Ramada Inn

National Labor Relations Board - Board Decisions

Nov 16, 1970

186 N.L.R.B. 568 (N.L.R.B. 1970)

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Builders Realty & Mortgage Co., Inc. d/b/a Ramada
Inn; Green Construction of Indiana , Inc.; Robert E.
Green ; Green Construction of Indiana , Inc. d/b/a
Builders Realty & Mortgage Co., Inc.; Robert E.
Green, d/b/a Builders Realty & Mortgage Co., Inc.
and Culinary Alliance, Local No. 443, Hotel &
Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO. Case 25-CA-3201
November 16, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On March 11, 1969, Trial Examiner Harry H.
Kuskin issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision, with supporting briefs,
and the Respondents filed cross-exceptions and
acquiescence to the Trial Examiner's Decision and
supporting brief.
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, cross-excep-
tions, and briefs, and the entire record in this 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 hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
I The findings and conclusions of the Trial Examiner are based , in part,
upon his credibility determinations , to which the General Counsel and the
Charging Party have excepted . After a careful review of the record herein,
we conclude that the Trial Examiner 's credibility findings are not contrary
to the clear preponderance of the relevant evidence and , accordingly, we
find no basis for disturbing them . Standard Dry Wall Products, Inc., 91
NLRB 544, enfd . 188 F.2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This proceeding was
heard at Terre Haute, Indiana, on December 17, 18, and 19,
1968. A complaint issued herein on October 31, 1968,
against Builders Realty & Mortgage Co., Inc. d/b/a
Ramada Inn, hereinafter called Respondent Builders. An
amended complaint, which was amended further at the
hearing, issued herein on December 9, 1968 , against
Respondent Builders and , in addition, against Green
Construction of Indiana, Inc., hereinafter called either
Green Construction or Respondent Green Construction;
against Robert E. Green; against Green Construction
d/b/a Builders Mortgage Co. Inc ., and against Robert E.
Green, d/b/a Builders Realty & Mortgage Co. Inc., all the
foregoing being hereinafter collectively referred to as
Respondents.' The amended complaint presented the
questions of whether Respondents together constitute a
single-integrated enterprise, and further whether jointly or
separately (1) they violated Section 8(a)(3) and (1) of the
Act by failing and refusing to employ certain employees of
Ally Food Service, Inc. d/b/a Ramada Catering Service,
herein called Ally, after they had (a) canceled a lease on
June 28, 1968, pursuant to which Ally operated a
restaurant, (b) purchased or otherwise received from Ally a
substantial portion of the physical assets , goodwill, name,
and other trade assets of Ally and (c) operated said
restaurant since on or about June 28, 1968; and (2) violated
Section 8(a)(5) and (1) of the Act by (a) refusing to bargain
collectively with Culinary Alliance, Local No. 443, Hotel &
Restaurant Employees and Bartenders International Un-
ion, AFL-CIO, hereinafter called the Union, as the
collective-bargaining representative of a unit of all the
regular full-time and regular part-time employees of said
restaurant, including office clericals, for which unit the
Union had been certified as the collective-bargaining
representative by the Board on March 1, 1968, and/or (b)
by withdrawing recognition previously extended to the
Union on or about July 2, 1968, as such exclusive
bargaining representative of the aforesaid unit of employ-
ees, and/or (c) by refusing to assume the collective-
bargaining agreement executed by Ally and the Union on
or about May 27, 1968, for a 2-year period with respect to
the aforesaid unit of employees. Respondents deny that
they constitute a single-integrated enterprise and each of
them denies violating the Act in any respect alleged herein.2
I The original charge was filed on July 31, 1968; the first amended
charge was filed on October 23, 1968; and the second amended charge was
filed on December 6, 1968.
2 At the conclusion of the General Counsel's case in chief , counsel for
Respondents moved to dismiss the amended complaint as to each
Respondent herein . I granted so much of the motion as applied to (t)
Robert E. Green , (2) Green Construction of Indiana , Inc. d/b/a Builders
Realty & Mortgage Co., Inc., and (3 ) Robert E. Green. d/b/a Builders
Realty & Mortgage Co., Inc.; I reserved ruling on that part of the motion
relating to Green Construction of Indiana, Inc.; and I denied that part of
the motion relating to Builders Realty & Mortgage Co., Inc. d/b/a
186 NLRB No. 87
RAMADA INN
Upon the entire record,3 including my observation of the
witnesses, including their demeanor while on the witness
stand, and after due consideration of the briefs of the
General Counsel and of Respondents,4 I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
The amended complaint alleges, and Respondent
Builders admits, that it is an Indiana corporation engaged
in the operation of a chain of motels and restaurants in
Indiana, including a motel and restaurant at Terre Haute,
Indiana, which is alone involved in this proceeding; that,
during the past year it received gross revenues in excess of
$500,000 from the operation of its chain of restaurants and
motels; and also received goods from outside Indiana
valued in excess of $10,000; and that at least 75 percent of
the guests staying at these motels during the said period
stayed for less than 30 days.
The amended complaint also alleges, and Respondent
Green Construction admits, that it is an Indiana corpora-
tion engaged in the construction industry; and that, during
the past year, it purchased and received directly from
outside Indiana goods and materials valued in excess of
$50,000.
I find, upon the foregoing, as Respondent Builders and
Respondent Green Construction, respectively, admit, that
Respondent Builders and Respondent Green Construction
are each engaged in commerce within the meaning of the
Act.
A. The Integrated Enterprise Issue
As heretofore mentioned, the amended complaint alleges,
and Respondent Builders and Respondent Green Con-
struction each deny, that they, as well as the other
Respondents as to whom I have heretofore dismissed the
amended complaint, have been a single-integrated enter-
prise engaged in the operation of the above-mentioned
chain of motels and restaurants in Indiana, including the
restaurant and motel in Terre Haute, Indiana, which is
alone involved in this proceeding. Therefore, before
determining the unfair labor practice issues herein, there
remains the threshold question of whether Respondent
Builders and Respondent Green Construction together
constitute a single -integrated enterprise engaged in the
motel and restaurant business in Indiana . The record
discloses the following factual situation in this regard:
Respondent Builders has been in existence since about 1963
and, so far as appears, Robert E. Green's significant
Ramada Inn . In respect to the aforesaid dismissals , I concluded that the
General Counsel had failed to make out a prima facie case against Robert
E. Green, as an individual, nor had he made out a prima facie case that
Green Construction of Indiana , Inc., was doing business as Builders Realty
& Mortgage Co., Inc., or that Robert E . Green was doing business as
Builders Realty & Mortgage Co., Inc.
3 As corrected by my Order Correcting Transcript dated February 25,
1969.
4 After the General Counsel and Respondents had filed their respective
briefs herein , the General Counsel filed a motion with me for permission to
file a reply brief , to which was attached such reply brief. Whereupon,
Respondents filed a composite motion in opposition thereto and for
569
connection with this corporation dates from early August
1967, when he purchased a controlling interest therein and
when shortly thereafter the officers and directors resigned
at his request. Green has been president and treasurer of
Respondent Builders since August 7, 1967, and also a
director. Since December 26, 1967, the other directors have
been Curtis V. Kimmel, the vice president of Respondent
Builders; William M. McCarter, its secretary; and James
W. Funk, its assistant treasurer and assistant secretary.
Antedating August 1967 and since that time, Respondent
Builders has been the owner of a chain of motels and
restaurants in Indiana, namely at Vincennes, Evansville,
and Terre Haute. There are currently about 225 employees
at all three installations. At first, Respondent Builders
operated the motel facilities at each installation, while Ally
Food Services, Inc., operated the restaurant and bar
attached thereto under leasehold arrangements with it.
However, on November 27, 1967, Respondent Builders
purchased the rights of Ally in the leases at two of these
installations, i.e., Vincennes and Evansville, to be effective
on that date, in return for $55,000 in cash, and the
cancellation of all of Ally's indebtedness to Respondent
Builders as to all three restaurant operations and of Ally's
indebtedness to Green, personally. Respondent Builders, in
turn, undertook to make Green whole for the moneys owed
to him personally by Ally and which were being canceled as
part of the transaction with Ally. Respondent Builders
began operating the restaurants and bars at Vincennes and
Evansville on November 27, 1967, with the personnel
formerly employed by Ally. It has been operating these
restaurants and bars ever since that time. The employees at
these two installations have never been represented by a
labor organization. By December 26, 1967, Green acquired
all the stock of four of the remaining seven stockholders in
Respondent Builders and was awaiting the assignment of
all the stock of another stockholder to which he had
become entitled, with the result that he has held, since that
time, about 80 or 90 percent of the corporate stock.5 Green
has also loaned Respondent Builders $459,000 in order to
ward off receivership of Respondent Builders, in return for
which he received a promissory note in that amount from
Respondent Builders; in addition, he became guarantor of
loans by Respondent Builders from three different banks
totalling $1,600,000 and he received as security for his
obligations as guarantor a second mortgage on the real
estate holdings of Respondent Builders. As of the time of
the hearing, Ally was no longer operating the restaurant
and bar at the Terre Haute installation. Green testified
credibly that, unlike the situation with respect to the
Vincennes and Evansville operations, Respondent Builders,
which alone, of all Respondents named herein, was the
permission to file a reply brief to the original brief filed by the General
Counsel and for permission to file an answering brief to the General
Counsel's reply brief, both in the event the above motion of the General
Counsel is granted. I thereafter denied the above motions for the reasons
that there is no provision in the Board's Rules and Regulations for the
filing of a reply brief before a Trial Examiner and also that no need
appeared for further briefs herein . Contemporaneously with the issuance of
the above ruling, I returned to the General Counsel the reply briefs
improvidently attached to the motion for permission to file such a brief. I
have not considered this brief in resolving the issues herein.
5 Curtis V. Kimmel and James W. Funk hold the rest of the stock.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lessor to Ally of the restaurant premises in all three
instances , did not purchase the rights of Ally in its lease for
the Terre Haute restaurants Rather does it appear, and I
find, that Ally abandoned its lease and ceased to operate
the Terre Haute restaurant and bar on June 28, 1968,
because it was operating the restaurant and bar at a loss
and was in financial difficulties.? Following this, after a
hiatus of about 2 weeks, the Terre Haute restaurant was
reopened on July 15 under the management of Joseph
Bowlds, an employee of Respondent Builders,8 and he is
still the manager. Bowlds was, prior thereto, the manager of
the restaurant and bar at Respondent Builders' Vincennes
installation. It does not appear that Respondent Builders
has assumed any of Ally's liabilities or obligations incurred
during the time Ally operated the Terre Haute restaurant
and bar .9 Respondent Builders admittedly refused to
recognize and bargain with the Union, which became the
certified bargaining representative of the employees of Ally
at the Terre Haute restaurant and bar on March 1, 1968. In
this connection, as found hereinafter, the record fails to
sustain the General Counsel's contention that Respondents
extended recognition to the Union as the bargaining
representative of the employees of the Terre Haute
restaurant and bar on or about July 2, 1968, and thereafter
withdrew such recognition. As to labor matters, however, it
is apparent, and I find, that Green has the final say in labor
relations matters relating to this installation. Thus, it is
stipulated that many of the applications for employment at
the Terre Haute restaurant and bar after June 28, 1968,
were cleared with Green by Bowlds and initialed by Green
before the applicants were hired.'° The record reveals that,
during July and August 1968, Bowlds would consult with
Green after he had satisfied himself as to the desirability of
the applicants; and, after Green's approval, the applicants
would be hired, without being interviewed by Green. Green
personally hired Bowlds as manager, as he has done with all
managers at all three installations. There is also record
evidence that, with respect to vacations, Green has
instructed his managers at that and the other two
installations to adhere to the recommendations relating
thereto in the Ramada Inn franchise.
