Quality Motels of Colorado, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1971

189 N.L.R.B. 332 (N.L.R.B. 1971)

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quality Motels of Colorado , Inc. and Hotel &
Restaurant Employees and Bartenders Internation-
al Union, Local No. 14 , AFL-CIO. Case
27-CA-2847
March 25, 1971
By CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On June 29, 1970, Trial Examiner Herman Coren-
man issued his Decision in the above-entitled pro-
ceeding finding that the Respondent had engaged in
and was engaging in certain unfair labor practices in
violation of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint and recommended
dismissal as to them. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.' The General Counsel filed limited
cross-exceptions to the Trial Examiner's Decision, a
supporting brief, and a brief in answer to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Quality Motels of Colorado, Inc.,
Denver, Colorado, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.2
CHAIRMAN MILLER, concurring separately:
I would concur with my colleagues in finding an
' The Respondent's request for oral argument is hereby denied as in our
opinion the record, including the exceptions and briefs, adequately presents
the issues herein and the positions of the parties.
2 In footnote 8 of the Trial Examiner's Decision substitute "20" for "10"
8(a)(5) violation in this case , but only upon narrow
grounds.
The Trial Examiner , whose findings and conclu-
sions are adopted by my colleagues , erred , in my view,
in several respects.
First , he finds a refusal to bargain by Respondent's
alleged procrastination in arranging meeting dates at
the outset of the negotiation . There is no evidence in
the record to the effect that the Union was not fully
satisfied with this initial scheduling of meetings, and I
find no basis for the Trial Examiner 's conclusion.
Secondly, he finds that no impasse existed on
November 21, relying heavily on the fact that the
Union had agreed to submit Respondent 's last offer
to the membership, albeit without favorable recom-
mendation . Anyone experienced in negotiations
knows that a Union's refusal to recommend a
settlement is tantamount to rejection of the offer.
Furthermore , the Respondent ' s version of the
telephone conversation between its spokesman and
the Union 's spokesman , which is credited by the Trial
Examiner , demonstrates that the negotiations , howev-
er brief , had produced final exchange wage offers by
Respondent and the Union which were simply not
acceptable to the respective other party . Witness the
dialogue described in the first person by Respondent's
spokesman:
I said "Will you come down as much as a cent?"
He said no. I said "What's to bargain about? We
reached impasse?" He said "We are going to strike
you." I said "So strike"
In my view , there was an impasse on November 21.3
Since I find such an impasse, I would normally have
found no violation when Respondent put into effect
the wage schedule which it had last offered to the
Union. But since the Union was still the employees'
exclusive bargaining agent , Respondent was not
entitled , in effectuating the increase , to utilize this
increase in such manner as to undercut the Union's
status and suggest , in effect, that employees abandon
their representative.
Thus, when Respondent , in its announcement of the
increase, erroneously indicated that the Union had
exceeded its statutory rights by seeking to bargain
concerning the discharge of certain employees, and
either misstating the law or illegally threatening
employees, or both , by saying that employees refusing
to cross a picket line "may suffer harsh conse-
quences ," and by stating "If you continue to work
here, you will receive these wages and fringe benefits
and not have to pay union dues or initiation
days.
:1 The Respondent's resultant withdrawal of its last unacceptable offer
was a tactical maneuver which was perfectly proper under these
circumstances.
189 NLRB No. 49
QUALITY MOTELS OF COLORADO, INC 333
fees,"Respondent clearly ran afoul of its statutory
obligation, and violated Section 8(a)(5) of the Act.
For these reasons, but only for these reasons, I
concur with the result herein, but would revise
paragraph I(b) of the Order to read:
Bargaining in bad faith with the aforesaid
Union by engaging in unilateral action for the
purpose of encouraging its employees to abandon
the Union.
TRIAL EXAMINER'S DECISION
distance telephone service with the Bell system, makes
room reservations with motels in other states, distributes
national advertising for Quality Motels, and accepts
charges on nationally circulated credit cards. The Respon-
dent annually receives gross revenues exceeding $500,000
from this motor hotel , restaurant , and bar operation.
On the foregoing facts, I find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein . Floridian
Hotel of Tampa, Inc, 124 NLRB 261.
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner: This case was
heard at Denver, Colorado, on March 31, April 1, and April
2, 1970, upon a complaint issued by the General Counsel of
the Board February 12, 1970, and amendment thereto
dated March 18, 1970 . The complaint was based on a
charge and amended charge respectively filed and duly
served on December 3, 1969, and February 6, 1970. The
complaint alleged that Quality Motels of Colorado, Inc.,
herein called Respondent , was refusing to bargain in good
faith with Hotel & Restaurant Employees and Bartenders
International Union, Local No. 14, AFL-CIO, herein
called the Union , and was interfering with , restraining, and
coercing employees in violation of Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended, herein
called the Act By its answer and amendment to answer
filed, the Respondent denied ( 1) that it was an employer
engaged in commerce within the meaning of the Act, (2)
that the Union was a labor organization within the meaning
of Section 2(5) of the Act, and (3) that it had engaged in the
unfair labor practices alleged in the complaint.
At the hearing, the General Counsel and the Respondent
were represented by counsel All parties were given a full
opportunity to examine and cross-examine witnesses, to
introduce relevant evidence , and to file briefs . Briefs
submitted by counsel for the General Counsel and the
Respondent have been carefully considered.
