Smuggler's Inn

SMUGGLER'S INN 151 Associated Hosts of California, Inc. d/b/a Smuggler's Inn and Minneapolis Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders Locals 152, 458 and 665, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Cases 18-CA-4324 and 18-RC- 10183 September 8, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his find- ings. s Chairman Murphy and Member Penello agree with the Administrative Law Judge's finding that Respondent , through Operations Officer Sand- bloom, did not unlawfully attempt to acquire a uniform cleaning allowance for the waiters. The record indicates that Sandbloom stated that such an allowance was something which they-the waiters-could look into; not something which he would look into. DECISION STATEMENT OF THE CASE On April 14, 1975, Administrative Law Judge John P. Von Rohr issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, General Counsel filed a cross-ex- ception and a supporting brief, and Respondent filed a brief in reply to General Counsel's cross-exception. 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 has considered the record and the at- tached Decision in light of the exceptions' and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent Associated Hosts of Califor- nia, Inc., d/b/a Smuggler's Inn, Blaine, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER JENKINS, concurring: I agree with the violations found by the Adminis- trative Law Judge. However, in accordance with the views set forth in my dissenting opinion in Uarco In- corporated, 216 NLRB No. 2 (1975), I would find that Respondent violated Section 8(a)(1) of the Act by conducting the meetings on September 7 and 14, 1975, regardless of whether Respondent specifically pledged itself to remedy its employees' complaints. I Respondent and the General Counsel have excepted to certain credibili- ty findings made by the Administrative Law Judge. It is the Board's estab- lished policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on September 24, 1974, the General Counsel of the National Labor Relations Board, for the Regional Di- rector of Region 18 (Minneapolis, Minnesota) issued a complaint on November 7, 1974, against Associated Hosts of California, Inc., d/b/a Smuggler's Inn, herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. This case was consolidated with a proceeding involving objections to conduct affecting the results of an election. The Respondent filed an answer de- nying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Adminis- trative Law Judge John P. von Rohr in Minneapolis, Min- nesota, on January 7, 1975. Briefs were received from the General Counsel and the Respondent on February 11, 1975, and they have been carefully considered. Upon the entire record in this case , and from my obser- vations of the witnesses, I hereby make the following:' FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a California corporation engaged in the operation of restaurants in various States of the United States. Its restaurant located at Blaine, Minnesota, is the only facility involved in this proceeding. During the year preceding the hearing herein, Respondent's total retail sales at its Blaine facility were in excess of $500,000. Dur- ing this period, the Respondent purchased goods valued in excess of $50,000 which were shipped to its Blaine facility from points located outside the State of Minnesota. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I In view of Respondent's objection, the General Counsel's motion to correct the transcript is denied. 220 NLRB No. 33 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Minneapolis Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders Locals 152, 458, and 665, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue The allegation in the complaint which gives rise to the issue herein is that in September 1974, Respondent "solic- ited, adjusted and/or agreed to adjust employee grievances in order to discourage employees' union sentiments and desires," all alleged to be in violation of Section 8(a)(1) of the Act. B. The Facts Pursuant to a petition filed on August 12, 1974, and a Stipulation for Certification Upon Consent Election signed by the parties and approved by the Regional Director on August 23, 1974, a Board-conducted election was held on September 18, 1974, among Respondent's employees in the appropriate collective-bargaining unit as follows: All regular full-time and regular part-time food service employees, busboys, dishwashers and helpers, barten- ders, waiters, waitresses, and hostesses at the Employer's Blaine, Minnesota establishment ; exclud- ing office clerical employees, casual employees, the manager, the assistant manager, guards and supervi- sors as defined in the National Labor Relations Act, as amended. The Union lost the election by a vote of 20-15. Thereaf- ter, on September 24, 1974, the Union filed timely objec- tions to conduct affecting the result of the election. Of three objections thus filed, Objections 2 and 3 were over- ruled by the Regional Director, with a part of Objection 1 being the subject of the objections part of this proceeding. Respondent opened its restaurant in Blaine , Minnesota, in the fall of 1973. The manager is Mark Laughlin, who assumed this position shortly after the opening and re- mained in that capacity at all times material hereto. The record reflects that since January 1, 1974, and continuing until sometime after September 14, 1974, Laughlin held daily meetings of about 15 minutes with all of the waiters and waitresses. Although these meetings were primarily of an instructive nature, the employees from time to time were given the opportunity and exercised the occasions to voice their various complaints. The situation giving rise to the instant litigation arose out of meetings between management and the restaurant waiters which were held on September 7 and 14, 1974. Sev- eral days earlier the employees were informed by Laughlin, as well as by a posted notice, that Paul Sandbloom, Respondent's vice president of operations, would be com- ing from Los Angeles to speak to all employees. Sand- bloom, who never before had met with the employees, did