Holiday Inn of Chicago-South

National Labor Relations Board - Board Decisions

Feb 13, 1974

209 N.L.R.B. 11 (N.L.R.B. 1974)

HOLIDAY INN OF CHICAGO-SOUTH
Kay Corporation d/b/a Holiday Inn of Chicago-South,
Harvey and Local 593, Hotel -Motel Service Work-
ers, Drug Store , Sports Events & Industrial Cater-
ing Employees Union, AFL-CIO. Cases
13-CA-12245 and 13-RC-12932
February 13, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 28, 1973, Administrative Law Judge
Samuel Ross issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and Charging Party filed a
brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge as modified herein and to adopt his recom-
mended Order.
1. We agree with the conclusions of the Adminis-
trative Law Judge that the racially oriented state-
ment made by Respondent was a violation of Section
8(a)(1), but we so find because it constituted a threat
to the employees either that current part-time
employees would be replaced by blacks if the Union
won the election or that they would have to work
alongside blacks, a condition which certain employ-
ees might consider unpleasant. E.g., Bush Hog, Inc.,
161 NLRB 1575, 1592-93, enfd. 405 F.2d 755 (C.A.
5); General Steel Products, Inc., 157 NLRB 636,
639-640, enfd. in relevant part 398 F.2d 339 (C.A. 4),
reversed and remanded in other respects sub nom.
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969).
2. We agree that Respondent's interrogation of
employees as to their feelings about the Union or
how they were going to vote in the pending election
violated Section 8(a)(1), because we find that it far
exceeded the permissible bounds of such inquiries.
Furthermore, "even if the safeguards of Struksnes
Construction Co., Inc., 165 NLRB 1062, and Blue
Flash Express, Inc., 109 NLRB 591, 592 (no election
pending) had been present, the questions would
nevertheless have been violative of Section 8(a)(1) in
that they could serve no valid purpose inasmuch as a
Board-conducted election was already pending and
Respondent, therefore, had no justification for such
interrogation. E.g., Clark Printing Company, Inc., 146
11
NLRB 121, 122; C. W. Smith Engineering Co., 171
NLRB 1484, 1487.2
3. Finally, in adopting the finding that Respon-
dent's interrogation of an employee regarding state-
ments he made to an agent of the National Labor
Relations Board violated Section 8(a)(1), we need not
consider whether the employee was actually coerced
thereby. Such questioning is inherently coercive; and
hence is violative of the Act for the reasons set forth
in Waggoner Corporation, 162 NLRB 1161, 1162-63,
and Robertshaw Controls Company, 196 NLRB 449,
ALJD, sec. III , subsets. 5 and 6.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Kay Corporation
d/b/a Holiday Inn of Chicago-South, Harvey,
Harvey, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
IT IS FURTHER ORDERED that the election held on
March 2, 1973, in Case 13-RC-12932 be, and it
hereby is, set aside, and that Case 13-RC-129 be,
and it hereby is, remanded to the Regional Director
for the purposes of conducting a new election.
[Direction of Section Election and Excelsior foot-
note omitted from publication.]
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
t Member Kennedy concurs that the interrogations violated Sec . 8(a)(l),
but he does so because of Respondent 's repeated and persistent questioning
of employees regarding their union feelings and how they were going to vote
in the representation election, and because in at least one instance the
questioning was accompanied by a threat of a loss of an existing benefit
e Federal Stainless Sink Div of Unarco Industries, Inc, 197 NLRB 487,
cf C V Uranga, 173 NLRB 635,639
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: Case
13-CA-12245 is based on a charge filed by the above-
named Union on March 28, 1973, and a complaint which
issued on June 1, 1973, against Kay Corporation d/b/a
Holiday Inn of Chicago-South, Harvey (herein called
Respondent), which allege that during the period preceding
a scheduled Board election to determine whether or not
Respondent's employees desired representation by the
Union, Respondent engaged in various acts of interference
with, and restraint and coercion of, its employees in the
exercise of their rights guaranteed in Section 7 of the Act,
209 NLRB No. 7
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thereby violated Section 8(a)(1) of the Act The
Respondent filed an answer to the complaint which denies
its substantive allegations and the commission of unfair
labor practices.
Case 13-RC-12932 is based on a petition filed by the
Union on January 11, 1973, and a stipulation for
certification upon consent election approved on February
20, 1973, pursuant to which an election was conducted on
March 2, 1973, which resulted in 15 votes for the Union, 18
against it, and 5 challenged ballots. On March 9, 1973, the
Union filed timely objections to the Respondent's conduct
affecting the results of the election. On June 6, 1973, the
Regional Director determined that the Union's objections
were based on more or less the same conduct as that
charged as unfair labor practices in the complaint in Case
13-CA-12245 against Respondent, and he accordingly
issued an order consolidating the two cases and the issues
raised by the challenged ballots for hearing and decision.
