The Catalyst

National Labor Relations Board - Board DecisionsFeb 23, 1979

240 N.L.R.B. 904 (N.L.R.B. 1979)

904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Randall P. Kane, Inc., d/b/a The Catalyst and Hotel, Motel, Restaurant Employees & Bartenders Inter- national Union Local 483. Case 32-CA-81 (for- merly 20-CA-1 1333) February 23, 1979 SUPPLEMENTAL, DECISION AND ORDER By CHAIRMAN FANNING ANI) MEMBERS PNI.I() AND Ml RPttY On June 21, 1977, the National Labor Relations Board issued a Decision and Order in this proceed- ing.' The Board, in agreement with Administrative Law Judge Richard J. Boyce. found that Respondent violated Section 8(a)(1) of the Act by, inter alia, threatening employees with various reprisals in the event they persisted in union activities or selected the Union as their representative, creating the impres- sion of surveillance, interrogating employees about their union activities, and making unlawful promises; and violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging employee Peter Puhl. The Board also found, in agreement with the Admin- istrative Law Judge, that by April 13, 1976, the Union had secured valid authorization cards from a majority of unit employees and concluded that, be- cause of Respondent's unfair labor practices com- mencing on April 5, 1976, these cards were a more accurate measure of the employees' free and un- coerced desire on the issue of representation than an election would be. Accordingly. the Board agreed with the Administrative Law Judge that the circum- stances of the case warranted an order directing Re- spondent to recognize and bargain with the Union 2 and found that Respondent violated Section 8(a)(5) and (I) of the Act by refusing to do so. Thereafter, on August 28, 1978, the United States Court of Appeals for the Ninth Circuit issued a deci- sion 3 in which it granted enforcement of the Board's 230 NLRB 355 2 The Board modified te date of the hargaining order to the date f the Union's demand, April 19. 1976. 581 F.2d 215. 4 The 15 signatures referred to include those of ee Jacksourl Jonallthan E!ckert. Samuel (asson. and Sue Phillips. who testified at the hearing, and Ihose ,of I I emplosees whose anticpalted teinilon was stipul;ated to, h the pailihcs 240 NLRB No. 128 Order relating to the violations of Section 8(a)( 1) and (3) of the Act. The court, however, refused to ap- prove the bargaining order or to enforce the alleged 8(a)(5) violation of the Act, and remanded that por- tion of the proceeding to the Board with instructions to receive evidence regarding the circumstances sur- rounding the signing of 15 challenged authorization cards counted b the Board as valid 4 and to again examine the issue of whether or not the Union had a card majority at the time of its demand for recogni- tion. 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, having duly considered the issue out- standing in the light of the decision of the United States Court of Appeals for the Ninth Circuit re- manding the proceeding, and the statements of posi- tion on remand of the Charging Party, Respondent, and the General Counsel, has decided that the record contains insufficient evidence to enable it to de- termine the validity of the 15 challenged authoriza- tion cards. We shall therefore remand this proceed- ing to Administrative Law Judge Richard J. Boyce to take any additional evidence which the parties may wish to present as to the validity of the 15 cards in question and to thereafter issue a Supplemental De- cision in this matter.' ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to Administrative Law Judge Richard J. Boyce for further action, including re- opening the hearing for the limited purpose of allow- ing the parties to supplement the record regarding the circumstances surrounding the signing of 15 au- thorization cards and the preparation and issuance of a Supplemental Decision setting forth findings, in- cluding credibility resolutions if necessary, and con- clusions of law on the validity of the challenged cards, and that thereafter Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall apply to such Supplemental Decision. As the Administrative .aw Judge noted and the court implied. the stipu- latiion entered into by the parties as t}i the testimmonN of II of the card signers is of little meaning in the circumstances of this case. Accordingly. the B ard no longer accepts that stipulation