Pioneer Inn

National Labor Relations Board - Board Decisions

Apr 7, 1977

228 N.L.R.B. 1263 (N.L.R.B. 1977)

PIONEER INN 1263
Pioneer Inn Associates , d/b/a Pioneer Inn and
Pioneer Inn Casino and Hotel, Motel, Restaurant
Employees and Bartenders Union , Local 86, Hotel,
Motel, Restaurant Employees & Bartenders Inter-
national Union, AFL-CIO. Case 20-CA-10357
April 7, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On July 14, 1976, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed cross-exceptions and a brief in
support of cross-exceptions, in answer to the General
Counsel's exceptions, and in support of the Adminis-
trative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order only to
the extent consistent herewith.
1. The General Counsel contends that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by "unilaterally substituting a new employee medical
care insurance plan for the one incorporated in a
collective-bargaining agreement with the Union,"
and by "refusing to permit a union business
representative access to its premises to administer the
parties' collective-bargaining agreement which in-
cludes a proviso allowing union access for this
purpose." The Administrative Law Judge found that
during the relevant period there was a valid contract
in effect between Respondent and the Union in an
appropriate unit; that as of May 1, 1975, while the
contract was still in effect, Respondent unilaterally
and without notice to the Union substituted a new
employee medical care insurance plan for the one in
the collective-bargaining agreement; and that, while
the contract was still in effect, Respondent refused to
allow a union business agent access to its premises as
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F2d 362 (C.A. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
2 The record establishes that the Respondent and the Union entered into
a collective-bargaining agreement on June 1 , 1970. By addendum, the
228 NLRB No. 160
required by the contract. Disregarding these findings,
the Administrative Law Judge concluded that the
Respondent did not violate Section 8(a)(5) because
he found that the Union lost the presumption of
majority status flowing from the existence of its
contract with the Respondent primarily because it
was insufficiently active in administering the agree-
ment. Thus he found that the General Counsel had
failed to establish the Union's majority status, since
only the contract was submitted as evidence of this
essential element necessary to support the refusal-to-
bargain charge. We reject the Administrative Law
Judge's "abandonment" theory and find merit in the
General Counsel's contention.
In finding that the June 1970 agreement2 and the
employees covered thereunder were abandoned by
the Union from 1971 until January 1975, the
Administrative Law Judge relied on the fact that
there were no negotiations between the Respondent
and the Union during that time period, and that no
explanation was offered by the Union for its failure
to negotiate a new collective-bargaining agreement.
The Administrative Law Judge also relied on the
testimony of the Respondent's general manager
which he found was consistent with the Union's
failure to negotiate a new agreement. The testimony
indicated that the Respondent had no contact with
anyone connected with the Union from 1970 until
January 1975, and that employees and supervisors
had no contact with union representatives for
purposes of contract administration.
The record establishes that the Union was placed
under trusteeship by its International Union in June
1974. Following this change in the Union's status, it
is undisputed that the Union, in the words of the
Administrative Law Judge, "resumed its role" as the
employees' bargaining representative. It is noted that
all of the above conduct alleged by the General
Counsel to be violative of Section 8(a)(5) and (1) of
the Act took place subsequent to June 1974, and, in
fact, subsequent to January 1975, the time specified
by the Administrative Law Judge when the Union
"commenced to represent the unit employees and to
administer the collective-bargaining agreement."
Beginning in or about January 1975, the Union
processed the George Busby grievance and vigorous-
ly pursued it thereafter. In May 1975, the Union
protested the Respondent's unilateral change in the
contract provided that the agreement would be effective from September 1,
1969, to August 31, 1972, and that it would continue from year to year
unless either party gave the required notice to amend or terminate the
agreement. It is undisputed that neither party gave the required notice to
amend or terminate the agreement in 1972, 1973, or 1974 Accordingly, the
Administrative Law Judge concluded, and we agree , that the agreement
renewed itself and was therefore in effect from September 1, 1974, through
August 31, 1975, the time material to this case.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractual medical care plan and sent a representa-
tive to the Respondent's premises to determine
whether the Respondent was posting an employees'
work schedule as required by the contract.
Our primary disagreement with the Administrative
Law Judge is that there is no basis in Board law
which permits him to ignore the presumption of
majority status inherent in the above findings.
Certainly the cases he cites 3 in relation to this
conclusion provide no foundation in Board law or in
policy to sustain him. The contracts in both of those
cases , which were offered as establishing presump-
tions of majority status, were found defective as
being "members only" agreements or at least as
having been applied discriminatorily, and indefinite
as to unit coverage, and thus neither would be a bar
in the Board's representational context. As we have
already pointed out, the Administrative Law Judge's
own findings have resolved any question of the
possible invalidity of the instant contract in terms of
the unit covered and no other challenge has been
made to its validity. The Administrative Law Judge,
in any event, found the contract to be valid. Clearly
then, the lack of any basis for finding the contract to
be invalid calls into effect the long-established Board
presumption of the Union's majority status during
the term of the contract, irrespective of the degree to
which the Union may or may not have been deficient
in the administration of that agreement.
Moreover, even if one were to examine Board
precedent as to when a union is regarded as
"defunct"-so that its collective-bargaining agree-
ment no longer constitutes a bar to petitions from
competing unions-it is clear that, to preserve the
viability of its agreement for contract-bar purposes, a
recognized union need only show that it is willing
and able to represent the covered employees at the
time its status is called into question.4
In this regard, the record supports, and the
Administrative Law Judge found, that notwithstand-
ing the relative inactivity of the Union prior to late
1974 or early 1975 the Union became active in
administering its agreement with the Respondent at a
time before the Respondent took the actions alleged
herein to constitute a refusal to bargain. Thus, even
under the applicable Board precedent the facts here
would not justify a finding that the Union was either
unwilling or unable to represent the employees in
question. As the Board said in Road Materials, supra
at 991, wherein there was no union activity of any
kind and a demonstrable number of employees had
withdrawn dues-checkoff authorizations and re-
signed from the union:
3 Ace-Doran Hauling & Rigging Co, 171 NLRB 645 (1968), Bender Ship
Repair Company, Inc and Bender Welder and Machine Company, Inc, 188
NLRB615,fn 10(1971)
... [w]e find no basis for concluding that the
[union] had abandoned its administration of the
contract. It may be true that the [union] has been
negligent in carrying out its responsibilities as the
representative of these employees. However, it
also appears that unit employees may have failed
to avail themselves of opportunities to utilize the
services of the [union].... In our view, neither
the [union's] inaction during the period in
question [16 months] nor the Employer's unilater-
al wage increase is adequate to support the
conclusion that the [union] abandoned the
administration of the contract.
Likewise here there is no evidence that any employee
covered by the Union 's agreement with the Respon-
dent ever sought the Union's assistance without
receiving is full support. Indeed, the evidence is that
only one grievance was filed during the entire period,
that of George Busby, which the Union vigorously
pressed on his behalf. The fact that no other
grievances were filed could well mean that the
relationship between the employees, the Union, and
the Respondent were harmonious, or that the
employees had simply failed to avail themselves of
the Union's assistance . In any case, there is absolute-
ly no evidence in this record to support a finding that
the Union was either unwilling or unable to represent
the employees covered by its agreement with Re-
spondent.
Accordingly, we find that the Respondent, by
engaging in the above-mentioned conduct-substi-
tuting a new employee medical care insurance plan
for the one in the collective-bargaining agreement
and refusing to allow a union business agent access
to its premises as required by the contract-at a time
when a valid contract between it and the Union was
still in effect, violated Section 8(a)(5) and (1) of the
Act as alleged by the General Counsel.
