Ramada Inn of Fremont

National Labor Relations Board - Board Decisions

Nov 5, 1975

221 N.L.R.B. 331 (N.L.R.B. 1975)

RAMADA INN OF FREMONT 331
Innkeepers of Ohio, Inc., d/b/a Ramada Inn of
Fremont and Hotel, Restaurant Employees and
Bartenders International Union, Local 868, AFL-
CIO. Case 8-CA-8777
November' 5, 1-975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On June 30, 1975, Administrative Law Judge John
M. Dyer issued the attached -Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the ,provisions of Section 3(b)' of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 brief
and has decided to affirm the' rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
Without deciding whether, as stated by the, Admin-
istrative Law Judge the no-solicitation rule promul-
gated by Respondent was "questionable per se," we
find that it violated Section 8(a)(1) because, as the
evidence indicates and the Administrative Law Judge
found, it was promulgated and enforced so as to stifle
the union organizing activities of its employees. The
Wm. Block Company, -150 NLRB 341, 342 (1964);
Ward Manufacturing, Inc., 152 NLRB 1270, 1271
(1965). Moreover, even assuming that the rule was
adopted in the summer of 1974 before the start of
union organizing activities, it was thereafter dispa-
rately and hence unlawfully enforced against union
proponents. Thus, employees with the knowledge
and participation of supervisory personnel were
permitted to solicit during working time and in work
areas for cosmetics, jewelry, and other products.
Under these, circumstances, the enforcement' of the
rule against solicitation in' order to preclude only
discussions concerning union activities was an
unjustified restriction of the employees' right of self-
organization and violated Section 8(a)(1) of the Act.
Wm. H. Block Company, supra.
The Respondent has excepted to certain provisions
of the remedy. We shall correct the Order and notice
to provide that the Respondent shall not interrogate
employees in a manner which 'constitutes interfer-
ence with, restraint, or coercion in violation of
Section 7 of the Act. Since the Respondent has
discriminatorily promulgated and enforced the no-
solicitation rule, we shall correct the' Order and
notice to provide that Respondent shall rescind the
221 NLRB No. 49
rule. Finally, we shall correct the notice to provide
that employees are free to become-union.members or
to refrain from doing so.
-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 as
modified herein and hereby orders that Respondent,
Innkeepers of Ohio, Inc., d/b/a Ramada Inn of
Fremont, Fremont, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Add the following to paragraph 1(b)' after "of
other employees";
"in a manner which constitutes interference with,
restraint, or coercion in violation of Section,(7) of the
Act."
2. Substitute the following for paragraph 1 (d):
"(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or-assist Hotel, Restaurant Employees
and Bartenders International Union, Local 868, and
to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities."
3. Add the following as paragraph 2(a) and
reletter the subsequent paragraphs accordingly:
"(a) Rescind its no-solicitation rule insofar as it
applies to union solicitation and other activities
protected by the Act."
4. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Respondent has requested oral argument . Tins request is hereby
denied as the record, the exceptions , and the brief adequately present the
issues and positions of the parties.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties participated and
offered evidence, the National Labor Relations
Board has found that we violated the law and has
ordered us to post this notice, and we intend to carry
out the order of the Board and abide by the
following:
WE WILL NOT ask our employees about their
union sympathies, activities, desires, or member-
ship or the membership of other employees in a
manner which constitutes interference with, re-
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
straint, or coercion in violation of Section 7 of the
National Labor Relations Act, as amended.
WE WILL, rescind our no-solicitation rule
insofar as it applies to union solicitation and
other activities protected by the National Labor
Relations Act, as amended.
WE WILL offer Barbara Williams, Barbara
Zimmerman , and Diane Blatt full reinstatement
to their former jobs or, if those jobs, no longer
exist , to substantially equivalent ones, together
with all of their rights and any backpay due them.
WE WILL NOT discharge or refuse to rehire any
employee in order to try to discourage our
employees from being or becoming -members of
Hotel, Restaurant, Employees and Bartenders
International Union, Local 868, AFL-CIO.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist Hotel,
Restaurant Employees and Bartenders Interna-
tional Union, Local 868, AFL-CIO, to bargain
collectively with representatives of their own
choosing, or to engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or
all such activities.
All our employees are free to become or remain
union members or to refrain from doing so.
INNKEEPERS OF OHIO,
INC., D/B/A RAMADA
INN OF FREMONT
DECISION
STATEMENT OF THE CASE
JOHN M . DYER, Administrative Law Judge : Hotel,
Restaurant Employees and Bartenders International
Union, Local 868, AFL-CIO, herein called the Union or
Charging Party, filed a charge on November 25, 1974,'
alleging that Innkeepers of Ohio , Inc., d/b/a Ramada Inn
of Fremont, herein called the Company or Respondent,
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, by various acts and the
discharge of three individuals.
