Roney Plaza Apartments

National Labor Relations Board - Board Decisions

Sep 27, 1977

232 N.L.R.B. 409 (N.L.R.B. 1977)

RONEY PLAZA APARTMENTS
Roney Plaza Apartments and Hotel, Motel, Restau-
rant, Highrise Employees & Bartenders Union,
Local 355, AFL-CIO. Cases 12-CA-7340, 12-
CA-7351. 12-CA-7468, and 12-RC-5169
September 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 17, 1977, Administrative Law Judge
Donald R. Holley issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions 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, 2 and conclusions of the Administrative Law
Judge, to modify his remedy 3 and to adopt his
recommended Order.4
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, Roney Plaza
Apartments, Coral Gables, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to certain credibility findings made by
the Administrative L aw 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 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We adopt, pro forma, the Administrative Law Judge's dismissal of
allegations to which no exceptions were filed.
3 In accordance with our decision in Florida Steel Corporation, 231
NI.RB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25. 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
4 Chairman Fanning adheres to his interpretation of N.LR.B. v. Gissel
Packing Co.. Inc.. 395 U.s. 575 (1969). as expressed in his dissenting opinion
in Steel Fab, Inc., 212 NLRB 363 (1974)., that in these circumstances
Respondent violated Sec. 8(aX5) on August 25. 1976. the date that it refused
to recognize and bargain with the Union supported by a majority of unit
employees. The Respondent, by thereafter engaging in serious unfair labor
practices, forfeited whatever rights it might otherwise have had to insist that
majority status be proven by other means.
232 NLRB No. 66
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge: The
charges herein were filed on September 13 and 20 and
November 10, respectively, by Hotel, Motel, Restaurant,
Highrise Employees & Bartenders Union, Local 355, AFL-
CIO, herein called the Union, and copies thereof were duly
served on Roney Plaza Apartments, herein called the
Respondent. On October 20, the Regional Director for
Region 12 issued an order consolidating cases and
complaint and notice of hearing in Cases 12-CA-7340 and
12-CA-7351 alleging violations of Section 8(a)(X) and (3)
of the National Labor Relations Act, as amended, herein
called the Act. Thereafter, on January 4, 1977, the
Regional Director issued an order directing hearing and
consolidating cases in which he indicated that certain
specified objections to an election held in Case 12-RC-
5169 and issues raised by charges filed in Case 12-CA-
7468 were to be consolidated with Cases 12-CA-7340 and
12-CA-7351 for hearing. On January 6, 1977, the Regional
Director issued an order consolidating cases and amended
complaint and notice of hearing consolidating the above
designated cases for hearing and alleging additional
violations of Section 8(a)(1) and (5) of the Act based on the
charges filed in Case 12-CA-7468. Respondent filed
answers to the complaints denying the commission of the
unfair labor practices alleged.
Pursuant to notice, a hearing was held before me at Coral
Gables, Florida, on January 31 and February I and 2,
1977. All parties appeared and were afforded full opportu-
nity to participate, to introduce and to meet material
evidence, and to engage in oral argument. Respondent and
General Counsel filed posthearing briefs which have been
carefully considered.
Upon the entire record in the case, the argument of
counsel, the briefs, and from my observations of the
witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
As admitted, Respondent is a partnership engaged in the
business of renting apartments and hotel rooms with its
office and principal place of business located at 2301
Collins Avenue, Miami Beach, Florida. During the 12
months preceding January 6, 1977, a representative period,
it had a gross volume of business in excess of $500,000 and
during the same period it purchased goods and materials,
which originated outside the State of Florida, in an amount
exceeding $50,000. It was admitted and I find that
Respondent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
I All dates herein are in 1976 unless otherwise noted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
It was admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(1) Conduct
Background
A group of the employees in Respondent's maintenance,
housekeeping, and porter departments contacted the
Union on August 20 regarding possible representation.
They were given some 40 union authorization cards and
employees Renny Suarez, Jose Vigoa, and Raul Velasquez
thereafter sought to have Respondent's employees sign the
cards.2
Before they commenced their solicitation efforts, Suarez,
Vigoa, and Velasquez discussed the technique they would
use. Velasquez credibly testified they agreed they would:
(I) tell employees they should sign to get better benefits
and vacations; (2) tell each employee everyone else had
already signed and he or she should sign; and (3) tell each
employee they would not get the benefits if they did not
sign. Since many of the employees were solicited during
working time, they were asked to say they had signed
outside the building.
The technique utilized by the employee organizers was
quite successful and the record reveals that all 29 cards
used to support the Union's claim of majority status were
obtained in 3 days, i.e., 25 on August 23; 3 on August 24;
and I on August 25. 3
While the record does not reveal precisely when
Respondent learned of the employees' interest in the
Union, it was stipulated that Respondent's general manag-
er, Terry Herman, contacted his labor counsel at the outset
of the campaign, and Attorney Allen thereafter visited the
premises and met with the general manager, the assistant
manager, and all supervisory personnel to tell them what
they could and could not lawfully do during a union
organization campaign. Among other things, Allen in-
formed those at the meeting that they could discuss their
personal feelings about the Union with employees, but
should refrain from calling them to an office for such
purpose, and should avoid promising them benefits,
threatening them, or interrogating them concerning their
union activities or sentiments.
The Union filed a petition for an election with the
Board's Regional Office on August 25 and shortly
thereafter General Manager Herman held a meeting with
Respondent's employees, during which he informed them
he had received a letter from the Union, and the
2 All three employee organizers testified at the hearing. The testimony of
Suarez and Vigoa is most unreliable. Their demeanor while on the stand was
not impressive and their denial that they engaged in activities attributed to
them by a number of credible witnesses causes me to disregard their
testimony which conflicts with the testimony of others. I am convinced
Velasquez attempted to testify truthfully.
:' See G.C. Exhs. 5 34.
4 Suarez restified the maids' lunch hour is from 12 noon to 12:30 p.m.
and that Caraballa acknowledged such at the time of the incident. Nichles
testified the maids go to lunch after 12:30 p.m. Vigoa testified he was
Respondent's position was that it did not want the Union
and would oppose it in every lawful way.
I. The solicitation situation
General Counsel contends that Respondent promulgated
and enforced an unlawful no-solicitation rule on and after
August 27 and that it promulgated and enforced an
unlawful no-access rule on and after September 17.
