Sands Motel And Amm, Inc.

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 132 (N.L.R.B. 1986)

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harold Weine, David Weine, Kate Weine, Ruth
Weine, Morris S . Brent, Phillip Nusholtz, Ger-
trude Nusholtz, Sal Waldman, a co-partnership
d/b/a Sands Motel and AMM, Inc. and Bruce
M. Guthrie and Local 24, Hotel, Motel, Res-
taurant Employees , Cooks & Bartenders Union,
AFL-CIO. Cases 7-CA-19375, 7-CA-19558,
and 7-CA-19559
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 29 September 1982 Administrative Law
Judge Thomas R. Wilks issued the attached deci-
sion . Counsel for the Joint Employers (the Re-
spondents) filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended Order
as modified.3
i The Respondents assert that the judge 's resolution of credibility is
the result of bias. After a careful examination of the entire record, we are
satisfied that this allegation is without ment . Furthermore, 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 the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d
Cir 1951). We have carefully examined the record and find no basis for
reversing the findings.
2 The judge found that the Respondents unilaterally decided to con-
tract out the motel 's laundry service for discriminatory reasons, in viola-
tion of Sec. 8(a)(3) and (5)
The subject of discriminatorily motivated contracting was specifically
excluded from the Board 's decision in Otis Elevator Co., 269 NLRB 891,
892 at fn . 4 (1984) Further , such a contracting decision for the (admitted)
purpose of reducing labor costs constitutes a mandatory subject of bar-
gaining under any test enunciated in Otis, supra
2 We shall extend and apply the recommended Order and notice to
Respondent AMM, as well as to Respondent Sands . The complaint al-
leged, the parties stipulated , the judge found , and we affirm that Re-
spondent AMM and Respondent Sands are joint employers . Further, the
judge found that Donald Nusholtz, an officer and the general manager of
Respondent AMM, was an agent of Respondent Sands. Donald acted as
management advisor to his son, Robert Nusholtz, Respondent Sands'
manager ; memoranda in personnel files of Respondent Sands reveal per-
sonnel action directives attributed to Donald ; and he acted as an agent of
Respondent Sands with respect to preelection activities , in the course of
which he solicited grievances and threatened to "shut the doors" if the
employees obtained union representation. Because an officer of AMM has
acted as a management advisor to Joint Employer Sands and has also di-
rectly engaged in some of the unlawful antiunion conduct , it is clearly
appropriate to hold both Respondent Sands and Respondent AMM joint-
ly and severally liable for remedying the unfair labor practices found, and
we shall amend the Order accordingly . See Pacific Pollution Control, 227
NLRB 293 ( 1976); International Trailer Co, 133 NLRB 1527, 1530 (1961),
enfd 307 F 2d 428 , 431 (4th Cir. 1962) cert. denied 372 U S. 911 (1963)
Compare Carrier Corp. v NLRB, 768 F.2d 778, 783 (6th Cir 1985) (no
backpay liability for joint employer that was wholly innocent party)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondents,
Harold Weine, David Weine, Kate Weine, Ruth
Weine, Morris S. Brent, Phillip Nusholtz, Gertrude
Nusholtz, Sal Waldman, a co-partnership d/b/a
Sands Motel and AMM, Inc., Detroit, Michigan,
their partners, agents, successors, and assigns, shall
take the action set forth in the recommended Order
as modified, and substitute the attached notice for
that of the judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
Accordingly, we give you these assurances:
WE WILL NOT coercively interrogate our em-
ployees concerning their own and other employees'
union activities, sympathies, and desires.
WE WILL NOT threaten our employees with clo-
sure of our operations if they select a union as their
bargaining representative.
WE WILL NOT solicit and impliedly promise to
remedy employees' grievances and complaints con-
cerning terms and conditions of employment in
order to induce employees to reject union repre-
sentation.
WE WILL NOT coercively imply to our employ-
ees the futility of selecting a union as a collective-
bargaining representative by telling our employees
that we will not allow them to have a union.
WE WILL NOT restrict the movement and con-
versation of our employees for the purpose of dis-
couraging them from communicating with employ-
ee union adherents in the absence of justifiable
business reasons.
280 NLRB No. 13
SANDS MOTEL
WE WILL NOT discriminate against our employ-
ees in any way, including subcontracting bargain-
ing unit work, removing job classifications from
the bargaining unit, and rescinding any employee
work benefit in retaliation for our employees' sup-
port of and activities on behalf of Local 24, Hotel,
Motel, Restaurant Employees, Cooks & Bartenders
Union, AFL-CIO, or any other labor organization
or to erode our employees' support of their desig-
nated bargaining agent.
WE WILL NOT fail and refuse to bargain, on re-
quest, with Local 24, Hotel, Motel, Restaurant Em-
ployees, Cooks & Bartenders Union, AFL-CIO, as
the exclusive representative of employees in the ap-
propriate bargaining unit, described below in this
notice, concerning wages, hours, and other terms
and conditions of employment, including the sub-
contracting of bargaining unit work, the removal
of job classifications from the bargaining unit, and
the termination of work benefits.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL reinstate our laundry facility as it exist-
ed prior to 13 March 1981 at our facility on Michi-
gan Avenue in Detroit, Michigan.
WE WILL offer laundry employees Sharon By-
siorek and Alice McKenzie immediate and full re-
instatement to their former jobs without prejudice
to their seniority or other rights and privileges pre-
viously enjoyed and make them whole, with inter-
est, for any loss they may have suffered as a result
of the discriminatory and unilateral termination of
laundry operations.
WE WILL remove from our records any refer-
ence to the work performance of Sharon Bysiorek
as the cause of the subcontracting of our linen
service and laundry operations and notify Sharon
Bysiorek in writing that this has been done, and
that her unlawful termination will not be used as a
basis for future personnel actions against her.
WE WILL reinstate the job classifications of desk
clerks to the appropriate bargaining unit and re-
scind the assignment to them of supervisory duties
as defined in the Act.
WE WILL restore to our employees their previ-
ously enjoyed benefit of accrued vacation pay,
check cashing privileges during working time, and
pay to bargaining unit employees accrued vacation
pay due them, with interest.
WE WILL rescind the restrictions we imposed on
employees which we instituted for the purpose of
discouraging them from communicating with em-
ployee adherents of the above-named Union, in-
cluding restrictions placed on communications with
133
laundress Sharon Bysiorek, in the absence of justifi-
able business reasons.
WE WILL bargain in good faith with the above-
named Union as the exclusive representative of the
appropriate bargaining unit consisting of all full-
time and regular part-time employees, including
maids, maintenance persons, laundry employees,
clerks and desk clerks, employed by us at our 9430
Michigan Avenue, Detroit, Michigan facility, but
excluding all managers , supervisors and guards as
defined by the Act, concerning wages, hours, and
other terms and conditions of employment includ-
ing any decision to subcontract bargaining unit
work, any decision to remove job classifications
from the bargaining unit, and any decision to termi-
nate work benefits of employees.
HAROLD WEINE, DAVID WEINE,
KATE WEINE, RUTH WEINE , MORRIS
S. BRENT, PHILLIP NUSHOLTZ, GER-
TRUDE NUSHOLTZ, SAL WALDMAN, A
CO-PARTNERSHIP D/B/A SANDS
MOTEL AND AMM, INC.
A. Bradley Howell, Esq., for the General Counsel.
Sheldon G. Larkey, Esq. (Huller, Larkey, and Hoekenga),
of Southfield, Michigan, for the Respondent.
Donald F. Sugerman, Esq. (Miller, Cohen, Martens, and
Sugerman), of Detroit, Michigan, for the Union.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILxs, Administrative Law Judge. Pur-
saunt to unfair labor practice charges filed by Bruce M.