appear and held individual meetings with various groups of employees in different job categories on the dates indi- cated. However, the only meetings concerning which the General Counsel adduced were the ones held with the wait- ers. The September 7 meeting was held at 4:30 p.m., lasted from about an hour and a half to 2 hours, and was attend- ed by approximately 10 employees. It is undisputed that, following an introduction by Laughlin, Sandbloom pro- ceeded to explain a change in the Company's pay system, following which he distributed checks to the employees representing backpay due them pursuant to the direction of the Minnesota Department of Labor. Although the change in the payroll system and the distribution of the backpay checks at the meeting were included in the Union's objec- tions to the conduct of the election, the Regional Director overruled these objections on the ground that this resulted from the administration and enforcement of the Minnesota State law and the Respondent's required compliance there- with? Accordingly, and although this subject took up ap- proximately the first half of the meeting, this matter is not at issue herein. Following the subject noted above, Sandbloom men- tioned that it was no secret that the election was coming up. He thereupon gave a short talk explaining the Company's viewpoint, mentioning that it was important for everyone to vote; that the signing of an authorization card did not require an employee to vote for the union; that the employees vote the way they felt best; and that although the Company would be required to bargain with the Union if the Union won, that this did not mean that the Company was necessarily required to sign a contract im- mediately. However, Sandbloom did not engage in any dis- paragement of the Union. Indeed, responding to a question from one of the employees if he were against the Union, he assured the employee that he "wasn't against the Union." 3 It is undisputed that, at Sandbloom's behest, the approx- imate last half of the meeting was thrown open to a discus- sion of the employees' problems and complaints. On this point Sandbloom testified as follows: I made it a point with the waiters that if there was any question they had to the upcoming election, pertaining to the way the company operates, pertaining to the way the unit is being managed, that, feel free to ask any questions at that time, that if possible, I will an- swer them but that in no way can I make any prom- ises. Proceeding to the complaints raised by the employees at this time, one of the first was voiced by Michael Bader, a 2 As to the backpay checks, the Regional Director further found that "the employees were full aware of the circumstances of the payment " Testimony of employee Daniel Stelzner. SMUGGLER'S INN 153 waiter who complained that the waiters in the Company's St. Paul restaurant were being paid $1.60 per hour whereas they, the waiters at the Blaine restaurant, were being paid $1.40 per hour. According to Bader, Sandbloom responded that this was because the St. Paul operation was more prof- itable. Sandbloom also stated, however, "Besides that the union would infer that as a raise we would be subject to preelection violation and we could forfeit the election." 4 The employees then raised a question concerning the Company's reasons for having discharged a waiter and a bartender. It appears that some appropriate response was made thereto. One of the employees mentioned that a union contract would provide the employees with 5 cents an hour to have their uniforms cleaned. Employee Dan Stelzner testified that Sandbloom responded by saying "if you need five cents an hour for uniforms, that could be taken care of." I do not credit this testimony. Rather, I credit Sandbloom who testified that when the subject of uniform reimbursement was brought up, he responded only to the effect that he might look into the situation .5 Except for the subject of busboys, which I turn to now, the record is clear, and I find, that whatever other com- plaints were raised by the employees at the September 7 meeting, neither Laughlin nor Sandbloom made any prom- ises to take corrective action. However, the record clearly establishes that the principal complaint voiced by the em- ployees at this meeting dealt with their working relation- ship with the busboys. These complaints consisted of the following (1) that there was an insufficient number of bus- boys; (2) that the busboys should be required to report to work a half hour earlier in order to provide them (the wait- ers) proper assistance ; and (3) that the busboys were spending too much time performing cleanup work or kitch- en duties and did not spend enough time on the dining floor. With respect to (1), there is no evidence that at this meeting Respondent made any promises to hire additional busboys, nor is there any evidence that it in fact did so at any time prior to the election. With respect to (2), namely, the complaint that the busboys were not spending enough time on the floor, Laughlin testified that Sandbloom react- ed as follows: He [Sandbloom] was shocked that they weren't on the floor because basically the busboys' duty was to be on the floor resetting the tables . . . He looked at me and said, "Keep them on the floor" or Why aren't they on the floor? With reference to (3), above, it is undisputed that shortly after the September 7 meeting, no later than within a few days, the busboys in fact were directed by Respondent to start work at 6 p.m., rather than at 6:30 p.m., as had been the practice. In this connection, Stelzner testified that when this particular complaint was raised at the meeting, Sand- bloom turned to Laughlin and stated, "we should start the busboys a half hour earlier." Sandbloom testified that in response to the waiters' request that the busboys report at 6 rather than 6:30 p.m., he stated, "I will discuss the schedul- ing with Mr. Laughlin and after that we will see how it works out." I credit Sandbloom with respect to his re- sponse when the matter of earlier scheduling of the bus- boys was brought up. Although Sandbloom returned to Los Angeles after the September 7 meeting, he came back to