Additionally, he alleges that Respondent's general manag-
er unlawfully threatened employees with discharge on
September 7 and 18 if they continued to talk about the
Union. The evidence offered to support the allegations is
summarized below.
Prior to the union organizational campaign, Respondent
had no written no-solicitation rule. Herman testified
employees were permitted to discuss any subject on the job
and that Respondent did not attempt to curtail discussion
if it did not interfere with work. He cited no instances
wherein discussion had been curtailed because it interfered
with the work of employees.
Shortly after he received authorization cards, Suarez
asked Respondent's assistant chief engineer, Felix Llibre, if
he would sign a card. Llibre declined the request as he did
not know whether he was considered to be a supervisor,
and at a later time he informed Suarez that the chief
engineer, Mendez, had told him he was going to tell the
general manager the employees were interested in the
Union. About the same time, Mendez confronted Suarez
and told him he had an order from Assistant Manager
Descalzo that "we could not talk with any employee."
Herman testified that several supervisors, including
Mendez and Llibre, reported to him prior to September 7
that Suarez was interfering with the work of others by
soliciting for and discussing the Union while they were
working. Herman sought the advise of counsel as to what
he should do and was advised to do nothing as the
situation might clear up by itself. Shortly thereafter, on
September 6, Respondent's housekeeper, Maria Nichles,
experienced difficulty with Suarez while he was discussing
the Union with a maid, Sophia Caraballa. Nichles credibly
testified she heard Suarez and Caraballa talking about the
Union in the hall outside her office at 12:10 p.m. and she
went to them and asked Suarez to refrain from talking to
the maids during the time they were working. Suarez
replied he was on his lunch and Caraballa was too. Nichles
informed him Caraballa was not on her lunch and Suarez
walked away shouting the maids got no lunch - that
Maria would give the maids no lunch. 4 Nichles reported
the above-described incident to Herman, and on Septem-
ber 7 Herman, accompanied by Descalzo who interpreted
for him, reprimanded Suarez as follows: 5
present during the incident and corroborated Suarez. I credit Nichles'
version, including her testimony that Vigoa was not present. Caraballa who
was called by General Counsel gave no testimony concerning the incident. I
infer her testimony would have been adverse to General Counsel.
I Suarez testified he was told, infer aia, "there are rumors you are talking
to employees about the Union . . . if I continue this way he [Herman I was
going to let me go." Vigoa testified he was present and heard Herman tell
Suarez "he had heard a rumor he was talking about the Union in the
building and if he heard of him talking union in the building he was going to
410
RONEY PLAZA APARTMENTS
I told him that he could not and should not talk to
the employees while they were working and that he
could talk to the employees anytime he wanted to
during the lunch hour or break hours but that I did not
want him to stop my employees from working by
stopping and talking to them and harassing them and
making speeches so that they would stop what they
were doing.
* *
I told him that I wanted him to stop and desist that
practice and if he didn't I would have to take further
action.
* *
If you continue talking about the union during the
working time and disrupting these people, stopping
them from work, that you would be fired, you would be
terminated.
Without specifically fixing the time of the conversation,
:mployee Velasquez testified, without contradiction, that
Herman told him he could not propaganda in favor of the
Union during working hours. He admitted Herman
qualified the statement by saying he could engage in such
activity during lunch or breaks. The circumstances indi-
zate, and I find, that this conversation occurred on or near
September 7.
On September 15, Suarez, Velasquez, and an unnamed
porter were in one of Respondent's elevators when Karen
Miller, a maid, got on the elevator. While they were
descending, Suarez asked Miller to join the Union and
discussed the advantages with her.6 She left the elevator
and reported the incident to Nichles who in turn reported it
to Herman. The next morning, Herman, again accompa-
nied by Descalzo, sought out Suarez. When Herman asked
Suarez about the incident and Suarez evaded the inquiry,
Herman discharged him as will be discussed more fully
hereinafter.
Vigoa testified, without contradiction, that Mendez
approached him while he was in the barber shop located in
the public area of Respondent's premises on September 17
at 4:30 p.m. and told him he would have to leave because
he had instructions that none of the employees was to be in
the building after 4:30 p.m. Vigoa testified someone had
remained at the building until all employees had left from
that time until the day of the hearing.
Subsequent to its August and September attempts to
control prounion solicitation, Respondent, in October,
hired Henry Garcia who testified he was hired "to speak
about the unions." Garcia campaigned against the Union
at Respondent's premises by discussing the subject with
employees during working hours during October and
November. On occasion, employees were sent to talk to
him in an art room where tenants painted pictures. Details
of his discussions with employees which are alleged to have
violated the Act are set forth hereinafter.
be fired." I credit Herman's version and credit his testimony that Velasquez
was present but Vigoa was not.
6 Miller had previously signed a card at Suarez' urging. Suarez denied he
Analysis
In Walton Manufacturing Company, 126 NLRB 697, 698
(1960), the Board set forth the general rule to be observed
in situations involving promulgation and enforcement of
no-solicitation rules applicable to working time:
2. No-solicitation or no-distribution rules which
prohibit union solicitation or distribution of union
literature by employees during working time are
presumptively valid as to their promulgation, in the
absence of evidence that the rule was adopted for a
discriminatory purpose; and are presumptively valid as
to their enforcement, in the absence of evidence that
the rule was unfairly applied.
Subsequent to formulation of the general rule set forth
above, the Board considered the issue involving the nature
of the evidence required to establish discriminatory motive
in adopting or enforcing a no-solicitation rule in Star-Brite
Industries, Inc., 127 NLRB 1008 (1960). In that case the
Board concluded that evidence (which revealed the rule
was limited to union solicitation, was orally promulgated at
the time of the Union's appearance, was applied to two
employees who were interrogated concerning, and warned
of discipline for engaging in further distribution of union
cards) was insufficient to overcome the presumption of
validity of the rule. Subsequently, however, the Board
overruled the Star-Brite case in The Wm H. Block
Company, 150 NLRB 341, 343 (1964) where it held:
Under these circumstances [solicitation not involving
the union was permitted], the enforcement of Respon-
dent's rule against solicitation in order to preclude only
discussions concerning the Union was clearly an
unjustified restriction of the employees' right of self-
organization and violated Section 8(a)(X) of the Act.