The Acting Regional Director for Region 8 issued a
complaint and notice of hearing on January 9, 1975,
alleging that Respondent had interrogated employees and
discriminatorily formulated and maintained a no-solicita-
tion rule and had applied such rule discriminatorily in
discharging Barbara Williams, Barbara Zimmerman, and
Diane Blatt . Respondent's January 20, 1975, answer
denied that it had violated the Act in any manner and
admitted that Charles Mosser was the president of
Respondent, Thomas Faunce was Respondent's general
manager rather than a hotel manager, George Timko was
the food and beverage manager, and that Thomas
Gracemyer was not the assistant manager , of food and
beverages but was the bar manager. The answer said that
Barbara Williams was a supervisor and that she and the
other two dischargees were , let go for violating a company
rule which had been published and formulated prior to the
events in this case.
In response to Respondent 's request for further particu-
lars General Counsel stated that the protected concerted
activity referred to the union and averred that the "no-
solicitation" rule had been initially posted around Novem-
ber 23 by Respondent. Further, it was stated that the rule
was formulated and posted for the purpose of interfering
with the employees ' Section 7 rights and that Respondent
had permitted employees to engage in casual conversation
with each other and their customers and allowed various
types of solicitation on its premises during work and
nonwork hours and gave specific examples.
At the hearing held in this case , on March 13 and 14,
1975 , in Fremont, Ohio, Respondent stipulated to the
complaint allegation concerning service of the charge and,
in response to the answer, the General Counsel amended
the complaint to show that Faunce was the general
manager and Gracemyer was the bar manager ,of Respon-
dent. All parties were afforded full, opportunity to appear,
to examine and cross-examine witnesses, and to argue
orally at the hearing. Respondent and General Counsel
have both submitted briefs which have' been carefully
considered.
There are two principal questions in this case, the first
being 'whether Barbara Williams is a supervisor and the
second whether the discharges were for proper cause. The
parties are in essential agreement as- to the events which
took place during the discharge conversation but disagree
as to Williams',supervisory status, the posting of the rule,
and some other matters.
On the basis of all the evidence I find that Williams was
not a supervisor and that Respondent violated Section
8(a)(1) by its interrogation of employees and its publication
and enforcement of this rule, and violated Section ' 8(a)(3)
of the Act in discharging the three employees because of
their asserted violation of this rule.
On the entire record in this case, including my evaluation
of the reliability of the witnesses, based on the evidence
received and the nature and' manner in which responses
were made , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND TIIE LABOR
ORGANIZATION INVOLVED
Respondent is an Ohio corporation which , among other
interests, operates a motel and restaurant known as
Ramada Inn of Fremont, in Fremont, Ohio. Respondent
annually derives gross revenues in excess of $500 ,000 from
retail operations at this locality and annually - receives,
directly from points outside of Ohio, goods valued in
excess of $5,000.
1 Unless specifically stated otherwise all events herein occurred in 1974
RAMADA INN OF F1 EMONT 333
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
By virtue of the testimony concerning the status of the
Union and its operations, I conclude and find that it is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Charles Mosser is the president of Respondent and its
sole stockholder. The Ramada Inn of Fremont was opened
by Respondent on Thanksgiving Day 1972. Thomas
Faunce was the general manager and continued in such
capacity and George Timko was and still is the food and
beverage manager.
This is an industry with a high personnel turnover rate
and in its first year of operation the turnover rate was close
to 100 percent. It has dropped off gradually since that time
but is still in the 80-percent area.
There are several departments in Respondent. The motel
operation is run as a separate department and has a
housekeeping area under a head housekeeper with a
number of housekeeping assistants . Additionally there is a
restaurant area and a lounge area which are located in the
same general area but are run as two separate departments
under George Timko. Although the motel must operate on
a 24-hour-a-day, 7-days-a-week basis, the lounge area is
run on a different basis from that of the restaurant. The
lounge had one bartender during the day and for quite a
long period of time this has been Maria Huffman. In
addition to her regular bartender duties she would receive
and sign for beer and basically ran the operation of the
lounge by herself during the day. During the fall of 1974
she was changed `from hourly pay to a salary but
Respondent made no claim that she was a supervisor.
Another bartender would come on in the evening, together
with an early cocktail waitress and depending on the
expectations of business, with Thursday through Saturday
being considered heavy, other waitresses and a second
bartender might be added later in the evening. The lounge
did a regular cocktail business with dinner customers in the
early part of the evening and had live entertainment which
would draw more customers later in the evening starting
around 10 p.m.
The more senior waitresses or bartenders would help
train newer waitresses or bartenders in Respondent's house
policies, in what was expected, and in the operation of the
"electra bar." Prior to opening the motel in 1972,
Respondent conducted training classes for all its employ-
ees. But with the rate of turnover new employees were
coming in and had to be trained. Barbara Williams began
as a bartender with Respondent shortly after it opened in
1972 and was the most senior employee in the lounge. Both
Barbara Williams and Marie .Huffman helped train other
employees and some of the cocktail waitresses. Williams
had several years' experience as a bartender before
beginning her employment with Respondent.
