Days Inn Management Co.

92 306 NLRB No. 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 299 NLRB 735. 2 930 F.2d 211 (2d Cir. 1991). 3 We disagree with the conclusion our colleague draws from the relevant facts. In this regard, every day for at least the month prior to the election the Union campaigned in plain view on public prop- erty adjacent to the Respondent’s facility. On four or five of those occasions the Respondent’s supervisors also campaigned at that loca- tion by greeting employees on public property nearby. These super- visors did not engage in any photographing of employees, note-tak- ing, or conversations with the union representatives. Nor did they visibly disrupt any contact with the Union or physically block or im- pede any employee’s access to the union representatives. There is no evidence that they were able to overhear conversations between em- ployees and union representatives. We thus agree with the judge that the sum total of the conduct of the Respondent’s representatives can- not be distinguished from mere observation of open conduct and in these circumstances does not constitute unlawful surveillance of union organizing under current Board law. Days Inn Management Co., Inc. and Local 217, Hotel and Restaurant Employees and Bar- tenders Union, AFL–CIO. Cases 39–CA–3393 and 34–RC–719 January 21, 1992 SUPPLEMENTAL DECISION AND ORDER ON REMAND AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On September 20, 1990, the National Labor Rela- tions Board issued its Decision, Order, and Direction of Second Election1 in this proceeding. The Board found, inter alia, that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by threat- ening to reduce employee wages if the Union won the Board election held on February 25, 1987, and by cre- ating the impression of keeping employee organiza- tional activity under surveillance on election day. The Board also found that the election-day surveillance constituted objectionable conduct interfering with the conduct of the election and directed a second election. In so doing, the Board specifically found it unneces- sary to pass on the judge’s findings that the Respond- ent did not violate the Act and interfere with the elec- tion on the basis of its alleged surveillance of union activity in February 1987. The Respondent thereafter filed a petition for review of the Board’s Order with the United States Court of Appeals for the Second Circuit and the Board filed a cross-application for enforcement. On April 10, 1991, the court issued its opinion granting in part and deny- ing in part enforcement of the Board’s Order and re- manding the case to the Board for further proceedings consistent with the court’s opinion.2 In this regard, the court enforced the Board’s finding of a violation con- cerning the threat, but declined to enforce those por- tions of the Board’s Order concerning the election-day surveillance and requiring a new election. The court did not pass on the issues involving the alleged sur- veillance of union activity by the Respondent in Feb- ruary 1987. On June 17, 1991, the Board advised the parties that it had accepted the remand and invited the parties to submit statements of position with respect to the issues raised by the remand. Thereafter, the General Counsel and the Respondent filed statements of position. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reconsidered this case in light of the court’s opinion, which we consider the law of the case, and the parties’ statements of position, and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order. As previously indicated, in our original decision the Board, and consequently the court, did not pass on the question whether the Respondent also violated Section 8(a)(1) of the Act and interfered with the February 25, 1987 election, as alleged, by observing the Union’s or- ganizational activity conducted on the public sidewalk in front of the Respondent’s hotel in February 1987. For the reasons stated by the judge, we adopt his dis- missal of this 8(a)(1) allegation and his recommenda- tion that the corresponding election objection be over- ruled.3 Accordingly, we shall issue a certification of results of the election. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Days Inn Management Co., Inc., Bridgeport, Connecticut, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid ballots have not been cast for Local 217, Hotel and Restaurant Employees and Bartenders Union, AFL–CIO, and that it is not the exclusive representative of the bargaining unit employees.