2. The General Counsel further contends that the
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain over a new collective-
bargaining agreement and by withdrawing recogni-
tion from the Union. The Administrative Law Judge
dismissed these allegations on the same basis as
above, concluding that the usual presumption of
majority status did not apply herein and that the
General Counsel did not otherwise "sustain his
burden of proof on the crucial issue of the status of
the Union as majority representative." Having
disposed of these allegations on this basis, the
Administrative Law Judge found it unnecessary to
rule on the Respondent's good-faith doubt defense.
4 Loree Footwear Corporation, 197 NLRB 360 (1972); Road Materials,
Inc, 193 NLRB 990 (1971).
PIONEER INN 1265
He did, however, reject the Respondent's contention
that the Union did not, in fact, enjoy majority
support when it withdrew recognition, by finding the
evidence submitted in support of this claim to be
insufficient. Since we have rejected the Administra-
tive Law Judge's "abandonment" theory and thus
the basis for his dismissal of these allegations, we
have examined the Respondent's good-faith doubt
defense. For the reasons set forth below, we reject
that defense and find merit in the General Counsel's
contention.
The record shows that on June 4, 1975, the Union
gave timely notification to the Respondent that it
desired "to change and modify" the agreement and
requested communication from the Respondent for
the purpose of setting up negotiating sessions.
Subsequently, on June 24, 1975, the Respondent's
attorney wrote the Union to notify it that effective
September 1, 1975, the Respondent was terminating
the collective-bargaining agreement with the Union.
In its letter, the Respondent made no reference to a
new agreement and so, on July 31, 1975, the Union,
by telegram, asked the Respondent whether it
intended to negotiate a new agreement. In response
to the Union's telegram, the Respondent, on August
12, 1975, replied that it had "a genuine and good-
faith doubt" that the Union represented a majority of
any of its employees.
In Bartenders, Hotel, Motel and Restaurant Employ-
ers Bargaining Association of Pocatello, Idaho and its
Employer-Members, 213 NLRB 651 (1974), a Board
panel reviewed the underlying legal principles to be
applied in situations where an employer seeks to
withdraw recognition from an established bargaining
representative. In that case, the panel reaffirmed the
principles set forth in Terrell Machine Company, 173
NLRB 1480, 1480-81 (1969), enfd. 427 F.2d 1088
(C.A. 4, 1970), where the Board stated:
It is well settled that a certified union, upon
expiration of the first year following its certifica-
tion, enjoys a rebuttable presumption that its
majority representative status continues.' This
presumption is designed to promote stability in
collective-bargaining relationships, without im-
pairing the free choice of employees.2 According-
ly, once the presumption is shown to be operative,
a prima facie case is established that an employer
is obligated to bargain and that its refusal to do so
would be unlawful. The prima facie case may be
rebutted if the employer affirmatively establishes
either (1) that at the time of the refusal the union
5 Shamrock Dairy, Inc, 119 NLRB 998, 1002 (1957), and 124 NLRB 494
(1959), enfd 280 F 2d 665 (C A D C), cert denied 364 U.S. 892 (1960), Ref-
Chem Company, 169 NLRB 376 (1968), enforcement denied 418 F 2d 127
(C A 5, 1969)
in fact no longer enjoyed majority representative
status; 3 or (2) that the employer's refusal was
predicated on a good-faith and reasonably
grounded doubt of the union's continued majority
status. As to the second of these, i.e., "good faith
doubt," two prerequisites for sustaining the
defense are that the asserted doubt must be based
on objective considerations4 and it must not have
been advanced for the purpose of gaining time in
which to undermine the union.5 [This second
point means, in effect, the assertion of doubt must
be raised "in a context free of unfair labor
practices." See Nu-Southern Dyeing & Finishing,
Inc., 179 NLRB 573, fn. 1 (1969), enfd. in part 444
F.2d 11 (C.A. 4, 1974).
' Celanese Corporation ofAmerica, 95 NLRB 644, 671-672
2 Id
3 "Majority representative status" means that a majority of
employees in the unit wish to have the union as their representative for
collective-bargaining purposes." Id
4 See Laystrom Manufacturing Company, 151 NLRB 1482, 1484,
enforcement denied on other grounds (sufficiency of evidence) 359 F 2d
799 (C A 7, 1966), United Aircraft Corporation, 168 NLRB 480 (TXD);
N L R B v. Gulfmont Hotel Company, 362 F 2d 588 (C.A 5, 1966), enfg
147 NLRB 997 And cf United States Gypsum Company, 157 NLRB 652
5 C & C Plywood Corporation, 163 NLRB 1022, Bally Case and
Cooler, Inc, 172 NLRB 1127.
Thus, it is clear that the existence of a prior contract,
lawful on its face, is sufficient to raise a dual
presumption of majority, first that the Union had
majority status when the contract was executed and
second that the majority continued at least through
the life of the contract.5 Following the expiration of
the contract, the presumption continues, and the
burden of rebutting it rests , of course, on the party
who would do so.6
Applying these principles to the instant case, the
existence of a valid collective-bargaining agreement,
which we have heretofore found was in effect on and
after August 12, 1975, gives rise to the presumption
of majority representative status discussed above.
The General Counsel has thus made out a prima facie
case that the Union was the majority representative
of the employees in this unit and that the Respon-
dent was obligated to continue to bargain with it.
Therefore, it was incumbent on the Respondent, in
defending its refusal to bargain with the Union, to
demonstrate either that the Union did not in fact
enjoy majority support at the time of the refusal to
bargain, or that it had reasonable doubts based on
objective considerations for believing the Union had
lost its majority status when it refused to bargain.
For the reasons set forth below, we conclude that the
Respondent has failed to rebut the presumption of
6 Barrington Plaza and Tragmew, Inc, 185 NLRB 962 (1970), enforce-
ment demed on other grounds sub nom N L R B v Tragniew, Inc, and
Consolidated Hotels of California, 470 R.2d 669 (C.A. 9, 1972).
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's continued majority representative sta-
tus,7 and therefore find, as noted hereinabove, that
the Respondent has violated Section 8(a)(5) and (1)
of the Act as alleged by the General Counsel.
In support of its assertion that its refusal to bargain
was predicated on a good-faith and reasonably
grounded doubt of the Union's continued majority
status, the Respondent relies , inter alia, on the
following factors: (1) the Union's inactivity; (2) the
Union's failure to negotiate a new collective-bargain-
ing agreement after the 1970 agreement expired in
1972; (3) conversations with supervisors; (4) the
Union's failure to demonstrate that employees are
members of the Union; (5) the substantial turnover
of employees; and (6) the substantial increase in the
size of the work force.
For the reasons discussed in part 1 of this Decision,
we conclude that the Respondent cannot rely on the
Union's inactivity to support a reasonably based
doubt of continued majority support. With regard to
the second factor, it is clear that the Respondent was
aware that there was a valid contract in effect at the
time of its refusal to bargain. As indicated above, the
1970 contract provided, by addendum, that the
agreement would continue from year to year after its
August 1972 expiration date unless the required
notice to amend or terminate was given by either of
the parties. It is undisputed that no such notice to
amend or terminate was given. On this basis, the
Administrative Law Judge properly found the 1970
contract to be in effect during the time material to
this case. Furthermore, the Respondent's own ac-
tions during the period from 1970 until 1975 belie its
contention that no such agreement was in effect at
the time of its refusal to bargain. Specifically, the
Respondent made regular payments from June 1970
until April 1975 into the health and welfare trust
fund designated in the agreement, processed the
Busby grievance, wrote a letter to the Board agent
handling a charge filed on the Busby grievance
giving assurances that the Respondent desired to
clear up the matter, and wrote a letter, dated June 24,
1975, terminating the agreement as of September 1,
1975.
