KFC National Management Co.

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD KFC National Management Company and Barten- ders, Hotel, Motel, Cafeteria and Restaurant Em- ployees Union, Local 116, AFL-CIO. Case I- CA-8656 October 24, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 29, 1973, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding,' finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended, and ordering Respondent to cease and desist therefrom and take certain affirmative ac- tions to remedy such unfair labor practices. Thereafter, the Respondent filed a petition with the United States Court of Appeals for the Second Circuit for review of the Board's Order. The Board filed a cross-petition for enforcement and, subse- quently, at the request of the court filed supplemen- tal material. On May 8, 1974, the court granted the Respondent's petition for review, denied the Board's cross-petition for enforcement of the Order, and re- manded the case for consideration of the Respondent's request for Board review of the Re- gional Director's representation decision.' The Board decided to accept the remand. In remanding, the court reviewed the Board's procedures for review of the decisions by Regional Directors, found the dele- gation to staff assistants in this case to be too broad, and concluded the Board Members themselves must make the final decisions on whether or not to grant review.' Thereafter, on July I, 1974, the Respondent filed a supplemental response on remand from court of appeals. 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.4 '204 NLRB 630. 2 KFC National Management Corp. v. N.L.R.B., 497 F.2d 298 (C.A. 2, 1974). 3 In the latter part of 1973, the Board revised its procedures so as to assure the personal participation of the Board Members in all final decisions on whether or not to grant review. The Respondent requests that the full Board consider its request for review, as supplemented herein. It is customary Board policy for the same panel, which decided the case originally , to pass upon any subsequent mat- ters therein and as none of the original panel Members has requested full Board consideration , the request is denied . See Enterprise Industrial Piping Company, 118 NLRB 1 (1957). In the underlying representation case, I-RC- 1 1692, the Regional Director issued a Third Supple- mental Decision on Objections and Certification of Representative in which, inter alia, he denied a hear- ing on the Respondent's objections to the election because no substantial and material issues were raised, overruled the objections in their entirety, and certified the Union. Subsequently, the Respondent's timely petition for review of the Regional Director's decision was denied as it raised no material issues warranting review. Thereafter, the Respondent's mo- tion for reconsideration of the request for review and for a hearing on its objections was denied as lacking in merit. In its supplemental response the Respondent (1) reiterates the contentions in its request for review, especially with respect to supervisory support of the Union and incorporates by reference parts 11 and III of its brief to the court in the enforcement proceed- ing; (2) contends that the court's remand nullified all intervening proceedings subsequent to the filing of the request for review and therefore the Board must consider the request for review as if it were presently pending in the representation proceeding, and (3) al- leges alternatively that a new election be conducted pursuant to its petition in Case 1-RM-909 filed on June 27, 1973, because almost 100 percent of the em- ployees on the eligibility list at the time of the second election on June 16, 1972, are no longer working for the Respondent, and the present complement of em- ployees should have the opportunity to express their desire on union representation. In accordance with the court's remand, we have reexamined and reconsidered, de novo, the Respondent's request for review, as supplemented in the supplemental response, of the Regional Director's Third Supplemental Decision on Objec- tions and Certification of Representative. The Re- gional Director issued his Third Supplemental Deci- sion after investigating the Respondent's objections to the election and considering the testimony of the Respondent submitted in support of its objections and the pertinent Board precedents. In Objection 1, the Respondent alleged that a representative number of voters had not participated in the election and that eligible voters may have been subjected to improper influences. The Regional Director found that the vote was representative in that 57 percent of the eligi- ble voters cast ballots in the election and therefore no hearing was warranted and that the Respondent of- fered no evidence to indicate that any employee was unfairly prevented from exercising his right to vote or to support its improper influence contention. Ac- cordingly, he overruled the Objection 1. 