The Little Rock Downtowner, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1967

168 N.L.R.B. 107 (N.L.R.B. 1967)

THE LITTLE ROCK DOWNTOWNER , INC. 107
The Little Rock Downtowner , Inc. and Hospital-
Hotel-Motel , Restaurant Employees Union, Local
200, Hotel & Restaurant Employees and Bartenders
International Union , AFL-CIO. Cases
26-CA-2415 and 26-CA-2654
November 7, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On July 14, 1967, Trial Examiner John P. von
Rohr issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner, as modified below.
The Union was certified on November 7, 1962.
On July 29, 1963, and January 28, 1964, the Board
issued Decisions and Orders, finding in part that
Respondent had unlawfully refused to bargain with
the Union. Following enforcement of these Orders
by the court of appeals on March 5, 1965,2 ,the
parties held a series of collective-bargaining
meetings through April 8, 1966, although no con-
tract was reached. Meanwhile, Respondent had uni-
laterally raised the wages of certain employees. At
the April 8 meeting, the Union complained to
Respondent that this unilateral action was unlawful,
and asked Respondent to agree to cease making
unilateral changes in the future. Upon Respond-
ent's refusal, the Union filed the original unfair
labor practice charge in this case, alleging that the
Respondent was refusing to bargain collectively in
violation of Section 8(a)(5) and(1) of the Act. The
Regional Director refused to issue a complaint
based on the charge. The Union thereupon ap-
pealed the Regional Director's Decision by
requesting the General Counsel to review such ac-
tion, pursuant to Section 102.19 of the National
Labor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended.
The Union requested further negotiations with
Respondent around the second week of December
1966. In late December 1966, the General Counsel
reversed the Regional Director's Decision and
directed that a complaint be issued, whereupon
Respondent agreed to meet with the Union on
January 12, 1967. At the meeting, however,
Respondent's attorney asked Union Representative
Yeargan to account for his absence during the
preceding 8 or 9 months. When Yeargan refused to
do so, Respondent's attorney advised Yeargan that
Respondent "doubted that the Union represented
a majority of its employees," and added that
Respondent would no longer recognize or bargain
with the Union. Following this meeting, Respond-
ent, in the latter part of the month, unilaterally
changed the working hours and-days of a number of
its employees. About the same time, the restaurant
manager, Hixon, told a group of employees to stop
talking about the Union, and further told them that
it would not do them any good even if they did be-
long to the Union. He also asked some employees
if they had signed union cards on the job, although
there was no explanation that Hixon believed they
had done so on the job.
In these circumstances, we agree with the Trial
Examiner's conclusion that Respondent violated
Section 8(a)(1) and (5) of the Act. The violations
consist not only of the unilateral wage changes
made prior to the meeting of April 8, 1966 3 but
also of the refusal at that meeting to agree to discon-
tinue further unilateral action, the refusal to con-
tinue to recognize the Union at and after the meet-
ing of January 12, 1967, and the subsequent state-
ments and unilateral actions set forth above. It is
well settled that after the first year of certification
a Union's majority status is presumed to continue.'
In order for Respondent to rebut that presumption,
it must show that it had a reasonable good-faith
doubt of the Union's continuing majority. As we
' The Trial Examiner incorrectly found that on January 1, 1966, H D.
Becker ' s monthly wages were increased from $100 to $120 and Chmmie
Stewart's daily wage was increased from $10 80 to $12. The record
reveals that Stewart received the monthly increase and Becker received
the daily raise
2 N.L.R.B. v. Little Rock Downtowner, 341 F.2d 1020 (C A 8)
8 We agree with the Trial Examiner that increases granted without con-
sultation with the Union constituted unlawful refusals to bargain . With re-
gard to Stewart, we specifically reject Respondent's contention that bar-
gaining was not required because Respondent had good cause to increase
Stewart's duties (to conform to the local health officer's order to improve
sanitary conditions) and therefore his wages The duty to bargain remains
regardless of the reason for the wage increase.
4 Celanese Corporation of America, 95 NLRB 664 The Richard W.
Kaase Company, 141 NLRB 245
168 NLRB No. 18
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said in C & C Plywood Corporation and Veneers,
lnc.,5 however, the prior unremedied unfair labor
practices were "of such character and effect as to
preclude Respondents from thereafter questioning
the Union's majority status in good faith." In any
event, as we said in Laystrom Mfg. Co.,6 the ex-
istence of a good-faith doubt "requires more than
an employer's mere assertion of it and more than
proof of the employer's subjective state of mind.
The assertion must be supported by objective
considerations."