With regard to the alleged conversations with
supervisors, the Respondent contends that such
conversations took place in January and February
1975, and that each of the supervisors questioned
indicated that none of their employees had ever
stated that they wanted to be represented by the
Union. In this connection, it is noted that the
Respondent does not claim that its reasonably
grounded doubt was based on any discussions with
r In so concluding , we adopt , without further discussion, the Administra-
tive Law Judge 's finding that the Respondent failed to demonstrate that the
Union did not, in fact, enjoy majority support when it withdrew recognition.
employees. Such conversations with supervisors,
even if they occurred as testified to by the Respon-
dent, are too vague and too generalized for us to
consider them as a basis for the Respondent's refusal
to bargain.
The last three factors-lack of union membership,
turnover, and the increase in the size of the work
force-also cannot be relied on by the Respondent to
support a reasonably based doubt of majority
support. With regard to union membership, the
Board has held, with court approval, that a showing
of less than a majority of the employees in the unit
who are members of the union is not the equivalent
of showing a lack of majority support. The theory
behind this principle is that no one can know with
certainty how many employees who favor union
representation do not become or remain members of
the union.8 With regard to turnover and the increase
in the size of the work force, we note that there is a
presumption that new employees will support the
union in the same proportion as those employees
with more seniority.9 The Respondent has not
offered any evidence to rebut that presumption.
Accordingly, we find that the Respondent 's asser-
tion that its refusal to bargain was predicated on a
good-faith and reasonably grounded doubt of the
Union's majority status is not supported by the
record. Therefore, we find that the Respondent was
obligated to continue bargaining with the Union and
by refusing to do so and withdrawing recognition
from the Union, it violated Section 8(a)(5) and (1) of
the Act.
3. In view of the foregoing, we have found,
contrary to the Administrative Law Judge, that the
Respondent has engaged in unfair labor practices
within the meaning of the Act. Therefore, we shall
order the Respondent to cease and desist therefrom
and take certain affirmative action designed to
effectuate the policies of the Act. Further, having
found that the Respondent has unlawfully with-
drawn recognition from the Union, and has failed
and refused, upon demand, to bargain collectively
with the Union as required by the Act, we will order
the Respondent to recognize and, upon request,
bargain with the Union as exclusive representative of
the employees in an appropriate unit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Pioneer Inn Associates, d/b/a Pioneer Inn and
8 N L R B v. Gulfmont Hotel Company, 362 F.2d 588, 591 (C.A. 5, 1966).
9 Harpeth Steel, Inc, 208 NLRB 545 (1974).
PIONEER INN 1267
Pioneer Inn Casino, Reno, Nevada, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the aforesaid Union,
upon its request, as the exclusive representative of
the following appropriate bargaining unit:
All food service employees employed by employ-
er-members of the Association, including Pioneer
Inn Associates, d/b/a Pioneer Inn and Pioneer
Inn Casino, including chefs, pastry cooks, second
cooks, broiler cooks, butchers, fry cooks, kitchen
helpers, pantrypersons, kitchen workers, bar
porters, captains, hostesses, maitre d', waiters and
waitresses, food checkers, bus boys, cashiers,
bartenders and bar boys; excluding all non-food
service employees, guards and supervisors as
defined in the Act.
(b) Putting into effect any insurance plan, or other
benefit or thing of value , without first bargaining
with the aforesaid Union , but nothing herein shall be
construed to require the Respondent to revoke any
insurance plan or other benefits which have been put
into effect prior to this Order.
(c) Refusing to allow the Union access to its
premises to administer the collective-bargaining
agreement which includes a proviso allowing the
union access for this purpose.
(d) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Recognize and, upon request , bargain collec-
tively with Hotel , Motel, Restaurant Employees and
Bartenders Union , Local 86 , Hotel, Motel, Restau-
rant Employees & Bartenders International Union,
AFL-CIO, as the exclusive representative of all
employees in the appropriate unit, described above,
with regard to rates of pay, hours of employment,
and other terms and conditions of employment and,
if an understanding is reached , embody such under-
standing in a signed agreement.
(b) Post at its Reno, Nevada, facility copies of the
attached notice marked "Appendix ." 10 Copies of
said notice , on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent 's authorized representative, shall be
posted by the 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. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
10 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 "
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 bargain with Hotel,
Motel, Restaurant Employees and Bartenders
Union, Local 86, Hotel, Motel, Restaurant
Employees & Bartenders International Union,
AFL-CIO, as the exclusive representative of the
following appropriate bargaining unit:
All food service employees employed by
employer-members of the Association, in-
cluding Pioneer Inn Associates, d/b/a Pio-
neer Inn and Pioneer Inn Casino, including
chefs, pastry cooks, second cooks, broiler
cooks, butchers, fry cooks, kitchen helpers,
pantrypersons, kitchen workers, bar porters,
captains, hostesses, maitre d', waiters and
waitresses, food checkers, bus boys, cashiers,
bartenders and bar boys; excluding all non-
food service employees, guards and supervi-
sors as defined in the Act.
WE WILL NOT put into effect any insurance
plan, or other benefit or thing of value, without
first bargaining with the aforesaid Union.
WE WILL NOT refuse to allow the aforesaid
Union access to our premises for the purpose of
administering the collective-bargaining agreement
which includes a proviso allowing the Union
access for this purpose.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed under Section 7 of
the Act.
WE WILL recognize and, upon request, bargain
collectively with the aforesaid Union as the
exclusive representative of all employees in the
appropriate unit, described above, with regard to
rates of pay, hours of employment, and other
terms and conditions of employment and, if an
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understanding is reached, embody such an
understanding in a signed agreement.
PIONEER INN
ASSOCIATES, D/B/A
PIONEER INN AND
PIONEER INN CASINO
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: Upon
charges filed June 19 and October 22, 1975, by Hotel,
Motel, Restaurant Employees and Bartenders Union,
Local 86, Hotel, Motel, Restaurant Employees & Bartend-
ers International Union, AFL-CIO, the General Counsel
of the National Labor Relations Board, by the Regional
Director for Region 20, issued a complaint on December
30, 1975, which was amended on January 21 and April 29,
1976, alleging that Respondent Pioneer Inn Associates and
Respondent Pioneer Inn Casino have violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, by certain conduct. Respondents filed an
answer, amended at the hearing, denying the commission
of the alleged unfair labor practices. The matter was heard
in Reno, Nevada, on April 29, 30, and May 3, 1976.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Pioneer Inn Associates is a Nevada limited
partnership composed of John Lazovich, Bob Lazovich,
Jerry Poncia, Donald Carano, Frank Merrill, Thomas
Wilson and the estate of Jan Lyons, which operates a hotel,
bars, and restaurant located in Reno, Nevada, at one
location, doing business as Pioneer Inn. During the year
prior to the issuance of the complaint, Pioneer Inn received
gross revenues in excess of $500,000 and purchased and
received goods and products valued in excess of $10,000
directly from suppliers located outside the State of Nevada.
