Fresno TownehouseDownload PDFNational Labor Relations Board - Board DecisionsDec 14, 1979246 N.L.R.B. 1053 (N.L.R.B. 1979) Copy Citation FRESNO TOWNEHOUSE Nevis Industries, Inc., d/b/a Fresno Townehouse and Stationary Engineers, Local 39, International Union of Operating Engineers and Culinary, Cooks, Bar- tenders and Hotel, Motel Service Employees Union, Local No. 62. Cases 32-CA 207 (formerly 20-CA-12818) and 32-CA 221 (formerly 20-CA 12901) December 14, 1979 DECISION AND ORDER On August 22, 1978, Administrative Law Judge Gordon J. Myatt issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a statement urging adoption of the Administrative Law Judge's Decision and a brief in support thereof. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge, as herein modified, and to adopt his recommended Or- der, as modified below. Like our colleagues, we agree with the Administra- tive Law Judge's finding that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to hire or to retain the engineering employees of its predecessor, Del Webb Corporation, due to an- tiunion considerations. The record fully supports the Administrative Law Judge's finding that Respondent refused to hire any of Del Webb's engineering em- ployees, including Supervisor Ernest Brewer, because they were members of Local 39, and Respondent con- templated operating the facility "non-union." Unlike our dissenting colleagues, however, we find the Ad- ministrative Law Judge was correct in concluding that in order to remedy fully Respondent's violations of the Act it is necessary to restore the status quo ante by ordering the reinstatement of Supervisor Brewer. In our view, the dissent is rooted in a mistaken inter- pretation of the record and an erroneous analysis of the law. As found by the Administrative Law Judge, some- time prior to assuming control over the hotel facility on April 11, 1977, Respondent determined that the i Respondent has expected to certain credibility findings made by the Ad- ministrative 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 Dn Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis fir reversing his findings The Administrative Law Judge inadvertently found in the section of the D)ecision entitled "'Concluding Findings," subsec. C, that the union repre- sentative asked Ito meet with Respondent on August I The request n act was made on April I I facility was no longer going to be a "union house." On April 8, Respondent conducted a meeting of all department heads in which it read an open letter to employees advising them that they would be termi- nated at midnight, April 10. On April 10, another meeting of department heads was held: Supervisor Brewer, who was a union member, was not informed of this meeting and did not attend. At this meeting, Respondent reiterated its position that the hotel was no longer going to be "union," and stated among other things that it intended to terminate the entire engineering crew. Then, starting at 11:30 p.m.. it pro- ceeded to terminate the engineers. Respondent first notified engineer Richardson, who by that time was finishing his shift, that he was terminated and should clear out his locker. At midnight, Richardson's shift replacement, Powles, arrived at Respondent's facility only to be notified that he too was terminated. Then, at 5:30 a.m. (April 11), Respondent telephoned Su- pervisor Brewer and notified him that he was termi- nated. Brewer nonetheless went to work later that morning and, accompanied by employee Pino, spoke with management officials. Both were notified--- Brewer for the second time-that they were termi- nated, and that Respondent intended to operate non- union. A fifth engineering employee, Langerman, was terminated in like fashion later that day. From the foregoing, it is plain that Brewer's termi- nation was considerably more than simply contempo- raneous with the terminations of the other union members. Rather, it was an integral part of Respon- dent's scheme to rid the engineering department of any and all union adherents.3 Thus, we are at a loss to understand how our dissenting colleagues can con- tend that Brewer's termination and nonreemploy- ment "stood separate and apart" from Respondent's treatment of the other employees. Accordingly. we agree with the Administrative Law Judge that Re- spondent's actions in refusing to hire or retain Brewer constituted "an integral part of the employer's total effort to stifle unionism among his employees." We therefore find that Respondent's conduct with respect to Brewer violated Section 8(a)(l) of the Act and we adopt the Administrative Law Judge's recommenda- tion that our remedial order provide for Brewer's re- instatement. 4 Our dissenting colleagues contend here5 that, be- cause the statute does not protect supervisor:; from I That this was the Employer's motivation in discharging Brewer and the employees is underscored by the fact that Respondent subsequently hired former part-time engineer Alford contingent upon Alford's resignation rom the Union. 4 See. e.g., Donel.son Packing Co., Inc and Riegel Prolir,l ('nilpin, 220 NLRB 1043 1975}. enfd. 569 F.2d 430 (6th Clr 19781;: Fatlrie, .Nlrcit r Hlome. 202 NlRB 318 1973). ' Member Murph> raises similar arguments In her dissentl I D-rdipc Industrie I and Gr,enhrjer ndusrries Inc, 246 Nl RB 948 (1979 246 NLRB No. 167 1053 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discrimination or discharge for engaging in union ac- tivities, the Board is precluded from ordering the rein- statement of supervisors in cases such as this one. Yet. they evidently concede the Board's authority to grant reinstatement to supervisors found to have been dis- charged for refusing to engage in unfair labor prac- tices,6 for testifying at a Board proceeding,7 for pro- viding an affidavit to a Board agent, 8 or for attempting otherwise to protect employees from inter- ference or discrimination proscribed by the Act.9 Ad- ditionally, the dissenters appear to approve the Board's policy of granting reinstatement to supervi- sors where their discharges were a "conduit" to the employer's unlawful discrimination against employ- ees.' 0 However, where, as here, the evidence shows that a prounion supervisor was terminated along with all prounion employees in furtherance of a plan to rid the employer's facility of all union activity, they would withhold the reinstatement remedy. To grant it, they claim, is equivalent to according supervisors the status of employees. And they reject the view that the discharge of supervisors under such circumstances violates Section 8(a)(l) because it tends to coerce em- ployees. They assert that this view would lead to the anomalous result that all discharges of supervisors for engaging in union activities would be deemed unlaw- ful since all such discharges may to some extent tend to discourage similar employee activities. We find their arguments unpersuasive. Initially, we reject their contention that the statute precludes a finding that Respondent violated Section 8(a)(l) when it terminated and refused to rehire Su- pervisor Brewer. They rely essentially upon Section 2(3) of the Act, which excludes supervisors from the definition of employees." Examination of that section and its legislative history, however, makes plain that this section was added in 1947 to negate the Board's judicially approved policy of certifying bargaining units of foremen'2 by excluding supervisors from the definition of employee.' Despite the fact that Con- 'See. e.g.. N L.R B v. Talledega Cotton Factory. Inc.. 213 .2d 201)9 (th Cir. 1954): Gernr, Cash Markets. Inc.. d/b/a Gerr's I.G.A., 238 NLRB 1141 (1978): Miami Coca ('ola Bottling Conparn, doing business as Ke West (ocw Cola Bottling Companv, 140 NLRB 1359 (1963); Inter-CiY Advertising Com- pany of Greens/oro N.C., Inc., 89 NLRB 1103 (1950). ' See. e.g., King Radio Corporation, Inc. v. NV L. RB., 398 F.2d 14 10th (Cir 1968): Oil City Brass Works v. N.L.R.B.. 357 F.2d 466 (5th (Cir. 1966): N.L.R.B. v. Better Monkey Grip Company, 243 F.2d 836 (5th Cir 1957). * See, e.g.. N R B. v. Electro Motive Mfg. Co., Inc., 389 F.2d 61 (4th C(ir 1968): Pri'essional Ambulance Service, Inc., 232 NLRB 1141 ( 1977): (;General Vutrition (Center, Inc., 221 NLRB 850 (1975). ' See Buddies Super Markets, 223 NLRB 950 (1976). ' See, e.g., Pioneer Drilling Co., Inc. v. N.L.R.B., 391 F.2d 961 (10th Cir. 1968); Krebs and King Toyota. Inc., 197 NLRB 462 (1972). H See also Sees. 211 and 14(a). '2 See Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485 (1947). 1 H. Rept. 245. 80th Cong., Ist sess. 13 17(1947), reprinted in I I.eg. Hist. 304 308 (NI.RA, 19471. Cited as reasons for amendments were a concern about the seeming inconsistency of according supervisors organizational rights with the policy of assuring employees freedom from domination and gress contemplated and intended to permit an em- ployer to discharge a supervisor for engaging in union activity, there is no evidence that Congress intended to alter the Board's previous policy of providing a reinstatement remedy when a supervisor was dis- charged for refusing to participate in an unlawful an- tiunion campaign." Nor is there any evidence that Congress sought to restrict otherwise the Board's au- thority to grant appropriate affirmative relief when- ever an employer's action against a supervisor tends to coerce employees. See also Inter-City Advertising Compan! , supra at 1106-08. Thus, the Board has continued to order supervisors reinstated to their supervisory positions where it has been established that the supervisors were discharged in order to interfere indirectly with employee rights by limiting access to the Board's process. '5 by coerc- ing supervisors into violating the Act,'6 by masking or otherwise facilitating' 8 direct discrimination against employees, or by tending to cause employees reasonably to fear like action will be taken against them if they participate in protected activity.'9 Thus, in addition to those circumstances apparently ap- proved by the dissenters, the Board has issued orders in protection of a supervisor where he was discrimi- nated against for having attended and testified on be- half of employees at an arbitration proceeding,20 for having engaged in protected activities while an em- ployee,' or in retaliation for the protected activities of the supervisor's employee spouse or relatives.22 Fi- nally, in those cases which our dissenting colleagues now23 disapprove, the Board has ordered supervisors reinstated along with employees where, as in the in- stant case, prounion supervisors were discharged along with prounion employees, not out of a legiti- control by their supervisors in their organizing and bargaining activities, and a desire to accord to employers the right to the loyalty of their agents in the plant, such loyalty being deemed inconsistent with union membership. 4 See Vail Manufacturing Company, 61 NlRB 181, 183 (1945), enfd. 158 F.2d 664 (7th Cir. 1947). 15 See, e.g.. N L.RB. v. Electro Motive M/g. Co., supra, Oil (Cini Brass Works v. N. L. R B., supra. 16 See, e.g., N L. R B v. Talladega Cotton Faconr, uprua, Miami Coca (ola Bottling Co., supra. ' See N.L RB. v J. B Martin Compan, 395 1 2d 690 (4th (ir. 1968). m See, e.g., Pioneer Drilling Co. v. N .. R B. , pra: Krebs and King Tovota. supra. 1" See. e.g.. King Radio Corp. v. N L.R.B, supra. Prodution Stamping, Inc., 239 NLRB 1183 (1979); Professional .4mulance Sersice. supra, Du-Tri Dis- plai. Inc,. 231 NLRB 1261 (1977); Rohr Industries, Inc, 220 NL.RB 1029 ( 1975): 'VADA olf Olahomna, In.. 216 NL.RB 70 (11975); see lso 'a I i/ Manu- acturing Company, supra. tO See Rohr Industries. Inc.. supra, Ebasco Servicers. Inc., 181 N .RB 768 (1970). 1 See, e.g.. Golden Slate Bottrlng Co. Inc., lormerl Pepsi-(ala Boilling (o. OJ Sacramento. er al. v. N L.R.B.. 414 U.S. 68. 187 189 (1973); Ann Lee Sportvwear. Inc., 220 NL.RB 982 1975). 22 See Consolidated Foods Corporation and irs wholl - ned subsidiary Lau s son Milk Compan,. 165 NlRB 953 (1967). z3 Despite their suggestion to the contrary. our dissenting colleagues have not always disapproved of this approach. See Fast Belden (Corporaurtn. 239 NL.RB 776 ( 1978) Donelson Packing (impanu , upra 1054 FRESNO TOWNEHOUSE mate desire by the employer to assure the loyalty of its supervisors, but in furtherance of an unlawful plan to rid the employer's facility of any and all union adherents-in short, where the supervisors' dis- charges were "an integral part of a pattern of conduct aimed at penalizing employees for their union activi- ties and ridding the plant of union adherents."2 4 Rein- statement of supervisors in such cases has been deemed necessary in order to dissipate fully the coer- cive effects of such mass discharges. Our dissenting colleagues -have now chosen to abandon this latter category of cases based on their assertion that the discharge of any supervisor for en- gaging in union activity may to some extent have a "spillover" coercive effect on employees. They have, however, failed to consider the teachings of N. L.R.B. v. John Brown, et al. d/b/a Brown Food Stores, et al., 380 U.S. 278 (1965), wherein the Supreme Court held that the determination of the legality of employer conduct which could tend to interfere with employee rights but which could also have a legitimate business purpose depends, first, on an evaluation of the em- ployer's motive in engaging therein and, second, as- suming no evidence of illegal motive, on a balancing of the coercive effects against the asserted business justification. Thus, where there is no evidence of a tainted motive such employer conduct will not be deemed unlawful if its tendency to interfere with em- ployee rights is "comparatively slight, and the em- ployer's conduct is reasonably adapted to achieve le- gitimate ends." (380 U.S. at 287-288.)25 In cases of supervisor discharges, therefore, the Board has dis- missed complaints where there was no showing of im- proper motivation and the circumstances showed the employer's actions to have been reasonably adapted to the legitimate end of discouraging union activity among supervisors.26 In the instant case, however, Respondent's motiva- tion in refusing to hire or retain Brewer, as indicated previously, is clear. When Brewer and Pino spoke with Respondent's representative on the morning of April 11 they were told that they were both termi- nated, and that the facility was henceforth going to be a "non-union house." Both were offered employment applications and were told they could be hired "on a non-union basis." Thus, there can be no question but that Respondent's refusal to hire or retain Brewer, like its refusal to hire or retain the prounion employ- 2 See Production Stamping. Inc., supra, East Belden Corp., supra. Barnes & Noble Booksiores, Inc.. 233 NLRB 1326 (1977); Donelson Packing Co., supra. IADA of Oklahoma. Inc., supra, Fairview Nursing Home, supra. 