Lyon's Restaurants

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lyon's Restaurants, a wholly-owned subsidiary of Consolidated Foods Company and Hotel, Motel & Restaurant Employees & Bartenders Union, Local 50, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, Petitioner. Case 20-RC-13735 January 11, 1978 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on October 1, 1976, under the direction and supervision of the Regional Director for Region 20 among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that, of approximate- ly 36 eligible voters, 16 cast ballots for, and 11 cast ballots against, the Petitioner. There were six chal- lenged ballots, sufficient in number to affect the results of the election. l The Employer and the Petitioner filed timely objections to conduct affecting the results of the election. The Petitioner later withdrew its objections. Pursuant to Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, with due notice to the parties and afford- ing opportunities to present relevant evidence, the Regional Director conducted an investigation of the issues raised by the Employer's objections. On February 7, 1977, she issued and duly served on the parties her Report on Objections, in which she recommended that the Employer's objections to the election be overruled in their entirety and that an appropriate certification be issued. The Employer thereafter filed exceptions to these recommendations and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this case, including the exceptions and brief, the Board finds: I. 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. I The Regional Director, on November 24, 1976, issued a report on challenged ballots in which she recommended that one or the six determina- tive challenged ballots be opened and counted as the Employer had withdrawn its challenge to that ballot. On December 13, the Board adopted 234 NLRB No. 10 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(c) of the Act: All restaurant employees, including waitresses, waiters, bartenders, hosts, hostesses, kitchen em- ployees and bus persons employed at the Employ- er's Concord, California restaurant; excluding all office clerical employees, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report, the Employer's exceptions thereto, and the entire record in this case. While we adopt that part of the Regional Director's report not discussed herein, we agree with the Employer that certain conduct of the Petitioner, hereinafter described, requires that the election be set aside. We note that the Employer was a party to collective-bargaining agreements with Bartenders' and Culinary Workers' Union Local 595, a sister local of the Petitioner, from September 1967 to May 1, 1975. No collective-bargaining agreement existed thereafter, but the Employer voluntarily adopted the wage scale and made trust fund payments pursuant to a master agreement, which had been negotiated by an employer association with Local 595. At the same time, the parties continued to negotiate their own independent contract. In July 1976, Local 595 became defunct and Petitioner sought recognition in its stead. The Employer, however, refused to accord such recognition to Petitioner and only at that time ceased making dues deductions from the wages of the employees. Employees David Ellis and Kevin Allen indicate that employee Dorothy Radder, a union shop stew- ard, told them that if they did not join Petitioner they would not work. As a result of these statements, the employees joined Petitioner and paid an initial $58.50 in dues. No specific time was established for these statements to Ellis and Allen, but the Regional Director noted that Ellis and Allen paid their initiation fees on August 6, 1976, and August 12, 1976, respectively. The petition in this case was filed on August 25, 1976. The Regional Director found that any threats made to Ellis and Allen occurred prior to the filing of the petition and therefore could not serve as a basis for setting aside the election, the Regional Director's report and the ballot was opened and counted. A revised tally of ballots was then issued on December 27, showing 17 ballots for, and 11 against, the Petitioner. The remaining five challenged ballots were not then sufficient in number to affect the results of the election. 178 LYON'S RESTAURANTS citing The Ideal Electric and Manufacturing Compa- ny. 2 The Employer also contended that Petitioner com- mitted objectionable conduct during the election campaign by sending notices to employees which stated that if their dues were not paid up they would be subject to removal from their job. The notices received by some employees in September 1976, prior to the election, stated in part, that: Dear Member: This is to remind you that dues will be two months in arrears on the last day of this month. * * * s * You are also subject to removal from your job. Keep your union dues paid currently.... In rejecting this objection, the Regional Director found that, even assuming employees were not by this time aware of the Employer's refusal to recog- nize Petitioner and the lack of any agreement compelling union membership, only one employee received such a notice and this would not likely have had any impact on the election or on employee support for Petitioner. With respect to the prepetition comments made to employees Ellis and Allen that they had to join the Petitioner or they would not work, it is clear that these comments were the catalyst which propelled the two employees to sign authorization cards for Petitioner. The statements made by Petitioner's representative were false and were related to the serious topic of the employees' job security. We note that the resultant signing of authorization cards and apparent support of Petitioner may well have given an impression of support to other employees during the election campaign, akin to that the Board discussed in Gibson's Discount Center, A Division of Scrivner-Boogaart, Inc.,3 where the Board was con- fronted with the issue of the effect of union prepeti- tion offers to waive initiation fees in contravention of the Supreme Court's decision in N.L.R.B. v. Savair Manufacturing Co.4 The Hearing Officer there had applied the standard of Ideal Electric, supra, and had 2 134 NLRB 1275 (1961). 