Respondent Pioneer Inn Casino is a partnership com-
posed of John Lazovich, Donald Carano, and Jerry Poncia,
which operates a gambling casino on the same premises
occupied by the Pioneer Inn.
The complaint, as amended, alleges that Respondents
constitute a single employer for purposes of this proceed-
ing. I agree. Respondents are held out to the public as a
single enterprise, they are commonly owned and have
common management and labor relations policies which
are established by the same person. These circumstances
establish that Respondents constitute one employer for
purposes of the Act and this proceeding.
Based on the foregoing, I conclude that the operations of
Respondents meet the Board's discretionary standard for
asserting jurisdiction and that it will effectuate the policies
of the Act to assert jurisdiction herein. I have considered
and rejected the argument that the Board should not assert
jurisdiction herein because part of Respondents' operation
involves a gambling casino. However, the employees
involved in this proceeding are employed by Respondent
Pioneer Inn Associates, not by Respondent Pioneer Inn
Casino, and are employed in Pioneer Inn's hotel, restau-
rant, and bars, not in the gambling casino operated by
Pioneer Inn Casino. In any event, the Board has previously
asserted jurisdiction over employers in the gambling
industry and has explicitly refused to apply the analogy of
the horseracing industry, over which it has declined to
assert jurisdiction, to the gambling industry as urged by
Respondent. See The Anthony Company, d/b/a El Dorado
Club, 220 NLRB 886 (1975).
II. THE LABOR ORGANIZATION INVOLVED
The record establishes that Hotel, Motel, Restaurant
Employees and Bartenders Union, Local 86, Hotel, Motel,
Restaurant Employees & Bartenders International Union,
AFL-CIO, the Union, is an organization in which
employees participate and which exists for the purpose at
least in part of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work. Accordingly, I find
that it is a labor organization within the meaning of Section
2(5) of the Act.
III. THE QUESTIONS PRESENTED
The ultimate questions presented for decision are:
1. Whether Respondents violated Section 8(a)(5) and
(1) of the Act by unilaterally substituting a new employee
medical care insurance plan for the one incorporated in a
collective-bargaining agreement with the Union.
2. Whether Respondents violated Section 8(a)(5) and
(1) of the Act by refusing to permit a union business
representative access to its premises to administer the
parties' collective-bargaining agreement which includes a
proviso allowing union access for this purpose.
3. Whether Respondents violated Section 8(a)(5) and
(1) of the Act by refusing to bargain over a new collective-
bargaining agreement and by withdrawing recognition
from the Union.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The parties' collective-bargaining relationship
Respondent Pioneer Inn and the Union entered into a
collective-bargaining agreement on June 1, 1970, covering
Pioneer Inn's restaurant and bar employees and certain
hotel service employees. This agreement superseded a
previous one covering only restaurant and bar employees.
The event which led up to the signing of the new agreement
was the Union's organization of the Pioneer Inn's hotel
service employees. On May 11, 1970, the Union filed a
representation petition with the Board in Case 20-RC-
9347 seeking to represent a unit of the Pioneer Inn's hotel
service employees with certain exclusions. Shortly before
the scheduled hearing, the Regional Director for Region 20
approved the Union's request that the petition be with-
PIONEER INN
drawn when the Union represented that the Pioneer Inn
and the Union had entered into a collective-bargaining
agreement on May 27, 1970, covering the hotel service
employees whom the Union had petitioned to represent.
This agreement, however, was not signed in fact until June
1, 1970.1 It was signed for Respondent Pioneer Inn by its
owner and general manager, John Lazovich, and for the
Union by its secretary-treasurer, Bud Tucker. General
Counsel was unable to locate Tucker, hence, he did not
testify. The agreement on its face bears the date of
execution, June 1, 1970, which is in Tucker's handwriting.2
Lazovich testified he has no independent recollection
whether or not this was the date the agreement was signed.
However, I am of the opinion that the whole record
establishes that the agreement was signed June 1 , 1970, the
date that it bears. The agreement is regular on its face and
there is nothing which indicates that Tucker misdated it.
To the contrary, the events leading up to the signing of the
agreement - the Union's withdrawal of its representation
petition when Respondent Pioneer Inn agreed to sign an
agreement which included the hotel service employees -
indicate that the date, June 1, 1970, is reliable. Moreover,
Pioneer Inn's head housekeeper, Helen Witte, testified that
in 1970 Lazovich told her that Pioneer Inn was signing a
contract with the Union which would cover the maids.
Based on the foregoing, I find that on June 1, 1970, Pioneer
Inn and the Union entered into a collective-bargaining
agreement, herein called the June 1970 agreement, which
covered Pioneer Inn's restaurant and bar workers and
certain of its hotel service employees.3
Article XXII of the June 1970 agreement entitled
"Termination and Opening" as modified by an addendum
to the agreement4 provides that:
This Agreement shall be effective from [September 1,
1969] to and including [August 31, 1972] and shall
continue in force thereafter from year to year unless
either party hereto shall give written notice to the other
at least 60 days prior to [August 31, 1972] and at least
60 days prior to the 31st of August of each succeeding
year during which the Agreement may continue in
effect, that the party giving said notice desires to amend
or terminate the Agreement.
It is undisputed that neither the Union nor Respondent in
1972, 1973, or 1974 gave the required notice to amend or
terminate the agreement . Accordingly, the agreement
1 The portion of the agreement which includes the classifications and
wage rates for the hotel service employees contains certain deletions
initialed and dated by the parties The date first placed aside of the deletions
was "5 /27/70" but was later crossed over to read "6/1/70"
2 Tucker 's signature was authenticated by Howard Lawrence, the
Union 's current chief executive officer . The date is obviously in Tucker's
handwriting
4 Lazovich identified another collective -bargaining agreement signed by
himself and Tucker dated June 1 , 1967, in Lazovich 's handwriting As was
the case with the June 1970 agreement , Lazovich testified he had no
independent recollection of when he signed this agreement The agreement,
a xerox copy of an original , is identical to the June 1970 agreement which
makes the date , June 1 , 1967, suspect inasmuch as the wage increases for the
restaurant and bar workers were effective on September I during 1969, 1970,
and 1971 , but not for 1967 or 1968 , even though the agreement was
supposedly signed June 1, 1967 In any event , the June 1967 agreement was
superseded by an agreement admittedly signed by Respondent Pioneer Inn
and the Union on November 15, 1968 , covering Pioneer Inn's restaurant
1269
renewed itself and was in effect during the period from
September 1, 1974, through August 31, 1975. Respondent
recognized this, as is demonstrated by its attorney's letter
of June 24, 1975, to the Union stating : "On behalf of our
client, Pioneer Inn, you are hereby notified that it is
terminating its agreement with [the Union] effective
September 1, 1975 [emphasis added]." That Respondent in
1975 realized that there was a collective-bargaining
agreement in effect between Pioneer Inn and the Union is
also illustrated by its reaction to the Union's unfair labor
practice charge filed in February 1975, charging Pioneer
Inn with refusing to process a grievance filed by the Union
over the discharge of bartender Ira Busby. In reply to this
charge , Lazovich , the Employer's general manager, in-
formed the Board's Regional Office that he had contacted
the Union 's business representative on several occasions to
find out what the problem was 5 but had not received any
correspondence from the Union and would "be happy to
meet with a representative of the Union at any time that
they will give me information regarding this case." This is
not the response of an employer that believed it was not
under an obligation to honor an existing collective-bar-
gaining agreement; rather, it indicates Pioneer Inn believed
it was obligated under the contractual grievance procedure
to discuss Busby's grievance with the Union.6
Based on the foregoing, I find that during the time
material to this case - 1975 - Respondent Pioneer Inn
and the Union were parties to a collective-bargaining
agreement , the June 1970 agreement, which was effective
from September 1, 1974, until August 31, 1975.