Upon the entire record in this case, including briefs of
counsel, and from my observation of the witnesses, I make
the following.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation It has since
June 1969 operated a motor hotel , restaurant , and bar
situated at 1840 Sherman Street , Denver, Colorado, known
as the Quality Motel, serving local and transient guests
traveling in interstate commerce , less than 75 percent of
whom remain as motel guests for a month or more. During
the 6-month period immediately preceding the hearing, the
Respondent purchased liquors valued in excess of $8,000
from dealers who had purchased and received the same
from sources outside the State of Colorado. The Respon-
dent's local manager is under the continuing supervision of
officers and executives who maintain continuing contact by
telephone and mail with him from Silver Spring , Maryland.
Respondent furnishes its motel guests local and long
II THE LABOR ORGANIZATION
The Union at all times material herein has been , and is, a
labor organization within the meaning of Section 2(5) of the
Act.
IIi. THE UNFAIR LABOR PRACTICES
A. Background
For some years prior to June 1969 , the aforesaid motel,
restaurant, and bar at Denver , Colorado, was operated by
the HKM Corporation, doing business in the name
Diplomat Motor Hotel , herein called Diplomat . In June
1969, or thereabouts , the operation and control of the
business was passed from the previous operator of the
Diplomat to the Respondent . With the transfer of the
operations to the Respondent , it took over the employment
substantially in tact of the work force previously employed
by Diplomat and continued in the operation of the motor
hotel , restaurant , and bar.
The Union for several years preceding 1969 had
collective -bargaining relations with Diplomat . On March 7,
1969, Diplomat, questioning the Union 's representative
status, filed with the Board an employer petition in Case
27-RM-288. Pursuant to this petition , an election was held
on March 28, 1969 , by the Board as the exclusive
representative of a unit of employees described as:
All employees employed in the culinary department,
waiters and waitresses , bartenders , maids, housemen,
bellmen , and garage men; excluding part time painters,
gardeners , guards, supervisors, as defined in the Act
and all other employees.
It is thus clear, and I find, that the Respondent , from the
moment it assumed the operation of the aforesaid motor
hotel , restaurant , and bar enterprise at Denver, on or about
June 16, 1969, was bound by the aforesaid Board
certification as a successor employer and was required by
law to recognize and bargain with the Union as the
exclusive representative of its employees described in the
unit certified by the Board . Ray Brooks v. N L.R B., 348
U.S. 96.
I have found that the Respondent is the successor to the
HKM Corporation d/b/a Diplomat Motor Hotel within
the meaning of such decisions as William J Burns Detective
Agency, Inc., 182 NLRB No. 50; Cruise Motors, Inc, 105
NLRB 242, 247; and N L.R.B. v. Armato, 199 F.2d 800
(C.A. 7). 1 base this finding upon the fact that the
employing industry has remained essentially the same
despite the change in control Thus, the operation of the
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motor hotel, restaurant, and bar with substantially the same
employee complement continued without appreciable
change after the transfer of control from Diplomat to the
Respondent.
B. Motion to Dismiss Complaint
Contained in the Respondent's posthearing brief to the
Trial Examiner is a motion to dismiss the complaint on the
asserted ground that the complaint does not name as an
additional party Respondent, Quality Courts Motel, Inc.,
which the Respondent contends is an indispensable party.
The motion to dismiss is without merit, and it is denied. The
Respondent's formal answer admits the allegations of
paragraph ii(b) of the General Counsel's complaint which
states that "Respondent maintained and at all times
material, has maintained an office and place of business
located at 1840 Sherman Street, Denver, Colorado, known
as the Quality Motel and is, and at all times material herein
has been engaged at said place of business in the business of
operating a motor hotel." Although the Respondent made
no contention either by its formal pleading or by calling
any witness to testify as to the precise nature of the transfer
from the Diplomat to the Respondent, or to the relationship
between Quality Courts Motels, Inc., and the Respondent,
it now for the first time claims in its motion to dismiss that
Quality Courts Motels, Inc., "at the very least, is a joint
employer, and it had the right to supervise and control
employees at the motel and in fact exercised that right
11
In this connection, it is noted from an examination of the
corporate reports of both the Respondent and Quality
Courts Motels, Inc., that they have common executive
officers who operate out of Silver Spring, Maryland. The
records of the Secretary of State of Colorado show,
however, that Quality Courts Motel, Inc., had no place of
business in Colorado in 1969 and in fact withdrew from the
state in June 1969 and surrendered its authority to transact
business. At the same time, in June 1969, the Respondent
commenced doing business in Colorado pursuant to
certification of authority from the Secretary of State.
Whatever the relationship may be between the Respon-
dent and Quality Courts Motel, Inc., and assuming,
arguendo, that they are "at least point employers," as the
Respondent now contends for the first time, this would not
preclude the General Counsel from proceeding alone
against the Respondent. International Association of
Machinists, AFL-CIO, 123 NLRB 627, fn. 2; Radio Officers
Union v. N.L.R.B., 347 U.S. 17, 53; K-Mart, a Division of S.
S. Kresge, 162 NLRB 498; International Union of Operating
Engineers, 113 NLRB 655, 661.
C. The September 26 Negotiation Meeting
On June 16, 1969 , Murelli i directed a letter to the
Respondent 's Silver Spring headquarters enclosing the
Cosmopolitan Hotel agreement as its contract proposal and
requesting a meeting as soon as possible for contract
negotiations . On June 23 , Mr Dowiak, Quality Motels
I Murelli was the Union's secretary-treasurer and business manager
2 it was developed at the hearing that Murelli gained possession of a
yellow sheet of paper with a number of wage rates inserted thereon which
Assistant General Counsel, replied requesting a copy of the
benefit plan "described in Article 24 of the Cosmopolitan
Hotel agreement." On June 27, Murelli transmitted a
booklet to Dowiak describing the benefit plan and again
requesting a meeting at "your earliest convenience."
