Bally's Park Place, Inc.

BALLY'S PARK PLACE, INC. Bally's Park Place, Inc. and Sports Arena Employ- ees Union, Local 137, AFL-CIO, Petitioner. Case 4-RC- 15056 December 8, 1982 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered objections to an elec- tion held on June 8, 1982,1 and the Regional Direc- tor's report, pertinent parts of which are attached hereto as an appendix, recommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs,2 and hereby adopts the Regional Director's findings,3 as modi- fied herein, and recommendations. 1. In his report, in reciting the facts prior to overruling allegations of objectionable electioneer- ing contained in Employer Objections I and 2, the Regional Director found that "[b]efore opening the polls, the Board Agents indicated that no election- eering would be permitted in the polling area." In its memorandum in support of exceptions, the Em- ployer asserts that "contrary to the suggestions in the Regional Director's Report, there was not a clear area designated as a 'no electioneering' area." The Employer contends that "a more plausible de- lineation of the 'no electioneering' area would have been that the entire restaurant level was barred from such activity." For purposes of review, we accept as fact that there was no specific no-elec- tioneering area clearly designated by the Board agent; however, we find no merit in the Employ- er's further contention in this regard. The election was conducted pursuant to a Stipulation for Certifca- tion Upon Consent Election. The tally was: 354 for, and 179 against, the Petitioner, with I void ballot; there were 13 challenged ballots, an insuffi- cient number to affect the results. n After filing its exceptions and memorandum in support thereof, the Employer filed a supplemental memorandum which contained a request for oral argument on issues arising from the Petitioner's conduct occur- ring after the election, as described in said memorandum. We have con- sidered the Employer's supplemental memorandum and, as we find that the circumstances described therein do not raise issues which warrant oral argument, we hereby deny the Employer's request. Further, we find that the conduct asserted to have been engaged in by the Petitioner after the election would not warrant consideration as conduct which could have affected the results of the election. I In adopting the Regional Director's recommendation to overrule the Employer's Objection 5, alleging material misrepresentations of fact. Member Fanning does not rely on Midland National Life Insurance Com- pany, 263 NLRB 127 (1982), in which he dissented, but reaches the same conclusion under the standards of Hollywood Ceramics Company. Inc, 140 NLRB 221 (1962). 265 NLRB No. 98 Absent designation of a specific no-electioneering area by the Board agent, 4 the area "at or near the polls" is the area for which the Board applies strict rules against electioneering. See Milchem, Inc., 170 NLRB 362 (1968); Claussen Baking Company, 134 NLRB 111 (1964). The standard form "Notice of Election" used in the instant case, as provided by Regional Offices for posting before elections, states: "Electioneering will not be permitted at or near the polling place." Thus, assuming the lack of "clear" designation of a no-electioneering area herein, we find the no-electioneering area in this case to have been the customary area "at or near the polls." We note particularly that 130 feet from the en- trance to the polling place is the closest any Em- ployer witness places the union representatives al- leged to have engaged in electioneering. Further, the location where the union representatives were allegedly seen, on the same level as the polling place, was a public restaurant area which, as ap- pears from a diagram provided by the Employer, did not even provide a line of sight to the entrance to the polling place-which was in fact the farthest room in a separate area of private banquet rooms. Accordingly, having considered the Employer's evidence in support of its exceptions, and Respond- ent's factual assertions in its memorandum, we find, in accord with the Regional Director's recommen- dation, that the alleged conduct did not violate the Milchem rule, because the statements that were made were not made to voters in the polling place or while waiting in line to vote, nor was the con- duct otherwise of a nature to warrant an inference that it interfered with the exercise of employee free choice.6 Boston Insulated Wire & Cable Co., supra. 4 We have held that the establishment of an area in which electioneer- ing is not permitted must in the first instance be left to the informed judg- ment of the regional director and agents conducting the election. Marvil International Security Serice Inc, 173 NLRB 1260 (1968). In that case, we rejected the employer's contention that the no-electioneering area was too narrowly drawn. In this case as well, we perceive no basis for finding that a traditional "no-electioneering" area confined to the immediate vi- cinity of the polls was improper. s Even when electioneering occurs "at or near the polls," the Board considers a number of additional factors to determine whether the con- duct is objectionable, such as the extent and nature of the alleged elec- tioneering, whether it was conducted by a paruty to the election or by employees, whether a no.electioneering re had been desgnated and conduct occurred within the area, and whether conduct occurred or con- tinued contrary to the instructions of the Board agent. See Boston Insulat- ed Wire A Cable Ca, 259 NLRB 1118, 1119 (1982). ' We find the facts of Detroit Creamery Company. Anic Ice Cream Plant, 60 NLRB 178 (1945), cited by the Employer, to be distinguishable from the facts herein, at least insofar as the union representatives here were seen standing in an extensive public area. Moreover, we note that the value of Detroit Creamery as precedent was substantially limited by our decision in Milchem Inc, supra, where Detroit Creamery was listed as one of several cases which failed to present a clear standard for evaluat- ing the effect of conversations between parties and prospective voters in an election. 703 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We therefore adopt the Regional Director's recom- mendation to overrule Objections 1 and 2. 