2. The change in the employees' medical care
plan
In executing the June 1970 agreement, Respondent
Pioneer Inn agreed that the employees would be covered
by a medical care plan provided for in article XIX of the
agreement and, in connection with this plan, that it would
pay into a designated health and welfare trust fund 11
cents per hour on behalf of each employee covered by the
agreement . Pioneer Inn made these contributions for all of
its employees - even those not included in the contractual
bargaining unit - from at least the date the agreement was
entered into until on or about April 14, 1975.
On March 3, 1975, Pioneer Inn's employees were notified
in writing by General Manager Lazovich there would be
employee meetings held on March 6 to "evaluate our
and bar employees which in turn was superseded by the June 1970
agreement which extended the contractual unit to cover Pioneer Inn's hotel
service employees
4 The addendum to agreement unambiguously changes only that portion
of article XXII which deals with the effective dates of the agreement It does
not change , in any respect , the requirement that the agreement would
continue on a year-to-year basis following the date of termination absent
written notice by either party
5 There is no evidence that in fact Lazovich actually contacted Tucker
about this matter and Lazovich credibly testified that this portion of his
letter was not accurate
6 Respondent Pioneer Inn's subsequent conduct with respect to Busby's
grievance lends additional weight to this conclusion Respondent's assistant
manager furnished the Union with a detailed explanation for Busby's
discharge and thereafter , pursuant to the terms of the contractual grievance
procedure , met with a representative of the Union for the purpose of
resolving the gnevance
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present insurance program and a new insurance program
the Pioneer Inn is interested in obtaining for all employ-
ees" and that the employees would be given the opportuni-
ty to vote whether to accept the new plan or continue with
the present one. "The decision," Lazovich explained, "is up
to the employees." These meetings were held as scheduled.
The new medical care plan was explained to the employees
and they voted unanimously to accept it. On March 9 the
Employer notified the employees that the new plan was
effective May 1, 1975. On May 1, 1975, the new medical
care plan was placed into effect as scheduled. It provides
the employees with substantially greater benefits than the
old one at a greater cost to the Employer.
The Union was not notified by Respondent Pioneer Inn
about the substitution of the new medical care plan for the
existing plan or that Pioneer Inn was considering this
possibility. The Union learned about the new plan from
other sources apparently late in April 1975 and on May 2,
1975, through its lawyer, wrote Donald Carano, one of the
owners of the Pioneer Inn, protesting the substitution of
the new medical care plan for the old one. Specifically, the
Union's lawyer stated that the Pioneer Inn's conduct
constituted a violation of the parties' collective-bargaining
agreement and was a violation of the National Labor
Relations Act and threatened to file unfair labor practice
charges with the Board unless Carano contacted the
Union's lawyer within 5 days to discuss or explain the
situation . Carano did not respond to this letter, so, on June
19, 1975, the Union's lawyer filed the first charge in this
matter. Also during the same period of time Bud Tucker, a
union official, phoned Carano and stated he had some
problems with the Pioneer Inn, one of which was the Busby
grievance discussed, supra, and the other concerned the
fact that the Employer had changed medical plans. Carano
explained the reason that the Employer changed medical
plans and told Tucker if the change in plans had created
problems for the Union and it wanted the Employer to
revert back to the old plan, the Employer would do so if the
employees agreed Tucker answered, as Carano testified,
"he did not feel that the fact [the Employer] changed the
plan was any big problem, we could work that out."
The aforesaid description of what was said by Carano
and Tucker when they discussed the medical care plan is
based on the undemed testimony of Carano, except for the
portion wherein he testified "I told [Tucker] we were
prepared to go back to the other plan." This testimony was
not given in a convincing manner and was inconsistent
with Carano's earlier testimony - "if he wanted us to
revert back to the other plan we [referring to the Employer]
would take it up with the employees and revert back" -
and was inconsistent with Carano's version of the conver-
sation contained in his September 19 letter to Tucker in
which Carano informed Tucker "you will remember I told
you at that time [referring to their phone conversation] that
we would reinstate the old plan :f everyone involved felt that
it was the proper thing to do." (Emphasis supplied.) As
described, supra, the new plan was instituted only after
Respondent afforded its employees an opportunity to vote
and with the understanding that a majority of the
employees would have to indicate they favored the new
plan Considering this background, I am of the opinion
that Carano's use of the phrase "everyone involved" in his
letter of September 19 referred to the employees. Any
doubt of this is removed when Carano's initial testimony
on this point - "we would take it up with the employees
and revert back" - is considered. For these reasons I am
convinced that in their phone conversation Carano
unambiguously told Tucker that Respondent Pioneer Inn
would reinstate the old medical care plan only if the
employees agreed.
On September 19, 1975, Carano wrote Tucker that he
was prepared to meet with him to discuss "a change in
Pioneer Inn's health and welfare benefit program" without,
however, recognizing either the Union as the employees'
bargaining representative or the existence of any collective-
bargaining agreement. Carano enclosed a copy of the
program which had gone into effect May 1, 1975, and
explained why management had changed programs and
pointed out that the new program was better than the one it
had replaced and cost the Employer more and, referring to
their earlier phone conversation about the matter, stated:
As a result of that conversation I certainly did not think
the upgrading of a health and welfare program for our
employees was opposed to the position of your
organization. In fact you will remember I told you at
that time that we would reinstate the old plan if
everyone involved felt that it was the proper thing to
do.
The Union's lawyer on February 25, 1976, wrote Carano
declining his offer to discuss the change in medical care
programs explaining to Carano that the Employer's refusal
to recognize the Union as the employees' bargaining
representative and its refusal to acknowledge the existence
of the recently terminated collective-bargaining agreement
would make such discussions futile.
3. The refusal to allow a union business
representative access to the Employer's premises
Article V of the June 1970 agreement reads as follows:
The duly authorized representatives of the Union shall
be permitted at all times to investigate the standing of
all employees and to investigate conditions under
which said employees are working and to ascertain that
this contract is being fully enforced by the Employer, it
being understood . . . that such interviews and investi-
gations shall not take place in any establishment during
the rush period of said establishment.
Article XVII of the June 1970 agreement entitled "Work
Schedule" reads as follows:
There shall be placed in a conspicuous location in each
establishment in which the employees are employed, a
work schedule specifying all days off of each shift, the
starting time and finishing time of each employee. It
shall be the responsibility of the Employer to keep it up
to date.
On May 21, 1975, Union Business Representative Frank
Meranto visited the premises of the Pioneer Inn for the
PIONEER INN
purpose of determining whether the above-described
employees' work schedule had been posted. He arrived
there between 2:30 and 3 p.m. and went to the front desk.
The desk clerk phoned Assistant Manager Frank Peck
who, in the absence of General Manager Lazovich, is in
charge of the Pioneer Inn. Meranto introduced himself and
asked to see the employees' work schedule. Peck answered
that the Union did not have a contract with Pioneer Inn.
Meranto indicated this was incorrect, that the Union's
contract was effective until September 1, 1975, and
Meranto was there to inspect the employees' work
schedule. Peck reiterated that the Pioneer Inn did not have
a contract with the Union and he would not allow Meranto
to see the employees' work schedule. Meranto warned that
he would have to file a grievance over the matter and left
the premises.?
