Ara Services, A Delaware Corp.

National Labor Relations Board - Board Decisions

Jun 24, 1987

284 N.L.R.B. 471 (N.L.R.B. 1987)

AIR LA CARTE 471
Air La Carte, Inc., A New York Corporation, wholly
owned subsidiary of ARA Services, A Delaware
Corporation and Hawaii Teamsters & Allied
Workers, Local 996
Hotel Employees & Restaurant Employees Union,
Local 5, AFL-CIO and Hawaii Teamsters &
Allied Workers, Local 996
Air La Carte, Inc., A New York Corporation, wholly
owned subsidiary of ARA Services, A Delaware
Corporation and Culinary & Service Employees,
Local 555, and Teamsters, Local 996, IBT,
Joint Petitioners. Cases 37-CA-2037, 37-CB-
535, 37-CB-541, and 37-RC-2708
24 June 1987
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 10 February 1984 Administrative Law Judge
Russell L. Stevens issued the attached decision. Re-
spondents Air La Carte, Inc. and Hotel Employees
& Restaurant Employees Union, Local 5, AFL-
CIO filed exceptions and supporting briefs, and the
General Counsel and Hawaii Teamsters & Allied
Workers, Local 996 filed briefs in response to the
Respondents' exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that Respondent Air La Carte
violated Section 8(a)(2) and (1) of the Act by en-
tering into, enforcing, and honoring a contract
with Respondent Hotel Employees & Restaurant
Employees Union, Local 5, AFL-CIO (Local 5),
when a valid petition filed by Hawaii Teamsters &
Allied Workers, Local 996 (Local 996) to represent
the same employees covered by the contract was
pending. He also found that Respondent Air La
Carte violated Section 8(a)(3) and (1) of the Act by
deducting union dues from the pay of unit employ-
ees pursuant to the union-security provision of its
contract with Local 5. Correlatively, the judge
1 The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an admimstra-
five law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing the findings.
found Respondent Local 5 to have violated Section
8(b)(1)(A) and (2) of the Act by entering into and
honoring its collective-bargaining agreement with
Air La Carte and by receiving and retaining
moneys from Air La Carte that had been deducted
as union dues. He additionally found that Local 5
unlawfully threatened Air La Carte employees
with loss of employment if they did not execute
union-authorization and dues-deduction cards
under the contract's union-security provision, and
impermissibly interfered with a 12 May 1983 elec-
tion. The judge reached these conclusions primari-
ly on the basis of his fmding that Local 5 was not
an incumbent union in its relationship with Air La
Carte. We disagree with the judge's fmding in this
regard and therefore disagree with his conclusions
that both Respondents acted unlawfully. Accord-
ingly, for the reasons set forth below, we shall dis-
miss the complaint in its entirety and certify Local
5 as the representative of Air La Carte's employees
in an appropriate unit.
THE UNFAIR LABOR PRACTICE ALLEGATIONS
Local 5 began organizing Air La Carte's em-
ployees in April 1982. On 14 May 1982, Local 5
advised Air La Carte by letter that it represented a
majority of Air La Carte's employees and request-
ed recognition as their collective-bargaining repre-
sentative. Following an independent check of
Local 5's authorization cards by a representative of
the Hawaii Employment Relations Board, Air La
Carte recognized Local 5 on 10 June 1982. 2 As of
the time of Air La Carte's recognition of Local 5,
no other union had undertaken any organizing
effort among Air La Carte's employees.
Air La Carte and Local 5 commenced negotia-
tions in June 1982 and reached a tentative agree-
ment during that summer. The agreement was,
however, subject to employee ratification, and on
19 August 1982 the employees rejected the agree-
ment tentatively reached by the negotiators. The
parties thereafter returned to bargaining for an ini-
tial contract.
On 5 October 1982, before Air La Carte and
Local 5 had reached a new agreement, Teamsters
Local 996 and Culinary & Service Employees,
Local 555 filed a joint petition to represent the em-
ployees. Local 5 intervened in the representation
proceeding on the basis of its prior recognition by
Air La Carte. Air La Carte and Local 5 continued
bargaining during the investigation and processing
of the representation petition and reached agree-
ment on an initial contract that was ratified by the
2 The card check revealed that 24 of Air La Carte's 39 unit employees
had designated Local 5 as their bargaining agent.
284 NLRB No. 58
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees on 5 November 1982 before a decision
had been issued in the representation proceeding.
The contract was given full force and effect from
that date.
Subsequently, on 9 March 1983, the Regional Di-
rector issued a Decision and Direction of Election
finding that a valid question concerning representa-
tion had been raised by the joint petition, and that
Air La Carte's prior voluntary recognition of
Local 5 did not bar the petition because the parties
had had a reasonable time for bargaining to suc-
ceed. He therefore found no recognitional or con-
tractual bar to the 5 October 1982 petition and di-
rected an election between the joint petitioners,3
Local 5, and no union. An election in which no
party received a majority of the votes cast was
held on 14 April 1983, and a runoff election was
held on 12 May 1983. Of the 42 votes cast in the
runoff election, 20 were for Local 996 and 22 were
for Local 5, with no challenged ballots.
