Stouffer Restaurant & Inn Corp.

National Labor Relations Board - Board Decisions

Oct 3, 1974

213 N.L.R.B. 799 (N.L.R.B. 1974)

STOUFFER RESTAURANT & INN CORP.
Stouffer Restaurant & Inn Corporation and Hotel, Mo-
tel and Restaurant Employees Union Local 151, Pe-
titioner . Case 10-RC-9651
October 3, 1974
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 10 on
September 26, 1973, an election by secret ballot was
conducted under the direction and supervision of the
Regional Director among the employees in the stipu-
lated unit on November 2, 1973. At the conclusion of
the election, the parties were furnished a tally of bal-
lots which showed that of approximately 272 eligible
voters 72 cast ballots for, and 134 cast ballots against,
the Petitioner, 45 cast challenged ballots, and 1 cast
a void ballot. The challenged ballots are insufficient
in number to affect the results of the election. There-
after, the Petitioner filed timely objections to conduct
affecting the results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board's Rules and Regulations, Series 8, as
amended, the Regional Director, after notice to the
parties and opportunity to present relevant evidence,
conducted an investigation of the issues raised by the
objections. On January 25, 1974, he issued and duly
served on the parties his Report on Objections. In his
report, the Regional Director recommended that Ob-
jections 3, 4, 5, 6, 9, 10, and 11 be overruled and that
no hearing be held with regards to Objection 7. At the
time the Regional Director wrote his report, there was
then pending before the Board an Administrative
Law Judge's Decision in Stouffer Restaurant and Inn
Corporation, Case 10-CA-10281, wherein some con-
duct embraced by Objections 1, 2, and 8 had been
considered as unfair labor practices in that proceed-
ing.
In his Decision, the Administrative Law Judge had
found that the conduct before him covered by those
objections constituted violations of Section 8(a)(1) of
the Act. On the basis of the Administrative Law
Judge's Decision, the Regional Director found that
those violations of the Act which occurred during the
period critical to the election warranted setting the
election aside. Thereafter, the Employer filed excep-
tions only to those parts of the Regional Director's
report with regard to Objections 1, 2, 7, and 8, and
directing a new election. -Petitioner filed no excep-
tions.
Upon the entire record in this case, including the
exceptions and brief, the Board finds:
799
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.
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 Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated and we find the following
employees constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section
9(c) of the Act:'
All regular and regular part -time* employees of
the employer at 590 West Peachtree Street, At-
lanta , Georgia, excluding all room clerks, front
office clerical and clerical employes, cashier-
checkers , sales personnel , professional employ-
ees, guards , and supervisors as defined in the Act.
*Defined as part-time are those in the unit who
work on an intermittent basis and who worked a
total of 21 days during the period beginning July
25, 1973 extending through September 25, 1973,
providing also that they worked on at least one
day during the period beginning August 25, 1973
and extending through September 25, 1973.
5. The Board has considered the Regional
Director ' s report and the Employer's exceptions
thereto . While we adopt his findings and recommen-
dations with respect to Objections 3, 4, 5, 6, 9, 10,
and 11, we find merit in the Employer's exception to
his finding that certain portions of Objections 1, 2,
and 8 constituted conduct which warrants setting the
election aside.
Objection 1 alleged , in effect , that subsequent to the
Petitioner 's request for recognition and the filing of
the petition the Employer engaged in surveillance and
interrogation of employees as to their union affiliation
and voting tendencies . In support of Objection 1, the
Petitioner relied upon certain testimony adduced in
the unfair labor practice proceeding , Stouffer Restau-
rant and Inn Corporation, Case 10-CA-10281, which
was heard by an Administrative Law Judge on Octo-
ber 23 , 24, and 25 , 1973. In that proceeding , there was
testimony of several incidents alleged as surveillance
and/or interrogation . The Regional Director found
that each took place before the period critical to the
election and therefore had no effect on its outcome.2
Certain individuals , however, testified to events which
' Member Kennedy finds the unit herein appropriate only because of the
parties' stipulation
2 The petition was filed on June 7 and the election took place on November
2, 1973
213 NLRB No. 104
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred within the critical period.
Thus, Roy Welty, the Employer' s general manager,
had a conversation with an employee in July wherein
Welty asked if the employee knew about the Union
and, further, if the employee had previously been in
a union. Welty asked another employee during that
same month if the employee had previously been in
a union , where, and what had the union done for the
individual. Another employee testified to having been
asked by Supervisor Bacon if the employee knew any-
thing about the Union.
