Ramada Inns, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1974

208 N.L.R.B. 697 (N.L.R.B. 1974)

RAMADA INNS, INC.
Ramada Inns, Inc., Employer-Petitioner and Freight
Checkers, Clerical Employees & Helpers Union,
Local 856, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America . Case 20-RM-1606
January 24, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and
approved by the Regional Director, an election by
secret ballot was conducted on May 18, 1973,1 under
the direction and supervision of the Regional
Director for Region 20 among the employees of the
unit described below. Upon the conclusion of the
election, the parties were furnished with a tally of
ballots which showed that, of approximately eight
eligible voters, three cast ballots for and five cast
ballots against the Union. There were no challenged
ballots. Thereafter, the Union filed timely objections
to conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Acting Regional
Director conducted an investigation and, on July 31,
issued and served on the parties his Report on
Objections, Order and Notice of Hearing on Objec-
tions and, on August 10, issued an errata correcting
his report in certain respects. In his corrected report,
the Acting Regional Director recommended to the
Board that Objections 2 and 3 be overruled and that
a hearing be held to resolve the issues raised by
Objections 1 and 4. A hearing was conducted on
August 23 and, on September 11, the Hearing Officer
issued his report recommending that Objection 4 be
overruled, that Objection 1 be sustained, and that a
rerun election be directed. Thereafter, the Employer
filed timely exceptions to the Hearing Officer's
report, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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
purposes of the Act to assert jurisdiction herein.
1 All dates are in 1973 unless otherwise indicated.
2 Fairchild Camera & Instrument Corporation, 169 NLRB 90
9 Eagle-Picher Industries, Inc., 171 NLRB 293, Texaco, Inc (Evansville),
697
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All front desk, PBX and clerical employees of the
employer at its Santa Clara, California location
excluding all other employees, assistant managers,
assistant manager trainees, guards and supervi-
sors as defined in the Act.
5. The Board has considered the Hearing Offi-
cer's report, and the Employer's exceptions thereto
and brief in support thereof, and hereby adopts the
Hearing Officer's findings and recommendations,
and concludes that in these circumstances it will
effectuate the policies of the Act to direct another
election.
Our dissenting colleague apparently ignores the
Hearing Officer's finding that the meetings involving
Jerry Eisen, director of labor relations for the
Employer, and the unit employees were initiated by
the Employer for the purpose of soliciting grievances.
It is well established that the solicitation of employ-
ees' grievances by an employer is sufficient to
"warrant an inference by the employees that their
Employer intends to try and do something about
their grievances. "2 We have condemned this practice
since it interferes with the employees' right under
Section 8(a)(1).3 Since "conduct violative of Section
8(a)(1) is , a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in an
election,"4 the Employer engaged in objectionable
conduct by soliciting the employees' grievances.
Moreover, it is clear that the Employer intended to
convey the idea that a union victory would delay any
wage increases. The employees knew that their wages
were below those in the competitive area. Eisen
reviewed the fact that bargaining had occurred over
the past year and a half without success . According
to credited testimony, when asked if the employees
were going to get raises, Eisen replied that if the
Union did not file any objections within 5 days after
the election, he would see to it that the employees
would have "benefits and wages comparable to the
other inns in the area." When asked what would
happen if the Union won, Eisen told the employees
that "he did not have to agree to what the Union
asked for. And that bargaining could go on for one,
178 NLRB 434
d Dal-Tex Optical Co., Inc., 137 NLRB 1782, 1786.
208 NLRB No. 149
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two, three, four, five months-or possible even a
year."
There is no other reasonable interpretation of
Eisen's remarks but that the Employer would grant
employees their long-awaited wage increases if the
Union lost the election. These statements made in
the above context undermine the Union and do not
fall within the protection of Section 8(c) of the Act.
ORDER
It is hereby ordered that the election conducted
herein on May 18, 1973, be, and it hereby is, set
aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
CHAIRMAN MILLER, dissenting:
Contrary to my colleagues, I would find the
Employer's preelection statements to the employees
protected by the provisions of Section 8(c) of the Act,
and that they do not warrant our setting aside this
election.
The facts, which are not materially in dispute, are
briefly as follows: The Union was certified as the
representative of the Employer's front desk, PBX,
and clerical employees on September 7, 1971. Over
the next 18 months, the Union and Employer held a
number of bargaining sessions but failed to reach
agreement on a contract. There were no charges that
the Employer failed to bargain in good faith. During
the 18-month bargaining period, of course, the lack
of agreement meant that no fruits of bargaining, such
as wage increases, materialized, whereas the general
inflation in the economy apparently had resulted in
the Employer's competitors in the area granting such
increases. A petition for an election was filed in
March 1973.
During the campaign which followed, the Employ-
er's labor relations director, Jerry Eisen, met on
5 The Hearing Officer's finding with regard to Eisen's purpose in holding
the meetings was a conclusion drawn by him solely from his view as to the
legality of Eisen's remarks As indicated, the issue of possible raises was
raised by the employees themselves Since I find Eisen's responses to have
been unobjectionable , I find no record support for the Hearing Officer's
conclusion that Eisen had an improper purpose in conducting the meetings
6 The majority says the "only reasonable interpretation" of this remark
was that employees would get "their long-awaited wage increase" if the
Union lost, whereas they might well have to await several months more of
negotiations if the Union won In my view , it is entirely permissible for an
about three occasions with the employees. In the
course of what seem to have been relatively informal
sessions, virtually all of the employees, naturally
enough in view of the long period of no increases,
asked about the possibility of immediate or future
wage increases.5 According to the undisputed and
credited testimony, Eisen replied that he could make
them no promises. Eisen told the employees that if
the Union won the election the Employer would
continue to bargain with it in hopes of reaching
agreement on a contract. He also said that if the
Union lost the election and did not file objections
within 5 days after the election "the company was
free to do whatever it wished to do." Eisen said
further that the Employer "would be competitive
with the other inns in that area" with respect to
wages, and that it was the national policy of the
Employer to remain competitive "in terms of wages,
benefits, and other working conditions."6 In answer
to a question, Eisen also opined that the management
would "consider it a slap in the face if they went
Union." Eisen, it seems to me, was doing no more
than accurately explaining to the employees the legal
consequences of an election and the effects it would
have upon them; i.e., if the Union won the Employer
would continue to bargain with it and, that if the
Union lost, the Employer would be free to act alone
in setting wage and benefit policies. In addition, he
stated-truthfully so far as this record shows-that it
was the Respondent's policy to stay competitive in its
levels of wages and benefits. And finally, he
expressed the view that the management would
consider a prounion vote a "slap in the face."
Such a combination of legal accuracy, truthful
statements, and uncoercive opinion is, in my view,
fully protected by Section 8(c) of the Act, and offers
no valid reason for setting aside an election.
Accordingly, I would certify the results of the
election.
employer to state that his policy is to remain competitive in wages and other
benefits, unless this is shown to be a material misrepresentation of fact,
which it is not even argued to be here I f the employees have sufficient faith
in the employer' s policy that they believe the unilateral implementation of
such a policy will produce better wages and working conditions for them
with less delay than union-conducted negotiations , which had clearly been
time-consuming here , that is the kind of informed judgment employees are
entitled to make They need not be kept in the dark as to the employer's
policy or as to the facts of life about union negotiations in order to
effectuate any policy of this Act with which I am familiar