered by this Agreement who
are members of the Union in good standing on the
effective date of this Agreement shall remain members
in good standing, and those who are not members on
the effective date of this Agreement, shall on or after
the ninetieth (90th) day following the effective date of
this Agreement become and remain members in good
standing in the Union. It shall also be a condition of
employment that all employees covered by this Agree-
ment and hired on or after its effective date shall, on
or after the thirtieth (30th) day following the begin-
ning of such employment, become and remain mem-
bers in good standing in the Union. Any employee
who does not maintain his membership in good stand-
ing in the Union as aforesaid shall be discharged by
the Employer upon notification from the Union.
The Union and MLH reached substantial agreement on
the terms of their collective-bargaining agreement by April
22, 1975, 6 to 7 weeks before the Mt. Laurel Hilton Inn
began operations and about 2 weeks before MLH had
hired any employees at those facilities.2
In the course of hiring maids and housemen for the Mt.
Laurel Hilton Inn in May 1975, Executive Housekeeper
Sandy Arnold, and other supervisors told prospective em-
ployees that a condition of employment at the Mt. Laurel
Hilton was that they become union members following a
90-day grace period. MLH's assistant food and beverage
director, Wayne Gotta, who hired employees for the Mt.
Laurel Hilton Inn from May 1975 until February 9, 1977,
regularly required new employees at the time of employ-
ment, to execute an application for membership in the
Union as well as a union dues-checkoff authorization card.
Between May 2 and September 1, 1975, MLH told new
employees that they were required to become union mem-
bers within 90 days of their hire, the dues-checkoff authori-
zation and membership application were not activated un-
til the expiration of 30 days from the date of execution.
Prior to February 9, 1977, the Union processed griev-
ances and monitored MLH's performance of contract pro-
visions affecting health and welfare benefits, seniority
rights, severence pensions, holiday pay, and other wage
-General Counsel's objection to the inclusion of p. 30, 11 10 20 and 22 of
Jt Exh I, concerning the execution date of the agreement is overruled.
3General Counsel's objection to employee Shaffer's testimony regarding
his acquisition of union membership in 1975 and his inquiry as to how to
resign from the Union. at p. 105. 11. 6-18, at p. 107. 11. 14-25. at p. 11, .9
16, and p. 113. 11. 15 25 Jt. Exh. 2, are overruled.
I also overruled General Counsel's objection to the testimony of Sandy
Arnold at p. 116, 11. 3-25. and p 117, 11. 2 19, Jt. Exh. 2. regarding enforce-
ment of the collective-bargaining agreement's union-secunty provision and
employee sentiment toward the Union prior to February 9. 1977.
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions of the collective-bargaining agreement.4 Union
officers Natale and McBride frequently visited the Mt.
Laurel Hilton Inn in connection with the contract.
At the time Pick took control of the Mt. Laurel Hilton
Inn, on February 9, and thereafter until at least May 31,
1977, the date of the hearing, the employee complement
remained the same as before the change of ownership. The
approximately 80 employees in the unit as of February 9
were employed under the same supervisors, including the
general manager, Daniel Cummings, and retained the same
job classifications as they enjoyed under MLH.5 By Febru-
ary 24, the unit comprised 103 employees. Pick retained the
same furnishings and maintained the physical plant as it
had been under MLH. The hotel, restaurant, and bar oper-
ations under Pick continued in the same manner as under
MLH. Prices remained the same and the name of the facil-
ity remained Mt. Laurel Hilton Inn. Business customers
continued to use the Inn's meeting facilities as they had
under MLH. Finally there was no hiatus in operations of
the Mt. Laurel Hilton.
It appears that unit employees expressed some dissatis-
faction with the Union in 1976 and early 1977. In October
1976, Cummings heard that several employees, who were
then behind in union dues payments had complained when
"large chunks of dues" were taken from their wages. Gen-
eral Manager Cummings himself received seven comp-
laints during the period between the summer of 1976 and
February 9, 1977. Of the seven complaining employees,
one was terminated in 1976, three complained about the
Union's performance, and only three expressed a desire to
resign from the Union.