General Counsel contends the evidence in this case reveals
that Respondent adopted its no-solicitation rule for a
discriminatory purpose and cites as authority, inter alia,
State Chemical Company, 166 NLRB 455 (1967) where the
Board reiterated the general rule and then held General
Counsel had rebutted the presumption of validity by
proving: (1) the ban was promulgated at a time of intensive
union activity and was specifically directed in the first
instance at a known union adherent; (2) the Respondent
permitted solicitations of other kinds during worktime; and
(3) the Respondent was hostile to union organizational
efforts, as reflected by its conduct found violative of
Section 8(a)(1) and (3).
Respondent contends in this case that it does not have a
no-solicitation rule and employees are permitted to talk
about anything on the job so long as their activity does not
interfere with work.
In this case, upon the advent of the union activity,
Respondent promulgated a rule which prohibited solicita-
tion on behalf of the Union and indicated the penalty for
violation was discharge. Furthermore, the rule was point-
was on the elevator at the time in question 10:30 a.m. - but Velasquez
and Miller testified he was. I credit Velasquez and Miller.
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edly brought to the attention of Suarez and Velasquez who
were known to have been actively soliciting on behalf of
the Union. While Respondent sought to prove that the
activities of Suarez in particular interfered with the work of
Caraballa and Miller, I note an§ interference with
Caraballa's work was minimal and Suarez was not shown
to have interfered with Miller's work at all as she had no
job functions to perform in the elevator. Moreover,
Herman revealed during his testimony that Suarez was
carrying out a "vendetta' against him and characterized his
solicitaion of Miller in the elevator as "harassment."
Herman was describing Suarez' solicitation efforts rather
than his interference with the work of others when he
uttered such comments. Further, while I do not pass on the
legality of Respondent conduct consisting of antiunion
solicitation while prohibiting the employees from soliciting
for the Union (all on company time), I note that
Respondent was not concerned with interference with the
work of employees which was caused by Garcia's extensive
antiunion discussions with them.7 In sum, even though I
find that Herman orally promulgated what could be a
lawful no-solicitation rule in his discussions with Suarez
and Velasquez, I find he did so for an unlawful purpose
since his intent was to interfere with the right of the
employees to engage in union activity, rather than to
prevent interference with the work of employees. Accord-
ingly, I find that the no-solicitation rule promulgated on
September 7 and thereafter enforced was promulgated and
enforced in violation of Section 8(a)(1) of the Act. As the
rule was invalid, I find that Herman's warnings to Suarez
and Velasquez that they would be disciplined if they
violated the rule also constituted violations of Section
8(a)(1) of the Act.
2. Alleged violations by Mendez
Suarez testified that Mendez told him in late August that
Assistant Manager Descalzo had said "we [employees]
cannot talk to any employee." The record does not reveal
the remainder of the conversation, if any, and no testimony
was adduced to reveal the circumstances in which the
remark was made.
Vigoa testified that on September 17 he was in the
barbershop on Respondent's premises when Mendez
appeared and told him he should leave because all
employees were supposed to be out of the building by 4:30
p.m. Vigoa protested that he was in a public area and was
permitted to remain until his hair was cut. He testified from
that time until the date of the hearing someone remained at
the building until all employees had left the building.
Mendez was not called as a witness to rebut the described
testimony.
Analysis
I find no merit in General Counsel's contention that
Mendez announced an unlawful no-solicitation rule in late
August. Obviously, Suarez lifted a comment made by
Mendez from context and the record fails to reveal the
remainder of the conversation or the circumstances at the
1 Conduct of such discussions was Garcia's full-time duty and he talked
with all of Respondent's Spanish-speaking employees which numbered
about 20 employees.
time of the utterance. I deem the fragmentary evidence
insufficient to establish the violation alleged and recom-
mend that paragraph 10(a) of the complaint be dismissed.
By refraining from calling Mendez as a witness, Respon-
dent failed to furnish any justification for Mendez'
September 17 attempt to evict Vigoa from the barbershop
after working hours. As the Board found in Tri-County
Medical Center, Inc. 222 NLRB 1089 (1976), a no-access
rule is valid only if it (1) limits access solely with respect to
the interior of the plant and other working areas; (2) is
clearly disseminated to all employees; and (3) applies to
off-duty employees seeking access to the plant for any
purpose and not just to those employees engaging in union
activity. As Respondent promulgated its no-access rule
during the union campaign immediately after discharging
Suarez for soliciting and it failed to show that Mendez'
attempt to evict Vigoa from a public and nonworking area
of the premises was justified by business reasons, I infer
that the rule was promulgated to prevent employees from
exercising their statutory rights at the premises when they
were lawfully on the premises. It follows, and I find, that
Respondent violated Section 8(a)(1) of the Act by promul-
gating and enforcing the no-access rule in question.
3. Alleged interrogation by Herman
General Counsel contends that Herman unlawfully
interrogated an employee "concerning the Union activities,
desires, and sympathies of its other employees" on
September 18. During the hearing, General Counsel
indicated that he had intended to prove the allegation
through employee Velasquez. Velasquez gave no testimony
which would reveal that such an interrogation occurred.
Consequently, at the close of the General Counsel's case, I
granted Respondent's motion to dismiss paragraph 9(b)(i).
In his brief, General Counsel contends that Herman
admitted, while Respondent was presenting its case, that he
unlawfully interrogated Velasquez. I find this contention to
be without merit. Herman testified on direct that after he
terminated Suarez on September 16 he went to Velasquez
and asked if he knew anything about an incident involving
Suarez and Miller on an elevator. Velasquez reportedly
said no. During cross-examination the following occurred:
Q. (by Mr. Cruz) In your investigation of the
incident in the elevator with Suarez and Miss Miller did
you ask Velasquez whether he had seen Renny doing
this and he denied it, was that your testimony?
A. No.
Q. What was your testimony?
A. My testimony was, did he know anything about
the incident with Renny and Karen [Miller].
Q. With Renny trying to show her a card or
whatever?
A. Right.
Analysis
Apparently, General Counsel concluded that Herman
admitted by his response to the last question in the quoted
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RONEY PLAZA APARTMENTS
testimony that he had asked Velasquez if Renny Suarez
was trying to show Miller a card in the elevator. When the
question was asked and the answer was given, I understood
Herman had merely agreed that counsel had correctly
designated the incident, not that Herman was admitting he
asked Velasquez whether he saw Renny trying to show her
(Miller) a card. As the testimony is ambiguous, I conclude
it does not establish the admission urged by General
Counsel. In my view, Herman did not engage in coercive
interrogation by merely asking Velasquez if he knew
anything about the elevator incident. The question called
for a yes or a no answer. When Velasquez answered no, the
inquiry ceased. Accordingly, I find General Counsel has
failed to prove that Respondent coercively interrogated an
employee on September 18 and recommend that the
allegation in question be dismissed.