Pursuant to due notice, these consolidated cases were
tried before me in Chicago, Illinois, on July 11 and 12,
1973.1 Upon the entire record and my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed by all the parties, I make the following:
FINDINGS OF FACT
I. COMMERCE
The Respondent is an Illinois corporation which is
engaged in the operation of a Holiday Inn motel at 17100
South Halsted, Harvey, Illinois. During the past 12
months, a representative period, the Respondent had gross
revenues in excess of $500,000 and it purchased and
received goods valued in excess of $20,000 from places
located outside the State of Illinois. Accordingly i find that
the Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is not disputed, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
111. TFIF UNFAIR LABOR PRACTICES
A. The Issues Presented
The Respondent is charged in this case with coercively
interrogating employees regarding their union sympathies
and as to how they intended to vote at the Board election,
and with threatening employees with discharge if they
participate in a strike, and with less pay and inferior
working conditions if the Union won the election. The
Respondent is further charged with appeals to the racial
prejudices of some of its employees, with promises of
increased benefits to two employees, and with statements
to employees implying the futility of representation by the
Union. All of the foregoing, it is charged, was engaged in
by the Respondent to discourage support of the Union at
At the opening of the hearing, the five challenges to ballots were
withdrawn by the consent of all the parties and the challenged ballots were
counted The revised tally of ballots disclosed 17 votes for the Union and 21
the Board election. In addition to the foregoing, the
Union's objections to the election also allege that the
Respondent "engaged in unlawful surveillance of [its
employees'] union and protected concerted activities," and
that it "conferred money and other benefits on certain
employees as an inducement to secure their support in the
election." The testimony adduced in support of the
complaint is, for the most part, all denied by Jules Zlogar,
the Respondent's "assistant inkeeper" and its only witness.
There is thus presented for resolution primarily a question
of the credibility of witnesses and their testimony. There is,
of course, also presented for determination the issue of
whether the testimony as credited is sufficient to establish
the charged unfair labor practices, and/or to sustain the
Union's objections, and whether it requires the setting
aside of the results of the election.
B. Preliminary Observations Regarding the
Credibility of the Testimony
In support of the allegations of the complaint, the
General Counsel adduced testimony from five witnesses,
three of whom, Millie Thurman, Leona Pittman, and
Timothy Wood, formerly worked for Respondent, and
two, Louise Seay and Scott Bernard, who still work for it.
In respect to the three former employees, only Timothy
Wood terminated his employment under circumstances
which disclose an animus towards Respondent. I therefore
regard former employees Thurman and Pittman as
witnesses who have no especial interest in the outcome of
these proceedings. Conversely, Wood, a 16-year old high
school boy who formerly worked part-time for the
Respondent as a porter, admittedly "do[es] not like" Jules
Zlogar, the Respondent's assistant innkeeper, and he quit
his job under circumstances which warranted, and to
forestall, his discharge.2 In addition, Wood signed an
affidavit for a Board agent in which he admittedly stated
falsely that he worked for Respondent 40 hours "almost
every week." Under all the circumstances, including his
quite apparent immaturity, I regard Wood's testimony as
unreliable for the most part, and I credit it mainly when it
accords or is consistent with other testimony which I
regard as reliable.
Thurman, Pittman, and Seay were and/or are house-
keepers who clean the rooms and make up the beds in the
Inn. They quite obviously had little formal education and
possess only a limited English vocabulary. Accordingly,
although the testimony of all three impressed me as being
honest and forthright, its accuracy nevertheless will be
assessed in the light of their limited literacy.
Bernard Scott, the General Counsel's fifth and final
witness, is a 17-year-old high school student who works for
the Respondent as a part-time porter. His answers to
questions were frank, candid, and forthright, and I also am
persuaded by his serious and sincere demeanor that his
testimony is generally reliable.
This leaves for consideration the credibility of the
testimony of Jules Zlogar, the Respondent' s assistant
innkeeper and its only witness. Zlogar is a 24-year-old
votes against representation by it
2 See Resp . Exh 3, p. 3. admittedly written by Wood
HOLIDAY INN OF CHICAGO-SOUTH 13
college graduate who has a Bachelor of Science degree "in
business administration, emphasis in management" While
in college, he took a course in "collective bargaining."
Since Zlogar's graduation from college about a year ago,
he has worked for the Respondent. In the interval between
the filing of the Union's petition for certification as the
representative of a unit of Respondent's employees and the
election on March 2,8 Zlogar admittedly conducted an
active campaign on behalf of the Respondent and spoke
daily to its employees to dissuade them from supporting
the Umon at the election. The alleged violations of the
Respondent in this case are based solely on Zlogar's
statements to employees. Zlogar's testimony for the most
part controverts that of all five of the witnesses who
testified for the General Counsel. As explicated in greater
detail hereinafter, I regard Zlogar's testimony as evasive on
some occasions, self-contradictory in some respects, and
implausible in others. Based thereon, as well as on
demeanor, I consider his testimony to be unreliable for the
most part.
