Paolo's Continental Restaurant, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1974

213 N.L.R.B. 557 (N.L.R.B. 1974)

PAOLO'S CONTINENTAL RESTAURANT, INC. 557
Paolo's Continental Restaurant , Inc. and Local Joint
Executive Board, Hotel, Restaurant & Bartenders
International Union, Local Nos. 180 and 577, AFL-
CIO, Petitioner.' Case 20-RC-11460
September 26, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, executed by the parties and ap-
proved by the Regional Director on July 10, 1973, an
election by secret ballot was conducted on August 9,
1973, under the direction and supervision of the Re-
gional Director for Region 20 among the employees
in the unit found appropriate. Objections to that elec-
tion were filed by the Petitioner on August 13, 1973,
and thereafter the Employer and the Petitioner en-
tered into a stipulation to set aside the election, which
was approved by the Regional Director on September
27, 1973.
On October 18, 1973, a rerun election was conduct-
ed. At the conclusion of the election, the parties were
furnished a tally of ballots which shows that of ap-
proximately 51 eligible voters, 25 cast votes for Peti-
tioner, 18 cast votes against Petitioner, 5 votes were
challenged, and 2 ballots were void. The challenged
ballots were insufficient to affect the results of the
election. On October 26, 1973, the Employer filed
timely objections with the Board.2 On November 30,
1973, the Regional Director issued his Report on Ob-
jections, to which the Petitioner timely filed excep-
tions.
Thereafter, on March 15, 1974, the Board issued its
Order Directing Hearing in which it remanded to the
Regional Director all the objections raised by the Em-
ployer for the purpose of holding a hearing on all
those objections. It was further ordered that the Hear-
ing Officer designated to conduct the hearing should
thereafter issue a report on those objections with rec-
ommendations to the Board as to their proper disposi-
tion, and the parties were given leave to file exceptions
to the Hearing Officer's report.
A hearing was thereafter held on April 11, 1974,
before Hearing Officer Gerald M. Cole, and, on May
1 Incorrectly designated as "Petitioners" in the Regional Director's Report
on Objections, our Order Directing a Hearing, and the Hearing Officer's
Re,Port and Recommendations.
At the hearing conducted on April 11, 1974, the Petitioner contended that
the Employers objections were untimely filed with the Board . The Board in
its order directing that hearing had specifically found at In . I of that order
that the objections had been timely filed. Consequently , we reject the
Petitioner 's argument as raised at the hearing herein.
16, 1974, the Hearing Officer issued his Report and
Recommendation, pertinent parts attached hereto
and marked "Appendix A," in which he recommend-
ed that all of the Employer's objections, i.e., Objec-
tions 1 A, 1 B(i), (ii), and (iii), 1 C, 1 D, 2, 3, and 4 be
overruled and that a Certification of Representative
be issued to the Petitioner. Thereafter, the Employer
filed timely exceptions 3 to the Hearing Officer's re-
port and the Petitioner filed a timely statement of
opposition to the Employer's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the Em-
ployer within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All regular full-time and regular part- time em-
ployees of the Employer at its Campbell, Califor-
nia, restaurant; excluding office clerical
employees, confidential employees, managerial
employees, musicians, guards, and supervisors as
defined in the Act.
5. The Board has considered the Hearing Officer's
report and recommendations, the Employer's excep-
tions and brief, the Petitioner's statement, and the
entire record in the case and hereby adopts the Hear-
ing Officer's findings,4 conclusions,' and recommen-
dations.6
3 The Petitioner contends that since the Employer's exceptions were not
mailed from San Jose , California, until May 28, 1974, it is unlikely they were
received by the Board in Washington , D.C., on or before May 29, 1974, the
last day for timely filing and should therefore be striken . The exceptions were
in fact received by the Board in Washington on May 29 , were therefore
timely, and have been fully considered.
4 In the absence of exceptions, we adopt pro forma the Hearing Officer's
recommendations on Objections I B (ii), 2, and 3.
3 Since we agree with the Hearing Officer' s recommendation that the
Petitioner's letter did not contain any material misrepresentations warranting i
the setting aside of the rerun election, we find it unnecessary to pass on his
further recommendation that the Employer had an adequate opportunity to
respond to the letter.
We agree with the Hearing Officer 's recommendations for the reasons he
sets forth that the Employer's objections be overruled . Although the Hearing
Continued
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Local Joint Executive
Board , Hotel , Restaurant & Bartenders International
Union , Local Nos . 180 and 577 , AFL-CIO, and that,
pursuant to Section 9(a) of the National Labor Rela-
tions Act , as amended , the said labor organization is
the exclusive representative of all the employees in the
unit found appropriate herein for the purposes of col-
lective bargaining in respect to rates of pay, wages,
hours of employment , or other conditions of employ-
ment.