214 NLRB No. 29 KFC NATIONAL MANAGEMENT CO. 233 As to Objection 2, dealing with the alleged pro- union advocacy by two supervisors, the Regional Di- rector considered the testimony offered by the Re- spondent from several employees and two store man- agers who were supervisors. According to the Regional Director's Third Supplemental Decision, the evidence indicated that Supervisor Roberson ad- vised employees that (1) he had requested the repair of a walk-in refrigerator and a 10-percent wage in- crease and (2) they were to receive a breadtable to help them. However, the refrigerator was never re- paired and the wage increase and breadtable were not forthcoming. The Respondent claimed it was not notified of these statements and promises by Rober- son and that they allegedly were intended to influ- ence the employees to vote for the Union. The Re- spondent, however, offered no evidence to support the latter claim. There was also evidence of conversa- tions between Supervisors Roberson and Owens, in which the former allegedly attempted to have the lat- ter support the Union. There was no indication, how- ever, that the conversations occurred in the presence of any eligible unit employees. The Respondent also submitted to the Regional Director evidence by Supervisor Drumm to the effect that employees had approached him and related to him that Supervisor Barry had, in several different ways, urged them to vote for the Union. According to the Regional Director, although one employee tes- tified he had never heard Barry make prounion state- ments or urge a vote for the Union and although another employee stated that Barry had suggested that a union would be of no use, there was evidence that Barry subsequently told these two employees that they should vote for the Union because the Re- spondent was "always on his back" regarding the employees' work. Further, an employee stated that Barry had also told him, "it's up to you" if you want to vote for the Union. The Regional Director also found that the Respon- dent had sent several letters to the homes of all eligi- ble employees indicating its opposition to the Union. Further, the Respondent had each store manager, in- cluding Supervisors Barry and Roberson, post a statement of opposition to the Union under their own signatures. In addition, the Respondent con- ducted three meetings of supervisors cautioning them to be neutral and not to express their individual pref- erence concerning the Union. In all these circum- stances, the Regional Director found, inter dlia, that (a) the Respondent had made known to employees its sentiments concerning the Union through mail- ings and postings, thereby precluding any mistaken belief that the supervisors were acting on behalf of the Respondent; (b) the supervisors' behavior fur- nished no reasonable basis for the creation of a fear of future retaliation in any employee's mind; and (c) the participation of the two supervisors in the Union's election campaign was incidental at best. Accordingly, he overruled the objections in their en- tirety and denied the Respondent's request for a hearing on the supervisory participation issue be- cause no substantial and material issues were raised and certified the Union as the collective-bargaining representative of the unit employees. In its request for review, the Respondent again raised the issue of supervisory involvement in the Union's election campaign and the Regional Director's failure to consider the issue of the Union's interference with the conduct of his investigation and the failure to conduct a hearing on these matters. As indicated above, the Respondent has incorporated into its supplemental response portions of its brief to the court in the enforcement proceedings concerning the prounion supervisory activity and we have also considered the brief in reaching our decision herein. Under Section 102.67(c) of the Board's Rules and Regulations, Series 8, as amended, the Board will grant review only where one of the following compel- ling reasons exists: (1) A substantial question of law or policy is raised because of (a) the absence of, or (b) a depar- ture from, officially reported Board precedent. (2) The Regional Director's decision on a substan- tial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party. (3) The conduct of the hearing or any ruling made in connection with the proceeding has resulted in prejudicial error. (4) There are compelling reasons for reconsidera- tion of an important Board rule or policy. After careful reexamination of the Respondent's request for review, as supplemented, we find that it does not reveal that the Respondent has presented any one of the compelling reasons for granting re- view. In its request for review, the Respondent con- tends that the Regional Director's decision to over- rule its objections, particularly that pertaining to su- pervisory involvement in the Union's election campaign, and his denial of a hearing thereon was a departure from Board precedent and policy since substantial and material issues of both fact and law had been raised thereby which should have been re- solved at a hearing. We do not agree with the Respondent's contention. As detailed above, the Re- gional Director considered the evidence presented by the Respondent and disclosed by his investigation concerning the prounion participation of Supervisors Roberson and Barry in the election campaign and 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded that, in all the circumstances including the notification to all employees and their awareness of the Respondent's opposition to the Union, this parti- cipation was "incidental at best" and that the Respondent's objections raised no substantial and material issues warranting or requiring a hearing. Whether or not a hearing should have been conduct- ed depends solely on the evaluation of the evidence before the Regional Director. Since it