4. The activities of Henry Garcia
General Counsel sought through employee witnesses
Vigoa, Caraballa, and Gonzalo Garcia to prove that Henry
Garcia, an individual hired by Respondent for the specific
purpose of persuading Spanish-speaking employees to vote
against the Union at the election, unlawfully interrogated,
threatened, and intimidated employees through systematic
private interviews during the month of October.
Vigoa testified Garcia asked him 5 days before the
election how he was going to vote. He asserts that he told
Garcia he was with the Union and was going to vote for it
and Garcia replied he did not think "we [it] was going to
win." Vigoa testified Garcia then asked him why they
brought the Union to the building and explained that he
was there because the owner of the building wanted such
information.
Caraballa testified Garcia spoke with her on three
occasions, i.e., October 29 and November 3 and 4. She said
he asked her why she got into the Union and told her the
Union was no good. She claims she told him she got into
the Union because the Union helps the employee and,
secondly, because she was a maid and was very much
mistreated by the housekeeper by the name of Maria. She
claims Garcia showed her a piece of paper showing how
one could buy a late model car with money they could save
and claimed he made comments indicating one could buy
steak and do things one likes to do with money which
would go to a union. Caraballa testified Garcia told her on
November 4 that if the Union lost and the Company won
the election they would throw out the employees three by
three.
Gonzalo Garcia testified that on a unspecified date he
spoke with an unidentified man in the room where tenants
paint pictures and during the conversation the man asked
why employees were asking for the Union.
Henry Garcia testified he was a lawyer and a judge in
Cuba, and is presently a law student in Miami. He testified
he was hired to discuss the Union with employees and that
he was briefed by Respondent's counsel. In general, he said
Respondent's counsel told him, "I cannot make questions,
I cannot make promise, I cannot threaten nobody." Before
he talked to employees he said he was given a booklet
which he read two or three times.
Henry Garcia admitted he spoke with Vigoa. He said 90
percent of their discussion concerned Cuban matters and
the Cuban revolution, and the balance of the time was
spent talking about unions. Garcia described the discussion
of the Union stating, "I talked to him about facts, about
the facts that the unions was doing in Cuba and now here
in the United States and the wages and salaries that the
employees got with the Union and without the union." He
specifically denied asking Vigoa how he was going to vote
or why he was trying to bring the Union into the building.
Garcia acknowledged talking to Caraballa and he
described their discussion regarding her country origin and
her religion. He did not describe any conversation with her
concerning the Union, and claimed she told him if the
Union lost the election that Roney was going to fire them
three by three.
While Henry Garcia did not admit or deny he talked to
Gonzalo Garcia, he admitted he spoke with all Respon-
dent's Spanish-speaking employees. I make no findings
regarding this incident because Gonzalo Garcia did not
identify the person who spoke with him.
Obviously, the conflicting testimony of Caraballa, Vigoa,
and Garcia necessitates a credible resolution. I credit the
employee assertions that Garcia asked them how they were
going to vote and why they had joined or supported the
Union. In addition to the fact that I was favorably
impressed by Caraballa's demeanor while she testified, I
am persuaded she and Vigoa testified truthfully regarding
the interrogations under discussion as Garcia was admit-
tedly hired by Respondent for the sole purpose of
campaigning against the Union for Respondent. Garcia's
denial that he interrogated these two employees was not
convincing since he made no attempt to relate his best
recollection of the portions of the conversations which
related to the Union. I am not convinced, and refrain from
finding, that Garcia told Caraballa Respondent would fire
the employees three by three if the Union lost the election.
By uttering such a prediction, Garcia would have been
encouraging rather than discouraging employees from
voting for the Union. Suarez and Vigoa were predicting
Respondent would fire employees if the Union lost the
election and I am convinced Caraballa heard the comment
in question from a source other than Garcia.
Analysis
General Counsel contends that Garcia unlawfully inter-
rogated employees, unlawfully threatened them, and
systematically conducted private interviews in an atmo-
sphere designed and calculated to intimidate them. I find
that Garcia asked Vigoa how he was going to vote and
asked him why they brought the Union to the building.
Additionally, I find that he asked Caraballa why she got
into the Union and told her it was no good. Through this
conduct, Respondent violated Section 8(aX 1) of the Act as
alleged. As indicated above, I find that Garcia did not tell
Caraballa Respondent would discharge employees three by
three if the Union lost the election. Additionally, I find the
record does not reveal that Garcia systematically inter-
viewed employees in an unlawful manner. Accordingly, for
the reasons stated I find General Counsel has not proved
the allegations set forth in paragraphs 9(cXii) and (iii) by a
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preponderance of the credible evidence and I recommend
that such allegations be dismissed.
B. The Discharge of Renny Suarez
Renny Suarez was hired by Respondent in April or May
1975. He worked in the maintenance department and was
supervised by Louis Mendez, chief engineer.
The record reveals Suarez was the Union's most active
membership solicitor during its campaign at Respondent.
Shortly after the cards were obtained on August 20, Suarez
asked Felix Llibre, assistant chief engineer, to sign a card.
Llibre refused to sign until he learned whether he was
considered by Respondent to be a supervisor and several
days after Suarez had solicited him he told Suarez it was
Mendez' duty to tell the Company the employees wanted
the Union.
Herman admitted he learned soon after the union
campaign began that Suarez was soliciting for the Union.
As previously indicated about September 7 Herman
warned Suarez not to solicit on company time. On
September 16, Herman terminated the employee. Admit-
tedly, part of the motivation for the discharge was the fact
that it had been reported to Herman that Suarez had
solicited employee Karen Miller in an elevator on the day
of the discharge.
Herman defended his decision to discharge Suarez by
claiming, in effect, that Suarez had been an unsatisfactory
employee throughout his employment and the Miller
incident, following his earlier reprimand concerning the
Caraballa incident, was the "straw that broke the camel's
back." Thus he testified that Mendez had terminated
Suarez about 7 months prior to September 16 because the
supervisor claimed Suarez refused to perform a work
assignment. Herman countermanded the early discharge
action and Suarez continued to work. Herman testified
that, when the union campaign began, he received reports
from numerous supervisors which indicated Suarez was
interrupting the work of others by soliciting for the Union.