MEMBER KENNEDY , dissenting in part:
I disagree with my colleagues' finding that the
Petitioner's letter did not contain any material mis-
representations warranting the setting aside of the re-
run election. That letter, a copy of which is attached
hereto, stated inter alia:
Even more important, if the Union wins the elec-
tion you may have both the Union's Plans and your
employer's. That's right, dual coverage! Why? Be-
cause under federal law an employer cannot take
back what he has already given after an election!
If the union wins those of you who are covered
can keep your employer's plan, plus all eligible
employees will be covered by the Union insur-
ance as well once the contract is signed. You
can't lose by voting Union. You can only gain!
*
Officer did not specifically so state, it is clear from his report that he consid-
ered the last paragraph of Petitioner's letter attached hereto and marked
Appendix B in conjunction with his analysis of the various objections of the
Employer . In agreeing with the Hearing Officer , we note additionally, with
respect to the benefits promised the employees if the Union won, that em-
ployees are generally able to understand that a union cannot obtain benefits
automatically by winning an election, but must seek to achieve them through
collective bargaining . Further, to the extent that Petitioner's letter stated that
the Employer could not take away that which it hud given before the election,
this merely expressed the legal opinion of Petitioner , one the employees could
evaluate, and one devoid of any threats or other elements of intimidation or
gross and deliberate misrepresentations peculiarly within the knowledge of
the Petitioner. We thus agree with the Hearing Officer that Petitioner's letter
was permissible campaign propaganda . See The Smith Company, successor to
Republic Corporation Marketing Services, 192 NLRB 1098 (see objection I at
1101) (1971); American Radiator & Standard Sanitary Corporation, Pacific
Order Handling Division, 120 NLRB 1347 (1958).
Even assuming that the letter was objectionable under the Hollywood
Ceramics rule (Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962) ),
Member Penello would not set the election aside because , for the reasons
expressed in his dissent in Medical Ancillary Services, Inc., 212 NLRB No.
80 (1974), he would overrule Hollywood Ceramics and limit Board interven-
tion to cases along the line of United Aircraft Corporation, Pratt & Whitney
Aircraft Division, 103 NLRB 102 (1953), which involved intentional trickery
which the voters could have no reason to suspect and no reason to check for
authenticity.
For the price of a cup of coffee a day employees
can have the Union Hospital -Medical , Dental,
Drug, Life Insurance , and Pension coverage (in
addition to your present employer coverage) de-
scribed above.
Clearly, the language of the letter speaks for itself.
The only conclusion that the average employee would
draw from reading the above-quoted paragraphs was
that the employees would automatically be entitled as
a legal right to have dual coverage by both the
Employer's insurance plan and the Union's if the
Union won the election. As coverage under a health
and welfare plan such as the Petitioner's is not derived
from its representative status alone, but can only re-
sult from negotiations with an employer, and as con-
tinuation of an existing employer plan is also subject
to negotiation, I agree with the Regional Director's
conclusion that the Union's letter contained substan-
tial misrepresentations of fact. Inasmuch as this letter,
which was the sole contact between the Union and all
of the Employer's employees prior to the election,
raised the health insurance plan as the primary issue
of the election, I cannot accept the Hearing Officer's
characterization of these misrepresentations as
"merely expressions of a partisan viewpoint," or "ca-
pable of being evaluated by employees as typical cam-
paign propaganda." The claim that the Employer may
not withdraw its plan after the election is an interpre-
tation of the law which an employee would reason-
ably believe was within the knowledge of the Union,
and it is unrealistic to expect the employees to ade-
quately evaluate such purported statements of the law
which imply that a union's election victory per se con-
fers on the employees increased benefits paid by the
employer.
Further, the Hearing Officer recited no facts or
rationale in support of his conclusionary finding that,
should the Board find that the Petitioner's letter con-
tained material misrepresentations, the Employer had
an adequate opportunity to communicate with em-
ployees to remove any confusion among the employ-
ees that might have been attributable to the
Petitioner's letter. Indeed, the uncontested testimony
of the Employer's president was that the Employer
first received a copy of the letter on the morning of
the election, October 18, 1973. The Hearing Officer
did not discredit such testimony nor cite any evidence
to the contrary.' In the absence of any basis for ignor-
7 Although the letter was mailed on Friday, October 12, 1973, it is unlikely
that the letter could have been delivered to the employees' homes until
Monday, October 15, or could have appeared at the plant until possibly
brought there by employees on Tuesday , October 16. Clearly, this was not
a situation where literature was distributed at the plant with copies available
for supervisors to pick up.