25 See also Rohr Industries. Inc., supra at 1037: Ebasco Senices, Inc. supra at 769. 26See Texas Gulf Sulphur Compaunv. 163 NLRB 88 (1967): National Freight. Inc., 154 NLRB 621 (1965): see also Sibilto's Golden Grill. Inc. 227 NLRB 1688 (1977) ees, was intended and did in fact interfere with em- ployee rights. Accordingly, in light of the evidence of Respondent's unlawful motivation in denying Brewer employment and the Board's statutory responsibility to dissipate the effects caused thereby, we find that Respondent violated Section 8(a)(1) of the Act and therefore adopt the Administrative Law Judge's order restoring the status quo ante, including that portion requiring Brewer's reinstatement as a supervisor. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Nevis Industries, Inc., d/b/a Fresno Townehouse. Fresno, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: I. Add the following as paragraph (h) of the rec- ommended Order: "(h) In any like or related manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended." 2. Substitute the following for paragraph 2(a) of the recommended Order: "(a) Offer Ernest Brewer, Ralph Langerman, Ar- thur Pino, Robert C. Powles, and Dick Richardson immediate and full reinstatement to the jobs they held with their previous employer. replacing, if neces- sary, present engineers and maintenance employees hired as of April 11, 1977, and thereafter, or, if there are not a sufficient number of positions now avail- able, place them on a preferential hiring list in order of their seniority with their previous employer, with- out prejudice to their seniority and other rights and privileges and make them whole for any loss of earn- ings they may have suffered as a result of the dis- crimination practiced against them in the manner set forth in the section of this Decision entitled 'The Remedy.'" 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER PENEI.I.O, concurring: I agree with my colleagues that Respondent's re- fusal to hire or retain Supervisor Brewer violated Sec- tion 8(a)(1) of the Act and that his reinstatement with bhackpay is necessary to offset fully the coercive effects of the mass refusal to hire or retain the engineers. In the past, the Board has recognized a critical dis- tinction between cases in which a supervisor is dis- 1055 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged or otherwise disciplined because of his or her personal involvement in union or concerted activity,27 and those in which the discharge or other discipline is part of an unlawful scheme or pattern of conduct aimed at stifling employees' Section 7 rights.28 In the former cases, we have found, in effect, that the em- ployer has merely exercised its prerogative to discour- age such activity among its supervisors. Under those circumstances, the mere fact that. as an incidental ef- fect thereof, rank-and-file employees might fear that the same fate may befall them if they engage in simi- lar activity is insufficient to transform conduct not otherwise unlawful into a violation of Section 8(a)(1).29 However, when an employer has engaged in a widespread pattern of misconduct against its em- ployees and supervisors alike, it may be inferred that the action taken against the supervisors was moti- vated not solely by any concern about the union or concerted activities of its management personnel but rather by a desire to discourage such activities on the part of its employees in general.30 More importantly, by engaging in such a widespread pattern of miscon- duct against employees and supervisors, an employer, intentionally or otherwise, makes it impossible for its employees to perceive the distinction between its right to prohibit its supervisors from engaging in union or concerted activity and its obligation to per- mit employees to freely exercise their Section 7 rights.3' Thus, in the context of such widespread mis- conduct, the coercive effect upon employees as a re- sult of action taken against a supervisor is not merely an unavoidable consequence of the discharge of an unprotected individual. Indeed, the coercive effect in such circumstances is the same as that arising from the action taken against the employees. Therefore, re- instatement with backpay for the supervisor is "nec- essary to offset fully the coercive effects of the em- ployer's total course of conduct."3 In the present case, the record reveals that Respon- dent, prior to taking over the hotel operation, decided that it did not wish to operate with union employees and therefore refused to hire or retain the entire engi- neering crew, including Supervisor Brewer, who was a union member. There is no indication that Respon- dent's refusal to hire or retain Brewer was in any way precipitated by a particular concern over Brewer's dual status as a union member and a supervisor. On the contrary, Respondent's refusal to hire or retain "7 See, e.g., Stop and Go Foods, Inc., 246 NLRB 1076 (1979), David-Anna Corporation d/ba Snyder Bros. Sun-Ray Drug, 208 NLRB 628 11974). 2 See. e.g., Production Stamping, Inc., 239 NLRB 1183 (1979): FairvieKw Nursing ome, 202 NLRB 318 (1973). '9 See Stop and Go Foods. Inc., supra. t Hecks Inc.. 170 NLRB 178, 184. fn. 8 (1968). n See General Nutrition Center. Inc.. 221 NLRB 850 (1975). 32 Stop and Go Foods. supra at 1078. the entire engineering department without regard to status warrants the inference that the refusal to hire or retain Brewer, like the refusal with respect to the employees, was motivated by a desire to discourage union activities among its employees in general.3 3 Thus, from the evidence it is clear that Respondent's refusal to hire or retain all of the engineers, including Brewer, was part of a pattern of conduct aimed at discouraging employees from engaging in union ac- tivity. Accordingly, I agree with my colleagues that Brewer's discharge violated Section 8(a)(l) of the Act. MEMBER MURPHY, dissenting in part and concurring in part: Respondent, a successor to Del Webb Corporation, has denied employment as a supervisor to Ernest Brewer because of his membership in Stationary En- gineers, Local 39, International Union of Operating Engineers, AFL-CIO. Notwithstanding its reason for so denying Brewer employment, I would find that Re- spondent's refusal to hire him as a supervisor was not unlawful because in that capacity he is not subject to the protection of Section 7 of the Act. The majority, however, in their continuing misguided zeal to extend the Act's protection to supervisors, would, with Mem- ber Penello's concurrence, find otherwise, essentially because Respondent's action towards Brewer was taken in conjunction with its clearly unlawful conduct in refusing to hire its predecessor's engineering unit employees because of their membership in Local 39.34 The majority's finding concerning Brewer perpet- uates, and in fact accelerates, an untenable Board po- sition of recent origin; i.e., that all supervisors termi- nated or denied employment in close proximity with employees found to have been discharged in violation of the Act are likewise protected by the Act.3 5 As '3 My dissenting colleague, in interpreting the Board's Decision in Fairview N'ursing Home, supra, to improperly hold that all supervisors terminated "in close proximity with employees found to have been discharged in violation of the Act. are likewise protected by the Act," clearly misconstrues the ratio- nale for finding a violation in that and similar cases. Admittedly, the dis- charge of a supervisor does not violate the Act because it occurred contem- poraneously with the unlawful mass discharge of employees. Rather, such fact is evidence which, in the proper circumstances, may warrant the infer- ence that the discharge was unlawfully motivated and was part of a pattern of conduct aimed at discouraging union or concerted activity of employees in violation of the Act. 4 I join them in finding that Respondent's refusal to hire the employees violated Sec. 8(aX3) and (I) of the Act. "5A majority of the Board in Fairview Nursing Home, 202 NLRB 318 (1973), found that the discharge of a supervisor (concurrent with that of rank-and-file employees) for engaging in union or other concerted activities was unlawful, inasmuch as it was an "integral part of a pattern of conduct" aimed at penalizing employees for their union activities, citing (but misap- plying) Miami Coca Cola Bottling Companrv doing business as Kev West Coca Cola Bottling Company, 140 NLR3 1359 (1963.) and Krebs and King Tovota. Inc. 197 NLRB 462 (1972). However. the Board in Sihilio's Golden Grill. Inc. 227 NLRB 1688 (1977), limited the applicability of the "integral part of a pattern of conduct" language to circumstances wherein the supervisor's discharge was a ploy to facilitate or cover up the contemporaneous or subse- quent unlawful discharge of employees. I am therefore perplexed by the majority's finding here and in Do.nlslope Indutries, Inc., and Greenbrier In- 1056 FRESNO TOWNEHOLISE explicated in my dissent in Dovwnslope Industries.36 also issued today, this position improvidently and im- properly extends the protections guaranteed employ- ees by Section 7 of the Act to supervisors, a group expressly excluded from the Act's protection by Con- gress.37 I am therefore compelled by the statute itself to take issue strongly with their erroneous finding that Respondent's refusal to hire Brewer as a supervisor violated the Act. For, like the supervisor's situation in Down.slope Industries, the facts here fail to establish that Brewer's being denied employment directly in- terfered with or was an attempt to clear the way for interfering directly with the employees' protected rights.38 On April 8, 1977, 39 Del Webb officially notified its employees at Fresno Townehouse that they would be terminated at midnight, April 10. Commencing at 11:30 p.m. on April 10, Robert Snider, Respondent's general manager, began informing the former Del Webb engineering department employees as each re- ported for duty that, inter alia, he need not report for work: his services had been terminated; Respondent was going to be a nonunion hotel; and Respondent's wages would be far less than those of Del Webb. At 5:30 a.m. on April 11, Snider contacted Supervisor Brewer at home and told him his services would not be needed. Later that morning Brewer, accompanied by a day-shift engineer reporting for duty, was told by Snider that Respondent was running a nonunion shop. Snider offered each of the former rank-and-file engineering employees of Del Webb an application for employment, which Snider indicated would be considered. He also offered Brewer an application form. By the end of the day on April 11, all of them had filed employment applications with Respondent. Within a few days Respondent hired Steven Al- dustries, Inc., 246 NLRB 948 (1979), which comports with the erroneous and deviant finding in Fainriew Nursing Home. supra. 31 In that case I dissented from the finding that the discharge of a supervi- sor for joining and for acting as the principal spokesman for employees in a confrontation with their employer violated Sec. 8(a)(l). a* Sec. 2(3) of the Act excludes from employee status "any individual em- ployed as a supervisor." Further, a supervisor. as defined by Sec. 2(11 ) of the Act, necessanly "acts as an agent of an employer, directly or indirectly." Thus, by extending to supervisors the protection Sec. 7 of the Act affords employees, the majority extends the statutory protection to employers. "s A review of Board and court cases shows that exceptions to the general rule that supervisory discharges do not violate the Act have been made in limited instances; for example, because the supervisor refused to engage in unfair labor practices at the behest of the employer (N.L.R.B. . Talladega Cotton Factory, Inc., 213 F.2d 209 (5th Cir. 1954)): because the superisor gave testimony adverse to the employer in a Board proceeding (Oil City Brass Works v. N.L..R. B.. 357 F.2d 466 (5th Cir. 1966)): because the employ- ment of rank-and-file employees was dependent on the employment of the supersisor who was discharged as a conduit to the employer's unlawful dis- charge of the employees (Pioneer Drilling Co, Inc. v. N.L.R.B., 391 F.2d 961 (lOth Cir. 1968); Krebs and King Toyota, supra)l or because the supervisor tried to protect employees from interference and discrimination proscnbed by the Act ( .4DA of Oklahoma. Inc, 216 NL.RB 750 (1975)). These excep- tions are discussed at length in my dissent in DorLnslope Industries "* All events herein are in 1977 ford4 to do the same work previously performed by the engineering employees.4 Thereafter, on May 19, Respondent sent a mailgram to each of the former engineering department employees, including Brewer, offering them positions as employees in the mainte- nance department (as the engineering department had been renamed) at $4.25 to $5 per hour. 2 On May 23. the Union responded on behalf of the engineers, accusing Respondent of "unilaterally" setting an hourly rate for engineers. and renewing an earlier re- quest to meet with Respondent. The above facts clearly demonstrate that Respon- dent, as alleged in the complaint, refused to hire the former rank-and-file engineering employees of [)el Webb because of their support of