In the autumn of 1976, Executive Housekeeper Sandy
Arnold, and Food and Beverage Director Wayne M. Gotta
told Cummings of employee complaints about having lump
sums taken from their paychecks for union dues.
Employee Lorah, a union steward in the housekeeping
department testified that in early January 1977, she had
five to seven conversations with fellow employees of whom
she named four regarding the possibility of replacing the
Union as collective-bargaining representative. From these
discussions, Lorah concluded that a majority of the partici-
pants did not want the Union to represent them for bar-
gaining purposes. Assistant Housekeeper Fallon was pres-
ent at one or two of these discussions.
From conversations and overheard talk, Assistant
Housekeeper Fallon was of the opinion by February 18
that 90 percent of the 24 or 25 employees in her depart-
ment were 'totally against the Union." However, she iden-
tified only six housekeeping department employees who
expressed such sentiments directly to her. Fallon told
Sandy Arnold of these six conversations, but there was no
showing of when they occurred or when Arnold learned of
them. There was no showing that Fallon conveyed this in-
4Pick's objection to Union Secretary-Treasurer and Business Manager
Ralph Natale's testimony regarding the Union's implementation of the 1975
collective-bargaining agreement. at pp. 55-57, Jt. Exh. I. is overruled.
51 have accepted the parties' stipulations that as of the payroll period
ending February 4, 1977. the unit comprised 80 employees, and that as of
the payroll period ending February 26, 1977. that number increased to 103.
These stipulations included only employees who had earnings during th,
stated payroll periods.
formation to any other member of Pick's management.
In February 1977, Cummings concluded from what he
had heard that the Union did not enjoy majority support.
During the period from February 9 to February 24, 1977,
Cummings reported to Pick's Vice President and Treasurer
Ralph Lewy that individual employees had come to him
saying that they no longer wished to belong to the Union
and that he had received similar reports from his subordi-
nate supervisors. Referring to these facts, Cummings ex-
pressed his opinion to Lewy that the Union did not have
the support of a majority of the unit employees.
There is no evidence that any unit employee revoked his
or her dues-checkoff authorization, resigned from the
Union or attempted to file a petition, prior to Pick's refusal
on February 24 to bargain with, or recognize the Union as
collective-bargaining agent of the Mt. Laurel Hilton Inn
employees. On that date, Union Vice President McBride
requested payment of funds due under the health and wel-
fare provisions of the collective-bargaining agreement from
Pick's General Manager Cummings. Cummings refused to
make the payment and advised McBride that Pick had or-
dered him "not to deal with the Union in any fashion." 6
On February 25, McBride called a strike after informing
the unit employees that Pick would no longer honor the
contract or recognize the Union as their bargaining agent.
The strike, which began on February 25, 1977, persisted at
the time of the proceedings in the United States District
Court for the District of New Jersey, in the latter half of
May 1977. On that same day, Pick filed a representation
petition with the Board's Region 4 in Case 4-RM-926, as-
serting its refusal to recognize the Union on February 24,
1977. The unit described in the petition corresponded to
the unit described in the current collective-bargaining
agreement. 7 Pick did not respond to the Union's final de-
mand for recognition made by letter on March 1. 1977.
C. Analysis and Conclusions
The General Counsel contends that Pick, as successor to
MLH, was obligated to recognize and bargain with the
Union for the unit described in the 1975 contract between
the Union and MLH, and that by failing to do so Pick
violated Section 8(aX5) and (1) of the Act. Pick defends its
refusal to recognize and bargain with the Union on the
grounds that as of February 24, 1977, the Union did not
enjoy the support of a majority of unit employees and that
Pick had a good-faith doubt of the Union's majority status.
6 I sustained Pick's objection to a question seeking Union Secretary-Trea-
surer Natale's testimony regarding statements made by Pick's management
to Union Vice President McBride out of Natale's presence, at p. 67, 11. 23
25 and p. 68. 11. I and 2, Jt. Exh. I, on the ground that such question
apparently called for hearsay.