Guthrie, an individual, and Local 24, Hotel Motel, Res-
taurant Employees, Cooks & Bartenders Union, AFL-
CIO (the Union), a complaint and a consolidated amend-
ed complaint were issued by the Regional Director for
Region 7 against Harold Weine, David Weine, Kate
Weine, Morris S. Brent, Phillip Nusholtz, Gertrude Nu-
sholtz, Sal Waldman, a co-partnership d/b/a Sands
Motel (Respondent Sands), and AMM, Inc. (Respondent
AMM and together with Respondent Sands collectively
called Respondents) alleging violations of Section 8(a)(3)
and (5) of the Act consisting of various acts of employee
coercion, discriminatory termination of employment, and
discriminatory subcontracting of bargaining unit work
without bargaining about the decision to subcontract and
the effects thereof and other discriminatorily motivated
changes in terms and conditions of employment unilater-
ally effectuated without bargaining with the Union.' Re-
spondents duly filed an answer which denied the com-
mission of unfair labor practices. The trial of this matter
was held before me at Detroit, Michigan, on July 14 and
1 Respondents' names and identities and Respondent Sands' name and
identity as reflected herein are in accord with uncontested record evi-
dence and, in fact, the stipulations of the parties
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15, 1982, at which all parties were afforded the opportu-
nity to adduce relevant and material evidence, to argue
orally, and/or to submit written briefs. The General
Counsel and Respondents declined to argue orally and
explicitly indicated a preference for the filling of briefs.
Only Respondents thereafter filed such brief.
On the entire record in this case, including my obser-
vation of the witnesses and their demeanor and in con-
sideration of briefs, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Sands is a copartnership doing business
under the trade name and style of Sands Motel. Re-
spondent AMM is a corporation duly organized under,
and existing by virtue of the laws of the State of Michi-
gan. Respondent Sands maintains its only office and
place of business, a motel , at 9430 Michigan Avenue, De-
troit, Michigan, where it engaged in the providing of
lodging and related services for paying guests. AMM
maintains its principal office and place of business at
21170 Bridge Street, Southfield, Michigan, where it is
engaged in the business of providing motel management
services to various motels located in the Detroit, Michi-
gan area.
It is stipulated by the parties, and I find, that Respond-
ent Sands and Respondent AMM are joint employers, as
the Board uses that term, and that collectively Respond-
ents meet the appropriate Board jurisdictional standard
and that Respondents, collectively, are and have been at
all material times an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
The Union is and has been at all material times a labor
organization within the meaning of Section 2(5) of the
Act.
III. UNFAIR LABOR PRACTICES
A. Facts
1. Certification of bargaining agent on February 26,
1981
On February 26, 1981, the Michigan Employment Re-
lations Commission conducted an election in an appropri-
ate bargaining unit consisting of Respondent Sands'
maids, maintenance persons, laundry employees , clerks,
and desk clerks, with the result that 11 votes were cast
for the Union, 2 votes against the Union , and determina-
tive challenges which were subsequently resolved. On
April 27, 1981, the Union was certified as the exclusive
bargaining agent for that unit , and it is admitted that by
virtue of Section 9(a) of the Act the Union has been and
is the exclusive bargaining representative for those em-
ployees.
2. Precertification interference
Interest in union representation for the employees of
Respondent Sands' 47-unit motel located in the south-
west industrial -residential area of Detroit commenced in
early January 1981. The principal employee advocate of
union representation was weekday laundress Sharon By-
siorek . She had been hired in 1978 and was responsible
for the laundering, drying, and folding of the motel bed-
sheets, pillowcases, towels, and bedspreads in the laun-
dry room located in the motel basement. She worked a
6- or 8-hour day on weekdays. On weekends her duties
were performed by laundress Alice McKenzie.
Shortly after the first of the year, i.e., 1981, Bysiorek
solicited union support and obtained written union repre-
sentation authorizations from all the bargaining unit em-
ployees.2 She served as union observer at the state-con-
ducted election on February 26. Shortly after she en-
gaged in her organizing efforts, during the first or
second week in January, she was engaged in conversa-
tion concerning the Union with Respondent Sands' man-
ager , Robert Nusholtz, and Respondent Sands' head
housekeeper, Henrietta Vickstrom, both of whom are ad-
mitted supervisors and agents of Respondent Sands.
During the first week of January, at lunchtime, in the
motel , while at the same table having lunch with By-
siorek, maids Muriel Kowalczik and Bessie Lanier, refer-
ence to the Union was made by Vickstrom who said she
had heard rumors that union organizing efforts were un-
derway at the motel. Vickstrom stated that in light of the
employees' low wages they could not afford the Union's
initiation fee, and that in any event union representation
would accomplish nothing. Furthermore, Vickstrom
stated that "they," i.e., Respondent Sands, would never
permit the employees to be represented by a union.3
Vickstrom testified that she had heard about union ef-
forts from the desk clerk and that a "guy" told her that
union cards were being signed, and that she became "cu-
rious." Therefore during this conversation, she testified
that on her own initiative, she questioned the employees
and attempted to discuss what they knew about the
union organizing activities of the employees. Although
both Lanier and Kowalczik had signed cards for By-
siorek, all employees feigned ignorance.4
One of the other employees who signed a union au-
thorization card for Bysiorek was Anna Durgeck. Vick-
strom testified that Durgeck told her that she had signed
a card at the request of a red-headed maid and that she
was upset because she did not understand the substance
of the card and wondered whether it was intended for
"social security." Vickstrom testified that she thereafter
in the second week of January telephoned the three
maids who fitted the description, i.e., Bysiorek, Kowalc-
S In January there were three day maids, one afternoon maid, one or
two midnight maids, at least four desk clerks , and an mdetermmant
number of maintenance persons and porters.
3 The foregoing is based on the credible testimony of Lamer and By-
siorek . Vickstrom admitted portions of conversation and did not effec-
tively deny the balance . She was extremely uncertain , hesitant , general-
ized, and unconvincing as a witness. I thereby credit Lamer and Bysiorek
wherever there is a conflict of testimony.
4 Bysiorek is Vickstrom's niece . Kowalczik is, by marriage, also a
niece to Vickstrom
SANDS MOTEL 135
zik, and Mckenzie, and questioned them whether they
had asked Durgeck to sign a card. Kowalczik testified
that Vickstrom did not specify what kind of card, but
merely said it might be a social security card or "some
kind of a card" and that Anna was upset. Kowalczik told
her that she knew nothing of the incident. Bysiorek testi-
fied that Vickstrom in the telephone conversation said
that Durgeck had thought it was a social security card
but that in fact it was a union card; to which Bysiorek
responded with pretended ignorance. Vickstrom testified
that she had no idea that Durgeck had signed a union
card inasmuch as Vickstrom had no knowledge of the
existence of such things and had acquired no such
knowledge until the time of this trial. This is in direct
contradiction to her explicit testimony that she had been
informed that employees were signing "union cards." I
credit Bysiorek. I conclude that Vickstrom, if not Dur-
geck, was aware of not only the union organizational
effort, but that it took the form of authorization card
execution. I conclude that her questioning of the red-
headed maid was in accord with her admitted interroga-
tions about union activity and that it was therefore part
of an effort to identify those involved in such activities.
Although Vickstrom claimed to have received no in-
structions from her superiors concerning the union ac-
tivities of the employees, "curiosity" was clearly not lim-
ited to her. Robert Nusholtz testified that in the second
or third week of January, desk clerk Larry Schonseck
told him that the Union was attempting to organize the
employees. He further testified that:
In walking around the motel and talking to various
employees, I asked if they knew anything about it.
He testified that they all responded negatively. He testi-
fied that he asked Bysiorek whether she had signed a
union card and that, he "believed," she responded nega-
tively. According to Bysiorek's far more certain and de-
tailed testimony which I credit, Robert Nusholtz encoun-
tered her at her work station in the basement and asked
her whether she had received a union card and on being
told she had received it by mail and had signed and re-
turned it, he asked her if she knew how other employees
had received union cards. When she replied that she did
not, he desisted and departed.
Bessie Lanier, and to a lesser extent Muriel Kowalczik,
testified about one such early encounter in January with
Robert Nusholtz in the kitchen at the motel. While sev-
eral employees and Vickstrom were present, Robert Nu-
sholtz arrived and asked them whether they had seen
anyone with union cards, or whether they had been ap-
proached by anyone seeking union support. Kowalczik
testified that a response was made but that there was
more general discussion about a union. Lanier testified
that she disclaimed any specific knowledge of it and that
Nusholtz ended the conversation with the remark, "I
have a feeling this situation is like the Norma Rae movie,
everybody knew but yet nobody knew."
