Continental Investment Co.

CONTINENTAL INVESTMENT COMPANY Continental Investment Company and Hotel-Motel. Cafeteria & Restaurant Employees Local 327 affili- ated with Hotel & Restaurant Employees and Bar- tenders International Union, AFL-CIO, Petitioner. Case 38 RC 2064 May 19. 1978 DECISION AND ORDER DIRECTING HEARING BY MEMBERS JENKINS, PENELtO. AND MURPIHY 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 the objections to an election held on March 31, 1977,' and the Regional Director's report recommending dispositon of same. The Board has reviewed the record in light of the exceptions and hereby adopts the Regional Direc- tor's findings and recommendations with respect to Petitioner's Objections I through II.' However. for the reasons hereinafter stated, we find that a hearing is required with respect to Petitioner's Objection 12. Concerning Objection 12, the Petitioner asserts in this objection that the Employer told employees that it would spend any amount of money and take any action necessary to prevent Petitioner from being chosen as the employees' bargaining representative. The record contains affidavit testimony by an em- ployee that a few days before the election he was told by his supervisor that if the employee "went union" the supervisor could have a whole new crew come in. In disposing of the objection. the Regional Director assumed, arguendo, that the statement was made and that it could be construed as a threat. IHowever, he concluded that, even on this basis, the conduct *would not warrant setting aside the election because it "was the only such statement made during a 2-month caim- paign involving some 240 employees. In our view, there is nothing isolated about a state- ment which, if made, can only he taken as a direct threat to fire a whole work crew if the Union were successful in the election. It is difficult to think of any statement which could be more destructive of the employees' free choice in the election. It matters little that the statement mav have been addressed to onl' one employee because it would be totall, unrealistic Ihe t ietitn was cnduclted pursuant to, a Slipulation fir (CI e lfi amtlln I pon ( onsent Elecci, n The 1alls' u, 34 for. andt 132 i:gaini. the Pen- honer: there ere were 17 challenged hillols. an insufficien nlinmbr I, affet lie results o I ,r the reasons set forth in our opls.ion. >e tind that a healrine in Petlltioer's Ob()ection II is nots arranted to assume that a threat of such a serious nature would not be conveyed to others, especially when their own job security was being jeopardized.3 There- fore, as the evidence with respect to Objection 12 raises substantial and material issues of fact and law which could warrant setting aside the election, we conclude that these matters must be resolved through a hearing. Accordingly, we shall direct that a hearing be held for the purpose of receiving evidence relevant to Ob- jection 12. We shall not. however, hold a hearing on Objec- tion I1. We are unable to construe as a threat the Employer's alleged statement to employees that at least one union had canceled its convention at the hotel because of threats by the Petitioner to call a strike of the employees, thereby harming the employ- ees' potential income. The first thing about his re- mark is that. whether true or false.4 it concerned a past event and its possible consequences as regards the employees' income: it did not refer to the future, as would a threat. Second. the statement referred not to an'y action which the Employer took, or might take, but to the conduct of a union over which the Employer clearly had no control. In N.L.R.B. v. Gis- scl Packing Co., 395 U.S. 575, 618 (1969). the Court defined a threat as "any implication that an em- ployer may or may not take action solely on his own initiative for reasons unrelated to economic neces- sities and known only to him." In short, then, be- cause the Employer's statement concerned a past event which the Employer had no power to affect for his own ends. it amounts at most to an inaccurate statement, not a threat. Such statements no longer form a basis for overturning an election. Shopping Aarlt Food MarA-et, Inc.. 228 NLRB 1311 (1977). ORDER It is ordered that a hearing be held before a duly designated hearing Officer for the purpose of receiv- ing evidcnce to resolve the issues raised by Petition- er's Objection 12. Il Is It RIIII R ORD)iERIED that the Hearing Officer designated for the purpose of conducting such hear- ing shall prepare and cause to be served on the par- ties a report containing resolutions of the credibility of witnesses. findings of fact. and recommendations to the Board as to the disposition of said objection. Within 10 dai's from the date of the issuance of such report. either party may file with the Board in Wash- ingtonn. D.C., eight copies of exceptions thereto. Im- See .ltiili',,mr i BIard & ( o I. l ri , iorated. 