C. The Conduct of Respondent on Which the
Complaint is Based
1. The appeal to racial prejudice
Paragraph VI (a) of the complaint alleges that on about
February 21, "Respondent, by Jules Zlogar, threatened to
displace employees with Blacks and to enforce association
with Blacks if [the] employees selected the Union as their
representative for purposes of collective bargaining." The
testimony adduced in support of this allegation was as
follows:
The Respondent employs a number of teenage high
school students to work after school as part-time porters.
On February 21, Assistant Innkeeper Zlogar had a
conversation about the Union with three of these young
porters in Innkeeper Stanley Brum's office.4 In the course
of that conversation, Zlogar asked the three boys whether
they would like to work "with niggers," Wood and Sullivan
replied that they would not, and Bernard asked, "What has
that got to do with it [the Union]?" Zlogar replied, "Well.
if the Union gets in, the things will have to be racially
balanced, there is no way I can keep blacks out as
porters." 5
The Respondent urges that in any event, "since Bernard
claimed that he was not anti-black . . . the statement [of
Zlogar] would not have had a coercive effect upon Bernard
or interfere with [his] free exercise of employee rights
under the Act."6 I regard this contention as devoid of
3 The appropriate unit stipulated by the parties was
All housekeeping employees, linen and laundry employees, porters
and housemen , but excluding all front desk employees, maintenance
men, kitchen employees , dining room employees , clerical employees,
guards and superiisors as defined in the Act and all other employees
* Scott Bernard, Timothy Wood, and Jim Sullivan
The findings above are based on the credited testimony of Bernard and
Wood which were mutually corroborative Zlogar denied making the
statements attributed to him by Bernard and Wood, and he also denied that
the term "niggers" is part of his lexicon According to Zlogar, the subject of
working with black porters was raised by Wood when he asked "if the
union got in here, would we have to work with niggers--soul brothers""
Zlogar testified that he replied, "that there was no prejudice in my hiring, I
hire for the quality of the individual and as the position needs to be filled."
merit. Wood's and Sullivan's negative responses to Zlogar's
question as to whether they would like "to work with
niggers," and Bernard's credited testimony that Wood was
"anti-black," clearly disclosed the existence of a racial
prejudice which was available for exploitation by Zlogar.
In that context, the latter's statement that a union victory
would require the maintenance of a racial balance among
the Respondent's porters quite obviously was a not too
subtle appeal to racial bigotry, and it thereby interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act and transgressed
Section 8(a)(1).7
2. The alleged threat to discharge employees who
engaged in a strike
There is no probative evidence in the record of this case
that the Union ever threatened to strike the Respondent or
to picket its premises. According to Zlogar, however, on an
undisclosed date in mid-February, he received a telephone
call from Respondent's counsel "that the Union had made
a statement that they might-they would possibly have a
picket strike." Zlogar thereupon admittedly "went through
the building and gathered the employees from floor to
floor," and told them about the Union's "threat of pulling
a picket strike," that they did "not have to walk out," and
that "if needed," police protection would be provided for
them.8
The complaint (paragraph VI(b)) alleges that Zlogar
"threatened that employees who might engage in strike
would be discharged." The testimony adduced in support
of this allegation was as follows:
a. Millie Thurman, who then worked for Respondent
as a housekeeper but has since quit, testified that Zlogar
told her in the presence of several other employees that
"the union was going to picket the next day ... and there
was going to be a strike." Thurman further testified that
Zlogar also said, "if everybody strike [sic] they would be
fired," and he added, "I am sure you want your job."
Thurman also testified that later that same day she asked
Zlogar, "who told you it was going to be [sic] a strike," and
that Zlogar replied, "I can't tell you."
