El Caballo

National Labor Relations Board - Board Decisions

Aug 12, 1980

251 N.L.R.B. 46 (N.L.R.B. 1980)

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marconi, Inc., d/b/a El Caballo and Local 28,
Hotel & Restaurant Employees and Bartenders
Union, AFL-CIO, Petitioner. Case 32-RC-863
August 12, 1980
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections to an elec-
tion' held on November 15, 1979, and the Regional
Director's report recommending disposition of
same. The Board has reviewed the record in light
of the Employer's "Statement," which we shall
consider to be in the nature of exceptions and a
brief, and hereby adopts the Regional Director's
findings and recommendations with regard to Ob-
jections 3, 4, 5, 6, 7, and 8. We find merit, howev-
er, in the Employer's exceptions with regard to the
Regional Director's disposition of Objectionsl and
2 and his recommendation that the Petitioner be
issued a certification of representative.
Objections 1 and 2 allege, respectively, that the
Union threatened employees with deportation
unless they executed union authorization cards
and/or voted for the Union, and that statutory su-
pervisors campaigned for the Union. The Regional
Director found, and we agree, that Second Chef
Montano is a supervisor within the meaning of Sec-
tion 2(11) of the Act. He further found that Mon-
tano (1) signed an authorization card in the pres-
ence of several employees; (2) distributed cards to
at least two other employees; (3) "on many occa-
sions," when asked by employees what he thought
of the Union, replied that the Union "was good
and would mean higher wages and better insurance
benefits and that they should vote for" the Union;
and (4) told an employee that the Union had tried
to organize the Employer once before, and, when
it failed to do so, called in the Immigration and
Naturalization Service, that that action resulted in
I' he election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally ,as 32 for. and 24 against. the
Petitioner there ere 4 challenged ballots, a insufficienlt nlumber to
affect the results
251 NLRB No. 9
the deportation of a number of the Employer's il-
legal alien employees, and that "the same thing
would happen if the employees did not vote for
[the Union] this time around." The Regional Direc-
tor, relying on Stevenson Equipment Company, 174
NLRB 865 (1969), and a series of related cases,
concluded that Montano's conduct did not rise to
the level of objectionable conduct. We do not
agree.
The vice of supervisory participation in organiz-
ing campaigns is that such conduct either may lead
employees reasonably to believe that the employer
favors the union-which is not the case here-or,
alternatively, may coerce them into supporting a
union out of fear of future retaliation by a union-
oriented supervisor. 2 The Regional Director found
that the coercion issue raised by Objections I and 2
is controlled by Board precedent. The cases on
which he relied, however, are inapposite factually
and have no pertinent dispositive relevance to the
issues under consideration. Instead, they concern
situations where the offending supervisors no
longer are employed, and, therefore, are incapable
of exerting any coercion;3 where the supervisors
still are employed, but did not engage in any
threatening or coercive conduct; 4 or where the ac-
tivity is by nonsupervisors. 5
Unlike any of the above-cited cases, the evidence
clearly establishes that union-bent Montano still oc-
cupies his supervisory position and at the time of
the election was in a position to thrust his prounion
sympathies onto the employees and to implement
his threat. Given the context in which the threat
was made and the quid pro quo Montano sought to
exact, it is not unreasonable to conclude that the
impact thereof on the employees was sufficiently
heavy and disturbing so as to impair their freedom
of choice in the election. We find, therefore, that
the conduct in which Montano engaged constitutes
interference with the employees' free election
choice and warrants setting aside the election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
Sltevenvon Equipment Comnpany. upro.
' Cf. Stevenson Equipment Company. upru.
urner'v Expres, Incorporated. 189 NLRB 10) (1971); Gary ,4ircruft
(rporipatorn, 220 Nl.RH 187 (1975); i4d lra Perolliun Corpratron 24()
NlRB 894 (1979)
.,A(, }Yuroe~A & Sors, 225 NIRB 14 (19761