While nothing was done at first, the Caraballa incident
caused Herman to reprimand the employee. About the
same time, Herman testified that word reached him that
Suarez had refused to put chemicals in the apartment's
water system. Herman called him to the office and agreed
to furnish certain safety equipment to cause the employee
to continue to perform this task, which he had regularly
performed in the past. Herman testified that, on the day
Suarez was discharged, Respondent's counsel, Norton,
conducted a meeting attended by employees and Suarez
interrupted Norton four or five times by snickering,
laughing, and carrying on.8 Finally, after the meeting with
employees, Herman received a report that Suarez, Velas-
quez, and a porter were in an elevator with Karen Miller
and that Miller became disturbed when the men spoke to
her concerning the advantages of joining the Union. 9
When this matter was reported to Herman, he had Miller
identify Suarez, Velasquez, and a porter. The next day
Herman, accompanied by Descalzo, went to talk to Suarez.
8 Suarez denied that he intended to interrupt the meeting. I credit
Herman's testimony.
9 Miller had already signed a card. Velasquez credibly testified he too
was trying to get Miller to sign a card in the elevator.
Suarez' version of the discharge conversation is that
Herman asked him if he was filling out a card of one of the
employees "of elevator boys" the day before. He claims he
asked Herman which elevator, elevator A or B, and that
Herman replied, "It doesn't matter. Is it true or false."
Suarez allegedly told him it was not true and Herman said,
"Well, I am going to throw you out now." Herman's
original version of the conversation was that he asked
Suarez if he had accosted Karen Miller in the elevator and
Suarez denied it. Herman testified he then had Descalzo
ask the same question in Spanish and Suarez again denied
it. Herman then told Suarez he was through. Suarez
testified at the hearing that he could not have solicited
Miller as claimed because he was working in the "chiller"
room with Supervisor Felix Llibre when the incident
occurred. 10
Analysis
Patently, Renny Suarez would not have been terminated
by Respondent on September 16 if he had not solicited
Miller to sign a union card in the elevator on the previous
day. While Herman indicated Suarez had engaged in
previous conduct which revealed he was not an entirely
desirable employer, his investigation of the elevator
incident prior to his September 16 discussion with Suarez
reveals he wanted to be sure of his ground before he
confronted Suarez. His testimony leaves no doubt that the
incident led to the discharge. Thus, the legality or illegality
of the discharge turns on whether the September 15
solicitation was protected or unprotected activity. As
neither Suarez nor Miller was on break or lunch at the
time, the inquiry must be narrowed to whether the
solicitation which occurred during working time was
protected activity.
In The J.L Hudson Company, 198 NLRB 172 (1972), the
Board reversed a Trail Examiner's finding that an employ-
ee guilty of worktime solicitation was lawfully terminated,
observing:
In a recent case similar to this case, the Board
reversed a Trial Examiner who had similarly found that
a discharge for worktime solicitation of union cards
was lawful, stating:
The Trial Examiner's rationale presumes that,
despite the absence of a valid rule, employers may
terminate employee organizers who engage in
work-time union solicitation even though the
activities of the employees entail no interference
with production or plant discipline. In our
opinion, the question of whether work-time
solicitation is protected or unprotected activity
cannot be determined on an absolute basis. On
the contrary, the result must turn on the delicate
balance that must be maintained between the
employee's right to engage in organizational
activity and the employer's responsibility for the
io Velasquez credibly testified he was in the elevator with Suarez when
the incident occurred. I credit Velasquez who corroborates Miller's version
of the incident.
414
RONEY PLAZA APARTMENTS
maintenance of rules necessary to efficient opera-
tion of the plant. This balance must be adminis-
tered in a fashion ensuring that reprisals are not
taken against the principal in-plant organizers
where legitimate interests of employers are not
involved.
A discharge based on work-time distribution
of cards in the absence of a valid rule is suggestive
that the employer was reacting to the protected
aspect of the employee's conduct, rather than
considerations of plant efficiency. Accordingly, in
Selwyn Shoe Manufacturing Corporation, it was
held that in the absence of such a rule it was not a
sufficient defense that the dischargee's activities
(in that case, antiunion activities) "impinged on
working time." The Board said:
"There must also be a showing that the
discharge flowed from [the employee's] abdica-
tion of her working duties rather than from the
fact that she engaged in solicitation against the
union."
Respondent has not shown in this case that Suarez'
discharge flowed from abdication of his work duties or
actual interference with the work of Miller. Indeed, the
incident which provoked the termination occurred when
both employees were "waiting to work" while they rode in
an elevator. Had that discussion concerned the weather, a
ball game, or any subject other than the Union, it is clear
that it would not have been deemed prohibited and Suarez
would not have been discharged. Moreover, the record in
this case reveals that Respondent was not concerned with
interference with the work of employees if the interference
was caused by antiunion discussion. Garcia was admittedly
hired to engage in antiunion discussion with employees
during their worktime and he did so in October and
November. Considering all the circumstances, I find that
Respondent discharged Suarez on September 16 in reprisal
for his union activity rather than in the interests of
maintaining production and discipline. Accordingly, I find
that Respondent thereby violated Section 8(a)(X) and (3) of
the Act.
C. The Alleged 8(a)(5) Violation
I. The appropriate unit
On August 25, 1976, the Union filed the petition in Case
12-RC-5169 requesting a bargaining unit including em-
ployees in the maintenance department, housekeeping
department, and porter department and excluding office
clerical employees, guards, and supervisors as defined in
the Act. The Regional Director for Region 12 issued his
Decision and Direction of Election in the representation
case on October 7 and therein found the appropriate unit
to be:
" The J. L. Hudson Company, supra, and cases cited therein.
:2 See Sec. 102.67(f) of the Board's Rules and Regulations; Detroit
Plastic Molding Co., 228 NLRB 1030 (1977).
la I note the Board may reconsider and modify its prior finding as to the
appropriate bargaining unit if it deems the present one to be incorrect.
All maintenance department, housekeeping department
and porter department employees employed by the
Employer at its apartment and hotel complex located at
2301 Collins Avenue, Miami Beach, Florida, excluding
front door employees, front desk employees, lifeguards,
office clerical employees, guards and supervisors as
defined in the Act.
