The Hilton Inn

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 873 (N.L.R.B. 1977)

THE HILTON INN
Franklin Property Company, Inc. d/b/a The Hilton
Inn. and Hotel, Motel, Restaurant Employees &
Bartenders Local 12, Hotel & Restaurant Employ-
ees and Bartenders International Union, AFL-
CIO. Case 9-CA-10784
September 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 18, 1977, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
a reply 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, find-
ings,' and conclusions2 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, Franklin Proper-
ty Company, Inc. d/b/a The Hilton Inn, Sharonville,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, except that the attached notice is substitut-
ed for that of the Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry) Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In the absence of exceptions thereto. Member Jenkins adopts, pro
forma, the Administrative Law Judge's dismissal of certain 8(aXI) allega-
tions concerning campaign statements made dunng group meetings by
Respondent's agents. Green and Johni.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
232 NLRB No. 132
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for purposes of collective
bargaining or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT question our employees concern-
ing their own or the union sentiment of other
employees.
WE WILL NOT threaten employees with reprisals
for engaging in union activities nor will we
threaten that wages or benefits will be cut it'
employees designate the Union as their exclusive
bargaining representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by
Section 7 of the Act.
FRANKLIN PROPERTY
COMPANY, INC. D/B/A
THE HILTON INN
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard in Cincinnati, Ohio, on April 11,
1977, upon an unfair labor practice charge filed on
November 8, 1976, and a complaint issued on January 3,
1977, alleging that Respondent violated Section 8(a)(1) of
the Act by coercively interrogating employees concerning
union activity, by threatening employees with more
onerous working conditions because of their union activity,
and by conducting group meetings with employees in
which they were threatened with loss of benefits if the
Union were designated as employee representative. In its
duly filed answer, Respondent denied that any unfair labor
practices were committed. After close of the hearing, briefs
were filed on behalf of the General Counsel, the Charging
Party, and the Respondent.
Upon the entire record in this proceeding, including
consideration of the posthearing briefs and observation of
the witnesses and their demeanor while testifying. I hereby
find as follows:
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation engaged in the
operation of a hotel-motel in Sharonville, Ohio. the sole
facility involved in this proceeding. During the 12-month
period preceding issuance of the complaint, a representa-
tive period, Respondent in the course and conduct of said
operations received goods valued in excess of $50,000
which it purchased and caused to be transported in
interstate commerce to said place of business directly from
points outside the State of Ohio. During said period.
Respondent also received gross revenues in excess of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$500,000 from guests, less than 75 percent of whom
remained one month or more.
The complaint alleges, the answer admits, and I find
that, at all times material herein, Respondent was and has
been an employer as defined in Section 2(2) of the Act,
engaged in commerce and in operations affecting com-
merce as defined in Section 2(6) and (7) of the Act.
II. THE I.ABOR ORGANIZAIION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is, and has been a labor organization as defined
in Section 2(5) of the Act.
III. rIE ALL.EGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint in this case imputes various independent
8(a)(1) violations to certain of Respondent's agents. Said
unfair labor practices allegedly occurred in the course of an
initial effort on the part of the Union to organize
Respondent's previously unrepresented employees. It is
charged that William Green, general manager of Respon-
dent's Inn, and Theodore Johni, who at times material to
this proceeding was food and beverage manager at that
location, engaged in coercive interrogation of employees
concerning union activity, and threatened both reprisals
for union activity and reduced benefits if the Union were
designated by a majority.
B. Background
Following the opening of the union campaign, which
commenced in April 1976, the Union, on August 24, 1976,i
filed a representation petition in Case 9-RC-11665. A
preelection hearing was conducted on September 15, with a
Decision and Direction of Election having been subse-
quently issued by the Regional Director for Region 9 on
October 6. The election was scheduled for November 10, in
the appropriate unit consisting of about 117 employees.
However, two days prior thereto, on November 8, the
Union filed the instant unfair labor practice charges. The
aforesaid Regional Director, in the face of the Union's
failure to file a "request to proceed," conducted the
election as scheduled, electing to impound the ballots. To
date, the ballots cast in said election have not been opened
and counted.