b. Leona Pittman, another former housekeeper who
worked for the Respondent during the preelection period,
testified that on a Thursday in February while she was
working in one of the guest rooms, Zlogar came in and told
her that the Union was going to strike and picket the Inn
on the next day. Pittman advised Zlogar that she would not
go "out there on a picket line," and Zlogar then assured
According to Zlogar, this exchange occurred before Bernard came into
Brum 's office and joined in the discussion. The Respondent urges that
Zlogar's testimony in this regard should be credited, and that of Bernard
and Wood be discredited as unworthy of belief As noted above, however,
the only one of these three witnesses whose testimony I regard as reliable is
Bernard , and I credit his version of this conversation . And, inasmuch as
Wood's testimony was substantially similar to that of Bernard . I credit him
in this respect notwithstanding my general view that he is not a reliable
witness
6 Br,p II
r Bush Hog, Inc, 161 NLRB 1575, 1592-93, cf Sewell Manufacturing
Company, 138 NLRB 66,71-72
The quotes above are from Zlogar's testimony which is credited in
these respects
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her that he would "graduate [sic] [accompany]" Pittman to
her car "to keep [her] from getting hurt."9
c. Louise Seay, a housekeeper still employed by the
Respondent, testified that during the second week in
February, while she was working in one of the rooms at the
Inn, Zlogar came in and told her (and several other
employees who were present) that "the union was trying to
get in," that "they [the Union] was going [sic] to be out
there to picket the place, and they would probably be
trying to call us out, you know, keep us from coming to
work, and if we did stay off from work, then they
[Respondent] could replace us with someone, and . . . if
we wanted to come back after this was over, then we would
have to wait, you know until they have an opening or
something, and come in."
d. The final testimony adduced by the General Counsel
regarding Zlogar's alleged threats to discharge employees
who strike was that of the teenage part-time porter,
Timothy Wood. Wood testified that on February 21,
during Zlogar's conversation with him, Sullivan and Scott
Bernard in Brum's office, Bernard asked Zlogar "what
would happen if we went on strike," and Zlogar said,
"while you were out there walking around they [Respon-
dent] would hire somebody in your place; that it would be
just more or less like getting fired."
Zlogar specifically denied telling Thurman, Pittman,
Seay, Wood, Bernard, or any other employee, "that they
would be fired if they went out on strike." Zlogar testified
in this regard that when he told the employees about the
strike which the Union assertedly had threatened, he also
told them that "if they did go [out on strike], that they
would not lose their job [sic]; we could as a business
replace them with temporary employees, but at this point,
when they wanted to come back they could come back."
Although I regard Zlogar's testimony as generally
unreliable, I credit his testimony in this regard principally
because it accords with that of Seay, a witness for the
General Counsel whose testimony I regard as reliable.
Significantly, only Thurman clearly testified that Zlogar
threatened to discharge employees who engaged in a strike.
However, although I regard Thurman as an honest and
forthright witness, Seay's testimony persuades me that
Thurman, in the light of her limited literacy, undoubtedly
misunderstood the import of Zlogar's statement to her. I
note in this regard that neither Pittman nor Bernard
testified to any such threat by Zlogar that he would
discharge employees who struck. Moreover, even assuming
that I credited Wood's uncorroborated testimony (Bernard
assertedly was present at the time), I do not regard the
statement which he attributed to Zlogar as an unambigu-
ous threat to discharge employees who went out on strike.
To the contrary I regard Wood's testimony of what Zlogar
said as a correct statement of the law in respect to an
9 Pittman stayed home the next day.
1o The findings above are based on Bernard 's credited testimony which
was corroborated by Wood whom I also credit in this regard Zlogar denied
telling the part-time employees that the Union would not represent their
interests , or that they could not be in the Union According to Zlogar, the
three boys asked him "if their jobs would still be there" if the Union did
come in." Zlogar testified that he told them that he "could not say, I did not
have the knowledge," and that "I would find out and inform them " As
previously noted, I regard Zlogar's testimony as generally unworthy of
employer's right to replace economic strikers, and I
consider the latter part of Wood's testimony, "that it would
be just more or less like getting fired," as Wood's erroneous
conclusion regarding the meaning of Zlogar's statement.
I conclude from all the foregoing that the evidence is
insufficient to establish that Respondent threatened to
discharge employees who engaged in a strike, and I
therefore will recommend dismissal of this allegation of the
complaint.
3. The appeal to the futility of union
representation
On February 21, in the course of Zlogar's conversation in
Brum's office about the Union with teenage part-time
porters Wood, Sullivan, and Bernard, Zlogar asked them
how many hours they were scheduled to work. Sullivan
replied 22, Wood said 28, and Bernard said 30. Zlogar then
said, "See, that is part-time . Hasn't anyone ever told you
that unions don't like part-time workers?" Bernard said,
"no," and Zlogar continued, "Well, they don't. They are
out to protect the full-time adult employees. Any teenagers
working part-time jobs could be taking jobs away from
adults. Now 22, 28 hours a week is part-time. The Union
doesn't like part-time employees." Sullivan and Wood
protested, "Yes, but we work 30 or 35 hours a week."
Zlogar replied, "That doesn't matter, you are scheduled for
22 and 28." Zlogar then told Bernard that inasmuch as he
was scheduled to work 30 hours, "I might be considered
full-time, so it might not affect me." io
Based on the foregoing testimony, the complaint alleges
in paragraph VI(c) that Zlogar "told part-time employees
that the Union would not represent their interests and that
they could not be in the Union, rendering futile any
interest they might have in the Union," and that thereby
the Respondent violated Section 8(a)(1) of the Act. The
General Counsel and the Union contend that Zlogar's
statements conveyed to these young employees a "message
of [the] futility" of their representation by the Umon, and
that it therefore "necessarily" interfered with, restrained
and coerced them in the exercise of their Section 7 rights.