The judge found that because there was no re-
cognitional bar to the representation petition, and
because Local 5 and Air La Carte had not reached
a contract accord on 5 October 1982 when the
joint petition was filed, Local 5 lost all claim to ex-
clusivity in its representation of the employees. He
acknowledged that Air La Carte's initial recogni-
tion of Local 5 was uncoerced and legally correct,
as well as that a bargaining obligation arose as a
result of that recognition, but apparently concluded
that Local 5 was not an incumbent union because
the parties had no prior collective-bargaining
agreements and Local 5 was a "pre-recognition
stranger."
Incumbency does not, however, depend on such
factors. An incumbent union is, rather, a union that
has demonstrated its majority support and has been
recognized or certified, and the Board presumes
that majority status to continue in the absence of
objective factors indicating its loss. No evidence
was offered here to rebut that presumption. The
filing of a valid representation petition, although it
raises a question concerning representation and
warrants the holding of an election, is insufficient
to demonstrate the loss of majority status of an in-
cumbent union, for it needs to be supported by
only 30 percent of the unit employees. Nor does
such a petition, standing alone, overcome the
strong presumption in favor of the continuing ma-
jority status of the incumbent. As the Board noted
in RCA Del Caribe, 262 NLRB 963, 965 (1982):
The recognition of the special status of an in-
cumbent union indicates a judgment that,
3 Culinary & Service Employees Local 555 withdrew from the joint
petition on 1 April 1983.
having once achieved the mantle of exclusive
bargaining representative, a union ought not to
be deterred from its representative functions
even though its majority status is under chal-
lenge. The Board has accordingly developed
the doctrine of the presumption of continuing
majority status in order to give a majority rep-
resentative (either recognized or certified) some
reasonable degree of insulation and freedom to
fulfill its mandate from employees in its deal-
ings with the employer [emphasis added].
Here, Air La Carte recognized Local 5 after a
card check by a neutral third party validated Local
5's claim that it represented a majority of Air La
Carte's employees. That Air La Carte's initial rec-
ognition of Local 5 occurred in the absence of co-
ercion and was legally correct is undisputed. As a
result of Air La Carte's lawful voluntary recogni-
tion of Local 5, that union gained the status of an
incumbent union. Thus, this case does not present a
situation of rival union initial organizing, but rather
one in which an incumbent union is challenged by
an outside union.4
In RCA Del Caribe, supra, the Board held that
the raising of a question concerning representation,
even by the filing of a valid representation petition,
will no longer require or permit an employer to
withdraw from bargaining or executing a contract
with an incumbent union. Under this rule, Re-
spondent Air La Carte did not violate Section
8(a)(2) by entering into and executing the collec-
tive-bargaining agreement reached with the incum-
bent union, and would have violated Section
8(a)(5) had it declined to do so. It necessarily fol-
lows that the Respondent Local 5 also did not vio-
late Section 8(b)(1)(A) by entering into and execut-
ing the contract.6
Nor did the Respondents violate Section 8(a)(3)
and Section 8(b)(1)(A) and (2) respectively by hon-
oring the union-security provision of their collec-
tive-bargaining agreement. Having lawfully entered
into the contract, the parties had the right to honor
and enforce its provisions.6
4 Bruckner Nursing Home, 262 NLRB 955 (1982), cited by the judge
for the proposition that after the filing of the petition, Air La Carte was
legally precluded from recognizing one of the rival labor organizations, is
not to the contrary. In Bruckner, the Board specified that it would no
longer find 8(a)(2) violations even in rival union initial organizing situa-
tions when an employer recognizes a labor organization that represents
an uncoerced, unassisted majority before a valid petition for an election
has been filed.
5 Chairman Dotson did not participate in RCA Del Cctribe, supra, and
expresses no view here on whether that case Was correctly decided.
However, absent a majority to overrule it, the Chairman considers him-
self institutionally bound to apply that precedent in this case.
6 See Richmond Waterfront Terminals, 265 NLRB 1214 (1982)
AIR LA CARTE 473
We likewise cannot agree with the judge's find-
ing that Local 5 Business Agent Ken Kamakea un-
lawfully threatened employees with discharge
unless they signed union-authorization and dues-de-
duction cards for Local 5. According to the cred-
ited testimony, Kamakea reviewed the contract
with employees after it was signed, including sec-
tion 5 of the agreement which requires that Air La
Carte's employees join the Union no later than 31
days following the signing of the contract as a con-
dition of continued employment and told the em-
ployees that they would have to join a union
within 30 days or lose their jobs. The credited tes-
timony also indicates that Kamakea passed out
dues-deduction cards to the employees. There was
no testimony, however, that Kamakea told the em-
ployees that they must execute dues-deduction
cards or lose their jobs. Because the union-security
provision of the parties' contract is lawful, and be-
cause the parties properly entered into their collec-
tive-bargaining agreement containing that provi-
sion, IC.amakea's review of the contract's terms
with employees bound by those provisions did not
constitute an unlawful threat. And, as stated, the
record contains no evidence that Kamakea threat-
ened employees with loss of employment unless
they signed dues-deduction cards. 7 Accordingly,
we shall dismiss all the unfair labor practice allega-
tions of the complaint.9
'Our dissenting colleague's conclusion that Karnakea's comments were
unlawful is based on an overly broad reading of what was, basically, a
nonresponsive answer to counsel for the General Counsel's question Wit-
ness Curameng's testimony was generally confused about dues-checkoff
and membership-authorization cards and, immediately prior to the answer
relied on by Member Babson, Curameng had testified that he thought the
cards were for membership. Thus, although the individual question and
answer cited by our colleague, when viewed in isolation, may provide
some limited support for his position, we find that it is, considered in
context, insufficient to establish that Kamakea threatened employees with
the loss of jobs if they should refuse to sign a dues-deduction authoriza-
tion card.