With regard to Respondent Green Construction, which is
allegedly part of an integrated enterprise with Respondent
Builders, the record reveals the following: It is engaged
"primarily in the heavy construction business" and
operates in five different States of the United States." It
builds concrete and asphalt pavements, dams, airports, and
other structures, and averages 600 to 700 employees on a
6 Under the leasehold arrangement, Ally paid as rent to Respondent
Builders a percentage of its gross receipts.
I Thus, Carl W. Eller, the business agent of the Union, testified credibly
that (I) Joseph Traum, the general manager of Ally, told him during the
week before June 28, 1968, during a discussion about returning to work
those employees who had participated in the strike against Ally during
April and May and who were still unemployed, that he, Traum, "was
losing so much money that he couldn 't stand it and he was going to throw
the keys down and walk out and leave the place"; and (2) that the
restaurant operation closed on Friday, June 28 , at midnight, after the
employees received their pay. In addition, the action of Ally on June 28
was explained in the credible testimony of Traum, as follows: "We were
having financial troubles and it got too difficult to operate and so we
decided not to go any further and closed it up."
8 According to the uncontradicted testimony of Green, which I credit,
the franchise from Ramada Inns requires that any motel so franchised
year-round basis. It is stipulated that since January 2, 1963,
its officers have been Green, president and treasurer; Miller
Gilmore, secretary; and Curtis V. Kimmel, vice president;
and that Green is the sole shareholder. Labor relations of
Respondent Green Construction are handled as follows:
Each project manager is initially responsible for the labor
relations of his particular project, but he, in turn, reports to
the superintendent of the project, and the latter, in turn,
reports to Green. Collective-bargaining negotiations are
conducted by the superintendent in cooperation with
Green.
There is no interrelation of operations between these two
corporations, apart from the fact that they have some
officers and directors in common, namely, Green and
Kimmel, and some common ownership; the fact that
Green, in effect, controls the labor relations of each; and
the further fact that the same law firm is counsel to both
corporations.12 Thus, Respondent Builders and Respon-
dent Green Construction are two separate companies,
performing widely, divergent operations with separate
home offices, that of Respondent Builders being located at
Vincennes and Evansville, Indiana, and that of Respondent
Green Construction being located in Oaktown, Indiana. In
addition, neither corporation performs the work of the
other and there are no services performed by either
corporation which are integrated with the operations of the
other. Each corporation employs different classifications of
employees, requiring different qualifications and skills.
These different classifications perform different types of
work and the rate of pay of the employees of Respondent
Green Construction appears to be much higher. In their
normal day to day operations, each corporation is
separately operated and managed by different personnel. In
the case of Respondent Builders, each installation is under
the day-to-day control of a manager for its motel and of a
manager for its restaurant and bar, the latter being
subordinate to the former. And in the case of Respondent
Green Construction, each construction project is under the
day-to-day control of a project manager, who is, in turn,
subordinate to the project superintendent. There are no
common supervisors and there is no interchange or transfer
of employees. It would also appear that each corporation
maintains its own payroll, books of account and bank
accounts and attends to its own business. In the latter
connection, the record discloses that original leasehold
arrangements, which antedated Green's purchase of a
majority interest in Respondent Builders, were made by
Ally with Respondent Builders and that all subsequent
must have eating facilities , and, failing that , the franchise could be revoked.
9 Green categorically denied that he, individually, owned any stock in
Ally or had any interest in Ally at the time of the hearing . And the record
fails to disclose that he ever had any such interest. So far as appears, the
dealings between Respondent Builders and Ally have been at arms length.
10 Green testified that this initialing was done "only during the period
when we were trying to get opened ," and when he was intent on keeping
cost down.
11 During the winter months it overcomes the problem of bad weather
by doing a lot of work in Georgia, South Carolina, and the Virginias.
12 The name of the law firm is Kimmel , Kimmel , and Funk. As already
found, one of the members, namely, Curtis V. Kimmel is the vice president
of both Respondent Builders and Respondent Green Construction; and
another member, James W. Funk is assistant secretary and treasurer of
Respondent Builders.
RAMADA INN 571
dealings thereunder by Ally were with Respondent
Builders; it also discloses that Respondent Green Construc-
tion holds no Ramada Inn franchises.
It is well established that the Board will treat separate
corporations or entities as a single -integrated enterprise
where the firms, despite their nominal separation, are
highly integrated with respect to ownership and
operation . 13 However, it is apparent, and I find , from all the
foregoing, that these two corporations , notwithstanding
Green's role as president of each and his role in the labor
relations of each, are not engaged in a common endeavor.
Accordingly , I find that the General Counsel failed to
establish by a preponderance of the evidence that
Respondent Green Construction constitutes an integrated
enterprise with Respondent Builders. Consequently, I find
further that there is no warrant for holding Respondent
Green Construction to be jointly responsible with Respon-
dent Builders for the unfair labor practices alleged herein.14
I shall , therefore , grant the motion to dismiss the amended
complaint as to Respondent Green Construction and shall
proceed hereinafter to a determination of whether Respon-
dent Builders committed the unfair labor practices, as
alleged.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Builders admits, and I find, that Culinary
Alliance, Local No. 443, Hotel & Restaurant Employees
and Bartenders International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts and Some Details as to the
Issues Herein
The events leading up to the operation of the restaurant
and bar facility by Respondent Builders at the Terre Haute
location were, briefly, as follows: Ally Food Service
Company, Inc., d/b/a Ramada Catering Service, and Mae
Traum and Joe Traum began operating this facility in 1965
under a lease arrangement with Respondent Builders for 5
years. The lease was actually entered into on October 16,
13 For the principal factors which the Board weighs in deciding whether
integration exists, and the Court's endorsement thereof, see Sakrete of
Northern California, Inc, 140 NLRB 765, enfd 332 F 2d 902, cert denied
379 U S 961
14 See Drivers, Chauffeurs, Helpers Local 639, etc (Poole's Warehousing
Inc), 158 NLRB 1281, 1286
15 All dates hereinafter are in 1968, unless otherwise indicated
16 The strike settlement was, at first, memorialized by a short statement
signed by Joe Traum, in behalf of Ally, and by Carl W Eller, in behalf of
the Union, it read, as follows
Contract agreement between Ally Food Service, Inc , and Culinary
Alliance Local 443 has been agreed to this 27th of May 1968
The actual agreement was then prepared the same day and was
appaiently fully executed by May 28 The parties are in dispute as to
whether the document, in evidence as GC Exh 3, or another document, in
evidence as Resp Exh 4, is the complete agreement between the parties
The two documents differ only in that GC Exh 3 has attached to it 2 pages
setting forth wage rates and other conditions of employment, whereas
Resp Exh 4 has no such attachment However, these 2 pages, inter aha,
bear date of April 17, 1968; are captioned, "Notice to All Terre Haute
Ramada Restaurant Employees"; state in the preamble to the wage scale
therein that, "the following base pay is suggested, and the employees
determine whether or not they desire to work on a 5 or 6 day schedule",
1964, at a time when the motel, etc., were still under
construction. The lease provided, in relevant part, that
Respondent Builders was to supply all the fixtures and
equipment necessary for the operation of the restaurant and
bar, such as stoves, refrigerators, ice machines, coffee urns,
sinks, dishwasher, tables, chairs, and the bar and attendant
equipment. The lessee, in turn, was to furnish the food and
liquor supplies, china, silverware, paper products, linen,
glassware, and small cooking utensils. As rental, the lessee
was to pay a percentage of the gross receipts and was to
supply daily reports of sales when available and was to
permit the lessor to audit its records from time to time. The
lessee was also to be responsible for repairs on all
equipment, for replacement of any equipment which
became irreparable from normal use, or which was lost or
which disappeared. Provision was made for the liquor
license to be the property of the lessor, but to be paid for by
the lessee; it was also agreed that the lease was not intended
to create a joint venture or partnership between the
contracting parties and that the payment of a percentage of
gross sales by the lessee to the lessor was a reservation of
rent. Also relevant herein is article XVIII of the lease which
provided, in part, that if the lessee abandoned or vacated
the premises during the term of the lease , "the lessor may
terminate the lease and enter upon [the leased] premises
and again have, repossess and enjoy the same as if this lease
had not been made," subject to the lessor's right of action
for rent, damage and legal costs.
Ally's employees were apparently not represented by a
labor organization until March 1, 1968.15 At that time, the
Union was certified, after a Board election, as the exclusive
bargaining representative of all regular full-time and
regular part-time employees of Ally at the Terre Haute
restaurant and bar, including office clerical employees.
Contract negotiations began shortly thereafter but were
interrupted by a strike and picketing. This strike lasted for
nearly 5 weeks until the terms of a collective agreement
were finalized.16 The above negotiations were between
representatives of the Union or of Ally, at all times; Robert
E. Green, president and treasurer of Respondent Builders,
took no part in these negotiations either in person or
through a representative.
and the attachment concludes with, "the above proposals are subject to
approval of company attorney " (General Manager Traum of Ally testified
that this document embodied Ally's proposals with respect to a contract
and it was given to employees "so the employees would also know what we
were proposing ") In addition , the basic agreement deals with the rate of
pay of waitresses and with many of the proposed conditions of
employment set forth in these two pages , and nowhere in the basic
agreement is there a reference to this attachment In these circumstances, I
am unable to credit Eller 's testimony that the items on the attachment are
part of the collective-bargaining agreement reached by the parties
Accordingly, I find that Resp Exh 4 rather than GC Exh 3 is the
complete agreement between the Union and Ally
Respondents also assert in their bnef that "the record in this case
certainly establishes that the circumstances surrounding the negotiation of
one or both or neither of these two exhibits support a finding that neither
of these purported agreements were the result of good -faith bargaining
between Ally Foods and the [Union I " Respondents point to nothing in the
record to substantiate their claim Accordingly , in view of the presumption
in favor of legality and regularity of a duly executed collective-bargaining
contract, and, in the absence of any evidence that either Ally or the Union
has ever repudiated this contract because it was not a bona fide agreement,
I reject this contention as lacking in ment
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the strike was over, operations at the restaurant and
bar were resumed, but with only part of the prestrike
complement of employees. As to the others, a good number
of them were never reinstated by Ally, because on June 28,
Ally shut down the restaurant and bar operations and paid
off all of its employees. The reason for the shutdown, and
the attendant abandonment of the lease by Ally, was, as I
have already found, made known to Eller, the business
agent of the Union, about a week before June 28. Eller was
then told that Ally was operating at a loss and was in
financial difficulties and would have to shut down.