Notwithstanding my credibility resolution and my fording
above that Zlogar, in fact, made the statements attributed
to him by Bernard and Wood, I perceive therein no
violation of the Act.
Section 8(c) of the Act protects the right of an employer
to express his views about a union and to thereby dissuade
his employees from voting for a union, provided that "such
expression contains no threat of reprisal or force or
promise of benefit." Zlogar's statements to the three young
porters on February 21 that because of their part-time
employee status, support of the Umon would not be in
their best interests , was accompanied by no threat of
reprisal or promise of benefit. I conclude that this
credence I similarly regard his version of this conversation as patently
implausible Zlogar, a college graduate in management who took a course in
collective bargaining , quite obviously knew that the continued employment
of these boys by the Respondent could neither be dependent on. nor related
to, the success or failure of the Union at the Board election . His asserted
ignorance of the answer to the question allegedly posed to him by the young
porters is thus, in my view. obviously incredible , and I do not believe his
testimony in these respects.
HOLIDAY INN OF CHICAGO-SOUTH
statement constituted protected free speech under Section
8(c) of the Act, and thus is not "evidence of an unfair labor
practice under the provisions of the Act." I will according-
ly recommend dismissal of paragraph VI(c) of the
complaint.
4. The interrogation of employees regarding their
union sympathies
According to the credited testimony of Louise Seay, on
the day after Zlogar told her and Respondent's other
employees that the Union was going to picket the Inn and
call the employees out on strike, Zlogar asked "everybody
[the employees] what . . . they thought about the union."
Seay further testified that "most every day or two"
thereafter, and "until the [Board] election," Zlogar
continued to ask her "how did I feel about the Union." On
one such occasion, Seay told Zlogar that "it [the Union]
would be a help," and Zlogar answered that "if the union
get[s ] in," she would "be losing some of the benefits." Seay
asked, "what kind of a benefit?" Zlogar answered that
Seay, who because of babysitter problems sometimes took
off on scheduled workdays, would no longer be permitted
to do so, because when "the union got in, well the union
was going to cut that out."
In a like vein , Scott Bernard credibly testified that on
February 19, Zlogar asked him, "You're voting against the
union , aren't you, Scott?," and Bernard replied, "Well, I
don't really know." Zlogar continued, "You mean there's a
chance you might vote for it?" Bernard answered, "Well, I
really don't know too much about the union." According
to Bernard, on the following evening, Zlogar again asked
him, "Have you decided how you are going to vote,
Scott?," and when he replied, "no, youZlogar said, "Scott you
are thinking too much again. It comes down to, do you
want me to bargain for you or do you want them to
bargain for you?" Bernard further testified that on
February 22, the day after Zlogar's meeting with the three
young porters in Brum's office, Zlogar asked him, "Scott,
how are you gomg to vote?," and Bernard replied, "Well,
Jules, you talked to us yesterday, and I realize the union
really doesn't have much to offer me." 11
In the context of the Respondent's open hostility to the
representation of its employees by the Union, and the
absence of assurances that no reprisal would take place, I
find that Zlogar's interrogation of employees as to how
they felt about the Union and how they would vote at the
then pending Board election constituted interference with,
and restraint and coercion of employees in the exercise of
rights guaranteed by the Act, and that it violated Section
8(a)(1).
11 Timothy Wood similarly testified that on at least two occasions,
Zlogar asked him how he was going to vote at the Board election, and that
he told Zlogar that he would vote against the Union. Zlogar denied that he
asked Seay, or any other employee, how they felt about the Union, and he
also denied that he asked Bernard, Wood, or any other employee, how he or
she was going to vote at the election. In addition, contrary to Seay, Zlogar
testified that it was she who asked him whether , "if the union came in," "her
days off would be changed to meet a schedule," and that he replied that
"her days off would be as they were when she was working, I would not
change her days off" I place no credence in Zlogar's denials or his
testimony in these respects for the following reasons in addition to my
previously expressed views regarding the unreliability of his testimony
Zlogar first admitted, albeit reluctantly and after equivocating , that he was
15
I similarly regard Zlogar's statement to Seay, that if the
Union won the election, she would no longer be able to
take off from work on days other than her scheduled off
days, as coercive of employee rights. Although Zlogar put
the onus for the elimination of this existing privilege
enjoyed by Seay on the Union, it is quite obvious that this
was a practice controlled solely by the Respondent to
which the Union would not likely object. Zlogar's
statement thus was not a prediction of the probable
consequences of union representation which was beyond
the Respondent's control, and clearly was not free speech
protected by Section 8(c) of the Act.12 I find that by this
statement of Zlogar, Respondent threatened to eliminate
an existing benefit of Seay's employment and thereby
further violated Section 8(a)(1) of the Act.