During October 1974 Williams and Zimmerman were
suspended for wearing their uniforms in a rival establish-
ment. They appealed this suspension to Charles Mosser, on
the basis of ignorance of any company rule regarding such
wearing of uniforms and, in a meeting with Thomas
Gracemyer who was their acknowledged supervisor,
Mosser informed Gracemyer that he felt the suspension
was unfair and Gracemyer lifted the suspension; but
neither Zimmerman nor Williams was paid for his lost
time. This rule regarding uniforms had been placed in a
company pamphlet which supposedly had been distributed
during March 1974 and the rule also supposedly had been
posted on a bulletin board area in the cocktail lounge
where the schedule for bartenders and waitresses was
customarily posted. Since there was a question as to when
this rule had been placed on the bulletin board in that area
and that neither Williams nor Zimmerman may have had a
chance to see this rule, Mosser testified that he felt the
suspension was unfair. During the period of time when
they were suspended, they sought help in various places as
to what they could do and what recourses they had.
Among other places they went to the union headquarters
and there talked to' one of the business representatives and
received some literature, but they 'did nothing about
organizing when they returned to work. Later in Novem-
ber, Zimmerman received union cards and passed them
around to bartenders and waitresses and Zimmerman
received some signed cards back while others were mailed
to union headquarters.
Work was normally slack in the early evening hours and
bartenders and waitresses with no customers to wait on
would converse among themselves. Such activity was not
prohibited and sometimes the employees would sit at a
table among themselves and talk even if a few customers
were in the bar. They would service those customers and
then return to the table where they would continue their
discussions with other employees. Normally the breaks
they took were in the early evening and they would eat in
the kitchen near the dining room and talk was never
restricted.
According to, Respondent, during the summer of 1974 a
problem developed with purveyors of supplies to Respon-
dent who additionally sold their products, usually at a
discount to some of the employees. These purchases
included eggs, bread, and beer. The Company stated that
the problem was whether the products were those that the
employees had paid for or those the Company had paid
for, with the attendant problem of trying to determine who
owned what. In order to prevent problems of employees
being; accused of taking company supplies, the Company
decided to stop the practice and first notified the egg
purveyor not to sell eggs to employees any more. Later on
the beer supplier was not to sell beer to employees and the
employees were notified of these prohibitions.
According to Charles Mosser, around this time he
attended a course for Ramada Inn management personnel
in Phoenix, Arizona, and while there -mentioned the
problem caused by these sales to employees and was given
copies of a no-solicitation rule and told this would solve
that problem. He testified that he brought copies of this
rule back and during a management staff meeting in June
gave ,copies of this notice to Timko and Faunce to be
posted on bulletin boards. Faunce and Mosser's testimony
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is in dispute as to which of them posted the notice in the
housekeeper's office. The housekeeper testified that the
notice was posted while she was absent and she felt it was
in late June. She said she was instructed to tell her
employees to read that notice and did so. Both Mosser and
Faunce stated that this notice was dated and Mosser was
positive that the notice which was placed on the bulletin
board in the kitchen was also dated. Nothing was posted in,,
the bulletin board area in the-cocktail lounge. There is a
dispute as to,, when, any notice was placed on the bulletin
board area in the kitchen, with most employees claiming
that it was never seen until the day the three employees
were discharged or thereafter. The notice which the
discharged employees found on- the bulletin board on the
morning of their discharge is as follows:
"NO SOLICITATION RULE"
In the, interests of the comfort, convenience and the
continued good will of our customers, there shall be no
solicitation or distribution of literature of any kind by
any employee during the working time of the employee
soliciting or the employee solicited. Persons . not
employed here may not solicit or distribute for any
purpose anywhere on the property of this establish-
ment . There shall be no solicitation or distribution by
anyone in areas made available to the public during the
times when they are so available nor will distribution
be permitted at any time in' any work area.
ANY EMPLOYEE WHO VIOLATES' ANY PROVISION OF THIS
EMPLOYEE 'S BULLETIN SHALL BE SUBJECT TO IMMEDIATE
DISMISSAL.
RAMADA INNS, INC.
FOR PERMANENT POSTING - DO NOT REMOVE THIS
NOTICE
The question as to when this rule was promulgated and
posted will be resolved infra.
B. Alleged Supervisory Status, of Barbara Williams
Barbara Williams was an hourly paid employee who
started at $2.75 an hour in 1972 and at the conclusion of
her employment in 1974 was making either $3 or $3.25 an
hour. There is conflicting testimony as to which amount
she was receiving,'with Mosser at one point claiming she
was salaried. She wore a uniform and was known as the
head bartender. As mentioned above Williams had several
years of experience as a bartender before beginning work
at Respondent. When she began she was under the
supervision of an assistant to Timko who later left and was
replaced by Halloran. From the testimony it is clear that
there was a somewhat constant turnover of employees in
the lounge area but Williams remained as the regular
evening bartender and as stated above helped train
employees. The "electra bar" is an automated dispenser of
drinks and takes some training before it can be used.
One of Williams' duties was to schedule waitresses and
bartenders. Her, testimony as reluctantly corroborated by
Timko was that she would estimate the need for bartenders
or waitresses based on experience and anticipated volume
of business and draw up a tentative schedule after asking
the bartenders and waitresses for their preferences. This
would be taken to Gracemyer or Timko for their approval
and they would either add employees or -cut down on the
number of employees depending on the needs to conserve
on labor cost or what they estimated the business needs
would be. After telling Williams whether the tentative
schedule was approved or needed to be redrafted, she
would act accordingly and after getting the final approval
the schedule would be posted.