After issuance of the Decision and Direction of Election,
Respondent filed a request for review with the Board and,
by telegram dated November 5, the Board ruled:
Having duly considered Employer's Request for Re-
view of Regional Director's Decision and Direction of
Election the Board concluded that a substantial issue is
raised concerning the unit placement of pool employ-
ees. However, the Board is of the opinion that such
issue can best be resolved through the challenge
procedure. Employer's Request for Review is denied
but the Decision is amended to permit pool employees
to vote under challenge. By Direction of the Board,
Member Jenkins dissenting.
An election was held on November 5 and the tally of
ballots revealed that of approximately 43 eligible voters 13
votes were cast for Petitioner, 21 votes were cast against
Petitioner, 7 ballots were challenged, and I ballot was
voided. As challenges were not determinative of the results
of the election, the eligibility of pool employees and/or
lifeguards was not determined.
Respondent contended at the instant hearing that I
should consider the issue concerning unit placement of
pool employees. I refrain from considering such issue as I
conclude the Regional Director's decision is not reviewable
by an Administrative Law Judge.'2 Being bound by the
Regional Director's unit finding, I find, as alleged, that the
bargaining unit found appropriate by the Regional Direc-
tor, which is set forth above and in paragraph 4 of the
complaint, constitutes a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.13
2. The Union's majority status
It was stipulated, and I find, that the 40 individuals
named in General Counsel's Exhibit 4 constituted the
employee complement in Respondent's maintenance,
housekeeping, and porter departments on August 25, 1976.
General Counsel placed 29 union authorization cards in
evidence to prove the complaint allegation that the Union
represented a majority of Respondent's employees in an
appropriate unit on August 25, 1976. The testimony of
employees Suarez and Vigoa reveals that 24 of the 29
persons were told before they executed their cards that the
purpose in signing the card was to cause the Union to
represent them.14 The cards executed by Suarez and Vigoa
were received when they indicated they were aware of the
purpose of the cards when they signed them. Two cards
American Broadcasting Company, a Division of American Broadcasting-
Paramount Theatres, Inc., 134 NLRB 1458 (1961).
'4 G.C. Exhs. 2-25 and 27-30. Respondent objected to the receipt of the
24 cards obtained by Suarez and Vigoa because the evidence revealed
(Continued)
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were authenticated through the testimony of Union
Representative Antonio Fernandez who testified that he
told employees Guillermo Celorio and Marta Rodriquez
that the purpose of signing a card was to obtain union
representation and that he witnessed Celorio's signature;
he also testified that Rodriquez signed her card elsewhere
and returned it to him the next day.15 The last card was
introduced into evidence through the testimony of Sophia
Caraballa, who testified she could not read the English
wording on the card but executed it to cause the Union to
represent her. I find Caraballa was sufficiently aware of the
purpose of the card and that her card is not invalidated due
to the fact that she could not read it.
Alleged Misrepresentations That Everyone Else
Had Signed
Respondent contends that the authorization cards placed
in evidence by General Counsel cannot be relied on to
prove majority status because the employee union organiz-
ers decided before soliciting cards that they would seek to
cause employees to sign by making false representations
and by threatening the employees. They adduced evidence
through Organizer Velasquez and 10 employee witnesses in
support of their claim. The testimony is summarized below.
Raul Velasquez testified that he, Suarez, and Vigoa
discussed the tactics they should utilize to cause employees
to sign authorization cards before solicitation began. He
claimed they agreed they would tell employees that (I) the
salaries would be improved and they would have more paid
vacations; (2) everyone else had signed and they should
sign; and (3) if they did not sign they would not get the
benefits.' 6 Additionally, Velasquez testified that he heard
Suarez and Vigoa state to groups of employees at various
times in the lunchroom that if they did not vote for the
Union and Respondent lost the election they would be
fired.
The record reveals that 25 of the cards relied on by
General Counsel were signed on August 23, that 3 were
signed on August 24, and I was signed on August 25.
Respondent argues strenuously that the fact that the bulk
of the signatures were obtained in I day lends much
support to its contention that the employees were induced
to sign by the employee organizers' false representation
that everyone else had already signed.
The type of false representation utilized in this case was
treated by the Board in Marie Phillips, Inc., 178 NLRB 340
(1969), where the Board stated:
We continue to believe that a showing, without more,
of a misrepresentation as to the number of others who
have signed is insufficient to invalidate a clear and
unequivocal designation card signed by an employee.
This is so because such a card must be presumed to
express the individual intent of the signer regardless of
the wishes of others.
Fernandez dated most of the cards. As the cards were clearly signed
between August 20 and 25 and were delivered to the Board's office on the
later date, I find Respondent's objection is without merit.
1S The cards are in evidence as G.C. Exhs. 32 and 33. The Rodriquez
card was objected to as she was not called as a witness to authenticate the
Where the objective facts, as evidenced by events
contemporaneous with the signing, clearly demonstrate
that the misrepresentation was the decisive factor in
causing an employee to sign a card, we shall not count
such card in determining the union's majority. How-
ever, . . where the only indication of reliance is the
signer's subsequent testimony as to his subjective state
of mind when signing the card, such showing is
insufficient to invalidate the card.
The only evidence offered by Respondent in this case
which can fairly be deemed to be objective evidence
relating to the misrepresentation issue is that evidence
which reveals all 29 card signers executed their cards
during a 3-day period, with 25 signing on I day, and
evidence which reveals the employee organizers decided
before beginning their solicitation efforts to intentionally
mislead the employees. As I read Marie Phillips, Inc., supra,
the objective evidence offered must prove rather than
suggest that employees signed cards in reliance on false
representations. While some of the employees among the
29 employees in question undoubtedly would not have
signed union authorization cards but for the false represen-
tations made to them by Suarez and Vigoa, the record in its
present state does not permit me to determine which
employees would not have signed. Accordingly, I find that
Respondent has not offered sufficient objective evidence to
invalidate the cards of employees on the sole ground that
they were told everyone else had signed. Such cards are to
be counted as evidence of majority status should such be
the only evidence offered to vitiate them;
Having generally stated by conclusions regarding the
false representations, I turn to consideration of the
testimony of the 10 employee witnesses offered by
Respondent.