PAOLO'S CONTINENTAL RESTAURANT, INC. 559
ing or discrediting such uncontradicted testimony, I
would find that the Employer did not have adequate
time to respond to the Petitioner' s material misrepre-
sentations. Accordingly, I would set aside the rerun
election.
union vote means the employees get a prescrip-
tion drug plan, life insurance and a pension plan.
The letter contains an incorrect statement of the
law, a clear promise of benefit, and is designed to
mislead and did mislead voters.
APPENDIX A
Findings of Fact and Conclusions
Objection 1
The union caused to be mailed to the employ-
ees a letter which was received by employees on
and after October 16, 1973, and to which the
Employer did not have adequate time to respond.
Employer did not receive a copy of this letter
until less than 24 hours prior to the election. A
copy of the letter is attached hereto, marked Ex-
hibit A and incorporated herein by reference,
and is hereinafter referred to as "the letter."
The major thrust of the Employer's objections to
the election conducted on October 18, 1973 concerns
the contents of the letter described in this objection.
The Employer alleges that various aspects of this let-
ter constitute promises of benefit and material misrep-
resentations of fact which require that the election be
set aside. At the hearing, Jack Rasmus, who prior to
the second election, was an organizer for the Peti-
tioners, testified that on Friday, October 12, 1973, he
caused to be mailed to each of the employees of the
Employer a copy of the letter referred to above. Jack
Allen, president of the Employer, testified that he saw
this letter for the first time when he received a copy
from an employee on the morning of the election.
Inasmuch as the Employer's objections specify with
such particularity the alleged aspects of Petitioners'
letter that are allegedly sufficient to set aside the elec-
tion, each will be discussed separately.
A. The letter promised Employees that both
the existing Employer health plan and the union
plan would be benefits to the Employees. (Even
more important, if the Union wins the election, you
may have both the Union's plan and your
Employer's. That's right, dual coverage! Why?
Because under federal law an employer cannot
take back what he has already given after an
election! If the Union wins, those of you who are
covered can keep your Employer's plan , plus all
eligible Employees will be covered by the union
insurance as well once the contract is signed. You
can't lose by voting union. You can only gain.)
(emphasis in original)
The letter contains a flat allegation that a
The Employer contends this portion of the letter
improperly promises that an eventual contract will
contain the Union's health plan, states that the com-
pany plan would be maintained under any circum-
stances, effectively promises that both plans will be
available to the employees at no cost to them and
promises drug, life insurance, and pension coverage.
At the hearing, Rasmus testified that his reference
to dual coverage in the letter referred to his under-
standing of the Employer's health and welfare cover-
age which contained a conversion provision,
permitting an employee to convert his coverage to an
individual health and welfare plan. Accordingly, Ras-
mus testified that an employee could exercise this
conversion privilege and retain his existing health and
welfare coverage as well as ultimately being covered
by union insurance if the Union won the election and
a contract was signed. Rasmus did admit, however,
that he personally was not aware of any contract en-
tered into by the Petitioners which contained dual
coverage of health insurance at no cost to the employ-
ees.
Rasmus explained that his reference to federal law
in the letter was his understanding of the National
Labor Relations Act, that if a union won an election,
an employer could not, immediately after the election,
rescind any presently existing health and welfare plan.
Rasmus further stated that health and welfare cover-
age was of primary concern to the employees that he
talked to prior to the second election.
While it is true that the Petitioners' letter with re-
spect to dual coverage does not contain any reference
to the cost of the coverage to the employees and ac-
cordingly could imply to employees that both an indi-
vidual plan and the union insurance would be free,
the undersigned views these assertions as merely ex-
pressions of a partisan viewpoint and, even if not
entirely accurate or only partial truth, are capable of
being evaluated by employees as typical campaign
propaganda who are not unaware that "prattle rather
than precision is the dominating characteristic of elec-
tion publicity." 3 The Employer further asserts that
the Petitioners' reference to federal law that an em-
ployer cannot take back what he has already given
after an election is a misstatement of the law and
constitutes a misrepresentation inasmuch as an em-
ployer can take any position during bargaining as
long as it is not taken in bad faith.
3 Olson Rug Co. v. N. L. R. B., 260 F .2d 255, 257 (C.A. 7).
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the statement is accurate if it refers to the
fact that once an election is won by the union, an
employer cannot rescind all benefits the employees
may have prior to the negotiation of a contract. I find
that the Petitioners ' reference to federal law consti-
tutes mere inartistic or vague wording , subject to dif-
ferent interpretations and does not constitute such a
misrepresentation as to necessitate setting aside the
election.4
While the Employer contends that the Petitioners'
letter bluntly states that the company plan would be
maintained under any circumstances , the letter clear-
ly states that if the Union wins the election , employees
could [emphasis supplied ] select to retain this coverage
under the present existing company health and wel-
fare plan and does not state that the plan would [em-
phasis supplied ] be maintained under any
circumstances.