Murelli did not hear again from the Respondent until
Dowiak's September 12 letter as follows:
This is in response to your request for a bargaining
session regarding the captioned.
Representatives of Quality Motels of Colorado, Inc.,
Lessee and Operator of the captioned motel-restaurant
complex, will be in Denver on Friday, September 26 to
participate in a bargaining session . We have reserved a
meeting room at the captioned motel for the entire day
of September 26, commencing at 9:00 a.m.
Please advise if the above meets with your approval.
Representatives of the Respondent and the Union met at
the Respondent's motel in Denver on September 26, 1970.
Murelli was the spokesman for the Union and Keifer for the
Respondent. Considerable progress was made in negotia-
tions at the September 26 meeting which lasted from 9 a.m.
to 6 p.m. with an approximate 3-hour break for lunch to
afford Murelli opportunity to keep an important appoint-
ment with his physician for a physical. The object of the
Union during these negotiations was to procure an
agreement providing for, as nearly as possible, the benefits
of the Cosmopolitan Hotel agreement. At this meeting,
Keller agreed to a checkoff provision and promised to agree
to a union shop provision if the Union would make
concessions on economic demands. Agreement in principle
was reached on a health and welfare provision, furnishing
uniforms, rest periods, a 42-hour workweek with overtime
provisions, and relieving the garagemen of the obligation
and expense of cleaning. The chief issue in dispute was the
Union's request for a supplemental agreement for banquet
waitresses. The Union wanted a higher wage scale for the
banquet waitresses than the regularly employed dining
room waitresses. Keller would not agree. During the course
of the day, Keller made a wage proposal for each of the
different job classifications which in many cases did not
meet the rates of the Cosmopolitan Hotel contract.2 Keiler
would not agree to Murelli's request for an additional
classification of "Inspectress" to take some of the work load
off the maids or to the hire of additional "housemen" to
relieve the maids of some of the heavier work. There was no
disagreement on tip distribution between the banquet
manager and the banquet waitresses, and Keller agreed that
the Union could police it to protect the waitresses'
distribution. At the meeting's close, Murelli proposed that
the negotiators meet late that night or through the week,
but Keeler had made plans to leave town. No arrangements
at the time were made for the next meeting.
On October 8, 1969, Murelli directed a letter to Mr.
Dowiak at the Respondent's business address in Silver
Spring, Maryland, notifying him that he had met with the
Quality Motel employees at Denver on September 26.
Murelli recited in the letter that the employees "were
disappointed in your offer and do want at least what the
Respondent's negotiator Dowiak had prepared for his own use No claim is
made that the figures on this yellow sheet were intended as a wage
proposal
QUALITY MOTELS OF COLORADO, INC.
other union establishments in Denver are receiving." The
letter requested "that we meet again in the very near future
to settle our difficulties." Dowiak at first agreed to meet on
November 13, but on October 22, 1969, Dowiak wrote
Murelli from Silver Spring to advise of a further meeting
date as follows:
Representatives of Quality Motels of Colorado, Inc.,
Lessee and Operators of the captioned motel-restaurant
complex now plan to be in Denver, Thursday
November 20, 1969. We have reserved a meeting room
at the captioned hotel for the entire day of November
20, commencing at 9:00 a.m.
D. The November 20, 1969, Negotiation Meeting
The parties met for the second time on November 20,
1969. As before, Keeler was the spokesman for the
Respondent and Murelli for the Union. The meeting began
at 9:30 a.m. and lasted til 6 or 7 p.m. At this second
meeting, Keller presented an imcomplete counterproposal
with language similar to the Cosmopolitan Hotel agreement
which was in principle acceptable to Murelli. At this second
meeting, Murelli abandoned his request for a provision that
bellmen receive 30 cents guarantee per bag in tour luggage
and his prior demand for the hire of an inspectress and
houseman to take some of the work load off the maids.
Keeler offered to grant the standard union-shop clause if
agreement could be reached that day. The parties agreed to
an expiration date and a 2-year term. The workweek and
overtime provisions were agreed to. Agreement was not
reached on the limit of number of rooms a maid would be
requested to clean without extra compensation. Murelli
agreed to forego his demand for a separate banquet
supplement to the agreement in exchange for a union shop
and an improved wage package which he could recommend
to his membership. Keeler agreed to improve the wage
package.
At the November 20 meeting, the negotiators, inter aka,
reached agreement on the issues of providing uniforms,
workweek, overtime, health insurance, breaktime, tip
distribution to banquet waitresses, vacations, and expira-
tion date. It was understood that any agreement would
require ratification by the membership.
The November 20 meeting ended with Murelli's offer to
abandon his demand for banquet supplemental rates higher
than regular waitress rates, in exchange for union security
and the Cosmopolitan wage rates Keller offered an
improved wage scale falling only a few cents per hour under
the Cosmopolitan Hotel scale.3 Keller testified that before
presenting Murelli with this last wage proposal, he told
Murelli
These employees haven't had a raise since June. They
are getting unhappy. We are tired of screwing around
here with you We are not going to come out to Denver
over and over again to go through this kind of charade
We are going to caucus now and give you our last
proposal. As I told you it would be, when, I said it was
the last, it was the last, and you can take it or leave it.
That was it.
335
When this last wage proposal was presented to Murelh by
Keller toward the end of the November 20 meeting, Murelh
credibly testified he told Keller that he would have to think
about it, he didn't know whether he would recommend it,
he would have to consult with others, and he would let
Keller know his decision the following morning . Murelli
asked to meet again the next day and maybe the day after.