Ramero Cal: Cal testified that when Suarez solicited him
he said "that everybody had already signed. To sign it so
that we could receive more benefits. That if I did not sign it
I would not receive benefits and I could lose my job." On
cross-examination, Cal testified he was told that without a
union he would have less benefits and less job security.
While Respondent contends Cal was threatened with loss
of benefits and loss of his job if he did not sign a card, I
find such was not the case and conclude that Cal's card
should be counted.
Pedro Marrero: Marrero testified he was solicited by
Suarez who told him he was the only one left to sign and, if
the card was not signed and the Union were to lose, then
"we people could lose our jobs." Marrero testified during
direct examination that Suarez did not threaten him. As
was the case with Cal, I find Suarez merely predicted that
Respondent might fire employees if the Union lost the
election and that nothing was said which would vitiate
Marrero's card, which shall be counted.
card. I find the objection without merit. Black Angus of Lauderhill, Inc., 213
NLRB 425, 430 at fn. 6 (1974).
16 Suarez and Vigoa denied that they approached employees in this
manner. The record reveals they did and I credit Velasquez' testimony
concerning their presolicitation agreement.
416
RONEY PLAZA APARTMENTS
Hector Dencas: Dencas testified Suarez called him on the
phone and he then told him he did not want to have
anything to do with anything about a union, that he did not
like anything about that Union. According to Dencas, he
was subsequently told by Suarez that he was the last to sign
and he then signed "Because everybody else had signed
cards and I didn't want to be the last one left behind."
Subsequent to the time he signed, Dencas testified he heard
Vigoa state in the presence of Velasquez, Suarez, and
several other maintenance employees whose names he
could not recall that if they did not all sign cards they
would all be out. I find the evidence reveals objectively that
Dencas signed a card because Suarez falsely represented to
him that everyone else had signed and that his card is not
to be counted.
Karen Miller: Miller testified Suarez solicited her stating,
"if I sign the card that I couldn't get fired but if I didn't I
could," and "that all the other maids had signed the card."
Miller testified she signed the card because she did not
want to get fired. I find Suarez threatened Miller when
soliciting her signature and that her card is invalid and is
not to be counted.' 7
Arturo Rodriquez, Rafael Callado, Andrew Jaras, Ansel-
mo Saytayana, Jose Mosquera, and Matias Llanos each
testified that Suarez or Vigoa Jose Mosquera, and Matias
Llanos each testified that Suarez or Vigoa solicited their
signature by stating everyone else had signed and they
should sign and they signed cards because they did not
want to be left out of the group. Callado added that he
never wanted the Union. I find this subjective testimony
insufficient to vitiate the cards and they shall be counted.
In view of the foregoing, I find that on August 25 the
appropriate bargaining unit consisted of 40 employees and
that General Counsel has proved that 26 cards should be
counted to determine the Union's majority status at that
time. Accordingly, I find the Union enjoyed majority status
in an appropriate unit on August 25.
3. The demand and refusal
By letter dated August 25, the Union advised Respon-
dent as follows:
This is to advise you that the majority of your
employees have indicated that they desire the Hotel,
Motel, Restaurant, Highrise Employees, and Bartend-
ers Union, Local 355 to be their collective bargaining
agent.
We would appreciate having a meeting with you at
your earliest convenience to discuss recognition and
conditions.
On the same day, the Union filed the petition in Case 12-
RC-5169, requesting the unit described in the section of
this Decision entitled "The appropriate unit." Respondent
1" Miller testified Suarez subsequently solicited employee Paulette
Millien by saying the same things he said to her and that Millien signed a
card. As Millien did not testify and the record does not reveal why she
signed, I refrain from invalidating her card. Respondent contends in brief
that, as several employees were shown to have been threatened while being
solicited to sign a card, I should infer that others were threatened. Absent
specific evidence. I am unwilling to engage in such speculation.
contended the appropriate unit should include, in addition
to employees in the maintenance, housekeeping, and porter
department, the front door employees, the front desk
employees, and lifeguards. As previously indicated, the
Regional Director found the unit requested by the Union
to be an appropriate unit.
At the hearing in this case Respondent contended its
refusal to bargain with the Union is justified by the fact
that the unit is inappropriate and assuming arguendo, that
the unit is appropriate, the Union has never enjoyed
majority status. For the reasons previously set forth above,
I find Respondent's contention to be without merit.
Commencing September 7, 1976, Respondent engaged in
the commission of serious unfair labor practices which
included the promulgation and enforcement of invalid no-
solicitation and no-access rules adopted during the union
campaign to deter employees in the exercise of their
Section 7 rights; it coercively interrogated employees; and
it fired the principal employee organizer on September 16
because of his union activities and sentiments. I conclude
that such conduct made the holding of a fair election
unlikely and undermined the Union's majority. Additional-
ly, I find that these unfair labor practices "are of such a
nature that their coercive effects cannot be eliminated by
the application of traditional remedies, with the result that
a fair and reliable election cannot be had." ts Finally, I find
that the possibility of erasing the effects of the unfair labor
practices and of insuring a fair rerun election by use of
traditional remedies, though present, is slight, and that
employee sentiment as reflected by their execution of
union authorization cards during the period August 23 to
25, 1976, would, on balance, be better protected by a
bargaining order, Gissel, supra at 614. For the reasons
stated, I find that Respondent violated Section 8(a)(5) of
the Act by refusing to bargain with the Union on and after
September 7, 1976.19
IV. THE OBJECTIONS
The conduct herein found to be unlawful was alleged as
objectionable conduct in paragraphs 3, 4, 5, 6, 7, and 8 of
the Union's objections. As the conduct occurred between
the time the petition was filed and the date the election was
held, I find it interfered with the employees' exercise of a
free and untrammeled choice in the election and I
recommend that the results of the election held on
November 5, 1976, be set aside. As I have recommended
issuance of a bargaining order, I recommend the petition in
Case 12-RC-5169 be dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section 1, above, have a close, intimate, and
iR N.LR.B. v. Gissel Packing Co., Inc., U.S. 575, 614 (C.A. 4, 1968).
19 Herman first promulgated and announced the invalid no-solicitation
rule on this date. In accordance with Trading Porr, Inc.. 219 NLRB 298, 301
(1971), the unlawful refusal to bargain occurred when Respondent
embarked on a clear course of unlawful conduct, which I find to have
occurred on September 7, 1976.