3 214NLRB 221 (1974). 4 414 U.S. 270(1973). 5 214 NLRB at 222, fn. 3. 6 Our dissenting colleague indulges in a bit of hyperbole in asserting that "almost any" prepetition threat by a union could be construed as an improper inducement to sign a card or as creating a false impression of union strength, and again in asserting that "almost any" prepetition employer threat against union activity or any promise proscnbed by Sec. 8(a)(1) could be held to restrain the signing of cards and give rise to a false impression that the union lacks strength. We are of course speaking only of union threats in the context here: against a backdrop of an expired union- found that, as the alleged misconduct occurred before any petition was filed, it could not serve as a valid objection to the election. We reversed the Hearing Officer as we noted that most solicitations to sign authorization cards occur prior to the filing of a petition. Thus, if the Savair rationale was to have any practical effect, we concluded that it had to apply to prepetition statements as well as to postpetition statements. While we also indicated in Gibson's Discount Center that our decision there was not intended to indicate "any broad departure from the Ideal Electric rule," 5 we conclude here that the setting of this case is sufficiently similar to that of Gibson's Discount Center so as to require that an exception to the Ideal Electric rule be made here, also. For, as in Gibson's Discount Center, the Petition- er has solicited its authorization cards on the basis of a proscribed statement which, in light of the prior bargaining history between the Employer and a sister local of Petitioner, and the length of time the Employer continued to deduct dues, i.e., until I month before the instant petition, the employees may well have believed Petitioner could have carried out. We also reject the Regional Director's overruling of the Employer's objection based upon the dues delinquency notices sent out by Petitioner. First, we note that not one but at least two employees indicated that they had received such notices. Fur- ther, according to one employee's affidavit a number of other employees also received these notices. The notices stated that employees who were members of Petitioner were "subject to removal" from their jobs for dues delinquency. Given the prior bargaining history between the Employer and Petitioner's sister local and given the length of time during which the Employer continued to deduct dues, such threats carried a sufficient ring of plausibility to have interferred with the election. Accordingly, based on Petitioner's various threats of job loss made to the employees prior to the election which the employees could reasonably have believed Petitioner was capable of carrying out in the circumstances of this case, we find that the election conducted herein should be set aside and that a second election should be held.6 security clause of a sister local, with checkoff by the Employer having continued for more than a year after contract expiration, until shortly before a petition filed by another local of the same International. Thus, the context in which the prepetition threats were made to procure cards, as well as the postpetitien "warnings" advising that 2 months' dues wre owing and "you" are subject to removal from your job, were necessarily confusing to unit employees. Not only does our colleague take the unrealistic view that the threats to Ellis and Allen, despite timing are "wholly unrelated to the Union's organizing efforts," but whether or not the lack of a viable union-security clause was well understood by employees, she concludes that there was little or no chance of the Union's carrying out its admonition about job removal, (Continued) 179 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is hereby ordered that the election conducted herein on October 1, 1976, be, and it hereby is, set aside. [Direction of Second Election omitted from publi- cation.]7 MEMBER MURPHY, dissenting in part: The Regional Director found all of the Employer's objections to be without merit and recommended that an appropriate certification issue. My col- leagues, however, find merit to certain of the Em- ployer's objections and direct a second election. I agree with the Regional Director's results and believe that my colleagues err to the extent they do not accept her recommendations. The first allegedly objectionable matter here in dispute concerns a statement by Union Steward Radder to employees Ellis and Allen that they could not work if they did not join the Union. This statement was made several weeks prior to the filing of the petition and the Regional Director relying on our decision in Ideal Electric and Manufacturing Company8 concluded that the threat did not warrant setting aside the election which the Union had won. My colleagues contend, however, that the statement here in question comes within the exception to Ideal Electric set forth in Gibson Discount Center9 and thus requires setting the election aside. But the Gibson exception on the face of that decision is not applica- ble to the prepetition threat now before us and should not as a matter of sound policy be applied to such a threat, especially not for the reasons set forth in the majority decision. Gibson established as an exception to the Ideal Electric rule that "a prepetition offer to waive initiation fees in contravention of Savair, it is ground for setting aside an election."' 0 The Board empha- sized in that decision that it reached its result not only because of the "unique circumstances con- nected with prepetition waivers, but also because of the Supreme Court's holding in Savair." We are, of and no interference by such a threat. The obvious relationship at the International level between the defunct local and the petitioning local, plus continuation to all outward purposes of the contract expired in 1975, including wage rates and fringe benefits as well as dues deductions, in our view constitutes a most unusual situation with respect to the plausibility of union threats of job loss. The waters here were definitely muddied. In truth it seems to us that it is our colleague who speculates by saying that no harm was done and that the postpetition warnings complained of might as easily have produced a no-union vote. The laboratory standards for elections which the Board seeks to uphold were not, in our opinion, present. I [Excelsior footnote omitted from publication.] s 134 NLRB 1275 (1961). In Ideal Electric the Board held that the "date of filing of the petition ... should be the cutoff time in considering alleged objectionable conduct in contested cases." 