San Francisco Hosts, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Francisco Hosts, Inc. and Freight Checkers, Clerical Employees & Helpers, Local No. 856, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 20 RC 14265 March 23, 1979 DECISION AND ORDER BY CHAIRMAN ANNIN(i ANI) MEMBERS PENEI.I.O AND TRtESDAI.E Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered objections to an elec- tion held June 24 and July 1, 1977., and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Regional Director's findings and recommendations, as modi- fied herein.2 In its Objection 2, the Employer alleged that, shortly before the election herein, union representa- tives made a substantial misrepresentation in the presence of eligible voters and under circumstances which precluded the Employer from having an ade- quate opportunity to reply. In overruling this objec- tion, the Regional Director-relying solely on the policy set forth in Shopping Kart Food Market, Inc., supra-found that such allegations of misrepresenta- tion cannot serve as a basis for setting aside an elec- tion. However, in General Knit of California, Inc., su- pra, which issued on December 6, 1978, the Board (Members Penello and Murphy dissenting) overruled Shopping Kart "and returnled] to the standard of re- view for alleged misrepresentations most cogently ar- ticulated in Hollywood Ceramics Company, Inc. '" Therefore, as there has been no investigation of the Employer's Objection 2 under Hollywood Ceramics standards, the Board, having duly considered the matter, is of the opinion that Objection 2 raises an issue which requires further investigation at the re- gional level. Accordingly, we shall remand this case IThe election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was 35 for and 21 against the Petitioner: there was I oid ballot and no ballots were challenged. 2 We agree with the Regional Director's recommendation that Objection I he overruled because of the Employer's failure to submit probative support- ing evidence. However, we disavow her comment relative to the policy set forth in Shopping Kart Food Market, Inc. 228 NLRB 1311 (1977). For, subsequent to the issuance of the Regional Director's report, that case was o.serruled in General Knit o (California. nc. 239 NLRB 619 (1978). With respect to all the objections, save Objection 2. the Employer's exceptions raise no material or substantial issues of fact or law which would warrant reversal ol the Regional Director's recommendations or require the holding of a hearing. 140 NLRB 221 1962). to the Regional Director for a supplemental report on objections which may, at her discretion, be based on a further investigation or a hearing. In the event that a hearing is conducted, the designated Hearing Officer shall prepare a report which will serve in lieu of the Regional Director's supplemental report. The supple- mental report on objections or hearing officer's report shall make recommendations concerning whether the alleged material misrepresentations constitute a sub- stantial departure from the truth which may reason- ably have been expected to have a significant impact on the election under the standard set forth in Holly- wood Ceramics, supra. ORDER It is hereby ordered that the above-entitled matter be, and it hereby is, remanded to the Regional Direc- tor for a supplemental report on objections, which may, at her discretion, be based on a further investi- gation or a hearing. In the event that a hearing is conducted, the designated hearing officer shall pre- pare a report which will serve in lieu of the Regional Director's supplemental report. Such supplemental Report on Objections or hearing officer's report shall contain recommendations concerning whether the al- leged statements by the Union set forth in Objection 2 were made and, if so, whether they constitute objec- tionable conduct warranting the setting aside of the election previously conducted herein. IT IS FURTHER ORDERED that the hearing officer des- ignated for the purpose of conducting any hearing pursuant to this Order shall prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings of fact, and recom- mendations to the Board as to the disposition of said objections. Within 10 days from the date of issuance of such report, either party may file with the Board in Washington, D.C., eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the hearing offi- cer. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for Region 20 for the purpose of conducting such further investigation or hearing as she may find necessary and that the said Regional Director be, and hereby is, authorized to issue notice of any such hear- ing. MEMBER PENELLO, dissenting: Contrary to my colleagues, I would not remand this case for further investigation or a hearing with 241 NLRB No. 53 356 SAN FRANCISCO HOSTS, Inc. regard to the misrepresentation allegations set forth in Employer's Objection 2. Rather, I would adopt the Regional Director's report, overrule the Employer's objections in their entirety, and certify the Union as the exclusive bargaining representative of the employ- ees. The Union won the election which was held 1-1/2 years ago on June 24 and July 1, 1977. Thereafter, the Employer filed 12 objections. With regard to Objec- tion 2, the facts found by the Regional Director are essentially the same as those alleged by the Employer. Specifically, the Regional Director's investigation re- vealed: that at a union meeting held for employees on June 22, there was a discussion concerning the fact that employee Edigia Garro was shown on the Excelsior list [Excelsior Underwear, Inc., 156 NLRB 1236 (1966)], supplied by the Employer, as having been terminated on June 10. State- ments were made at the meeting to the effect that she had been terminated for her union activity. In fact. Garro had been granted a leave of ab- sence for 75 days by the Employer and she had been mistakenly shown on the Excelsior list as terminated. At the pre-election conference held a half-hour before the opening of the polls on June 24, the Employer's attorney requested the Board agent's permission to allow the Employer to post a letter from the Employer's president explaining that employee Garro had not been terminated. . . .The Board agent erroneously told the Em- ployer that the posting of the letter might cause the election to be set aside if the Petitioner lost. The Employer did not post the letter. In my dissenting opinion in General Knit of Califor- nia, Inc., 239 NLRB 619 (1978), I stated that I con- tinue to adhere to the sound principles of Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977). As- suming the truth of the facts alleged by the Employer and found by the Regional Director, I believe that the Regional Director properly concluded that this objec- tion should be overruled on the basis of Shopping Kart. Thus, under Shopping Kart, it is clear that any misstatement made by a union representative con- cerning employee Garro would not constitute objec- tionable conduct. With regard to the Board agent's remarks, they are certainly regrettable, but the Re- gional Director correctly found that they do not ne- cessitate the holding of a second election. For, inas- much as Shopping Kart teaches that the alleged union misrepresentation in issue here did not affect the elec- tion results, the Employer cannot be said to have been prejudiced by the fact that it did not reply thereto. In fact, the only prejudice or hardship evident in this case has been borne not by the Employer, but by the employees, who have been waiting since July 1977 for collective bargaining to begin. I would not subject them to any further delays. For the reasons stated above, I would certify the Union now. 357