Respondent advances several grounds which it
claims "objectively" supported its doubt in January
1967: Employee turnover and expressed employee
dissatisfaction with the Union. We agree with the
Trial Examiner's rejection of these defenses.
Respondent also contended before the Trial Ex-
aminer, and again contends before us, that another
basis for its belief that the Union no longer
represented a majority of its employees was the
absence of any attempt by the Union to negotiate
with Respondent between April 8, 1966, and
December 1966. This 8-month hiatus in the
Union's efforts to bargain with Respondent is said
to reveal the Union's abandonment of the unit em-
ployees, and, Respondent contended, justified its
inference that the employees no longer supported
the Union as their bargaining agent.
We do not agree. When the Union ceased efforts
to bargain with Respondent after April 8, it had
reason for believing that Respondent would not
continue negotiations in good faith, and filed a
charge to that effect. We find merit in this charge in
that on two separate occasions Respondent had uni-
laterally altered the wages and working conditions
of employees in the bargaining unit. Both at the
April 8 bargaining meeting in Little Rock and again
in early May in Memphis, when Yeargan attempted
to secure Respondent's agreement to a cessation of
unilateral changes, Respondent refused to agree to
these requests. Under the circumstances, Respond-
ent could not reasonably regard the Union's sub-
sequent 8-month absence from the bargaining table
either as an abandonment of the unit employees or
as an indication of loss of employee support. It is
well settled that where further negotiations appear
to be futile, a union is justified in not seeking to con-
tinue them .7 Respondent 's unilateral changes of
working conditions, without consultation with the
bargaining agent are violations which strike at the
heart of the Union's ability to effectively represent
the unit employees. There is no clearer or more ef-
fective way to erode the ability of the Union to bar-
gain for the employees than for Respondent to
make such changes without consultation with the
Union. Respondent, after having committed viola-
tions which reasonably resulted in the Union's deci-
sion to regard further attempts to bargain as futile,
may not seize upon its own wrongs to charge an
abandonment by the Union of the unit employees
or to infer a loss of employee support. Rather, it ap-
pears to us that the Union's prompt filing of the
original unfair labor practice charge, and its ulti-
mate successful prosecution of an appeal from the
Regional Director's dismissal, amply demonstrate
its zealousness and continuing interest in represent-
ing the unit employees. Until the April 8 meeting,
the Union had met with Respondent many times in
an effort to induce Respondent to bargain in good
faith, as the Act requires. Respondent is in no posi-
tion to defend its later withdrawal of recognition
when the Union resorted to Board processes in-
stead of continuing to try to induce Respondent to
discharge its bargaining obligation.
Accordingly, we find that Respondent has unlaw-
fully refused to bargain with the Union in violation
of Section 8(a)(5) and (1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, The
Little Rock Downtowner, Inc., Little Rock, Arkan-
sas, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order.8
5 163 NLRB 1022
6 151 NLRB 1482, 1484 Although this Decision was denied enforce-
ment , we view the court's action as differing with the Board in evaluating
an evidentiary matter rather than as disagreeing with the applicable princi-
ple set forth above 359 F 2d 799 (C A 7)
' Dixie Culvert Mfg Co, 87 NLRB 554, Toledo Desk & Fixture Co,
75 NLRB 744
" Delete from paragraph 2(b) of the Trial Examiner ' s Recommended
Order that part thereof which reads to be furnished " and substitute
therefor "on forms provided
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon charges,
duly filed, the General Counsel of the National Laboc
Relations Board, by the Regional Director for Region 26
(Memphis, Tennessee) issued a complaint on February
7, 1967, against The Little Rock Downtowner, Inc.,
herein called the Respondent or the Company, alleging
that it had engaged in certain unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act. Thereafter the Respond-
ent filed an answer denying the allegations of unlawful
conduct alleged in the complaint.
Pursuant to notice, a hearing was held before Trial Ex-
aminer John P. von Rohr on April I I and 12, 1967. All
parties were represented by counsel and were afforded
opportunity to adduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Briefs have been
received from the General Counsel and the Respondent
and they have been carefully considered.
THE LITTLE ROCK DOWNTOWN ER , INC. 109
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Arkansas corporation, operates a
motel in Little Rock, Arkansas, the only motel involved
herein. The Respondent concedes, and I find, that it is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.'