Blaine, Minnesota, to hold a series of similar meetings with the unit employees on September 14. This time he was accompanied by Ha- rold Gerlitsch, Respondent's regional supervisor of opera- tions who is also located in Los Angeles. Gerlitsch also attended the meetings held on September 14.7 Concerning the purpose of this meeting, Laughlin testified, " It was a meeting in which Mr. Sandbloom wanted to talk to any other waiters who hadn't made it to the first meeting to answer any questions that they did have." However, it ap- pears that fewer waiters attended this meeting than had attended the September 7 meeting and also that those who did attend were substantially the same waiters who attend- ed the first meeting. According to the testimony of Michael Bader, a waiter who appeared to me to be an honest and reliable witness and whose testimony I credit, Sandbloom asked if the problem of the busboys had been resolved by starting them at 6 rather than at 6:30 p.m. Bader testified that the waiters responded in the affirmative. Bader also testified, without contradiction, that during the meeting Gerlitsch stated, "I worked with you people before, you know me. You know you can come to me rather than to the Union." While it appears that other subjects brought up at the September 7 meeting were rehashed at the September 14 meeting, there was no specific testimony concerning any such further discussions. This meeting lasted for approxi- mately 45 minutes. 4 The quotation is from Bader's testimony. As reflected in the quoted testimony of Sandbloom , above, it is also undisputed that during this meet- ing Sandbloom stated that he could not make any promises. 3 Sandbloom specifically denied stating that he would see to it that the employees would get 5 cents an hour for uniform cleaning. I credit this testimony. Although two other employees who were at this meeting testified on behalf of the General Counsel, neither corroborated Stelzner concerning alleged remuneration for uniform cleaning . I also think Stelzner was in- clined to exaggerate his testimony. It is thus noteworthy that although he insisted that the notice announcing the September 7 meeting used the exact word "mandatory," subsequent production of this document revealed that it did not. C. Additional Facts,• Conclusions The basic legal principles concerning an employer's so- licitation of employee grievances were stated by the court 6 Concerning the complaint of busboys not being on the floor, Sand- bloom testified that he told the employees, "I will discuss it with Mr. Laugh- lin and if the busboys are on the duty, then they should be out on the floor where they belong." 7 Gerlitsch held three or four meetings with Respondent's employees dur- ing the month of January 1974. However, these were held for the primary purpose of instructing the employees how to perform their duties. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in N.L.R.B. v. Tom Wood Pontiac, Inc. 447 F.2d 383, 384- 385 (C.A. 7, 1971) enfg. 179 NLRB 581, as follows: There is nothing violative of the Act in a Company's holding of meetings to determine employee griev- ances, so long as "the discussion avoided any attempt by the company to imply promises of benefit if the union was defeated." [Citing cases] ... However, an 8(a)(1) violation is committed if the solicitation of em- ployee grievances is "accompanied by an express or implied promise of benefits specifically aimed at inter- fering with, restraining, and coercing employees in their organizational effort," [Citing cases] or if this survey includes inquiries concerning the employees' union interests." In Uarco Incorporated, 216 NLRB No. 2, a case particu- larly relied upon by the Respondent,8 the Board stated as follows: ... the solicitation of grievances at preelection meet- ings carries with it an inference that an employer is implicitly promising to correct those inequities it dis- covers as a result of its inquiries . [Reliance Electric Company, 191 NLRB 44] Thus, the Board has found unlawful interference with employee rights by an employer's solicitation of grievances during an organi- zational campaign although the employer merely stat- ed it would look into or review the problem but did not commit itself to specific corrective action; the Board reasoned that employees would tend to antici- pate improved conditions of employment which might make union representation unnecessary . However, it is not the solicitation of grievances itself that is coercive and violative of Section 8(a)(1), but the promise to correct grievances or a concurrent interrogation or polling about union sympathies that is unlawful; the solicitation of grievances merely raises an inference that the employer is making such a promise, which inference is rebuttable. In the Uarco case, which involved a series of preelection meetings wherein the Board found the employer to have at least impliedly solicited complaints and grievances from employees, the Board found no violation to have occurred because the employer adduced evidence which the Board held to have effectively rebutted the inference of any im- plied promises of benefit . This evidence consisted of a showing that ( 1) the employees were repeatedly told that the employer could make no promises regarding the griev- ances raised; and (2) there was no evidence of union ani- mus on the part of the employer nor was there evidence that the employer's preelection activities were conducted in the context of other unfair labor practices. s This case was decided by the Board subsequent to the issuance of the instant complaint and the hearing herein. Turning to the instant case, it is true that there is no showing of union animus on the part of Respondent and it is also true that during the September 14 meeting Sand- bloom advised the employees that he could make no prom- ises with respect to their complaints or grievances. Howev- er, notwithstanding Respondent's statement as aforesaid, as well as its announced intention not to engage in any preelection misconduct, the fact of the matter is that Re- spondent committed the error of going one step further than promising to correct the complaints of the