Robert Nusholtz testified that he merely asked the em-
ployees whether they had any knowledge of the Union
and, on receiving a negative response, he dropped the
subject. However, he admitted having a vague recollec-
tion of referring to the movie, "Norma Rae." I credit the
more certain and detailed recollection of Lanier in this
regard. 5
In addition to the preelection conduct of Supervisor
Vickstrom and Respondent Manager Nusholtz, the Gen-
eral Counsel also alleges an unlawful interference with
employee rights, the conduct of Respondent AMM offi-
cer and general manager, former Respondent Sands'
partnership interest trustee, brother of a Respondent
Sands' partner, husband of Respondent Sands' partner,
and father of Robert Nusholtz, i.e., Donald Nusholtz.
Shortly prior to the election, Vickstrom summoned the
day employees, except Bysiorek, to a meeting at the
motel at which they were, in her presence, addressed by
Donald Nusholtz.6 Prior to that meeting she had told at
least one employee that Donald Nusholtz was present
and conducting a meeting and that if the employees had
any complaints that it was the time to present such com-
plaints . Vickstrom admitted in her testimony that the
purpose of the meeting was for the solicitation of com-
plaints or grievances.
At the meeting, Donald Nusholtz commenced by stat-
ing, "I hear you girls are trying to get a union?"
Kowalczik responded, "I didn't start it." Donald Nu-
sholtz stated, "I'm not interested in who started it, but I
wasn 't aware that you had problems; what is the prob-
lem?" To this, the employees responded with their com-
plaints. Bessie Lanier referred to her longstanding griev-
ance concerning vacation pay.7 Lanier claimed that
union representation might obtain 3 weeks' paid vacation
for employees of 5 years' tenure. Donald Nusholtz re-
sponded that he agreed that an employee of 5 years'
tenure was entitled to 3 weeks' paid vacation and that
perhaps his secretary had "overlooked" it. It is Lannier's
uncontested testimony that in 1979 Donald Nusholtz in-
structed Lanier that Respondent Sands did not provide
an additional third week of paid vacation. The evidence
indicated that employees in fact did not receive a third
week of vacation. Lanier protested and reminded Donald
Nusholtz of that earlier telephone conversation, and he
responded that an employee of 5 years' tenure is entitled
to 3 weeks of paid vacation. He thereafter said that
maybe something would be done about it but that he
failed to understand why the employees wanted union
representation. Kowalczik testified that Donald Nusholtz
then stated that if employees obtained union representa-
tion he would have to "shut the doors" because he could
not afford to pay employees more than he was paying at
that time.8 Although this was not corroborated by
5 When asked whether he asked Lamer if she saw anyone signing
union cards, Nusholtz responded hesitantly, "No, I don' t remember
asking that question."
6 Although Bysiorek was on duty , she was not invited . Vickstrom, in
her testimony , could offer no explanation for her failure to mvite By-
storek
v Lamer had long claimed that the employees were entitled to an addi-
tional week of vacation pay, i e., 3 weeks after 5 years of employment
pursuant to an unfulfilled promise of a prior manager
8 Although Donald Nusholtz' status as agent for Respondent Sands
was not admitted, I conclude that, based on his relationship to the Sands
partnership, his admitted role of management advisor to Robert Nusholtz,
the presence of memoranda in personnel files of Respondent Sands re-
Continued
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lanier , it was not denied by Donald Nusholtz who did
not testify about this incident . Vickstrom's testimony
about the meeting was confused , uncertain , and, in part,
contradictory . I therefore discredit her generalized denial
that Donald Nusholtz threatened the employees, and I
discredit her testimony when it conflicts with Lanier or
Kowalczik.
On the day before or day after the election , Vickstrom
engaged Lanier in a conversation while they were alone
in the linen room at the motel . She asked Lanier what
the employees "really wanted," to which Lanier re-
sponded that their basic desire was to achieve seniority
rights and vacation pay and added that each employee
would not have to service as many rooms as presently
serviced bacause the Union would obtain a lower limit
on that number . Lanier testified concerning to Vick-
strom's response.
And, she said they will never let you all do that be-
cause they wouldn't let us all do that small a
number of rooms.
3. Isolation of the laundress
On February 26, Bysiorek served as the union election
observer. On March 9, Bysiorek in the course of her
work duties had placed the motel laundry into the wash
cycle in the basement washing machine, and found her-
self with 30 minutes of unoccupied time as she waited
for the next laundering machine cycle. As she had fre-
quently done in the past, she went upstairs and visited
with a day maid who was in the process of servicing a
room. These visits were done openly in full view of
Vickstrom who made no objections. On this occasion she
visited with Lanier in room 11. In room 14 were Vick-
strom, Donald Nusholtz, and a maintenance employee at-
tending to some maintenance problem . Nusholtz hap-
pened to view Bysiorek in room 11 sitting on a bed talk-
ing to Lanier who was servicing the room. Nusholtz tes-
tified that he instructed Vickstrom to order Bysiorek to
"remove herself from the room and either go on her
break or go back to work." He testified that he did so,
"Because the maid was supposed to be cleaning the room
and not socializing." There is no evidence that the maid
was inhibited in the performance of her duties by Bysior-
ek's presence . When directed to testimony that such past
behavior was knowingly tolerated, Nusholtz responded
evasively that in the past "the motel was more profita-
ble." When I asked whether he was by his answer ad-
mitting that such visiting was permitted, he responded
vaguely and hesitantly, "I really wasn't aware of people
visiting in the rooms while the maids were working in
the past." According to Nusholtz, thereafter Bysiorek
was not permitted to visit the maids while they per-
formed their work. This prohibition included Bysiorek's
breaktime as Nusholtz testified, in an apparent attempt at
explanation , that he unilaterally determined where his
vealing personnel action directives attributed to him, his past role as to
vacation policy, and Respondent Sands' ostensible sponsorship of his
preelection employee meeting , he in fact acted as agent of Respondent
Sands with respect to preelection activities.
9 A clear nonsegwtur as there is no demonstrated connection between
profits and whether a maid performs her duties in solitude
employees must take their breaks . He claimed his moti-
vation was based on economics , but gave no explanation
about what relationship existed between profits and loca-
tion of employee breaks. In the past, Bysiorek, even
during the performance of her duties, had occasion to
visit the upstairs to deliver linen and cleaning supplies. It
was never demonstrated by Respondent Sands how her
visits upstairs tended to disrupt or interfere with any
housekeeping functions. Nusholtz disclaimed any antiun-
ion motivation for his instructions , claiming that he was
unaware of Bysiorek's union sympathies. On cross-exami-
nation, however, he admitted that he became aware on
February 26 that she had been the union election observ-
er and from that fact he assumed then that at the least
she was a union supporter.
Vickstrom testified, somewhat differently, that on
March 9, Robert Nusholtz instructed her to tell Bysiorek
to "go downstaris to do her work" and "it's not her job
to be in the room with the maid, its her job to be in the
basement doing her laundry work." Thereafter Vick-
strom went to room 11 and ejected Bysiorek without in-
quiring whether she had any immediate duties to attend,
or without ascertaining whether there had been any
slowdown or disruption of the work of the maid. Ac-
cording to the testimony of Bysiorek whom I find to
have been a far more certain , detailed , responsive, con-
sistent, convincing, and more credible witness than
Vicksdtrom, she was not only ordered on March 9 by
Vickstrom to return to the basement and to refrain from
visiting with the maids upstairs any more, but also on
March 13 ordered by Vickstrom not to talk to the maids
or anyone else when they had occasion to come to the
basement. In the past, employees had frequent occasion
to visit the supply room which is located immediately
adjacent to the laundry room and in so doing exchange
pleasantries with Bysiorek, often in full view of Vick-
strom who at no previous time had voiced any objec-
tions.
Lanier credibily testified that on March 13 she had
been in the basement obtaining linen supplies and after
having spoken to Bysiorek, she was confronted by Vick-
strom who told her that she was not to talk to Bysiorek
but was to obtain her supplies and leave immediately.
Vickstrom testified that she instructed the maids to visit
with Bysiorek in the basement on those occasions when
they obtained supplies, because "they were supposed to
be working and not visiting." When reminded by counsel
for Respondents of the testimony with respect to the
prior permissive motel policy and asked, "Why the
change," she responded in a hesitant, uncertain, and con-
fused demeanor, "I don't know-I guess they [the maids]
were taking too much time." She testified that she acted
on instructions by Robert Nusholtz, which were given to
her without explanation. On direct examination Robert
Nusholtz' total testimony regarding the March 13 inci-
dent is as follows:
Q. (By Mr. Larkey) Did you ever have an occa-
sion, and I want to switch to the basement situation
to instruct anybody concerning Sharon [Bysiorek]
not talking with other employees while she was
working in the laundry?
