Rodeway Inn

National Labor Relations Board - Board Decisions

Apr 11, 1977

228 N.L.R.B. 1326 (N.L.R.B. 1977)

1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Motor Inns, d/b/a Rodeway Inn and Hotel,
Motel, Restaurant Employees & Bartenders
Union, Local 737, AFL-CIO. Cases 12-CA-7142
and 12-RC-4983
April 11, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On October 18, 1976, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, American Motor
Inns, d/b/a Rodeway Inn, Orlando, Florida, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election conducted
in Case 12-RC-4983, on March 1, 1976, be, and it
hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (C.A 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on March 4, 1976, the General Counsel of the
National Labor Relations Board, for the Regional Director
for Region 12, issued a complaint on May 4, 1976, against
American Motor Inns, d/b/a Rodeway Inn, herein called
the Respondent or the Company, alleging that it had
228 NLRB No. 164
engaged in certain unfair labor practices within the
meaning of Section 8(a)(1) of the Act. This case was
consolidated with a proceeding involving objections to
conduct affecting the result of an election. The Respondent
filed an answer denying the allegations of unlawful
conduct alleged in the complaint.
Pursuant to notice, a hearing was held before me in
Orlando, Florida, on July 15, 1976. Briefs were received
from the General Counsel and the Respondent on August
16, 1976, and they have been carefully considered.
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the operation of a motel
with a restaurant and lounge at Orlando, Florida. During
the 12 months preceding the hearing herein, the Respon-
dent had gross revenues in excess of $500,000, and during
the same period purchased food, beverages, and other
supplies valued in excess of $50,000 from local suppliers
who received said items directly from outside the State of
Florida. The Respondent concedes, and I find, that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel , Restaurant Employees & Bartenders
Union , Local 737, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by, on or about January 12, 1976,
and during a preelection organizational campaign, granting
its employees wage increases, additional paid holidays, free
lunches, and use of dining room facilities for eating
purposes.
A. Background
Respondent Rodeway Inn is comprised of a motel and
restaurant and is owned by the Prudential Insurance
Company. Pursuant to a contract with Prudential, the Inn
has been operated and managed by Helmsley-Spear, Inc.,
since January 1975. Also, since January 1975, American
Motor Inns , a subsidiary of Helmsley-Spear, has been the
employer of the Inn's motel and restaurant employees.
The record reflects that the Respondent's employees
sought union representation principally because of their
dissatisfaction with not having received holiday pay for
Thanksgiving Day 1975. The first union meeting was held
on December 11, 1975, and was attended by approximately
20 employees. Thereafter a representation petition was
filed on December 22, 1975, in Case 12-RC-4893. It was
received by Respondent on December 24. Pursuant to a
Stipulation for Certification Upon Consent Election
agreement approved on January 19, 1976, an election was
RODEWAY INN
conducted on March 1 , 1976. The Union lost the election
by a vote of 16-26. Objections to the election, the subject of
which proceeding is consolidated herein , were filed by the
Union on March 3, 1976.
B. The Additional Holiday Benefits
On December 11, 1975, Respondent posted a notice in
which it stated that its "holiday policy" henceforth would
be to grant the employees four paid holidays; namely,
Easter, employees' birthday, Labor Day, and Christmas. In
the first week of January 1976, the Respondent posted a
notice, the stated subject of which was "Revision of
Standard Paid Holidays" and stated that effective as of
January 1, 1976, the paid holidays would consist of New
Year's Day, Memorial Day, July 4th, Labor Day, Thanks-
giving Day, and Christmas Day.
Respondent asserts that its conduct in announcing and
implementing the increased holiday benefits in January
1976 was legally justified because its decision to grant them
was made prior to its obtaining knowledge of the
organizational campaign. In this connection, Harold
Myers, a regional director of Helmsley-Spear who exercises
managerial control over the Company's three motels in the
Orlando, Florida, area, testified that on December 18-20,
1975, he was one of the Company's three regional directors
who attended an annual meeting in New York City for the
purpose of discussing annual budgets for 16 motels
operated by Helmsley-Spear.' It was Myers' testimony that
the regional directors were instructed "by the director of
operations and the senior vice president of the Company,
in the meeting, to go back into our areas and survey the
hotels in the area, and insure that our holiday pay policy
was the same as the industry standard in the area." Myers
further testified that upon his return to Orlando on or
about December 21, 1975, he directed the manager of
Respondent Rodeway Inn, Lou Evans, to conduct a survey
of the holiday policy of the motels in the Orlando area.
Without indicating when this survey was completed, Myers
said that the survey showed that some motels were granting
five holidays, some seven, but that the majority "fell into
the 6 holiday range." It was as a result of this survey,
Myers testified, that the Respondent announced and
implemented its new holiday policy in the first week of
January 1976.