At the trial in the United States District Court, Respondent Pick pre-
sented evidence showing that the examination of the personnel files of 103
unit employees revealed that only 11 of those employees who were em-
ployed by Pick as of February 24, had signed a checkoff authorization card
within the 6 months immediately preceding the hearing. However, on cross-
examination Pick's witness. Sandy Arnold conceded that the review of
Pick's files had occurred 2 or 3 days before the district court proceedings
which began on May 18. 1977. Thus, this review of Pick's files played no
part in Pick's decision in February to withdraw recognition from the Union
and file a representation petition with the Board's Region 4.
1260
PICK-MT. LAUREL CORPORATION
For the reasons stated below, I find merit in the General
Counsel's contentions.
It is clear from the foregoing facts, and I find, that Pick
became a successor employer to MLH on February 9,
1977, when it assumed management control of the Mt.
Laurel Hilton Inn. See Border Steel Rolling Mills, Inc.. 204
NLRB 814, 815 (1973).
Absent a reasonable good-faith doubt of the incumbent
union's majority a successor employer is required to recog-
nize the continuing representative status of the bargaining
agent of its predecessor's employees in an appropriate bar-
gaining unit taken over from that predecessor. N.L.R.B. v.
Burns International Security Services, Inc., 406 U.S. 272, 281
(1972). This doctrine applies not only where the union's
representative status was established in a Board election
but also where it arose by way of voluntary recognition
accorded the union by the predecessor employer. Eklund's
Sweden House Inn, Inc., 203 NLRB 413, 416 (1973). The
existence of such a contract, lawful on its face, raises the
presumptions that the union was majority representative at
the time the contract was executed and that its majority
status continued at least through the term of the contract.
Barrington Plaza and Tragniew, Inc., 185 NLRB 962, 963
(1970). As the Board declared in Barrington Plaza, supra at
963:
Following expiration of the contract, this presump-
tion continues and is not dependent on independent
evidence that the bargaining relationship was origi-
nally established by a certification or majority card
showing. The presumption applies not only to a situa-
tion where the employer charged with a refusal to bar-
gain is itself a party to the preexisting contract but
also to a successorship situation such as we have here.
The burden of rebutting this presumption rests, of
course, on the party who would do so. It is true that a
labor organization's continuing majority may not be
questioned during the term of a contract. On the other
hand, upon expiration thereof, the presumption of ma-
jority arising from a history of collective bargaining
may be overcome by "clear and convincing proof"
that the union did not in fact enjoy majority support
at the time of the refusal to bargain. At such time, it is
also a valid defense for the employer to "demonstrate
by objective considerations that it has some reason-
able grounds for believing that the union has lost its
majority status."
Applying the foregoing doctrine to the instant case, I
find that the General Counsel has shown that the Union's
majority was based upon the collective-bargaining agree-
ment between the Union and MLH. The contract was val-
id on its face. The record also shows that the Union active-
ly administered and policed the collective-bargaining
agreement up until February 24, 1977.
In reaching my conclusion that the MLH-Union con-
tract established the Union's presumptive majority status, I
have rejected Pick's contention that the circumstances sur-
rounding the execution of that contract in 1975 could now
be used to attack its validity. For, as the Board declared in
Barrington Plaza, 185 NLRB at 964: "By virtue of the iimi-
tations proviso of Section 10(b) of the Act, the legality of
the Union's initial recognition was no longer subject to
direct attack under Section 8 of the Act at the time of the
Respondent's refusal to bargain."
