Sea Mist Resort

National Labor Relations Board - Board Decisions

Dec 21, 1977

233 N.L.R.B. 1355 (N.L.R.B. 1977)

SEA MIST RESORT
Nell Ammons d/b/a Sea Mist Resort and Hotel,
Motel, Restaurant Employees and Bartenders
Union, Local 270 of the Hotel and Restaurant
Employees and Bartenders International Union.
Case 11 -CA-6685
December 21, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On September 26, 1977, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, 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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Neil Ammons
d/b/a Sea Mist Resort, Myrtle Beach, South Caroli-
na, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
I Nothing herein shall be construed as requiring Respondent to rescind
the benefits granted its employees.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was heard before me at Conway, South Carolina, on
August 15, 1977. The complaint alleges that on or about
July 30, 1976, the Respondent purchased a bus which is
used to transport its employees to and from work for the
purpose of undermining support of the Charging Party
among these employees in violation of Section 8(a)(1) of
the National Labor Relations Act, as amended, 29 U.S.C.
§ 151, et seq.
The Respondent admitted the purchase of the bus on or
about the date alleged, and "the bus was used to transport
the maids to and from work at no charge to them." The
' Pursuant to motion of Ihe Respondent. the transcript at p. 20. 1. 23, is
corrected to read, "I've been there about five years."
233 NLRB No. 127
Respondent denies that the purchase or use of the bus is
violative of the Act.
Upon the record as a whole,' including my observation
of the witnesses, briefs, and arguments of counsel, I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a partnership engaged in providing
lodging, restaurant, and recreational facilities for nonresi-
dent guests at Myrtle Beach, South Carolina. During the 12
months preceding the filing of the complaint herein, the
Respondent received gross revenues in excess of $500,000
and during the same period purchased and received
directly from points outside the State of South Carolina
goods, products, and materials valued in excess of $50,000.
The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR OROANIZATION INVOLVED
The Charging Party, Hotel, Motel, Restaurant Employ-
ees and Bartenders Union, Local 270 of the Hotel and
Restaurant Employees and Bartenders International
Union (herein the Union), is admitted to be, and I find is, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
The facts giving rise to this proceeding are uncomplicat-
ed and uncontested. A fair summation of the testimony
and documentary evidence shows that, sometime during
early 1975, Neil Ammons, the principal partner, first
considered purchasing a bus.
The Respondent's insurance agent offered into evidence
a letter dated April 4, 1975, which he wrote to the
Continental Insurance Company noting plans to purchase
a small van "in the near future" to "pick up and deliver his
maids at the motel."
During the summer, employees discussed with Ammons
their desire to have him provide such transportation for
them. The uncontested testimony is that several employees
talked to Ammons during the latter part of July 1975 about
this, and he stated that he would buy a bus; however, he
told them it was at that time too late in the season. He told
them he would buy a bus the next year.
The organizational campaign among the Respondent's
employees began in late June or early July 1976 culminat-
ing in the filing of a representative petition on July 14, in
Case 11 -RC-4224. A notice of hearing in that matter was
received by the Respondent on July 21. On July 30, the
Respondent purchased a bus which has subsequently been
used to transport employees to and from work at no charge
and is, the Respondent concedes, an economic benefit to
them.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Analysis and Concluding Findings
The General Counsel contends that furnishing an
economic benefit to employees shortly after the beginning
of a union organizational campaign necessarily interferes
with their Section 7 rights and therefore is violative of
Section 8(a)(1) of the Act.
Citing N.L.R.B. v. Exchange Parts Company, 375 U.S.
405 (1964), the Respondent contends that a purpose to
influence employees against the Union must be shown.
Since the decision to purchase a bus was made in 1975, well
before the beginning of the union activity, there can be no
inference of such a purpose. Thus, the actual purchase,
simply implementing the earlier decision, is not a violation.
Scantlin Electronics, Incorporated, 201 NLRB 888 (1973).
Though I generally agree with the Respondent's state-
ment of the guiding principles, I disagree with its analysis
of the facts. I conclude that Ammons purchased the bus
when he did in an effort to influence employees against the
Union, and thereby violated Section 8(a)(1) of the Act.
First is the undenied evidence of union animus. Two
employees testified that on several occasions Ammons told
them he was against the Union.
Second is the timing: 2 weeks after the representation
petition had been filed, and 9 days after the Respondent
received a notice of hearing, Ammons bought the bus.
While he had promised the employees a bus the year
before, he did not deliver on that promise until after the
union activity began. A fair inference from the undisputed
facts is that, but for the organizational activity, Ammons
would not have bought the bus when he did-if ever.
On April 4, 1975, Springs wrote a letter, presumably
setting forth Ammons' intent, saying "in the near future" a
bus would be purchased. Passage of 16 months is scarcely
the "near future." The substantial hiatus between Am-
mons' April 1975 intent and his July 1976 action is not
explained. Since Ammons did not in fact act within the
"near future" it is not unreasonable to conclude that he
had abandoned the idea of buying a bus-at least for a
time.
Two of the Respondent's witnesses testified that, in
discussions with Ammons in late July 1975, he told them it
was too late in the season, testified to be June through
September, to buy a bus that year. Yet he bought the bus
on July 30, 1976. There is no explanation why July 1975
was too late in that season but July 1976 was not. Nor is
there any explanation why, if in fact Ammons really meant
to buy the bus in 1976, it was not purchased at the
beginning of the season.
From undisputed facts, and the adverse inferences to be
drawn from Ammons' failure to testify, it is simply more
reasonable than not to conclude that Ammons had
abandoned the idea of buying a bus, or at least had it on
hold, until the union activity started. I therefore infer that
purchasing the bus when he did was for the purpose of
dissuading employees against the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
substantial relationship to trade, traffic, and commerce
among the several States and tends to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain activity violative 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.
Based upon the foregoing findings of fact, conclusions of
law, and the entire record in this matter, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 2
The Respondent, Neal Ammons d/b/a Sea Mist Resort,
Myrtle Beach, South Carolina, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Granting employees benefits in order to discourage
their activity on behalf of the Union or any other labor
organization.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its Myrtle Beach, South Carolina, facility
copies of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional Director
for Region 11, after being duly signed by its authorized
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
3 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."
The act of the Respondent set forth above, occurring in
connection with its operations, has a close, intimate, and
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SEA MIST RESORT
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were given the
opportunity to participate and present their positions, it
has been found by the National Labor Relations Board
that we have committed an unfair labor practice. We have
been ordered to cease and desist therefrom and to post this
notice and to comply with its terms.
WE WILL NOT grant benefits to our employees in
order to influence them against the above-named or
any other labor organization in a representative
election.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
Section 7 of the Act guarantees the employees these
rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing, and
To act together for purposes of collective
bargaining or other mutual aid or protection or to
refrain from any or all of these things.
NEIL AMMONS D/B/A SEA
MIST RESORT
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