Local 39. It is also evident that Brewer was not hired as a supervisor for the same reason. While Respondent did not have to hire any of Del Webb's employees,4 3 it could not le- gally refuse to do so based upon union consider- ations."4 However, with respect to Brewer no such re- striction in law applied because he had been a supervisor for the predecessor employer and was seeking the same position with Respondent; there- fore, he stood outside the protection of the Act. Nev- ertheless, my colleagues attempt to place his situation in one of the excepted categories to the principle that supervisors are unprotected by Section 7 by seizing upon the fact that he was treated the same as the employees who were unlawfully denied emplo)ment. and thus denial of employment to him was, they ar- gue, an "integral part of a pattern of [unlawful] con- duct." In doing so, they have once again misapplied the quoted language to a situation it was never in- tended to cover, and which in this case has no support in fact. While the facts show that Respondent acted in "I Alford was employed by Del Webb's janitonal contractor. , hose em- ployees were represented by Service Employees International Union. I.,cal 110, of which Alford was a member. Alford also occasionally worked as a relief engineer under Brewer and belonged to Local 39. Respondent condl- tioned Alford's employment upon his withdrawal from Local 39. conduct which I find, in agreement with my colleagues and the Administrative Law Judge. violated Sec. 8(aXI) of the Act. ' In the meantime, on Apnl 29, a joint picket line was established at the Townehouse complex by Local 39 and by Culinary. Cooks. Bartenders and Hotel. Motel Service Employees Union. Local No. 62. which represented the maids, waitresses, busboys, bartenders, and other service employees under Del Webb. Thereafter, on May 19. Respondent refused to bargain with .o- cal 39, which it claimed did not represent a majonty of the engineering unit employees. *4 In contrast. Alford initially received $5.75 per hour, 2 weeks later re- ceived a 25-cent-an-hour increase, and about a month later was promoted to maintenance department foreman at $1.100 per month. 41 N.L R.B. Burns International Securiri Serices. Inc. e al. 406 1 S 272, 280 281. fn. 5 (1972); Howard Johnson Co, Inc Detroit local Joint Executive Board, Hotel & Restaurant Emplovees & Bartenders Internatmnal Union, AFL ('10. 417 U.S. 249. 262 (1974). a N.L.R.B. v. Houston Distribution Sersices, Inc. and South,e.t 'are house Service. 573 F.2d 260 (5th Cir. 1978)}; J. R. Susa & Son, Inc. 210 NIRB 982 (1974): Macomb Block and Supply, Inc.. 223 NLRB 1285 (1976), and case, cited therein 1057 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD such a way as to avoid hiring all adherents of Local 39, it does not follow that the refusal to employ Brewer as a supervisor had any direct impact on the employees' Section 7 rights. The employees, with one exception, had already been informed they would not be hired when Brewer was similarly advised that he would not be "retained." In such circumstances, it is sheer sophistry to argue, as my colleagues must, that the refusal to hire Brewer was a means ("integral part of a pattern of conduct") to facilitate a direct viola- tion of employees' statutory rights. The two actions stood separate and apart; they were not dependent one on the other. The fact is that, in denying Brewer employment, none of the employees was directly in- terfered with, restrained, or coerced in the exercise of statutory rights. 45 In his concurring opinion Member Penello infers that an employer who engages in wide- spread misconduct against employees and supervisors alike takes such action out of a desire to discourage union or protected concerted activities in general among employees, and that the coercive effect upon employees of such action taken against supervisors is necessarily the same as that arising from similar ac- tions taken against the employees. I find such infer- ences inappropriate where, as here, there is no evi- dence that Respondent's motivation for refusing to rehire Brewer stemmed from any reason other than its statutory prerogative to select supervisors accord- ing to its own criteria. Clearly, that prerogative should not be diminished because the employer chooses to exercise it about the same time as it unlaw- fully disciplines or discharges its employees for en- gaging in protected concerted or union activities. Nor is that prerogative rendered any less legitimate be- cause it concerns a refusal to hire as a supervisor an individual who professes allegiance to and support for a union. Further, for reasons already indicated, I re- ject Member Penello's suggestion that employees are somehow more coerced by employer action against a supervisor for engaging in protected concerted or union activities when such action is part of wide- spread activity involving employees than when it is isolated. Simply put, there is no meaningful distinc- tion between the two situations where the discharge of the supervisor is for the same activity as the em- ployees involved, and none of the limited instances identified previously is present. Accordingly, I cannot find Respondent's refusal to hire Brewer unlawful. 14 As pointed out in my dissent in Downslope Industries, every discharge of a supervisor for engaging in protected concerted activity is going to have a "spillover" effect, that is, a tendency to discourage similar employee activit But that is not enough to find a discharge ofa supervisor to be unlawfaul, else all would have to he s) deemed where union activit) of the supervisor was involved. Based on the foregoing, I am compelled to find that here, as in Downslope Industries, the majority has grossly misapplied the "integral part of a pattern of conduct" concept, as has Member Penello in concur- ring with them. Accordingly, I would dismiss the alle- gation that Respondent's refusal to employ Brewer violated Section 8(a)(1) of the Act, and would find that he is not entitled to backpay or reinstatement rights. However, as indicated above, I do find that Respondent violated Section 8(a)(1) and (3) by refus- ing to hire unit employees because of their member- ship in Local 39. MEMBER TRUESDALE, concurring in part and dissent- ing in part: Contrary to my colleagues in the majority, I do not conclude that Respondent violated Section 8(a)(1) of the Act by refusing to hire or retain Supervisor Brewer, nor would I require that Respondent rein- state Brewer as a necessary incident to providing a full remedy for the other violations found herein. I concur in the majority's decision, however, in all other respects. As I indicated in my separate concurrence in Downslope Industries, Inc., and Greenbrier Industries, Inc., 246 NLRB 948, issued this day, I agree essen- tially with Member Murphy's statement of the appro- priate principles to be applied in cases involving the discharge of supervisors, as expressed in her dissent- ing opinion in Downslope and herein. In particular, the term "integral part of a pattern of conduct" as applied in cases involving the issue presented here must not be construed in an overly broad manner in light of the exclusion of supervisors from the protec- tion of the Act. Thus, I agree that the finding of a Section 8(a)(1) violation, or the providing of a rein- statement remedy, based on the discharge of a super- visor is properly limited, generally, to situations in which the discharge is part of a scheme to interfere directly with, or to clear the way for interfering di- rectly with, the protected rights of employees, or where the supervisor is discharged for engaging in conduct intended to protect employees from interfer- ence and discrimination. See also L & S Enterprises, Inc., 245 NLRB No. 144 (1979). In Downslope, I, unlike Member Murphy, found that the discharge of a supervisor was violative of the Act. In so doing, however, I emphasized in my sepa- rate concurrence my agreement with Member Jen- kins' findings that the supervisor there was fired for "not preventing the employees from engaging in their lawful Section 7 activity' and that the supervisor was "included in the broad sweep of [Respondent's] retali- ation in Respondent's effort to eliminate completely all obstacles to its effort to discourage all such [Sec- tion 7] activity." I therefore found that the supervi- 1058 I-RI SN() I0VNtI()0 SI sor's discharge was part of a scheme to interfere di- rectly with, or to clear the way for interfering with, the protected rights of employees and, accordingly I concluded that her discharge fell within the types of situations in which the finding of a violation was ap- propriate. There are no such compelling facts present in the instant case which warrant a similar conclu- sion. Indeed. as more fully set forth by Member Mur- phy, Respondent here did no more than decline to hire Brewer as a supervisor because of his member- ship in the Union. and, with one exception, the em- ployees had been informed that they would not be hired prior to the time Brewer was advised that he would not e "retained." Thus, Respondent's action toward Brewer did not directly interfere with the em- ployees' Section 7 rights, nor did it facilitate direct interference with the exercise of such rights. In these circumstances, I decline to find a violation based on Respondent's refusal to hire or retain Brewer, or to order his reinstatement. APPENDIX No(I To EMPI.()YEES POSTED BY ORDER O lll NATIONAI. LABOR REIATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportuni- ty to present evidence and cross-examine witnesses, the National Labor Relations Labor Relations Board has found that we committed certain unfair labor practices in violation of the National Labor Relations Act, as amended, and has ordered us to post this no- tice. We intend to abide by the following: Wl wtlIl. NOI inform employees that we are running a nonunion operation and offer employ- ees benefits which we claim to be greater than the benefits provided by the Union in which they claim membership. WE WIlll. NOT suggest to employees that they resign from Culinary, Cooks. Bartenders and Hotel, Motel Service Employees Union, Local No. 62, or any other labor organization, and WE WILI. Nor solicit employee signatures on a peti- tion of resignation from Local No. 62, or any other labor organization. WE WILL NOT condition employment at the Townehouse complex upon abandonment and resignation from Stationary Engineers, Local 39, International Union of Operating Engineers, or any other labor organization. WE WILL NOT inform employees that if they engage in protected concerted activity they will be discharged. WE w'l. Not inform employees that we will not hire other enlployes engaging in protected concerted activity. WlI WlI.L Noi discourage membership in I.ocal 39, or any other labor organization, bh discrimi- nating in regard to hire or tenure of employment of any employee or applicant for employment. Wl 1 Wil. NOI refuse to hire or retain employ- ees because they are members of local 39. or any other labor organization. and to avoid recog- nition of that union, or any other labor organiza- tion. Wl lL.. NOI refuse to recognize and bargain collectively, upon request, with StationarN Engi- neers, Local 39. International Union of Operat- ing Engineers, as the exclusive representative of the employees in the following appropriate unit: All engineering and maintenance employees employed at the Townehouse complex, ex- cluding all other employees. guards and super- visors as defined in the Act. Wl WLI.L NOI in any like or related manner interfere with. restrain, or coerce employees or applicants for emplo,,ment in the exercise of the rights guaranteed them by Section 7 of the Na- tional Labor Relations Act, as amended. WE wui.L. offer Ernest Brewer, Ralph Langer- man, Arthur Pino. Robert Powles, and Dick Richardson immediate reinstatement to the jobs the) held with their previous employer, replacing present engineers and maintenance employees hired as of April 11. 1977, and thereafter, or, if there are not sufficient positions available now. we will place them on a preferential hiring list without prejudice. to their seniorit) and other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of our discimination against them, with interest. WE WILL, upon request, recognize and bargain with Stationary Engineers, Local 39. Interna- tional Union of Operating Engineers, as the ex- clusive bargaining representative of all employ- ees in the above-described appropriate unit with respect to rate of pay, wages. hours, and other term and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. NEVIS INDUSTRIES. INC.. D/B/A FRESNO TOWNEH()ioUSE DECISION SrATMIENI Of I111: CASE GoRI)o'N J. NIYArn. Administrative Lax, Judge: A charge was filed in Case 20 CA 12818 on April 27. 1977.' by Sta- t Unless otherwise ndicated alI dales herein refer to 1977 l()) D).ECISIONS OF NAII()NAL LABOR RATIONS BOARDI tion;ry Engineers. Local 39, International Union of Oper- ating Engineers (hereinafter called Local 39), against Nevis Industries, Inc., d/b/a Fresno Townehouse (hereinafter called Respondent). alleging violations of Section 8(a)(1). (3). and (5) of the National abor Relations Act. as amended, 29 U.S.C. §151, cl seq. A separate charge wNas filed in Case 20 CA 12901 on May 20. 1977. by ('ulinary. Cooks. Bartenders, and Hotel. Motel Service [Emploeces Union. ocal No. 62 (hereinafter called ocal 62). against Respondent alleging violations of Section 8(a)( 1) and (3) of the Act. On June 30 the Acting Regional Director for Re- gion 20 issued an order consolidating cases and a consoli- dated complaint and notice of hearing. The consolidated complaint alleges, inter alia, that Re- spondent, a successor employer, through its agents and su- pervisors, informed employees that they would he consid- ered for employment only if they were no longer represented by a union. It alleges further that Respondent demanded an employee withdraw his membership in local 39 and threatened other employees with loss of jobs ift' they joined a picket line established at Respondent's premises. Finally, the consolidated complaint alleges that Respon- dent discharged its engineering employees because of their membership in Local 39 and refused to bargain collectively with the Union as exclusive representative of a unit of its employees. A hearing was held on this matter on December 7. 