Murelli's testimony concerning Keiler's last wage propos-
al was as follows:
Keller wanted this to be his last proposal. He (Keller)
said, "This is it . That is all he can go, and that's it." He
made me understand that very emphatically, and he
told me "Can you honestly recommend this to the
membership?" and I told him "I will tell you-but I
can't now. I will tell you after discussing it with the
negotiating committee."
After consulting with the other union people, the next
day, Murelli phoned Keeler about 1 p.m. on November 21
and told him that he could not recommend that the
membership accept the Respondent's proposal.
Murelli testified that he told Keeler over the phone that
he would present the Respondent's proposal to the
membership honestly, that he would not intimidate them in
any way, and the vote would be taken by secret ballot.
When Keller inquired of Murellt if that meant a strike vote,
Murelli testified that he replied as follows:
Well, it's possible that there would be a strike, although,
you know, it's always a last resort.-I told him that, of
course, if they reject, then we may have to take a stnke
vote, which is the normal process, and that would
always be by secret ballot.
Murelli further testified that he told Keiler the contract
proposal would be submitted to the membership at the
earliest possible time, and that he asked Keeler to stay over
and meet again and possibly resolve the problem, but
Keeler replied that he would have to take the next plane out
of town. Murelli proposed that since he couldn't honestly
recommend the proposal, "Why couldn't we meet again
that night-and possibly come up with something else, and
again Keeler replied that "he would have to leave
town-that was it-this is all."
Keiler's version of this telephone conversation between
himself and Murelli on November 21 is as follows:
I waited in my room and at approximately ten
minutes to one, Mr. Murelli called and said, "We are
rejecting it" I said, "What do you mean , `We are
rejecting it"'?
He said, "Well, I mean that I recommend that we
reject it." I said, "I guess that means we don't have a
contract." He said, "Do you want to stay and bargain?"
I said, "What happened to all of those doctors'
appointments?" He said, "Forget about the doctors'
appointments. Do you want to stay and bargain?"
I said, "Will you come down as much as a cent?" He
said no. I said, "What's to bargain about? We reached
impasse." He said, "We are going to strike you." I said,
"So strike."
He said, "You shouldn't have fired the bar boy and
the bellman." I said, "What bellman?" He said, "You
This wage offer appears on p 2 of Appendix A attached to the
complaint
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fired a bellman in September and all of the employees
are mad about it "
I said, "This is the first time I ever heard about it.
That's a hell of a time to bring up the discharge of a
bellman back in September."
He said, "Well, they are mad about it." I said, "All
right They are mad about it."
He said, "If you don't agree to bargain some more,
we are going to strike." I said again, "Are you going to
come down9" He said no
I said, "Well, that's it. There is nothing more to talk
about. We made you proposals. We came up; you never
came down " I said, "Good luck," and hung up
Although Murelli's and Keiler's versions of the Novem-
ber 21 phone conversation between one another do not
vary in substance, I find Keller's version to more nearly
relate the detail of the conversation. But, nevertheless, in
accepting the Keiler's recital of the conversation, I must
note that he admits that Murelli agreed to present the
Respondent's proposal to the membership and repeatedly
entreated Keller to remain and bargain, whereas Keeler
insisted that "We reached impasse" and refused to
negotiate further.
Before Keeler left Denver that same afternoon of
November 21 to fly back to Washington, D.C, he caused to
be prepared and distributed to the employees a three page
typewritten notice, notifying them, inter aha, that the
Respondent was immediately "putting into effect all of the
wages and other benefits we have offered to the Union "
The notice which was distributed to the employees is
reproduced hereafter as Appendix A.4
At the same time before leaving Denver on November 21,
Keller prepared the following Western Union telegram for
dispatch to Murelli.
Mr. Murelli, since you refused our final offer, we have
reached an impasse We therefore have withdrawn our
offer from the tables.
/s/ Leonard K Dowiak
Quality Motels of
Colorado, Inc
E. The Respondent Ignores the Union's Additional
Requests to Bargain
Murelli was apprised by his secretary on the afternoon of
Friday, November 21, concerning the notice to the
employees and the telegram withdrawing the Respondent's
proposal On the following Monday, he attempted first to
reach Keller at the Quality Court headquarters in Silver
Springs and was told he was not there He then placed a
call twice to Mr Dowiak at Quality Court offices in Silver
Spring, but was not permitted to talk with him, being told
on the first occasion that Mr. Dowiak was in a meeting, and
on the second occasion, after identifying himself, was told
"I'm sorry, Mr Dowiak dust left town." Murelli did not
attempt to contact either Keller or Dowiak again.
Murelli met with the membership on November 25 and
they discussed what had occurred. He then discussed the
matter with his attorney and then concluded to file unfair
i The notice may also he found attached to the General Counsel's
complaint is Exhibit A
labor practice charges with the Board, which he did on
December 3, 1969.
Murelli resigned from his positions of secretary-treasurer
and business manager of the Union on January 1, 1970. On
March 14, 1970, the Union was placed under a trusteeship
by the International Union pursuant to its constitution, and
Mr. Edward H Rovner was appointed trustee of the Union
by the International President. Endeavoring to renew
negotiations, Mr. Rovner called Mr. Dowiak's office in
Silver Spring 2 days after he assumed his trusteeship of the
Union. He identified himself to Mr. Dowiak's secretary and
told her he wanted to speak to Mr. Dowiak concerning
setting up a meeting for negotiations. The secretary
reported to Rovner that she had given Dowiak the message
and he would call Rovner after lunch However, Dowiak
did not return the call. Rovner called Dowiak's office in
Silver Spring again on March 23, 1970, and went through
the same procedure of identifying himself to the secretary;
the secretary reported she had given the message to Dowiak
who would call back, but the promise to return the call was
not kept. Rovner placed a third call and the secretary
confirmed that she had given Dowiak the message. On the
following day, Rovner phoned Keller at his firm's law office
in Washington, D C , and told him of his desire to set up a
negotiation meeting Keeler told Rovner he was not
authorized to act further. Rovner told Keeler he would keep
on trying to reach Dowiak On the same day, Rovner called
Dowiak's office twice and was advised by Dowiak's
secretary that Dowiak was receiving the messages and he
would return the call Summarizing his futile attempts to
reach Dowiak in March 1970, Rovner testified credibly and
without contradiction, "That was a total of five times and
always leaving the same message and never receiving a call
back."
