Continental Inn, 248 (1970)
Interstate 65 Corporation d/b/a Continental Inn and Hotel & Restaurant Employees & Bartenders Union Local 181 . Cases 9-CA-5407-1 and 9-CA-5407-2
October 31, 1970 DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 24, 1970, Trial Examiner James M.
Fitzpatrick 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. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision 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 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, the brief, and the entire record in this case, and finds merit in certain of Respondent's exceptions. Accordingly, we hereby adopt the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith.
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Respondent built the motel involved herein in 1961 and operated it until the Pick-Louisville Corporation acquired the facility from Respondent in 1962.
Pick recognized the Union on the basis of a card majority shortly after assuming control of the motel and, on January 23, 1963, entered into a collectivebargaining agreement covering such employees as waitresses, maids, housemen, bellmen, busboys, and bartenders. The parties renegotiated wages in 1966 and, on May 2, 1968, executed a new agreement, effective through December 31, 1970.
When Pick defaulted on various obligations in March 1969,2 Respondent agreed to reacquire the physical assets of the motel, apparently to avoid foreclosure of the mortgage which Pick had assumed when it purchased the motel . During the month prior to Respondent's taking title to the property on June 5, it repaired and refurbished the building in an attempt to improve the motel's image in the Louisville community. On June 4, at a series of meetings with various groups of motel employees, Respondent's newly appointed motel manager, Dlutowski, announced that Respondent was going to run an entirely different operation at the motel, with better food, better service, new equipment, and higher prices.
Respondent retained 50-55 of the 60-65 former Pick unit employees in essentially the same positions they had before the takeover on June 5 . On June 6 and 9, the Union informed Respondent that it was the employees' bargaining agent and that there existed a contract between the Union and Pick . Respondent declined to deal with the Union under the contract or otherwise, stating that it was not Pick 's legal successor. It also changed several employment conditions without consulting the Union, including the elimination of seniority, overtime, and premium time.
We agree with the Trial Examiner's well-reasoned conclusion that despite the change in ownership from Pick to Respondent, or the manner in which Respondent regained control of the motel and thereafter operated it, the employing industry has remained essentially the same, and that Respondent, as Pick's successor, is bound to recognize and bargain with the Union and honor the contract.3 It follows, as found by the Trial Examiner, that Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union and honor the collective-bargaining agreement and by unilaterally changing certain terms and conditions of employment.
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The Trial Examiner found that Respondent violated Section 8(a)(3) of the Act by initially discharging employees Adams and Dunavan, along with the other unit employees, on June 4, and then conditioning the employees' continued employment on their willingness to work for Respondent without union representation . We disagree.
At one of the June 4 employee meetings conducted by Motel Manager Dlutowski as a preliminary to Respondent's assumption of control over the motel on June 5, the waitresses, including Adams and Dunavan, were told, inter alia, that Respondent had no contract with the Union, that there would be no union at the motel, and that Respondent would be glad to have all the waitresses as employees if they wanted to work without the Union. At the conclusion of his remarks, Dlutowski and Respondent's bookkeeper,
Carter, distributed applications for employment to ' Respondent has requested oral argument . The request is hereby denied 2 All dates are 1969 unless otherwise indicated.
because the record, the exceptions, and the brief adequately present the 3 The William J. Burns International Detective Agency, 182 NLRB No.
issues and the positions of the , parties. 50; Solomon Johnsky d/b/a Avenue Meat Center, 184 NLRB No. 94.
186 NLRB No. 41 the waitresses, but the supply ran out before Adams and Dunavan could receive their forms.4 Carter thereupon left the meeting room to secure additional applications.
At about the same time that Adams failed to obtain an employment application, she overheard Dlutowski tell the dining room hostess to arrange a crew to open up for breakfast the following morning. Adams, who customarily worked the breakfast shift, was not assigned to work the next morning because, as found by the Trial Examiner, Respondent had not received a completed employment application from Adams at the time the crew was assembled. When she did not receive an employment form and assignment to her usual duties, Adams became upset, left the meeting, and went to the motel bar.
Dunavan, after complaining to Dlutowski's superior that she had not received an application, was given two applications when Carter returned, one of which the Trial Examiner found was 'presumably' for Adams, who had left the meeting by then. After reflection, Dunavan decided not to fill out the application, and, leaving both forms in the meeting room, she joined Adams in the bar. The Trial Examiner found that although Dunavan failed to deliver Adams' application to her, Dunavan told Adams about it shortly thereafter when she met Adams in the bar. However, Dunavan's testimony on this point is contradictory. On cross-examination by Respondent's counsel, Dunavan first testified that when Dlutowski gave her the second application for Adams, she left it in the meeting room but told Adams about it in the bar thereafter. Dunavan thereafter testified, upon further cross-examination, that she did not remember mentioning to Adams that she had an application for her. Adams testified that she never obtained an application. The likelihood that she was never told by Dunavan that an application had been made available for her appears to be supported by the following testimony by Adams. When asked by Respondent's counsel if she would like to return to work for Respondent, Adams replied:
Well, I liked my job there. I had worked there for 7 years. If I hadn't liked [sic] I wouldn't have stayed that long. But they didn't want me to start with, it doesn't look like, or they would have give me an application, don't you think so? We find, therefore, contrary to the Trial Examiner, that while Dunavan was given an application for Adams, she left it behind in the meeting room upon joining Adams at the bar and never informed Adams of that fact. In short, we find that Adams at all times material herein was of the belief that Respondent had never even offered her an employment application.
As noted above, Dunavan was given an employment application after complaining to Dlutowski's superior about not having received one initially.
When Dlutowski handed her the form, he told Dunavan, 'Well, but no union; no union.' Dunavan did not complete her application, but instead joined Adams at the motel's bar. Dunavan testified at the hearing herein about an incident in 1965 when she spearheaded a petition-signing drive designed to have Dlutowski, who was then catering manager for Pick, discharged for cruel treatment of waitresses. Dlutowski testified that he left Pick to take a better job.
Dunavan testified that she 'reconsidered' after receiving the application and left it at the meeting.
When asked by Respondent's counsel on crossexamination why she had not filled out the form,
Dunavan replied:
It was an afterthought, I mean I was upset naturally when I didn't get one.... I don't know how to answer it without being mean. . . . It's obvious. I didn't want to work under Mr. Dlutowski.
The Trial Examiner concluded that since Pick never authoritatively told the employees that their employment was to be terminated as of June 4, Respondent in effect discharged all the employees on that date, when Dlutowski informed the employees that they would be rehired but without union representation.
The Trial Examiner found that 'to so condition their continued employment at the motel and to refuse to employ them except under nonunion conditions' was a violation of Section 8(a)(3) of the Act, and that Adams and Dunavan had therefore been the objects of unlawful discrimination. However, to sustain his Section 8(a)(3) allegations in the unusual circumstances of. this case, the General Counsel must not only establish that Respondent conditioned continued employment on the employees' willingness to work without representation by their duly selected Union, but also that employees Adams and Dunavan chose not to continue in Respondent's employ because Respondent had established that condition. We find that the General Counsel has not proven the alleged violations of...
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