Mosser and Timko stated that Williams was a supervisor
with authority to hire or fire and was the bar manager.
However, they contradicted this testimony by stating that
bar managers did not wear a uniform and that supervisory
personnel were not suspended. As part of her supervisory
duties they 'stated that she scheduled personnel, but it is
clear from the manner in which it was done as set forth
above that this was nothing more than a ministerial duty
with the true determinations being made by her supervi-
sors.
During her employment Williams recommended the
discharge of one employee, who she 'testified was stealing
from Respondent. After discussing this Timko stated that
the employee, had made the same charge against Williams
and that nothing would be done. The employee remained
with Respondent thereafter. On recommending employ-
ment Williams testified that she recommended a' black
kitchen employee be hired as a cocktail waitress since they
were short of waitresses. Her recommendation was turned
down by Tmiko, who stated that Respondent did not cater
to blacks and was not sure how responsible an employee
she would be. In regard to` Diane Blatt's being rehired,
Timko stated he did it.
Respondent's - contradictions regarding the term "bar
manager" were many, including `Respondent' s answer
which said Gracemyer was the "bar manager" and insisted
that the complaint so reflect his position, and, later,
Mosser's saying he' was never sure what Gracemyer's
position was. At one point Respondent elicited some
testimony that there were two "bar managers"' although
Respondent's chart of organization' shows ' only one "bar
manager." ' '
The management meetings which were held by Respon-
dent included levels down to Gracemyer, but Williams was
never included in such management meetings.
From all this testimony it is clear that Williams did not
exercise independent judgment in any of her duties but at
most was senior employee or a "strawboss" possessing
some small ministerial supervisoryfunctions. For example,
the question of sending waitresses home when business was
slack depended on the early cocktail waitres' having first
option for going home if she 'desired, and then other
waitresses being asked what they wanted to do. This was
no true supervisory function exercised 'by Williams.
I therefore conclude and find that Barbara Williams was
not a supervisor but was a rank-and-file employee.
C. The Union Campaign and Other Solicitations
Barbara Zimmerman first began working with Respon-
dent in October 1973 as a cocktail waitress and worked' a
RAMADA INN OF FREMONT 335
month or so and left to get married. She came back in May
1974 and worked until November when she was terminat-
ed. During her employment with Respondent, she continu-
ally exhibited and sold turquoise jewelry and rings to both
employees and customers and estimated that during that
time she sold more than $500 worth of jewelry on
Respondent's premises.
During July the employees had a number of grievances
and sent a written list of them to Charles Mosser, stating
that a number of them were resigning if something was not
done about the problems. Mosser went to the cocktail
lounge and had Zimmerman come to his office to discuss
the grievances. He said that he would work them out, that
it was very hard to keep employees of her caliber and he
would see that something was done because he wanted her
and the others to stay. On this occasion she made a
statement about needing a union and, in response to the
look on Mosser's face, said she was only kidding.
Zimmerman said she lost 3 or 4 days' pay during the
October suspension and, after she and Williams talked to
the union organizer, she went back and talked to the
president of the local union who gave her authorization
cards. She was told that if she got half of the employees to
sign the cards they could have an election to decide
whether the employees wanted the Union or not. Around
the second or third week of November she passed the
authorization cards out and solicited employees' signa-
tures. Some cards were returned to her and others were
sent to the Union by mail. Among others she gave them to
Diane Blatt, Linda Perine, Penny Dible, Valie Valentine,
Carol Brooks, Joyce Sardin, a food waitress named Janet,
and another employee named Stoner . Both she and
Williams had already signed union cards. She testified that
some of these employees handed her the cards back on
break, or when they were in the kitchen area when it was
not busy, She and Williams testified that between 6:30 and
9:30 p.m. business was slow and they would usually sit
around and talk and among other things they discussed the
Union on such occasions . Respondent by its questions
indicated that it never attempted to stop any conversations
of the employees or to inhibit their discussion concerning
the union.
Zimmerman while at work displayed her jewelry to a girl
named Sandy who was the fiance of General Manager
Faunce while Faunce was present in the lounge. She talked
to both Faunce and Sandy about the purchase of a
particular ring and after questioning him on other
occasions,, Faunce finally purchased the ring from her. She
also showed the jewelry in the lounge on other occasions
and observed Timko look at the jewelry on several
occasions when he passed by. There were other occasions
when she said that she sold jewelry in the lounge with
Faunce and Timko being only a few feet away. She also
sold two rings to Tom Gracemyer on different occasions
while at work.
Williams testified to purchasing mugs for Christmas in
the lounge from a salesman who was a customer of
Respondent and stated that members of management were
present at the same time and remarked on the man's
strangeness . Zimmerman corroborated the ,testimony,
adding that Gracemyer bought some of the mugs and
remarked on how funny the salesman was. Timko also was
present and said he thought the man was strange. She said
a lot of employees bought things from him because he gave
them substantial discounts.
Williams testified to purchasing a "grandma doll" from
an employee who worked in the kitchen through George
Timko. Timko told her the lady would not deliver the doll
until she was paid and Williams left a check with Timko
for the purchase and later received the doll. Other products
were sold by employees to, other employees, including
Avon Products and other types of jewelry and clothing;
this continued all through the summer up through the time
that the three employees were discharged.