5. The threats of less pay and stricter rules under
union representation
a. According to former housekeeper, Leona Pittman, at
the same time that Zlogar spread the false tale that the
Union was going to strike and picket the Inn on the next
day, Zlogar told Pittman, "If the Union get [sic] in here,
you all be getting [sic] less pay." Pittman replied, "Well,
hows [sic] can we get less pay? The Union pay [sic] more,
you don't pay but $1.70 an hour. When I get my check, it
ain't but for $58.25."
Zlogar admitted that he had a separate meeting with
Pittman in which the subjects of pay and benefits were
discussed if the Union "came in ." Zlogar's version of this
conversation was that Pittman "was concerned [that] if the
union did come in, since she realized she was the only
union party in the building, she wondered about her job
security." Zlogar testified, "I told her there was no worry
whatsoever, she was a good employee and she had nothing
to worry about on that." Zlogar further testified that
Pittman "also asked me what the situation would be with
benefits and pay, and again I told her that in the union
events [sic] it all goes into negotiations and I could make
no positive statement at that time, just that it is in
negotiations."
I place no credence in Zlogar's version of this conversa-
tion with Pittman, not only because I regard his testimony
as generally unreliable, but also that in this respect, I
consider it quite patently implausible. Thus, I cannot
believe that Pittman, a union adherent, would be con-
cerned about her job security if the Union achieved
representative status, or that she would ask assurances
from her employer, who openly opposed the Union, that
her job tenure was safe. Moreover, I consider Pittman who
"interested in." and made "attempts to find out the relative strength of the
union before the election." He then was asked . "How did you go about
doing than," and gave the incredible reply, "By discussions with my lawyer.
Mr Kal Grove" Then, when pressed again for the means by which he
sought that information, Zoglar testified, "Just by my discussions and my
dealings with the individuals [employees] and their basic attitude toward the
whole situation " On further questioning , Zoglar finally denied that he mane
"any effort at all" to dind out the Union' s "relative strength" among his
employees I am persuaded by the foregoing evasive, implausible , and self-
contradictory testimony. and by his demeanor, that Zoglar's denials of the
testimony of Seay, Wood, and Bernard are worthy of no credence
whatsoever
12 ,4' L R B v. Gissel Packing Co, Inc, 395 U S. 575, 618 (1969).
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no longer is employed by Respondent as a disinterested
witness. I therefore credit her testimony in these regards.
b. According to Timothy Wood, on February 21,
during Zlogar's conversation about the Union with the
part-time teenage porters in Brum's office, Zlogar told
Wood and Sullivan, inter alia, that under the Union, they
would have "to answer" to union stewards instead of
Zlogar for failure to complete work assignments and for
coming to work late. Wood testified that in this regard
Zlogar said:
If you are late or you have car trouble and you come
in late, or if something happens where you are late and
you can't get the work done, the steward makes you
stay there and get the work done, and if it continues to
happen that you are late or you don't get the work
done, you could be fired by the steward.
According to Wood, Zlogar further said that he, to the
contrary "was like a tree, he swayed back and forth, like if
you were late, he understood if for some reason you didn't
get the work done." 13
Zlogar's threat to employee Pittman that employees
would get less pay under union representation clearly
constituted a threat of reprisal and interference, restraint.
and coercion within the meaning of the Act. I find that
thereby, the Respondent engaged in further unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
I likewise so regard Zlogar's statement to Wood and
Sullivan that under the Union they would have "to
answer" to a union steward for lateness and for failure to
complete work assignments. Supervision of tardiness and
productivity of employees clearly are matters which are
controlled by management, and not unions, and Zlogar's
statement thus was not a prediction of the probable
consequences of union representation which was beyond
the control of Respondent.i4 I therefore find that by this
statement of Zlogar to Wood and Sullivan, the Respondent
engaged in further unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
6. The alleged promise of a raise
According to Timothy Wood, on the evening of
February 21 or 22 (he could not remember which), as he
and Sullivan were cleaning the swimming pool at the Inn,
Zlogar came over and told them that he had "put in for a
dime raise for [them] you," and cautioned them not to say
anything about it because he could "get in trouble."
According to Zlogar, the discussion of a pay raise for
Wood occurred on February 22. Zlogar's version of this
conversation was that while at the pool, Wood asked him
when he would be receiving a raise , and that Zlogar replied
that "with the situation we had with the union matter, that
no raise was being given out other than the normal
progression." In addition Zlogar specifically denied the
statements about a raise attributed to him by Wood.