8 Contrary to his colleagues, Member Babson would adopt the judge's
conclusion that the Respondent Union violated Sec. 8(b)(1)(A) of the Act
by threatening employees with discharge if they failed to sign dues-de-
duction cards. As noted above, after the Employer and the Umon execut-
ed the 1982 collective-bargaining agreement, Kamakea held a meeting of
10-15 unit employees in the Employer's lunchroom where he explained
the contract provisions and passed out dues-deduction cards. At the hear-
ing, Curameng, who was present at the meeting with Karnakea, identified
the Union's dues-deduction cards that had been introduced into evidence
as being the cards ICamakea had passed out at the meeting. When specifi-
cally asked at the hearing what Kamakea had said to employees "regard-
ing these cards" (emphasis added), Curameng, as found by the judge, cre-
dibly testified: "Well, he said that we have to join a union within 30
days, otherwise we would lose our job." Furthermore, Kamakea himself
testified that he had employees sign dues-dedUction forms at the meeting
but that he did "not necessarily" have them sign the cards in his pres-
ence.
Member Babson concludes on the facts here, including particularly
Curaineng's credited testimony, that Kamakea's statement to employees
implicitly conveyed the message that employees risked loss of employ-
ment if they did not sign such cards. As the Board stated in Electrical
Workers Local 601 IUE (Westinghouse), 180 NLRB 1062 (1970):
The Board has repeatedly held that dues checkoff authorizations
must be made "voluntarily," and that an employee has "a right
THE REPRESENTATION CASE
Teamsters Local 996 filed timely objections to
the 12 May 1983 runoff election between Local 5
and Teamsters Local 996 that was won by Local 5.
Those objections that were not withdrawn by
Local 996 were consolidated for trial with the
unfair labor practice proceeding, and several were
found by the judge to have merit. Because the ob-
jections that the judge found meritorious were es-
sentially premised on his related unfair labor prac-
tice findings with which we disagree, we also dis-
agree with his findings with respect to the alleged
objectionable election conduct.9
First, the judge found that because Local 5's
contract with Air La Carte was invalid, Local 5's
threat to use its provisions against employees who
did not honor the contract was coercive and inter-
fered with the election. As discussed above, Local
5's contract with Air La Carte was a valid one,
and Local 5's implementation and enforcement of
that contract does not constitute objectionable elec-
tion conduct.
The judge additionally found objectionable cer-
tain statements made by Local 5 Shop Steward
Emma Mendano. Thus, he found that Mendano
stated in a discussion with fellow employees that if
the employees voted in the Teamsters or went non-
union, the employees would lose the benefits of the
contract that they had and that, during the interim
period of no contract, the employees could lose
their health benefits and suffer a reduction in pay.
He found that Mendano also stated that if there
were no Local 5 contract, the Employer could hire
new employees to handle the Philippine Airlines
catering business that it had, and the employees
could lose all seniority. Other employees involved
in the discussion disputed Mendano's statements,
arguing that the Employer could not reduce bene-
fits and suggesting that the employees might get a
better contract under Local 996 or without a
union.
We do not find Mendano's statements to be coer-
cive or to tend to interfere with the employees'
freedom of choice in the upcoming election. Had
Local 5 not prevailed in the representation elec-
tion, its contract with Air La Carte would have
become null and void. RCA Del Caribe, supra at
under Section 7 of the Act to refuse to sign checkoff authorization
cards." Any conduct, expressed or implied, which coerces an em-
ployee in his attempt to exercise this right clearly violates Section
8(b)(1)(A). [Footnotes omitted.]
Accordingly, Member Babson would find that the Respondent, through
Kamakea, violated Sec. 8(b)(1XA).
9 As noted above, Member Babson would find that Respondent Local
5, through Kamakea, violated Sec. 8(bX1)(A). Because this conduct oc-
curred prior to the critical period for the runoff election, however, he
would not set aside the election based on this conduct
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
966. Therefore, Mendano's statement that the em-
ployees would lose their Local 5 contract if Local
5 did not win the election was an accurate one.
Further, these statements could not constitute
threats by Local 5, for it had no control over what
action Air La Carte might take if Local 5 lost the
election. Mendano's statements, at most, constituted
misrepresentations that do not warrant setting the
election aside. Midland National Life Insurance Co.,
263 NLRB 127 (1982).1°
Finally, the judge, on the basis of his previous
findings, found merit to a "catch-all" objection that
the Employer and Local 5 engaged in various and
certain election misconduct. Again, because we do
not fmd that any of the aforementioned conduct
was objectionable, we find no merit to this deriva-
tive objection. Accordingly, we overrule Local
996's election objections and shall certify Local 5
as the exclusive bargaining representative of Air La
Carte's employees in the appropriate unit.