Finally, the Employer asserts that the letter flatly
states that an eventual contract will contain the union
health plan as well as prescription drug , life insurance,
and pension coverage . While the letter does state that
all eligible employees will be covered by the union
insurance , it is limited by the fact that it states that
this will not occur until a contract is signed. The state-
ment may imply that under any circumstances, if the
union wins the election , the employees will receive the
union insurance . However , in view of today's mass
media coverage of various labor negotiations , wherein
the parties "insist" or "demand" a specific proposal
but finally settle on less, the average worker has
reached such a level of sophistication which allows
him to understand that bargaining is a necessary con-
comitant of arriving at a collective -bargaining agree-
ment and involves a process of give and take and
compromise with the final solution differing from the
public announcement of the parties involved. Thus,
while the Petitioners ' letter states that if the Union
wins the election employees will receive the union
insurance and will also receive prescription drug, life
insurance , and pension coverage , it appears that they
are possible bargaining demands, and are permissible
in election campaigning . Accordingly , I do not find
that this aspect of the Petitioners ' letter warrants set-
ting aside the election 5 and I recommend that Objec-
tion 1 (A) be overruled.
B. The letter contains misrepresentations con-
cerning both the employer 's health plan and the
union 's health plans . The misrepresentations are
as follows:
4 Hollywood Ceramics Company, Inc., 140 NLRB 221, 224 ; Modine Manu-
facturing Company, 203 NLRB No. 77.
5 Hollywood Ceramics Company, Inc., supra; Modine Manufacturing Compa-
ny, supra; Associated Lerner Shops of America, Inc., 207 NLRB No. 18.
(i) The letter alleges that the company plan
covers only employees who work 30 hours per
week . The employer plan covers all employees.
The Employer now contends that the Petitioners'
letter is a material misrepresentation with respect to
the comparisons made between the Union ' s health
plan and the Employer 's existing health plan.
Rasmus testified that prior to writing this letter, he
compared , in detail , the Employer 's existing health
plan with the Union 's health plan , as well as conversa-
tions he had with the Union's Secretary . Allen testi-
fied that the Employer 's health plan , underwritten by
Hartford Insurance , was instituted on August 1, 1973.
Further , he explained that an insurance representative
explained the program to the employees at that time.
Approximately 40 to 60 days later , each employee was
provided with a copy of the health plan, which was the
same booklet that Rasmus used in making his com-
parison.
As noted above , the Employer contends that the
letter misrepresents the company health plan by stat-
ing that only employees who work 30 hours a week are
covered . Allen acknowledged that the booklet distrib-
uted to all employees did contain a limitation that
only active full-time employees working at least 30
hours per week were covered under the Employer's
health and welfare program . However, Allen testified
that the Employer covered all of its employees, re-
gardless of the number of hours worked . Rasmus fur-
ther testified that in his various conversations with
employees prior to the second election , he did not
learn from any employee that he was covered under
the existing Employer health plan and was not work-
ing 30 hours per week.
Inasmuch as the definition of coverage for an active
full-time employee required 30 hours per week was
contained within the Employer's booklet that ex-
plained the health and welfare coverage , the under-
signed concludes that it would be beyond the
knowledge of the Petitioners to have known that all
employees were covered under the Employer's health
and welfare plan. Even assuming , arguendo, that the
Petitioners should have known of such coverage, the
undersigned concludes that such reference does not
constitute a material misrepresentation inasmuch as
the employees would know or could have ascertained
whether or not the statement was correct.
Accordingly , the Petitioners ' assertion that employ-
ees would be required to work 30 hours a week under
the Employer ' s plan before he would be entitled to
health and welfare coverage does not warrant that the
election be set aside.'
6 Hollywood Ceramics Company, Inc., supra; Uniroyal, 169 NLRB 918;
Convalescent Hospital Management Corp . d/b/a Elmcrest Convalescent Hospi-
tal, 173 NLRB 38; Gary Drilling Co ., 208 NLRB No. 134.
PAOLO'S CONTINENTAL RESTAURANT, INC
(u) The letter alleges that its dental insurance
covers 75% of all dental expenses and that the
company plan in part covers only 50%. In fact,
the company plan covers 75% of the cost of serv-
ices provided under the union plan and 50% of
the cost of services employer believes not covered
at all under the union plan.
