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September 16, 1977

HIRSCH, etc.

The opinion of the court was delivered by: GERRY

The petitioner, Peter W. Hirsch, Regional Director of the Fourth Region of the National Labor Relations Board, seeks a temporary injunction pursuant to section 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(j) *fn1" to enjoin respondent Pick-Mt. Laurel Corporation from refusing to bargain with Local 170, Bartenders, Hotel, Motel and Restaurant Employees Union, AFL-CIO, pending final disposition by the NLRB of underlying unfair labor practice charges under sections 8(a)(1) and 8(a)(5) of the Act. *fn2"

 Pursuant to an order to show cause, three days of testimony were heard by the court; the parties have submitted proposed findings of fact, conclusions of law, and comprehensive briefs. The following constitute the court's findings of fact and conclusions of law.

 I. Findings of Fact

 1. Respondent Pick-Mt. Laurel Corp. is a New Jersey corporation which on February 9, 1977 became owner and operator of a hotel, restaurant and bar facility in Mt. Laurel, New Jersey. Respondent was the successor to the MLH Development Co., d/b/a Hotel Mt. Laurel Hilton, which had continuously operated the facility since June 5, 1975.

 2. Local 170, an unincorporated association, is an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

 3. Local 170, alleging the existence of a collective bargaining agreement with the predecessor employer recognizing the Local as the exclusive bargaining agent for the employees who were members of an appropriate bargaining unit, *fn3" filed charges with the NLRB on March 4, 1977, amended April 12. Local 170 alleged that the respondent, as a successor employer, had engaged in unfair labor practices within the meaning of sections 8(a)(1) and (5) of the Act by refusing to recognize and bargain with the union.

 4. The General Counsel of the NLRB, upon the amended charge, issued a complaint pursuant to section 10(b) of the Act, alleging violations of sections 8(a)(1) and (5) by the respondent. Thereafter petitioner filed the instant action seeking a temporary injunction against respondent pursuant to section 10(j) of the Act.

 5. Evidence relevant to the collective bargaining history between Local 170 and the predecessor employer was conditionally admitted into evidence. *fn4" This evidence discloses:

(a) That prior to the completion of construction of the hotel and related facilities, and before any members of the bargaining unit were hired, William Burns, an agent of the predecessor employer, conducted negotiations with Ralph Natale, secretary-treasurer and business manager of Local 170, from early March to April of 1975, *fn5" for the purpose of reaching an agreement regarding the terms and conditions of employment to be imposed upon employees to be hired by the predecessor at the hotel.
(b) Substantial agreement was reached by April 22, 1975, *fn6" the contract's language was finalized by May 7, *fn7" and the agreement was then signed and it became effective June 1, 1975, *fn8" recognizing Local 170 as the exclusive bargaining agent for the relevant group of employees. This agreement was to expire in either December 1977, or May 1978.
(c) Bargaining unit employees were hired throughout May and June 1975, and the hotel commenced operations on June 5. Job applicants were told at their hiring interviews that they were required to become Local 170 members (Tr. II-116). No employee vote to designate Local 170 as the collective bargaining representative was ever taken; likewise no vote to ratify the contract was ever conducted.
(d) All bargaining unit employees were required to join Local 170 as a condition of employment; application for union membership and cards authorizing the withdrawal of union dues were supposed to be signed at the time employment commenced (Tr. II-139 to 141).

 6. Local 170 performed certain services for the hotel employees, including processing an unspecified number of employee grievances, according to the testimony of Natale and his successor Edward McBride (Tr. I-34, 39, 48). Natale visited the hotel premises for union business 20-30 times during the predecessor's operation, and he met the hotel's general manager Daniel Cummings on as many as nine occasions, as did McBride after the summer of 1976 (Tr. II-7, 8, 131).