ORDER
The complaint is dismissed.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots has been cast for Hotel Employees & Restau-
rant Employees Union, Local 5, AFL-CIO, and
that it is the exclusive collective-bargaining repre-
sentative of the employees in the following appro-
priate unit:
All full-time and regular part-time employees
of the Employer at its Honolulu, Hawaii, loca-
tion; excluding clerical, confidential and pro-
fessional employees, guards and/or watchmen
and supervisors, as defmed in the Act.
10 Local 5 also excepted to the judge's election findmgs on the basis
that the conduct found objectionable occurred prior to the first, rather
than the runoff, election and was therefore not timely filed because no
objections were filed by any party following that election. It is true that
the testimony regarding the timmg of the alleged objectionable conduct is
ambiguous However, because we find no merit to the objections in any
event, we find it unnecessary to resolve this issue.
Thomas W. Cestare, Esq., for the General Counsel.
Jared H. Jossem, Esq. (Torkildson, Katz, Jossem & Loden),
of Honolulu, Hawaii, for the Respondent Employer.
Sean Kim, Esq., of Honolulu, Hawaii, for Respondent
Union Local 5.
John Desha II, Esq., of Honolulu, Hawaii, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Honolulu, Hawaii, on December 6,
1983. 1 The complaint in Case 37-CA-2037 is based on a
charge filed May 25 by Hawaii Teamsters & Allied
Workers, Local 996 (Local 996). The complaint in Case
37-CB-541 is based on a charge filed May 25 by Local
996. The complaint in Case 37-CB-535 is based on a
charge filed April 6 by Local 996. Pursuant to decision
and direction of election in Case 37-RC-2708 dated
March 9, an election was held for appropriate unit em-
ployees of Air La Carte, Inc., A New York Corporation,
wholly owned subsidiary of ARA Services, A Delaware
Corporation (ALC). Because no party received a majori-
ty of votes cast, a runoff election was held on May 12
between Local 996 and Hotel Employees & Restaurant
Employees, Local 5, AFL-CIO (Local 5). Of approxi-
mately 44 eligible voters, 20 cast ballots for Local 996
and 22 cast ballots for Local 5, with no challenged bal-
lots. On May 19 Local 996 filed timely objections to the
election. On July 12 the Regional Director for Region 20
of the National Labor Relations Board issued an order
consolidating Cases 37-CA-2037, 37-CB-535, and 37-
CB-54l for trial, and referring election Objections 1, 3,
6, 7, and 8 in Case 37-RC-2708 for simultaneous trial.
The consolidated complaint, issued June 29, alleges that
ALC violated Section 8(a)(1), (2), and (3) of the National
Labor Relations Act (the Act), and that Local 5 violated
Section 8(b)(1)(A) and (2) of the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, Charging Party Local
996, Respondent Local 5, and Respondent ALC.
On the entire record, and from my observation of the
witnesses, and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Air La Carte, A wholly owned
subsidiary of ARA Services (ARA), A Delaware corpo-
ration, with an office and place of business in Honolulu,
Hawaii, has been engaged in industrial catering of food
and beverages, and related services. During the past 12
months ALC, in the course and conduct of its business
operations, purchased and received at its Honolulu facili-
ty products and goods valued in excess of $50,000 direct-
ly from points located outside the State of Hawaii.
I find that ALC is, and at all times material has been,
an employer engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
1 All dates hereinafter are within 1983, unless otherwise stated.
AIR LA CARTE 475
IL THE LABOR ORGANIZATION INVOLVED
Hotel Employees & Restaurant Employees Union,
Local 5, AFL-CIO and Hawaii Teamsters & Allied
Workers, Local 996 are, and at all times material have
been, labor organizations within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background2
Local 5 commenced organizing ALC's employees in
April 1982, and on May 14, 1982, by letter addressed to
ALC, demanded recognition as the collective-bargaining
agent of ALC's employees in the appropriate unit.
ALC's representatives agreed to an independent check of
Local 5's authorization cards signed by employees, and
the check was made June 10, 1982. It was found that 24
of ALC's 39 unit employees had signed Local 5's author-
ization cards. ALC then executed a recognition agree-
ment and agreed to commence negotiations for a collec-
tive-bargaining agreement with Local 5. There is no tes-
timony or evidence showing that, as of the time ALC
recognized Local 5, ALC had knowledge that any other
union was seeking to represent the unit employees.
Negotiations between the parties were held in June,
and on June 19, 1982, tentative agreement was reached
on an initial contract, subject to ratification by the em-
ployees. Negotiators for ALC were Theodore Bo-
chynsld, ALC's vice president; Hugo Rossiter, manager-
labor relations for ARA; and John Long, ALC's Hono-
lulu manager. Negotiators for Local 5 were Ken Kama-
kea, a business agent for Local 5; Richard Tam, Local
5's secretary-treasurer; and three others. On August 19,
1982, the employees rejected the contract tentatively
agreed to by the negotiators. Negotiations then were
commenced for a new contract proposal.
