Diner'S Drive-In, Inc. And Diner'S Drive-In Keeau-Moku, Inc.

DINER'S DRIVE-IN Diner's Drive-In, Inc. and Diner's Drive-In Keeau- moku, Inc., Jointly and Hotel Employees & Restaurant Employees, Local 5, AFL-CIO, Pe- titioner. Case 37-RC-2668 24 June 1986 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON The National Labor Relations Board, by a three- member panel, has considered objections to an election held 6 December 1982 and the hearing of- ficer's report' recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 55 for and 128 against the Petitioner, with 2 nonde- terminative challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and brief, has adopted the hearing officer's findings and recommendations,2 and finds that the election must be set aside and a new elec- tion held. For the reasons stated below, we agree with the hearing officer that Objection I should be sustained. Objection I alleges that Kiyoshi Sugai, the Em- ployer's principal officer and stockholder, told em- ployees that if the Petitioner won the election "a lot of people would be out of a job" and that the Employer "might have to close its doors perma- nently." Petitioner objects to the Employer's state- ments in a letter dated 2 December, given to em- ployees with their paychecks before the 6 Decem- ber 1982 election,3 specifically a sentence in the letter's third paragraph which reads, "Its [sic] been rough on me because with the bad economy over the past three years, I was not sure how I was going to keep our doors open and the last thing any of us needs is something that would put us over the edge and might require us to close our doors permanently." The letter was distributed with the express purpose of ensuring that the em- ployees "understand what all the issues are before entering the voting booth." The hearing officer considered the context of the letter and found that "something that would put us over the edge" is unionization by the employees and concluded that the thrust of the sentence i On 6 February 1984 the Board issued an unpublished Decision and Direction adopting the Regional Director' s recommendations that Peti- tioner's Objection 4 be overruled and a hearing be held on Objections 1, 2, 3, and 5 2 Absent exceptions, we adopt, pro forma, the hearing officer's recom- mendation that Objections 2, 3, and 5 be overruled 2 The letter is attached as Appendix A 971 quoted above "is to predict to employees that unionization might lead to a closure" of the Em- ployer's business . The hearing officer found that no objective facts4 were presented to the employees which might demonstrate the probable conse- quences of unionization; the employees were ad- vised only that their selection of the Union might require the Employer to close permanently. The hearing officer concluded that the Employer's statement was a veiled threat to close if the em- ployees voted for the Union and recommended that Objection 1 be sustained and a new election held. We agree. That the letter is a partisan campaign document is evident because every paragraph refers to the Union and/or the then-pending election. Indeed, the first paragraph sets the tone by referring to election day as "a big day . . . thats [sic] when you will make the decision that decides our future." Even a cursory reading of the letter makes it clear that the thrust thereof is to bring to the employees' attention the possible adverse consequences of unionization. We cannot ignore the plain language of the entire letter as well as the specific references to the Union in the third paragraph,5 and conclude with our colleague that the Union is not the "some- thing that would put us over the edge and might require us to close our doors permanently." Given the Employer's overall emphasis on the negative aspects of unionization, there is no doubt that the "something" was intended to refer to the Union, and we so find. The Employer refers to the bad economy over the past 3 years, but makes no correlation , as he is permitted to do, between possible economic conse- quences of unionization and the closing of his busi- ness. The Employer's predictions are not accompa- nied by any references to, for example, union de- mands for higher wages and the possible impact on the business of trying to meet such demands.6 Thus, the Employer's statements cross the line be- tween advising employees of "potential adverse consequences" of unionization and an implied em- ployer threat of the "inevitable likelihood that such consequences will flow to its employees in retalia- tion for their having selected the union as their col- lective-bargaining representative."7 We find it irrelevant that no employee was per- sonally told about the possibility of closing . Indeed, 4 NLRB Y Gissel Packing Co, 395 U S 575, 618 (1969) 5 The third paragraph begins with the claim that an internal union fight leads to the employees' being treated as "pawns," and warns that employees "don't know whether or not the union is telling you the truth while the law insists the company tell nothing but the truth." 