Respondent Builders learned of the intended shut down
on June 28.17 Apparently, acting to protect its Ramada Inn
franchise which requires that any motel having such a
franchise must have eating facilities, Respondent Builders
took steps immediately to operate the eating facilities
abandoned by Ally. However, as already found, a little
more than 2 weeks elapsed before the restaurant and bar
were formally reopened under the management of Joseph
Bowlds, who was transferred from his post as manager of
Respondent Builders restaurant and bar installation at
Vincennes. A composite of the credible testimony of
Bowlds and Curtis V. Kimmel, the vice president and a
director of Respondent Builders and one of the attorneys
for Respondents herein, establishes, I find, that the delay in
reopening was due to (1) the need to repair or replace the
broken or damaged cooking and dishwashing equipment in
the kitchen; (2) the need to clean up the place, including
removing the considerable grease spots and dirt from the
carpeting in the restaurant, bar, and from the walls and
floor of the kitchen; (3) the need to have the sewer
unstopped; (4) the problem of arranging for the removal of
the padlocks upon the doors of the restaurant and bar,
placed there by the Internal Revenue Department of the
State of Indiana and the United States Government, due to
liens of these governmental bodies against Ally; (5) the
detail of having the name on the liquor license transferred
to Respondent Builders; and (6) finally, the delay incident
to purchasing and stocking the premises with liquor, food
supplies, linens , dishes, silverware, and glassware.18
During this hiatus, Respondent Builders proceeded to
recruit a staff for the operation of these facilities. Such
recruitment was made from among individuals who applied
to Bowlds as the result of advertisements placed from time
to time in the morning newspaper as well as the evening
17 Traum, the general manager of Ally, communicated this information
to Curtis V. Kimmel and he, in turn , notified Green.
18 Bowlds testified, in this connection, that when the restaurant and bar
opened on July 15, he did not use any of Ally's glassware, silverware,
china , or linens.
19 Thus (1) on July 3 and 4 an advertisement appeared in both daily
newspapers for bar waitresses, bartenders, cooks, and salad girls; (2) on
September 4, 7, 8, and 9 there appeared in daily or Sunday newspapers, as
the case may be, an advertisement for cook and waitresses; (3) on
September 24 through 30 there appeared in the daily or Sunday
newspapers , as the case may be, an advertisement for day cook; (4) on
October 4 through 21 there appeared in the daily or Sunday newspapers, as
the case may be , an advertisement for waitress; (5) on October 23 there
appeared in both daily newspapers an advertisement for a cook- clean-up
man; and (6) on October 29 through November 4 there appeared in the
daily or Sunday newspapers, as the case may be, an advertisement for
cook.
20 Bowlds had worked for Ally for about a year before going to work
for Respondent Builders in November 1967. During the summer of 1967,
newspaper in Terre Haute, and in the single Sunday
newspaper edition in that city,19 and from among former
employees of Ally; and as to those recruited from the latter
group, in most instances , according to the credible
testimony of Bowlds, they had either worked for him in his
capacity as manager, or their skill and work experience
were otherwise known to him.20 There was also in Bowlds'
possession on July 3, a letter of application addressed to
him by the Union; in it the Union applied for work for 20
employees who were either working for Ally on June 28 or
had not yet been reinstated,21 and for 3 employees who had
been reinstated after the strike, but quit work at Ally on
June 26.22 The text of the letter, apart from the list of 23
names mentioned above was, as follows:
Dear Sir:
Please be advised that the following is a list of Union
and signed card members of Local #443 who were
Employees at the Ramada Inn when it closed Friday
Night, and signed card members who Quit and went to
work on Wednesday, June 26th 1968 on other jobs.
These Employees are ready and able to start to work
when the Restaurant and Bar Reopens.
Recruitment proceeded in this manner: By July 12,
which was the end of the first biweekly payroll period since
the shutdown, there were 13 employees actually working
for Respondent Builders.23 This number progressed to 32
and then to 40 during the next two successive biweekly
payroll periods. Thereafter and until approximately the
time of the instant hearing, the complement vacillated
between a high of 4324 and a low of 38. Among those hired
before the peak was reached were 7 individuals of the 23
listed in the Union's letter of application set forth above,
namely, Susan Montgomery (who began to work on July
15), Judith Crabb and Agnes Lyon (who began to work on
August 13), Phyllis Alsop (who began to work on Septerber
17). Thereafter, during November. Respondent Builders
employed Pat Rollings; she started to work regularly
around December 2, In addition, Respondent Builders,
during November and December, offered employment in
their former jobs, with alseniority rights, to Madeline
Tharp, Bertha Green, and Pamela Pershing. As of the time
of the instant hearing, neither of these three individuals had
accepted the offer of employment. Although as noted
above, some of the individuals listed in the Union's letter of
application were thereafter hired, the amended complaint
he was detailed by Ally for 3 months to the restaurant and bar at Terre
Haute where he served as manager . Thereafter, he worked for Ally as
manager of the restaurant and bar at its Evansville installation. When
Respondent Builders started operating the Evansville installation in
November 1967, Bowlds continued in the same job with the title of
catering manager. In May 1968, he became manager of the restaurant and
bar at Respondent Builders' Vincennes installation.
21 Namely, Rosella Merk , Clara Allen, Joe Feuquay , Pat Rollings,
Norma Atterson, Jim Fenoglio, Steve Wooley . Eleanor McCombs, Charles
Smith , Helen Atkinson (she was listed as being on sick leave ), Edgar
Vermuelen , Madeline Tharp. Bertha Green , Helen Sims, Susan
Montgomery , Emmett Martin , Wilma Cox, Richard Carrithers, Pauline
Hogue, and Pamela Pershing.
22 Namely, Judith Crabb, Agnes Lyon, and Phyllis Alsop.
23 It would appear that such work as was done was of the get-ready
variety. Twelve of these individuals worked 26 hours or less and one, a
maintenance man, worked 40 hours during this payroll period.
24 This peak was reached during the biweekly payroll period ending on
October 4.
RAMADA INN 573
alleges, and the General Councel contends in its brief
herein, that all 23 so listed, as well as Mary Ann Akers,
whose name was added to the list on July 16, were
discriminated against either individually or as part of a
mass discrimination against union -connected employees. I
shall therefore deal with the allegations of discrimination
insofar as they relate to each of these 24 employees,
seriatim.
During the hiatus between the shutdown of the restaurant
and bar by Ally and the reopening thereof by Respondent
Builders , the Union , through Eller , and through its counsel,
Ross P. Walker, Esq., communicated by telephone and by
letter with Respondent Builders , advising Respondent
Builders of the Union 's contract with Ally as to the
employees of the Terre Haute restaurant and bar and
requesting Respondent Builders to recognize and bargain
with the Union . The details of what transpired between
them is in controversy . Suffice it to say , at this point, that
Respondent Builders has refused to recognize and bargain
with the Union . The Union, as found hereinafter, in effect,
concedes that it never had a majority among the employees
of Respondent Builders at the Terre Haute restaurant and
bar. However , the General Counsel contends that, even
without a continuation of the majority which the Union
formerly had among the employees of Ally, it was
incumbent upon Respondent Builders , as successor to Ally,
to recognize and bargain with the Union , and to assume the
outstanding contract between Ally and it ; and this is so,
also according to the General Counsel , because Respon-
dent Builders discriminatorily refused to hire its predeces-
sor's employees. It is thus apparent that central to the
8(a)(5) issue herein is the resolution of the allegations of
8(a)(3).
B. The Alleged Violations of Section 8(a)(3) of the
Act
For the reasons hereinafter set forth, I am persuaded, and
find, that the 8(a)(3) allegations of the amended complaint
have not been sustained as to any individual encompassed
thereby, whether their cases are considered separately or as
part of the alleged mass discrimination. I shall, however,
defer my analysis of the allegation of mass discrimination
until I have treated with each alleged discriminatee
separately and apart therefrom.
1. Clara Allen and Pauline Hogue
Neither Clara Allen nor Pauline Hogue appeared as a
witness in this case. However, the parties hereto stipulated
that they were offered employment by Respondent Builders
on July 2. And the payroll records, in evidence as General
Counsel's Exhibit 28, show that both of them started
working at the Terre Haute restaurant on July 15, the day
on which Respondent Builders reopened it for business. It
is clear that the offers of employment to Allen and Hogue
antedated the receipt on July 3 by Respondent Builders of
the Union's letter of application for 23 former employees of
Ally. In these circumstances , I am persuaded, and find, that
the record fails to reveal any tenable basis for finding that
Respondent Builders discriminated in any manner or form
against either Allen or Hogue.
2. Susan Montgomery
According to Susan Montgomery, on July 1, 2, or 3, she
spoke to Bowlds, manager of the Terre Haute restaurant
and bar, about employment. Montgomery's version of the
interview, which resulted in her going to work at this
installation in early July,25 was as follows: At first, Bowlds
said to her, "I hear you are having a little trouble." She
thereupon inquired as to what kind of trouble Bowlds was
referring, and Bowlds answered, "I hear you are mixed up
in the Union."26 Montgomery could not recall what else
she said, but she attributed to Bowlds the further remark
that, "it made no difference to him personally but he was
employed by Mr. Green and he did what Green told him to
do . . . that Mr. Green didn't want to have anything to do
with the Union." It was her further testimony that
thereafter in "early July" she spoke on the phone to Norma
Atterson, one of those listed in the Union's letter of
application, about going back to work at the Terre Haute
restaurant 27 However, in response to a question from me as
to whether she told Atterson what had happened between
Mr. Bowlds and her, Montgomery replied, "Nothing
happened." Also when asked by counsel for the Union
immediately thereafter, "what had been said by you and
Mr. Bowlds at the time when you were hired?," her answer
was, "I don't remember." In contrast to the foregoing,
Bowlds testified that he had a conversation with Montgom-
ery, in the presence of her husband on July 1 in the dining
room and kitchen of the Terre Haute restaurant. According
to him, the following took place : Susan Montgomery said
that she was scared to death all the time about what was
going on, that she had been abused and there was always
someone calling the house, that she did not want to have
anything to do with the Union, and that she just wanted to
work and make a living. Whereupon, he said that "it didn't
make any difference to [him] one way or the other." While
Bowlds agreed that the name of Mr. Green was mentioned
during the conversation, his version was that he merely told
her that he now worked for Builders Realty owned by Mr.
Green, and he specifically denied that he told Susan
Montgomery that Mr. Green stated that he did not want
anything to do with the Union. Bowlds apparently hired her
at the close of this conversation to start work before the
restaurant reopened formally on July 15. Bowlds explained
that she had worked for him during the summer of 1967
during his stint as manager of this installation for Ally and
that, in staffing in July 1968, he hired some of the people
who had worked for him during the summer who were very
good at their jobs.
In all these circumstances, including the uncertain and
25 The . biweekly payroll record for the period ending July 12, in Ally.
evidence as GC Exh. 27, shows that Montgomery worked for the first time 27 The conversation occurred during a telephone call from Atterson to
on July 8 rather than July 4, as she testified. Montgomery.
26 Montgomery was a member of the Union during her employment by
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unconvincing testimony of Susan Montgomery, the ab-
sence of any corroboration thereof,28 and the denial by
Bowlds, I find that the evidence fails to preponderate in
favor of a finding that Bowlds introduced the topic of the
Union in the conversation or that Bowlds told Susan
Montgomery that "Mr. Green didn't want to have anything
to with the Union." Accordingly, I conclude and find that,
here too, there exists no tenable basis for finding that
Respondent Builders has discriminated against Susan
Montgomery with respect to her hire or tenure of
employment.