The Regional Director considered the record in
Case 10-CA-10281 and observed that there the Ad-
ministrative Law Judge found that the inquiries by
Welty and Bacon violated Section 8(a)(1) of the Act.
Accordingly, he concluded that Objection 1 raised
material and substantial issues with respect to con-
duct affecting the election.
The record in Case 10-CA-10281 reveals that the
Administrative Law Judge found only two of the in-
quiries referred to above were violative of the Act,
namely, the inquiries by Bacon and Welty on separate
occasions to employee Dennard on July 9. The third
inquiry by Welty to employee Hornsby was not spe-
cifically found to be a violation by the Administrative
Law Judge.
On April 29, 1974, subsequent to the Regional
Director's report, the Board issued a Decision and
Order' in the unfair labor practice proceeding relied
upon by the Regional Director in his report . In said
Decision, the Board reversed the Administrative Law
Judge's finding that Bacon's inquiry to Dennard vio-
lated the Act 4 and that Welty's subsequent inquiry to
Dennard violated Section 8(a)(1). Although we re-
versed the finding with respect to the Bacon-Dennard
conversation on procedural grounds in the unfair la-
bor practice case , and gave no consideration to the
Welty-Hornsby conversation as a violation, we have
nevertheless considered both conversations on the
merits in this proceeding and find that they are similar
in nature to the Welty-Dennard conversation which
we found did not constitute a violation. For reasons
stated in 210 NLRB 336 regarding the Welty-Den-
nard conversation, we also find that neither incident
constitutes grounds for setting the election aside. Ac-
cordingly, we shall overrule Objection 1 in its entirety.
In concluding that Objection 2 had merit, the Re-
gional Director relied upon a finding by the Adminis-
' 210 NLRB 336 (1974).
The conversation giving rise to the violation found by the Administrative
Law Judge had not been alleged as a violation and no motion to amend the
complaint was made by the General Counsel to allege the conversation as
a violation . The Board found the conversation was not properly before the
Administrative Law Judge as a violation.
$ The Petitioner in support of Objection 7 presented a single witness who
trative Law Judge that Supervisor Tillery inquired of
employee Thomas in mid-June whether she was still
in the Union and Tillery stated that it was best for her
to get out of the Union before all the employees were
fired, and he thereby violated the Act. In finding merit
in Objection 8, the Regional Director relied upon the
Administrative Law Judge's finding that a statement
by Welty to a prounion employee named Reid that,
if the Employer had known about Larry Moore (a
supervisor with a history of union involvement and
then active on the Union's behalf at the Employer's
establishment), he would not have hired him violated
the Act since Welty based his resentment against
Moore on his union activities generally rather than on
his union activities as a supervisor.
Although we adopted the Administrative Law
Judge's finding regarding the above two incidents, in
the circumstances of this case, we find merit in the
Employer's exception to the Regional Director's con-
clusion that they raise material and substantial issues
with respect to conduct affecting the results of the
election.
As a result of the Board's having reversed two crit-
ical period 8(a)(1) violations found by the Adminis-
trative Law Judge, the only remaining 8(a)(1)
violations which took place during the critical period
are the ones involving Thomas, around the middle of
June, and Reid sometime earlier. The election was not
held until November, nearly 5 months later. After
mid-June, there was no other conduct found unlawful
by the Board.5 Each incident involved only a single
employee who in each instance was at the time main-
taining a highly visible profile as a union supporter
and organizer. We note additionally that with regard
to Reid the conduct in question did not involve him
directly but rather referred to another individual, then
a supervisor. In view of these circumstances, the long
lapse of time between the unlawful conduct and the
election, the fact that it involved only 2 out of the
approximately 272 unit employees during the critical
period, and the substantial margin by which the
Union lost the election, we find that these two inci-
dents were of an isolated nature and not likely to have
interfered with the holding of a free and fair election.
Accordingly, we shall overrule the objections in their
entirety and certify the results of the election.
testified that he was paid for carrying a "vote no" sign during October. This,
however, was denied by members of the Employer's supervisory and manage-
ment staff and the Regional Director did not resolve the conflicting state-
ments . There were no allegations that any other employees were promised,
or received , any reward for supporting the Employer in the election . In view
of our other findings herein , we are of the view that even if the single
employee were rewarded for participating in a demonstration, its impact is
not likely to have interfered with the election . Accordingly , we find it unnec-
essary to resolve this conflict in testimony.
STOUFFER RESTAURANT & INN CORP.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Hotel, Motel and Res-
taurant Employees Union Local 151 and that said
labor organization is not the exclusive representative
of all the employees, in the unit herein involved, with-
in the meaning of Section 9(a) of the National Labor
Relations Act, as amended.