8, and 9, 1977. in resno. California. All parties were represented by counsel and afforded full opportunity to examine and cross-examine witnesses and to present relevant evidence on the issues involved. Briefs were submitted by counsel for the General Counsel and for Respondent. which have been duly considered in arriving at the Decision herein. Upon the entire record in this case, and from mi obser- vation of the witnesses and their demeanor while testifying. I make the following: FINDIN(iS OF FA(CI I. JURISDICTION On the basis of a factual stipulation in the record and the pleadings herein, I find that the Fresno Townehouse is a hotel and office complex located in Fresno, California. The complex was built in 1963 by the Del Webb Corporation (Del Webb), an Arizona corporation with its principal of- fice located in Phoenix, Arizona. The Townehouse was owned and operated by Del Webb until 1973. Through a series of intervening transfers of interest by Del Webb. the complex was owned and/or operated by other business en- tities until 1976. In early 1976, Del Webb reacquired sole ownership of the Townehouse and continued to operate and manage the complex until its sale to Respondent, effec- tive midnight. April 10, 1977. Respondent is a California corporation with its principal office located in Yuba City, California. By virtue of the sale Respondent acquired the premises, equipment, products, services. and customers of the Townehouse complex. During the 12-month period preceding the sale to Re- spondent, Del Webb received gross revenues in excess of $500,000 from the Townehouse hotel operations and pur- chased supplies from tfirms located outside the State o' ('all- fornia valued in excess of' $5,000. During the same period Del Webb received gross revenues in excess of $(X00.00) from the T'ownehouse office complex operations, of which over $25.000 were derived from business tenants who annu- ally received gross retail revenues in excess of $500,(X)0 and purchased supplies originating outside the State of ('alifr- nia valued in excess of $5,0(X)00, or in the course of nonretail operations in ('alifornia purchased and received materials and supplies and/or sold and shipped products directly from or to suppliers or customers located outside the State of ('alifornia valued in excess of $50,000.(). It is projected that Respondent. during the 12-month period following the sale herein, will receive gross revenues in excess of' $500,00() from its hotel operations at the Townehouse and will pur- chase supplies originating outside the State of California valued in excess of $5,000. It is further projected that dur- ing the same period Respondent will receive gross revenues valued in excess of $ (X)1000 from its office complex opera- tions of the Townehouse, of which over $25.000 will be derived from business tenants who annually receive gross retail revenues in excess of $t(X),000 and purchase supplies which originate outside the State of California valued in excess of $5,000, or in the course of nonretail operations in Calitornia either purchase and receive materials and sup- plies and/or sell and ship products and materials directl1 from or to suppliers or customers located outside the State of California valued in excess of $50,000. On the basis of the foregoing I find that Respondent is an employer within the meaning of' Section 2(2) of the Act engaged in a business in commilerce or atfecting commerce within the meaning oft Section 2(6) and (7) of' the Act. 11. ilI1 AB)R (R(iANI/ZA IIONS INVOI I) Stationary Engineers. Local 39. International Union of Operating Engineers and ('ulinary,. Cooks. Bartenders and Hotel, Motel Service Employees Union, Local No. 62, are labor organizations within the meaning of Section 2(5) of the Act. 111. I in AI.I -(l+ D NIAIR L.ABOR PRA(It( E!S A. Background Flacts As noted above. Del Webb transferred ownership and/or control of the hotel operations of the 'Townehouse complex after 1973 but reacquired this interest in early 1976. Throughout these successive changes in the ownership and management of the hotel operations, commencing with Del Webb's original ownership, the engineering employees of the complex were represented by Local 39 and the maids, waitresses, busboys, bartenders, and other service employ- ees were represented by Local 62. The janitorial services for the complex were contracted out to American Building Maintenance. Inc. (ABMI). whose employees were repre- sented by Service Employees International Union. Local I10.' When Del Webb reacquired o`wnership of the hotel 2 As part of thle terms of slie Ita Respondent ABMI was gien a 3-da notice of termination of Its contract tor janitorial services. Respondent subse- 1060 FRESNO TOWNEHOtiSE operations, it honored the terms of the labor agreements then in effect between Locals 39 and 62 and the preceding owners and operators. At no time subsequent thereto did Del Webb execute a written contract with either of these Unions: it merely honored all of the provisions of the ex- tant agreements, including the processing of grievances. B. Events Preceding the Sale of the Conmplex to Respondenl The undisputed testimony indicates that, prior to the transfer of ownership of the complex to Respondent, Rob- ert Snider, who was to become general manager for Re- spondent, made several visits to the complex.3 Although the precise dates are not indicated, these visits apparently took place sometime in March. Snider conferred with Dorse Brady and William Mortland, general manager and leasing agent for the office operations, respectively for Del Webb. He only made a limited tour of the premises on these occa- sions, although he was advised by Brady of the type of boiler and air-conditioning equipment servicing the com- plex. On April 5 Snider and his wife moved into the hotel and occupied a suite on the 18th floor as their living quar- ters.4 Although Snider did not get involved in the actual opera- tion of the complex until April 10, he did make use of the executive offices located on the third floor of the building. There is also testimony that he had discussions with at least one major department head concerning his plans for staff- ing one segment of the hofel's operations. Kathy William- son, manager of the coffeeshop until April 15. testified that sometime during the week prior to April 10 she was in the office of Larry Rubidoux on the third floor. As manager of the coffeeshop Williamson was considered the head of a department, and she reported directly to Rubidoux, who was the food and beverage manager for the Townehouse. According to Williamson's unrefuted testimony, Rubidoux stated that his job depended upon his evaluation of all of the employees in his department. Rubidoux told William- son that he would have to fire 51 percent of the employees. and he sought her assistance in evaluating the employees working in the coffeeshop. Rubidoux specifically mentioned three older waitresses, whom he described as "strong union members." Rubidoux informed Williamson that he had wanted to get rid of them in the past but could not because of the Union. tie told Williamson that, since the hotel was not going to be union any more, he could fire them.' On April 8 Del Webb officials called a meeting of all the Townehouse's department heads. An open letter to the em- ployees was read by the vice president of Del Webb. The letter thanked the employees for their past services and ad- vised that they would be terminated as Del Webb employ- ees at midnight, April 10. The) were further advised that quenlly awarded the contract for these services to Great Western Services. whose employees were not represented by any unlon. Snider was hired b Respondent on March 27, 1977. to become general manager o the complex 4 Mrs. Snider was employed b Respondent as executive assistant o the general manager (her husband). 'I he record indicates that 20 employees worked in the coffeeshop After the change in ownership on April 10 six of these employees were not hired by Respondent Ithe three waitresses mentioned by Rudidoux were among those not reemploed by Respondenl Respondent would assume management and operation of the complex on April I i. (G.C. Exh 5.) On April 10. Snider also convened a meeting of all of the department heads, with the exception of the housekeeper and the chief engineer. Snider, for reasons unexplained in the record, had made prior arrangements with the house- keeper. Velma Montgomery, to meet with her separately in his office on April 10. 6 Jack Brewer. the chief engineer, was normally off on Sunday. but it is clear from Snider's testi- mony that he made no effort to contact Brewer or to inform him of the meeting.' The testimon\ regarding Snider's con- versation with the department heads is conflicting. William- son testified that Snider told the department heads that the hotel was no longer going to be "union," and that he ex- pected problems and anticipated a strike. According to W'il- liamson, Snider stated he was letting the entire engineering crew go and had a maintenance crew standing bh to take over. Snider was examined as an adverse witness by the Gen- eral Counsel regarding this meeting ith the department heads on April 10. He was unable to recall whether he had a meeting with the department heads. He was onl\ to recall meeting with Rubidoux. the food and beverage manager. Snider also denied telling the department heads that the hotel was going to be nonunion and there was a possibilit of a strike. Mrs. Snider, however, was able to give a rather detailed account of the meeting. She testified that Snider told the department heads that all of the employees would have to fill out new employment applications. She further testified that Snider indicated he was not familiar with the employees, and that the department heads should make de- cisions as to which of the employees were to be hired hb Respondent. She was unable to recall whether he made ans reference to the engineering and maintenance employees. She stated that Snider told the department heads Respon- dent had its own health and welfare programs for the em- ployees, and those employees who were union members would have to continue their own health and welfare plan at their own expense. Snider indicated that he felt Respon- dent's plan was more beneficial for the employees than that offered by the Union. According to Mrs. Snider. he stated that he had no objection to anyone belonging to a union. When Snider was called to testify in Respondent's case, his memory was apparently refreshed by his wife's testi- mony and he recalled that he did meet with the department heads on April 10. Although his version of the meeting was far less detailed than that of his wife, Snider admitted that he may have told the department heads that Respondent would be a nonunion operation. Hie stated that it was his understanding that after the takeover the complex would be like a new hotel without any legal obligation to ans union. According to Snider. he told the department heads hat Re- spondent had no contracts with an> union. Snider also re- called that he gave the department heads responsibility for determining which of the emploxecs would be hired b Re- spondent. subject to final approval b him or Rubidoux. 6Although Montgomery was a department heald andl in .icknoledged supervisor, she was als a member f Irocal 62 7 like Monilmer. , Brewer was also a member olt Is. 19 .althiigh he was a supervisor and department head 1061 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because of Snider's inability to recall this important first meeting with his department heads and because of his sparse account of this event, even after his wife's more de- tailed version, I find that testimony of Williamson to be more reliable. In addition, although Mrs. Snider gave a de- tailed account of this event, as well as others, I find that her statements contain certain gratuitous embellishments which cause me to discredit her testimony where it conflicts with the testimony of the witnesses for the General Counsel. After meeting with the department heads, Snider re- turned to the executive offices where he met with Mont- gomery separately. Montgomery testified that Snider in- formed her the hotel would be like a new hotel and all employees had to fill out new employment applications. She stated that Snider gave her application forms to pass out to all of the maids under her supervision. Montgomery testi- fied that Snider told her the operation was going to be non- union, and that Respondent could offer the employees bet- ter benefits than the Union was giving them. C. Events During and Following the Takeover I. Refusal to allow the engineers to work At approximately 11:30 p.m. on April 10, Dick Richard- son, the shift engineer on duty,8 was paged and instructed to meet Snider at the engineer's office on the 12th floor. Snider told Richardson that his services were no longer needed and asked for his keys. Snider ordered Richardson to clear out his locker and escorted him from the premises. Richardson testified that Snider stated that the Townehouse was going to be a nonunion hotel and that the wages would be less than provided for in the union contract. He was given an employment application which Snider indicated'would be considered if the employee chose to fill it out. Richardson was scheduled to be relieved by Robert Powles, who worked from midnight to 8 a.m. Richardson waited in Respondent's parking lot for Powles and told him that the engineers had been terminated by Respondent. Powles went up on the elevator, and Snider got on at the lobby level. He told Powles that he had been terminated and need not report to work. Powles then stated that when- ever the Townehouse changed ownership it was standard procedure for employees to be terminated by the old man- agement and rehired by the new owners. Snider told Powles that the hotel was going to be a nonunion operation and asked for his keys. Powles then asked if Respondent was going to honor the successor clause in the collective-bar- gaining agreement.9 Snider replied that Respondent was not ' Richardson worked from 4 p.m. to midnight. 