3. Judith Crabb
Judith Crabb had worked as a waitress for Ally at the
Terre Haute restaurant since February 1, 1967. She quit her
employment with Ally a few days before Ally closed down
this installation. on June 28, 1968. Although her name was
included among those listed in the Union's letter of
application for employment to Respondent Builders, she
was designated thereon as a quit before the restaurant
closed down. Crabb admittedly filed an application for
employment with Respondent Builders on July 3. Thereaft-
er, the following occurred, according to the testimony of
Crabb: She telephoned Bowlds about July 10 and asked
him if he had heard anything more about her getting her job
back. Bowlds said he had not heard and promised to let her
know. Bowlds then asked her "if [she ] could get a card back
that she signed or a clearance of some kind." 29 Although
Crabb testified, at one point, that she called Bowlds on the
telephone, in all, 3 or 4 times, she did not know when the
other occasions were. Subsequently, also on direct, Crabb
testified that she did not make any telephone calls to
Bowlds after the one described above. And then, during
cross-examination, she varied her testimony again, by
saying that "it could" have been two times that Bowlds
asked her about the card or the clearance. In any event,
Crabb never got her signed card back from the Union, and
it is stipulated by all the parties that Crabb's first day of
work at the Terre Haute restaurant was August 13. In
regard to the foregoing, Bowlds fixed the date of Crabb's
application for a job of morning waitress as July 5,30 at
which time he had a conversation with Crabb. He testified
further that Crabb told him that she had trouble with the
Union and did not know whether she was still a member of
the Union as she had crossed the picket line during the
strike at Ally; that Crabb added that she did not think that
she was still a union member and wanted to know "if that
would be anything against her and keep her from getting
her job"; and that he, in turn, said that, "it made no
difference to us." Bowlds denied that he, at any time,
instructed Crabb to try and get her application card back
from the Union.
In all the circumstances, including the fact that Crabb
was hired by Respondent Builders, although she never got
28 I credit Bowlds' testimony that Susan Montgomery 's husband was
present during this conversation . However, Mr. Montgomery did not
appear as a witness at this proceeding and there is no showing that he was
then unavailable.
29 At first , Crabb testified that, when Bowlds said that he would let her
know, in response to her inquiry about whether he had heard about a job
for her, "that was about the end of [ the conversation I." And when asked
whether she remembered anything else that was said in the conversation
back her signed union card; the fact that her testimony,
attributing to Bowlds' solicitation of her to get her card
back, was elicited by a leading question; the fact that her
testimony as to other telephone calls by her to Bowlds
concerning employment , and as to another such solicitation
by Bowlds was unsure and unconvincing ; and the further
fact that Bowlds categorically denied ever engaging in such
solicitation, I am satisfied, and find, that the General
Counsel failed to establish by a preponderance of the
evidence, as detailed above, that Bowlds solicited Crabb to
get her card back from the Union at the time she applied for
employment. Accordingly, I find, here too, that Respon-
dent Builders has not discriminated against Judith Crabb
with respect to her hire and tenure of employment.
4. Agnes Lyon and Phyllis Alsop
Agnes Lyon did not appear as a witness in this case.
However, Respondents admit that she filed an application
for employment with Respondent Builders on July 3, and it
is stipulated that her first day of work at the Terre Haute
restaurant was August 13.
Similarly, Phyllis Alsop did not appear as a witness
herein. However, among the applications for employment
filed with Respondent Builders are two of her applications,
one for cocktail waitress dated July 5 and one for waitress
dated September. It would appear, too, and I find, on the
basis of Respondent Builders' biweekly payroll record for
the period ending September 6, in evidence as General
Counsel's Exhibit 31, that Alsop's first day of work for
Respondent Builders at the Terre Haute restaurant was
September 6, as waitress.
The record fails to reveal anything untoward unionwise
happening between either Lyon or Alsop, on the one hand,
and any representative of Respondent Builders, on the
other hand. Although it is evident that about 6 weeks
elapsed from the time of Lyon's application for employ-
ment and the day she began to work for Respondent
Builders and that approximately 2 months elapsed in the
case of Alsop from the time of the first application, it is
clear, and I find, on the evidence detailed above, that no
basis exists , in either situation , for finding that Respondent
Builders discriminated as to their hire or tenure of
employment in deferring their actual employment until
August 13 and September 6, respectively.31
5. Joe Feuquay ; Jim Fenoglio , Madeline Tharp;
Richard Carrithers ; Helen Atkinson, and Edgar
Vermuelen
Neither Joe Feuquay, Jim Fenoglio, Madeline Tharp,
Richard Carrithers, Helen Atkinson, nor Edgar Vermuelen
appeared as a witness herein. With specific reference to
Atkinson and Vermuelen, there is testimony by Eller, the
she answered in the negative . The above statement about cards was then
elicited after a leading question by counsel for the General Counsel , to wit,
"Was anything said about union membership or union cards?"
39 As heretofore indicated, Respondents admitted that the date was July
3 .
31 As heretofore found, Respondent Builders attained its peak
employment at the Terre Haute restaurant during the payroll period ending
October 4.
RAMADA INN 575
union business agent, that Atkinson was ill and did not
apply in person to Respondent Builders for employment,32
and that Vermuelen also did not apply in person. There is
also uncontradicted testimony by Bowlds that none of the
above-mentioned individuals filed an application with
Respondent Builders. Nor does it appear that any of these
individuals applied to Respondent Builders for employ-
ment by telephone.
As heretofore indicated, the names of all the above-
mentioned individuals did appear on the Union's letter of
application which was received by Respondent Builders on
July 3. However, whether the list reflected the current
desires of the listed individuals for employment by
Respondent Builders is open to doubt. In this connection,
Eller testified, in effect, that the paramount consideration
in his placing a name on the list was that the individual
involved was an obligated member of the Union 33 That
this is so is apparent from the following: Eller listed thereon
Helen Atkinson, who had apparently taken such leave
before Ally shut down the installation, and was, as the
listed clearly indicated, still sick and unable to work. He
also listed thereon the names of Judith Crabb, Agnes Lyon,
and Phyllis Alsop, designating them on the list as "card
members who quit." Indeed, Eller testified that he was not
applying for employment for the three who had quit, that
they were working somewhere else at the time, and that
Alsop told him that she was quitting and would not be
back. And in regard to Joe Feuquay and Jim Fenoglio Eller
acknowledged that, although the Union, in a letter dated
June 17 to General Manager Traum of Ally, asked for the
reinstatement of Joe Feuquay and Jim Fenoglio along with
five other employees, all of whom were still to be reinstated
after the strike against Ally, he made inconsistent
handwritten notations on the letter, while in Traum's
possession, about 3 days later, after speaking to Traum
about these individuals. At that time Eller wrote "cannot do
work" next to Feuquay' s name and the word "quit" next to
Fenoglio's name . In all these circumstances, I am
convinced, and find, that the Union's letter of application
falls short of being a reliable index of the current desires of
the listed individuals for employment by Respondent
Builders.34 Accordingly, as the Union's letter of application
falls short of establishing that anyone of these six
individuals was available for employment during the
critical period herein, as there is absent any evidence that
anything untoward unionwise occurred between any of
these individuals, on the one hand, and representatives of
Respondent Builders, on the other hand, I conclude, and
find, that the evidence, as detailed above, fails to
32 The Union 's letter of application to Respondent Builders discussed
heretofore stated that Atkinson was "on sick leave "
33 Thus, when Eller was asked , on cross-examination , what criteria he
used to select these individuals , he replied, "I simply conducted the duties
of my office These people were signed , obligated members of the Union
and I simply conducted my office in the best manner under law that I
knew how in their behalf "
34 1 note , too, that the letter spoke only of the applicants being "ready
and able to start work when the restaurant and bar opens ," giving no
information as to the job or jobs sought by each applicant and his
qualihcahons therefore-information which a prospective employer could
rightfully insist upon having before considering an applicant for
employment
35 The record discloses that, by letter dated November 26 from counsel
preponderate in favor of a finding that Respondent
Builders discriminated with respect to the hire and tenure
of employment of either Joe Feuquay Jim Fenoglio,
Madeline Tharp,35 Richard Carrithers, Helen Atkinson, or
Edgar Vermuelen.
6. Norma Atterson
Norma Atterson was working for Ally as a waitress at the
time Ally closed down the Terre Haute restaurant and bar.
Sometime during the first week of July she telephoned
Bowlds at the above installation. Atterson testified that she
told Bowlds of her employment by Ally and inquired
whether she could have her job back, to which Bowlds
replied that she would have to come in and fill out an
application, as Mr. Green wanted to go over all the
applications. Atterson admitted that she never filed an
application with Respondent Builders, explaining that after
July 15, when the Terre Haute restaurant was reopened, she
spoke to Susan Montgomery and, as a result of this
conversation, she elected not to file an application. Since
Montgomery was then already an employee of Respondent
Builders,36 since what Montgomery may have told her is, in
no event, binding on Respondent Builders, and since I have
heretofore found that nothing of a vulnerable nature under
the Act occurred between Montgomery and Bowlds prior
to the time that Montgomery was hired, I perceive no basis
for finding that, in consequence of Atterson's telephone
conversation with Montgomery, it would have been futile
for Atterson to file an application, as requested by Bowlds.
According to Atterson, the next time she spoke with
Bowlds was around November 12; she came to the Terre
Haute restaurant in response to a telephone call from
Bowlds. She testified that they then discussed terms of
employment and, during their conversation, Bowlds said
that "he would have called [her] back sooner but he didn't
want to get [her] in trouble with the Union"; and further
that "he didn't care about the Union one way or the other."
She testified also that she began working for Respondent
Builders on November 18. In respect to the above, the
parties hereto stipulated that Atterson was hired by
Respondent Builders on November 11 and began working
on that date as a night waitress . There was also testimony
by Bowlds in this connection. Bowlds recalled having a
telephone conversation with Atterson about this time.37
However, he testified that Atterson initiated the telephone
call and asked about getting her job back; and that his
response was that he had all the girls he needed on the night
shift. Whereupon Atterson asked whether his not hiring her
had anything to do with the Union and he answered in the
for Respondent Builders, Tharp was offered employment in her former job
with Ally, with full seniority rights, and that Tharp refused to accept the
offer
36 As heretofore found, Montgomery began working at the Terre Haute
restaurant on July 8
37 While it would appear from the way the question was put to Bowlds
by counsel for Respondents that, in his answer thereto, Bowlds was fixing
the date of this conversation as November 18, 1 am satisfied that this was
engendered by counsel's use of the wrong date Thus , counsel asked, "Now
Mr Bowlds turning your attention to November 18th, 1968 , did you have a
conversation with Norma Atterson on that date?" and Bowlds replied,
"She called me on the phone " I therefore find that Bowlds was referring to
the same telephone conversation testified to by Atterson
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negative. He testified further that Atterson was employed
by him pursuant to instructions from counsel for Respon-
dents.
Accordingly, in July, as Atterson failed to comply with
the request of Bowlds to file a written application for
employment, as no showing has been made that the filing of
an application would have been futile, as the Union's letter
of application was not a reliable index of her current desires
for employment by Respondent Builders,38 and as nothing
untoward unionwise occurred between Atterson and
Bowlds during their telephone conversation, I find that the
record fails to preponderate in favor of a finding that
Respondent Builders discriminated against Atterson by not
hiring her in July in response to her telephone call and the
Union's letter of application.
I have heretofore detailed the subsequent hiring of
Atterson on November 11, and the conversation which
preceded it. In this connection, I find more credible the
testimony of Atterson, which Bowlds denied, that Bowlds
made the overture to her about coming back to work.
Supportive of her testimony, I find, is Bowlds' testimony
that he hired Atterson at that time pursuant to instructions
from counsel for Respondent Builders. However, I find it
difficult to believe that, armed with such instructions to hire
Atterson, Bowlds would have mentioned the Union during
this conversation and would have volunteered to Atterson
that he did not call her back sooner for union-connected
reasons. In view of this, and in the light of Bowlds'
testimony that Atterson raised the matter of the Union by
asking whether his not hiring her before had anything to do
with the Union, to which he entered a denial, I find that the
logic and probabilities of the situation support Bowlds'
testimony in this regard and I credit it. Accordingly, I find
that the evidence, as detailed above, fails to preponderate in
favor of a finding that Respondent discriminated against
Norma Atterson with respect to her hire or tenure of
employment by not hiring her before November 11.