H. THE LABOR ORGANIZATION INVOLVED
Hospital- Hotel - Motel, Restaurant Employees Union,
Local 200 , Hotel & Restaurant Employees and Bartend-
ers International Union , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background; the Issue
On November 7, 1962, the Board certified the Union
as the collective-bargaining agent of Respondent's em-
ployees in the following unit: All regular and full-time and
part-time employees of Respondent employed at its Little
Rock, Arkansas, place of business, including front office
employees, porters, cleanup men, maids, waitresses,
cooks, dishwashers, potwashers, and room service em-
ployees, but exclusive of office clerical employees,
watchmen and guards, and supervisors as defined in the
Act.2
On January 28, 1964, the Board issued a Decision and
Order in which it found that the Respondent had engaged
in certain unfair labor practices including, inter alia, that
the Respondent had refused to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act. The Little
Rock Downtowner, Inc., 145 NLRB 1286. On March 5,
1965, a United States Court of Appeals granted enforce-
ment of this finding of the Board. N.L.R.B. v. Little Rock
Downtowner, Inc., 341 F.2d 1020 (C.A. 8).
Following the court's decision, the parties engaged in
a series of collective-bargaining meetings. No contract
was reached. A final meeting between the parties was
held on January 12, 1967, at which time the Respondent
refused to bargain with the Union on the asserted ground
that the Union no longer represented a majority of the
employees in the appropriate unit. The principal issue in
this case is whether the Respondent in fact held a good-
faith doubt as to the Union's majority status.
B. The Facts Pertaining to Respondent's Refusal To
Bargain
As noted above, the Respondent admittedly refused to
bargain with the Union at a meeting held on January 12,
1967. The last bargaining meeting prior to this meeting
took place on April 8, 1966, at which time the Union was
represented by Earl Yeargan, then an International
representative. Yeargan, it may be noted, acted as
representative of Respondent's employees from 1962 to
1964. After an absence of approximately 2 years, during
which time he was replaced by another union representa-
tive, Yeargan again appeared as the union representative
at the April 8 meeting. Thereafter, in about May 1966,
Yeargan again left the Little Rock area. He testified that
prior to leaving he advised the Local Union to contact At-
torney John Sizemore if any assistance was needed.
Yeargan's wife also remained as secretary-treasurer of
the Local. She resigned this position in October 1966, at
which time she was replaced by George Creach, who
thereafter also acted as business agent for the Local.
No agreement having been reached at the April 8,
1966, meeting, the Union made no further efforts to bar-
gain until the second week in December 1966, at which
time Sizemore, the Union's attorney, sent a letter to
Respondent's attorneys in which he requested the re-
sumption of bargaining negotiations.3 It was finally
agreed that a meeting of the parties would be held on
January 12, 1967.
In the meantime , and shortly after the receipt of
Sizemore's bargaining request, Respondent's attorneys
contacted Bart Santaro, the innkeeper and manager of the
motel, and sought to ascertain from him whether the
Union still represented a majority of the employees in the
appropriate unit.4 Thereafter, once in the latter part of
December 1966 and again in about the first week in
January 1967, Respondent's attorneys met with Santaro
and the restaurant manager, Robert Hixon, at which time
discussions were held concerning the Union's majority
status. Before entering the January 12 meeting, the
Respondent determined that it would take the position
that the Union no longer represented a majority of the
employees in the unit.5
Aside from irrelevant detail, there is no material
dispute as to what transpired at the Jaunary 12, 1967,
meeting. Union Representative Yeargan began by
-presenting a document which apparently covered the
Union's past contract proposals. It is undisputed that at
this point Respondent's attorney, Brackhahn, asked
Yeargan where he had been during the approximate past
8 or 9 months. Yeargan responded that it was none of his
business. After some further discussion along this line,
Brackhahn finally advised the union representatives that
the Company "doubted that the union represented a
majority of its employees"s and that it would no longer
bargain with the Union. The Respondent has continued
to refuse to recognize the Union as the employees' collec-
tive-bargaining agent.
The Respondent advances two reasons for arriving at
its conclusion that the Union had lost its majority status.
' The jurisdictional facts are set forth m'The Little Rock Downtowner,
Inc , 143 NLRB 887 and 145 NLRB 1286, wherein the Board has previ-
ously asserted jurisdiction over this Respondent
2 In accordance with the Board certification, I find the above unit to be
appropriate for the purposes of collective bargaining Respondent's con-
tention that two employees should be excluded from the unit is discussed
hereinafter.