9 Although Del Webb was not signatory to a collective-bargaining con- tract with Local 39. it honored the provisions of the agreement in effect between its predecessor and the Union. (G.C. Exh. 13.) That agreement Was effective from June 1, 1975, until May 31. 1978. and contained the ollowing provision: ARTICLE X SEi (I)N I S( i ESSORS ANI) ASSIGNS: This Agreement shall be binding on any successor or assignee of the Employer. The Employer shall make written assumption of the obliga- lions of this (ontract a condition of any succession, sale or assignment and he shall remain responsible and liable for the observance of all the terms and conditions of this Agreement including the payment of wages a party to a contract with the Union, but that Powles could make out an application for employment. Powles then cleaned out his locker. turned in his keys, and left the prem- ises. That evening Snider attempted to contact Brewer by tele- phone. He was informed that Brewer was asleep and he would be able to get him at approximately 5 a.m. Snider called Brewer at home at 5:30 in the morning and told him that his services were no longer required by Respondent. Brewer said that he would come down and pick up his personal effects and his paycheck. At approximately 8 a.m. Brewer arrived at the complex where he met Arthur Pino, a shift engineer who worked days with Brewer. They went to the engineer's office where they found Snider along with Steve Alford ' ° and another individual who was not known to them at that time." Snider told Brewer and Pino that they had been terminated by [)el Webb and asked for their keys. He told them that Respondent was running a non- union operation and gave them employment applications, which he indicated he would consider. Brewer emptied his locker of his personal effects and left the complex. Pino remained to complete the employment application which he gave to Snider. As Pino was leaving he was told by Alford that Revensdorf was trying to run the air-condition- ing system with the heat pumps on. The parties stipulated that the fifth engineering em- ployee, Ralph Langerman, was not allowed to work his shift on April II. As in the case of the other engineers, Langerman was given an employment application and told that if he filed it it would be considered. All the engineers convened at the union headquarters that morning to discuss their situation with Daniel Henni- gan, the business representative. Hennigan advised all those who had not filed employment applications to do so. Hen- nigan sent a mailgram to Snider stating that Local 39 repre- sented "any employees in the Operation and Maintenance Department" and "has represented these employees since the Townehouse was built." ie requested a meeting with Snider to discuss and resolve any problems that existed. While the engineers were at the union headquarters they indicated that Alford was in the engineers' office with Sni- der and Revensdorf. Hennigan placed a call to Alford at the Townehouse and advised him not to show the equip- ment or machinery to anyone. Hennigan testified that he told Alford he could get into difficulty because he was em- ployed by ABMI and was not working as an engineer. He asked Alford to come to the union office on his own time to discuss the matter. After leaving union headquarters all the engineers returned to the complex. Those who had not sub- and fringe benefits unless and until the successor or assignee executes and delivers to the Union a wntten assumption of the obligations thereof. in Alford was employed by the janitorial contractor (ABMI) and was a member of I.ocal 110 of the Services Employees Union He also worked on occasion as a relief engineer under Brewer and maintained a membership in local 39. Under this arrangement when Alford so~rked as a relief engineer he came off ABMI's payroll and became an employee of Del Webb. When this occurred he was paid pursuant to the terms of the Engineers' collectise- bargaining agreement. ' The other person in the engineer's office was Ed Revensdorf lie sas hired by Snider to be a maintenance employee performing the same duties the engineers perlbrmed for Del Webb 1062 mitted employment applications to Respondent did so at that time. 2. The problem with the air-conditioning system After Snider refused to let the engineers work on April I 1. he and Revensdorf attempted to operate the air-condi- tioning system. The outside temperature exceeded 90 de- grees, but the air-conditioning equipment was producing heat instead of cooling the complex. Although Revensdorf was hired to perform the work normally performed by the engineers, the testimony indicates that he was unfamiliatr with the heating and cooling equipment and could not make the adjustment necessary to produce cool air.' 2 Be- cause of their inability to correct this condition. Snider stayed up all night (until 5 am.) reading manuals and speci- fications in an effort to solve the problem. The condition was not remedied until April 13, when Alford showed Sni- der how to adjust the controls. 3. The events involving Alford As previously noted, prior to the changeover Alford was employed by ABMI and also worked as a relief engineer when the other engineers were on vacation or unable to report for their shifts. In order to work in this latter capac- ity Alford was required to join Local 39, even though he was a member of Local 110. The Union also required him to attend classes relating to boilers and air-conditioning equipment in order to qualify as an apprentice in the trade. When he worked as an engineer Alford was paid by Del Webb at the engineers' hourly rate rather than by ABMI at a far lower rate. Under this arrangement Alford was re- quired to pay dues to the two labor organizations. Alford's testimony indicates that the management of Del Webb had promised to move him into a better job. presumably as an engineer, than he had with ABMI, but this never material- ized. Approximately midday of April II Alford went to the office of Local 39 in response to Hennigan's request. He told Hennigan about an incident which revealed Revens- dorfs unfamiliarity with the equipment. He stated that when Revensdorf was inspecting the air-conditioning equipment the air compressor "kicked on" and startled him. Alford had to explain to Revensdorf that it was merely the air compressor starting up. Hennigan stated that Alford claimed he was offered a job by Respondent, but he would have to withdraw from Local 39 in order to accept it. Ac- cording to Hennigan. he advised Alford not to accept this offer as he would undermine his fellow engineers by work- ing for less pay. He also told Alford that if he undertook the job the contract rate would apply. ' The following day Alford met Mrs. Snider and she ar- ranged a meeting with Snider foir him. Although there are "1 The undisputed testimony of the engineers discloses that the engineers on duty In the evenings and on the "watch shift" had complete discretion as io whether to adjust the cooxling system to produce heat In the evenings and at night 'This was apparently true in the summer months as well as n the winter since the temperature dropped dramatically n he evenings It was incumbent upon the engineers on the morning shift to make the Tnecessar adjustments to the controls to change from heating to cooling, as the clhmac- tic condilions warranted " The aove is based on liennigan's unrefuted testimony FRESNO TOWNEHOISE some minor conflicts in their versions of this meeting for example. Alford stated then met in the hallway and Mrs. Snider testified they met in the elevator as she was coming down from her suite it is clear that Alford told Mrs. Sni- der that he wanted to work for Respondent. and that he was unhappy over his treatment by prior management. He also told her that he knew how to correct the problem with the air-conditioning system but was reluctant to do so be- cause of pressures from the Ulnion. Mrs. Snider took Alford into Snider's office on the third floor and had him repeat his statements. Snider, who had been up all night trying to solve the cooling system problem, became angry. He asked Alford how he could ask to be considered for a job when he knew all along how to correct the problem with the air- conditioning unit. Alford replied that he had not been of- fered a job by Respondent. and that he was instructed h\ the I'nion not to touch the equipment. Alford and both Sniders testified that Snider questioned his oalt. and Al- ford volunteered to withdraw from the Union to prove he would be a loyal employee. In an affidavit given to a Board agent a month after this conversation, Alford stated that Snider told him he would have to withdraw from both Lo- cal 39 and 110, as Respondent was going to be a "non- union house." He told the employee that his starting salary would he $5.75 an hour, and that Respondent was working on other benefits which would be better than those offered by the Union. According to the affidavit. Snider told Alford it was up to him whether he withdrew from the Unions and went to work for Respondent. Having observed Alford while testifying and noting that his testimony vacillated and changed--especially when confronted with statements contained in his affidavit I find that Alford's testimon was clearl> colored b his own self-interest in preserving his status with Respondent. and that he intentionally offered exculpatory statements regard- ing Snider's comments in order to aoid giving a true recital of the conversation. While I do not rely on the affidavit to prove that Snider made the statements contained therein. I do find that the statement concerning the necessity to with- draw from the Union to be consistent with Snider's conver- sations with other employees. detailed infra., regarding re- tention of union membership. Accordingly, I do not credit the testimony of Alford or the Sniders in this regard, and I find that Snider conditioned Alford's future employment upon withdrawal from both Unions. After this conversation with Snider on April 12, Alford was allowed to use Respondent's station wagon to go to the office of Local 39 in order to effectuate his withdrawal. Hennigan testified that when he saw Alford pull up in Re- spondent's station wagon he accused him of "prostituting" himself. According to Hennigan. Alford stated he had to look out for himself, and asked for a withdrawal card. Hen- nigan informed Alford that under the Union's constitution and bylaws he could not get a withdrawal card since he was working in the trade. There was no discussion at this time regarding Alford's resignation from the Union. Hennigan told Alford that if charges were brought against him he possibly could he fined for his conduct. Alford returned to Snider's office atnd told him that the Union would not allow him to withdraw. Snider then told Alford he could resign from the nion. Alford did in fact 1063 I) DECISIONS OF NATIONAL LABOR RELATIONS BOARI) submit a hand written resignation (G.C. xh. 3) to the Union on April 15 by dropping it in the mail slot at the Union's office. However, on April 13 Snider, in a written rejection of the Union's earlier request to meet regarding the engineers, stated that Respondent had hired "one (1) employee who was formerly represented" by Local 39. (G.C. Exh. 15.) Thus it is apparent that Alford made the decision to resign on April 13 and so informed Snider, al- though he did not submit his actual resignation to the Union until April 15. On April 13, Alford took Snider and Revensdorf to the roof and showed them how to adjust the controls on the air- conditioning system to allow it to cool the complex. lie also pointed out that the water in the water tower was low and thus prevented the system from functioning properly. Alftrd was employed by Respondent to do the same work previously performed by the engineer employees. iHe maintained the machinery and equipment for the complex. including the boilers and air-conditioning system, as well as the ice machines, kitchen and refrigeration equipment. and the electrical fixtures and wiring. He was hired at $5.75 per hour and 2 weeks later received a 25-cent-an-hour increase. Approximately a month later he was promoted to foreman of the maintenance department'4 and placed on salary at $1,100 a month. Alford directed the work of fiur employees and had full supervisory authority, including the right to hire or discharge. 4. The meeting with the banquet waitresses Jesse Salcedo, the banquet captain, convened a meeting of the banquet waitresses on April 12 at the direction of Snider and Rubidoux. Snider, still concerned with the air- conditioning problem, spoke briefly to the waitresses. The uncontroverted testimony indicates that he told the wait- resses the hotel would operate as a "non-union house." He stated that Respondent would place the employees' insur- ance benefits through his brother's agency, and that they would be superior to those offered by the Union (Local 62). He urged the employees to remain with Respondent and then left the meeting. Rubidoux took over at this point and also urged the wait- resses to stay with the hotel. He told them that Respondent was aI good employer and that, although some waitresses had been discharged in the transition, they would find em- ployment elsewhere. He stated that "Union or no Union." Respondent could get rid of the employees. He told the waitresses that a health and welfare plan would be avail- able within 10 days. When one of the waitresses asked what would happen if the Ilnion called a strike, Rubidoux sug- gested that he could get them across a picket line in his camper. 