Stouffer Restaurant & Inn Corp.Download PDFNational Labor Relations Board - Board DecisionsOct 3, 1974213 N.L.R.B. 799 (N.L.R.B. 1974) Copy Citation 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. Copy with citationCopy as parenthetical citation