 8. There was evidence of growing discontent with the union, through reports which hotel manager Cummings heard from housekeeping supervisor Sandy Arnold and food and beverage supervisor Wayne Gotta (Tr. III-44 to 46), growing especially acute after October 1976, when months of back dues were withheld from employee paychecks (Tr. II-127 to 128; Tr. III-46). Cummings personally received seven complaints, including employees wanting to get out of the union (Tr. II-152 to 161). Ms. Arnold received complaints from employees concerning the union "repeatedly" (Tr. II-117), including requests to get out of the union. The assistant housekeeper Nancy Fallon testified that 90 per cent of the 24 or 25 workers under her supervision had expressed their opposition to the union, that she could recall six by name, and that she passed this information to Ms. Arnold (Tr. III-55, 60, 63). Several bargaining unit members also gave testimony of their belief of majority opposition to union representation around the time of the sale, including the shop steward for housekeeping (Tr. III-102, 104), which beliefs were conveyed to supervisors.

 9. Despite these complaints, no member withdrew from the union or revoked the dues check-off authorization or filed any petition to decertify (or otherwise challenge) the union (Tr. III-7).

 10. The sale was completed, and respondent commenced operation of the hotel on February 9, 1977, with the same employee complement, job classifications, equipment, prices, operating procedures and names of the hotel, bar and restaurant, all without interruption (Tr. I-21 to 22). *fn9" There is no evidence of any common ownership between the predecessor and the respondent.

 11. After February 9, Local 170, through McBride, requested that the respondent make payments of benefits owed by the predecessor under the 1975 agreement, which payments the respondent refused to make. On February 24, the respondent refused to bargain with Local 170, or to recognize the union in any way. (Ex. R-9 at 27-28; Ex. R-7). The respondent filed a petition with the NLRB requesting a representation determination - a so-called RM Petition - on February 25, 1977 (Ex. R-7).

 12. The number of employees in the bargaining unit and the degree of union support among these employees are, of course, highly relevant and material factors in determining whether the respondent, in refusing to bargain as a successor employer, had a reasonable and good faith doubt of the union's majority. At the hearing, it appeared that:

(a) For the payroll period ending February 26, 1977, there were 103 employees in the bargaining unit categories (Tr. III-111). Local 170 business manager Natale's estimate that there were 54 or 55 employees in the bargaining unit (Tr. I-51, 61, II-4) is supported by no evidence.
(b) On February 25, respondent possessed signed authorization cards for 29 of the 103 bargaining unit employees (Tr. III-97). Twenty-one of those cards were dated and, of those, 11 were dated within the six months immediately preceding February 25. (Id.)
(c) The respondent was aware that Local 170 official McBride was circulating authorization cards among the bargaining unit employees to demonstrate majority status on or about February 23 (Tr. II-136 to 137). No cards thus obtained were submitted to respondent (Tr. II-137). *fn10"

 13. After respondent refused to recognize Local 170, the union called a strike at respondent's restaurant and hotel facility. A number of employees refused to work and established a picket line, *fn11" some of these employees returned to work while others remained unemployed for varying periods of time (Tr. I-61 to 73), with different workers being hired over the next three weeks to perform their jobs (Tr. III-24 to 26). *fn12" There is no evidence of lockout, harassment, or similar discrimination, other than refusal to bargain, directed by respondent toward the union's supporters. *fn13" There is similarly no evidence that the picket line disrupted the hotel's operations, and it was discontinued.

 14. General manager Cummings had doubted the union's majority status not only at the time of the sale and refusal to bargain in February, 1977, but ever since he began his duties under the predecessor employer in October, 1975 (Tr. II-138). This conclusion was based on a number of factors already noted above, especially the individual complaints and complaints from department heads (Tr. II-138 to 142; Tr. III-46), and secondly the circumstances surrounding the inception of the bargaining relationship between the predecessor and Local 170 (Tr. II-130; III-68 to 69); the conclusion was not based upon the absence of a majority of signed authorization cards (Tr. II-142 to 143).

 15. Cummings conveyed his opinion regarding lack of majority to Ralph Lewy, respondent's vice president and treasurer, working in Chicago (Tr. III-41, 71). Lewy made the decision to file the RM Petition for an election, on advice of counsel, in reliance upon Cummings' belief that less than 50 per cent of the employees desired to be union members (Tr. III-71, 72, 80). Lewy did not know how many were in the bargaining unit or how many complaints had been received (Tr. III-78). Lewy made the decisions to refuse recognition and to file the RM Petition; Cummings did not have decisionmaking power in these matters.

 II. Discussion

 A. Standards for Relief under ...

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