Barbara Williams testified that , although she talked
about the Union and told a group of employees that if they
wanted to get her fired they could do so by telling
management that she was advocating the Union , she never
gave a union card to an employee or asked an employee to
sign a union card . Zimmerman was the only employee who
did so. Diane Blatt never gave a union card to an employee
or asked one to sign a card but merely talked about the
Union. She had never visited the union office.
Barbara Zimmerman stated that she asked Timko and
Gracemyer if they knew where a Christmas card list from a
previous year was. She testified that they both stated that
they could not find it and she said that she would start one
and was not told by them not to do so. She procured some
stationery from the front desk, wrote on the stationery the
purpose of the list, and passed the list around. The list was
thereafter either passed around or posted on the bulletin
board for employees to sign. She testified that it was her
purpose to get a listing of employees ' names and addresses
and duplicate it for the interested employees to use as a
Christmas card list and she intended to give one copy of
the list of employees to the Union. Some of the employees
knew the dual purpose of the list, others did not.,
'Mosser testified that Tom Gracemyer spoke to, him
several days before the three were discharged, stating that
three different waitresses had told him that they were going
to quit because they did not want to join a union. He asked
Gracemyer who was asking them to join the Union and
Gracemyer told him that they were being pressured in the
bar to do so. Mosser then asked who was in the bar and to
Gracemyer's reply had him send Penny Dible to his office.
Mosser said he asked her whether union solicitation was
going on in the bar . She said there was and he asked
whether she had signed a union card, and she said yes. He
then asked her who was responsible for it and she said that
Bobby (Williams), Barb (Zimmerman), and Diane (Blatt)
were. He testified he made no promises to Dible concern
ing her job security and did not threaten her in this'
conversation.
Dible testified that when she was called to Mosser's
office he asked if she knew anything about this thing for,
the Union going on. She said that she had been given a
card and told it would protect her job but if management
found out what was going on they might get excited and
the Union would protect her. Mosser said he wanted to
know what she knew and asked whether Zimmerman had
talked to her about the Union on the premises and she told
him yes, that Zimmerman had talked to her about the
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and had given her the card on the premises. She
then gave him the names of the three girls, Zimmerman,
Williams, and Blatt. He also asked if she had signed the
union card and she said that she had. This conversation
took place 1 or 2 days prior to the discharges.
Diane Blatt went to the office and asked for her check
during the day on November 21 and she was told it was not
there but that she could go ask Timko about the check. She
said she went to Timko who said the check should be at the
front desk. She went to the front desk and was told it was
not there, that Timko had the checks. She then left and did
not return until 6:30 that evening when she was due to go
on duty. At that time she said that Zimmerman told her
something was going on and was not sure just what it was.
Barbara Zimmerman said that she was the early cocktail
waitress on November 21 and when she arrived she went to
the ladies room where Linda Perine told her that "they
know" and when she asked what they knew Perine said
that they know all about the Union. She then asked Perine
what was going to happen, whether she was going to be
fired; Perine said she did not know but wanted her to be
prepared; she did not want her to be fired but that they
knew.
Barbara Williams testified that when she started her
work about 6:15 p.m. Linda Perine was working as the
bartender. Linda came up to her and said "they know"
and, when she asked what they knew, Linda answered
about their union affiliation. Williams asked who knew
and was told that they all know - Faunce, Timko and
Mosser. When she asked Linda how they knew, she
responded that she had been called into a meeting by
Mosser and asked if she knew of Williams' affiliation with
the Union, whether Williams had signed a union card, and
whether she had signed a card and had other employees
signed union cards. Perine then told her not to say
anything, she just wanted her to be prepared.
Blatt met Gracemyer that evening when she came to
work about 6:30 and asked if her check was in. Gracemyer
said that it was either in Mosser 's or Faunce 's office and
when she asked why, Gracemyer said that there was a
reason. She went and told Williams and Zimmerman about
it and they told her that Perine had told them that
Zimmerman and Williams were going to be fired.
According to Blatt there was very little business that
evening and when Williams mentioned it to her she said
that she would like to go home and received an okay to do
so. On the way to get her coat she met Gracemyer who told
her not to leave , that there was going to be a bar meeting
and for her to stay. When she asked why the other two
waitresses had left, she was told they were not involved.
Blatt waited in the bar and helped clean up and about 2:30
a.m. she, Williams, and Zimmerman went into Mosser's
office where Mosser , Timko, Faunce, and Gracemyer were
waiting.
Williams said,, "well,' here we are again", and Mosser
responded, "yes, for the last time." Mosser said that he had
called them in to tell them that they were being terminated
for soliciting for a union and violating the no-solicitation
rule. Williams asked what that was and he said he was sure
they were familiar with the no-solicitation rule which had
been posted on the bulletin board in the back for the past
2-1/2 months. Williams said she was not and asked where
it was posted and he said it was posted in the kitchen. She
said she would hardly have an opportunity to see it
because that was not her work area and she asked if it was
posted there now. Mosser said that it was and it had been
posted for some 2-1/2 months. Zimmerman asked what-she
was being fired for and he said for soliciting for a union.