SANDS MOTEL
A. No. There was a comment for the maids when
not cleaning a room to be in the laundry room help-
ing [her] with the laundry , either sorting or folding.
I never asked anyone to segregate her.
Q. (By Mr . Larkey) Did you ever give instruc-
tions to anybody that Sharon [Bysiorek] was-that
the maids were not to talk with Sharon when she
was down in the basement?
A. No.
There was certainly no palpable reason for Vickstrom
to have manufactured her testimony. I conclude that she
had been instructed by Robert Nusholtz to deviate from
past practice and therefore she ordered Bysiorek not to
visit with other maids on duty upstairs , nor to converse
with maids while on errand to the basement, and that she
ordered maids not to speak to Bysiorek when they vis-
ited the basement. I further conclude that such deviation
from past practice was not shown to have been premised
on any demonstrable business reason.
4. Unilateral changes
After the designation of the Union as bargaining agent
of the employees, Respondents admittedly engaged in a
series of unilateral actions which affected terms and con-
ditions of employment without prior notification to and
bargaining with the Union.
On March 13, 1981, Respondent Sands terminated the
linen service and laundry operation and laid off Bysiorek
and McKenzie. On March 15 Respondent Sands subcon-
tracted that work to an outside linen supply company. In
March the practice of permitting, during worktime, an
employee to leave the premises and cash the paychecks
of several employees was henceforth discontinued.
About April 1, 1981, Respondents announced the discon-
tinuation of all vacation pay. In May the desk clerk clas-
sification was removed from the bargaining unit and re-
classified as a supervisory position. Respondents contend
that all such actions were not discriminatorily motivated
but were based on business reasons , and were done uni-
laterally because it believed that the Union was not enti-
tled to participate in the making of such business deci-
sions . A dispute exists whether Respondents bargained
with the Union about the effects of these decisions.
With respect to the subcontracting of the laundry
work, Robert Nusholtz testified that he had entertained
the possibility of contracting with a linen supply compa-
ny to replace his own linens and laundry operation in
August 1980. He testified to several expensive ($1200) re-
pairs to the 17-year old motel washer, which had a high
breakdown predictability, and to its propensity to deposit
lint in the sewer which in turn caused three basement
floods in 1980 and to the high $6000-10,000 cost of a
new washer.' ° Nusholtz testified that in 1980 he contact-
ed several linen supply companies and inquired of costs,
and discussed the subject with Vickstrom in August
1980. When reminded by Respondents' counsel of Vick-
strom 's testimony that such conversation occurred
around Christmas 1980, he then testified that there were
two such conversations, and that he raised it again in
10 A cutoff valve was installed in 1980 to prevent future flooding
137
December because business had declined and the price of
supplies had increased . '' He could recall no details of
the conversation except that Vickstrom opined that there
was no difference in quality between the two methods.
Vickstrom's recollection was even more obscure. She
only recalled the December conversation, and only that
it contained some reference to the linen service as
"cheaper." She had no recollection of mechanical prob-
lems with the washer, and she only recalled the flooding
on counsel for Respondents' leading question.' 2
Nusholtz testified that no decision was made with re-
spect to the laundry operation because of a desire to use
up the existing ample supplies of linens and cleaning sup-
plies, and a desire to "reconcile," the past year's $1200
expenditures in laundry machine repairs. The decision to
eliminate the laundry operation occurred in March after
the Union was certified as bargaining agent. Nusholtz
testified that business had declined to the extent that he
did not need a full-time laundress 7 days a week, and
that it was more economical to contract with a linen
supply service that would provide all linens at $1.60 per
set of linen per room than to bear the cost of $4.50 per
linen set per room incurred by maintaining his own
linens and laundry operation. Nusholtz testified that
when the decision was made, a "majority" of the old
linens had become due for replacement, and that he
needed to replace about $2000 worth of linen.'s
Nusholtz' testimony with respect to the comparative
costs involved in the two different linen service systems
was conclusionary and generalized. He testified that he
no longer possessed the original notations and calcula-
tions he made with respect to the in-house laundry oper-
ation. He could not even recall what portion of the $4.50
cost was attributable to labor, nor what part was due to
the cost of water, electricity , gas, detergents, and bleach.
There was no testimony about the average linen replace-
ment cost, nor the frequency of replacement of linens,
towels, and bedsheets. The actual absolute costs of either
operation cannot be determined by the evidence adduced
in the record.14 Although there are 47 units in the Sands
motel, an indeterminant number of some of the rooms
have a turnover in occupants, two or three times a day.
On the basis of an average of 47 units, i.e., the 47 sets of
linen per day at $1.60 per set per day the linen supply
cost for a 7-day week would amount to $526.40. The
weekday laundress appears to have been paid at $3.55
per hour. Assuming that the laundresses earned the same
rate, and together worked 7 days a week, 56 hours a
week, the total labor cost would be only about $198 per
week whereas the $4.50 total cost per set per day would
11 December is the low point in the season.
12 Robert Nusholtz' pretrial affidavit indicates that he first contacted
American Linen Supply, the subcontractee , and other linen suppliers for
estimates at the end of February or early March 1981 Neither the Gener-
al Counsel nor the Respondents adduced testimony of American Linen or
any other company, however.
18 He later admitted on cross-examination that the linens do not nor.
mally all wear out at the same time at the same rate
14 Neither Respondents nor the General Counsel sought to adduce
records or other evidence concerning the expenditures for electricity,
supplies, replacement linen costs, etc. Nor was any evidence adduced re.
gardmg average washing machine investment and repair costs per year,
month, or week over the life of a machine, 1 e, 17 years or more
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount to a weekly total cost of $1480.50 per 47 sets.
Respondent Sands' average weekly gross income from
all sources in 1980 was $8145. If Robert Nusholtz' con-
clusionary testimony is truthful, an unusually high per-
centage of total income was consumed by the costs of in-
house linen maintenance, and an extraordinary high per-
centage of that cost was due to nonlabor factors. How-
ever, the General Counsel sought to adduce no rebutting
evidence about the comparative costs.
Additionally, the testimony of Robert Nusholtz reveals
that the low point of Respondent Sands' "somewhat"
seasonal sales occurs in December and that beginning in
January, sales usually improve, but that 1981 revealed a
steady decline from a December 1980 gross monthly
income level of $33,56216 to a January 1982 gross
monthly income level of $10,088.16 Thus Robert Nu-
sholtz was faced in 1981 with a January gross income of
$30,996, a February gross income of $29,592, and a
March gross income of $25,066. His testimony therefore
must be credited that at the time of the decision to
engage the services of a linen supply company, he was
faced with the beginnings of a downward trend in sales.
However, there was no evidence that Robert Nusholtz
foresaw the ultimate depths or that trend when he decid-
ed to subcontract.
In rebuttal, Bysiorek testified about her work level in
January and February 1981, i.e., 4 days a week at 6 or 8
hours a day doing laundry for 47 rooms a day "give or
take." There was no testimony, however, concerning
what her prior work hours and prior workload was like,
and no evidence concerning how many sets of linens she
laundered prior to January or thereafter. Also, there was
no evidence regarding the workload of the weekend
laundress . Accordingly, I do not find a basis to discredit
Robert Nusholtz' testimony that the need for a full-time
laundress for a full workweek declined with the decline
in income which, on its face, accords with common
sense . Although Respondents could have reduced its
costs by reducing the hours of the laundress, and neces-
sarily would have reduced its costs by using less supplies
and buying fewer replacement linens, etc., as a result of
lower linen usage, it also would have experienced at least
a comparative reduction in linen company usage , which,
according to the generalized undocumented, suspicious,
but uncontroverted testimony of Robert Nusholtz, was
substantially lower in costs than in-house linen service
costs.
Robert Nusholtz testified that the layoff of Bysiorek
was unrelated to her work performance as such because
the decision to terminate the laundry operation was
solely economically motivated. Respondents, however,
opposed Bysiorek's attempt to obtain unemployment
compensation by representing to the Michigan Employ-
ment Security Commission that Bysiorek was terminated
because her performance was so poor that Respondent
Sands was necessarily induced "to seek relief with an in-
15 The total 1980 gross income was $423,555 , with an average monthly
income of $35,397.