On May 27, 1975, Meranto returned to the Pioneer Inn
for the purpose of checking the employees' work schedule.
He went into the restaurant and spoke to Annabelle
Rutherford, the hostess-cashier who is the daytime dining
room supervisor. Meranto introduced himself and de-
manded that Rutherford post a work schedule in the
kitchen. Rutherford replied that she would have to discuss
the matter with the manager and phoned Assistant
Manager Peck.8 Meranto proceeded on into the kitchen
where he introduced himself to the chef and talked to the
chef about the posting of an employees' work schedule.9
Peck, who had been summoned by Rutherford, joined
them and asked Meranto "do you have permission being
back here." Meranto answered he was asking the chef
about the employees' work schedule which the Employer
was required to post pursuant to article XVII of the
Union's contract. Peck pointed to the door and told
Meranto to leave the premises. Meranto stated that the
Employer was required by its contract with the Union to
furnish him with the employees' work schedule and in
addition was required by state law to post such a schedule,
and threatened to file a grievance about the matter. Peck
again ordered Meranto to leave. Meranto left.io
3. The withdrawal of recognition
On June 1, 1970, Respondent Pioneer Inn and the
Union, as found, supra, entered into a collective-bargaining
agreement covering Pioneer Inn's employees with certain
exclusions. The agreement was made effective until August
31, 1972. It was thereafter to be automatically renewed on
a year-to-year basis from the latter date unless proper
notice was given of an intention to modify or terminate the
r The above description of what took place between Meranto and Peck is
based on Meranto's testimony. Peck testified the desk clerk told him
Meranto wanted to look at the employees' work schedule and that after
introducing himself, Meranto asked Peck why the Employer had not posted
an employees' work schedule. Peck testified he told Meranto he should
receive permission from management before questioning people and
ordered him to leave the premises Peck denies telling Meranto that the
Union had no contract with the Pioneer Inn In manner and demeanor
Meranto impressed me as the more trustworthy witness Accordingly, I have
credited his testimony
8 The above description of what took place between Meranto and
Rutherford is based on a composite of their testimony which is not
inconsistent Rutherford testified, however, that Meranto's visit took place
during the lunch hour, whereas Meranto, who impressed me as the more
trustworthy witness on this point, placed his visit as taking place between
2 30 and 3 p in when there were no customers in the restaurant
1271
agreement. The agreement, absent such notification by
either party, renewed itself in 1972, 1973, and 1974. Thus,
as of September 1, 1974, the agreement was effective until
August 31, 1975. On June 4, 1975, the Union gave timely
notification to Respondent Pioneer Inn that it desired "to
change and modify" the agreement and asked Respondent
to communicate with the Union to arrange for negotiation
meetings. On June 24, Respondent's attorney wrote the
Union that effective September 1, 1975, Respondent was
terminating the collective-bargaining agreement which it
had with the Union. No mention was made about
negotiations for a new agreement, so, on July 31, the
Union's attorney telegrammed and in effect asked whether
Respondent Pioneer Inn intended to meet with the Union
and negotiate the terms of a new collective-bargaining
agreement. On August 12, Respondent Pioneer Inn's
general manager, Lazovich, replied:
Please be advised that the Pioneer Inn has a genuine
and good faith doubt that your organization represents
a majority of any of the employees of the Pioneer Inn.
As you know, the Pioneer Inn, has not had a signed
collective bargaining agreement with your organization
for several years.
B. Ultimate Findings and Discussion
The amended complaint in essence alleges that Respon-
dent Pioneer Inn violated Section 8(a)(5) and (1) of the Act
by unilaterally repudiating certain provisions incorporated
in its collective-bargaining agreement with the Union and,
thereafter, refusing to negotiate a new agreement with the
Union. Essential to these alleged violations is proof that
during the time material there was a collective-bargaining
agreement in effect and that the Union represented a
majority of Pioneer Inn's employees in an appropriate
bargaining unit. In this last regard, it is settled that a
collective-bargaining agreement, lawful on its face, raises
an irrebuttable presumption of majority status during its
term which continues as a rebuttable presumption after its
expiration. E.g., Dimarc Broadcasting Corporation d/b/a
KCKC, 204 NLRB 378 (1973); Walter E. Heyman d/b/a
Stanwood Thriftmart, 216 NLRB 852 (1975). The June 1970
agreement fits into this category.
Respondent Pioneer Inn urges that the complaint, as
amended, be dismissed in its entirety for several different
reasons: (1) There was no collective-bargaining agreement
in effect during the time material herein, (2) Even if there
were an agreement, the Union did not in fact command
9 The chef, who is covered by the June 1970 agreement, was under the
same impression as Assistant Manager Peck, that is, he believed the
employees were no longer covered by a collective-bargaining agreement
io The above description is based on Meranto's testimony Peck's version
is that Rutherford told him Meranto had questioned her about a "time
schedule" and had gone into the kitchen Peck went to the kitchen where he
observed Meranto talking with the chef Peck asked what Meranto was
doing there Meranto answered 'just talking to the chef' and told Peck that
the Employer was supposed to have a work schedule posted Peck asked if
he had received permission to visit the kitchen When Meranto replied in the
negative , Peck told him to leave and stated he could return when he received
permission As was the case with the May 21 conversation, Meranto
impressed me as the more trustworthy witness and I have credited his
version of what occurred on May 27 rather than Peck's
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority status, (3) The contractual bargaining unit was
inappropriate, (4) There is no presumption of the Union's
majority status because it had abandoned the collective-
bargaining agreement and the employees covered by the
agreement.I I
Regarding (1) I have found, for the reasons set forth
supra, that on June 1, 1970, Respondent Pioneer Inn
entered into a collective-bargaining agreement with the
Union effective through August 31, 1972, which by virtue
of its automatic renewal provisions renewed itself from
year to year thereafter and that during the time material to
this case was in effect from September 1, 1974, through
August 31, 1975. Likewise, I reject the related contention
that the existing bargaining agreement was unlawful
because it was entered into at a time when there was not a
representative or substantial complement of employees.
This contention is premised on the fact, which I have
rejected, that the agreement was entered into on June 1,
1967, rather than June 1, 1970. In any event, Respondent
Pioneer Inn may not defend its 1975 refusal to bargain on
the ground that the Union was unlawfully assisted by
Respondent in 1967 or 1970, for such conduct took place
well outside the time limitations period of Section 10(b) of
the Act See North Bros Ford, Inc., 220 NLRB 1021 (1975),
and cases cited therein; Stanwood Thr ftmart, supra.
Regarding (2), Respondent Pioneer Inn argues that by
excluding certain testimony and documentary evidence, I
erroneously precluded it from proving that the Union in
fact did not enjoy majority status. Respondent sought to
call its employees as witnesses and to ask them if they were
union members or paid dues to the Union as of July 31,
1975. It also sought to subpena union membership and
financial records to determine if a majority supported the
Union I ruled that this evidence was irrelevant. Respon-
dent's interim appeal was rejected by the Board. Recently
the court in Retired Persons Pharmacy v. N L.R.B., 519
F.2d 486, 491 (C.A. 2, 1975), in rejecting a contention
identical to the one advanced by Respondent succinctly
explained why such evidence is not relevant to a union's
majority status.