Nor do the subsequent unlawful acts of MLH in requir-
ing new employees to execute applications for union mem-
bership and checkoff authorization cards on the first day
of their employment help Pick's defense. For the Board has
recognized that "the existence of such [unlawful] practices"
do not excuse an employer from honoring an otherwise
valid obligation to recognize and bargain with a union. Ivo
H. Denham and Geraldine A. Denham, d/b/a The Denham
Company, 187 NLRB 434, 445 (1970), enfd. in part 469
F.2d 239 (9th Cir. 1972). Moreover, there is no showing
that specific incidents of MLH's unlawful practices oc-
curred within the 6-month 10(b) period preceding the filing
of the unfair labor practice charge in this case. Executive
Housekeeper Arnold testified that as of February 9, 1977,
only 30 of MLH's employees had been employed by MLH
for 6 months or more. However, the record does not identi-
fy which or how many of the remaining 73 unit employees
employed on February 24 were hired within the 10(b) pe-
riod. Thus, Pick has failed to show that the Union's pre-
sumed majority as of February 24, 1977, was tainted by
MLH's conduct occurring within 6 months of the filing of
the unfair labor practice charge herein. I therefore reject
Pick's argument that MLH's requirement that new employ-
ees execute applications for union membership and dues-
checkoff authorizations immediately upon being hired per-
mitted Pick's withdrawal of recognition on February 24,
1977. N.L.R.B. v. Denham, supra. I find that the 1975 con-
tract between the Union and MLH was a valid collective-
bargaining agreement giving rise to a presumption of ma-
jonty status on February 24, 1977, the date on which Pick
refused to recognize the Union.
Pick argues at page 19 of its brief that the Union's claim
of majority status was rebutted by "prevalent and perva-
sive employee dissatisfaction" and the absence of a suffi-
cient number of dues authorization cards to constitute a
majority. In addition, Pick urges as further rebuttal evi-
dence, the Union's attempt to solicit authorization cards
on "the eve of the threatened strike" and the participation
of less than a majority of the unit employees in that strike.
However, review of the record and consideration of estab-
lished Board law reveal that Pick's attack upon the Union's
majority status is without merit.
I cannot find the "prevalent and pervasive employee dis-
satisfaction" claimed by Pick. The record shows 13 identi-
fied employees expressed to supervisors their desire to be
rid of the Union as their bargaining representative.
Fallon's testimony suggests that possibly 16 more employ-
ees harbored the same desire. However, these numbers do
not add up to a majority as of February 24, 1977, when the
unit comprised 103 employees. Nor do Gotta's and
Arnold's reports to Cummings provide the requisite num-
bers to overcome the Union's presumed majority status.
Moreover, "[s]uch evidence of employee sentiment is unre-
liable, since an employee, when engaging in conversation
with supervisory personnel regarding his union sentiments,
will tend to make statements he believes management
would like to hear." Valley Nitrogen Producers, Inc., 207
NLRB 208, 214 (1973). See also Finally, Inc., d/b/a Palace
Club, 229 NLRB 1128, 1134 (1977).
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
More important, there is no evidence of any spontane-
ous employee effort to dislodge the Union. There was no
decertification petition filed by the employees with the
Board. Nor was there any petition presented to Pick ex-
pressing the employees' desire to oust the Union as their
bargaining representative. Finally, not one dues-checkoff
revocation was presented on behalf of any bargaining unit
employee.
That less than a majority of the unit employees may
have signed dues-checkoff authorization cards during the
life of the contract does not detract from the Union's pre-
sumed majority status. For, as the Board pointed out in
Barrington Plaza and Tragniew, Inc. (185 NLRB at 963):
In the case of an incumbent union, majority union
support is not to be confused with majority union
membership. As was recently emphasized by the
Fourth Circuit Court of Appeals in Terrell Machine
Co. v. N.LR.B.:
A showing that less than a majority of the em-
ployees in the bargaining unit were members of the
union or paid union dues [is] not the equivalent of
showing lack of union support. Manifestly ...
many employees are content neither to join the
union nor to give it financial support but to enjoy
the benefits of its representation. Nonetheless, the
union may enjoy their support, and they may desire
continued representation by it."