16 The total 1981 gross income level was $246,708, with a monthly av-
erage of $20,559
dependent contractor ." 17 Furthermore , Respondents'
personnel records concerning Bysiorek contain a memo-
randum bearing the inscription:
Protest any benefits paid to this employee. Employ-
ee flagrantly neglected her duties to the point that
employer had to seek relief with an independent
laundry contractor. Had to lay off Employee
Mgr. Donald Nusholtz
5/7/81
With respect to the termination of vacation pay, the
amended complaint alleges that on April 1, Robert Nu-
sholtz posted a sign at the motel which addressed the
employees and stated that no accrued vacation pay
would be given to employees during the course of nego-
tiations with the Union. The evidence in the record es-
tablishes that the April notice to employees posted by
Vickstrom per Robert Nusholtz' order simply stated,
"Until further notice, there will be no vacation pay." No
evidence was adduced by the General Counsel to estab-
lish that this notice was the Respondents' only communi-
cation with employees concerning vacation pay or the
suspension of vacation pay. Robert Nusholtz testified
that the motivation for Respondents' cancellation of ac-
crued vacation pay, although decided unilaterally, was
purely economic and in no way retaliatory. He testified
that as of April 1, "1 didn't have the money to pay vaca-
tion pay." Respondent Sands' gross income for March
1981 was $25,066, compared to $33,5762 for December
1980, and the 1980 monthly average of $35,297. Robert
Nusholtz testified without controversion that income had
declined to the point where he forfeited his own pay-
check in March. Thus the evidence indicates that the
suspension of vacation pay coincided with the fourth
straight month of falling revenues. At the same time sev-
eral employees were laid off.
No evidence was adduced on which I can conclude
that the suspension of vacation pay or such announce-
ment was, on April 1, premature in light of scheduled
vacations.
Concerning the decision to reclassify the desk clerks as
supervisors as of May 1, 1981, Robert Nusholtz testified
that he made that decision because he was spending only
several hours a day at the motel and "there had to be
somebody on the premises to make managerial decisions
[and] since the desk clerk was in charge of the money
and was for all practical purposes running the motel,
they were just given that prerogative." There is no evi-
dence that this was a new situation . The General Coun-
sel and Respondents stipulated that after May 1, 1981,
the desk clerks were invested with supervisory authority
as defined in the Act.
After a series of layoffs and other voluntary and invol-
untary terminations prior to May 1, Respondent Sands
employed after May I a remainder of three maids and
17 This is based on a report to that state agency which I infer from the
circumstances herein authored and signed by Robert Nusholtz and deliv-
ered to that agency I discredit Robert Nusholtz ' evasive, patently disin-
genuous testimony to the effect that he did not recall signing the docu-
ment , or that it was not read by him.
SANDS MOTEL
one maintenance man in the bargaining unit. Thus in ad-
dition to Robert Nusholtz and Henrietta Vickstrom, Re-
spondents added four desk clerks to its supervisory staff
with a result of six supervisors for four unit employees.
That proportion is, of course, not as outrageous as it ap-
pears at first impression because no four desk clerks are
on duty at the same time, Vickstrom is not on duty 24
hours a day, and Robert Nusholtz is only present several
hours a day. However, in any event, the ratio ultimately
resulting appears to be at the least one supervisor for
every unit employee, if not on occasion more, inasmuch
as it is unlikely that all unit employees worked 24 hours
a day. Other than Robert Nusholtz' generalized testimo-
ny set forth above, no explanation was set forth for the
business need for such a ratio.
Finally, with respect to the change in check-cashing
privileges, no explanation was given by Respondent
Sands.
5. Bargaining about the effects
After the certification of the Union as bargaining
agent, two bargaining sessions occurred in May and June
or July 1981 between Union Agent Jo Jacob and Re-
spondent Sands' bargaining representative , Herb Gross-
berg, a labor relations consultant. At the first meeting
the Union submitted a written list of demands, including,
inter alia, a request for reinstatement of employees, a res-
toration of the status quo for specifically named items,
including the laundry room, but none of which referred
to the desk clerk classification or check-cashing privi-
leges, and finally a proposed vacation pay schedule.
According to the cryptic testimony of Jacob, at the
first negotiation session she stated that the outside linen
supply service was not operated "as expected," i.e., there
was a shortage of linens at times. Jacob's testimony did
not set for the context of details of that conversation, nor
Grossberg's immediate response. Later, Jacob testified
that there was no discussion about subcontracting. Jacob
testified that she asked for the reinstatement of the em-
ployees named in her demand, which included therein
the laundress. Grossberg responded that Respondents
would reinstate those employees "under no circum-
stances ," and stated that Bysiorek in particular was "too
much trouble."
With respect to the subject of the desk clerks, Jacob
recalled vaguely that she made some "conversation" re-
garding the reclassification of desk clerks and that Gross-
berg said he would "get back" to her. She failed to testi-
fy about the substance of this conversation. She recalled
no discussion about the termination of check-cashing
privileges, of which she was aware, as she was the other
unilateral actions, on notification by the employees.
The second session occurred in June or July 1981.
When asked by counsel for the General Counsel whether
there was any discussion "about the issue of the laundry
service," she answered that Grossberg reiterated Re-
spondents' intention of refusing to reinstate any employ-
ee and was opposed to reinstating the status quo.
I can only conclude from the uncontradicted but skele-
tal testimony of Union Agent Jacob that Respondents re-
fused to rescind its admitted unilateral action . I cannot
conclude that the Union made any meaningful demands
139
to negotiate about the "effects" of those unilaterial ac-
tions except insofar as the effect of the linen service sub-
contract . In that respect the Union made only one
demand , i.e., that the laundresses be reinstated . 18 That
demand was refused . Thus there was a demand and re-
fusal . After that refusal it does not appear that the Union
had anything further to say about its demand, and I
cannot conclude that it had made a meaningful demand
to negotiate further on the subject.
The one major significance of Jacob's entire testimony
is her uncontradicted and therefore credited testimony
that Grossberg , an admitted agent of Respondents , stated
Respondents' position that it was opposed to Bysiorek's
reinstatement because she was "too much trouble." This
stated position is in accord with its representation to the
Michigan Employment Security Commission, and con-
tradicts Robert Nusholtz' testimony regarding the rea-
sons for Bysiorek 's termination and the reasons for the
subcontracting of the laundry operation.
B. Analysis and Conclusions
1. The 8(a)(1) allegations
Respondents in their brief points to a vast array of
gross interference that Respondent Sands did not engage
in. Certainly an evaluation of the allegations of unlawful
interference takes into account the context in which the
conduct occurs . However, coercion may be inferred
even though the conduct engaged in is not of blatant and
starkly vindictive nature.
When Vickstrom in early January interrogated em-
ployees concerning their knowledge of union activities at
the outset of union organizing efforts prior to any
demand for recognition, she did so without any justifi-
able basis, and without advising the employees why she
was interrogating them, and without giving them assur-
ances against reprisals . By impressing on the employees
the futility of organizing efforts, Vickstrom revealed that
her purpose was to discourage their efforts to obtain
union representation . Such conduct by an admitted su-
pervisor, the housekeeper, tends to interfere with the em-
ployees' rights, freely and without inhibition to engage in
union activities . Cf. Century Moving & Storage, 251
NLRB 671 (1980), enfd. in pertinent part 683 F.2d 1087
(7th Cir. 1982).
The fact that Vickstrom was Bysiorek 's aunt and relat-
ed by marriage to Kowalczik does not detract from the
fact that she was the supervisor of these employees as
well as the others to whom she was not related and, as
such, held authority over them and spoke, by virtue of
her agency status, as Respondents ' spokesperson. Noth-
ing in the circumstances of the interrogation suggests
that she was voicing to the employees merely her own
personal opinion . This conclusion is enhanced when she
forcefully and unqualifiedly told the employees that Re-
spondent Sands would not allow its employees to have
union representation . This statement dispelled any notion
that she was acting out of personal curiosity or that she
18 it is not clear whether the Union suggested that Bysiorek be rein-
stated to any other position.