The issue to be decided was not how many employees
belonged to the union or paid dues but rather whether a
majority desired union representation for the purposes
of collective bargaining. Particularly where the contract
does not provide for the checkoff of union dues or
compulsory union membership, there is no necessary
correlation between support for the union as bargaining
representative, on the one hand, and the payment of
dues or membership in the union, on the other. [Cases
cited.]
Regarding (3), Respondent Pioneer Inn employs approx-
imately eight front desk clerks and between two or three
maintenance workers. The June 1970 agreement excludes
these employees from its coverage. Respondent urges that
the front desk and maintenance employees have a
11 Respondent, in connection with its withdrawal of recognition, also
urges that since it had a reasonable doubt based on objective considerations
as to the Union's majority status as of the time it withdrew recognition that
its conduct was justified E g, Untied Supermarkets, Inc, 214 NLRB 958
(1974) In view of my disposition of this case, it has not been necessary to
consider this defense
community of interest with the other employees included in
the contractual unit, thus, the contractual unit is an
inappropriate unit for which Respondent was never
obliged to recognize and bargain with the Union. I
disagree. It is settled that "there is nothing in the statute
which requires that the unit for bargaining be the only
appropriate unit, or the ultimate unit, or the most appropn-
ate unit; the Act requires only that the unit be'appropn-
ate" ' and "appropriate is a word with a well defined
meaning . . . `Suitable for the purpose and circumstanc-
es'...." Morand Brothers Beverage Co. et al., 91 NLRB
409, 418, fn. 13 (1950). The contractual unit in this case 12 is
not repugnant to any policy embodied in the Act and is
certainly not inappropriate per se. Respondent ignores that
the considerations governing the situation where the Board
itself makes a unit determination are not controlling when
the Board is merely passing on the appropriateness of a
unit to which the parties have voluntarily consented.13 See
N.L.R.B. v. Detective Intelligence Service, Inc., 448 F.2d
1022, 1025 (C.A. 9, 1971), and cases cited therein. The
Board, with court approval, has long sought to encourage
parties to agree among themselves as to the boundaries of
an appropriate unit, because it recognizes the value of such
voluntary agreements in stabilizing industrial relations and
expediting the amicable settlement of labor disputes. See
United Dairies, Inc., 144 NLRB 153, 154 (1963), enfd. 337
F.2d 283 (C.A. 10, 1964); N.L.R.B. v. Chelsea Clock
Company, 411 F.2d 189, 191-192 (C.A. 1, 1969). The
salutary purpose of such agreement would be frustrated if
the parties were free to repudiate them at will and, thus,
absent extraordinary circumstances or a clear denial of
employees' rights, the Board will not permit such repudia-
tion, even where it would not have found the unit
appropriate if the matter had been brought before it
initially. See Montgomery Ward & Co. Incorporated, 123
NLRB 135, 136; Thr ft Drug Company of Pennsylvania, 167
NLRB 426, 429 (1967). For similar reasons and within
similar limits, courts have sometimes held that the Board
should not deny the parties the benefits of their bargaining
just because it would have resolved unit issues differently if
the matter had been brought before it initially. See
N.L.R.B. v. Detective Intelligence Service, Inc., supra at
1025. Indeed, because of strong policies favoring voluntary
agreements, the Board, with court approval, has held that
even where Section 9 of the Act precluded the Board from
finding a particular unit appropriate, the statutory restric-
tion on the Board action did not preclude the parties from
agreeing to such a unit themselves and, accordingly, did
not justify one party 's unilateral repudiation of the
agreement. See International Telephone & Telegraph Corpo-
ration v . N.LR.B., 382 F.2d 366, 369-370 (C.A. 3, 1967),
enfg. 159 NLRB 1757, 1759-64. For all of these reasons, I
reject Respondent's argument that it was not obliged to
bargain with the Union because the contractual unit
excluded desk clerks and maintenance employees.
Regarding (4), I agree that the June 1970 agreement and
the employees covered by this agreement were abandoned
12 In substance, the contract covered all of Pioneer Inn's kitchen, dining
room, bar, and hotel service employees, excluding the front desk and
maintenance employees
13 For this reason the cases cited by Respondent are inapposite.
PIONEER INN 1273
by the Union for a substantial period of time and that
because of this and other circumstances described infra, the
agreement does not give rise to the usual presumption of
majority status. The following considerations taken in their
totality influenced this conclusion.
(a) The Union, shortly after signing the June 1970
agreement, abandoned the employees and remained
dormant for a period of about 4 years until about January
1975.14 In this regard the record reveals that the June 1970
agreement was effective until August 31, 1972. Thereafter,
it was to be automatically renewed on a year-to-year basis
from the latter date unless proper notice was given of an
intention to modify or terminate the agreement. In 1972,
1973, and 1974, the Union did not give such notice and the
result was a stale contract with no negotiated benefits for 3
years. The Union did not explain why it failed for 3 years
to negotiate a new collective-bargaming agreement for the
employees it represented. Absent an explanation, it is a fair
inference that during this period the Union ceased to
represent and abandoned the employees and the agree-
ment. Consistent with this inference is the undemed and
credible testimony of General Manager Lazovich, who
signed the agreement and was in charge of the Inn's day-to-
day operations, that from the time the agreement was
signed until about January 1975 he had absolutely no
contact with anyone from the Union. Likewise, the record
indicates that during this period employees and supervisors
had no contact with union representatives for purposes of
contract administration, and it appears that supervision
and employees had no knowledge that there was a contract
in effect between the parties - they believed that the
parties' collective-bargaining relationship had been al-
lowed to lapse. Moreover, the June 1970 agreement was
not carried out in certain respects15 and the employees
were paid at a higher rate than the contract scale. All these
circumstances establish prima facie that the Union for a
period of about 4 years, until about January 1975, was
dormant and did not represent the employees but rather
had abandoned the employees and the June 1970 collec-
tive-bargaining agreement. The Union did not present a
scintilla of evidence to rebut this inference. The Union
failed to demonstrate that during this 4-year period union
representatives dealt with representatives of management,
or that the terms of the collective-bargaining agreement
were generally complied with 16 or that one grievance was
filed on behalf of the employees, or that a union
representative was even assigned to service Pioneer Inn's
employees or to otherwise represent them.i7
Based on the foregoing, I find that for a period of about 4
years- 1971 through 1974-the Union abandoned and
failed to represent the employees and did not police the
14 The Union resumed its role as the employees' bargaining representa-
tive several months after it was placed under trusteeship by its International
Union
is The contractual provision requiring the Employer to hire applicants
through the Union's hiring hall was not implemented
16 The record does establish that the Employer made the contributions
called for by the contractual medical care plan However, these contribu-
tions were made not just for the employees covered by the agreement but for
all employees employed by Pioneer inn, even those excluded from the
agreement's coverage
17 The record shows only that a union agent came to the Employer's
premises during 1971 and 1972 to collect dues from maids who were union
various provisions of its collective-bargaining agreement
with Pioneer Inn.