F Analysis and Conclusionary Findings
Although the Union requested early meetings, the
Respondent nevertheless procrastinated in arranging
meeting dates Thus there was a lapse of more than 3
months intervening between the Union's June 16 request
for bargaining and the first meeting on September 26.
Notwithstanding the Union's October 8 written request for
another early meeting, the Respondent did not arrange a
meeting until November 20, a date almost 2 months after
the first meeting on September 26. These delays are not
explained in the record I find that the delays were
unreasonable and evinced a measure of bad faith on the
part of the Respondent in its duty to "meet at reasonable
times" with respect to "the negotiation of an agreement"
within the requirements of Section 8(d) of the Act.
The Respondent's unreasonable delays in meeting with
the Union, notwithstanding Murelli's prompt requests for
negotiation meetings, irrespective of whether they amount-
ed to deliberate procrastination, nevertheless had the effect
of generating unrest and suspicion, obstructed and delayed
the conclusion of a bargaining contract, and disparaged the
Union's status as bargaining representative. Little Rock
Downtowner, Inc., 145 NLRB 1287, 1306, Miami Coca-Cola
Keiler does not office with Quality Court in Silver Spring He is
associated with an independent law firm situated in Washington, D C
QUALITY MOTELS OF COLORADO, INC 337
Bottling Co, 150 NLRB 892, 896. It is well settled that an
employer is required to attend to his bargaining obligation
with the same degree of diligence as he would to important
business matters B. F. Diamond Construction Co, 163
NLRB 161, 174, Bartlett-Collins Co., 140 NLRB 202; M
Systems Inc, 129 NLRB 527, 549 In J. H Rutter Rex
Manufacturing Company, Inc, 86 NLRB 470, the Board
stated
The obligation to bargain collectively surely encom-
passes the affirmative duty to make expeditious and
prompt arrangements, within reason, for meeting and
confering. Agreement is stifled at its source if opportu-
nity is not accorded for discussion or so delayed as to
provoke or prolong unrest or suspicion. It is not
unreasonable to expect of a party to collective
bargaining that he display a degree of diligence and
promptness in arranging for the elimination of obstacles
thereto, comparable to that which he would display in
his other business affairs of importance.
I find that the conduct of the Respondent in unilaterally
placing into effect the wage improvements and other
benefits announced in its November 21 letter to its
employees constituted a per se refusal to bargain and
further served to manifest its bad faith bargaining.
N L R B v. Benne Katz, 369 U.S 736. There existed no
good faith impasse in negotiations to justify this unilateral
action of the Respondent. In this connection, it is noted
that the parties had met only twice, namely on September
26 and November 20. During these meetings, both sides
evinced a reasoned flexibility in negotiations. The Union's
demands were reasonable and a number of them with-
drawn to achieve agreement. The Respondent likewise
manifested a flexible position in bargaining and agreed to a
number of the Union's proposals. Marked progress was
achieved at both meetings, and, with the close of the second
meeting held on November 20, the Union expressed a
desire to give further consideration to the Respondent's last
wage offer presented by the Respondent at that meeting
On the following day, November 21, the Union notified the
Respondent that, while it could not recommend acceptance
of the Respondent's last proposal, it would be submitted to
the membership. Additionally, the Union requested the
Respondent to continue negotiation meetings that same
day In view of the short time actually engaged in
negotiations, the marked progress made in the two
meetings, the willingness of the Union to submit the
Respondent's contract proposal to the entire membership
for consideration, and the express request of the Union for
further negotiation, I find that the bargaining posture had
not reached the point where both parties had reached such
hard and fast positions as to foreclose further bargaining
and create an impasse. See Flowers Baking Company, Inc,
169 NLRB No 101 (TXD) Lamb-Weston Inc, 148 NLRB
798, 808, enfd. 59 LRRM 2988 (C A 9).
But assuming, arguendo, that an impasse in bargaining
existed, although I have found to the contrary, I further
find that the Respondent bargained in bad faith and by
such conduct prevented the operation of a good faith
impasse in bargaining. I have already found that the
Respondent's unreasonable delay in arranging meetings, to
the point that only two were held in a 5-month period from
June 16 to November 20, constituted bad-faith bargaining.
Additionally, I find that the Respondent 's conduct in
withdrawing its entire contract proposal by its telegram of
November 21 manifested , under all the circumstances, its
bad-faith intention to discredit and disparage the Union.
There was no reasonable justification for such conduct, and
the Union had given it no cause for such precipitate action.
The derogatory action of the Respondent in withdrawing
its contract proposal is underscored by the Respondent's
simultaneous action in unilaterally instituting the wage and
benefit package which it had withdrawn from the Union.