140 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was voicing personal views. Moreover, that statement
itself manifested an inherent tendency to frustrate further
employee engagement in protected activities by implying
to the employees that Respondent Sands would take ac-
tions lawful or unlawful to frustrate and make futile such
efforts. Therefore I find that in early January 1981 Vick-
strom engaged in coercive conduct in violation of Sec-
tion 8(a)(1) of the Act by interrogating employees con-
cerning employees' union activities and by telling them
that Respondent Sands would not allow them to have
union representation.
I discredit Vickstrom's testimony that she acted inde-
pendently and without consultation with Manager
Robert Nusholtz regarding the union organizing efforts.
Clearly, her conduct was in accord with that of Robert
Nusholtz himself. Conversely, the fact that Robert Nu-
sholtz systematically interrogated employees about the
Union as he visited them throughout the motel enhanced
Vickstrom's image as an authoritative spokesperson as
she engaged in similar conduct. For the same reasons, I
fmd coercive and violative of Section 8(a)(1) Manager
Robert Nusholtz' January and February 1981 interroga-
tions of employees' knowledge concerning their own and
other employees' union activities, and the origin of the
union organizing campaign . No assurances against repris-
als were afforded to the interrogated employees and no
demonstrated justifiable reason existed at that time for
such interrogation nor was any such explanation given to
the employees. Indeed, it is inconceivable that any
reason existed for the need to know the source and ori-
gins of the union effort. Such questioning implicitly sug-
gests to the employee that Respondents was attempting
to ascertain the identity of responsible employees for no
other reasons bit retribution and/or the frustration of
further such efforts. The natural tendency of such con-
duct palpably tended to interfere with employees' par-
ticipation in or support of union activities.
I further conclude that because Vickstrom's telephone
interrogation of the red-headed maid was concurrent
with a systematic effort to ascertain the identity of em-
ployee union organizers that such conduct was also vio-
lative of Section 8(a)(1) of the Act.
Regarding the conduct of Respondents' manager and
Respondent Sands' agent Donald Nusholtz at the em-
ployee meeting prior to the election, I conclude that by
such conduct Respondent Sands interrogated employees
concerning their reasons for seeking union representation
and solicited employee complaints and grievances con-
cerning working conditions and implied that Respond-
ents would remedy those grievances and complaints to
discourage the employees from designating the Union as
bargaining agent . By such conduct, I conclude that Re-
spondent Sands violated Section 8(a)(1) of the Act.
Montgomery Ward & Co., 225 NLRB 112, 118 (1976), and
cases cited therein.
I further conclude that Donald Nusholtz' threat at the
aforesaid employee meeting to "shut down the doors" if
the employees obtained union representation constituted
a veiled threat inasmuch as there was no factual basis to
support the implied prediction that the Union would ada-
mantly demand economic concessions that would de-
stroy Respondent Sands' profitability. Cf. Jimmy-Richard
Co.; 210 NLRB 802, 804 (1974), enfd. 527 F.2d 803 (D.C.
Cir. 1975); Marathon Letourneau Co., 208 NLRB 213,
222-223 (1974).
The complaint alleges that Respondent Sands placed
restrictions on employees to prevent them from speaking
to a "known adherent" of the Union by the institution of
a new rule which restricted the movements and conduct
of employees to prevent conversations with laundress,
i.e., Sharon Bysiorek.
I conclude that on the basis of the foregoing conduct
found violative of the Act, Respondents were adverse to
the unionization of their employees and sought to dis-
courage such activity. I also conclude that it also evi-
dences a desire to ascertain the identity of employee
union advocates. The only purpose for such objective is
retribution. Bysiorek's adherence to the union cause
became manifested by her fuctioning as the union ob-
server at the election. In view of the absence of any jus-
tifiable business reason for deviating from past practice
and 'putting restrictions on employees calculated to pre-
vent them from coversing with Bysiorek even at times
when it did not affect the performance of work func-
tions, I conclude that the purpose of such restriction was
to punish Bysiorek because she had openly engaged in
union activities and to discourage other employees from
extending further support to the Union and thus erode
the Union's basis of support in future contract negotia-
tions. I find that by such conduct Respondents violated
Section 8(a)(1) of the Act.19
With respect to the allegation of 8(a)(1) conduct con-
cerning the posting of the notice terminating vacation
pay, the General Counsel did not establish that the
notice was phrased as alleged in the complaint or
worded to suggest to employees that they were being pe-
nalized for selecting the Union as bargaining agent. Al-
though the timing of posting is suspicious, the facts indi-
cate that Respondent Sands eliminated vacation pay be-
cause it was faced with a substantial loss of business for 4
successive months. The fact that employees were being
laid off at this time reinforced Respondent Sands' eco-
nomic defense. 2 °
The General Counsel did not establish that the em-
ployees were given no explanation for the suspension of
vacation pay or that Respondents' posting was premature
in light of vacation schedules. Therefore, I cannot con-
clude that the posting of the notice, concurrent with
other unlawful conduct, but also concurrent with an eco-
nomic downturn necessarily evident to the employees,
was calculated to give the employees the impression that
they were being penalized for union activities.
1 9 The complaint did not allege such conduct to be violative of Sec.
8(aX5) or (3)
20 The complaint alleges the suspension of vacation pay to be an
8(aX3) and (5) violation . I conclude that the General Counsel has not es-
tablished an 8(a)(3) violation. The suspension of vacation pay was admit-
tedly unilateral. See further analysis below.
SANDS MOTEL
2. The 8(a)(3) allegations
a. Cessation of laundry operations
I have concluded above that Respondent Sands was
possessed of union animus and that it sought to punish
and isolate from the other employees Sharon Bysiorek,
who was a known union adherent and who in fact was
the chief union protagonist. Respondents' proffered rea-
sons for the termination are shifting and contradictory.
Before this Agency, Respondents contend Bysiorek was
terminated as the result of a dispassionate economic deci-
sion to subtract its laundry and linen service and that
therefore her merit as a worker is unrelated to her termi-
nation . To an agency of the State of Michigan, and in its
personnel files, Respondents represent Bysiorek as a fla-
grantly negligent employee whose poor performance was
the cause of the subcontracting. To the Union, during
negotiations, Bysiorek was represented as a source of
trouble and an employee it would reinstate "under no
circumstances."
Respondent Sands contends herein that the termination
of the laundry operation was the result of an economical-
ly motivated decision. That contention is undermined by
the foregoing contradictions, and by Respondent Sands'
adamant refusal to consider reinstatement for Bysiorek
under any circumstances. The hostility to Bysiorek can
only be accounted for by her union advocacy, of which
under the full context of this case, I must infer that Re-
spondent Sands had full awareness.21 Respondent Sands
premises its economic defense on the conclusionary, gen-
eralized, and undocumented testimony of Donald Nu-
sholtz. Having reviewed his entire testimony, I find him
to be a most untrustworthy witness. His demeanor at
times was uncertain , and at times calculating and often
unresponsive. His testimony is replete with evasions, in-
consistencies, and contradictions. I therefore find his un-
supported oral testimony about the comparative costs of
in-house laundry operation and outside linen supply serv-
ice to be of probative value and I find the economic de-
fense to be pretextual. Furthermore, even if Robert Nu-
sholtz' testimony as to the enormous difference in costs
were creditable, there is no adequate cogent explanation
why Respondent Sands tolerated those differences only
until the Union was designated as bargaining agent
through the efforts of the chief laundress. The 1981 eco-
nomic downward trend was only in its incipient stages,
but the laundry termination precisely coincided with Re-
spondent Sands' unlawful efforts to isolate Bysiorek the
chief laundress.
However, assuming arguendo that evidence establishes
the existence of economic motivation as well as an an-
tiunion motivation, the question arises whether the Gen-
eral Counsel has sustained the burden of proof.
In Wright Line, 251 NLRB 1083, 1089 (1980), the
Board in reevaluating the burden of proof in dual-moti-
21 Knowledge of union activity can be inferred from the circum-
stances, e g., prevalence of rumors in the plant , size of unit, timing of the
discharge , and pretextual nature of the reason proffered for the discharge
Wiese Plow Welding Co., 123 NLRB 616 (1969); Famet, Inc., 202 NLRB
409 (1973); Tayko Industries, 214 NLRB 84, 99 (1974), Huntington Hospi-
tal, 229 NLRB 253 (1977), Speed-O-Lith Offset Co., 241 NLRB 928
(1979); Baja's Place, Inc, 263 NLRB 881 (1982).