C. Concluding Findings
1. The conduct of William Green and Theodore
Johni at group meetings
a. William Green
Respondent's campaign to combat organization was
planned by its legal counsel, Warren Davison. The latter in
late August met with management as the initial step in
formulating the Company's preelection strategy, and to
I All dates refer to 1976 unless otherwise indicated.
2 It would onl) belabor the issue to outline the various statements
including the shifting versions thereof; which I.ink and Spalding attribute to
Green.
instruct supervisors as to their role in the campaign, as well
as the limitations imposed by law on their conduct. Both
Green and Johni attended the session. In the course thereof
it was determined that Green, acting on continuing advice
of Davison, would be the sole resident supervisor to wage
the employer's campaign. Others, including Ted Johni,
were instructed to remain silent, with their participation
limited to responding to questions addressed to them by
employees.
Later, Davison planned and drafted the format for the
Employer's campaign, which specified the dates on which
the Company would conduct antiunion meetings, mail
campaign literature, and distribute leaflets. All the litera-
ture, including union speeches, were submitted to Green by
Davison.
The General Counsel makes no direct challenge to the
legitimacy of the text of the materials utilized by Green
during his various antiunion speeches. Instead, the General
Counsel maintains that Green departed substantially from
the speeches drafted by Davison and that, in doing so,
certain of his remarks constituted violations of the Act.
More specifically, pursuant to the schedule worked out
by Attorney Davison, employee meetings were conducted
on company time on October 20, October 27, and
November 3. On each occasion, the employees were
broken down into four groups, with separate meetings held
among the food and beverage personnel working daytime
hours, those working nights, the housekeepers, and the
bellhops and drivers, respectively. Bill Green addressed
employees at all meetings, but was the sole spokesman only
at those conducted on October 20.
In support of the General Counsel's assertion that Green
departed from the prepared text of the speeches to render
expressions violative of the Act, employees Evelyn Link
and Susan Spalding testified that Green made various
statements to the effect that with union representation,
employees would sustain a loss of benefits. 2
Green testified that he read the speech given on October
20 verbatim. He concedes, however, that he paraphrased
portions of the prepared text delivered on October 27 and
November 3.3 Green admitted that in the second speech,
he stated that if the Union were to come in, "benefits
would be up for grabs, but they would be negotiable." He
denied, however, that any representative of management at
any of the group meetings, stated that if the Union came in
benefits would immediately cease, or that the company
would no longer provide certain fringe benefits such as
vacation, hospitalization, etc. The thrust of the General
Counsel's testimony is also countered by Green's testimony
that Mike Johnson, the president of Franklin Properties,
during a question and answer session, answered an inquiry
by stating that, if the Union got in, benefits would
probably continue until a contract were negotiated. With
respect to the Company's obligation upon unionization,
Green admits to telling employees that, "If the Union wins
the election all they have won is the right to bargain; all we
have to do is bargain with them in good faith." Green
:' The speech delivered on October 20. which is in evidence as Resp. Exh.
8 makes no reference to a subject matter imputed to Green by Spalding and
Link on that date.
874
THE HILTON INN
denies stating that the Company would refuse to agree to
anything, while admitting that employees were informed
that the Company would not agree to anything "economi-
cally inadvisable" for the hotel.