J The Respondent 's attorneys referred to herein are the same as those
who represented it in the instant hearing Certain undisputed facts set
forth herein, including the bargaining request of Sizemore , are taken from
the affidavit of Respondent Attorney Brackhahn. (G C Exh 2)
As stated in the affidavit of Attorney Brackhahn , " I then [upon
receipt of Sizemore's letter] directed inquiry of Santaro whether or
not he believed that the union represented a majority of his employees at
that time "
5 Notwithstanding Santaro's testimony that Respondent went to the
January 12 meeting with the intent to bargain , the undisputed position
taken by the Respondent at this meeting , as hereinafter set forth, indicates
to the contrary Moreover , the predetermined position of the Respondent,
as reflected in Brackhahn's affidavit, was that "The doubt of the employer
in this regard [the alleged lack of majority ] was expressed to the represent-
atives . . on the 12th day of January 1967
^ Affidavit of Brackhahn
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first pertains to the turnover of employees which oc-
curred since the Union's certification and the second is
predicated upon Respondent's appraisal of its employees'
interest (or lack thereof) in retaining the Union as their
bargaining representative. These are discussed as fol-
lows:
1. Turnover of employees
With respect to the turnover of employees, the parties
stipulated that Respondent's records reflect as follows:
(1) that the payroll just preceding January 15, 1967, in-
cluded the names of four employees who were listed on
Respondent's payroll of October 10, 1962;7 (2) that of
the 36 motel employees (exclusive of restaurant em-
ployees) employed on January 12, 1967, 18 were in the
Company's employ on April 8, 1966;8 (3) and that of the
29 employees employed in the restaurant on January 12,
1967, 12 were on Respondent's payroll as of April 8,
1966.9
2. Respondent's appraisal of the employee's interest in
the Union
In addition to Respondent's "turnover" defense,
Respondent contends that it observed a falling off of
union activity at the motel and that this bolstered its con-
clusion that the Union no longer represented a majority
of the employees. Innkeeper Santaro and Restaurant
Manager Hixon were called by the Respondent to testify
concerning their observations in this regard.
In testifying as to his basis for doubting that the Union
had a majority in January 1967, Santaro began by stating,
"Well, we had a large amount of turnover in our staff; also
from observing this at our meetings and seeing the
number of people who were supposedly Union members,
I got the impression that there were not as many Union
members as anyone else had thought." Santaro then
stated that he "assumed" that it was "just" the employees
who attended the bargaining meetings who were members
of the Union. It was thereupon established that Santaro
had attended only one bargaining meeting prior to the
January 12 meeting, Indeed, a careful study of Hixon's
Santaro further testified that prior to April 8 he observed
union representatives come into the restaurant "at least
every couple of weeks ... to speak to Laura Tackett or
some in the restaurant." This, he said, did not continue
after April 8.10 However, on cross-examination Santaro
conceded that he never was advised that any employee
had withdrawn from the Union or that any employee had
ever stated to him that he could not sign up with the
Union; further, that in January 1967, he did not know
which of the employees were union members and which
employees were not.
Turning to the testimony of Restaurant Manager Hix-
on, I should first note that Hixon impressed me as a
distinctly unreliable witness. Much of his testimony was
confused and rambling, punctuated with conclusions, and
frequently not responsive to the questions put to him.
Hixon began his testimony by stating that in about the
middle of December 1966, he noticed that employees in
the restaurant whom he knew to be union members or
"sympathizers" were gathering around and talking among
themselves. He said that, "in order to try to find out what
was going on, I would go around and police my dining
room, pick up a little piece of paper here and there and
wipe off tables, and, of course, they would depart." As he
later conceded, all this came to naught for he could not
hear what the employees were saying. Also on direct ex-
amination Hixon gave conclusionary testimony to the ef-
fect that prior to the January 12, 1967, meeting he con-
ferred with Santaro and the Company's attorney, during
which conference they concluded that of the 23 or 24
restaurant employees 6 employees were "positive" union
adherents and that "possibly three or four you might say
were on the fence, who could move either way." Aside
from the lack of probative value which can be accorded
this testimony, I refer to it here only because it is demon-
strative of the manner in which Respondent apparently
arrived at its conclusion that the Union no longer
represented a majority of the unit employees. This was
even more conclusively demonstrated when Hixon
responded on cross-examination as follows:
Q. Now, will you tell me how you arrived at that
figure?
A. Yes sir. During the negotiations in 1965, and
also in early 1966, the members that had been at
these negotiation meetings with the Union that were
still employed at the Restaurant, numbered in my
count, the ones who had been there and were not
with the company, I came up with the count of six
still with the company.
Q. These six had participated in negotiations?
A. Yes, they had.
Q. Now, how did you determine the affiliation of
the rest of these employees in the Restaurant? If you
can, break them down as to how you separate each
group?
A. Well, being in the restaurant all of the time and
watching the work, and the interest the people take,
it is very easy to determine those who are, or are not.