While the Employer asserts that the Petitioners' let-
ter materially misrepresents the amount of coverage
provided under the Employer's existing health and
welfare plan with respect to dental coverage, it ap-
pears from an examination of the two plans that, in
fact, the Petitioners' coverage would provide 75 per-
cent of all dental expenses, while the Employer's plan
separates coverage into two parts, Class A and Class
B charges. Thus, while the Petitioners' coverage
would cover 75 percent of all dental expenses as long
as an employee would utilize the services of a partici-
pating dentist, only some of these same services are
also paid in the same manner by the Employer's plan
while other services are only paid by 50 percent. For
example, while the Petitioners' dental coverage would
pay for 75 percent of the cost of services with respect
to restorative dentistry, including crowns and pros-
thodontic services, such work would be covered under
the Employer's plan as Class B charges and it would
cover only 50 percent of the cost.
Accordingly, this aspect of the letter does not con-
stitute a material misrepresentation of fact inasmuch
as it reflects a true representation of the various plans.
Again, even assuming, arguendo, that the Petitioners'
letter misrepresents the employees' dental coverage,
such information, contained within the booklet dis-
tributed to all employees, would be within the em-
ployees' own knowledge and could be evaluated by
them and does not warrant setting the election aside'
(in) The letter alleges that union insurance
covers employees working 10 hours per week
while referring to 30 hours for comparable cover-
age for employees under the company plan. In
fact, employer believes that union health insur-
ance provides only minimal and not comparable
services for a part-time employee.
This contention by the Employer refers to the fol-
lowing sentence in Petitioners' letter, "But with the
Union's insurance you get approximately the same
coverage, but need only work 10 hours a week to quali-
fy." (emphasis in original) Rasmus testified that his
reference in the letter to 10 hours a week related to the
qualification for coverage, rather than to the amount
7 /bid
561
of coverage that an employee working such hours
would receive. In fact, Rasmus admitted that an em-
ployee working 10 hours per week on the average or
between 40 and 79 hours a month would receive only
half the coverage of a full-time employee under the
Petitioners' plan. The letter's reference to 30 hours per
week for qualification for the employees under the
Employer's plan refers to Rasmus' belief that an em-
ployee had to work 30 hours a week to qualify for the
Employer's plan. [See discussion in (i), supra.]
The Employer contends that this sentence in the
letter does not refer to qualification but implies com-
parable coverage for an employee working only 10
hours a week. In fact, the Employer asserts that only
minimal and not comparable services for part-time
employees is provided under the union plan.
An examination of the Petitioners' health and wel-
fare plan does indicate that an employee working an
average of only 10 hours per week would not receive
comparable services of an employee covered under
the Employer's plan. If this is the only interpretation
that this sentence could have, it could constitute a
material misrepresentation of fact. However, another
interpretation of the sentence refers to qualification
for coverage and is consistent with Petitioners' belief
that an employee had to work 30 hours per week to
qualify for the Employer's plan. As found, supra, it
was not a misrepresentation for the Petitioners to state
that an employee would have to work 30 hours per
week to qualify under the Employer's plan With this
interpretation, the sentence would appear to be a per-
missible argument. The mere fact that a statement is
inartistically or vaguely worded and subject to differ-
ent interpretations will not suffice to establish such
misrepresentation as to necessitate setting the election
aside.'
Although not alleged specifically in its objections as
a misrepresentation of fact, at the hearing and in its
brief, the Employer asserts that the reference in the
Petitioners' letter to a deductible provision within the
Employer's health and welfare coverage constituted a
material misrepresentation of fact. In this regard,
while Petitioners' letter states that the Employer's
health and welfare plan contained a $100 deductible
for hospital-medical for each time that an employee
used the plan and that the Union's plan had no such
deductible, the Employer asserts that neither plan,
contains a deductible for hospital-medical or basic
services and both plans possessed a $100 calendar
year deductible for major medical. While Rasmus tes-
tified that in his view, the Employer's health and wel-
fare plan contained a deductible for hospital-medical,
8 Hollywood Ceramics, Company, Inc, supra, Modine Manufacturing Com-
pany, supra
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it appears that the Employer is correct in his assertion
that neither plan contained a deductible for basic
medical services while both plans do contain a calen-
dar year deductible for major medical, which is only
provided after usage of the basic services.
While Petitioners' reference in the letter to the de-
ductible does constitute a misrepresentation of fact
inasmuch as there was no such deductible within the
Employer's health and welfare coverage, the under-
signed concludes that the subject of the deductible
was contained within the Employer's health and wel-
fare booklet distributed to all employees prior to the
election and that such employees were capable of as-
certaining what was contained within this document.'