Although it is settled law that an employer may lawfully
place into effect improved wage and other benefits no more
favorable than those offered to the Union in a good-faith
impasse situation ,6 this presupposes that the proposal to the
Union remains open and is not withdrawn An employer
who grants to its employees a wage and benefit package
which it has withdrawn from the Union thereby disparages
and derogates the Union's representative status; it signifies
that it is granting to its employees wage and other benefits
which it is now unwilling to offer to them through the
Union . In such a situation the employer is bypassing the
Union and dealing directly with the employees This
conduct is a clear refusal to bargain in violation of Section
8(a)(5) of the Act . N.L.R B v Benne Katz, 369 U.S 736
(1962), May Stores v. N L R. B., 326 U.S . 376, 385, Medo
Corp. v NLRB., 312 U.S 678, Cf. J I Case Co. v
N.L.R.B, 321 U.S. 332, J H. Bonck Company, Inc, 170
NLRB No 164.
The Respondent's bad faith in unilaterally instituting the
November 21 benefit package is reflected in its comments
in the November 21 letter to its employees announcing the
benefits Thus , contrary to the facts , the November 21 letter
recites that the Respondent 's representatives "came here on
September 26, 1969 to bargain with the Union ; the Union
had no proposals to make to us at that time."
This recital unfairly overlooked the fact that with its June
16 written request to bargain , the Union had mailed to the
Respondent its contract proposal . The November 21 letter
also misstated to the employees that the Respondent was
"prepared to negotiate on November 21 also, but again Mr
Murelli claimed , he had a personal appointment." The
accuracy of the above recital is refuted by Mr. Keiler's own
testimony in the record as well as by the testimony of
Murelli . The record testimony reflects that Murelli was
willing to cancel his physician 's appointment on November
21 to meet and negotiate further with Keller if Keller would
only meet with him The November 21 letter also
inaccurately informed the employees that it would be illegal
to engage in a strike over the discharge of the barboy and
bellboy and it threatened them with "very harsh conse-
quences" if they "picket or refuse to cross a picket line "
It is well settled that the tenure of employment of
employees is a mandatory subject of bargaining and that
the Union in the absence of a no-strike clause may lawfully
strike or take economic action to enforce its position
Fibreboard Paper Products Corp v. N L R B, 379 U S. 203;
6 See N L R B v Crompton -Highland Mills, 337 U S 216 ( 1949),
NLRB v U S Somcs Corp, 312 F 2d 610 (C A I) NLRB v Andreas
Jergens Co, 175 F2d 130 (C A 9)
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Town & Country Mfg. Co. v. N.L. R B., 316 F .2d 847;
Flowers Baking Co ., supra; Brown Transport Corp., 149
NLRB 954, enfd . in part 56 LRRM 2809 (C.A. 5); Alton-
Arlans Department Store, Inc., 150 NLRB, 1303; J. H.
Bonck Company, Inc., 170 NLRB No. 164.
Finally to impress the employees with the futility of
unionism and to completely discredit the Union , it said in
its November 21 letter:
We are immediately putting into effect all of the
wages and other benefits we have offered to the Union.
If you continue to work here, you will receive these
wages and fringe benefits and not have to pay union
dues or initiation fees.
As is self evident from the foregoing language, the final
appeal to the employees was an incitement and encourage-
ment to abandon the Union . See Dixie Highway Express,
153 NLRB 1224.
The conduct of Dowiak in refusing to talk to Union
Representative Murelli on November 24, 1969, and to
Union Representative Rovner in March 1970 and his
avoidance of their phone calls seeking further bargaining
furnished further evidence of the Respondent 's refusal to
bargain and serves further to show the absence of good
faith in the Respondent 's entire dealing with the Union, as
well as the absence of a good -faith impasse in bargaining
which , the Respondent asserts, legally justified its unilateral
action on November 21, 1969. Even assuming , arguendo,
the existence of an impasse on November 21, 1969, this
would not justify a refusal to meet or deal with Rovner, a
new representative , in March 1970 . N L R.B. v Dell, 283
F.2d 733 (C A. 5). Additionally, the threat of a possible
strike by the Union did not operate to create an impasse or
justify the Respondent 's unilateral action . J. H. Bonck
Company Inc, 170 NLRB No. 164.
What the court said in N L.R.B v. Dell, supra , is pertinent
here:
Whether a strike actually was intended by the Union
at the time the "threatening" letter was written to the
Company is problematical However, even accepting
the Company's view that there was a "strike threat" as
justified, such a threat does not warrant a refusal by the
Company to bargain. "A strike does not in and of itself
suspend the bargaining obligation, which would
encompass a willingness , not a refusal , to meet and
confer with the Union ." N.L.R.B . v. J. H. Rutter-Rex
Mfg. Co, 5 Cir., 1957, 245 F.2d 594, 596, 40 LRRM
2213. The Supreme Court has pointed out that
economic pressure from a Union is no excuse for a
company to refuse to bargain. "The scope of § 8(b)(3)
and the limitations on Board power which were the
design of § 8(d) are exceeded , we hold, by inferring a
lack of good faith not from any deficiencies of the
Union 's performance at the bargaining table by reason
of its attempted use of economic pressure , but solely
and simply because tactics designed to exert economic
pressure were employed during the course of the good
faith negotiations ." N.L.R.B . v insurance Agents'
International , 1960, 361 U.S. 477, 80 S.Ct . 4 L Ed 2d
454,464-465, 45 LRRM 2704. If there is no inconsisten-
cy between a union 's applying economic pressure and
good faith collective bargaining, and if "economic
pressure" includes a full strike itself , then a fortiori the
threat of a strike is not inconsistent with good faith
collective bargaining.
In summary, I find that the Respondent refused to
bargain with, and bargained in bad faith with, the Union by
the following conduct: (1) unreasonable delays in schedul-
ing meetings, (2) unilaterally granting improved wages and
benefits to the employees, (3) precipitously and without
reasonable grounds withdrawing its contract proposal from
the Union, (4) bypassing the Union and dealing directly
with the employees, (5) disparaging the Union and
encouraging employees to abandon the Union, and (6)
refusing to meet, deal, and negotiate with the Union.