On October 5, 1982, Local 996 and Culinary & Service
Employees, Local 555, filed a joint petition for represen-
tation of ALC's unit employees.3
On approximately October 7, 1982, Rossiter learned of
the joint petition and on October 12, 1982, Kamakea
learned of the joint petition, but he continued as in the
past to meet with ALC's management representatives
and with unit employees.
On October 25, 1982, a hearing was conducted by the
NLRB in Case 37-RC-2708. Prior to decision in the
case, and although further hearings in Case 37-RC-2708
were pending, unit employees ratified the second tenta-
tive contract agreed on by ALC and Local 5 negotiators,
Date of ratification was November 5, 1982. The contract
was not signed by ALC representatives immediately, al-
though it was signed by union representatives. Rossiter
signed it in Los Angeles on November 25, 1982, and Bo-
chynski signed it in New York soon thereafter. Sometime
in December, on a date not established, Kamakea met
with employees in ALC's lounge and explained the con-
tract to them, including the provision relating to pay-
ment of union dues. A further hearing in Case 37-RC-
2 This background summary is based on stipulations of counsel, cred-
ited testimony, and evidence not m dispute.
3 Local 555 withdrew its petition on April 1.
2708 was conducted on December 20, 1982, and on
March 9 the Regional Director directed an election
among Local 5, Local 996, and no union. The election
was held on April 14, and a runoff election between
Local 5 and Local 996 was held on May 12, as earlier
noted.
Counsel stipulated that the contract between ALC and
Local 5 has been given full force and effect by the par-
ties since November 5, 1982, including retroactive pay-
ment of holidays commencing July 1, 1982.
B. Issues
The principal issue is whether ALC and Local 5 vio-
lated Sections 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2)
of the Act, respectively, by entering into and enforcing a
collective-bargaining agreement after Local 996 had filed
a valid petition for representation of ALC's unit employ-
ees.
Secondary issues are whether Local 5 unlawfully
threatened ALC employees; and whether ALC and
Local 5 unlawfully interfered with the elections of April
14 and May 12.4
C. ALC's Recognition of Local 5
The fact that ALC's initial recognition of Local 5 was
uncoerced and legally correct is not in dispute. The card
check of June 10, 1982, on which recognition was based,
independently was made by a representative of the Gov-
ernment of the State of Hawaii. Of 39 unit employees, 24
had designated Local 5 as their exclusive representative
for the purposes of collective bargaining. Further, the
facts that, as of June 10, 1982, there was no shown em-
ployee interest by Local 996 or any other union except
Local 5 and no question of representation existed are not
in dispute.
As a result of ALC's recognition of Local 5, a bar-
gaining obligation arose. Whether a contract existed, and
whether NLRB had certified Local 5 as the bargaining
representative, is immaterial. The obligation to bargain
had been created.6
Once the bargaining relationship was established, the
parties were obligated to permit it to exist and function
for a reasonable period of time, in order that it could be
given an opportunity to succeed. 6 Determination of the
requirement of "reasonable time" depends on the facts of
each case. There is no general definition or rule that can
be applied to all cases."' In his Decision and Direction of
4 The General Counsel lists as an issue the question of whether the al-
leged unfair labor practices are barred by Sec. 10(b) of the Act. That
matter briefly was mentioned at trial, and counsel for the General Coun-
sel argues the issue in his brief However, this issue is not mentioned in
the briefs of counsel for ALC, Local 5, or Local 996. It is clear that the
latter three parties do not consider Sec. 10(b) to be in issue, nor does this
judge. The record has been carefully reviewed, and it is found that the
charges are not time-barred by the Act; they were filed on April 6 and
May 25, 1983, and the conduct alleged as unfair labor practices occurred
several days after November 24, 1982, and m December 1982.
5 San Clemente Publishing Corp., 167 NLRB 6, 8 (1967).
6 Frank Bros. Co. v. NLRB, 321 U.S. 702 (1944). See also Keller Plastics
Eastern, 157 NLRB 583 (1966).
Brennan's Cadillac, 231 NLRB 225 (1977).
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Election dated March 9, the Regional Director specifi-
cally determined, after reviewing the salient facts, "In
the circumstances, the employer and the Intervenor
[note: Local 51 have had a reasonable amount of time for
bargaining to succeed, and recognitional bar to the peti-
tion is not appropriate." Cited as authority were Bren-
nan's Cadillac, supra, and Merico, Inc., 207 NLRB 101
(1973). No facts were shown at trial herein, that were
not available to the Regional Director when he made his
decision. ALC and Local 5 requested that the NLRB
(the Board) review the Regional Director's decision, and
that request was denied April 14, on the ground that the
requests "raise no substantial issues warranting review."
In the absence of evidence requiring fmdings of fact dif-
ferent from, or in addition to, those before the Regional
Director and the Board, this judge is bound by the Re-
gional Director's and the Board's decision. 8 It is found
that, as of the time Local 996 filed a representation peti-
tion on October 5, 1982, ALC's recognition of Local 5
did not constitute a bar to the petition, and that the peti-
tion raised a valid question concerning representation.