She asked for a written termination, slip and he said they
did not need one. Mosser said that he had the rule in front
of him and read it to them and when they asked what that
had to do with them he asked if they denied soliciting
union cards in the building. He asked Williams if she had
signed a union card and she replied equivocally that, she
did not know. He said he had three reliable sources that
said the three of them were passing out union cards.
Williams asked who they were and he replied that he was
not going to tell them, that he had his sources and did not
want to divulge them. She said they were being fired on
hearsay. He asked who had signed union cards and she
replied that she was not going to tell him because she did
not know who had signed union cards. He asked if
anybody else had signed union cards and she said she did
not know. He asked Williams if she had passed out union
cards and she said no. Mosser admitted asking Williams if
she had signed a union card and, to her answer that she
could not have done so because she was part of
management he asked why she had not reported the
solicitations. Other testimony indicates Williams made the
reference to being part of management in a sarcastic
manner.
He asked Zimmerman how her Christmas card list was
coming along and she said it was coming along nicely.
Williams asked if the only reason they were being
terminated was for soliciting in regard to a union and
Mosser said yes it was as simple as that; their work and
everything else was fine but they were fired for soliciting
for a union.
Williams asked why they were going to fire Diane Blatt
since she did not have anything to do with the Union.
Mosser said as far as he knew his three reliable witnesses
said that all three of them were involved in soliciting' for
the Union. Mosser handed them their checks and said he
would be tickled to death if he never saw their faces in
there again. As she was leaving the office Williams said she
had four people to support and it was getting to be
Christmas and what was she going to do now. Mosser said
she should go ask her union buddies for help. He told them
they could go out and see the no-solicitation rule on the
bulletin board and when the three employees left the room
they went to the bulletin board in the kitchen, found the
notice, and removed it. (This notice was put in evidence as
G.C. Exh. 2.)
Mosser, who said he decided on this discharge the same
day he fired them, stated that in addition to telling the
three that they were discharged for soliciting signatures on
union ^ cards said they were also discharged for unauthor-
ized use of company stationery in regard to the stationery
used for the Christmas card list. None of the three
dischargees stated this latter reason was given. In explain-
ing the discharge, Mosser said he considered the dissension
among the employees, the problems he had been having
RAMADA INN OF FREMONT
with the girls up to that time in that there seemed to be two
groups of girls, the violations of the no-solicitation rule,
and unauthorized use of company stationery. Regarding
dissension, he stated at one point that he was in the lounge
every night, and at another point said he was in the lounge
maybe 2 nights a week, and it was obvious to him that the
girls were not getting along well. He also said that he never
checked to see whether Zimmerman had permission to use
the stationery because he was sure that if somebody had
given them permission he would have been told. He agreed
that his affidavit was in error where he said that Williams
had been a salaried employee and that the undated notice
posted on the bulletin board in the kitchen had been dated
by him.
Several days later the Company called a meeting for all
its employees and, of the approximately 100 employees,
about 51 were present. Mosser addressed the group and
told them that the three employees had been discharged
not because of their union activities but because they
violated the Company's no-solicitation rule. He told the
employees that the rule had been posted on the bulletin
board.
At this meeting some of the employees asked how they
could get out of the Union and were told they would have
to write the Union and tell the Union that they no longer
wished their names included, on the union list. Mosser also
told the employees that the Christmas list which had been
passed around was not really a Christmas list but was
being used by these employees to gather names for union
solicitation.
Lois Bonnell, one of Respondent's witnesses, testified
that the mention of this no-solicitation rule at the meeting
was the first time she became aware that there was a no-
solicitation rule . Penny Dible and Valie Valentine who,
according to Mosser, were in the group opposed to
Williams and Zimmerman, stated that they did not know
that a no-solicitation rule had been posted or whether it
had been posted before or after the discharges but said
they were never told about it until this postdischarge
meeting . General Counsel's witnesses did not see a no-
solicitation rule posted at anytime until after the discharges
and did not hear about such a rule until Mosser talked of it
in the postdischarge meeting. Two of Respondent's
witnesses , Maria Huffman and Frank Unisko, stated that
in June they saw the notice posted on the bulletin board in
the kitchen.
More than a week after their discharges Williams and
Zimmerman were at a cocktail lounge across the street
from the Ramada Inn and talked with Tom Gracemyer.
According to Williams he told them he was sorry about the
October suspension and that it had been Timko's idea and
not his. He also said he was sorry about the discharges and
that they had been fired to set an example for the other
employees. Williams said that was a stupid thing to do.
Gracemyer said that Mrs. Timko was having labor disputes
and union problems at the Perrysburg: Holiday Inn and
that she was helping them with this case . Williams said that
Mrs. Timko had not, fired anybody for union activities at
Perrysburg and Gracemyer replied that he heard that
Williams was going to picket and Mosser said that if she
337
picketed they would have the Fremont police pick-them
up.
Zimmerman testified that in the postdischarge meeting
Gracemyer said he was sorry that they had been fired, that
it was not his decision but was Timko's, and that Betty,
(Timko's wife) was helping him handle it and they decided
it was better to get rid of the union agitators before they
got the Union in. They had to make an example of them
because of their union activities and that was why they
were fired. He also said the girls were sending back the
union cards, as it had been suggested for them to do, to
insure their job security.