Accordingly, and based on a careful examination
of the Petitioners' letter and the other documents in-
volved, the undersigned concludes that, contrary to
the Employer's contentions, the Petitioners' letter
does not contain material misrepresentations of fact
that requires that the election be set aside. According-
ly, it is recommended that Objection 1(B) be over-
ruled.
Inasmuch as the undersigned has concluded that
the various aspects of the Petitioners' letter did not
constitute a material misrepresentation of fact, I find
it unnecessary to determine whether or not the Em-
ployer had an adequate opportunity to reply to the
letter. 10
C. The union, as reflected in the letter, prom-
ised Employees that their initiation fee would be
$7.50, despite the fact that the general initiation
fee for this union is between $35.00 and $45.00.
The reduction would clearly have meaning only
in the event that the Union won the election.
Introduced into the record at the hearing was the
International Constitution of the Petitioners effective
1966, which provided that the initiation fee for em-
ployees was $50. The Employer asserts that the deci-
sion of the United States Supreme Court in N. I.. R. B.
v. Savair Manufacturing Company, 414 U.S. 270, 84
LRRM 2929 (December 17, 1973), expressly prohibits
a union's waiver of initiation fees under any circum-
stances.
Rasmus testified that he had been instructed that
the International Union had established a special rate
for "any new house." This meant that there could be
9 See cases cited in Footnote 6, supra.
10 Should the Board find that the Petitioners ' letter does contain material
misrepresentations , I find that the Employer had an adequate opportunity
to communicate with employees to remove any confusion among the employ-
ees that might have been attributable to the Petitioners ' letter . Cf. S. H.
Lynch and Company, Inc., 171 NLRB 1354.
a reduction of the initiation fee for all employees of
any newly organized employer. Further, it appears
that Petitioners' Constitution, effective August 1971,
superseded the previous Constitution and provides
that Petitioners' International Union president may
authorize reduced fees during an organizational drive.
It appears that the Petitioners acted within the
meaning of their constitution when, during the orga-
nization drive to represent the employees of the Em-
ployer, they offered in their letter to reduce initiation
fees and dues. Even assuming, arguendo, that the pre-
vious Constitution was in effect, the offer of a reduc-
tion of the initiation fee for all employees if the union
won the election does not constitute an unlawful in-
ducement within the meaning of the decision of the
Supreme Court in Savair Manufacturing Company, su-
pra. Where a union offers to waive or reduce its initia-
tion fee for all employees who join at any time during
an organizational stage of representation, prior to, or
subsequent to, an election, such waiver or reduction
does not impair the employees' freedom of choice in
the election or constitute interference which would
warrant setting aside the election." Accordingly, it is
recommended that Objection 1(C) be overruled.
(D) The letter alleges that the company agreed
to give employee Bonnie Shilla her job back
through union efforts. There was in fact no agree-
ment on the part of the company to give that
employee her job back as the union well knew.
This objection by the Employer refers to the follow-
ing statement in Petitioners' letter, "Just ask Bonnie
Shilla, who management has agreed to give her job
back as a result of union efforts through the National
Labor Relations Board!"
Bonnie Shilla was a former employee of the Em-
ployer who was discharged prior to the first election.
Five days later she was reinstated by the Employer.
Subsequently, she was discharged again after a dis-
pute with the maitre d'. Thereafter, the Petitioners
filed an unfair labor practice charge against the Em-
ployer, alleging that her second discharge was viola-
tive of the Act. During the course of the investigation
of the charge, an agent of the National Labor Rela-
tions Board apparently had various conversations
with Allen. Allen subsequently agreed to have a con-
versation with Shilla concerning the possibility of her
returning to work. However, Shilla never appeared to
discuss her possible return to work with Allen. Ac-
11 B. F. Goodrich Tire Company, 209 NLRB No. 182.
PAOLO'S CONTINENTAL RESTAURANT, INC. 563
cordingly, the Employer asserts that the letter con-
tains a misrepresentation of fact since Allen never
agreed to return Shilla to work.
The Petitioners rely on a letter from Board Agent
Brand of Region 20 with respect to the return to work
of Shilla. In the letter, there is a discussion concerning
the return to work of Shilla and a reference is made
that it was through union efforts that Shilla could
possibly return to work."
While apparently there was no agreement for Shilla
to return to work, after carefully evaluating the evi-
dence, the undersigned concludes that there was some
basis in fact for the reference in the Petitioners' letter
to their effort in attempting to return her to the em-
ploy of the Employer. In any event, it is concluded
that the reference in the letter to the return to work
of Shilla does not constitute a material misrepresenta-
tion of fact and constitutes election propaganda that
would not have a significant impact on the election."