2. The Regional Director found that the Em- ployer's evidence in support of Objection 7-alleg- ing that supervisors coerced and otherwise influ- enced employees under their supervision to vote for the Union-did not warrant overturning the re- sults of the election. We agree with the Regional Director's conclusion and adopt his factual findings and recommendation to overrule the objection. However, in concluding that the Employer's evi- dence did not provide a reasonable basis for finding or inferring coercive effects on the employees, 7 we find additional support in the following facts and circumstances, derived from the evidence supplied by the Employer: (1) the alleged objectionable su- pervisory activity was limited to oral remarks made to or in the presence of employees; (2) the remarks were not patently coercive or threatening, nor was there anything in them implying retaliation for voting against the Union; instead, the remarks appeared to express the speakers' personal views about unionization; (3) the supervisors who made the remarks were low in the supervisory hierarchy; (4) several of the supervisors' statements were made in the presence of other supervisors, two of whom provided evidence submitted by the Em- ployer with its memorandum; and (5) one supervi- sor's remarks supportive of unionization were ap- parently uttered in response to contrary remarks by another supervisor during a discussion involving several employees and both supervisors. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Sports Arena Employees Union, Local 137, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the foregoing labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of col- lective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All full time dealers, and part time dealers who during the 13 weeks prior to May 9, 1982, or date of hire if sooner, have worked an average of 18 hours or more per week, em- ployed by Bally's Park Place, Inc., at its At- lantic City, New Jersey location; but excluding all other employees, security employees and guards, seasonal employees, floor persons, pit 7 See Gary Aircraft Corporation, 220 NLRB 187 (1975); Turner's Ex- pres. Incorporated, 189 NLRB 106 (1971); Stevenson Equipment Company, 174 NLRB 865 (1969). bosses, box persons, and all other supervisors as defined in the Act. APPENDIX Objections Nos. I and 2 Inasmuch as both of these objec- tions involve allegations of electioneering by Petitioner's agent during the election, they will be treated together. The election was conducted in the Tivoli Meeting Room on the restaurant level at the Employer's Atlantic City, New Jersey casino. Before opening the polls, the Board Agents indicated that no electioneering would be permit- ted in the polling area. Employees were released to vote by a Board Agent and an observer from each of the par- ties, who left the polling place together and descended one level to the casino floor, where the release of voters was coordinated with a relief crew of employees who substituted for those going to vote. The Employer submitted evidence of three incidents of alleged electioneering. One employee stated that, sometime during the first three hours of voting, as a group of employees was being escorted to the polls, an unidentified man dressed in a business suit, who was not wearing an employee badge, was standing near Sundaes, an ice cream parlor located at least 130 feet from the polling place. As the group passed Sundaes, this individ- ual repeated several times that the employees should "vote yes." At about this time, according to another em- ployee, an individual answering the same description was observed telling employees on the casino floor to vote yes. A third employee stated that a similarly dressed in- dividual, standing at the top of the escalators on the same floor as the voting area, urged a group of employ- ees on their way to vote to "vote union if you want things to be good." One of the Board Agent's conduct- ing the election was informed of the electioneering short- ly after the incidents described above. The Agent spoke with an attorney for the Petitioner, who cautioned the individual against improper electioneering. There is no evidence of any further electioneering following the report of the alleged incidents to the Petitioner's counsel. The Employer also presented evidence that several rep- resentatives of the Petitioner stood or sat in the vicinity of the top of the escalators or Sundaes during the elec- tion and observed many of the unit employees on their way to vote. The Petitioner's representatives admit that they were on the casino floor and in Sundaes, during the election, but they deny making any of the statements at- tributed to them. While electioneering is generally prohibited at or near the polls, there is no rule otherwise prohibiting election- eering elsewhere on the Employer's premises during the election. Cf. Milchem, Inc., 170 NLRB 362. As the Board has stated: "it is unrealistic to expect parties or employ- ees to refrain totally from any and all types of election- eering in the vicinity of the polls." Boston Insulated Wire & Cable Co., 259 NLRB No. 149 sl. op. p. 4. The elec- tioneering involved in the instant case occurred away from the polling place, outside the area designated as the no-electioneering area, and was not directed at employ- ees waiting in a line to vote. Boston Insulated Wire & Cable Co., supraw Cabs Housekeeper Service, Inc., 241 704 BALLY'S PARK PLACE, INC. NLRB 1259 (1979); Marvil International Security Service, Inc., 173 NLRB 1260 (1978). Accordingly, I shall recom- mend that Objections I and 2 be overruled. Objection 7 In support of this objection, the Employer presented evidence that at least one pit boss and two floor persons, job categories that the parties agreed to exclude from the unit, made statements indicating their support for the Petitioner and advising dealers to vote for the Petitioner in the election. The types of statements allegedly made generally expressed the speakers' views that a union was necessary and that the Petitioner would be effective in preventing or limiting some of the Em- ployer's practices with which employees were con- cerned. The Board has held that, while supervisory participa- tion in organizational activity may have an effect on em- ployee sentiment as to representation, the possible coer- cive effects of supervisory involvement are mitigated if employees are aware of the employer's opposition to the union. Fall River Savings Bank, 246 NLRB 831, 832. In this case the Employer distributed numerous pieces of campaign literature and held meetings with unit employ- ees at which it made known its opposition to the Union through higher management representatives than the floor persons and pit bosses whose conduct is described above. Accordingly, I find that Objection 7 lacks merit and I will recommend that it be overruled. 705