Before turning to my conclusions, some further facts are
in order. Thus, the record reflects that at the time when
Norma Schultz was hired as executive housekeeper on
September 26, 1975, she brought with her a number of
employees who had worked under her at another motel. At
the prior location these employees enjoyed certain benefits,
particularly free meals, which they did not receive when
they became employed by the Respondent. Not only did
these employees voice complaints to Schultz over the fact
that they were no longer receiving these benefits under the
Respondent, but it is undisputed that Schultz sympathized
with the employees and that she even went so far as to tell
1 These motels are located in various areas of the United States
2 Thus, employee Jean Hamble testified without contradiction, as
follows
Well, she told us that she - she told me and Thelma Lewis that she had
1327
them that they form a union2 and that she named the
Charging Party as the union they should contact. In any
event, employee Joyce Fudge testified that on the day after
the union meeting, December 12, she informed Schultz of
the fact that it had been held; and employee Jean Hanible
testified that a week after the meeting had been held, she
had a discussion with Schultz wherein she told Schultz
about the meeting and that "I had been there, and we all
employees had signed cards." Although Schultz testified
that she did not learn of the union activity until Evans told
her about it some time after Christmas, I credit the
testimony of Fudge and Hanible that they informed her of
the union meeting at the times noted above. Accordingly, I
find that Respondent was aware of the employees' union
activity prior to any decision having been made at the
meeting in New York City on December 18-20.
In any event, and assuming arguendo that Respondent
did not learn of the union activity until it received the
petition on December 24, 1976, I still would find that
Respondent violated Section 8(a)(1) by announcing and
implementing the increased vacation benefits (as well as
the free meal policy, as hereinafter discussed) in early
January 1976. Preliminarily, I find it hard to accept at face
value Myers' testimony, which was uncorroborated, unsup-
ported by any documentary evidence and largely self-
serving, to the effect that any final decision with respect to
holiday benefits was reached at the New York meeting.
Evans, who was to have made the survey, did not testify;
and even though he appears to have subsequently conduct-
ed some such survey, there is no indication whatsoever that
it was conducted prior to receipt of the representation
petition. Moreover, and in addition to the fact that there is
no showing that the Respondent had a policy of conduct-
ing such surveys in the past, it is significant that it was only
about 1 week prior to the New York meeting (i.e., on
December 11, 1975) that the Respondent posted a notice
announcing what it had just then decided would be its paid
holiday policy for the employees. Under this set of
circumstances, I find and conclude that the conferring of
the additional holiday benefits during the preelection
period in January 1976 was calculated to influence the
employees to abandon their support of the Union. By such
conduct the Respondent violated Section 8(a)(1) of the
Act.
C. The Granting of Free Lunches
On January 26, 1976 , the Respondent posted the
following notice which was addressed to "Mrs. Schultz and
Housekeeping Employees":
As promised several months ago we have worked out
the lease arrangement details of the restaurant opera-
tion . Mr. Harold Myers, Regional Supervisor of
Helmsley Spear and myself are happy we can now tell
you, you will receive your luncheon meal complimenta-
ry
-worked at Ramada Inn South , and she was behind the union there, she
got the union in there, but they kept her name out of it . And, she told
us, if we go to the union , well they can help us to get paid for the
holidays, and our free meals and more benefits there
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have instructed Mrs. Schultz on how, what and
when you can order your meal.
Am sorry it took so long, however, we hope you
enjoy this meal privilege.
In defending against the complaint's allegation that the
announcing of this benefit during the organizational
campaign and in the preelection period constituted a
violation of Section 8(a)(1) of the Act, the Respondent
asserts that the employees earlier had been put on notice
that they would be granted free meals at such time as when
it obtained a liquor license.
It is undisputed that the absence of free lunches was a
sore spot with the employees. As previously noted, a
number of the employees who came with Schultz to enter
the Respondent's employment had been accustomed to
receiving free meals from their former motel-employer.
Indeed, concerning this subject Schultz testified "it came
up in just about every staff meeting we had until the meals
were put into effect." Although employee witnesses
testified to the effect that Schultz was working on their
behalf to obtain free lunches, they did not say that she
indicated to them that this would be dependent on the
obtaining of a liquor license. Schultz testified that when she
talked to Evans about free lunches for the employees, he
advised that these would be given as soon as a liquor
license was obtained and that she so advised the employ-
ees. Assuming that Schultz did so advise the employees,
under the entire circumstances of this case I nevertheless
find that the Respondent's action in granting the benefits
in question on January 26 was intended to influence the
employees to abandon the union and to vote against it in
the forthcoming election. My reasons are as follows: In the
first place, the Respondent does not contend that it
withheld the granting of free meals to the employees at any
time prior to January 26 for economic reasons; i.e., that at
any time prior thereto any such policy was not affordable
or was not otherwise economically justified. Rather, Myers
asserted that the Respondent was not in a position to grant
the employees free meals because to have done so would
have jeopardized the Respondent's application for a liquor
license which was pending before the Florida State Liquor
Commission. His testimony in support of this assertion,
however, is largely self-serving and of a conclusionary
nature. Thus, he testified:
During the time that the subject of free meals was
brought up, we were in the process of negotiating the
lease and applying for the liquor license.