5 See LeBoe Tire & Rubber Co, 208 NLRB 84 (1974) ' Piggly Wiggly, Tuscaloosa Dip, 258 NLRB 1081, 1092 (1981) 280 NLRB No. 111 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the written words, taken in context, leave no doubt that the Union, not the economy, would cause the Employer's closing. The impact of the Employer's words oh the employees is clear, as is the tendency of those comments to interfere with the employees' election choice. Accordingly, we find the Employer's statements are objectionable and they warrant setting the elec- tion aside. [Direction of Second Election omitted from pub- lication.] CHAIRMAN DOTSON, dissenting. Contrary to my colleagues I find unsupported the hearing officer's finding that the Respondent, in a preelection letter to employees, made a veiled threat to close business if the employees voted in the Union. I would therefore dismiss Petitioner's Objection 1 and certify the results of the election. The facts are not contested. In a letter dated 2 December which accompanied employees' pay- checks, the Employer's principal owner Kiyoshi Sujai mentioned the upcoming election and the strain and confusion the Union's presence had in- troduced in the past year to the Employer's for- merly harmonious operation. Apropos of the latter, the letter discussed the Union's strike activities, as well as a "big fight" within the Union for political control. At one point the letter stated: Its [sic] been rough on me because with the bad economy over the past three years, I was not sure how I was going to keep our doors open and the last thing any of us needs is something that would put us over the edge and might require us to close our doors perma- nently. There is no evidence that Sujai told any nonsuper- visory employee that if the Union won the election a lot of people would be out of a job. I do not find the objected-to statement, consid- ered in the context of Sujai's letter and the election campaign in general, to constitute an implicit threat that closing business was the inevitable result of an election victory. The letter does not directly link the outcome of the election with cessation of busi- ness. Its only mention of the possibility of the Em- ployer closing its doors appears in reference to the Employer's fight for economic survival. The pre- cariousness of the Employer's business due to a "bad economy" is uncontested.I The Employer's 3- year struggle against the economy "to keep its doors open" long preceded the Union's presence, suggesting that a myriad of factors having nothing to do with the Union might well have caused the i B. F. Goodrich Footwear Co, 201 NLRB 353, 354 (1973) Employer at any point to go "over the edge." Fur- ther, nothing said by the Employer during the elec- tion campaign could have caused employees to as- sociate the letter's reference to "something that would put us over the edge" with the Union. For the Employer made no preelection statements link- ing an election victory to closing its doors. The letter itself repeatedly refers to the Union, but only to a limited extent in the context of the upcoming election. It talks more extensively about the impact union strike activity and intraunion political strug- gles have had on the Employer's workplace. Thus, if the Union can at all be interpreted from the letter as introducing the "something" which might put the Employer over the edge, that something could just as readily be the strain and confusion al- ready brought to the workplace by the Union, as the election or its outcome. I therefore find the ob- jected-to statement vague and insufficient to sup- port a finding that the Employer implicitly threat- ened adverse action against employees if they voted for the Union.2 Furthermore, to the extent that the statement can be construed as a projection of things to come if the employees selected the Union as their bargain- ing representative, I find it to be an expression of Sujai's personal opinion reasonably based on eco- nomic facts and therefore permissible under the Su- preme Court's Gissel decision.3 As noted above, the letter's only reference to closing is made in the context of apparently accurate statements about the Employer's fragile economic condition, historically unrelated to the Union. Sujai's fear that unioniza- tion might have broad and damaging effects on business is evidenced by his credited preelection statement to the supervisors that, if the Union won, some of the employees and supervisors would have to be laid off because he could not maintain a full staff. His statement to unit employees is a consist- ent expression of his opinion based on demonstrat- ed facts as to the economic consequences which might reasonably be expected to result from union- ization. As such, it is protected by Section 8(c) of the Act.4 2 Ohio New & Rebuilt Parts, 267 NLRB 420, 421 (1983). 