7. Patricia Rollings
Patricia Rollings had participated in the strike called by
the Union in late April against Ally at the Terre Haute
restaurant and bar and was among those employees of Ally
who had not been reinstated as of June 28 when Ally closed
down this Terre Haute installation. Rollings contacted
Respondent Builders for the first time about November 2 in
reference to a job at the Terre Haute restaurant. She
testified that, upon learning that Bowlds had talked to
Atterson, she wanted to see if Bowlds would hire her back.
She reached Bowlds on the telephone and, as detailed in her
testimony, the following took place: She identified herself
and said that she understood that he, Bowlds, was hiring
some of the union members back. To this, Bowlds replied,
"not necessarily." Whereupon, she said that she was
interested in her job, that she liked her job, and that she
would like to have it back. Bowlds answered that he would
call her. Bowlds did call her about 5 days later, and she was
subsequently hired. Her first day of work on a regular basis
was around December 2 .39 Bowlds ' testimony as to this
incident was merely that he had been told by counsel for
Respondent Builders to hire Rollings.
In all these circumstances , including my finding hereto-
fore that the fact that an individual 's name appeared on the
Union's letter of application , as was the case with Rollings,
was not a reliable index of current availability for
employment; the findings above that Rollings first applied
for employment in November and was hired shortly
thereafter ; the absence of evidence that a personal
application before November would have been futile; and
the absence of evidence that anything untoward unionwise
occurred between Rollings , on the one hand, and Bowlds or
other representatives of management, on the other hand, I
also find here that the evidence , as detailed above , fails to
preponderate in favor of a finding that Respondent has, at
any time since July 3, discriminated against Patricia
Rollings with respect to hire and tenure of employment.
8. Charles Smith
Charles Smith had worked as a cook for about 20 years.
His employment by Ally at the Terre Haute restaurant
covered the period from September 1967 until June 28,
1968, when Ally closed down the installation. He was
employed by Ally as a dinner cook and his job just prior to
the shutdown was as "swing cook ," relieving all the other
cooks. He did not work continuously during his tenure, as
he was discharged by Ally on December 4, 1967, and was
thereafter reinstated with backpay in March 1968.
The parties stipulated that Smith filed an application with
Respondent Builders during the first week of July,
sometime after July 3 . Smith testified credibly, as follows:
He applied at that time on instructions from Eller, the
Union's business agent. There was no mention made of a
union when he filed his application with Bowlds. He also
applied four more times thereafter either by phone or in
person. Each of these four times, he applied the day after
having seen in the evening newspaper an advertisement for
a cook at the Terre Haute restaurant. He fixed these four
times as twice in September, once in October, and once in
November. As heretofore found, there were, in fact, two
such advertisements in September-one early in September
for a cook and waitresses, and one late in September for a
day cook; there was one in late October for a cook, clean up
man; 40 and there was one in early November for a cook.
Also, according to Smith, on each of these occasions he
spoke to Bowlds and Bowlds told him that he had just hired
somebody. In respect to the above, Bowlds testified only
that when Smith appeared at the Terre Haute restaurant
early in July asking for a "shift job," at between $90 to $100
per week,41 he asked Smith to fill out an application and
Smith did so. At that time, according to Bowlds, he had
already, on July 1, contacted one Joe Salooki, whose work
as a cook he had observed during the summer of 1967 at
another Terre Haute restaurant operated by Ally,42 and
38 See the findings , above, as to Joe Feuquay and others . not sought.
39 The biweekly payroll record, for the period ending November 29, in 41 Smith testified that he asked for $98 per week.
evidence, shows that Rollings worked for 6 1/2 hours during that period, 42 Ally's payroll for the biweekly period ending June 28 shows that
on November 18. Salooki worked 78 1/2 hours at the Terre Haute restaurant and earned
40 According to Bowlds' credible testimony, in this instance a cook was gross pay of $149.15.
RAMADA INN 577
Salooki had accepted his offer of employment as head cook
at night at this installation. In addition, he had, on July 1,
contacted Shirley Scott whom he hired as a cook. In this
connection, the biweekly payroll records of Respondent
Builders, in evidence, show that Salooki began to work at
the Terre Haute restaurant on July 8 and that Scott began
on July 13. These records also reveal that on July 15 and 16
four more were added to the payroll in the cook
classification, i.e., Camelia Williams, Emma Eaton, and
Elsie Gore began on July 15 and Thelma Granger began on
July 16. These records reveal further that the complement
of employees classified as cooks during the next 10-
biweekly payroll periods, in evidence, which would
encompass the period up to several weeks before the instant
hearing, varied between 5 and 7. Four of the complement,
namely Salooki, Scott, Gore, and Williams were employed
throughout this entire period. Salooki, Scott, and Gore
started at a wage which was within the range of that
requested by Smith, while Williams started at considerably
less, and was receiving $1.55 per hour during the most
recent biweekly payroll period, in evidence. It would also
appear that, except for one Robert Still, the others who
were hired as cooks during these 10-payroll periods were
paid no more than Williams.
Still was hired during the payroll period ending October 4
at $2 per hour and continued to be so employed thereafter.
His rate of pay was considerably less than what Smith
testified he was requesting per week. Bowlds testified
further that the job of a dinner cook which, as already
indicated, Smith had for virtually the entire period he
worked for Ally, varies with the manager in charge of the
restaurant; that, if he had a dinner cook, he would have him
make up the dinner for the buffet; and that he has not
served a dinner buffet at the Terre Haute restaurant since
its opening on July 15.43
Bowlds' explanation as to why he never hired Smith, who
had about 20 years of experience as a cook, was
unconvincing and I do not credit his testimony in this
regard. However, while the matter is not free from doubt, in
the absence of evidence showing that anything untoward
unionwise occurred between Smith and Bowlds, or between
Smith and any other representative of Respondent
Builders, and in the absence of any evidence herein
warranting an inference that Respondent Builders was
motivated by antiunion reasons in not hiring Smith, I am
unable to find that the evidence, as detailed above,
preponderates in favor of a finding that Respondent has
since early July discriminated against Charles Smith with
respect to hire or tenure of employment.
9. Emmett Martin
Emmett Martin did not appear as a witness in this
proceeding. However, his written application, dated July 3,
for a job as bartender with Respondent Builders is in
evidence as part of General Counsel's Exhibit 26.
According to the testimony of Bowlds, Martin worked as a
day bartender at the Terre Haute installation during the
summer of 1967 when he, Bowlds, was detailed to that
restaurant and bar by Ally as manager. Bowlds testified
that Martin drank on the job and "as night wears on he
drinks more than he sells"; that he had to send Martin
home one Friday night for drinking too much on the job;
and that he had to send Martin home one Saturday night
because he judged from Martin's looks and demeanor that
Martin had had too much to drink. Bowlds testified further
that he filled the day bartender's job on June 30 or July 1 by
hiring Dolores Medlin who had also worked in the bar at
the Terre Haute installation during the summer of 1967
while he was manager. According to Bowlds, he telephoned
Medlin and offered her the job and she accepted.
In all these circumstances, including Bowlds' uncontro-
verted testimony as to Martin's work habits and work
performance while he, Bowlds, managed the restaurant and
bar during the summer of 1967; and in the absence of any
showing that anything untoward unionwise occurred
between Martin, on the one hand, and Bowlds or any
representative of Respondent Builders , on the other hand;
and in the absence of any evidence warranting an inference
that Respondent Builders was motivated by antiunion
reasons in not hiring Martin, I am unable to find that the
evidence, as detailed above, preponderates in favor of a
finding that Respondent Builders discriminated against
Martin with respect to his hire or tenure of employment.
10. Helen Sims
Helen Sims was employed as a day bartender by Ally at
the time Ally closed down the Terre Haute restaurant and
bar. According to Sims, she had conversations with Bowlds
early in July about getting back her job as day bartender,
i.e., about July 2, 5, and 10. Her testimony detailed the
events of those 3 days, as follows: On the first occasion,
Bowlds told her that he had heard a lot of nice things about
her and that "they weren't ready yet." Bowlds told her to be
back the following morning at 9 o'clock, but said nothing
about filling out an application. Later that day, she heard
from Rosella Merk44 that "we were all supposed to be to
work" the next morning at 9, and she was asked to tell that
to everyone. The following morning, about six employees of
Ally, including Merk and her were present at the restaurant,
and they were all told by Bowlds to fill out applications.
They filled out their applications and handed them either to
Bowlds or Mr. Abel, the new manager of the motel, to
which the restaurant and bar were attached, and were told
by either Bowlds or Abel that Robert E. Green (president
of Respondent Builders) would be back in an hour and they
would be able to talk to him at that time . However, they
never did get to talk to Green and were told by Abel to go
home and that they would be called when needed. She next
appeared at the restaurant on July 5 and asked for her old
job again, and Bowlds replied that "there wasn't anything
he could do about it." She then asked whether this was due
to the fact that her name was on the list of names 45
Whereupon, Bowlds smiled and said, "Well, your name was
on that list." To this, she answered that she had joined the
Union so she could hold on to her job and that she needed
her job back badly. And Bowlds replied that, "he was just
43 Ally did serve such a buffet. before the closing of the Terre Haute restaurant.
44 Merk had been made an assistant manager by Ally about 2 months 45 The reference was, I find , to the Union 's letter of application.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sorry but that was the way it was." Her last appearance at
the restaurant was about July 10. At that time, Bowlds told
her that he had already hired someone for the day
bartender's job, that he could not let that individual go
because of her, but that he might be able to work something
out for her in another part of the restaurant. Her answer
was that she was not interested in any other job and that the
day bartender's job was the only one she could handle.
Before she left, she spoke to Abel and he suggested that she
write a letter to Green. She made this known to Bowlds and
he thought that it would be a good idea. It does not appear
that she ever sent such a letter to Green. With respect to the
above, Bowlds testified only that he recalled that Sims came
to the Terre Haute restaurant with Eller on July 5 or 6, and
that, during the conversation with Sims that followed, she
asked him if it would do her any good to send a letter to
Green and that his response was that he "really didn't know
if it would or not." He denied that he ever told her during a
conversation that "her name was on this list."
It is apparent from" the testimony of Sims that Bowlds
refused to hire her as a day bartender on the ground that he
had already filled the job, but offered, on July 10, to work
something out for her in another part of the restaurant, and
that she refused to work at any other job. Since the fact that
he had already filled the job is, I find, sustained by the
record, her case must rise or fall on whether Bowlds made
the selection on a discriminatory basis. The General
Counsel appears to rely, in this connection, on Sims'
testimony concerning Bowlds' reply to her question as to
whether she was not getting the day bartender's job because
her name was among those listed in the Union's letter of
application. According to Sims, Bowlds smiled and said,
"Well, your name was on the list." In view of the fact that
Sims' version discloses that she was the one who introduced
the subject of the list and, as it would require a strained
interpretation of the answer she attributed to Bowlds and of
the entire conversation to find that Bowlds' answer did
more than acknowledge that her name was on the list, I am
unable to find that Bowlds thereby clearly manifested that
he would not hire Sims because of her union membership or
her connection with the Union. Furthermore, he did
thereafter offer to find a job for her elsewhere in the
restaurant, according to Sims. Accordingly, on the basis of
the entire record, I am unable to find that the evidence
preponderates in favor of a finding that Respondent
Builders has since early July discriminated against Helen
Sims with respect to her hire or tenure of employment.