Accordingly, it is recommended that Objection 1(D)
be overruled.
Objection 2
The union refused to permit Employees of Em-
ployer, solely because they were such Employees,
to obtain a withdrawal card from the union,
which would have been available to any other
union member. The result of this activity was that
Employees remained subject to union dues and
discipline and were subjected to union pressures
during the campaign.
The Employer submitted no evidence in support of
this allegation at the hearing. It has long been held
that the objecting party' must provide specific evi-
dence in support of its allegations." Accordingly, I
find that Objection 2 is without merit and recommend
that it be overruled.
Objection 3
The office of the Regional Director changed its
position on the eligibility date for Employees af-
ter the agreement concerning a new election uni-
laterally and without notification of Employer's
counsel. The new eligibility list was substantially
different from the eligibility list submitted for the
12 Petitioners' Exhibit No I
13 Hollywood Ceramics Company, Inc, supra, Southern Foods, Inc, 171
NIeRB 999, Gary Drilling Co, supra
14 P S I Division of Warner Brake and Clutch, 194 NLRB 499, Mrs
Weaver's Salads, a Division of Dean Foods Co, Inc, 181 NLRB 197, Mohawk
Bedding Corp. 178 NLRB 432
original date agreed upon and substantially de-
prived Employer of an opportunity to conduct an
election campaign and to reach eligible voters. A
new list of eligible voters was demanded by the
Regional Director after the excelsior period on
the new election had expired. The election was
not properly conducted for that reason alone.
After the parties stipulated to set aside the first
election, the Employer's counsel, on October 1, sub-
mitted to Region 20 an Excelsior list of names and
addresses of the employees who were allegedly eligi-
ble to vote in the October 18 election. In an attached
letter to the Excelsior list, the Employer's counsel in-
dicated that his position was that employees who had
quit or had been terminated since the first election
should not be eligible to vote. The Regional Office
had inadvertently requested an Excelsior list made up
of the employees who had been on the payroll prior
to the first election. This error was discovered on Oc-
tober 1 and the Regional Office contacted the Em-
ployer for a corrected Excelsior list. However, Allen
was contacted directly rather than the Employer's
counsel. On October 2, the Employer's secretary, Be-
dini, submitted a corrected Excelsior list to the Re-
gional Office. Thus, the Employer was informed 16
days prior to the election of those employees who
were to be eligible to vote in the second election.
Apparently, neither the Regional Office nor any
employer representative ever informed the
Employer's counsel of the second Excelsior list. How-
ever, at the preelection conference on the day of the
election, the Employer and its counsel was given the
opportunity to inspect the second Excelsior list and
was represented at the election by an observer who
had the right to challenge any voters believed not
eligible to vote, but who chose not to exercise this
right
The undersigned concludes that although it was
unfortunate that the Employer's counsel was not in-
formed of the second Excelsior list, the Employer was
provided with ample notification of those employees
to be eligible in the second election, had ample oppor-
tunity to conduct its campaign, and had the right to
challenge any voter believed not eligible to vote at the
election. Moreover, the letter by the Employer's coun-
sel to the Regional Office on October 1, indicates his
belief that employees who had been terminated or had
quit prior to the second election should not be eligible
voters. Accordingly, I find that the Employer was not
prejudiced by the change in the Excelsior list and I
recommend that Objection 3 be overruled."
15 Fraser & Johnston Manufacturing Co, 106 NLRB 900; cf Socony-Vacu-
um Oil Company, Inc, 84 NLRB 969
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Objection 4 APPENDIX B
The union, through its agent , directly alleged
to an employee, Mike Bertaldo, that his job clas-
sification under the union contract entitled him
to $3.50 per hour. At the pre-election conference,
he challenged that Employee's vote on the
ground that the Untion [sic] contract did not pro-
vide any classification into which that employee
might fall.
Rasmus testified that prior to the election on Octo-
ber 18, he visited the home of employee Mike Bertal-
do on two occasions. On the first occasion, he spoke
only to Bertaldo's father. On the second visit, he ques-
tioned Bertaldo regarding his duties to ascertain what
job classification he might fall under. Allen testified
that Bertaldo was a regularly scheduled part-time em-
ployee who did odd jobs for the Employer. Rasmus
testified that he had difficulty in ascertaining what
classification Bertaldo might fit into under a possible
union contract covering the employees of the Em-
ployer. He stated that he informed Bertaldo that the
closest classification under any existing contract that
the Petitioners had with any employer was the classifi-
cation of utility men who earned $3.50 an hour. Ras-
mus denied that he promised Bertaldo that he would
receive $3.50 an hour if the Union won the election
and merely stated that this was the closest classifica-
tion he could think of that Bertaldo might qualify for.