G. The Discharge of the Barboy on November 20
The barboy assists the bartender. In the course of the
November 20 contract negotiations, the wage rate for the
barboy came under discussion. During a short recess in the
negotiations, the Respondent discharged the barboy. When
negotiations resumed, the Respondent's negotiators in-
formed the union negotiators that there was no longer a
barboy classification as they had just fired the barboy.
When Murelli inquired "Why," Keeler credibly testified he
replied, "We are in the red. We are getting redder. You saw
the financial sheets. We had to save money somehow. We
let him go" When Murelli pointed out that the barboy
brings in a lot of business, Keeler replied, "I will tell you
what! If it turns out that he brought in more business than
we paid him in salary, we will hire him back." Keeler again
told Murelli that it was the Respondent's "decision to
make," to "save money somehow." Keeler was unmoved by
Murelli's argument that the bartender would be very
unhappy as the bartender and the barboy had been close
friends for years.
The General Counsel contends that the conduct of the
Respondent in unilaterally abolishing the position of
barboy and terminating the employment of the individual
occupying that position thereby violated Section 8(a)(5) of
the Act. There is no claim that the discharge of the barboy
was discriminatorily motivated, and there is no evidence to
rebut the Respondent's claim made during contract
negotiations that the discharge was purely an economy
measure.
The disposition of this issue is not free from doubt.
Technically the discharge violated Section 8(a)(5), Clover-
leaf Cold Storage Co, 160 NLRB 1484 Here, although the
employer did not bargain with the Union over its decision
to eliminate the barboy position, it did notify the Union of
its decision and the reason for the decision. In Ordent
Orthodontic Laboratories, Inc., 156 NLRB 49, 62-65, the
Trial Examiner, whose decision was adopted by the Board,
devoted considerable discussion to the problem of the duty
to bargain about layoffs. Concluding that the employer's
layoff of three employees indefinitely without advance
notice to the bargaining representative did not violate
Section 8(a)(5) of the Act where it further appeared that the
employer later explained to the union representative the
economic reasons for the layoffs, the Trial Examiner
pointed out that.
. . . historically the persons most directly con-
cerned - employers, employees, and their bargaining
representatives - have avoided a construction of
QUALITY MOTELS OF COLORADO, INC
Section 8(a)(5) of the Act which would require an
employer, each time economic conditions require him to
lay off a single employee , to notify the bargaining
representative in advance . This has been true , despite
the fact that a layoff involves a change in a term or
condition of employment and hence is technically in the
sphere of mandatory bargaining . I subscribe to this
interpretation of Section 8(a)(5) of the Act. The
collective process functions more effectively, in my
opinion , when it concerns itself with the overall
problems of employer -employee relations . The details
and the minutiae of employer-employee relations which
arise every day in the operation of a business can best be
handled under the scheme established in the collective
bargaining contract , without having recourse to the
Board available each time a union disagrees with an
employer 's decision regarding such a matter The fact
that the persons most directly concerned , and apparent-
ly also the Board (citing The Great Atlantic & Pacific Tea
Co., Inc., 150 NLRB 1222) have not over the years
construed the Act as requiring advance notification to
the bargaining agent in the case of the layoff of a single
employee is not without significance . It would appear
that the problem is one of determining where the line
should be drawn.
I am in accord with the aforesaid, rationale of the Trial
Examiner in Ordent Orthodontic Laboratories, Inc, supra
Therefore, finding that Keiler did explain to Murelli the
reason for the layoff, I have concluded that although
technically a violation of Section 8(a)(5) it would not
effectuate the purposes of the Act to hold that the
Respondent's conduct in laying off the barboy violated
Section 8(a)(5) of the Act. Cf Kennecott Copper Corpora-
tion, 148 NLRB 1653; Shell Oil Company, 149 NLRB 305,
General Motors Corporation, 149 NLRB 396: Westinghouse
Electric Corporation, 150 NLRB 1574; Lee Deane Products,
Inc, 181 NLRB No. 168; Green Construction Company, 180
NLRB No. 85 (TXD), Burns Ford, Inc., 182 NLRB No.
113.
Upon the basis of the entire record, I make the following.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce with the meaning of Section 2(6) and (7) of the Act
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act
3. All employees of the Respondent employed in the
culinary department, waiters and waitresses, bartenders,
maids , housemen , bellmen and garage men; excluding part
time painters, gardeners , guards , and supervisors as defined
in the Act and all other employees constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
r The General Counsel's motion to correct record dated May 22 1970.
by substituting documents attached to the motion described Answer G C
Exh 1(g) Answer to Amendment to Complaint, G C Exh 10) and
Amendment to Answer, G C. Exh I(k) if granted and such motion with
the attached documents are by the Trial Examiner incorporated in the
formal exhibits of the G C Exh I series
s In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations and Recommended Order herein
339
4. The Union, at all times material herein , has been and
now is the exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. From the period commencing on June 16 , 1969, and
at all times thereafter until the present , the Respondent in
violation of Section 8(a)(5) and ( 1) of the Act has refused to
bargain collectively with the Union and has bargained in
bad faith by unreasonably delaying negotiations , precipi-
tously and without good cause withdrawing an employer
contract proposal, unilaterally granting a wage and benefits
package to the employees , bypassing the Union and dealing
directly with its employees in derogation of the Union's
exclusive representative status, disparaging the Union and
encouraging its employees to abandon the Union, and
refusing on and after November 21, 1969, to meet, deal, or
negotiate a collective-bargaining agreement with the
Union.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record,? it Is
recommended that the Respondent Quality Motels of
Colorado, Inc , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Hotel and
Restaurant Employees and Bartenders International Un-
ion, Local No. 14, AFL-CIO, with respect to wages, hours,
and conditions of work , as the exclusive representative of
its employees in the appropriate unit as found in this
Decision.