Upon assessment of the testimony, it is my conclusion
that the General Counsel has failed to offer credible proof
substantiating the allegation that Green made unlawful
statements at the various group meetings. It is true, as shall
be seen infra, that I did not regard Green as an entirely
reliable witness. At the same time, however, the testimony
of Link and Spalding as to what they heard at the group
meetings failed to provide a reliable basis for finding that
Green departed from legitimate campaign argumentation
in presenting the Company's views either through his
reading of the prepared speeches, his independent efforts to
paraphrase, or expressions made during question and
answer periods. Respondent's formal campaign literature,
including the basic text of speeches delivered at the group
meetings, while artfully drafted to remain within the
bounds of free speech guarantees, was calculated to drive
home a central theme that unionization could lead to dire
consequences for employees. A variety of arguments based
on technical discussion of the law and perogatives of
employers and unions thereunder, as they applied to
diverse hypothetical situations, was used to drive home this
point. To the unsophisticated listener or reader, it is
entirely possible that Respondent's charge of reduced
economic status would be taken as stemming directly from
the Employer's reaction to union representation, rather
than the independent causes lawfully articulated in the
propaganda. This, essentially is the basis for my mistrust of
this aspect of the testimony of Link and Spalding. Both
impressed me as testifying from their subjective interpreta-
tion of Green's statements, rather than the words actually
used or the true substance thereof. In addition, Link struck
me as somewhat argumentative, and, with respect to this
aspect of her testimony, it was my distinct impression that
her zealous enthusiasm for the Union distorted her
perspective of what occurred at the group meetings. As was
true in the case of Link, the testimony of Spalding discloses
a limited capacity for recall, and a difficulty in differentiat-
ing between what she felt was said and what in fact was
said. She was not regarded as a reliable corroborating
witness. Considering the conflicting testimony against the
record as a whole, that offered in support of the defense
also seemed the more probable and it is deemed an
effective refutation of the illegality attributed to Green in
this respect. Accordingly, I shall dismiss the allegations
that Respondent violated Section 8(a)(1) of the Act by
Green's statements at the group meetings.
b. Theodore Johni
An allegation of the complaint raises the question of
whether Respondent violated Section 8(a)(1) through
I The briefs of the General Counsel and Charging Party do not claim
specifically that Johni's statement concerning his pay cut at a group meeting
constituted an independent violation of Sec. 8(a)1). However, out of an
abundance of caution, considenng the breadth of the allegations pertaining
to Johni in the complaint, it is deemed necessary to dispose of this issue with
specificity.
I In the brief of General Counsel, the latter offers his own view that the
statements made by Ted Johni, an admitted supervisor, at
a group meeting, in which he allegedly threatened employ-
ees with a cut in wages if the Union were designated at the
election. 4 Testimony was offered that during a question
and answer session at one of the group meetings conducted
for night shift food and beverage employees, Johni
indicated that it was possible that employees could receive
less pay when a union comes in, citing his past experience
while employed in Cleveland, Ohio, at a Holiday Inn.
Spalding and Link both testified that Johni spoke up
spontaneously, stating that he earned S150 a week at the
Holday Inn, but that after the union came in his salary was
cut to about $90 a week.
Johni claims that he spoke at this meeting only after an
employee inquired as to whether he had been in a union.
He claims that, in describing his salary cut at that time, he
attributed its cause to the scale negotiated by the union.
Although, generally, I regarded Johni as an untrustwor-
thy witness, in this instance, I do believe that he described
the pay cut as a byproduct of collective bargaining, rather
than mere advent of the union. In this respect it has been
noted that a witness called by the General Counsel, Pamela
Mason, 5 testified that Johni on several occasions related
his Holiday Inn pay cut experience to her. According to
her testimony, Johni explained his alleged reduction in
salary as resulting from the "negotiated scale." With this
testimony, together with the doubt held as to the capacity
of Link and Spalding to recall accurately, and without
significant omission, material aspects of campaign argu-
mentation made by Respondent's agents, I find that the
General Counsel's evidence fails to credibly offset testimo-
ny that Johni, at the group meeting in question, described
the cut in wages as resulting from a contract reached
through collective bargaining. As such, his comment was
devoid of threat of reprisal, but simply amounted to a
legitimate campaign pronouncement protected by Section
8(c) of the Act. Accordingly, I shall dismiss the 8(a)(1)
allegations relative thereto.
2. General Manager Green's interrogation of
Evelyn Link
Evelyn Link, a waitress, testified that on or about August
24, after she received word that Respondent had been
served with the Union's election petition, she received a
telephone call from Green while at work. Green previously
had been in the dining room with friends at a table served
by Link. The telephone conversation consisted of Green's
asking Link if she knew anything about cards being passed
in the kitchen, and his going on to state that he had heard
persistent rumors about a union attempting to be orga-
nized. Green also expressed his feelings that if Link knew
anything about it she would tell him. Link responded that
she had not seen any cards in the last few days. After this,
Green went on to ask if Link's shift were involved and if
testimony of Pamela Mason failed to present substantial evidence of a
violation of Sec. 8(aXI). Without detailed discussion of the unfair labor
practice allegations to which her testimony pertains, it is sufficient to state
that, in full agreement with the General Counsel. I did not regard her
testimony as sufficiently reliable to constitute substantial proof of any
alleged unfair labor practices. The allegations to which her uncorroborated
testimony is addressed shall be dismissed.