134 NLRB at 1278. 9 214 NLRB 221 (1974). lo Id. ii In Gibson the Board was concerned with alleged statements by union course, not concerned here with the unique circum- stances of a prepetition waiver of initiation fees or with Savair. Thus, the two essential elements of Gibson are absent and the exception of that case is certainly not otherwise obviously applicable to the matter before us. The majority seeks to avoid these differences by arguing that the present situation is similar to that in Gibson and, thus, warrants application of the excep- tion. It seeks to support this conclusion on the ground that Radder's threat, like the promise in Gibson, amounted to improper solicitation of authori- zation cards and would if successful create an improper and false appearance of union support during the election campaign," consequences the Gibson exception was assertedly intended to avoid. But almost any union prepetition threat could be construed as an improper inducement to sign an authorization card or as creating an erroneous impression of union strength and thus arguably would come within the exception. Furthermore, almost any prepetition employer threat against union activity or any promise proscribed by Section 8(a)(l) could likewise be held to restrain employees from signing authorization cards and to give rise to a false impression of lack of union strength. Thus, by a parity of reasoning, such threats and promise too would seem eligible for the Gibson exception. It, therefore, seems to me that the majority position, if not yet a "broad departure from the Ideal Electric rule" which the Board specifically precluded as flowing from its Gibson decision, is surely a long step in that direction. And it is a step likely to create only confusion and litigation with respect to just what conduct is or is not barred by Ideal Electric. The exception is, therefore, on its way to swallowing the rule, and the result here is in part a reversal of Ideal Electric. Gibson should be left where it was-limited to the Savair-type prepetition waiver of initiation fees, and the conduct here complained of should be found barred from consideration by Ideal Electric, as the Regional Director held. agents explicitly to the effect that initiation fees would be waived if the employees signed authorization cards. The Board noted that usually such an offer would only be made prepetition when a union was trying to acquire cards for an adequate showing, and thus concluded that the only way to reach such Savair proscribed conduct was to waive as to it the Ideal Electric rule. The majority here, in attempting to make plausible its application of the Gibson exception, states that the "Petitioner has solicited its authoriza- tion cards on the basis of a proscribed (i.e., Radder's) [threat " and otherwise makes reference to authorization cards. But there is no showing that Radder's threats were a part of the Union's organizational drive and intended to secure authorization cards for the Union. All Radder said was the employees had to join "now," which was apparently several weeks before the petition was filed. Further, a fair reading of the statements of the employees affected-Ellis and Allen-strongly suggests that Radder was more concerned in making her threats with enforcing a no-longer applicable union-security clause than with securing an adequate showing of interest for a petition. The facts of this case just do not fit the Gibson exception. 180 LYON'S RESTAURANTS The second matter which my colleagues find objectionable concerns notices sent to some employ- ees by the Union after the petition was filed but prior to the election. The notices informed the member- employee that his dues would be 2 months overdue at the end of the month and warned that the employee was subject to removal from his job. There was at the time no applicable union-security clause and hence little or no chance of the Union's carrying out such a warning. Nevertheless, my colleagues conclude that in view of the background circum- stances the threat of discharge "carried a sufficient ring of plausibility to have interfered with the election." Assuming that the employees were una- ware there was no union-security clause in effect and that such a threat of discharge was plausible, I fail to see how or why it would have interfered with the election. Surely my colleagues' bare assertion that it would is scarcely any explanation at all, much less an adequate one. Actually there are no good grounds for concluding the threat might reasonably have affected the election for, aside from a coincidence in 12 See Bancroft Manufacturing Company, ct al., 210 NLRB 1007, 1014 (1974); Rio de Oro Uranium Mines, Inc., 120 NLRB 91, 94 (1958). time, it was wholly unrelated to the Union's orga- nizing efforts and the election. Thus, for example, the employees were not threatened with discharge if they refused to sign a union authorization card, or if they did not vote for the Union, or if the Union failed to win the election. Rather, if one wishes to speculate here-and the substance of the majority position is nothing more than speculation-the threat would seem to be one that would just as likely undermine as enhance employee support for the Union. Certainly, the threat would appear to be far less likely to affect the election than threats of discharge for failing to support a union which have been found by this Board not to constitute objectionable conduct.1 2 In short, I find no basis for my colleagues' conclusion that the notice to employees constituted such con- duct. In view of all the foregoing, I would, as stated above, adopt the Regional Director's report in its entirety and certify the Union as the collective- bargaining representative of the employees who voted to be thus represented. 181