8 In NLRB Y Gissel Packing Co, 395 U.S 575, 618 (1969), the Su- preme Court stated, in pertinent part, that [A]n employer may even make a prediction as to the precise effect he believes unionization will have on his company In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a manage- ment decision already arrived at to close the plant in case of union- ization. 4 Daniel Construction Co., 264 NLRB 569, 570 ( 1982); B. F Goodrich Footwear Co, supra at 354 DINER'S DRIVE-IN There being no merit to Petitioner's Objection 1, I would reverse the hearing officer and certify the results of the election. APPENDIX A Dear Employee: Next Monday is a big day . . . thats when you will make the decision that decides our future . . . the decision of voting for a union that has been making your life miserable for the last year or so . . . or the decision to stick by your Company and vote "No." I am fully aware of the strain that you and your families have been under this past year . While Local 5 has been playing its silly games by asking some of you to go out on strike and go without pay checks for months and months at a time , they have also been trying to deprive you of your right to a quick election. I know of the presures the union can place on individuals and also the wild promises they make such as "guaranteed reinstatement in the same job and at the same location you were in" in the event there was a strike. The union made that promise to some of you earlier and look what happened-they couldn't make that promise come true for all of the employees. Right now, there is a big fight going on between Dick Tam, the current head of Local 5 and Tony Rutledge and of course Mr. Tam is trying to use the employees of places like Diners and Prince Kuhio Hotel in an effort to try and gain notoriety so that he can win his election over Mr. Rutledge. Its criminal that he would see fit to use you as the pawns in his game of chess . . . after all, he still gets paid when employees are out on strike! There is no, question that this whole past year has been an unpleasant situation for all of us at Diners . Its un- plesant for you because you don't know whether or not the union is telling you the truth . . . while the law insists the company tell nothing but the truth. Its been rough on me because with the bad econo- my over the past three years, I was not sure how I was going to keep our doors open and the last thing any of us needs is something that would put us over the edge and might require us to close our doors permanently. You all know as well as I, what the union is really after .., . you and your dues money . Without new members and without those dues from new mem- 973 bers, unions would go out of business just like we would if we didn't have customers. The difference is we serve the customers with food-a necessity of life-all the union serves is empty promises and dis- asters. Why pay someone for a job that you already have for free . . . to have to pay dues in order to live is, in my opinion, another form of extortion. I want to make sure that you understand what all the issues are before entering the voting booth on Monday. So I would like to cover a couple of points that I am sure the union did not tell you when their organizers were out making their sales pitch. For example, did the union tell you that our benefits must be negotiated and if I do not agree, the only alternative the union has is to strike, con- cede or walk away? Did they ask all of you wheth- er or not you wanted to have a strike when the last strike occurred? And why didn't the union end the strike when most of our employees did not want to strike in the first place? Did they tell you that in many cases while you are on strike that you are not entitled to unemployment pay from the State? I re- ceived a letter from the State which stated that the strikers in Waimalu, Keeaumoku and Kalihi were denied unemployment benefits during the period of the strike. Did they tell you who would pay your bills while you were on strike? Did the 'union tell you that you were on strike? Did the union tell you that you might be forced to live with one of their picket captains as your shop steward? I am not trying to sing a song of doom, but I ask you these questions to point out to you that belonging to the union isn't always what a union organizer makes it out to be . . . every coin has two sides and the union usually only shows you the pretty side .. . but most of us over the past year have seen what its really like . . . we've seen the ugly side! Most of you can remember the good and happy days-the days before the union, the days before the strike, the days when we could trust one an- other and we could smile at one another and be happy to be working side by side with our friends and neighbors. I more than anything else, would like to see those days of happiness return. There is only one way we can do that . . . that is for all of you to turn out to vote and to vote "NO." Mahalo, Kiyoshi Sugai