employees; namely, it in fact undertook to remedy one of the principle complaints which came to surface during the first of the two meetings. As noted in the recital of facts, above, this was its implementation of the employees ' request that the busboys be required to report at 6 rather than 6:30 p.m. A further point is here in order. Thus, Respondent asserts in its brief that this action was taken because of the resump- tion of business during the fall months. Upon the entire record, I find the evidence does not support this assertion. Although Laughlin and Sandbloom testified that business picks up in the fall and that was a reason for this action, this testimony was of a generalized and conclusionary na- ture. Neither gave any specific testimony, such as their ob- servation of the business at this particular time, to show that this was true, nor were any records of other business data offered to show any necessity for the timing of this change. Indeed, Respondent's restaurant did not open un- til September 13 of the preceding year and Laughlin did not become manager until October 1973, hence it is clear that Respondent did not have any experience with respect to the alleged pickup in business during the period when the instant change in the busboys' schedule was made. Moreover, the change in this schedule was made during the interim of the September 7 and 14 meetings. In this con- nection it is noteworthy that upon his return on September 14, Sandbloom specifically asked the waiters if the problem of the busboys' schedule had been "resolved," to which the waiters responded that it had. Finally, the record reflects that the earlier scheduling of the busboys' reporting time was a matter of no little importance to the waiters. Indeed, when asked for how long a period the grievance concerning the busboys had persisted, Stelzner testified, "Forever, for as long as I have been there" ; and employee Bader testified that the waiters' relationship with the busboys was a princi- pal reason for their going to a union in the first instance. In sum, I find that Respondent's change of the busboys' schedule, under the circumstances noted above and in the context of the forthcoming election, constituted a pro- scribed granting of a benefit within the meaning of Section 8(a)(1) of the Act. In addition, it will be recalled that when the employees at the September 7 meeting complained that the busboys were not spending enough time on the floor, Sandbloom turned to Laughlin and admonished him to "keep them on the floor." While standing alone this inci- dent might be regarded as isolated or trivial, in the context SMUGGLER'S INN 155 of the other violation herein found, I find that by such conduct Respondent further violated Section 8(a)(1) of the Act in that it thereby indicated to the employees that it intended to rectify the grievance in question. pursuant to Section 10(c) of the Act, I hereby make the following: ORDER 10 D. The Objections As stated at the outset of this Decision, the Regional Director consolidated the representation and complaint proceedings since both presented like issues . Having found that certain conduct of the Respondent violated Section 8(axl) of the Act, I further find that such conduct also interfered with the exercise of a free and untrammeled choice in the election held on September 18, 1974.9 Ac- cordingly, I shall recommend that the said election be set aside and that a new election be held at such time as the Regional Director deems appropriate. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above , have a close, inti- mate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case and 9 Specifically, I find that the portion of Objection 1 which is at issue herein be sustained. Associated Hosts of California, Inc., d/b/a Smuggler's Inn, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Conducting meetings with its employees for the pur- pose of soliciting their grievances or complaints and direct- ly or impliedly promising them benefits or improved work- ing conditions from such grievance solicitation, wherein an object thereof is to discourage its employees from support- ing or voting for Minneapolis Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders Locals 152, 458, and 665, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL- CIO. (b) Granting benefits to employees for the purpose of discouraging them from supporting or voting for the above-named Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its facility in Blaine, Minnesota, copies of the attached notice marked "Appendix." 11 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 18, after being duly signed by the Respondent's au- thorized representative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director for Region 18, in writ- ing, within 20 days from the date of this Decision what steps Respondent has taken to comply herewith. It is further recommended that the election conducted in Case 18-RC-10183 be set aside and that a new election be held at such time as the Regional Director deems appropri- ate. 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed wavied for all purposes. 11 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT conduct meetings with groups of our employees for the purpose of hearing or adjusting their grievances or complaints, and directly or im- pliedly promising them benefits or improved working conditions, in order to discourage our employees from voting for or supporting Minneapolis Local Joint Ex- ecutive Board of Hotel and Restaurant Employees and Bartenders Locals 152, 458, and 665, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. WE WILL NOT grant our employees benefits for the purpose of discouraging them from voting for or sup- porting the above-named labor organization. WE WILL NOT In any like or related manner interfere with our employees in the exercise of their organiza- tional rights guaranteed under the National Labor Re- lations Act, as amended. All of our employees are free to become or remain, or to refrain from becoming or remaining , members of any labor organization, as guaranteed by Section 7 of the Act. ASSOCIATED HOSTS OF CALIFORNIA, INC., d/b/a SMUGGLER'S INN