Gracemyer did not testify and Respondent did not
explain his absence other than to say he was no longer with
the company.
D. Analysis and Conclusions
One of Respondent's witnesses placed Mosser's trip to
Phoenix, Arizona, as occurring in the last of the year, either
that year or the previous year. According to Williams,
Mosser stated in late November that the notice had been
posted some 2-1/2 months previously, which would have
been sometime in late August or September. The testimony
does not convince me that this notice was posted on June
20 as some of Respondent's witnesses testified. Mosser and
some of the others were positive the notice was dated, and
it was not. They were positive of other things which were
incorrect and it is contrary to common sense that so few
people saw or knew of this notice if it was posted as
Respondent claims. It is clear from both General Counsel's
witnesses and some of Respondent's witnesses that the
notice containing the rule was not seen by a great number
of them until after the discharges, and was not spoken
about until the postdischarge meeting.
Respondent described the necessity of the rule as
originating in the problems it had with outside purveyors
of eggs, bread, and milk selling discounted products to its
employees and Respondent not being able to tell whether
the employees had paid for those products or were merely
removing them from Respondent. This was the only
solicitation that apparently was ever forbidden.
It is clear from the testimony of Respondent' s witnesses
as well as General Counsel's witnesses that employees were
freely permitted to sell articles to one another and
customers both while on duty and off duty, such as the
sales of rings and other jewelry to Respondent 's manage-
ment officials by Barbara Zimmerman. The statements, of
Timko and Faunce, that they did not know whether the
employee was on duty, at the time she was selling the
goods, is immaterial to the rule since it forbids solicitation
or distribution in any public or work area. If Respondent's
management of Gracemyer, Timko, and Faunce had been
aware of the rule, then what Zimmerman did, or what the
ceramics salesman did was a violation of the rule and they
were in a position to know it and stop it. But the only
things that were stopped were the sales by outside
purveyors to employees, the prevention of advertising by
local theatre groups, and the solicitation by charitable
organizations . No attempt was ever made to stop Avon or
similar sales among employees or the sale of dolls, and
most if not all of these sales were known to Respondent's
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
management through their participation in the sales, which
was the same as active encouragement and approval.
At no time did Respondent make any attempt to
investigate whether the solicitation for union authorization
cards was made during -an employee's or Zimmerman's
breaktime or offduty time, or precisely where the solicita-
tions were made. Mosser acted on the umnvestigated flat
statement of one or possibly two employees rather than the
"three reliable witnesses" which he mentioned to the three
dischargees. Dible told him that the three were soliciting
for the Union but when she was asked specifically during
the hearing about it she said that she had only been asked
to sign a union card by Zimmerman. She apparently
equated discussion of a union with solicitation for a union
card. Respondent made no effort to discern the truth of the
matter.
Respondent's investigation was minimal and was not
designed to establish the truth or falsity of the accusations
against these three employees. Mosser was too eager to
accept a statement that these three employees were active
for the union and slip it under the umbrella of this "no-
solicitation rule" to clear out a possible source of union
contamination.
It is clear from the testimony that neither Williams nor
Blatt had ever solicited employees signatures on union
cards but merely talked about the Union and urged
employees to favor the Union. It is doubtful that Blatt had
even done that much because she appeared to be a very
quiet individual and there was no suggestion or testimony
that she had done more than sign a union card. Clearly
there was no violation of a "no-solicitation" rule insofar as
Williams or Blatt are concerned no matter how this rule is
construed.
The rule, as Respondent stated, came into being for the
purpose of keeping the purveyors of merchandise from
selling goods to employees. The fact that it was not posted
in the lounge where other notices and lounge work
schedules were posted would indicate that it was not
posted for the use sought to be made of it here. Supplies to
Respondent would normally be in the kitchen and it, would
make sense to post it there but I do not find that it was
posted when Respondent claims it was. In any event,
assuming arguendo that the rule was in effect, it was not
enforced and its inequitable use here was discriminatory
within the meaning of the Act. Read as a whole, this rule
could prohibit solicitation on Respondent's property at all
times , since practically all of Respondent's property is a
"work area" of some kind. Therefore the validity of this
rule is , questionable per se and its initiation and use here
was invalid. Further, as noted, Respondent made no effort
to investigate whether the rule actually had been broken or
not. It felt it had caught some employees bringing a union
in and immediately acted. Mosser's reaction to the
"uniform" rule is in sharp contrast.
The investigation which Respondent made violated
Section 8(a)(1) of the Act by interrogating employees
without any safeguards as to whether they had signed
cards, who asked them to sign cards, and who else had
signed cards. Respondent was not interested-in determin-
ing who had violated a rule, but rather who were the union
instigators and how far 'had they gotten with their
organizing. One of Respondent's witnesses stated that in a
staff meeting some 3 months prior to November the staff
people'were warned that Unions were making incursions in
to the area.
Respondent did not produce Tom Gracemyer or explain
his absence other than to say that he was no longer in their
employ. There is no refutation of the testimony that
Gracemyer gave permission for Zimmerman to make up a
Christmas card list since he could not find one. Further,
there is no refutation of the testimony concerning' Grace-
myer's statement of Respondent's purposes in discharging
the three employees. The allegation that the three girls
were fired because of misuse of company stationery (three
or four sheets of paper) is too ridiculous to be pursued
further.