Q. What do you mean by that?
A. The people who are interested in the service to
the company and service to the employees. In other
words, the good workers go right on. Now, I do not
mean to say by this that you do not have Union mem-
bers who are not good workers -
In addition to the foregoing, Hixon testified that a
number of employees told him that they were not mem-
bers of the Union. Again, Hixon's testimony in this re-
gard was highly confusing and uncertain. He specifically
mentioned the names of employees Mary Lou Rogers,
Bonnie Hanneman, Rose Garten, and Clara Burns as
having told him that they did not want anything to do with
the Union. However, he testified that his conversation
with Rogers to this effect occurred on the night of Janua-
ry 12, 1967, which was after the meeting wherein
Respondent refused to bargain further with the Union.
' The election which resulted in the Union 's certification was held on
October 30, 1962 The October 10, 1962, payroll listed the employees
employed by the Respondent preceding the election The record does not
reflect the number of employees in the unit at the time of the 1962 elec-
tion, although the stipulation of the parties reflects that there were approx-
imately 60-65 unit employees employed on January 12, 1967
8 It will be recalled that the last meeting prior to the January 12 meeting
occurred on April 8, 1966
9 The above data was submitted by the Respondent and agreed to by
the General Counsel I have set forth these figures as the only data in the
record relative to the turnover of Respondent's employees
10 Along this line Santaro testified, "And after the April 8 meeting I be-
lieve there were only two occasions in which I received a telephone call
about anything pertaining to Union matters [and] the only correspond-
ence I can recall is a telegram I got one time.
THE LITTLE ROCK DOWNTOWNER, INC. III
This was also true of his conversation with Rose Garten,
which he conceded occurred a day or two following the
January 12 meeting. Indeed, a careful study of Hixon's
confused testimony convinces me that his conversations
with Hanneman and Burns, assuming his versions thereof
to be true, also occurred at some point after the January
12 meeting." In addition, Hixon testified that he had con-
versations with other employees who told him as follows:
In December 1965, Mosella Reed, a cook, stated that
"some people" came to her home and stated that she had
to join the Union to work for the Respondent12• in about
December 1966, employee Eline Yamitz stated that she
had never been approached by the Union "because she
felt that they understood how she felt anyhow"; that
Bobbi McGuthrie told him at unspecified occasions in
1966 and 1967 that she was not interested in the Union;
and that "back sometime last year" three weekend
busboys (he named Leon Jackson, Ronnie Smith, and
Napoleon Dennis) told him they were not interested in
the Union.13 Thus the extent of Hixon's testimony con-
cerning his conversation with employees concerning their
lack of interest or membership in the Union.
C. Additional Facts; Conclusions as to Respondent's
Refusal To Bargain
The issue as to Respondent's asserted good-faith doubt
of the Union's majority status is governed by well-
established Board and court precedent which the Board
has recently summarized and reasserted in Laystrom
Manufacturing Co. 151 NLRB 1482, 1483 as follows:
Absent unusual circumstances, there is an ir-
rebuttable presumption that the majority status of a
certified union continues for 1 year from the date of
certification. [Ray Brooks v. N.L.R.B., 348 U.S. 96;
Celanese Corporation of America, 95 NLRB 664,
672.] After the first year the certificate still creates
a presumption of majority status, but the presump-
tion is normally rebuttable by an affirmative showing
that the union no longer commands a majority.
Moreover, where the certificate is a year or more old
an employer may withhold further bargaining
without violating the Act and insist that the union
reestablish its statutory representative status if, but
only if, he in good faith has a reasonable doubt of the
union's continuing majority. [The Richard W. Kaase
Company, 141 NLRB 245; Mitchell Standard Cor-
poration, 140 NLRB 496; The Randall Company, et
al., 133 NLRB 289; Celanese Corporation ofAmer-
ica, supra.]
A showing of such doubt, however, requires more
than an employer's mere assertion of it and more
than proof of the employer's subjective frame of
mind. The assertion must be supported by objective
considerations. The applicable test, as defined in the
Celanese case, is whether or not the objective facts
furnish a "reasonable basis" for the asserted doubt,
or, put another way whether or not there are "some
reasonable grounds for believing the Union has lost
its majority status since its certification."
In the instant case it is clear that in asserting a good-
faith doubt as to the Union's majority status the Respond-
ent relies chiefly on the turnover in the number of em-
ployees in the unit which occurred during the approxi-
mate 4-year period following the Board's certification."
However, the Board has held that employee turnover of
itself cannot be a basis for claiming loss of majority. Thus,
in the Laystrom case the Board stated: is
Employee turnover standing alone does not pro-
vide a reasonable basis for believing that the Union
had lost its majority since the prior election. The
Board has long held that new employees will be
presumed to support a union in the same ratio as to
those whom they have replaced.