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
CONCLUSIONS OF LAW
I. Respondent 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. Respondent violated Section 8(aXI) of the Act by
interrogating employees concerning their union activities
and by promulgating and enforcing invalid no-solicitation
and no-access rules designed to impede employees in the
exercise of their Section 7 rights.
4. Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Renny Suarez because of his union
activities or sentiments.
5. All maintenance department, housekeeping depart-
ment, and porter department employees employed by
Respondent at its apartment and hotel complex located at
2301 Collins Avenue, Miami Beach, Florida, excluding
front door employees, front desk employees, lifeguards,
office clerical employees, guards, and 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.
6. On or about August 25, 1976, and at all material
times thereafter, the Union represented a majority of
employees in the appropriate unit, and has been the
exclusive representative of said employees for the purpose
of collective bargaining within the meaning of Section 9(a)
of the Act.
7. Respondent has refused to bargain with the Union in
violation of Section 8(a)5) of the Act since September 7,
1976.
8. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
9. Respondent has not committed any other unfair
labor practices alleged in the complaint.
REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) 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.
Having found that Respondent has unlawfully refused to
bargain collectively with the Union, I shall recommend
that it be ordered to bargain collectively with the Union,
upon request, with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment for the employees in the appropriate unit described
below. I shall also recommend that any understanding that
20 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
the parties may reach shall be embodied in a signed
agreement.
Respondent will be required to offer Renny Suarez
reinstatement to his former position of employment or, if
that position no longer exists, to a substantially equivalent
position, without prejudice to his seniority, or other rights
and privileges, dismissing, if necessary, anyone who may
have been hired to perform the work which he had been
performing. Additionally, Respondent will be ordered to
make this employee whole for any loss of earnings he may
have suffered by reason of his unlawful termination, with
backpay to be computed on a quarterly basis, making
deductions for interim earnings, and with interest to be
paid at a rate of 6 percent per annum. F W. Woolworth
Company, 90 NLRB 289 (1950); Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), enforcement denied on
different grounds 322 F.2d 913 (C.A. 9, 1963).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 20
The Respondent, Roney Plaza Apartments, Coral Ga-
bles, Florida, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities and sentiments.
(b) Threatening employees with discharge because of
their union activities or sentiments and or because they
engage in solicitation on behalf of a union under circum-
stances wherein such activity is protected by the Act.
(c) Promulgating, enforcing, or giving effect to a rule
which prohibits employees from soliciting on behalf of the
Union in circumstances wherein such rule is utilized to
deter employees in the exercise of their Section 7 rights
rather than for legitimate business purposes.
(d) Prohibiting access of employees to nonwork areas
during their nonworktime for the purpose of union
solicitation, unless such prohibition is demonstrably neces-
sary to maintain production and discipline.
(e) Discharging, threatening to discharge, or otherwise
discriminating against any employees for the purpose of
discouraging employees from engaging in concerted activi-
ty for their mutual aid or protection.
(f) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of
employment with Hotel, Motel, Restaurant, Highrise
Employees and Bartenders Union, Local 355, AFL-CIO,
as the exclusive bargaining representative of its employees
in the following appropriate unit:
All maintenance department, housekeeping department
and porter department employees employed by the
Employer at its apartment and hotel complex located at
2301 Collins Avenue, Miami Beach, Florida, excluding
front door employees, front desk employees, lifeguards,
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.
418
RONEY PLAZA APARTMENTS
office clerical employees, guards and supervisors as
defined in the Act.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization; to form, join, or assist labor organizations; to
bargain collectively through representatives of their own
choosing; and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act; or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Renny Suarez immediate and full reinstatement
to his former position or, if such position no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights previously enjoyed, and make
him whole for any loss of pay due to the violation against
him in accordance with the manner set forth in "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Upon request, bargain collectively with Hotel, Motel,
Restaurant, Highrise Employees and Bartenders Union,
Local 355, AFL-CIO, as the representative of its mainte-
nance department, housekeeping department, and porter
department employees employed at its Miami Beach,
Florida, operation, but excluding front door employees,
front desk employees, lifeguards, office clerical employees,
guards, and supervisors as defined in the Act, and, if a
contract is reached, sign same.
(d) Post at its place of business in Miami Beach, Florida,
copies of the attached notice marked "Appendix."2 '
Copies of said notice, on forms provided by the Regional
Director for Region 12, after being duly signed by
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps it is taking to comply herewith.
21 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 interrogate our employees concerning
their union activities or sentiments.
WE WILL NOT threaten employees with discharge
because of their union activities or sentiments and or
because they engage in solicitation on behalf of a union
under circumstances wherein such activity is protected
by the Act.
WE WILL NOT promulgate, enforce, or give effect to a
rule which prohibits employees from soliciting on
behalf of a union in circumstances wherein such rule is
utilized to deter employees in the exercise of their
Section 7 rights rather than for legitimate business
purposes.
WE WILL NOT prohibit access of employees to
nonwork areas during their nonworktime for the
purpose of union solicitation unless such prohibition is
demonstrably necessary to maintain production and
discipline.
WE WILL NOT discharge or otherwise discriminate
against our employees in regard to their hire or tenure,
or any term or condition of employment, because they
become members of or engage in activities on behalf of
Hotel, Motel, Restaurant, Highrise Employees and
Bartenders Union, Local 355, AFL-CIO, or any other
labor organization, or because they engage in concerted
activities protected by Section 7 of the Act.
WE WILL offer Renny Suarez immediate and full
reinstatement to his former job or, if such job no longer
exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges,
and WE WILL make him whole for any loss of earnings
he may have suffered as a result of the discrimination
against him.
WE WILL, upon request, recognize and bargain
collectively in good faith with Hotel, Motel, Restau-
rant, Highrise Employees and Bartenders Union, AFL-
CIO, for the unit described herein with respect to rates
of pay, wages, hours of work, and other terms and
conditions of employment, and WE WILL, upon request,
embody in a signed agreement any understanding
reached. The bargaining unit is:
All maintenance department, housekeeping de-
partment and porter department employees em-
ployed by the Employer at its apartment and
hotel complex located at 2301 Collins Avenue,
Miami Beach, Florida, excluding front door
employees, front desk employees, lifeguards,
office clerical employees, guards and supervisors
as defined in the Act.
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to engage in or to refrain from engaging in any or
all activities specified in Section 7 of the Act. These
activities include the right to self-organization, the right
to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.
RONEY PLAZA APARTMENTS
420