5. Snider's meeting with Pino and Richardson Pino testified that on April 12 he received a call from Snider requesting a meeting to discuss the possibility of Pino being hired by Respondent. According to Pino, Snider suggested that they meet at 2 p.m. in front of the Federal '' Although Respondent changed the name of the engineering department to maintenance department. it is clear that the job duties remained the same. Building, which was several blocks away from the complex. Pino contacted Hennigan and they both met with Snider at the appointed time. Since Snider did not personally know Hennigan or that he was the union representative for l.ocal 39, Paino simply introduced him as a friend. Snider and Pino left Hlennigan in front of the building and went into the lobby to discuss the possibility of employ- ing Pino. Pino testified that Snider stated. "Yesterday was the longest day of my life." He told Pino that the air-condi- tioning system was out and everything was chaotic at the complex. According to Pino, he further stated that he (Pino) had been recommended by "some people." and that Snider wanted him hack at work at the complex. Pino stated he told Snider he could not accept anything less than union wages, and Snider said not to worry about that. Pino testified that he informed Snider he would have to talk to the union officials about their meeting, and they agreed that Pino would get in touch with Snider after doing so. Pino further testified that the following day he attempted to contact Snider but was unable to do so. He stated that several days later he met with Snider in the latter's office. At that time, according to Pino. Snider stated that he could not hire him because of "technicalities" which he was not at liberty to discuss. Pino testified that Mortland, the leasing agent, came into the office during their discussion. Pint) also testified that when he met with Snider at the complex he saw Richardson waiting to meet with Snider. Mrs. Snider testified that the meeting with Pino did not take place until sometime after April 12, "because of the activity at the hotel." According to Mrs. Snider, she re- ceived a call from Pino for Snider and overheard Snider's portion of the conversation. She testified that Snider asked Pino why they could not meet at his office and finally agreed to meet at the Federal Building. She further testified that after the conversation ended Snider told her it was "stupid" of him to agree to meet with Pino at the Federal Building. Snider, testifying after his wife on this point. stated that they met at the Federal Building at Pino's suggestion, but he placed the date as April 18. Hie admitted, however, that he might have told Pino "it [April II) was the longest 24 hours of his life." He had no recollection of a subsequent meeting with Pino in his office. although he testified he checked with Mortland to determine if he recalled such a meeting. He denied telling Pino that he could not be hired because of a technicality. In light of the difficulty Snider had recalling the events, and in view of his critical need for an experienced person to correct the problem with the air-conditioning system, it is tir more probable that he sought out Pino on August 12 rather than on the later date, as he so testified. In addition, Pino impressed me as a reliable witness whose account of the meetings was far more accurate. Accordingly. I credit Pino's testimony regarding his meetings with Snider. There is no dispute concerning Snider's meeting with Richardson in his office. Although a precise date is not fixed on the record, it apparently occurred during the second week after the change in ownership of the complex. Snider informed Richardson that the wages paid the engineering and maintenance crew were below union scale. lie made no 1064 I'RESNO TOWN[HOUS commitments to Richardson regarding employment other than his application was being considered.' 6. Events involving the maids On April 28 Mrs. Snider and Donald Snider, brother of the general manager, met with groups of employees from the various departments throughout the morning. These meetings were to inform the employees of the insurance plan that Respondent was going to put into effect. Mont- gomery testified that she and all the maids under her super- vision were called in for this purpose. They were told about the benefits provided by the plan and given applications to fill out for coverage. According to the testimony of Mont- gomery and Mary Holmes, one of the maids, Snider's brother stated that the benefits under the insurance pro- gram were better than the benefits provided by the Union. Montgomery further testified that Snider and Mrs. Snider met with the maids later that same day. Mrs. Snider sug- gested that one of the maids should write a letter requesting withdrawal from the Union and all the maids should sign it. That afternoon while the maids were gathered in Mont- gomery's office on the 12th floor, a female bartender came in with a petition of resignation from Local 62. (G.C. Exh. 22.) She told the employees that she had been sent by the third floor (Respondent's executive offices), and Snider wanted the petition signed so he could get it to his attorney that evening.' The maids signed the document and the bar- tender left with it. The following morning Local 39 and Local 62 established a joint picket line at the Townehouse complex. The legends on the picket signs protested the asserted unfair labor prac- tices committed by Respondent. Montgomery testified that she was contacted at the Townehouse that morning by a representative of Local 62. He wanted Montgomery and all the maids on duty to join the picket line. Montgomery felt that this was unfair, and that the maids should complete their work that day since there was no one else to take care of the rooms. She and the maids went down to the executive offices to discuss the matter with Snider. She testified that during the course of the discussion with Snider one of the maids suggested that they go out and talk to the union representative. She stated Snider then said, "It' you go out there, you can't come back."" When the maids suggested that they might be fined by the Union for working while the local was picketing, Snider told them to bring any papers concerning union fines to him and he would take care of it. Later that evening Snider offered Montgomery the use of a suite in the hotel. He also told her that, if any of the maids wanted to spend the night on the premises, they could do so. None of the maids remained, however, and the follow- ing day Montgomery and all the maids joined the picket line.' 15 Alfred testified that. when Snider indicated that he was going to hire more maintenance personnel, he recommended Pino and Richardson. 16 The above is a synthesis of the testimony of Montgomer and Holmes I~ Although Snider testified that he told the maids they could be replaced if they joined the picket line. I do not credit his testimony in this regard " When Respondent's dispute with Locxal 62 was resolved. Montgomery was not rehired as housekeeper She was replaced by her assistant ow- ever. there is no allegation n the complaint regarding Montgomery. and that issue is not present in this case. IThe unrefuted testimony of Altfrd ndicates that he and Snider were observing the picket line from Snider's office window on April 29. According to Allford. Snider told him that none of the picketing engineers would be hired b Re- sponldent. On May 4. while the picketing was still in progress. repre- sentatives of Respondent and ocal 62 met to discuss their differences.a Because the Unions were acting in concert. Ilennigan assumed that l.ocal 39 would e a participant in this meeting. Respondent's representatives sent word, how- ever, that they would not meet with Local 39. In order not to delay. the negotiations for I.ocal 62 lennigan did not appear at the meeting. He sent a mailgram to Respondent protesting its unwillingness to meet with the representatives of the engineers. (G.C. Exh. 18.) Respondent replied by telegram the following day that Local 39 did not represent a majority of the maintenance employees and refused to meet with representatives of that Union. (G.C. Exh. 19.) As a result of the negotiations between Local 62 and Respondent a contract was executed on June 9. and that portion of Respondent's dispute with the Unions was resolved. On May 19 Respondent sent a mailgram to all the former engineer employees, including Brewer. offering a position in the maintenance department at an hourly rate of $4.25 to $5 per hour. (G.C. Exh. 19.) llennigan responded on May 23 on behalf of the employees. e accused Respondent of "unilaterally" setting an hourly rate for the engineers and renewed the request to meet with representatives of Re- spondent. (G.C. Exh. 20.) There has been no response bh Respondent to this final communication from Local 39. D. The As.serted Reasons for not Iliring the Enginee''rs .4/icr thc ('higt'r in Ownc'rsip Snider testified that during the time he visited the com- plex prior to the takeover b Respondent he was told hb Mortland and other unidentified persons that some of the engineers were belligerent and uncooperative." According to Snider. the only satisfactorN employees of this group were Pino and Richardson. Snider stated that his decision not to hire the engineers was based on information regard- ing the "total attitude" and "poor work performance" of the engineers." In an affidavit given to a Board agent investigating the charges. Snider also stated that he did not hire the engineers because he did not need a "watch" engineer as required bh the union contract, nor did he intend to pay the engineers the hourly rate called for by the agreement. During his tes- timony Snider stated that he learned prior to the takeover that much of the engineers' time was devoted to mainte- 19 Snider testified that. when he informed his attorney that Respondent had hired between 80 and 90 percent of the former I)el Webb employees represented by Local 62. he was advised that he had to bargain with the Union. He stated that this as contrary to his pnrior understlnding but agreed to the negotiations. 20 Although Mortland was available at the time of the hearing. as evi- denced by Snider's consultation with him regarding the econd meeting fith Pino, he was not called as a witness bh Respondent 21 All of the engineers. except L.angerman who did not appear at the hear- ing, testified that there were no complaints regarding their o rk performance by prior management of the complex Other than Snider's testimons. Re- spondent offered no other prorf regarding the engineer,' pir work perforni- ance 106I 5 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD nance work such as replacing light bulbs, fixing faucets. and other maintenance labor. He testified that the scale they received was more than Respondent was willing to pay for such services. At the hearing, however, he denied that this was a factor in his decision not to hire the engineers. Snider also testified that he had been informed that a major overhaul of the compressor unit of the air-condition- ing system and the "coring" of the boilers had to be con- tracted out. The implication was that this work should have been performed by the engineers. Here again, however, he stated this was not a factor in his decision to replace the engineers. Finally, Snider stated that it was his understanding of the state regulations governing the operation of boilers that boilers with pressure under 15 pounds per square inch did not require watch engineers. Since the equipment at the complex had built-in safety devices and the boilers were of a type which had less than 15 pounds pressure per square inch, Snider stated that it was not necessary to employ watch engineers as required by the union contract. But he repeated that this was not a factor in his decision not to hire the engineers.'2 He maintained that his decision was based on their attitude and poor work performance as related to him by representatives of Del Webb. By way of explanation for his personal refusal to allow the engineers to work as contrasted to delegating this au- thority to the department heads of other sections of the Townehouse, Snider testified that he had no prior contact with the chief engineer. Therefore, he personally informed the engineers that they were not going to be allowed to work after the changeover, and that they could submit ap- plications for consideration to work at a lesser rate of pay. Concluding Findings A. The Refusal To Hire the Engineers There is no contention here, as indeed there cannot be on the basis of the record evidence, that Respondent is not a successor employer, within the meaning of the Burns doc- trine,23 to Del Webb at the Townehouse complex. The busi- ness enterprise remained the same, the same facilities were purchased and used, and the identical services were pro- vided to customers and tenants. Therefore, the foremost is- sue relating to the refusal to hire or retain the engineer employees rests on a factual determination of whether Re- spondent satisfied the obligations imposed upon successor employers by case law. Under the Burns holding, it is manifestly clear that a successor employer. absent an agreement to do otherwise, has the right not to hire any of the employees of the prede- 2 Although counsel for General Counsel introduced voluminous state regulations governing the operation of boilers and similar equipment, I find they have no bearing on the resolution of the issues in this case. While the General Counsel sought to use these regulations to demonstrate that Snider had an erroneous concept of the state requirements, it is of little consequence whether Snider's understanding was accurate or not. If this were truly an assigned reason for not hiring the engineers, which Snider's testimony indi- cates it was not, his incorrect interpretation of the regulations would not impute improper motivation. 