875
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she had been contacted at home by union organizers. Link
responded in the negative. The conversation ended when
Link advised Green that she was busy.
In this regard, Link's testimony stands uncontradicted
and, indeed, Green admitted that early in the campaign he
was left with the impression by Link that she was not for
the Union and that he could count on her if he wanted any
help in fighting organization. I credit Link in this instance.
In so finding, considering the total circumstances, includ-
ing the lack of any justifiable purpose in Green's inquiries,
I do not regard this incident as fitting the class of casual,
isolated interrogation which the Board has deemed
noncoercive or too minimal to warrant a remedy. I find
that Respondent violated Section 8(a)(1) of the Act by
Green's questioning Link as to her own and as to the union
activity of other employees.
3. Johni's evaluation interview with Jerry
Donahue
The complaint alleges that Respondent engaged in
several 8(a)( ) violations through separate encounters
between employees and food and beverage Manager Ted
Johni. These allegations included that relating to testimony
by busboy Jerry Donahue that, on or about November 6,
1976, he met with Johni in the latter's office concerning his
periodic performance evaluation. During that meeting,
Johni referred Donahue to his tardiness problem, and
counseled him to improve. In addition, according to the
testimony of Donahue, Johni asked, "What do you think
about this union stuff?" Donahue replied that he did not
know, whereupon Johni repeated his salary cut experience
at the Holiday Inn in Cleveland. Johni went on to state,
according to the testimony of Donahue, that, while
busboys made good money, it was possible that the
busboys might sustain a reduction in pay from $2.25 to
$1.65 per hour if the Union got in, going on to admonish
that if he were Donahue, he would not vote for the Union.
Johni did not deny that the discussion in question took
place, or that, in the course of the evaluation session, the
Union was discussed. Instead, he asserts that it was
Donahue who questioned him about the pay cut at the
Holiday Inn, and that he simply replied that his salary
declined as a result of the contract that had been
negotiated. Johni denied questioning Donahue as to his
feeling about the Union or mentioning the possibility of a
reduction in the wage scale of busboys if the Union won
the election.
As between Johni and Donahue, I regarded Donahue, an
incumbent employee, as the more credible witness. From
my observation of Johni I did not regard his testimony as a
straightforward, and his frequent assertion that he only
discussed union activity when raised first by employees
struck me as too pat.6
Based on the credited testimony of Jerry Donahue, I find
that Johni coercively interrogated an employee concerning
his union sentiment in violation of Section 8(a)(1). As for
I 1 have not overlooked the testimony that Johni had been instructed as
of August 30. to exclude himself from any active role in the campaign unless
questioned by employees. Assuming the existence of' such instructions it
would be unrealistic to conclude that supervisors, though possessed of
strong antiunion sentiment. would allow their own views, during a heated
campaign, to remain mute in deference to such guidelines.
the further comment concerning the reduction in busboy
salaries, Johni's statement was not supported at the time by
demonstrable fact attributing this potentially adverse
consequence to sources other than the Employer. I find
that it went beyond the ambit of fair argumentation, and
constituted a threat violative of Section 8(a)(1) of the Act.
4. The confrontation between Johni and Joyce
Schoemer
In this respect, Joyce Schoemer, a night waitress, testified
that in early October, while eating her dinner in the kitchen
and reading her mail, which included campaign literature,
she was approached by Johni, who asked what she was
reading. Schoemer indicated that she was reading cam-
paign literature. Johni then asked what she thought the
Union could do for her. She replied, "I think they can give
me security." Johni indicated, "Well, there is no such thing
as security," going on to state, "if anything ... you could
lose benefits. They can't get you no more then what you
already have .... You could lose some of them."
Johni denied ever discussing the Union with Schoemer.
He did recall an incident in October when he entered the
kitchen, finding Schoemer reading her mail at a time when
the night waitresses were supposed to be working. He
admitted learning that Schoemer was reading union
literature after asking her what she was reading, but claims
that he simply told her that she was on his time, and asked
her to go to work.