Indeed, the facts in the instant case are stronger than in
the Laystrom case, for in the Laystrom case the employer
had enjoyed a good relationship with the Union, it had not
committed any unfair labor practices, and it finally filed
a decertification petition to test the Union's majority. In
the instant case, however, more than a 2-year delay in the
bargaining process between the Respondent and the
Union was incurred as a direct result of Respondent's un-
fair labor practices in having refused initially to bargain in
good faith with the Union.16
Neither has the Respondent here presented evidence
that its asserted good-faith doubt was predicated upon
objective factors, such as knowledge of substantial em-
ployee defection from the Union or rejection by them of
the Union as their collective-bargaining agent. As hereto-
fore noted, Manager Santaro admittedly had no
knowledge as to the extent of employee membership in
the Union ... nor did he offer any testimony whatsoever
of having witnessed, or having called to his attention, any
employee dissatisfaction with or rejection of the Union.
As to Santaro's subordinate, Restaurant Manager Hixon,
even construing his testimony in a light most favorable to
i i As to employee Burns, it appears from Hixon's testimony that in fact
he ascertained that she was "for" rather than "against" the Union Thus,
he testified, "Clara Burns told me that she had signed a card a long time
ago, and when she told me this at this time, she said that she did not want
anything to do with it Of course, I found out later that she did "
(Emphasis supplied )
12 According to Hixon, Reed did not say whether she had ever joined
the Union The record does not disclose whether Reed in fact was a
member of the Union or not
is Employee Ruby Bolin, whom Hixon also named as having stated that
she was not interested in the Union, was not in Respondent's employ on
January 12, 1967
14 It was not until after the Union's request to bargain in December
1966, that Respondent undertook to ascertain whether the Union main-
tained a majority it was at this time that Respondent's attorneys took the
initiative by requesting management to obtain whatever evidence it could
with respect to the Union's majority or lack thereof As indicated previ-
ously, the attorneys thereafter met with management on two occasions
prior to January 12, 1967, for the purpose of discussing this matter Sig-
nificantly, the affidavit of Attorney Brackhahn cites the percentage of
turnover of employees as reflected on the Company' s payroll during the
penod in question as the only reason for doubting the Union's majority
Attorney Brackhahn , who appears to have been Respondent 's principal
representative in dealing with the Union during the period material herein,
made no mention in his affidavit that any alleged employee defection from
the Union was a reason for Respondent 's refusal to recognize and bargain
with the Union
11 The court denied enforcement of the Laystrom case N L R B v
Laystrom Manufacturing Co , 359 F 2d 799 (C A 7) However the
Board has indicated that it will continue to follow the Laystrom doctrine
See Quaker Tool & Die, Inc, 162 NLRB 1307, Palmer Asbestos &
Rubber Corp, 160 NLRB 723, M FA Oil Company, 162 NLRB 1071;
U S Gypsum Co, 157 N LRB 652
16 As previously noted, the Union was certified on November 7, 1962
The court's decision enforcing an order of the Board directing the Re-
spondent to bargain in good faith with the Union did not issue until
March 5, 1965 N L R B. v. Little Rock Downtowner, supra
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent, it reflects that during a period including
more than a year prior to January 12, 1967, only some
4-6 of the 60-65 unit employees expressed to him a disin-
terest in the Union. Surely, this expression from such an
exceedingly small percentage of the unit employees is not
ground for assuming that a substantial number of them
were disenchanted with or had defected from the Union,
and I so find. Interestingly enough, Hixon testified that in
late December 1966, or early January 1967, he received
complaints from several customers to the effect that the
waitresses were congregating and talking in the dining
room and that he "suspected" that they were talking
about the Union. He thereupon found it necessary to
warn them about engaging in such activity during working
hours. Rather than reflecting employee abandonment of
the Union, Hixon's own testimony would seem to in-
dicate that union activity among the restaurant employees
in fact was still very much alive.
In sum, and in view of all the foregoing, I conclude and
find that Respondent has not met the test for establishing
a good-faith doubt which is sufficient to override its statu-
tory bargaining obligation ." Accordingly, I find that by
refusing to recognize and bargain with the Union on and
after January 12, 1967, the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
D. Independent Violations of Section 8(a)(5) and (1) of
the Act
It is undisputed that on January 1, 1966, the Respond-
ent unilaterally, without notice to or consultation with
the Union, granted wage increases to H. D. Becker, a
maintenance employee, and Climmie Stewart, a porter.