23N.L.R.B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972). cessor if it so desires. Burns. supra at 280 281, n. 5Il owaUrd Johnson Co.. Inc. v. Detroit Local Joitr Executive Board, Hotel & Restaurant Emplovees & Bartlclerr Internatlional Union, ADL ('10, 417 U.S. 249, 262 (1974). But this right is not without limitation, as the successor emploNer cannot refuse to retain or hire employees of the predecessor be- cause of antiunion consideration. Ihid. The cases prior to Burns24 and those ftollowing Burns2' have uniformly held that where a successor employer refuses to hire the prede- cessor's employees because of their union membership or activity, or to avoid recognition of the union, it violates Section 8(a)(3) of the Act. In my judgment, the credited testimony and the record evidence establish that Respon- dent in the instant case violated Section 8(a)(3) of the Act by discriminatorily refusing to hire or retain the engineer employees. As previously noted, Snider made it clear to the depart- mental supervisors on April 10 that he intended to run a nonunion "house" or operation. As his subsequent state- ments that same day to Montgomery revealed. Snider con- sidered the operation to be "like a new hotel." without re- gard to any prior union representation of the employees of the predecessor employer. This was a recurrent theme in all of Snider's conversations with the employees after the changeover. He made it clear to all the engineers on April I1, when he refused to allow them to work, that Respon- dent was going to run a nonunion operation, and that the wage scale for the engineer and maintenance employees would be far less than the wages paid under the union con- tract which the predecessor had been honoring. He also made it clear to the banquet waitresses on April 12. when he attempted to persuade them to continue to work for Respondent, that the operation no longer would be union. Thus, his antipathy toward union representation of the em- ployees is well documented in the record, and it is in this context that his refusal to hire the predecessor's engineers must be considered. This is not to suggest, however, that Snider's attitude toward the union representation of the em- ployees was unlawful, in and of itself. Rather, it provides the backdrop against which his conduct must be assessed. There are a number of factors which compel the conclu- sion that Respondent refused to hire the engineers because of their membership in the Union and to avoid having to recognize Local 39 as their bargaining representative. First. the abrupt manner in which Snider refused to allow the engineers to work after the takeover by Respondent at mid- night April 10 warrants the inference that they were not allowed to work for Respondent because they were mem- bers of the Union. Richardson. who was on duty at the time of the takeover, was required to hand in his keys and was personally escorted from the premises by Snider. Similarly, Powles. who was reporting to work at midnight as the "watch" engineer, was told that he need not have reported to work and was required to turn over his keys. Although 24 Tri State Maintenance Corporation v. N L.R B, 408 F2d 171 (D.C. Cir. 1968); K. B. & J. Young's Super Markets, Inc v. N. L R.B., 377 F.2d 463 (9th Cir. (1967), cert. denied 389 U.S. 841 (1967). 2 Macomb Block and Supply, Inc., 223 NLRB 1285 (1976): J R Sousa & Sons, Inc., 210 NLRB 982 (1974): Greengate Maull In . a Subsidiarn f the Rouse Company, 209 NLRB 37 (1974): N L.R B v Kinbell fFoods. Inc., Foodvay of El Paso Div. 496 F.2d 117 (5th Cir. 1974) 1066 FRESNO TOWNEIHOUSE Snider had informed the department heads earlier that he had a maintenance crew standing by. it is clear that the only person he had hired to perform this work was Revens- dorf. who was completely unfamiliar with the heating and air-conditioning system of the complex. Thus, when Snider refused to let the remaining engineers report to work the following morning, he had no maintenance crew available that was competent to operate the equipment. Nevertheless, he insisted that all turn in their keys and clear out their lockers. Even though Snider informed all of the engineers. including Brewer, that they could submit applications for consideration for employment by Respondent, it is evident that this was an empty gesture on his part. He made it manifestly clear that the complex was not going to be a union operation. Therefore, his abrupt refusal to hire the engineers when there were no adequate replacements avail- able gives rise to the inference that his conduct was inspired more by his desire to get rid of the engineers because of their membership in the Union than to adequately and safely staff the engineering department in order to ensure a smooth and continuous transition. Equally important is the fact that Snider assigned numer- ous and shifting reasons for his refusal to hire the engineers. Snider testified that he was informed by Mortland, the leas- ing agent, and various other unnamed individuals of the Del Webb management that the engineers were belligerent and uncooperative, although Pino and Richardson were considered to be all right. While Snider asserted that this was the sole reason he decided not to hire the entire crew of engineers, he also testified, based on his experience and in- formation, that it was not necessary to have a watch engi- neer on duty because of the type of equipment and safety devices utilized by the complex. He further testified that the engineers were overpaid for the type of work they per- formed because much of their duties involved replacing fix- tures and light bulbs and repairing equipment in the hotel. While he testified as to these additional reasons. Snider steadfastly maintained that he refused to hire the engineers solely on the basis of information regarding their overall work attitude and performance. At no time, however, did Respondent present any witnesses who purportedly advised him about the poor work attitude of the engineering crew, although Snider made it clear that Mortland was available and had been consulted on the question of the second meet- ing with Pino. For this reason I find that the oblique offer- ing of the several purported reasons by Snider and the fail- ure to substantiate any of them compels the conclusion that they should be rejected. Further, I find that Snider merely offered them to conceal the real reason for refusing to hire the engineers, i.e.. that they were members of the Union and Respondent was seeking to avoid recognition of that labor organization. Shattuck Denn Mining Corporation (Iron King Branch) v. N. L.R.B., 362 F.2d 466. 470 (9th Cir. 1966). My conclusion in this regard is further buttressed by the fact that Respondent refused to allow the experienced engi- neers to work and failed to act on their applications for employment. The applications were pending during the time the complex was experiencing extreme difficulty with the air-conditioning system during a period of high atmo- spheric temperatures. Since it was in Respondent's business interest to prov ide comfortable accommodations for its ten- ants and hotel guests. it is only logical to assume that Re- spondent would have relied upon the services of experi- enced engineers rather than the inexperienced personnel it had chosen to replace the engineers. Therefore. Respon- dent's argument that the engineers were not hired because of their "poor work attitude" is not persuasive. Rather, the objective evidence indicates that a substantial motivating factor in Respondent's refusal to hire them was their union membership and the desire on the part of Respondent to avoid having to recognize the Union. In addition. Respon- dent's subsequent insistence that Alford withdraw from Lo- cal 39 as a condition of employment in the engineering de- partment serves to underscore further the fact that Respondent did not want any member of that Union in its employment. In sum, I find that Respondent was substantially moti- vated by its desire to get rid of all the engineer employees because they were members of local 39 and to avoid hav- ing to bargain with that Union. As noted. a successor em- ployer's refusal to retain or hire the employees of its prede- cessor for these reasons is a violation of the Act. K B. & J. }oung's Super Markets. Inc., supra , (;reengatc Mall, Inc.. vupra: Foodwaq o El Paso. .supra. Accordingly. I find that Respondent has violated Section 8(a)(3) of the Act. Respondent argues that, under the language contained in the Howard Johnson case.2 a violation can be found only it the former employees were not hired sole/v because they were union members or to avoid having to recognize the union. Respondent contends that the General Counsel has failed to establish that this was the sole reason for not hir- ing the engineers. As stated in a recent decision by the Fifth Circuit this dictum was not "an attempt to formulate a test for burden of proof in successorship cases." "Rather this is a clear example of impermissible conduct on the part of a successor employer." N.l.. R. B v. Houston Distriution Ser- vices, Inc.. 573 F.2d 260 (5th Cir. 1978). The test continues to be, contrary to Respondent here, whether there is sub- stantial evidence of union animus sufficient to taint the con- duct. N.L.R.B. v. Houston Distribhution Seirices. Inc.. supra: J. R Sousa & Sons., upra. B. The (a)(l) Violations The credited testimony here supports a finding that Re- spondent's officials and agents committed numerous viola- tions of Section 8(a)( 1) by conditioning future employment of the predecessor's employees on withdrawal of union membership. On April 1 I, Snider told each of the engineers. albeit at different times, that the Townehouse would he nonunion. At the same time, he indicated that they could submit employment applications which he would consider. and the wages would be far less than the wages provided for in the agreement honored by Del Webb. It is apparent in these circumstances that Snider was informing the engi- 2T Hoard Johnson C., Inc v Horel Empihee.s, 417 t S at 262. n There Justice Marshall stated, "Thus, a new o ner could not refuse to hire the employees of his predecessor solel6 because the we re union members or to avoid having to recognize the Union" (Emphasis supplied ) DECISIONS OF NATIONAL LABOR RELATIONS BOARD neers that any consideration for future employment was conditioned on their abandonment of or withdrawal from the Union. This is especially true when one considers that Snider unlawfully refused to allow the engineers to work because of their membership in Local 39. By conditioning future employment on abandonment of union membership, Respondent, through Snider's actions, interfered with the rights of the engineer employees to determine whether or not they wanted to remain members of the Union. Such conduct violates Section 8(a)(1) of the Act. Greengate Mall, supra. Similarly, on April 12 Snider and Rubidoux informed the banquet waitresses that the Townehouse was now going to be nonunion. At the same time each of these management officials was urging the employees to continue to work for Respondent and indicated that the benefits they would re- ceive would be greater than the benefits they were deriving as union members. These statements made it manifestly clear to the employees that abandonment of their union membership was not only essential to their continued em- ployment, but also that Respondent was prepared to offer them greater benefits in order to demonstrate the futility of continuing to remain members of the Union. As in the case of the engineers, this conduct also constituted a separate violation of Section 8(a)(1) of the Act. Greengate Mall, su- pra. Consistent with his avowed intent to make the work force nonunion, Snider explicitly conditioned Alford's employ- ment in the engineering and maintenance department on his withdrawal from Local 39. Although Alford attempted to show that the idea originated with him, I have discred- ited his testimony, as well as that of the Sniders, in this regard. It is apparent that, in order to establish his loyalty to Respondent and be considered for a job in the engineer- ing and maintenance department, Alford had to withdraw from Local 39. Not only did Snider suggest this means of proving his loyalty, but he also gave Alford assistance by providing him with the use of Respondent's station wagon to go to the union headquarters in order to withdraw. When Alford was informed by the union representative that he could not receive a withdrawal card and continue working in the trade, it was Snider who told him he could resign. Thus, Snider not only provided Alford with assistance in resigning his membership from the Union, but he also made the resignation an outright condition for Alford's employ- ment with Respondent. By insisting that Alford withdraw from the Union, and by suggesting the means and manner by which this could be accomplished, and further by lend- ing him assistance to effect the withdrawal, Respondent in- terfered with and restrained Alford in his statutory right to retain union membership. This conduct on the part of Re- spondent clearly violated Section 8(a)(l) of the Act. Cit Supply Corporation, 217 NLRB 950, 953 (1975); Fortrex ManuJiacturing Company, Inc., 184 NLRB 22 (1970). The testimony reveals that on April 28 Mrs. Snider sug- gested to the maids that one of them should write a letter resigning from Local 62, and that they all should sign it. This was followed by a petition of resignation from Local 62 presented later that day by a female bartender, who rep- resented that Snider wanted it signed by the maids. After all the maids signed the petition, the bartender took it to Sni- der. Although this conduct was not alleged as a separate violation in the complaint, the matter was fully litigated during the hearing without objection on the part of Respon- dent. Accordingly, I find that the solicitation of the maids' resignation from the Union by Mrs. Snider and the subse- quent petition of resignation provided by Respondent con- stitute a further violation of Section 8(a)( 1 ) of the Act. City Supply Corporation, supra, Fortrex Manuflcturing Companv, Inc., supra. On April 29, when the maids met with Snider to discuss their concerns about the joint picket line set up by Locals 39 and 62, they were infbormed that if any of the maids went out they would not be allowed to come back. Since the employees represented by Local 62 constituted a majority of Respondent's work force (80-90 percent) in that particu- lar unit, and Respondent unlawfully refused to negotiate with Local 62 at that point, it is clear that the strike was in protest of Respondent's unfair labor practices. Therefore, Snider's statement that the employees would be fired if they engaged in the unfair labor practice strike was unlawful and interfered with and restrained the employees in the ex- ercise of their rights guaranteed by Section 7. But even if the strike were considered an economic strike, which I do not find it to be, his statement that the employees would be discharged if they engaged in protected concerted activity constitutes a violation of Section 8(a)( I1) of the Act. Accord- ingly, I find that by virtue of Snider's statement to the maids on this occasion Respondent committed an addi- tional violation of Section 8(a)(1) of the Act. Albion Corpo- ration dibla Brooks, Inc., 228 NLRB 1365. 