Pedro's Inc., d/b/a Pedro's Restaurant

National Labor Relations Board - Board Decisions

May 20, 1982

261 N.L.R.B. 1010 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pedro's Inc., d/b/a Pedro's Restaurant and Hotel
and Restaurant Employees and Bartenders
Union, Local 19, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-
CIO. Cases 32-CA-1014 and 32-RC-276
May 20, 1982
SUPPLEMENTAL DECISION AND
ORDER AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On November 23, 1979, the National Labor Re-
lations Board issued its Decision and Order' in this
proceeding in which it adopted Administrative
Law Judge Earldean V. S. Robbins' findings that
Respondent violated Section 8(a)(1) of the Act by
interrogating employees concerning their union ac-
tivities and sympathies, by threatening an employee
with discharge because of his union activities, by
soliciting grievances from employees in order to
discourage their support for the Union, by promis-
ing and granting benefits and improved working
conditions to employees in order to induce them to
reject the Union as their collective-bargaining rep-
resentative, and by promulgating a no-
solicitation/no-distribution rule to discourage em-
ployees from engaging in union activities. The
Board further found that the Union had attained
majority status; that the likelihood of erasing the
effect of Respondent's unfair labor practices and
conducting a fair election was slight; that Respond-
ent's refusal to bargain, in the context of the unfair
labor practices found, violated Section 8(a)(5); and
that a bargaining order should therefore issue.
Thereafter, on April 13, 1981, the United States
Court of Appeals for the District of Columbia en-
forced the Board's Order with respect to the
8(a)(1) violations, except for those involving the
announcement and implementation of a health in-
surance plan.2 Concluding that "the Board ap-
peared to rely heavily on this [grant of benefit] vio-
lation to sustain the issuance of a bargaining
order," the court remanded the case to the Board
for a determination of whether the remaining
unfair labor practices were sufficiently serious and
pervasive to support the issuance of a bargaining
order. The court also directed that the Board, in
determining the propriety of a bargaining order,
consider conditions in the bargaining unit at the
time it renders its decision on remand.
Thereafter, the Board accepted the court's
remand and notified the parties that they could file
' 246 NLRB 567.
2 652 F.2d 1005 (D.C. Cir.)
statements of position concerning the issues raised
by the remand. Subsequently, the Charging Party
and Respondent filed statements of position.
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 considered the record as a whole,
including the statements of position, in light of the
court's decision, which the Board has decided to
accept as the law of the case, and makes the fol-
lowing findings:
In N.L.R.B. v. Gissel Packing Co., Inc.,3 the Su-
preme Court set forth certain standards relating to
bargaining orders as follows: (1) A bargaining
order may be granted where an employer's unfair
labor practices are "outrageous" and "pervasive";
(2) a bargaining order may be granted "in less ex-
traordinary cases marked by less pervasive unfair
labor practices which nonetheless still have a tend-
ency to undermine majority strength"; and (3) a
bargaining order is not appropriate in cases involv-
ing minor or less extensive unfair labor practices
"which, because of their minimal impact on the
election machinery, will not sustain a bargaining
order."
In the instant case, the court of appeals observed
that the Board relied heavily on the implementa-
tion of the health insurance plan in concluding that
a bargaining order was warranted. Thus, the Board
noted that this conduct "had effects which cannot
be expunged through traditional Board remedies"
and "exert[ed] a strong and lingering coercive
effect on the employees' freedom of choice." 246
NLRB at 582. However, as stated above, the court
concluded, contrary to the Board, that Respond-
ent's action in this regard was lawful.
It is our opinion that the remaining 8(a)(1) viola-
tions in this case bring it within the third of the
aforementioned Gissel categories and do not war-
rant a bargaining order. The unlawful conduct is
not so coercive that it renders slight the possibility
of holding a fair and reliable election after the ap-
plication of traditional remedies. The interrogations
involved approximately a dozen employees out of a
unit of 110 employees. In connection with the
meetings at which management solicited grievances
and promised remedies, we note that no economic
benefits were promised. The only benefit actually
granted was a posting of promotional opportunities
pursuant to an admittedly existing policy of pro-
moting from within. While there was one threat of
discharge for union activity made to one employee,
it was not a direct threat but rather was implied
` 395 U.S 575 (1969).
261 NLRB No. 148
1010
PEDRO'S RESTAURANT
and veiled. We believe that all of the aforemen-
tioned violations and Respondent's unlawful pro-
mulgation of a no-solicitation rule can adequately
be remedied by means of the court-enforced cease-
and-desist order.
Accordingly, in the particular circumstances of
this case, we conclude that a bargaining order is
not required or appropriate to remedy the viola-
tions affirmed by the court of appeals. Rather, we
shall direct a second election. Thus, in our original
Decision and Order we sustained, inter alia, the
Union's Objections 4 and 8, finding that Respond-
ent's unlawful interrogation of employees during
the critical period interfered with employee free
choice. The court affirmed these 8(a)(l) findings. 4
Therefore, we shall reopen the representation pro-
ceeding and remand the case for the holding of a
new election.
4 However, in light of the court's finding that the implementation of
the health insurance plan was lawful, we hereby overrule Objection 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby modifies the Order heretofore
entered in this proceeding on November 23, 1979
(246 NLRB 567), by deleting paragraphs l(a) and
2(a) and the fourth and last paragraphs of the
Notice to Employees.
IT IS FURTHER ORDERED that Case 32-RC-276
be, and it hereby is, reopened; that the election
held on April 21, 1978, be, and it hereby is, set
aside; and that Case 32-RC-276 be, and it hereby
is, severed and remanded to the Regional Director
for Region 32 for the purpose of conducting a new
election in accordance with the direction set forth
below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
1011