The discharge of the three individuals was another
demonstration of Respondent's violating the Act by
interrogating employees as, to whether they or other
employees had signed union cards. Clearly, animus was
exhibited throughout Respondent's investigation and in the
manner and way it discharged these three employees.
Under all the circumstances I find and conclude that
Respondent promulgated this "no-solicitation" rule on the
occasion of the employees' discharge and used it for the
purpose of denying its employees their Section 7 rights and
interfering with their organizing a union . Even if we credit
Respondent concerning the original intendment of the rule,
it was not meant by Respondent to be-used in the manner
Respondent cites it for now. The rule as used here was
invalid, and invoking it- against people who had not
solicited union authorization cards demonstrates even
clearer its inappropriate use made by Respondent. Respon-
dent had not determined whether the employees were on
duty or off duty at'the time any solicitations' for union
cards were made, nor where they were made, nor what was
said, or attempt to get the dischargee's side of the matter.
Certainly there was no evenhanded attempt at investiga-
tion, but rather a vigorous attempt to throttle a suspected
union organizational effort. Further, if the rule was meant
to apply to off-duty times then the rule was invalid.
Accordingly, I find and conclude that Respondent
violated Section 8(a)(1) and (3) of the Act by its discharge
of the three employees, and by its interrogations, of the
employees concerning their union activities, desires, and
membership, and the membership of other employees, and
by the promulgation and enforcement of this rule in a
discriminatory manner.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The, activities of Respondent set forth in section II,
.above, occurring in connection with Respondent's business
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
RAMADA INN OF FREMONT 339
IV. THE REMEDY
Having found that Respondent discriminatorily termi-
nated Barbara Williams, Barbara Zimmerman, and Diane
Blatt on November 22, 1974, because of their actual and
suspected union sympathies and activities, I recommend
that Respondent offer them immediate and full reinstate-
ment to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to any seniority or rights and privileges they may
enjoy. Respondent shall make them whole for any loss of
pay they may have suffered by reason of the discimination
against them, by payment to them of a sum equal to that
which each would have received as wages and tips from the
date of their discharges until they are fully reinstated, less
any net interim earnings. Backpay is to be computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962). I further recommend that Respondent,
upon request, make available to the Board or its agents,
payroll and other records to facilitate checking the
amounts of backpay and any other rights due Barbara
Williams, Barbara Zimmerman, and Diane Blatt.
Respondent also engaged in interrogation of its employ-
ees concerning their union membership, activities, or
sympathies and the membership of other employees in an
effort to dissuade their participation, and promulgated and
enforced discriminatorily a rule prohibiting solicitation on
its premises and I recommend that Respondent be ordered
to cease and desist from violating the Act in the same
manner or any manner similar to these violations.
On the basis of the foregoing findings and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Innkeepers of Ohio, Inc., d/b/a Ramada Inn of
Fremont, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Barbara Williams,
Barbara Zimmerman, and Diane Blatt on November 22,
1974, and not thereafter reinstating them to their positions
because of their actual and suspected union sympathies
and activities Respondent engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the
Act.
4. Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act by:
2 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 herem 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.
(a) Interrogating employees concerning their union
membership, activities, and sympathies and the member-
ship of other employees.
(b) Promulgating and enforcing discriminatorily a rule
prohibiting solicitation on its premises.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
Respondent, Innkeepers of Ohio, Inc., d/b/a Ramada
Inn of Fremont, Fremont, Ohio, its officers , agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging and refusing to reinstate employees in
order to discourage employees from being or becoming
union members or supporting the Union.
(b) Interrogating employees concerning their union
sympathies, activities, desires, or membership, or the
membership of other employees.
(c) Promulgating and enforcing discriminatorily a rule
prohibiting solicitation on its premises.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join, or assist Hotel, Restaurant Employees and
Bartenders International Union, Local 868, AFL-CIO, to
bargain collectively with representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Barbara Williams, Barbara Zimmerman, and
Diane Blatt reinstatement in accordance with the recom-
mendations set forth in the section of this Decision entitled
"The Remedy."
(b) Make Barbara Williams, Barbara Zimmerman, and
Diane Blatt whole for any loss they may have suffered by
reason of Respondent's discrimination against them in
accordance with the recommendations set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records and reports, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay and
the rights and privileges due Barbara Williams, Barbara
Zimmerman, and Diane Blatt, as set forth in the section of
this Decision entitled "The Remedy."
(d) Post at its Fremont, Ohio, office, restaurant, lounge
and motel copies of the attached notice marked
"Appendix."3 Copies of said notice, on forms provided by
the Regional Director for Region 8, after being duly signed
by Respondent's authorized representative, shall be posted
3 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent immediately upon receipt thereof , and be be taken by Respondent to insure that said notices are not
maintained by it for 60 , consecutive days thereafter, in altered, defaced, or covered by any other material.
conspicuous places, including all places where notices to (e) Notify the Regional Director for Region 8, in writing,
employees are customarily posted . Reasonable steps shall within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith. `