232 NLRB 848 t 19771 I'e ltlltler' i o hje titn alleted onlIs that the statement was false. not that iI o,.ltitlted .' threat 236 NL.RB No. 38 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediately upon filing of such exceptions, the party filing the same shall serve a copy on 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 mat- ter be, and it hereby is, referred to the Regional Di- rector for Region 13 for the purpose of conducting such a hearing, and that the said Regional Director be, and hereby is, authorized to issue notice thereof. MEMBER JENKINS. concurring in part and dissenting in part: I join with my colleagues in overruling Petitioner Objections 1 through 10. I also agree that Objection 12 raises issues which would best be resolved in a hearing, and I join in the part of the opinion that directs a hearing on this matter. However, I disagree with the majority's refusal to order a hearing on Ob- jection 11. In my view, this matter, like Objection 12, raises issues best resolved in a hearing. In Objection I 11, the Petitioner alleged that during a meeting conducted by the Employer with its em- ployees the Employer made the statement that at least one labor organization had canceled its conven- tion at the hotel because of threats by the Petitioner to call the employees out on strike, thereby harming the employees' income. The Union asserted that the true reason for the cancellation was that the hotel was nonunion. The Regional Director treated this matter as an alleged misrepresentation and, relying on the recent pronouncement by the Board in Shop- ping Kart Food Market, Inc., 228 NLRB 1311 (1977)., he concluded that such conduct does not warrant set- ting aside the election. Aside from my' general disagreement with the doc- trine espoused in the Shopping Kart decision,' I con- strue the aforementioned statement as a possible threat to the employees' job security. In other words, the employees were in effect told that support for the Union could result in a loss of business to the Em- ployer and, consequently, a loss of jobs among the unit employees. A statement of this type can be con- sidered unobjectionable only Cxhere the employer meets the burden of demonstrating that such is a rea- sonable foreseeable circumstance which is entirely beyond the employer's power to control. 6 There is no evidence that the burden was met in this case. In the majority's view, however. the Employer's statement concerned a past event and was therefore only relevant to employee income not realized as a result of the convention cancellation and that the See the dissenting opinions filed in that case by Chairman Fanning and me. t V 1. R B ' (;i el Pw'Aiwg C<,. 35 U. S. 575, 618 (1969) statement had no bearing on future income as would a threat. The majority further reasons that the state- ment referred to the conduct over which the Em- ployer had no control and, thus, it should not be deemed a coercive threat under the standards set forth in Gissel. I do not accept the position that the Employer's statement about the reason for the convention can- cellation referred only to a past event and that it was not suggesting the likelihood of similar cancellations in the future. The Employer told his employees that a union had canceled its plans to use the Employer's facilities because it feared strike activity by the Peti- tioner. This at least implies that other unions plan- ning to use the Employer's facility would also cancel for the same reason. This has the effect of telling the employees that support for the Union could result in a loss of business to the Employer and, consequently, a loss of jobs among the unit employees. This has direct bearing on employee income and, if, in fact, such a threat were made to employees, it would pre- dictably interfere with the employees' choice in the election. I also do not accept my colleagues' position that the Employer's statement referred to the conduct of a union over which the Employer had no control. It is true that the Employer had no ultimate control over whether the union would have canceled its plans to have its convention at Employer's facility or not. But that is not the issue. What is at issue is the Employ- er's statement implying that a reduction in the work force--a loss of jobs within the unit-would occur if the employees selected the Petitioner as their repre- sentative. Mere representation of employees by a union cannot be equated with the automatic likeli- hood of strikers and a subsequent loss of jobs. The Employer has the burden under Gissel of demon- strating the reasonable predictability of the dire con- sequences it portends will occur. The Employer has not even attempted to meet such a burden in this case and, in the absence of such evidence, I am un- willing to assume, as does the Employer and appar- ently also my colleagues, that the Union would act in a manner designed to reduce the job opportunities for the unit employees which it represents. The majority's holding that the Employer's state- ments referred to conduct of a union over which the Employer had no control does not address the real issue, and I cannot accept it. The Employer's asser- tion about cancellation of patronage and the reason therefor plainly had a tendency to influence the em- ployees' views concerning the desirability of union representation, and its truth or falsity is thus a mate- rial issue which can only be resolved by a hearing. I would direct a hearing on Objection II. 238