Becker's monthly wages were increased from $100 to
$120 and Stewart's daily rate was increased from $10.80
to $12. Respondent apparently defends this action on the
ground that Union Representative Earl Yeargan was not
active in representing the Local at this time. However,
the evidence reflects that Yeargan was still in the Little
Rock area during this period and the Respondent has
shown no reason why it could not contact him or some
other union representative for the purpose of negotiating
the wage rates of these employees. Indecd, Innkeeper
Santaro, who granted the wage increases in question, as-
serted that in the months prior to the April 8, 1966, meet-
ing, he frequently observed union officials come to the
motel and speak to the employees. I find Respondent's
defense, as aforesaid, to be lacking in merit. Accordingly,
I find merit to the complaint's allegation that Respond-
Although the Union may have been negligent in pursuing its bargain-
ing rights , this was not a valid basis for the Respondent 's refusing to bar-
gain Litho-Graphic Press, Inc , supra Unless shown to the contrary by
objective considerations , which the Respondent has not shown here, the
presumption of the Union's majority status continued
11 At the hearing the Respondent attempted , but admittedly failed, to
establish that Becker was a supervisor within the meaning of the Act. I
also reject as without merit Respondent 's contention that Becker and
Laura Tackett, the latter a desk clerk, should be excluded from the unit for
the asserted reason that they do not have a "community of interest with
the other unit employees " Suffice it to note that ( I) there is no evidence
that Respondent has ever raised any issue concerning the exclusion of
these employees from the unit during the 4 years pnor to the instant case,
and that (2) the Respondent has not established that the routine duties of
these employees are such that they should be excluded from the unit
10 Although there was some discussion concerning the Union during
this conversation , there is no allegation in the complaint that Santaro en-
gaged in any type of coercive conduct on this occasion Moreover, I was
ent's action in granting the aforesaid unilateral wage in-
creases, without prior consultation with the employees'
bargaining representative, was violative of Section 8(a)(5)
and (1) of the Act. N.L.R.B. v. Benne Katz, 369 U.S.
736.18
The complaint also alleges that the Respondent bar-
gained directly and individually with employees in the
unit on February 28 and March 7, 1966, in violation of
Section 8(a)(1) and (5) of the Act. Laura Tackett, the
desk clerk, testified that she had a discussion with San-
taro on February 28 in which he stated, inter alia, that
"he would like to give me and Sallie Berryman some extra
duties."19 It is undisputed that on March 7, 1966, Santaro
spoke to Tackett and Sallie Berryman, the latter also a
desk clerk, concerning the possibility of giving them extra
duties, together with additional compensation therefor.
However, Berryman credibly testified that Santaro also
told them he would have to take the matter up with the
Company's regional manager and the Union before any
such changes could become effective.20 While the
testimony is somewhat confused as to what happened
thereafter, it is undisputed that the Union and the
Respondent discussed the Tackett-Berryman situation as
the next bargaining meeting; it appears that the Union
agreed to the additional duties but not to the extra
compensation.21 Upon consideration of the foregoing, I
fail to see where Santaro's preliminary discussions with
the two desk clerks where he indicated the possibility of
granting them additional duties and additional compensa-
tion (but not before prior consultation with the Union)
constituted individual bargaining with the employees in
violation of the Act. I shall, accordingly, recommend that
this allegation in the complaint be dismissed.
The complaint further alleges that in latter January
1967, the Respondent unilaterally changed the working
hours and days of its employees without notice to or bar-
gaining with the Union. That Respondent in fact made
such changes with respect to a number of its employees
following Respondent's refusal to bargain on January 12,
1967, is undisputed.22 Inasmuch as I have found that the
Union remained the bargaining agent when such changes
were made, I find that by taking such unilateral action the
Respondent further violated Section 8(a)(5) and (1) of the
Act.23
Finally, the complaint alleges that Restaurant Manager
Hixon engaged in conduct independently violative of Sec-
tion 8 (a)(l) of the Act. Relative to this allegation, Clara
Burns, a dishwasher, testified without contradiction that
in the middle of February 1967, Hixon came up to her
and employee Eleanor Barbridge while they were at
under the impression that Tackett tended to exaggerate her testimony I
do not credit her testimony , which Santaro denied, that during the course
of this conversation Santaro volunteered to give her a $500 loan
20 It was Tackett 's testimony that, "He [Santaro ] mentioned that he
did not know whether he would go through the Union or through the Com-
pany, and that he was also going to Shreveport to talk to Mr Kessler [the
regional manager] "
21 Tackett testified that she was given the extra duties pnor to the bar-
gaining meeting in which this was discussed Santaro testified that no such
action was taken until after the meeting I credit the testimony of Santaro
in this regard
22 The uncontroverted and credited testimony of employees Clara
Burns and Owlie Gundy
23 In a previous case, the Board found that the Respondent committed
similar violations of the Act by unilaterally granting wage increases and by
unilaterally changing working conditions of certain employees The Little
Rock Downtowner, 145 NLRB 1286
THE LITTLE ROCK DOWNTOWNER, INC. 113
work and asked if they had signed a union card on
the job. Elizabeth Bray, a waitress, testified without
contradiction that on January 15, 1967, Hixon ap-
proached her and three other waitresses as they were
standing together in the dining room during a slack
period. According to the credited testimony of Bray,
Hixon stated that "he was tired of us girls talking this
Union business, and furthermore it would not do us any
good if we did belong to the Union and that he did not
want to hear it any more on the floor." Assuming the
situation warranted Hixon in warning the employees not
to engage in union activities while they were working'24
I find that Hixon's further statement that it would not do
the employees any good to join the Union, particularly in
the context of Respondent's unlawful refusal to bargain
with the Union 3 days earlier, was violative of Section
8(a)(1) of the Act. I further find that Hixon's unexplained
questioning of Burns and Barbridge as to whether they
had signed a union card was likewise violative of Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, it will be recommended that
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate
the policies of the Act.