I felt that it was in the best interest of the owners and
- American Motor Inns, as lease tenant, not to modify
in any way the set of circumstances under which the
lease was structured and the liquor license applied for,
because in the State of Florida a minor alteration to a
set of circumstances can mean a very timely setback in
obtaining a liquor license. [Emphasis supplied.]
Considering the additional fact, as indeed was admitted,
that the liquor license application has no reference
3 The record reflects that the employees were in fact not denied use of the
dining room facilities , if they wished to use them , prior to the organizational
campaign Accordingly, it is recommended that the allegation with respect
to the granting of dining room facility benefits be dismissed
whatsoever to free meals for employees, I find it quite
implausible to believe that the liquor application was in
fact the real basis for the Respondent's deferment of the
free meal privileges. Indeed, the record does not even
reveal just when the liquor license was obtained or when
the Respondent's bar was opened for business. Significant-
ly, the conferring of this benefit on January 26 came just 6
days after the approval by the Regional Director of the
Stipulation for Certification Upon Consent Election. It
also followed just on the heels of, and in the context of, the
Respondent's announcement and effectuation of the
additional holiday benefits which I have heretofore found
unlawful. I find that the Respondent's action in granting
free meals to its employees on January 26 constituted
interference with the rights guaranteed employees by
Section 7 of the Act and was therefore violative of Section
8(a)(1) of the Act.3
D. The Wage Increase
Pursuant to an increase in the minimum wage law, the
minimum wage for the Respondent's employees was raised
from $2 per hour to $2.20 on January 1, 1976. At the same
time, the Respondent granted substantially proportionate
wage increases to those of its employees whose earnings at
the time were above the then minimum wage requirements.
While the increase in the minimum wage rate may have
come at a fortuitous time for the Respondent, it neverthe-
less was bound to comply. As to the proportionate
increases to the other employees, the Board has held that
under the circumstances an employer is justified in
attempting to maintain wage differentials as between its
employees. SNC Manufacturing Co., Inc., 174 NLRB 159
(1969). The record reflects that this is what the Respondent
was endeavoring to do here. I find that by granting the
wage increases of January 1, 1976, the Respondent did not
violate the Act. Accordingly, it is recommended that this
allegation be dismissed.
TV. THE OBJECTIONS
Having found that certain conduct of the Respondent
violated Section 8(a)(1) of the Act, I further find that such
conduct also interfered with the employees' exercise of a
free and untrammeled choice in the election held on March
1, 1976.4 Accordingly, I shall recommend that the said
election be set aside and that a new election be held at such
time as the Regional Director deems appropriate.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
4 Specifically, and in accordance with the findings heretofore made, I
find that Objections 4 and 5 be sustained, but that Objection 3 be overruled
RODEWAY INN 1329
VI. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices violative of Section 8(a)(1) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section 7
of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby make the
following recommended:
ORDERS
The Respondent, American Motor Inns, d/b/a Rodeway
Inn, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting benefits, such as free lunches and additional
paid holidays, to employees for the purpose of discourag-
ing them from supporting or voting for Hotel, Motel,
Restaurant Employees & Bartenders Union, Local 737,
AFL-CIO.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its facility in Orlando, Florida, copies of the
attached notice marked "Appendix." 6 Copies of said
notice on forms provided by the Regional Director for
Region 12, after being duly signed by the Respondent's
authorized representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced or
covered by any other material.
(b) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election conducted
in Case 12-RC-4983 be set aside and that a new election
be held at such time as the Regional Director deems
appropriate.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations not specifically
found herein.
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and the recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT grant our employees benefits for the
purpose of discouraging them from voting for or
supporting Hotel, Motel, Restaurant Employees &
Bartenders Union, Local 737, AFL-CIO.
WE WILL NOT in any like or related manner interfere
with our employees in the exercise of their organiza-
tional rights guaranteed under the National Labor
Relations Act, as amended.
All of our employees are free to become, or remain, or to
refrain from becoming or remaining members of the
abovenamed or any other labor organization as guaranteed
by Section 7 of the Act.
AMERICAN MOTOR INNS,
D/B/A RODEWAY INN