141
vation cases had recently explicated and announced the
following causation test for cases alleging violations of
Section 8(a)(3) or (1) turning on employer motivation:
First, [the Board] shall require that the General
Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a
"motivating factor" in the employer's decision.
Once this is established , the burden will shift to the
employer to demonstrate that the same action
would have taken place even in the absence of the
protected activity.
I conclude that the General Counsel has adduced suffi-
cient evidence in the nature of antiunion animus , shifting
and contradictory proffered reasons for the termination
of Bysiorek , and the timing of adverse action to support
an inference that Respondent 's desire to punish Bysiorek
for her union activities and to erode support for the
Union was at least a motivating factor . I conclude that
the General Counsel had sustained the burden of estab-
lishing a prima facie case of discriminatory termination,
and subcontracting , and that Respondent had failed to
adduce sufficient cogent and probative evidence that By-
siorek would have been terminated and the laundry work
subcontracted regardless of the existence of an inferred
unlawful motivation . I therefore conclude that the Gen-
eral Counsel has sustained the burden of proof and find
that Respondent Sands violated Section 8 (a)(1) and (3) of
the Act by subcontracting unit work to retaliate against
the chief employee union adherent and to erode employ-
ee support of the designated bargaining agent . I further
conclude that the termination of the weekend laundress
was the necessary result of the discriminatory subcon-
tracting , and that therefore the termination of Alice
McKenzie was violative of Section 8(a)(1) and (3) of the
Act.
b. Elimination of work benefit
With respect to the elimination of check-cashing privi-
leges, such conduct, like the other unilateral changes,
came on the heels of the Union's designation as bargain-
ning agent and was instituted for no proffered business
reason. Accordingly, I conclude that in light of Re-
spondent's other unfair labor practices, such conduct was
discriminatorily motivated and was violative of Section
8(a)(1) and (3) of the Act.
c. Reclassification of desk clerk position
With respect to the reclassification of desk clerks to
supervisory positions , this conduct, coupled with the
subcontracting of the laundry operation and coinciding
with economic and other layoffs , effectuated a decima-
tion of the unit . The evidence discloses no justifiable
reason for such conduct . I conclude that the General
Counsel has proven a prima facie case of discriminatory
intent by establishing union animus , and timing, and that
Respondent was obliged to demonstrate economic justifi-
cation for such conduct and that it failed to do so.
Therefore I find that by such conduct Respondent violat-
ed Section 8(a)(1) and (3 ) of the Act.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, I conclude that under the circumstances of
this case, by its unilateral conduct, Respondent has en-
gaged in conduct which is inherently destructive of em-
ployee interests , e.g., subcontracting of unit work and re-
arrangement of unit employees , suspension of employee
privileges immediately following the employees ' designa-
tion of the Union as bargaining agent, and therefore that
Respondent was obliged to demonstrate that such con-
duct was economically motivated. Great Dane Trailers,
388 U.S. 26, 33-34 (1967); Smyth Mfg. Co., 247 NLRB
1139, 1169-1171 (1980). Respondent having failed to
adduce cogent probative evidence of justifiable business
reasons, I conclude that the General Counsel has estab-
lished that Respondent violated Section 8 (a)(3) of the
Act by the above unilateral conduct.22
3. The 8(a)(5) allegations
The 8(a)(5) allegations of the complaint are based on
the theory of unilateral changes of terms and conditions
of employment without having notified and bargained
with the Union.
Section 8(d) of the Act provides that "to bargain col-
lectively is the performance of the mutual obligation of
the employer and the representative of the employees to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions
of employment. . . ." Although the parties are free to
bargain about any lawful subject, the obligation does not
extend to all subjects, nor to all areas of interest or con-
cern to the parties, nor to all matters on which agree-
ment may directly or indirectly effectuate industrial
peace . The statutory language imposing the bargaining
duty has been defined and understood to limit the range
of obligatory bargaining to subjects of "wages, hours,
and other terms and conditions of employment." NLRB
v. Borg-Warner Corp., 365 U.S. 342, 349 (1958). The limi-
tation neccessitates that "only issues that settle an aspect
of the relationship between the employer and the em-
ployees" are to be mandated as topics of bargaining.
Allied Chemical Workers Local I v. Pittsburgh Glass Co.,
404 U.S. 157, 178 (1971).
Section 8(a)(5) and (1) of the Act obliges an employer
to notify and consult with the designated exclusive bar-
gaining agent concerning changes in wages, hours, and
other terms and conditions of employment NLRB v.
Katz, 369 U.S. 736 (1962). On notice of such proposed
change, the employees' bargaining agent must act with
due diligence in requesting bargaining , otherwise it may
be deemed to have waived its right to bargaining. City
Hospital of East Liverpool, Ohio, 234 NLRB 58 (1978);
Citizens Bank of Willmar, 245 NLRB 196 (1979). Ac-
cordingly, it is essential to an 8(a)(5) theory of violation
that the managerial decisions involved in this case con-
cerned mandatory bargaining subjects.
Respondent Sands takes the position that the unilateral
actions that it had engaged in were not mandatory bar-
gaining subjects , but were rather exercises of managerial
prerogative in running a business to which the Union has
ss I exclude from their conclusion this conclusion the cessation of ac-
crued vacation pay for the reasons discussed above.
no right to participate as a "partner ." Respondent relies
on First National Corp. v. NLRB, 452 U.S. 666 (1981).
The Supreme Court, in deciding First National Corp.,
concluded that an employer's decision to shut down part
of its business solely for economic reasons was not a
mandatory subject of bargaining. It did so after it had
concluded that the harm that might be done to an em-
ployer's need to operate freely outweighed the benefits
that might occur from a union's participation in the for-
mulation of that decision. In the discussion of the issue in
that case, the Court limited the nature of mandatory bar-
gaining subjects and concluded that to be such, the sub-
ject must be one which is "amenable to resolution
through the bargaining process." The Court observed
(452 U.S. at 678-679):
Management must be free from the constraints of
the bargaining process to the extent essential for the
running of a profitable business. It also must have
some degree of certainty beforehand about when it
may proceed to reach decisions without fear of later
evaluations labeling its conduct an unfair labor
practice. Congress did not explicitly state what
issues of mutual concern to union and management
it intended to exclude from mandatory bargaining.
Nonetheless, in view of an employer's need for un-
encumbered decision making, bargaining over man-
agement decisions that have a substantial impact on
the continued availability of employment should be
required only if the benefit, for labor-management
relations and the collective-bargaining process, out-
weighs the burden placed on the conduct of the
business.
The Court then construed the decision in Fibreboard
Corp. v. NLRB, 379 U.S. 203 (1964), as having implicity
involved the same analysis.
In Fibreboard, it was held that an employer was
obliged to bargain about the subcontracting of unit work.
In First National Corp., the Court observed that in Fibre-
board the subject matter, i.e., a desire to reduce labor
costs is a matter "peculiarly suitable for resolution within
the collective-bargaining framework." The Court distin-
guished the facts in First National Corp. from Fibreboard
and pointedly instructed about the limitations of its hold-
ing, i.e., the employer therein had no intention to replace
employees or to relocate the operation, the employer's
purpose was to reduce economic losses, the economic
losses were attributable to factors over which the union
had no control , and the union was not designated as bar-
gaining agent until after the employer's economic adver-
sities arose. The Court finally equated the partial closing
of business to a "significant change in the employer's op-
erations, a change not unlike opening a new line of busi-
ness or going out of business entirely." In a footnote
caveat, the Court further instructed that it was not inti-
mating its view concerning other types of managerial de-
cisions including, in part , work relocation , citing, inter
alia, Weltronic Co. v. NLRB, 419 F.2d 1120 (6th Cir.
1969), wherein such decision was held to be a mandatory
bargaining subject. The Court stated that these other
SANDS MOTEL
types of managerial decisions "are to be considered on
their particular facts." 452 U.S. at 686.
Prior to the aforesaid decision by the Supreme Court
in First National Corp., it could be argued that the law
was well settled on the mandatory bargaining nature of a
decision to relocate unit work, e.g., Weltronic, supra. In
view of the Court's own self-expressed limitations of the
First National Corp., decision, I conclude that Fibreboard
and Weltronic and their progency remain controlling.