The fact that there was no contract bar to the petition is
not in dispute—a contract between ALC and Local 5
was not signed until late November or early December
1982.
In view of the foregoing findings, the arguments of
ALC and Local 5 that are founded on the alleged status
of Local 5 as an "incumbent union" as of the time Local
996 filed a representation petition are without merit.
ALC recognized Local 5 as the majority representative
of its employees prior to the filing of a petition by Local
996, and without knowledge of any interest of Local 996
in its employees, but that fact did not preclude the filing
of the petition. ALC and Local 5 were bargaining begin-
ners—there was no prerecognition history of negotiations
or bargaining agreements. The recognition could have
ripened into a contract, but it did not do so prior to Oc-
tober 5, 1982. As of that date, Local 5's claim to exclu-
sivity had ceased—a reasonable time for coming to
agreement with ALC had passed, and the door was open
for Local 996 to enter, which it did. Bruckner Nursing
Home9 and RCA Del Caribe," relied on by Respond-
ents, are not dispositive of this case. Bruckner addresses,
inter alia, the act of recognition, not the duration of rec-
ognition. RCA Del Caribe addresses the status of an in-
cumbent union, not the act of recognizing a union that
was a prerecognition stranger.
D. The Question Concerning Representation
The Regional Director stated in his decision of March
9, inter alia: "Thus, a valid question concerning represen-
tation has been raised by the filing of the petition, and
the employees should now be given a chance to express,
through an election, their representational desires." After
the petition was filed, ALC and Local 5 legally were
precluded from recognizing one of the rival labor organi-
zations, or taking any action that would interfere with
8 Telex Corp., 171 NLRB 1155 (1968); Security Guard Service, 154
NLRB 8 (1965), enfd. 384 F.2d 143 (5th Cir. 1967).
9 Bruckner Nursing Home, 262 NLRB 955 (1982).
10 RCA Del Caribe, 262 NLRB 963 (1982).
the election, or that would influence or coerce employ-
ees in their selection of a union representative." When
ALC and Local 5 signed a collective-bargaining agree-
ment, ALC violated Section 8(a)(2) and (1) of the Act,
and Local 5 violated Section 8(b)(1)(A) of the Act."
E. Enforcement of Security Clause and Deduction of
Union Dues from Employees' Pay
The contract signed by ALC and Local 5 provides,
inter alia, that employees must join Local 5 and pay dues
to the Union in order to retain their jobs. There is no
dispute about the fact that, pursuant to provisions of the
contract, ALC has enforced the union-security clause
and deducted union dues from pay of employees since
November 1982, and has remitted those dues to the
Union, as alleged by the General Counsel. Paragraph 7
of the complaint alleges that such enforcement and de-
duction violates Section 8(a)(2), (3), and (1) of the Act,
and that the contract provision violates Section 8(a)(3)
and (1) of the Act. The complaint alleges that receipt of
the dues by the Union violates Section 8(bX1)(A) of the
Act, and that the contract provision and its causing ALC
to discriminate against employees in violation of Section
8(a)(3) of the Act violate Section 8(b)(2) of the Act.
In view of the fact that ALC and Local 5 unlawfully
entered into the contract after a valid representation peti-
tion had been filed by Local 996, the contract was not
legally enforceable. Its provisions relative to union secu-
rity, and the collection and remittance of dues as de-
scribed above, constitute violations of the Act, as al-
leged.
F. Alleged Threat
Paragraph 8(b) of the complaint alleges that, in De-
cember 1982, Kamakea threatened employees with dis-
charge unless they signed union authorization cards and
dues-deduction authorization forms for Local 5.
Samuel Curameng, one of ALC's unit employees, testi-
fied: sometime in late November or early December
1982, Kamakea talked with 10 or 15 employees in ALC's
lunchroom, while Curameng was present. Kamakea said
the contract had been signed, and he reviewed for the
employees all provisions of the contract. Kamakea
passed out cards for signatures, which cards were the
same as Respondent's Exhibit 2, 18 and told the employ-
ees that "we would have to join a union within 30 days,
otherwise we would lose our job." Curameng saw some
employees sign the cards, and he signed one later. A
Local 996 business agent subsequently told him he did
not have to sign it, but he did not revoke his signature.
Kamakea generally corroborated Curameng's testimo-
ny. He said he did not recall telling employees they had
to sign the cards or loss their jobs, but he said he did
11 Bruckner Nursing Home, supra. Great Southern Construction, 266
NLRB 364 (1983); Signal Transformer Co., 265 NLRB 272 (1982).
12 Ladies Garment Workers v. NLRB, 366 U.S. 731 (1961); NLRB v.
Downtown Bakery Corp., 330 F.2d 921 (6th Cir. 1964).
19 R. Each. 2 is entitled "Assignment of Wages to Cover Dues, Initi-
ation and Reinstatement Fees;" and is a dues-deduction authorization
form.
AIR LA CARTE
477
quote to the employees Section 5 of the contract, which
is the union-security provision.