(b) During the 4 years of the Union's inactivity, the
bargaining unit experienced a substantial rate of turnover
and its size increased substantially. Thus, when the
collective-bargaining agreement terminated on August 31,
1975, only about 6 of the 48 employees who were in the
unit when the agreement was signed in 1970 remained
(compare Resp. Exhs. 17 and 29), and the unit had
expanded to almost twice the size it had been in 1970.18 I
recognize that the Board has held on numerous occasions
that "new employees will be presumed to support a union
in the same ratio as those they have replaced." Harpeth
Steel, Inc., 208 NLRB 545 (1974). In the instant case,
however, this presumption has been rebutted by the fact
that for about 4 years the Union, as described, supra, was
completely inactive in representing the employees. In these
circumstances, new hires, without knowledge they were
represented by the Union or covered by the terms of a
collective-bargaining agreement negotiated by the Union,
cannot be presumed to support the Union as their exclusive
bargaining representative. To the contrary, under the
circumstances, the more reasonable presumption is that the
new hires did not support the Union, whose existence they
were unaware of, as their exclusive bargaining representa-
tive.
(c) In 1975, when the Union, following the International
Union's trusteeship, commenced to represent the employ-
ees, it sought to represent only a part, not all, of the
employees covered by the June 1970 agreement. The
Union did not intend to represent the) hotel service
employees-maids, bellmen-covered by the agreement. It
is unclear whether this was deliberate 19 or because the
Union had been dormant for so long that there was doubt
in the minds of the Union's officials about which
employees it represented. In any event, Union Representa-
tive Meranto, as I have found, supra, went to the Inn on
May 27, 1975, to determine whether Respondent Pioneer
Inn was posting the employees' work schedule. It appears
that Meranto was only concerned about the schedule for
the restaurant and bar employees inasmuch as he visited
only the Inn's kitchen and restaurant. Any ambiguity in
this respect is removed, however, by the copy of the
collective-bargaining agreement which Meranto testified he
showed to the chef on that occasion as evidence that the
Union had a current agreement with the Inn which the Inn
was obliged to comply with. The agreement Meranto
showed the chef was not the June 1970 agreement but
rather an agreement with different effective dates and
which, unlike the June 1970 agreement, did not cover the
hotel service employees. This was not merely a momentary
members but ceased doing this in 1972 and that another union agent
collected dues from a bartender who had been a member of the Union prior
to coming to work for Pioneer Inn and that in August 1974, after the
International Union imposed the trusteeship over the Union , union agents
came to the Employer 's premises on one occasion and invited several of the
maids to attend a union organizational meeting
18 This expansion in large part was caused by the addition in 1974 of an
oyster bar and 89 more hotel rooms
19 In 1972 the union agent who collected dues from the maids on the day
he made such last collection got into an argument with the maids and told
them they were nothing but trouble and, in effect , stated that at the end of
the agreement he would not continue to represent them
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
oversight on the part of Meranto or the Union inasmuch as
the Union, in filing the charges in this case, presumably
told the Board's General Counsel that it represented only
Pioneer Inn's restaurant and bar employees, for the
complaint, issued in this case on June 30, 1975, alleged that
the Union was the majority representative of a bargaining
unit of Pioneer Inn's restaurant and bar employees and
specifically excluded from the unit the Inn's hotel service
employees.20
Based on the foregoing, I find that when, after a lapse of
about 4 years, the Union resumed its representation of the
Pioneer Inn's employees, its intent was to represent only a
part of the appropriate bargaining unit.
The aforesaid reasons taken in their totality-the
Union's abandonment of the employees covered by the
June 1970 agreement for almost 4 years, the substantial
turnover and increase in the number of employees
employed in the appropriate unit during this penod, and
the confusion about the scope of the appropriate unit-
convince me that the collective-bargaining agreement
involved in this case is not one to which a presumption of
majority status can attach. Cf. Ace-Doran Hauling &
Rigging Co., 171 NLRB 645 (1968), and Bender Ship Repair
Company, Inc and Bender Welding and Machine Company,
Inc., 188 NLRB 615, fn. 10 (1971), where the Board stated
that a presumption of a majority status arises from a series
of contracts where "the union actively represented the unit
employees and effectively policed the various provisions of
the agreement." Accordingly, I shall recommend that the
portion of the complaint which alleges that Respondent
Pioneer Inn and Respondent Pioneer Inn Casino refused to
bargain and withdrew recognition from the Union in
August 1975 be dismissed for failure of the General
Counsel to sustain his burden of proof on the crucial issue
of the status of the Union as majority representative.2i
Likewise, I am of the opinion that the remainder of the
complaint lacks merit for the same reason. I recognize that
these allegations which charge Respondent Pioneer Inn
with unilaterally changing its medical care program and
refusing to permit a union representative access to its
premises, all in violation of the existing collective-bargain-
ing agreement, involve conduct which took place during
20 The unit description as set out in the complaint was not simply an
oversight on the part of the Union or the General Counsel inasmuch as,
even though the complaint was amended once in January 1976, the unit in
the complaint was not amended so as to coincide with the unit covered by
the June 1970 agreement until virtually the day of the hearing on April 29,
1976
21 1 recognize that, after the imposition of the trusteeship by the
International Union, the Union in certain respects commenced to represent
the unit employees and to administer the collective -bargaining agreement
Thus, in about January 1975, the Union processed the Busby grievance and
the term of an existing collective -bargaining agreement at a
time when , absent unusual circumstances , a question
concerning representation could not be raised or, stated
another way, when there was an irrebuttable presumption
of the Union's majority status. See Ranch-Way, Inc., 183
NLRB 1168, 1170 (1970), and cases cited therein. The basis
for this presumption is based on the Board's policy
enunciated in representation cases under which the June
1970 agreement by virtue of its automatic renewal
provisions would have barred a representation petition
filed on the dates that these alleged unfair labor practices
were committed. Leonard Wholesale Meats, Inc., 136
NLRB 1000 (1962). Thus, it would normally be anomalous
to allow Respondent to question the Union's majority
status on those dates . See Hexton Furniture Company, 11 I
NLRB 342, 344 (1955); Shamrock Dairy, Inc., Shamrock
Dairy of Phoenix, Inc., and Shamrock Milk Transport Co,
119 NLRB 998, 1001 -02 (1957), 124 NLRB 494, 495-496
(1959). Here, however, there is no danger of such an
anomalous result because under the unusual circumstances
involved in this case-the Union's abandonment of the
collective-bargaining agreement and the employees cov-
ered by the agreement for a period of almost 4 years, the
substantial turnover and expansion of the number of unit
employees during this period, and the Union's confusion
over the scope of the unit - I am of the opinion that the
June 1970 agreement did not impart sufficient stability to
the bargaining relations to justify withholding a determina-
tion of representation. Cf. Raymond's, Inc., 161 NLRB 838,
839-840 (1966), and Emanuel Birnbaum and John W. Jones
d/b/a Silver Lake Nursing Home, 178 NLRB 478, 480
(1969). Accordingly, I shall recommend that the portion of
the complaint which alleges that Respondent Pioneer Inn
and Respondent Pioneer Inn Casino violated the Act by
engaging in impermissible unilateral conduct and by
refusing to allow a union representative access to its
premises be dismissed for failure of the General Counsel to
sustain his burden of proof on the crucial issue of the status
of the Union as majority representative.
[Recommended Order for dismissal omitted from publi-
cation.]
continued to process it thereafter. In May 1975, the Union protested Pioneer
Inn's unilateral change in the contractual medical care plan and a union
representative visited the Employer's premises to determine whether it was
posting an employees' work schedule as called for in the agreement
Nonetheless , I am of the opinion that this union activity was insufficient to
cure the Union 's previous lengthy abandonment of the unit employees and
reinstate the normal contractual presumption of majority status where, as
here , there was a substantial turnover and a substantial increase in the
number of unit employees during a lengthy period of union inactivity and
there was confusion about the scope of the appropriate bargaining unit