Notwithstanding Schoemer's confessed difficulty in
recalling detail, I do not believe that her account of this
conversation was imagined, or that, as an incumbent
employee, she would have falsely imputed these statements
to Johni, had they not in fact occurred. As heretofore
indicated, Johni did not impress me as a credible witness. I
credit Schoemer and find that Johni on the occasion in
question coercively interrogated Schoemer concerning her
union sentiment, and further unlawfully threatened her
with a cutback in benefits in the event of unionization.
Respondent thereby violated Section 8(a)(l) of the Act.
5. The incident at "Denny's" Restaurant
Uncontradicted evidence shows that on November 7, at
about 2 a.m., Link and fellow employee Mike Pauley, a
busboy, went to "Denny's," a restaurant regularly fre-
quented by Respondent's employees afterwork. The restau-
rant was crowded, and Link and Pauley happened to sit at
the counter adjacent to Green and Dick Ammerman, a
friend of Green's, who managed a nearby Ramada Inn. A
composite of the testimony of Link and Pauley indicates
that Green turned to Ammerman at a point in the
conversation stating in a loud voice "Dick, it is too bad I
haven't been able to convince Evelyn that if her union ever
does get in, it will never have a thing to do with the way I
manage the Hilton Inn." 7 Then Link addressed Green,
stating "it wasn't my union, . . . I was a member of an
I7 credit Pauley's testimony that this comment followed an amicable
discussion between Link and Green concerning a company party scheduled
for later that week, and Link's inquiry as to whether she could bring a friend
who earlier had been discharged by Respondent.
876
THE HILTON INN
organizing committee but I was not alone in this." An
argument ensued, with Green indicating "he would get her
beginning Thursday, after the election, that he would
reprimand her to death, that he would have her watched,
that he would get her." Green then glanced at Mike Pauley,
stating "Mike, too. .. one of these days I may not have
any need for busboys anymore."
Green's testimony hardly presented a credible counter to
the, in all essential and material respects, mutually
corroborative accounts of Pauley and Link. Green conced-
ed to a hazy recollection of what had transpired, claiming
that he was intoxicated at the time. He admitted that there
was an argument concerning the union election, but
indicated that he could not remember clearly all that was
said. With respect to the threatening remarks attributed to
Green he testified that, as best as he could recall, he simply
told Link that the Company could have harrassed her if it
had wanted to but that the Company did not operate in
this fashion. Ammerman did not testify. The testimony of
Green in this respect struck me as an effort, by after-
thought, to cleanse his conduct on that occasion, and I
regard the testimony of Link and Pauley as the more
believable.
I find that by threatening Link and Pauley with reprisals
because of their union activity or associations, Respondent
violated Section 8(a)(1) of the Act. I would note in this
respect that the fact that the threats made were not
implemented, or that Green paid for Link's coffee hardly
mitigated the seriousness of this violation. Link was
perhaps the principal employee protagonist of the Union,
who shortly before had signed a letter critical of the
accuracy of certain points made by Green in his attempt to
further Respondent's quest of a "No" vote. Such a threat,
uttered shortly before the scheduled election, is not to be
regarded lightly, insofar as it might well impair the
effectiveness of a key employee organizer during the most
critical stage of the campaign, a consequence likely to
influence the outcome of the election.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees as to their own and the
union sentiment of other employees, by threatening
m In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Lahor Relations Board, the lindings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted b) the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
employees with reprisals for having engaged in union
activity, and by threatening employees with the loss of
benefits should they designate the Union as their collec-
tive-bargaining representative.
4. The above unfair labor practices effect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be ordered that Respondent
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER"
Respondent, Franklin Property Company, Inc. d/b/a
The Hilton Inn, Sharonville, Ohio, its officers, agents.
successors, and assigns, shall:
1. Cease and desist from coercively interrogating
employees concerning their own or the union activity of
fellow employees, from threatening employees with repri-
sals for their union activity, or threatening a loss of benefits
if they designate the Union as their exclusive collective-
bargaining representative, or in any like or related manner
interfering with, restraining, or coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its hotel-motel in Sharonville, Ohio, copies of
the attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by its representative shall
be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted bs 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"
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