13 Zlogar, after equivocating, conceded in effect that he told these
employees that he could "bend like a tree " in the wind and that it was
"possible" that the union steward would not be as flexible as he was in
dealing with the "problems" of employees . In the light of Zlogar's reluctant
admissions in this regard , I credit wood 's testimony regarding this phase of
Based on Wood's testimony, paragraph VI(f) of the
complaint alleges that the "Respondent, by Jules Zlogar,
promised employee benefits if they rejected the Union in a
forthcoming representation election."
As previously noted in section 111, B, of this Decision, I
regard Wood's testimony "as unreliable for the most part."
As found above, I also consider Zlogar's testimony as
worthy of very little, if any, credence. In the light of my
view of the lack of credibility of both these witnesses, and
the absence of any corroboration of either of them, I find
myself unable to determine who is telling the truth in this
regard. Under these circumstances, I conclude that the
General Counsel has not sustained the violation alleged in
paragraph Vi(f) of the complaint by the "preponderance of
testimony required by Section 10(c) of the Act, and I will
recommend its dismissal.15
7. Interrogation about visits to employees by
agents of the Board
In connection with the investigation of the charge filed
against the Respondent in the instant case, an agent of the
Board contacted the teenage porter, Scott Bernard, and
obtained a statement from him. Thereafter on Sunday,
May 27, Zlogar asked Bernard whether "some lady from
the Government" had "came and talked to him this past
week." Bernard, who had been contacted prior to the "past
week," truthfully answered "no." Zlogar then said, "Well,
that's strange, they have contacted everyone else." Bernard
then prevaricated and told Zlogar that he was not at home
when the Board agent called on him, and that she had
indicated that she would try and get in touch with him the
following Saturday. Zlogar then asked Bernard, "I didn't
say anything about blacks, did I?" Bernard responded
(untruthfully), "Well, Jules, you know, it was a couple of
months ago, that's a long time. I really don't remember."
Zlogar said, "I don't think 1 did." He then asked Bernard,
"Did I ever ask you how you were going to vote?" Bernard
replied, "Yes, I remember, you did." Zlogar then said, "I
think I was covering myself with something like, `you don't
have to tell me if you don't want to.' " Bernard responded,
"I don't remember that." That ended this conversation.16
About a week later, according to Bernard's credited
testimony, Zlogar asked Bernard, "Scott, what did you say
in your affidavit?" Bernard replied, "Well, Jules, I made
my affidavit a couple of months ago, and I don't really
remember what I talked about." Zlogar then asked
Bernard whether "I [Bernard] said anything [in the
affidavit] about him [Zlogar] saying anything about
blacks." Bernard answered that he "didn't recall," al-
though he admittedly "remembered." Bernard also told
Zlogar that he told the Board agent that Zlogar had asked
him how he was going to vote. Bernard asked Zlogar, "Will
this get you into any trouble or anything?" Zlogar
their conversation in Brum's office
11 N LR.B v Gissel Packing Co, supra
" Cf. Blue Flash Express, Inc, 109 NLRB 591.
16 The findings above are based on the testimony of Bernard whom I
regard as a reliable witness and credit in these and most respects
HOLIDAY INN OF CHICAGO-SOUTH 17
answered, "No, not really, it was just kind of technically
wrong for me to ask you that." 17
The complaint as amended at the opening of the hearing
in this case (par. Vi(g)) alleges that Respondent further
violated Section 8(a)(1) of the Act by Zlogar's interroga-
tion of employees as to what they told Board agents orally
and in their affidavits. Zlogar's interrogation of Bernard
quite obviously coerced the latter as evidenced by
Bernard's false responses to Zlogar's questions. I conclude
therefrom that the Respondent thereby engaged in further
interference, restraint, and coercion of employees within
the meaning of Section 8(a)(1) of the Act.18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate, and subtantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following.
CONCLUSIONS OF LAw
1. Kay Corporation d/b/a Holiday Inn of Chicago-
South , Harvey, is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 593, Hotel- Motel Service Workers, Drug
Store, Sports Events & Industrial Catering Employees
Union , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating employees regarding
their union sympathies and desires , and about what they
said orally and in their affidavits to a Board agent, by
17 Zlogar denied that he asked Bernard whether "any lady from the
Government had come to see him at his house," and he also denied that he
asked Bernard what "he had said in his affidavit that he had given to the
Government." Zlogar admitted, however, that he had a conversation with
Bernard on May 27 relative to a possible visit which Bernard might receive
from a government agent Zlogar's version of this incident was as follows.