11. Bertha Green
Bertha Green did not appear as a witness in this case. The
only evidence pertaining to her is her application of July 3
to Respondent Builders for a job as breakfast cook and her
inclusion among those listed on the Union's letter of
application. It is clear that Green was never hired by
Respondent Builders.
In all these circumstances, including the absence of any
evidence that anything untoward unionwise occurred
between Green, on the one hand, and a representative of
Respondent Builders, on the other hand, and in the absence
of convincing evidence warranting an inference that
Respondent Builders was motivated by antiunion reasons
in not hiring her, I find that the evidence, as detailed above,
does not preponderate in favor of a finding that Respon-
dent Builders discriminated against Bertha Green with
respect to her hire or tenure of employment.
12. Wilma Marie Cox
Wilma Marie Cox was employed by Ally as a waitress at
the Terre Haute restaurant from March 1967,46 until the
time Ally closed down the restaurant on June 28. Her name
was thereafter included among those listed on the Union's
letter of application, and she personally filed an application
with Bowlds for a job as waitress on July 25. On the latter
date, according to the testimony of Cox, the following
occurred: She asked Bowlds to hire her back and he replied
that he was not hiring at that time and that he would let her
know at a later date if he needed her. At that point, Mary
McCord, a hostess at the installation, spoke to Bowlds, in
her presence, and said that "Frances Bentley" 47 had
wanted him to hire Eula back, that Eula had been a waitress
there before the Union came in , and she was a good
waitress, and that he should hire her back. On her way out
of the restaurant she saw Eula, and about a week or two
later, she observed Eula going into work wearing a uniform
of a waitress. The parties stipulated that counsel for
Respondent Builders, by letter dated November 9, which
Cox received on November 15, offered her a job as waitress.
Cox refused this offer. It is Cox's further testimony that,
prior thereto, on November 5, in a telephone conversation
with counsel for Respondent Builders, counsel offered her
the same rate of pay as at Ally and "all her privileges"; that
she asked about backpay; and that counsel indicated that
he could not offer her any backpay.
Bowlds did not testify concerning the above conversa-
tion. Granting that a conversation between Cox and
Bowlds about Cox's employment as a waitress did occur on
July 25, I am not persuaded that she testified credibly with
respect to the attendant circumstances involving the
remarks by McCord both as to Bentley wanting Bowlds to
hire one, Eula, and as to Eula "[having] been a waitress
there before the Union came in ." Eula is not otherwise
identified in the record. However, in seeming contradiction
to Cox's testimony that Eula was thereafter hired as a
waitress are Respondent Builders' payroll records, in
evidence, which show that one Eula Alexander started to
work as a waitress at the Terre Haute restaurant on July 20
and was so employed on July 25 and for sometime
thereafter. And so far as appears from the payroll records,
in evidence, Respondent Builders has never employed at
the Terre Haute restaurant any other individual whose first
or last name was Eula. Accordingly, in view of this
apparent discrepancy, I do not credit Cox's testimony in
this regard.
In all these circumstances, including the absence of
evidence that anything untoward unionwise occurred
between Cox on the one hand, and Bowlds or any other
46 As already found, Bowids was detailed by Ally to this installation as 47 Bentley is listed as a hostess on the biweekly payroll ending July 26,
manager during the summer of 1967 . in evidence as GC Exh. 28.
RAMADA INN
representative of Respondent Builders on the other hand,
and in the absence of any evidence warranting an inference
that Respondent Builders was motivated by antiunion
reasons in not offering her employment as a waitress before
November 5 or thereabouts, I find that the evidence, as
detailed above, does not preponderate in favor of a finding
that Respondent Builders discriminated against Wilma
Marie Cox with respect to her hire or tenure of
employment.
13. Eleanor McCombs
Eleanor McCombs had participated in the strike called
by the Union against Ally at the Terre Haute restaurant
and bar and was among those employees at Ally who had
not been reinstated as of June 28 when Ally closed down
this Terre Haute, installation .48 McCombs contacted
Respondent Builders for the first time on August 1 and
applied for a job at the Terre Haute restaurant 49 McCombs
testified as follows with respect to her efforts to obtain
employment with Respondent Builders as a waitress: She
spoke to Bowlds in the lobby of the restaurant. Bowlds
looked over her application and said that he would have to
get Green to approve it. When she commented about her
experience as a waitress, Bowlds replied that he had no
doubt that she was a good waitress. Bowlds then told her to
call him the following week and, in the interim , he would
get Green to look over her application. The following week,
she telephoned Bowlds, as directed, but was told by Bowlds
that he had not had a chance to talk to Green about her
application and that she should keep in touch with him.
Subsequently, on August 27, she inquired from Bowlds on
the telephone as to whether he had any openings for a
waitress and he replied in the negative but volunteered that
he had an opening for a dishwasher. After several attempts
to reach Bowlds again on the telephone, she reached him in
November. She posed the same question to Bowlds as on
August 27, and he replied in the negative.
Bowlds did not testify concerning any of the foregoing,
and I credit McCombs' uncontroverted testimony as to her
unsuccessful efforts to secure employment with Respon-
dent Builders as a waitress . However, in the absence of
evidence that anything untoward unionwise occurred
between McCombs on the one hand, and Bowlds or any
other representative of Respondent Builders on the other
hand, and in the absence of any evidence warranting an
inference that Respondent Builders was motivated by
antiunion reasons in not offering her employment as a
waitress, I find that the evidence, as detailed above, does
not preponderate in favor of a finding that Respondent
Builders discriminated against Eleanor. McCombs with
respect to her hire or tenure of employment.
48 According to McCombs, during the first part of June, Ally offered
her employment as a waitress on the night shift, although she had worked
on the day shift before the strike , and she refused the offer.
49 McCombs was also one of those listed on the Union's letter of
application.
50 The biweekly payroll for the period ending November 15, in evidence
as GC Exh. 36, shows that she started work on Wednesday, November 13,
as a hostess-cashier.
14. Rosella Merk
579
Rosella Merk had been working for Ally for about 3
years at the time Ally closed the Terre Haute restaurant.
She started as a waitress, progressed to hostess and cashier,
and was made assistant manager a week before the strike.
She testified that she did not walk the picket line during the
strike because she was told by management of Ally that she
"didn't have to." She continued to function as assistant
manager both during the strike and until the shutdown.
Thereafter, she applied to Respondent Builders for work at
the Terre Haute restaurant. Merk detailed her experience in
this respect, as follows: In response to a telephone call from
Frances Bentley, a former hostess and cashier at Ally, she
appeared at the Terre Haute restaurant about the first or
second of July and spoke to Bowlds. When Bowlds told her
that he already had a hostess, she said, "Good, [she] didn't
want that job anyway [she] would rather be a waitress."
Bowlds answered "OK." Whereupon she gave him her
telephone number. During this conversation, Bowlds asked
her to call employees who had worked for Ally to come to
the restaurant and bar the following morning about 9
o'clock in order to clean up. That evening she contacted
Agnes Lyon, Bertha Green, Helen Sims, and Mary Miller
about the clean-up work. Also during the above conversa-
tion, Bowlds spoke to her about a party which was to be
held that Friday or Saturday night, and he indicated that
Montgomery, Miller, and she might work at that party and
that he would let them know. The following morning at 9
o'clock she, and the ones she had called, appeared and met
Bowlds. He gave them applications and told them to go
home and that they would be contacted. She did not engage
Bowlds in any conversation and nothing further was said
by Bowlds about working at the party. The next time she
was in conversation with Bowlds was November 11 or 12.
At that time, Bowlds telephoned and asked if she wanted to
come back to work. She accepted and started to work for
Respondent Builders on the following Wednesday or
Thursday.5o
Bowlds did not testify concerning the foregoing and I
credit Merk's uncontroverted testimony as to her unsuc-
cessful effort to obtain employment as a waitress when she
applied for that position in July. While she was employed
about 4 months later as a hostess-cashier, the burden of the
General Counsel's case with respect to her appears to be
that Respondent Builders delayed in employing her for
discriminatory reasons. However, in the absence of
evidence that anything untoward unionwise occurred
between Merk on the one hand, or Bowlds or any
representative of Respondent Builders, on the other hand;
and in the absence of any evidence warranting an inference
that Respondent Builders was motivated by antiunion
reasons in not hiring Merk until November 12 or 13,51 I
find that the evidence, as detailed above, does not
sr 1 am cognizant , in this connection , that Bowlds apparently changed
his mind about assigning clean-up work to Merk and others whom Merk
had contacted in his behalf, and that Bowlds never did call Merk and other
named individuals to work at a party in the Terre Haute restaurant that
Friday or Saturday , although Bowlds had indicated to Merk that he might
call them in that regard . However, these incidents, when considered in the
total context and on the basis of the entire record , raise , at best, only a
suspicion of wrongful conduct by Respondent Builders.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preponderate in favor of a finding that Respondent
Builders discriminated against Rosella Merk with respect to
her hire or tenure of employment 52
15. Pamela Pershing and Mary Ann Akers
Neither Pamela Pershing nor Mary Ann Akers appeared
as a witness in this case. The record does show that they
were both listed on the Union's letter of application, and
that the parties stipulated that Pershing was offered
employment by Respondent Builders on or about Novem-
ber 5, 1968.53 So far as appears Pershing did not accept the
offer.
In all these circumstances, including my finding hereto-
fore that the fact that an individual's name appeared on the
Union's letter of application was not a reliable index of
current availability for employment, and also including the
absence of any evidence that anything untoward unionwise
occurred between Pershing or Akers on the one hand, and a
representative of Respondent Builders on the other hand, I
perceive no warrant for finding, on the basis of the evidence
detailed above, that Respondent Builders discriminated
against either Pershing or Akers with respect to hire or
tenure of employment.
The Alleged Mass Discrimination
The General Counsel contends , in effect, that Respon-
dent Builders' conduct affecting the hire and tenure of
employment of each of the individuals discussed above was
part of a pattern of mass discrimination against employees
of Ally who were members of the Union and, consequently,
the case of each alleged discriminatee must be viewed in the
context of the events relating to the other discrimination
alleged herein.
One of the contentions advanced is that Respondent
Builders "ignored its practice of retaining the predecessor's
employees, a practice followed at the two unorganized
restaurants (namely , at Vincennes and at Evansville); and
reversed its obvious intention of pursuing the same course
at the Terre Haute restaurant on the very day on which the
union activity became apparent." I have found heretofore,
in effect, that Bowlds had made overtures to Merk, and,
through her , to others whom she could contact , about doing
clean-up work on July 3, but failed to engage them for that
special job when they appeared about 9 a.m. on July 3; and
that Bowlds also told Merk during such overtures that he
might employ her, and some named individuals who had
worked for Ally for a party that Friday or Saturday but that
nothing eventuated .54 However , these overtures , I find, fall
short of being a declaration of intention by Bowids to hire
these individuals as part of the regular staff of the Terre
Haute restaurant . And while it is stipulated that, on July 3,
52 In view of the above, I need not reach, and do not pass upon, the
contention in the brief of Respondents that "there can be no finding of
discrimination or any inference drawn with respect to mass discrimination
on the failure to hire a supervisor who had that status at the time that Ally
Foods went out of business, and she was employed by Ally Foods as a
supervisor at that time."
53 This was confirmed by letter dated December 3 from counsel for
Respondent Builders to Pershing.