In view of the extent of the unfair labor practices found
herein and in view of the commission by the Respondent
of similar unfair labor practices in the recent past, I shall
recommend that the Respondent cease and desist from in-
fringing in any manner upon the rights guaranteed em-
ployees by Section 7 of the Act.
Upon the basis of the above findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. By interfering with, restraining , and coercing em-
ployees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, Respondent has engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
4. All regular full-time and part-time employees of the
Company employed at its Little Rock, Arkansas, place of
business including front office employees, porters,
cleanup men, maids, waitresses, cooks, cashiers, dish-
washers, potwashers, and room service employees, ex-
cluding office clerical employees, professional em-
ployees, watchmen and guards, and supervisors as
defined in the Act constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
5. At all times since November 7, 1962, the Union has
been, and now is, the exclusive representative of the em-
ployees in the said unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
6. By refusing on and since January 12, 1967, to bar-
gain collectively with the Union as the representative of
the employees in the above unit, and by unilaterally in-
stituting wage increases and changing the hours of its em-
ployees without notice to or consulting with the Union,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and pursuant to Section 10(c) of the Act, it
is recommended that Respondent, The Little Rock
Downtowner , Inc., its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Hospital-
Hotel -Motel , Restaurant Employees Union, Local 200,
Hotel & Restaurant Employees and Bartenders Interna-
tional Union , AFL-CIO, as the exclusive representative
of all employees in the appropriate bargaining unit
described hereinabove.
(b) Unilaterally instituting changes in wages, rates of
pay, hours, or other terms and conditions of employment
of its employees in the above-described appropriate unit
without first notifying and consulting with the Union.
(c) Coercively interrogating and threatening its em-
ployees, thereby interfering with, restraining , and coerc-
ing its employees in the conduct of activities protected by
the Act.
(d) In any manner interfering with , restraining, or
coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all em-
ployees in the appropriate unit, and embody in a signed
agreement any understanding reached.
(b) Post at its motel in Little Rock , Arkansas, copies
of the attached notice marked "Appendix ." 25 Copies of
said notice , to be furnished by the Regional Director for
Region 26, after being duly signed by the Respondent's
" As previously noted, Hixon testified that he warned employees after
receiving complaints from customers that the waitresses were congregat-
ing and talking in the dining room
15 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
114 DECISIONS OF NATIONAL
representative, shall be posted by Respondent im-
mediately 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.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.26
IT IS FURTHER RECOMMENDED that the complaint be
dismissed as to any violations alleged but not herein
found.
xe In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order , what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interrogate our employees concern-
ing their union activities, sympathies, or member-
ship.
WE WILL NOT tell our employees that it will not do
them any good to join the Union.
WE WILL NOT refuse to bargain collectively with
Hospital-Hotel-Motel, Restaurant Employees
Union, Local 200, Hotel & Restaurant Employees
and Bartenders International Union, AFL-CIO, as
LABOR RELATIONS BOARD
the exclusive representative of all the employees in
the bargaining unit described below.
WE WILL NOT change hours, wages, working con-
ditions, or other terms of employment of our em-
ployees in the unit described below without first noti-
fying and consulting with the above-named union.
WE WILL, upon request, bargain with the above-
named Union as the exclusive bargaining representa-
tive of our employees in the appropriate unit
described below, and, if an understanding is reached,
embody such understanding in a signed agreement.
The appropriate unit is:
All regular full-time and part-time employees
employed at our motel in Little Rock, Arkansas,
including front office employees, porters,
cleanup men, maids, waitresses, cashiers, dish-
washers, potwashers, room service employees,
excluding office clerical employees, professional
employees, watchmen and guards, and super-
visors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the rights guaranteed by Section 7 of the Act.
THE LITTLE ROCK
DOWNTOWNER, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis, Ten-
nessee 38103, Telephone 534-3161.