1367, fn. 11, (1977). Cf. Maintenance Contractors of King (ountv, etc., 228 NLRB 1182 (1977). Finally, the unrefuted testimony of Alford indicates that on April 29 he and Snider were standing at a window ob- serving the picketing in front of the Townehouse. At this time Alford was a nonsupervisory employee in the engi- neering and maintenance department. Snider told Alford that he was not going to hire any of the picketing engineers, although prior to the time of the statement Snider had in- terviewed Pino and Richardson for possible employment. In these circumstances I find Snider's statement to Alford to be a violation of Section 8(a)(1) of the Act. Alford was employed in a nonsupervisory position at the time the state- ment was made, and the import of the statement made it clear to the employee that Respondent would not hire any- one who engaged in protected activity. I find, therefore, that by this statement Respondent committed a further vio- lation of Section 8(a)(1) of the Act. Brooks, Inc., supra C. The Refusal To Bargain With Local 39 Having found that Respondent unlawfully refused to hire or retain the engineer employees because of their member- ship in Local 39 and to avoid recognition of that Union. it must be presumed that the Union would have continued to maintain its majority status in the engineers unit after the takeover but for Respondent's unlawful conduct. Foodwav of El Paso, A Division of Kimbell Foods, Inc., 201 NLRB 933. 938 (1973), enfd. 496 F.2d 117. To hold otherwise would permit Respondent "to rely on its own wrongdoing and thus avoid its legal responsibilities." N.L.R.B. v. Food- way of El Paso, supra; K. B. & J. Young's Supermarkets, 1068 FRESNO TOWNEHOUSE Inc., supra. Therefore. when the union representative asked to meet with Respondent on August II 1, it was requesting recognition and offering to bargain as the representative of the engineering employees. Respondent's subsequent re- fusal to accord such recognition to the Union violated Sec- tion 8(a)(5) and () of the Act. J. R. Sousa & Son.s, Inc.. supra;, N.L.R.B. v. Houston Distrihution Seri'e.s, n.. u- pra; N.L.R.B. v. Kimbell Foods. In.., .supra. But even if the Union's request were found not to be an express request to bargain. I would nevertheless find that a bargaining order is required here under the teaching of the Gissel case.7 Respondent's refusal to hire the entire crew of engineers because of their membership in Local 39 as well as conditioning future employment upon relinquishment of membership in that Union are "not lessonis] likely to he forgotten." Greengate Mall, supra at 38. Therefore. an affir- mative bargaining order is necessary as part of the full rem- edy "to restore the status quo ante', i.e., that existing prior to Respondent's unlawful conduct." Ibid. C(ONC.LSIONS ) LAW 1. Respondent. Nevis Industries, Inc.. d/b/a Fresno Townehouse, is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of' the Act. 2. Stationary Engineers, Local 39, International Union of Operating Engineers and Culinary, Cooks, Bartenders and Hotel, Motel Service Employees Union, Local No. 62. are labor organizations within the meaning of Section 2(5) of the Act. 3. By informing employees represented by Local 62 that Respondent was going to run a nonunion operation and would offer benefits greater than the benefits provided by Local 62, Respondent interfered with the right of its em- ployees to retain membership in that Union and violated Section 8(a)(l) of the Act. 4. By suggesting that employees resign from l.ocal 62 and by soliciting employees' signatures of a petition of res- ignation from that Union. Respondent interfered with. co- erced. and restrained employees in the exercise of their statutory right to remain members of that Union in viola- tion of Section 8(a)( 1) of the Act. 5. By conditioning employment with Respondent upon abandonment of and resignation from ocal 39, Respon- dent interfered with, coerced, and restrained employees in the exercise of their right to remain members of that Union in violation of Section 8(a)( I) of the Act. 6. By informing employees they would be discharged if they engaged in protected concerted activities. i.e.. picket- ing, Respondent violated Section 8(a)( 1) of the Act. 7. By informing an employee that striking employees who were members of Local 39 would not be hired. Re- spondent violated Section 8(a)( I) of the Act. 8. B refusing to hire or retain the engineer employees for the reason that they were members of' Local 39 and to avoid recognition of that Union, Respondent discriminated against these employees regarding hire and tenure of em- ployment in violation of Section 8a)(3) and ( I ) of the Act. ! 5 R \ (,.l / PaAking ( , It , 395 I S 575 (11969) 9. All engineers employed b Respondent at the Towne- house complex, excluding all other employees, guards and supervisors as defined in the Act, constitute a unit appropri- ate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 10. By refusing to recognize and bargain with Local 39 as the exclusive representative of a majority of the engineer employees in the above appropriate unit. Respondent vio- lated Section 8(a)(5) and ( I ) of the Act. 11. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Tili RiMi-)' lHaving found that Respondent engaged in unfair labor practices within the meaning of Section 8(aX 1), (3). and (5) of the Act. Respondent shall be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of' the finding that Respondent unlawfully refused to bargain with Local 39, in violation of Section 8(a)(5) and (1) of the Act, it shall be recommended that Respondent be directed to bargain with that Union. upon request, concerning wages, rates of pay. and hours and conditions of employment of the employees in the engineers unit and. if an understanding is reached, to embody such understanding in a signed agreement. Inasmuch as I have found that Respondent unlawfully refused to hire the engineer employees on April I because of their membership in Local 39 and to avoid having to recognize that Union. it shall be recommended that Re- spondent offer them full and immediate reinstatement to their former positions of employment, discharging if neces- sary any engineering and maintenance employees hired al- ter April I1. 1977. Respondent's notification to these em- ployees on May 19. 1977 (G.C. Exh. 8), of the availability of a position in the "maintenance department" is not, in my judgment. an offer of reinstatement restoring to these em- ployees their seniorit and other rights and privileges neces- sarN to remedy fully the discrimination as of April I, 1977. Therefore, Respondent's offer of employment is a "lesser invitation" than that imposed by the legal duty which Re- spondent owed these employees. D.R.C., Incorporated. 233 NLRB 1409 (1977); Hdro-Dredge .Accesson Co.. 215 NLRB 138, 139 140 (1974). In addition, Respondent will be required to make these employees whole for any loss of earnings they may have suffered by reason of the unlawful refusal to hire them on April 1I, with backpay to be com- puted with interest thereon in the manner prescribed by F I. Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NIRB 651 (1977)?28 The General Counsel contends that Brewer, the chief en- gineer for the predecessor employer and an acknowledged supervisor, must be treated in the same manner as the other engineer employees. While I find that Brewer is entitled to reinstatement in order to insure an adequate remedy for Respondent's unlawful conduct in this case. I do so for rea- sons other than those advanced b\ the General ounsel. Although Brewer was a superu sor, he was also a member of the IUnion that Respondent was seeking to get rid of at " See, encr.ail,. 1I Plumhl n, , Itt,t.. ( ,,. ' NI1RB 71( ( 192) 1069 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time of the takeover. While the Act does not protect supervisors, the Board has held that "where the discipline [or discharge] of the supervisor is an integral part of the employer's total effort to stifle unionism among his employ- ees." the full remedy requires restoration of the supervisor to his former or equivalent position. See Pioneer Drilling Co.. Inc., 162 NLRB 918 (1967), enfd. in pertinent part 391 F.2d 961 (10th Cir. 1968); Krebs and King Tqovola, Inc., 197 NLRB 462 (1972). It is clear from the facts found in this case that Respondent discharged the entire engineering de- partment, including Brewer. as part of its total effort to stifle unionism among the Townehouse employees. There- fore, Brewer's discharge was an integral part of this unlaw- ful strategem. Accordingly, I find that in order to remedy fully this unlawful conduct, Brewer should be restored to his former position, and he is entitled to backpay for the loss of earnings he suffered, computed in the manner de- scribed above. Finally, because the unfair labor practices committed here are of a character striking at the very heart of em- ployee rights safeguarded by the Act, it will also be recom- mended that Respondent be required to cease and desist from interfering in any manner with the rights of employees guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941): N.L.R.B. v. The Bama Co.. 353 F.2d 320, 323 324 (5th Cir. 1965); P. R. Mallory and Co., Inc. v. N.L.R.B., 400 F.2d 956, 959 960 (7th Cir. 1968), cert. denied 394 U.S. 918 (1969). Upon the foregoing findings of fact, conclusions of law. and the entire record in this case, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER29 The Respondent, Nevis Industries, Inc., d/b/a Fresno Townehouse, Fresno, California, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Informing employees that Respondent is going to run a nonunion operation and offering employees benefits claimed to be greater than the benefits provided by the Union which represented the employees. (b) Conditioning employment with Respondent upon abandonment and resignation from Stationary Engineers, Local 39. International Union of Operating Engineers, or any other labor organization. (c) Informing employees that if they engage in protected concerted activity they will be discharged. (d) Informing employees that other employees engaging in protected concerted activity will not be hired by Respon- dent. (e) Refusing to hire to retain the engineer employees of its predecessor for the reason that they are members of Sta- 29 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 tionary Engineers, Local 39. International Union of Oper- ating Engineers and to avoid recognition of that Union. (f) Refusing to recognize and bargain with Stationary Engineers, Local 39, International Union of Operating En- gineers, as exclusive representative of a majority of the en- gineer employees in the unit found appropriate herein. (g) Suggesting to employees that they resign their mem- hership in Culinary, Cooks, Bartenders and Hotel. Motel Service Employees Union, Local No. 62. or any other labor organization, and soliciting employee signatures on a peti- tion of resignation from that Union or any other labor or- ganization. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Ernest Brewer, Ralph Langerman. Arthur Pino, Robert C. Powles. and Dick Richardson immediate rein- statement to the jobs they held on April I1. 1977. replacing present engineers and maintenance employees hired as of April 11, 1977, and thereafter, or, if there is not a sufficient number of positions now available, place them on a prefer- ential hiring list in order of their seniority with their previ- ous employer without prejudice to their seniority and other rights and privileges and make them whole for any loss of earnings they may have suffered as a result of the discrimi- nation practiced against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Upon request, bargain with Stationary Engineers, Local 39, International Union of Operating Engineers, as the exclusive bargaining representative of all of the employ- ees in the bargaining unit found appropriate herein with respect to rates of pay. wages. hours. and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary and relevant to analyze and compute the amount of backpay due under this Order. (d) Post at the Townehouse complex in Fresno, Califor- nia, copies of the attached notice marked "Appendix."'3 Copies of said notice, on forms provided by the Regional Director for Region 32. after being duly signed by Respon- dent's authorized representative, shall be immediately posted upon receipt thereof and be maintained for 60 ex- ecutive 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. (e) Notify the Regional Director for Region 32, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 13 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted bh Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Fnforcing an Order of he Na- tional .ahbor Relations Board" 1070 Copy with citationCopy as parenthetical citation