The remaining two grounds offered for doubting the
Union's majority status, i.e., solicitation of checkoff au-
thorization cards on February 25, 1977, and participation
in the strike by a minority of the unit employees on and
after that date, provide no assistance to Pick's defense. As
both incidents occurred after Pick's refusal to recognize
and bargain with the Union, neither had a bearing on the
Union's majority status as of February 24, 1977, the date
under scrutiny.
In sum, Pick has failed to sustain its burden of showing
that the Union in fact no longer represented a majority of
the employees in the contract unit at the time of Pick's
refusal to recognize and bargain with the Union.
I also reject Pick's assertion that its refusal to recognize
and bargain with the Union was based upon a reasonably
grounded good faith doubt of the Union's continued ma-
jority. To succeed in this aspect of its defense, "it was in-
cumbent on [Pick], under the Board's applicable standards,
to demonstrate its reliance on objective considerations af-
fording reasonable grounds for a good faith belief that
amajority of the unit employees no longer desired repre-
sentation by the Union." Virginia Sportswear, Incorporateda
226 NLRB 1296, 1301 (1976).
Pick based its asserted belief solely upon General Man-
ager Cummings' reports to Pick Vice President Lewy. In
the absence of a decertification petition or any other con-
crete indication that a majority of the unit employees had
abandoned the Union, Cummings' reports were inadequate
basis for the claimed good faith belief that the Union
lacked majority status.
From the foregoing, I find that Pick has failed to estab-
lish either that the Union did not in fact enjoy majority
support, or that it had reasonable grounds based on objec-
tive considerations for believing so at the time of its refusal
to bargain with the Union.8 Accordingly, I find that Pick
was not justified in refusing to recognize and bargain with
the Union as the majority representative of its employees
in appropriate unit on and after February 24, 1977, and
that by such conduct Pick violated Section 8(a)(5) and (1)
of the Act.
Under settled law, "a strike is an unfair labor practice
strike if only one cause, even if not the primary cause, was
the employer's unfair labor practice, notwithstanding the
presence of economic issues." National Fresh Fruit & Vege-
table Company and Quality Banana Co., Inc., 227 NLRB
2014, 2017 (1977). Accordingly, the strike which the Union
called on February 25, 1977, at Pick's Mt. Laurel Hilton
Inn was an unfair labor practice strike from its inception.
For, according to thie credited testimony of Union Vice
President McBride, Pick's refusal to recognize and bargain
with the Union was one of the reasons for the strike. From
this circumstance, I find that the employees who partici-
pated in the strike which began on February 25, 1977, are
entitled to the full reinstatement rights usually accorded
unfair labor practices strikers. National Fresh Fruit & Vege-
table Company, supra.
CONCLUSIONS OF LAW
I. Respondent Pick-Mt. Laurel Corporation is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 170, Bartenders, Hotel, Motel & Restaurant
Employees Union, AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. All employees engaged in housekeeping, laundry, re-
pair and maintenance, restaurant and bar activities, exclu-
sive of front desk, telephone, office, security (including
guards), supervisory personnel and employees of conces-
sionaires, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. The Union at all times material hereto, has been the
exclusive bargaining representative of all employees in the
aforesaid appropriate bargaining unit within the meaning
of Section 9(a) of the Act.
5. Respondent has in violation of Section 8(aX5) and (1)
of the Act refused on and after February 24, 1977, to rec-
ognize and bargain with the Union as the exclusive repre-
sentative of the employees in the appropriate unit.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
7. The strike commencing on February 25, 1977, at Re-
spondent's Mt. Laurel, New Jersey, facilities was an unfair
labor practice strike.
THE REMEDY
Having found that Respondent has committed certain
-Terrell Machine (Company, 173 NLRB 1480, 1481 (1969). enfd. 427 F.2d
1088 (4th Cir 1970).
1262
PICK-MT. LAUREL CORPORATION
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom, and from like and related
unfair labor practices, and that it take affirmative action
provided for in the recommended Order below, which I
find necessary to effectuate the policies of the Act.
[Recommend Order omitted from publication.]
1263