However, if the Court intended to apply a balancing test
with respect to all cases of unit work relocation deci-
sions, that test applied to the fact herein led me to con-
clude that Respondent's decision was a mandatory sub-
ject of bargaining . The facts are clearly distinguishable
from First National Corp. The prime issue herein is the
cost of labor, a factor manifestly within the control of
the Union. Respondents herein was not changing the
scope or direction of his enterprise. The linen service re-
mained essential to its business . The work of the desk
clerk remained, but was removed from the unit by un-
necessary assignment of supervisory authority to the
desk clerks. The elimination of bargaining unit work
clearly impacted working conditions as did, to a lesser
extent , the suspension of check-cashing privileges. Re-
spondents' economic adversity of 1981 was only in its be-
ginning stages . There is no evidence of urgency to any
of the unilateral actions, and they were clearly amenable
to negotiations. Moreover, as I have concluded above,
the unilateral actions were, unlike First National Corp.,
discriminatory motivated and not shown to have been ef-
fectuated for economic reasons except the cessation of
vacation pay, and all were coupled with other unfair
labor practices. The Court carefully distinguished cases
involving other unfair labor practices, citing, 452 U.S. at
684, inter alia, Smyth Mfg., supra, which encompassed
discriminatory, unilateral subcontracting.
Accordingly, I conclude that the relocation of unit
work effectuated by subcontracting and job reclassifica-
tion and the suspension of accrued vacation pay and
check-cashing privileges constituted mandatory subjects
of bargaining , and that by failing to notify and provide
the Union with an opportunity to bargain over these
matters , Respondents violated Section 8(a)(5) and (1) of
the Act.
In view of the factual finding herein, I conclude that
the evidence is insufficient to establish that Respondents
refused to bargain about the effects of its unilateral con-
duct.
CONCLUSIONS OF LAW
1. Respondents constitute a joint employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union, a labor organization withing the mean-
ing of Section 2(5) of the Act, had at all times since Feb-
ruary 26, 1981, been the representative for purposes of
collective bargaining of a majority of the employees in
the appropriate unit consisting of all full-time and regular
part-time employees , including maids, maintenance per-
sons, laundry employees, clerks and desk clerks, em-
ployed by Respondent Sands at its facility located at
143
9430 Michigan Avenue, Detroit, Michigan, but excluding
guards as defined by the Act.
3. Respondent Sands has engaged in unfair labor prac-
tices, as set forth above in the section of this decision en-
titled "Analysis and Conclusions," which have a substan-
tial impact on interstate commerce.
THE REMEDY
It having been found that Respondents engaged in
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, it will be recommended that Re-
spondents cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that the termination of laundresses
Sharon Bysiorek and Alice McKenzie were the result of
the discriminatory and unilateral subcontracting of linen
service and laundry operations , I shall recommend that
Respondent Sands be ordered to reinstate its linen serv-
ice and laundry operation and reinstate those laundresses
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges , and to make them whole for any loss of earn-
ings they may have suffered by reason of the discrimina-
tion against them . Any backpay or other moneys found
due herein shall be computed in accordance with the for-
mula set forth in F W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977).23
It shall also be recommended that Respondent Sands
remove from its records any reference to the work per-
formance of Sharon Bysiorek as the cause of the subcon-
tracting of linen service and laundry operation, and to
notify Bysiorek in writing that this has been done, and
that her unlawful termination will not be used as a basis
for future personnel actions against her.
Having also found that Respondent Sands discrimina-
torily and unilaterally removed the job classification of
desk clerk from the unit , and terminated employee
check-cashing privileges, and unilaterally suspended ac-
crued vacation pay, I shall recommend that Respondent
Sands be ordered to rescind the assignment of superviso-
ry duties to the desk clerks and reinstate the classifica-
tion of desk clerks to the bargaining unit, and restore to
employees their previously enjoyed benefits of accrued
vacation pay and check-cashing privileges during work-
time; and to pay bargaining unit employees accrued va-
cation pay due them . In making recommendations of the
status quo ante, I am cognizant of the downturn of Re-
spondent Sands' sale through the first month of 1982.
However , Respondents did not argue , nor was evidence
adduced, that such remedy , which is the normal remedy
for discriminatory conduct, would endanger Respondent
Sands' continued viability . Accordingly, I conclude that
such remedy is appropriate . Cf. Smyth Mfg. Co., supra;
Beacon Industries , supra.
It will be further recommended that Respondent Sands
be ordered to bargain in good faith with the Union con-
cerning the wages , hours, and terms and conditions of
employment of unit employees, including subcontracting
23 See generally Ism Plumbing Co., 138 NLRB 716 (1962).
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of unit work, supervisory reclassification of unit employ-
ees, and suspension of accrued vacation pay and check-
cashing privileges , and to post an appropriate notice.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed24
ORDER
The Respondent, Harold Weine, David Weine, Kate
Weine, Ruth Weine, Morris S. Brent, Phillip Nusholtz,
Gertrude Nusholtz, Sal Waldman, a co-partnership d/b/a
Sands Motel, Detroit, Michigan, their partners, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning
their own and other employees' union activities, sympa-
thies, and desires.
(b) Threatening its employees with closure of its oper-
ations if they select a union as their bargaining represent-
ative.
(c) Soliciting and impliedly promising to remedy em-
ployees' grievances and complaints concerning terms and
conditions of employment in order to induce employees
to reject union representation.
(d) Coercively implying to its employees the futility of
selecting a union as a collective-bargaining representative
by telling its employees it will not allow them to have a
union.
(e) Restricting the movement and conversation of em-
ployees for the purpose of discouraging them from com-
municating with employee union adherents in the ab-
sence of justifiable business reasons.
(f) Discriminating against employees in any way in-
cluding subcontracting bargaining unit work, removing
any job classification from the unit, or rescinding any
work benefit in retaliation for its employees' support of
and activities on behalf of the Union or any other labor
organization or to erode its employees' support of their
designated bargaining agent.
(g) Failing and refusing to bargain with the Union as
the exclusive representative of employees in the appro-
priate bargaining unit concerning wages, hours, and
other terms and conditions of employment, including the
subcontracting of bargaining unit work, the removal of
job classification from the bargaining unit, and the termi-
nation of work benefits.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reinstate its laundry facility as it existed prior to
March 13, 1981, at its Michigan Avenue facility in De-
troit, Michigan.
24 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
Poses.
(b) Offer laundry employees Sharon Bysiorek and
Alice McKenzie immediate and full reinstatement to
their former jobs without prejudice to their seniority or
other rights and privileges previously enjoyed and make
them whole for any losses they may have suffered as a
result of the discriminatory and unilateral termination of
laundry operations in the manner set forth above in the
remedy section of the decision.
(c) Remove from its records any reference to the work
performance of Sharon Bysiorek as the cause of the sub-
contracting of its linen service and laundry operations
and notify Sharon Bysiorek in writing that this has been
done, and that her unlawful termination will not be used
as a basis for future personnel actions against her.
(d) Reinstate the job classification of desk clerk to the
appropriate bargaining unit and rescind the assignment to
the desk clerks of supervisory duties as defined in the
Act.
(e) Restore to its employees their previously enjoyed
benefits of accrued vacation pay and check-cashing privi-
leges during working time; and pay to bargaining unit
employees accrued vacation pay due them in the manner
as set forth in the remedy section of the decision.
(f) Rescind the restrictions imposed on employees,
which it instituted for the purpose of discouraging them
from communicating with employee adherents of the
Union , including restrictions placed on communications
with laundress Sharon Bysiorek, in the absence of justifi-
able business reasons.
(g) Bargain in good faith with the Union as the exclu-
sive representative of employees in the appropriate bar-
gaining unit , on request , concerning wages, hours, and
other terms and conditions of employment, including any
decision to subcontract bargaining unit work , the deci-
sion to remove job classifications from the bargaining
unit, and the decision to terminate work benefits of em-
ployees.
(h) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(i) Post at its facility in Detroit , Michigan , copies of
the attached notice marked "Appendix."2 s Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
ized representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced , or covered by
any other material.
25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
SANDS MOTEL 145
(j) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that the complaint be dis-
days from the date of this Order what steps the Re- missed concerning any alleged violations of the Act not
spondent has taken to comply. found herein.