One of his four porters (whose name Zlogar could not remember) allegedly
had reported to Zlogar that a government agent had 'sought [him I out at
school to take a statement from the porter" Based on this alleged
report from the unnamed porter Zlogar professedly did not ask Bernard
whether he had been similarly so approached Instead, he allegedly merely
told Bernard what he had been told by the unnamed porter, and he
"questioned Scott to the fact that if there is any time that anybody is
causing you undue harassment or undue inconvenience, to let me know"
On cross-examination, Zlogar was asked whether he considered a request by
a government agent for information and/or a statement from a prospective
witness to be "harassment " He answered that he did not so consider it. In
the light of that answer, Zlogar was asked why then he asked Bernard to let
turn know when he was unduly harassed or inconvenienced in response,
Zlogar equivocated, evaded and never did answer the question Based on
threats of loss of existing privileges, less pay, and stricter
enforcement of attendance if the employees designated the
above-named Union as their representative, and by
appeals to racial prejudices, all to discourage and under-
mine union membership and/or support by its employees,
the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by
Section 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By its conduct set forth above (with one exception),
the Respondent also has interfered with the exercise of a
free and untrammeled choice in the Board election held on
March 2, 1973.i9
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Recommendations Respecting Case 13-RC-12932
I have found above that between the date of the filing of
the representation proceeding and the election, the
Respondent engaged in unfair labor practices which
precluded a free choice by employees at the Board election
which was conducted on March 2, 1973. To the extent that
the Union's objections to conduct affecting the results of
the election are based on the said unfair labor practices,
the objections are sustained, and I recommend that the
election be set aside, and that the representation proceed-
ing he remanded to the Regional Director for the purpose
of conducting a new election at such time as he deems
circumstances permit free choice of a bargaining represent-
ative.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER 20
Respondent, Kay Corporation, d/h/a Holiday Inn of
Chicago-South, Harvey, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees regarding their
the foregoing, and my general assessment of his testimony. I regard Zlogar's
version of this incident as implausible and worthy of no credence, and 1 do
not credit his denials of Bernard 's contrary testimony which I have credited
above
IN Genial Srencih, Inc , 178 NLRB 108, enfd in this respect 483 F 2d
894, 898 (C A 2), Federal Slainlesr Sink Division of Onarco Industries, Inc,
197 NLRB 487
In view of my finding that Zlogar s interrogation of Bernard violated
Section 8(a)(1) of the ALL I deem it unnecessary to consider or resolve the
conflicting testimony regarding the allegedly like interrogation of Wood by
Zlogar
regardi
i') Obviously, the Respondent's interrogation of employees after the
election as to what they told the Board's agent, could not have and did not
interfere with the election results
xi 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 . recommendations . and recommended Order herein shall, as
provided in Sec. 102 48 of the Rules and Regulations , automatically become
the findings, conclusions, decision, and order of the Board, and all
objections thereto shall be deemed waived for all purposes
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union sympathies or desires, or regarding what they told
Board agents orally or in their affidavits.
(b) Threatening employees by appeals to racial prejudice,
or with reduction in pay, loss of existing privileges, or with
stricter enforcement of rules, to discourage union member-
ship or support.
(c) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Local 593, Hotel-Motel Service Workers,
Drug Store, Sports Events & Industrial Catering Employ-
ees Union, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from engaging in such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its premises located in Harvey, Illinois, copies
of the attached notice marked "Appendix."21 Copies of
said notice, on forms provided by the Regional Director
for Region 13, after being duly signed by Respondent, shall
be posted by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced or covered by any
other material.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply herewith.
IT 1S FURTHER ORDERED that the Union's objections in
Case 13-RC-12932 are sustained to the extent indicated
above, and that a new election he held at a time and place
to be determined by the Regional Director.
I FURTHER ORDER that the complaint herein be dismissed
insofar as it alleges violations of the Act other than those
found above.
21 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OP THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend
to carry out the Order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT coercively interrogate you regarding
your union sympathies or desires, or what you tell
agents of the National Labor Relations Board.
WE WILL NOT threaten you by appeals to racial
prejudice, or with reduction in pay, loss of existing
benefits and privileges, or with stricter enforcement of
our rules, in order to discourage union membership or
support.
WE WILL respect your rights to self-organization, to
form, join or assist any labor organization, or to
bargain collectively in respect to any term or condition
of employment through Local 593, Hotel-Motel Service
Workers, Drug Store, Sports Events & Industrial
Catering Employees Union, AFL-CIO or any repre-
sentative of your choice, or to refrain from such
activity, and WE WILL NOT interfere with, restrain, or
coerce our employees in the exercise of these rights.
You, and all our employees, are free to become members
of any labor organization, or to refrain from doing so.
Dated By
KAY CORPORATION D/B/A
HOLIDAY INN OF CHICAGO-
SOUTH, HARVEY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, Everett McKinley Dirksen
Bldg., Room 881 , 219 S. Dearborn Street , Chicago, Illinois
60604, Telephone 312-353-7572.