54 The record fails to disclose whether such a party did materialize.
55 The case of Piasecki Aircraft Corporation, 123 NLRB 348, relied upon
Respondent Builders received by certified mail the Union's
letter of application, which included, as applicants, Merk
and the other individuals referred to above, there is no
warrant in this record for inferring that Respondent
Builders was aware of this union activity about 9 a.m. on
July 3 in advance of Bowlds' apparent change of mind as to
the clean-up work . Indeed , Bowlds testified that he received
the Union's letter around II a.m. that day. Nor does it
follow that an adverse inference based on disparate action
is warranted against Respondent Builders for failing to
employ all of Ally's employees when the Terre Haute
restaurant became a going business again after the
shutdown by Ally. This is so because Respondent Builders
acquired going businesses when it purchased the two leases
from Ally covering the restaurant and bar at Vincennes and
at Evansville, respectively, whereas it was confronted with a
clearly distinguishable situation in respect to the Terre
Haute restaurant , in that it stepped in to restore a business
which had been abandoned and shutdown by Ally and
which was not then in an operable condition.55 Moreover, it
follows, from the above, that to derive any conclusion
adverse to Respondent Builders from the evidence adduced
in support of this contention would require mounting
inference upon inference , an approach which I deem
lacking in probative force.
The General Counsel also contends that proof of
unlawful motivation as to the alleged discriminatees is to be
found in the record evidence that: (1) between June 28 and
October 31, the date of the issuance of the complaint
herein , Respondent Builders hired over 100 different
persons whereas only 7 of the 23 individuals listed on the
Union's letter of application were offered work; 56 (2) as to
a number of those hired, who had not theretofore been
employed by Ally, their applications for employment, in
evidence, show that they either had no work experience or
had work experience in unrelated areas ; 57 and (3) a pattern
of aversion to union employees is shown by Respondent
Builders' employment action vis a vis McCombs, Charles
Smith, and Wilma Cox.
With respect to (1) above, the record does show that,
between June 28 and October 31 Respondent Builders
hired about 100 persons, and that, of those appearing on the
Union's letter of application, Respondent Builders offered
employment to, and hired, prior to October 31, the 7
individuals mentioned by the General Counsel. However,
the significance of these figures is minimized when
considered in the following context: Only 23 names were
listed on the Union's letter ; yet Respondent Builders was,
as matters developed, to acquire a complement of close to
40 employees. In addition, I have heretofore found that the
listing of an individual 's name on the Union 's letter of
application was not a reliable index of his availability, at
the time, for employment. And, among those listed, neither
by the General Counsel in support of a contrary result , is distinguishable
on its facts.
56 According to the General Counsel, these seven are Allen, Hogue, and
Montgomery who were hired in July; Lyon and Crabb who were hired in
August; and Wooley and Alsop who were hired in September . He contends
further that Allen and Hogue were offered employment before Respondent
Builders received the Union 's letter of application and that Montgomery's
employment may also have come before.
51 The General Counsel does not list the employees he has in mind by
name and/or classification.
RAMADA INN 581
Joe Feuquay, Jim Fenoglio, Madeline Tharp, Richard
Carrithers, Helen Atkinson, Edgar Vermuelen, Pamela
Pershing, nor Patricia Rollings, made a personal written or
telephone application making known their availability for
employment by Respondent Builders during the period in
question, and it does not appear that it would have been
futile for them to do so.58 Further, no finding of current
availability is warranted on this record with respect to
Norma Atterson. While Atterson did apply by telephone to
Respondent Builders, she, in effect, nullified her applica-
tion by not filing a written application, as requested by
Bowlds during this telephone conversation, although it does
not appear that it would have been futile for her to do so.
In light of these findings as to the above 9 individuals, I
am satisfied, and find further, that, at best, the record
shows that 14 of the 23 listed individuals effectively
established with Respondent Builders their availability for
employment during the period between July 3 and October
31. Accordingly, since Respondent Builders was under no
duty to hire "en masse" or "as a group," the entire work
force of Ally's employees,59 and since Respondent Builders
did offer employment to, and did hire, 7 of these 14
individuals,60 I am unable to find that Respondent Builders
is vulnerable to a charge of mass discrimination on mere
numbers.61
With respect to (2) above, the significance of this
contention is also minimized by the fact that a majority of
those hired by Respondent Builders who had not thereto-
fore been employed by Ally and whose applications either
showed no work experience or unrelated experience, were
employees in such classifications as busboy, porter, and
dishwasher, wherein neither special skills nor prior
experience seems to be a prerequisite.
And finally with respect to (3) above, I have heretofore
found that nothing untoward unionwise occurred between
McCombs, Smith, or Cox on the one hand, and Bowlds or
other representatives of Respondent Builders on the other
hand. It therefore follows that, contrary to the position of
the General Counsel, no pattern of aversion to union
employees by Respondent Builders derives from its
employment action against these individuals.62
There is also testimony in the record by Eller attributing
antiunion remarks to Bowlds on July 3, between I and 2
p.m., when he met Bowlds for the first time in the lobby of
the Terre Haute installation. Eller testified, in substance, as
follows: He introduced himself as the representative of the
Union, pointed out that the Union had "a contract with the
establishment," and asked whether Bowlds would like to go
to the office and talk. Bowlds replied that "he wouldn't
have no union employees in the place," that "you couldn't
get any work out of [union employees]," and that "the
Union itself had never done anything for employers."
Whereupon, he rejoined with, "you're right on both counts,
we are concerned with the people and not the company";
58 In this connection, I credit Bowlds ' testimony over Eller's denial that
when Eller handed him the Union 's letter of application he told Eller to
have the individuals listed on the letter fill out an application.
59 See Tri State Maintenance Corp. v. N.LR. B., 409 F .2d 171 enfg. as
modified 167 NLRB 933.
60 The seven who indicated their current availability during this period
and were not hired were Emmett Martin , Bertha Green , Rosella Merk,
Charles Smith , Wilma Cox , Helen Sims , and Eleanor McCombs.
and the conversation terminated when Bowlds, in answer to
his inquiry, told him to get in touch with Curtis V. Kimmel.
Bowlds, in turn, admitted having a conversation with Eller
at the time and place mentioned. However, his version was
at variance with that of Eller. Bowlds testified, in substance,
that when Eller introduced himself, Eller gave him a
document and said that the employees listed thereon were
the ones he had to put back to work.63 To this, he replied
that the individuals should come in and fill out an
application; and he also told Eller that he would take the
document to Kimmel. Bowlds testified further that Eller
did not respond and the conversation terminated. Bowlds
specifically denied that he said to Eller that he would have
no union employees in the place or that the unions
themselves were not any good. In view of all the foregoing,
including the fact that Eller did not impress me as reporting
accurately what had occurred in this instance; the fact that
I have not credited Eller in some other respects herein; the
fact that Bowlds did thereafter hire individuals who were
on the list in the Union's letter of application; and the
further fact that Bowlds denied the attributions by Eller to
him concerning the hiring of union employees and
concerning whether the Union was good for employers, I
find that Eller did not testify credibly in imputing the above
antiunion remarks to Bowlds. Accordingly, I credit Bowlds'
version of the July 3 conversation and find that he made no
antiunion remarks to Eller at that time.
In the light of all the foregoing, and the entire record, I
am unable to infer or find that the evidence preponderates
in favor of a finding that Respondent Builders engaged in
mass discrimination in violation of Section 8(a)(3) of the
Act. It follows, therefore, that my findings heretofore as to
each alleged discriminatee, independently of the issue of
mass discrimination, are dispositive of the 8(a)(3)'s alleged
in the amended complaint.
C. The Alleged 8(a)(5) Violation
1. The allegations of 8(a)(5) in the amended
complaint
The relevant part of the amended complaint alleges, in
substance, that Respondent Builders has, since July 2,
refused to bargain with the Union as to all regular full-time
and regular part-time employees at the Terre Haute
restaurant and bar, including office clerical employees, in
that Respondent Builders (1) refused to bargain notwith-
standing that the Union was, at the time, the duly
designated exclusive bargaining representative of the
employees in the above unit; (2) withdrew recognition of
the Union as the exclusive representative in the above unit
after such recognition had been extended by it previously
on or about July 2; and (3) refused to assume the collective-
bargaining agreement as to the above employees which was
61 Tennsco Corp., 141 NLRB 296, 304.
62 In so finding, I am cognizant of the fact, as contended by the General
Counsel, that five waitresses were hired by Respondent Builders after
August 1 and that one of them , namely Sheila Booker, had no prior
experience as a waitress.
63 1 find that the document which was handed to him by Eller was the
Union's letter of application which , as heretofore found , listed 23 names.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entered into between Ally and the Union on or about May
27, 1968, for a 2-year period ending May 27, 1970.
2. The appropriate unit
The amended complaint alleges, and Respondents deny,
that all regular full-time employees and regular part-time
employees at the Terre Haute restaurant and bar, including
office clerical employees, but excluding all professional
employees, guards, and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act. This unit conforms in all respects to the unit found
appropriate by the Regional Director for Region 25 of the
Board in Case 25-RC-3674. Accordingly, I find this unit to
be appropriate herein.
3. The majority issue
The record shows, and I find, that the Union was selected
in an election conducted on or about February 21, 1968,
under the supervision of the above-mentioned Regional
Director, as the majority representative of the employees of
Ally in the above unit and was thereafter certified by said
Regional Director as the exclusive bargaining agent in said
unit.
4. The refusal to bargain
Respondents admit, in their answer, that they have
refused to bargain with the Union as the exclusive
bargaining agent of the employees in the appropriate unit,
but deny that they extended recognition to the Union as
such exclusive bargaining agent on or about July 2 and then
withdrew recognition. As to the latter, the record evidence
discloses the following: Eller, the business agent of the
Union, testified that, on the advice of Bowlds, he
telephoned Curtis V. Kimmel64 on July 3 and made a
bargaining request upon him; that he then asked Kimmel
"for a meeting to discuss our contract here and our
proposition"; that Kimmel said that "they would recognize
us and bargain with us, but he wouldn't accept the
contract"; and that Kimmel undertook to call him back the
following morning as to a date "to discuss the bargaining
and recognition," but that he never received a telephone
call from Kimmel. Kimmel testified, in respect to the
above, that he had a telephone conversation with Eller
either a day before or a few days after July 3; and that,
during this conversation, Eller told him that Eller's local
had a contract with Ally "for hiring personnel" and
inquired as to "what we were going to do here."
Whereupon, he answered that the place was shut down and
there was no contract extant between him and Eller's union
or between him and Ally, and that Ally's contract with
Eller's union "would not be binding on him.because Ally
had cancelled its lease ." To this, Eller suggested that he call
Ross P. Walker, his lawyer, and he, Kimmel, replied that he
would. Kimmel denied that he extended recognition to the
64 As already found , Kimmel is vice president and a director of
Respondent Builders and is a member of the law firm which counsels
Respondent Builders.
65 The letter indicates that copies were sent to Eller and Kimmel.
66 Walker was not clear as to their sequence , saying only that he wrote
Union through either Eller at the time or through Walker
thereafter.
The next development was a letter from Walker to
Bowlds65 and a telephone call from Walker to Kimmel66
The letter bears the date of July 9 and calls attention to the
Union's certification and the unit covered thereby, and
states that the Union is requesting that "as successor
employer . . . you meet and bargain concerning wages,
hours and other working conditions to the above unit
within the next fourteen days." As to the telephone
conversation, Walker testified, as follows: he told Kimmel
that he represented the Union in regard to the Terre Haute
restaurant and bar. Kimmel acknowledged that he,
Kimmel, represented the employer at this installation. He
then asked when they could meet concerning the collective-
bargaining agreement and Kimmel replied that he could
not meet, that the Terre Haute restaurant and bar was not
in operation, and that this was due to the fact that it was
unable to obtain a liquor license because Traum's name
was on the liquor license and he, Kimmel, was unable to
locate Traum.67 He next asked Kimmel when they could
meet as to a collective-bargaining agreement and Kimmel
replied that "it could be no sooner than 2 weeks." Kimmel's
version of this telephone conversation was that Walker
wanted to know if "we were going to bargain with him";
and that he told Walker that they were not even in business
at the time; that the place was closed down; that they could
not open the place until such time as they obtained a liquor
permit and he did not know when that would be; and that
"if the employees that we had designated . . . his agency as
a bargaining agent that we would bargain with them."