At the preelection conference, Rasmus did inform the
Board Agent that he would challenge the vote of Ber-
taldo at the election because he felt that he did not
belong in the unit and Bertaldo's vote was subse-
quently challenged by Petitioners' observer. Bertaldo
did not testify at the hearing.
While the Employer contends that the Petitioners
improperly promised Bertaldo that if the Union won
the election he would receive $3.50 an hour, the un-
contradicted evidence appears that Rasmus merely
informed Bertaldo that the closest classification that
he might fit into under other collective-bargaining
agreements that Petitioners had with other employers
paid $3.50 an hour. There is no evidence on the record
of any unlawful or improper promise by Rasmus. Fur-
ther, it is the right of all parties at an election to
challenge any voter for cause. It appears that Rasmus
merely challenged the ballot of Bertaldo because he
believed that Bertaldo did not belong within any de-
finition in the agreed-upon appropriate unit. Further,
challenges were not sufficient in number to affect the
results of the election. Accordingly, inasmuch as the
Petitioners did not engage in any improper conduct
with respect to the eligibility of Bertaldo, I recom-
mend that Objection 4 be overruled.
NEW UNION ELECTION
A second Union Election has been ordered for
Paolo's employees by the National Labor Relations
Board! Following the first election last August, the
Union protested certain unfair actions taken by
Paolo's management in the first election. And now the
Federal Government has ordered a re-run election,
which will be held this Thursday, October 18, between
11-11:30 A.m. and 5-6 F.M.
SO WHAT HAS CHANGED?
Many things! For example, do you know that the
Medical Insurance given by your employer just before
the first election (to influence the vote against the
Union no doubt) covers only those employees who
work at least 30 hours a week? Many employees there-
fore have absolutely no medical, hospital or dental
coverage at all! Are you one? Also, do you know that
even if you work the minimum 30 hours a week, with
your employer's plan you still must pay a $100 deduct-
ible for hospital-medical each time you use it? And a
$50 deductibe for dental work! Finally, do you know
that in many cases you [sic] employer's dental plan
pays only 50% of costs and not 75% as promised? Some
employees have even had to pay their entire bill them-
selves! Just ask around.
But with the Union's Insurance you get approxi-
mately the same coverage, but need only work 10
hours a week to qualify. Also, with the Union plan
there is No Deductible charges for Hospital-Medical
or Dental. And the Union always pays 75% of your
Dental costs. The Union paid out over $1 million in
Medical-Dental benefits to its members last year
alone ! And remember, with the Union you get a Pre-
scription Drug Plan, Life Insurance, and a Pension Plan
as well!
Even more important, if the Union wins the election
you may have both the Union's Plans and your
employer's. That's right, dual coverage! Why? Because
under federal law an employer cannot take back what
he has already given after an election! If the union
wins those of you who are covered can keep your
employer's plan, plus all eligible employees will be
cov.;red by the Union insurance as well once the con-
tract is signed. You can't lose by voting Union. You
can only gain!
BUT THERE IS MORE!
As we all know, with climbing food prices Restau-
rant business is beginning to drop off all over. Paolo's
PAOLO'S CONTINENTAL RESTAURANT, INC.
is also being affected by this! Many of you may al-
ready be feeling the pressure from management: or-
ders to cut down on costs, work a little faster, harder,
etc. A drop-off in business may also mean the pros-
pect of lay-offs or management coming up with petty
excuses for firing employees. But with a Union you
have rights. A Union means more Job Security. For
example, with a Union you would have seniority
rights with regard to any lay-off and management
could not fire you whenever it pleases. With a Union,
management mustprove you are unable to do your job
before it can fire you! In other words, the Union can
help protect your job. Just ask Bonnie Shilla, whom
management has agreed to give her job back as a
result of Union efforts through the National Labor
Relations Board!
And there's more than just Job Security involved.
With a Union you have protection against petty har-
565
assment from management or other employees. For
example, with a Union waiters and waitresses would
not be made to pay 15% of their tips to the captains;
The choice whether to pay this would be completely
voluntary on their part.
HOW MUCH?
For the price of a cup of coffee a day employees can
have the Union Hospital-Medical , Dental , Drug, Life
Insurance , and Pension coverage (in addition to your
present employer coverage) described above. The
Union initiation fee will be only $7.50 and monthly
dues are only $7.50, and less if you are a student or
attend union meetings . How can you lose??
VOTE "YES" FOR THE UNION ON
THURSDAY!!