(b) Bargaining in bad faith with the aforesaid Union,
delaying negotiations unreasonably , engaging in unilateral
action , bypassing the Union and dealing directly with
employees , disparaging the Union , and encouraging its
employees to abandon the Union.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with Hotel and
Restaurant Employees and Bartenders International Un-
ion, Local No. 14, AFL-CIO, as the exclusive representa-
tive of all employees in the appropriate bargaining unit and,
if an understanding is reached , embody such understanding
in a signed agreement
(b) Post at its motel at Denver, Colorado, copies of the
attached notice marked "Appendix ." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 27 , after being duly signed by Respondent's
representative , shall be posted by Respondent immediately
upon receipt thereof and maintained by it for a period of 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
shall, as provided in Section 102 48 of the Rules and Regulations be
adopted by the Board to become its findings conclusions , and order and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board -
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
therewith.9
IT IS FURTHER RECOMMENDED that, except as hereinabove
found, all other allegations in the complaint be dismissed.
9 In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively in good
faith with Hotel and Restaurant Employees and
Bartenders International Union, Local No. 14,
AFL-CIO, as the exclusive representative of all the
employees in the unit herein set forth with respect to
wages, rates of pay, hours of employment, and other
conditions of employment and, if an understanding is
reached, we will embody such understanding in a
signed agreement. The appropriate bargaining unit is.
All employees employed in the culinary depart-
ment, waiters and waitresses, bartenders, maids,
housemen, bellmen, and garage men; excluding
part time painters, gardeners, guards, supervisors
as defined in the Act and all other employees.
QUALITY MOTELS OF
COLORADO, INC
(Employer)
Date By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, New
Custom House, Room 260, 721 19th St., Denver, Colorado
80202 Telephone 297-3551.
APPENDIX B
QUALITY MOTEL
[FORMERLY DIPLOMAT]
1840 Sherman Street
Denver , Colorado 80203
[303] 244-4171
November 21, 1969
We would like to bring you up to date on our negotiations
with the union which claims to represent you.
We came here on September 26, 1969, to bargain with the
union . The union had no proposals to make to us at that
time and Mr Murelli, the union business agent, took 3
hours out of negotiations for a personal appointment,
although he knew for weeks of the September 26 meeting
date.
We returned to Denver on November 20, 1969. The
union again had no proposals to make although they had 2
months . We were prepared to negotiate on November 21
also, but again Mr. Murelli claimed had a personal
appointment . Despite the union 's failure to give us a
proposal since June 16, 1969 , or even to know how much
some of you were earning , we presented the union with
several proposals . By the end of the day , we had presented
the union with our absolutely final offer. It included the
following
I Uniforms - if we require anyone to wear a
uniform, we will supply and maintain the uniforms.
2 Overtime - we will pay time and a half for all
hours worked over eight (8) in a day or 42 hours in a
week.
3 Health Insurance - improved benefits at no cost
to you.
4 Break Time- a fifteen (15) minute break twice a
day
5. Vacation - one week after one ( 1) year, two (2)
weeks after two years.
QUALITY MOTELS OF COLORADO, INC. 341
UNION REQUESTED COMPANY OFFERED
Date 1 year
Accepted later
Date
Accepted
1 year
later
Chef 2.66 2.74 2.66 2.74
2d Cook 2.66 2.74 2.66 2.74
Swing Cook 2.27 2.36 2 . 27 2.36
Breakfast
Cook 2.15 2.23 2.15 2.23
Asst Cook 1.94 2.03 1.94 2.03
Pantry 1.93 2.01 1.93 2.01
Pantry
Helper 1.58 1.67 1.58 1.67
Dishwasher 1.50 1.55 1.50 1.55
Night Cleaner 1.47 1.56 1.47 1.56
Waiter/
Waitress 1.22 1 . 27 1.10 1.15
Busboy 1.37 1 .46 1.30 1.40
Bartender 2.25 2.34 2.25 2.34
Houseman 1.49 1.58 1.49 1.58
Bellmen . 79 .84 .79 .84
Maids 1.49 1 . 58 1.45 1.55
Garagemen 1.37 1.46 1.37 1.46
(Despite the fact that the union has requested wage rates money in the restaurant and bar every month we have had
below what some of you are now making, we will not cut this motel
anyone's rate of pay.) We have been informed by Mr. Murelh that he is going to
We offered the raises despite the fact that we have lost take a vote to strike. He said he cannot recommend the
contract to you because we had discharged a bellman some
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time ago and a barman yesterday. No union can bargain to
the point of having a strike over an issue of whom the
company should hire. Therefore, any strike by the union
would most likely be found to be an unfair labor practice
by the National Labor Relations Board. Those who picket
or refuse to cross a picket line, in such a case, may suffer
very harsh consequences. We suggest that you consult an
attorney or the National Labor Relations Board.
No wages will be paid to strikers. No strikers are eligible
for unemployment insurance. How much will the union pay
you while you are on strike?
Remember, you can vote not to strike You can come to
work even though some of your fellow workers may be -led
astray by an irresponsible union business agent.
We are immediately putting into effect all of the wages
and other benefits we have offered to the Union.
If you continue to work here, you will receive these wages
and fringe benefits and not have to pay union dues or
initiation fees.
The Company wishes you and your family continued
good health and happiness in the coming holiday season.
Sincerely,
QUALITY MOTELS OF
COLORADO, INC