Kimmel denied that he had made an appointment to meet
with Walker some 2 weeks thereafter.
The record shows that this was followed by an exchange
of letters between Walker and Bowlds with respect to the
matter. Thus, on October 2, Walker addressed a letter to
Bowlds as manager of the Terre Haute restaurant and bar,
again alluding to the Union's certification and the unit
covered thereby, and asserting that the Union was renewing
its previous request to bargain and asking for a meeting for
that purpose within 5 days. The final sentence said, in
relevant part, "a failure to meet will be considered a
continuation of your refusal to bargain." (Emphasis sup-
plied.) The answering letter from Bowlds, which was dated
October 8, denied, in effect, that the Union was the
bargaining representative of Respondent Builders' employ-
ees at the Terre Haute restaurant and bar by virtue of the
Union's certification when Ally operated this facility, and
also refused to meet within 5 days, as requested by Walker.
As a reason for this refusal, the letter added that Bowlds
was informed by counsel that it would be a violation of the
Act to bargain with the Union concerning Respondent
Builders' employees at this facility if, in fact, the Union
does not represent a majority of those employees; and
further that, on the basis of information supplied by Eller,
the Union was not such majority representative.
I am satisfied, and find, for the reasons given hereinafter,
the letter "on or about the day of the conversation."
67 Apparently, what was involved was a change in the license, which
was owned by Respondent Builders, to show that Respondent Builders
rather than Ally was operating the restaurant and bar in question.
RAMADA INN 583
that recognition was never extended by Kimmel to the
Union either through Eller or through Walker. Thus,
although Ellis testified that during his telephone conversa-
tion with Kimmel, Kimmel said that "they would recognize
us and bargain with us," Ellis testified immediately
thereafter, in contradiction of the above, that Kimmel
indicated that he would call back the following morning as
to a date "to discuss the bargaining and recognition."
Clearly, if recognition was still to be discussed at a
subsequent meeting, it follows that the Union was not
accorded recognition during this telephone conversation.
Accordingly, in view of the above, and in light of Kimmel's
denial that he extended recognition to the Union through
Eller, I do not credit Eller's version of the telephone
conversation and find, instead, that the conversation on the
telephone was as testified to by Kimmel, and that
recognition was not extended by him to the Union during
that conversation. And as to Walker's testimony, I find
that, in the light of the entire record, it falls far short of
establishing that Kimmel extended recognition to the
Union during their telephone conversation. Thus, while
there is an implication of such recognition in Walker's
testimony that he asked Kimmel when they could meet as
to a collective-bargaining agreement and Kimmel replied
that "it could be no sooner than 2 weeks," his letter of
October 2, directed to the attention of Bowids, negates such
an implication. Thus, as indicated above, the subsequent
letter from Walker to Bowlds requesting bargaining and a
meeting for that purpose within 5 days said, "a failure to
meet will be considered a continuation of your refusal to
bargain. " (Emphasis supplied.) This quoted language, in the
absence of any mention therein of withdrawal of recogni-
tion previously granted, and in the absence of record
evidence of an express withdrawal of recognition already
granted by Kimmel or by Respondent Builders, implies,
and I so find, that such recognition was never extended and
that Respondent Builders had theretofore consistently
refused to bargain. Accordingly, I find that Kimmel's
version of what occurred during his telephone conversation
with Walker is the more reliable, and I credit that version.
5. The successorship issue and conclusions as to
the 8(a)(5) allegations
It is evident from my findings above that Respondent
Builders, like Ally, is operating a restaurant and bar
business at the same location ; is serving the same type of
food and beverages in essentially the same way; is
opei ating under the same franchise , which was at all times
the property of Respondent Builders; is utilizing the very
fixtures and equipment which Respondent Builders itself
provided to Ally under their lease arrangement; and is
employing essentially the same classifications of employees.
Notwithstanding the foregoing , Respondents contend
that there has been a substantial change in the employing
industry because ( 1) they had to purchase, without
reimbursement by Ally, equipment , food , liquor, dishes,
and silverware ; (2) they had to purchase cleaning services
for the carpeting, and had to purchase services to clean its
sewer in order to begin operation of the restaurant and bar;
(3) they did not retain the same supervisory hierarchy; (4)
they had no financial dealings with Ally either before or
after June 28, 1968, with respect to Respondents' operation
of the Terre Haute restaurant and bar; (5) they did not
purchase or, in fact, receive a substantial portion of the
physical assets, good will, name , or other trade assets of
Ally; (6) they did not purchase or take over a going concern
and did not assume any of the liabilities of a going concern;
instead Ally had ceased operating the restaurant and bar on
June 28 and had gone out of business, and there followed a
distinct hiatus before Respondents took over, but without
taking over a cohesive, identifiable group of employees who
continued to function as a separate group.
With respect to (1) and (2) above, while it is true that the
food and liquor supply of Ally were at a low ebb, and that
dishes, glassware, and silverware had to be replaced, the
latter are items which would, in the normal course of
operations, have to be supplemented or replaced from time
to time, and the former are items which would normally
require replenishing on a rather frequent basis. And as
regards equipment, I have heretofore found that the capital
equipment and fixtures of the Terre Haute restaurant and
bar had always belonged to Respondent Builders.
As to (3), while Respondent Builders did not retain Joe
Traum as manager of the Terre Haute restaurant and bar, it
replaced him with Bowlds who was then employed at its
Vincennes installation, but had served as Ally's manager of
the Terre Haute restaurant and bar during the summer of
1967 .68
As to (4), it is true that Respondents had no financial
dealings with Ally either before or after June 28, 1968, with
respect to Respondents' operation of the restaurant and
bar. However, after June 28, such dealings for the operation
of the premises by Respondent Builders as a restaurant and
bar were, in these peculiar circumstances, obviated by the
lease between Respondent Builders and Ally as to these
premises. Thus, as heretofore found, article XVIII of the
lease provided, in part, that if the lessee abandoned or
vacated the premises during the term of the lease, "the
lessor may terminate the lease and enter upon [the leased]
premises and again have, repossess and enjoy the same as if
this lease had never been made," subject to the lessor's right
of action for rent, damages and legal costs.
As to (5), since the capital equipment and fixtures were
already owned by Respondent Builders, the physical assets
of Ally consisted, in the main, of dishes, glassware,
silverware, tablecloths, napkins, and food and liquor
supplies, and, so far as appears, so much of these items as
were on hand were left behind by Ally when it closed down
the restaurant and bar. And insofar as Ally's good will,
name, or trade assets are concerned, much of this was
inherent in (1) the franchise itself which Respondent
Builders continued in effect by operating the restaurant and
bar as a franchised Ramada Inn installation,69 and in (2)
the liquor license , which was owned at all times by
Respondent Builders.
Finally, as to most of (6), while it is true that there was a
hiatus of about 16 days between the time Ally shut down
68 Traum was at the time of the hearing herein and since July 20 or 25, 69 Ally did business as "Ramada Catering Services Inc " while
employed by Respondent Builders at its restaurant and bar in Evansville Respondent Builders did business as "Ramada Inn."
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Terre Haute restaurant and bar and the time when
Respondent Builders formally reopened it, some of the
delay, it would appear, was engendered by Respondent
Builders' election not to take over as a group the employees
who had worked for Ally prior to the shutdown and to
recruit a staff of employees on its own. In any event, since a
period of interruption of 16 days in a business due to a
transfer of ownership by sale or purchase to a new owner
would, I find, not militate against a finding that the
employing industry remained the same, I am unable to find
that the interruption of the restaurant and bar business here
caused by the shutdown by Ally and the takeover thereafter
by Respondent Builders further supports the contention
that there was a substantial change in the employing
industry.
Respondents' argument, in the last mentioned conten-
tion, that they did not take over a cohesive group of
employees from Ally who continued to function as a
separate group, raises indirectly the question of whether the
fact, as found below, that the Union's majority status
among the employees at Ally did not continue once
Respondent Builders began to operate the Terre Haute
restaurant 70 militates against a finding here of a substantial
continuity of the employment industry. In this connection,
the General Counsel contends, in effect, in its brief, that the
fact that the Union's majority status among the employees
of Ally at the Terre Haute restaurant and bar did not
continue once Respondent Builders began to operate this
restaurant and bar is not controlling here if, as it also
contends, Respondent Builder discriminatorily refused to
hire its predecessor's employees.71
As I agree with the General Counsel as to his statement of
the law, deriving from the Board's decisions in the
Tallakson Ford and the Thomas Cadillac cases, and prior
cases,72 and as I have heretofore found that Respondent
Builders has not committed any violations of Section
8(a)(3) herein, I conclude, and find, that the fact that the
Union's majority status did not continue once Respondent
Builders began to operate the Terre Haute restaurant and
bar precludes a finding of a substantial continuity of the
employment industry. And, I find further that it follows
therefrom (1) that Respondent Builders is not a successor to
Ally and was under no obligation to bargain with the
Union upon request as to the employees at the Terre Haute
restaurant and bar , or to assume the collective -bargaining
agreement between the Union and Ally; and (2) that the
8(a)(5) allegations of the amended complaint have not been
sustained.
Upon the basis of the entire record, I make the following:
CONCLUSIONS OF LAW
1. Builders Realty & Mortgage Co. Inc. d/b/a Ramada
Inn, and Green Construction of Indiana, Inc., are each
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Neither Robert E. Green, nor Green Construction of
Indiana, Inc. d/b/a Builders Realty & Mortgage Co. Inc.,
nor Robert E. Green d/b/a Builders Realty & Mortgage
Co. Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
4. Respondents have neither jointly nor separately
engaged in unfair labor practices within the meaning of
Section 8(a)(5), (3) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in the case, it
is recommended that the amended complaint herein be
dismissed.
70 Eller, the business agent of the Union, testified that those listed on
the Union's letter of application plus Mary Ann Akers, whose name was
added thereto by telegram, represented the entire membership of the Union
at Ally on June 28, the day Ally closed down this operation; and that he
has made no attempt to secure membership applications from any of the
employees at this facility since that time. In view of the fact that
Respondent Builders hired only 7 of the above 24 listed individuals as of
October 31 , the date of the issuance of the complaint , and since the
employee complement at Respondent Builders consisted of about 32
employees at the time of the formal opening of this facility by Respondent
Builders and was thereafter higher, it follows, and I find , that, at no time
material herein, did the Union represent a majority of the employees of
Respondent Builders in the appropriate unit.
71 The General Counsel notes that the recent cases of Tallakson Fort,
Inc., 171 NLRB No. 67, and Thomas Cadillac, Inc., 170 NLRB No. 92,
support the proposition that successorship will be found , without a
continuation of a majority of the predecessor 's employees , only where the
successor discriminatorily refused to hire such predecessor 's employees.
72 E.g. Johnson Ready Mix Co., 142 NLRB 437; Maintenance,
Incorporated, 148 NLRB 1299; Chemrock Corporation, 151 NLRB 1074.