William Fifles, one of ALC's unit employees, testified
that he signed one of the authorization cards in Decem-
ber, after it was given to him by Kamakea.
Discussion
Curameng was a convincing witness, and his testimony
is credited. Kamakea did not deny that testimony—he
simply said he did not recall what he said. Further, Ka-
makea generally corroborated Curameng, and testified
that he quoted the union-security provisions to the em-
ployees. Since the contract had been signed, those provi-
sions were effective, so far as Kamakea was concerned,
even though the contract was an unlawful one and unen-
forceable as discussed above.
Because employees were not required to sign the
cards, Kamakea's statement to them that they were re-
quired to do so was coercive and in violation of the Act,
as alleged by the General Counsel."
G. Objections to Election
Objections referred for trial are the following: Objec-
tions 2, 4, and 5 were withdrawn by Local 996:
1. The Employer, by its officers, agents and rep-
resentatives, allowed representatives of H.E.R.E.
Local 5 (Local 5) to campaign against the Team-
sters Local 996 and pass out campaign literature on
the Employer's premises during working hours;
3. The Employer, by its officers, agents and rep-
resentatives allowed representatives and agents of
Local 5 to hold individual and group meetings with
employees on the Employer's premises during vari-
ous hours both during working and non-working
time;
. . . .
6. Local 5, by its officers, agents and representa-
tives unlawfully forced and coerced employees to
pay union membership dues and threatened said em-
ployees with termination if they failed to vote for
Local 5 or if they voted for the Teamsters Local
996 or if they decided to stop paying dues;
7. The Employer and Local 5 by their officers,
agents and representatives threatened employees
that if they voted for the Teamsters they would lose
their seniority and lose any job opportunities on the
upcoming and the contract with the Philippine Air
Lines and that newly hired Marriott In-Plight Serv-
ices employees would get the work;
8. The Employer and Local 5 engaged in various
and certain conduct that interfered with, restrained,
and coerced employees in the exercise of their
rights guaranteed under Section 7 of the Act.
Objection 1: Julio Quiocho, a business agent and orga-
nizer for Local 996, testified that, prior to the runoff
election, he actively campaigned for Local 996, usually
14 Buffalo Newspaper Guild Local 26 (Buffalo Courier), 265 NLRB 382
(1982); Sir° Service, 247 NLRB 1266 (1980).
in ALC's parking area. He did not campaign on ALC's
building premises, because during the first election he
was told to stop campaigning in the building stairwell,
where he had been distributing leaflets. An ALC em-
ployee named Kimo told him the stairwell was on build-
ing premises, and that he was not permitted to campaign
on the premises. He did not see Kamakea on building
premises during the runoff campaign, but he did see him
in the parking lot, and he and Kamakea exchanged cam-
paign literature on the lot. He saw Karnakea distributing
literature below the stairwell, which is the place he earli-
er was told not to use for campaigning. Kimo, who was
a management employee, attended the campaign party in
the parking lot. Prior to the first election, Quiocho had
received a list of all employees' names and addresses, and
all the employees lived within commuting distance of
ALC. He had no difficulty in communicating with em-
ployees during the runoff campaign.
Kamakea testified: he did not campaign on ALC prem-
ises, but he did campaign in the parking lot, and he and
Quiocho exchanged union literature in the lot. He did,
however, go onto ALC premises, after first obtaining
management's permission to do so, to talk with employ-
ees about the collective-bargaining agreement.
Long testified that the employee parking lot is leased
by ALC, shared by another company.
Discussion
Quiocho's testimony was ambiguous, somewhat con-
fusing, and partially self-contradictory. However, based
on his testimony and that of ICamakea, it is apparent that
ALC did not give Local 5 preferential campaign treat-
ment during the campaign. Both Local 996 and Local 5
had free and unencumbered access to the employee park-
ing lot; they both held parties on the lot for employees,
which at least one management employee attended; rep-
resentatives of the two unions were quite friendly and
exchanged literature; and Local 996 had a list of ALC's
employees' names and addresses and never experienced
any difficulty communicating with the employees. Quio-
cho's testimony concerning the area beneath the stairwell
where he said he had been precluded from was not clear
and, in any event, he said he talked with Kamakea
during the runoff, campaign, in that very place. There is
inadequate basis on which to find interference with the
election on this point, and none is found. The fact that
Kamakea went onto the premises for purposes unrelated
to the campaign is immaterial, as far as this issue is con-
cerned. Its relevance to other issues is discussed, supra.
Objection 3: Fifles testified that Emma Mendario was
an ALC employee and a ,Local 5 shop steward. In May,
prior to the runoff election, Mendano met approximately
25 minutes with approximately eight employees during
lunchbreak, on ALC's stairwell. Some employees were
standing in the doorway, some were sitting on the stairs,
and some were on the balc,ony.
Discussion
There is no evidence that anyone in ALC management
knew anything about the meeting Mendano held, and so
far as the record shows, the incident was no more than a
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spontaneous gathering of employees on their lunchbreak.
What Mendano said to the employees may have been ob-
jectionable, as discussed below, but that is a different
matter.
This objection is found to be without merit.