MEMBERS FANNING and JENKINS, dissenting:
Our colleagues have found that, during the critical
period prior to the election, the Employer engaged in
the following conduct: (1) Supervisor Bacon asked
employee Dennard if she knew anything about the
Union and then remarked that no other Stouffer's but
one had a union; (2) General Manager Welty in a
conversation with employees Dennard and Hornsby
asked Dennard whether she had previously belonged
to a union. When Dennard answered yes, Welty asked
"where about" and Dennard named a former employ-
er; (3) Supervisor Tillery, after observing that employ-
ee Thomas was wearing a union pin on her uniform,
asked Thomas if she was in the Union. When Thomas
answered yes, Tillery said it was best for her to get out
of the Union before "we" were all fired; (4) General
Manager Welty told employee Reid that he (Welty)
would never have hired Larry Moore as a supervisor
if he had known of Moore's union involvement while
working for another employer. In addition to these
incidents, our colleagues accept, for purposes of deci-
sion, the truthfulness of a statement by an unidenti-
fied employee that the Employer paid him $2 an hour
for picketing the Employer's premises with a "vote
no" sign and that for his efforts the employee received
$63.
We accept these factual determinations, but not our
colleagues' conclusion that the above-stated conduct
is of insufficient gravity to warrant setting aside the
election. In our judgment, the conduct in question is
serious in nature and cannot be explained away in the
manner proposed by our colleagues. The majority
treats the interrogations of employee Dennard by
General Manager Welty and Supervisor Bacon as in-
nocent remarks made in passing on the theory that
Dennard and the other employee participant, Horns-
by, were openly in favor of the Union and both Welty
and Bacon were aware of this fact. As to the Tillery-
Thomas and Welty-Reid conversations, which this
Board has already found to be in violation of Section
8(a)(1) of the Act in a companion unfair labor practice
proceeding,' our colleagues would here discount their
6 In Stouffer Restaurant and Inn Corporation, 210 NLRB 336 (1974), these
identical conversations were included in the conduct which the General
Counsel alleged to be in violation of Sec 8(a)(I) of the Act In its Decision,
801
impact on the election because they involved only a
single employee and were somewhat remote in time to
the date of the election. With respect to the final inci-
dent, the Employer's alleged retention and payment
of an employee for the purpose of demonstrating
against union representation, this is considered unob-
jectionable by our colleagues because, even if the con-
duct occurred as alleged, it involved only a single
employee.
We must confess we are at a loss in understanding
how our colleagues can discount or explain away so
many instances of misconduct. We fully recognize
that in the election conducted here the Union was
overwhelmingly defeated by almost a 2-1 margin,
but certainly no one would advocate a "head count"
policy where we compared the number of employees
directly affected by the objectionable conduct with
the number of votes cast against the victimized party.
To do so would, of course, put a premium on mis-
conduct of the most serious nature. As in most cases
where objectionable conduct is involved, we are not
really in a position to measure the misconduct in
terms of the extent of its impact on the voting group
at large. However, when, as here, several separate
incidents of misconduct have occurred, it seems only
proper to us to conclude that it had a substantial
impact on the election.
As we have indicated, we consider all of the objec-
tionable conduct raised here to be of a serious nature.
The interrogation of employee Dennard, first by Su-
pervisor Bacon and later by General Manager Welty
in the presence of employee Hornsby, should not be
excused on the basis that the prounion sentiments of
both Dennard and Hornsby were known. In fact, if
anything, the repeated interrogation of a known
union advocate would suggest that the remarks were
designed to intimidate the employee from engaging in
further union activities rather than for the purpose of
eliciting information. In any case, we do not consider
these interrogations to be innocent or casual remarks
and I consider any theory which exposes known
union supporters to repeated interrogations to be des-
tructive of employee rights under the Act. The seri-
ousness of the Tillery-Thomas and Welty-Reid
conversations is established by our previous finding
that they constitute violations of Section 8(a)(1) of the
Act' and, although each conversation involved but a
single employee, it cannot truly be said to be isolated
when considered with the other incidents involved
here. Finally, the allegation that the Employer hired
and paid an employee a substantial sum of money to
the Board agreed that the Tillery-Thomas and Welty-Reid conversations
were violative of the Act, but it dismissed the allegations with respect to the
Bacon-Dennard and Welty-Dennard conversations Member Jenkins dis-
sented with respect to their conclusions on the latter two incidents
7 See In 6, supra
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrate against the Union is in no sense a matter For the above reasons, we would find merit in the
of small importance . At the very least , we should or- objections now before us and would direct a second
der a hearing to determine the facts concerning this election.
allegation.