is our opinion that the Regional Director's conclusion based on this evaluation of the evidence was not clearly erroneous on the record before him and therefore not inconsis- tent with Board precedent and policy, this dis- agreement between the Respondent and the Region- al Director as to the evaluation of evidence does not warrant granting the request for review. In its request for review, the Respondent adverted to the fact that the Regional Director failed to con- sider the issue of the Union's alleged interference with his investigation of the objections by conduct allegedly calculated to interfere with Board processes and supporting the allegations of supervisory in- volvement. The evidence presented to the Regional Director showed that, at a postelection union meet- ing, a union official (1) praised Supervisor Roberson, but criticized other supervisors; (2) discussed the election and advised that there would be an investi- gation of the Respondent's objections; and (3) invit- ed several employees to read the transcript of the hearing on objections to the first election so as alleg- edly to protect Roberson from discipline. The fact that the Regional Director's Third Supplemental De- cision made no reference to this alleged interference with Board processes does not establish, in our view, that there was no consideration of such allegation but merely indicates that the Regional Director de- cided that there had been no interference with the extent and adequacy of his investigation, and that the evidence did not support the Respondent's objec- tions. In any event, we do not believe that the alleged conduct if it occurred constituted interference of such a nature as to interfere with the Board processes or that it supports the validity of the Respondent's supervisory involvement objection. Accordingly, we deny again the Respondent's re- quest for review as not raising substantial issues war- ranting review of the Regional Director's decision 5 in which he denied the Respondent's request for a hearing on its objections, overruled the objections in their entirety, and certified the Union. As indicated above, the Respondent's supplemen- tal response in the instant proceeding raises two ad- ditional contentions. In the first instance, the Re- spondent argues that the adjudication of the request for review must be made in the representation case. We find no merit in this argument. Under Section 9(c) of the Act, the record in the underlying represen- tation proceeding has been made a part of the subse- quent unfair labor practice herein and the Board and the courts have treated the two proceedings as one. Thus, it is well settled, under Board and court law, that the adjudication of representation case issues can properly be made, as herein, in the subsequent 8(a)(5) unfair labor practice proceeding without sub- stantial prejudice to the Respondent's rights.6 In the second place, the Respondent alternatively contends that a new election be held under its representation petition in Case 1-RM-909 because of alleged em- ployee turnover. We find no merit therein.' In the recent Holly Farms decision, the respondent therein asserted, as a defense to a refusal to bargain, that less than one-third of the employees eligible to vote in the election were currently employed and the remaining employees did not wish the union to represent them. In finding that this assertion did not constitute a val- id defense to a refusal to bargain, the Board found that this assertion did not constitute "special circum- stances" under the Supreme Court decision in Ray Brooks 8 warranting an attack on the union's conclu- sively presumed majority status for the year after cer- tification. Further, the Board stated that it would be anomalous to permit the respondent to "benefit from a lapse of time, emanating from litigation of its ob- jections, for which the Respondent is itself responsi- ble." Similarly, as the Respondent herein is responsi- ble for the litigation of the representation case issues herein, not only should it not benefit from the lapse of time caused thereby, but the Union and employ- ees should not be penalized for such delay for which they cannot be faulted. Accordingly, we reaffirm our original finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the certified Union as its exclusive representative of the employ- ees in the appropriate unit. 6 Graphic Arts Finishing Co., Inc., 182 NLRB 318 (1970); N. L. R. B. v. Baia Shoe Company, Inc., 377 F.2d 821 (C.A. 4, 1967); see also N.L.R.B. v. Dallas City Packing Company. 251 F.2d 663 (C.A. 5. 1958). 5The Respondent did not specifically request review of the Regional Holly Farms Poultry Industries, Inc., 189 NLRB 663 (1971); see also Director's overruling Objection I which related to a lack of a representative N.L.R.B. v. L B. Foster Company, 418 F.2d I. 5 (C.A. 9, 1969), cert. denied complement participating in the election. In any event, we have considered 397 U.S. 990; N.LR.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1091, that objection and agree with the Regional Director and also find that no (C.A. 8. 1969). hearing was required or warranted thereon. 8 Ray Brooks v. N.LR.B.. 348 U.S. 96 (1954). KFC NATIONAL MANAGEMENT CO. 235 ORDER lations Board hereby affirms as its Order the Order heretofore entered in this proceeding on June 29, Pursuant to Section 10(c) of the National Labor 1973. Relations Act, as amended, the National Labor Re-