Objection 6: The facts concerning this objection are
discussed as an unfair labor practice above, and it is
found that the objection has merit. The contract , between
ALC and Local 5 was invalid, and the threat to use its
provisions against employees who did not honor the con-
tract was coercive. The threat interfered with employ-
ees' freedom of expression at the runoff election.
Objection 7: Fines testified that he was present during
the employee meeting on the stairwell discussed above,
and Mendano spoke:
A. She was saying that if the employees voted in
the Teamsters Union or voted to go nonunion, that
we would lose our—any contract that we have; that
we could, if the company elected to, during the in-
terim period of a no-contract situation, we could
lose our health benefits, they could reduce our pay
down to the minimum wage, and things to that
effect.
Mendano also stated that, if there was no contract be-
tween ALC and Local 5, ALC could hire employees to
handle the Philippine Airlines catering business that
ALC had and also, that if there was no contract, the em-
ployees could lose "all seniority." Fines wanted to "go
union" and disputed Mendano. He argued that, if the em-
ployees voted "no union," ALC could not reduce the
employees' benefits, and possibly the employees could
work out an independent agreement with ALC. William
Dutton, a fellow employee who was at the meeting, was
a Teamsters supporter and argued with Mendano, and
other employees, concerning advantages to be gained by
voting for Local 996.15
Discussion
There is no evidence that ALC participated in, con-
doned, or ratified the statements of Mendano or anyone
else at this gathering of employees.
Local 5 does not dispute the fact that Mendano was
the shop steward serving under the contract negotiated
between ALC and Local 5. It is found that Mendano, as
shop steward, was Local 5's agent. 16 However, whether
Mendano spoke for the Union is not controlling. The test
is whether Mendano's conduct reasonably tended to
interfere with the employees' freedom of choice in the
upcoming runoff election.17
It is apparent that Mendano's speech was coercive.
The contract was a nullity, and possibly there was a mis-
representation by Mendano, both of fact and law, but
that point need not be reached. Mendano's statement rea-
sonably would have the effect of frightening employees,
15 This testimony by Fifles was somewhat ambiguous, and he said that,
although the specific conversations he related occurred after the first
election, similar conversations occurred pnor to that election.
16 Boilermakers Local 5 (Regor Construction), 249 NLRB 840 (1980),
17 Weyerhaeuser Co., 247 NLRB 978 (1980); Season-All Industries v.
NLRB, 654 F.2d 932 (3d Cir. 1981).
and possibly causing them to vote in a manner other than
they would have voted but for the statements. Fifles tes-
tified that the statement did not coerce him, but he could
not know the effect they had on other employees.
This objection has merit.
Objection 8: As discussed above, this objection has
merit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with their operations de-
scribed 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 dis-
putes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
Having found that Respondents ALC and Local 5
have engaged in certain unfair labor practices in viola-
tion of the Act, I shall recommend that they be ordered
to cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
As discussed above, certain of Respondents' conduct,
occurring during the critical preelection period, preclud-
ed employees from exercising their freedom of choice in
selecting or rejecting a union, and constituted substantial
inference with the election. I shall, therefore, recommend
that the election of May 12, 1983, in Case 37-RC-2708
be set aside and that the case be remanded to the acting
officer in charge for Subregion 37 for the purpose of
conducting a new election at such time as he deems the
circumstances permit the free choice of a bargaining rep-
resentative.
On the basis of the foregoing fmdings of fact and on
the entire record, I make the following
CONCLUSIONS OF LAW
1. Air La Carte, Inc., A New York Corporation,
wholly owned subsidiary of ARA Services, A Delaware
Corporation is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Hotel, Employees & Restaurant Employees Union,
Local 5, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent ALC violated Section 8(a)(2) and (1) of
the Act by entering into, enforcing, and honoring, in-
cluding collection of union dues, a collective-bargaining
agreement with Respondent Local 5, covering employees
in the following appropriate unit, at a time when a valid
petition by Local 996 was pending in Case 37-RC-2708
seeking an election among employees in the unit:
All full-time and regular part-time employees of the
Employer at its Honolulu, Hawaii, location; exclud-
ing clerical, confidential and professional employ-
ees, guards and/or watchmen and supervisors, as
defined in the Act.
AIR LA CARTE 479
4. Respondent ALC violated Section 8(aX3) and (1) of
the Act by deducting union dues from the pay of unit
employees on behalf of Respondent Local 5 and remit-
ting the same to Local 5.
5. Respondent Local 5 violated Section 8(b)(1)(A) of
the Act by receiving and retaining moneys from Re-
spondent ALC that had been deducted from the pay of
unit employees, and by threatening employees with dis-
charge unless they signed union authorization cards and
dues-deduction authorization forms for Local 5.
6. Respondent Local 5 violated Section 8(bX2) of the
Act by entering into, enforcing, and honoring a collec-
tive-bargaining agreement with Respondent ALC, and
retaining dues as aforesaid, covering employees in the
appropriate unit at a time when a valid petition by Local
996 was pending in Case 37-RC-2708 seeking an election
among employees in the unit, thereby causing Respond-
ent ALC to discriminate against its employees in viola-
tion of Section 8(a)(3) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]