Turnberry Isle Coutry Club

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aventura Country Club d/b/a Turnberry Isle Coun- try Club, Employer-Petitioner and Hotel, Motel and Hi-Rise Employees and Bartenders Union, I,ocal 355, AFL-CIO. Case 12-RM-307 November 19, 1980 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING ANI) M.MBERS JENKINS ANI) P NI: 1.0 Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Direc- tor for Region 12 of the National Labor Relations Board on January 14, 1980, an election by secret ballot was conducted on February 8, 1980, among the employees in the stipulated unit.' At the con- clusion of the election, the parties were furnished a tally of ballots2 which showed that, of approxi- mately 147 eligible voters, 125 cast valid ballots, of which 69 were cast for the Union and 46 were cast against the Union. There were 2 void and 10 chal- lenged ballots. The challenged ballots are not suffi- cient in number to affect the results of the election. On February 15, 1980, the Employer filed timely objections to the conduct of the election, and on March 12, 1980, the Regional Director issued and served on the parties an order directing a hearing on the objections and a notice of hearing. A hear- ing was held on April 1, 2, 8, and 9, 1980, before Hearing Officer Bruce A. Harris. All parties were present and participated in the hearing; they were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evi- dence bearing on the issues. On June 6, 1980, the Hearing Officer issued and served on the parties his report wherein he recommended that certain of the objections be overruled and others be sustained, and that the election be set aside and a new elec- tion directed. Thereafter, both the Employer and the Union filed exceptions to the report,:' and the 'The stipulated unit is: All employces of the Employer, including aiters. aitresses. bus boys, captains. hostesses, porters, kitchen employees, restaurant cash- iers, bartenders, bell persons, maids, cocktail waitresses, I'BX opera- tors, laundry employees. front desk clerks. mainteilnance depariment employees and regular banquet department employees. employed at the Employer's hotel, restaurant and bar facility at 1999' West Country Club Drive. Miam i. Florida; excluding all guard,, office clerical employees supervisors and erCIployees f concessioners norll- regular banquet employees a(d all other employees The iEmployer refused to accept service of the tally of ballots at the conclusion of the election Thereafter. orl February II. 1 80. a cop of said tally watas mailed to the rEmployer's representatise. a The Employer has excepted to certain credihility resolutions of the Hearing Officer It is the established policy of the Board not to overrule a hearing officer's credibility resolulions unless the clear preponderance of all of the relevant evidence coln inces us that the resolutions are incior rect. he Cocu-Co/ Bottling ompany oJ .mphi,. 132 NLRB 481 43 253 NLRB No. 51 Employer filed an answering brief to the Union's exceptions. 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 entire record in this case, and hereby adopts the Hearing Officer's recommendations to overrule the Employer's Ob- jections 1, 3, 4, 6, 7, 9, 11, and 12 in their entirety and portions of Objections 2, 5, 8, and 10, and adopts his other findings and recommendations only to the extent consistent herewith. 4 The Hearing Officer found, inter alia, that the Union interfered with the election by conferring certain benefits upon its members s during the criti- cal period prior to the election. Under the terms of the collective-bargaining agreement the Employer paid certain insurance premiums for those of its employees who were union members. In December 1979, the Employer stopped making these pay- ments. Because the insurance coverage would oth- erwise have lapsed, the Union paid the premiums for the covered member-employees during January and February 1980. The Union publicized this fact during the election campaign. The Hearing Officer found that the Union's payment of insurance premi- ums amounted to an economic inducement of the type proscribed in Wagner Electric Corporation, Chatham Division, 167 NLRB 532 (1967). We dis- agree. In Wagner, supra, the union offered prospective voters coverage under a life insurance policy in ex- change for their joining the union. This type of gift was held to have constituted a tangible economic benefit which would constrain the recipients to vote in favor of the donor, and thereby interfered with the employees' free choice in the election. In the instant situation, however, the recipients of the insurance coverage were not receiving something new from the Union, but rather were being permit- ted to retain the status quo. Their benefits were not enhanced by the Union's action; rather the Union merely assumed the responsibility that the Employ- er relinquished. Unlike a cash gift or a bribe which can serve only to corrupt employees in their choice, the continuance of the insurance coverage (9hl) Stretch-lixa (o. IX NltRB 135, 1 lthl (1957) We find rio suffi- cient basis for disturbing the credibility resolutions in this case In adoptinig ie t che aring Officer', recommendatiii to overrule tile portiot of Oblectiui 2 alleging that lhe tiliion threatened to confer hbete- fits discriilillatorilN to its members onl , the Board does rlol find it neces- sary rely on1 lluindv Idv, Inc., 228 NI R 447 (1977) t Ihe iployer and the Uliilrn l rc parties to a 3 -year collecuxve bar- gatiilng agreeme t s uhich expired in )ctober 179 1' he terms oif that agreementl had been consistetitly applied irl a mcnilhers-n ly basis Be- cause the legtlity f a rnembers-inl I conltracl was n1iot directly i issue in this prolceeding. e do h1ot decide that questiotn 416 TURNBIERRY ISLL COUNTY C LIBt through the Union's payment of premiums had a legitimate relationship to the suitability of the Union-from the employees' point of viewv-as a bargaining representative. It had a direct bearing on the kind and quality of services the Union might be expected to provide, a clearly relevant consider- ation in the election of a bargaining agent.6 In this respect, the Union's preservation of existing bene- fits is very similar to strike benefits. The Union did not modify the insurance coverage or offer to extend it to employees who decided to join prior to the election. Therefore, the Union's payment of these premiums is not the kind of "tangible eco- nomic benefit" described and prohibited in Wagner, and we find that the Union's action did not inter- fere with the election. The Hearing Officer's rec- ommendation to set aside the election based on this portion of Objection 2 is hereby reversed. 7 The Hearing Officer also recommended setting aside the election on the basis that the Union's campaign literature contained material misrepresen- tations about the benefits enjoyed by its members employed elsewhere. A campaign leaflet stated that "Local 355 new contracts now include the entire family for dental coverage and will add the entire family for all benefits in the future." In support of its objection to this statement, the Employer intro- duced into evidence a recently executed collective- bargaining agreement between the Hilton Hotels Corporation and the Union. That agreement con- tained a provision that family dental coverage would begin on January 1, 1982, but it contained no provision that other benefits would be extended to an employee's family in the future. The Hearing Officer found that, because the Hilton contract did specify that family dental coverage would become effective during the term of the contract, albeit not immediately, the first part of the statement did not substantially depart from the truth and was not suf- ficent to set aside the election under the standards of Hollywood Ceramics Inc.," and General Knit of California, Inc.9 However, applying the same test to the second part of the statement, the Hearing Officer determined that a material misrepresenta- tion did exist. He interpreted the statement to mean that family coverage would take effect in the future, but within the term of an existing contract. Under this interpretation, he found the Union's statement sufficiently at variance with the con- tract's provisions to set the election aside. 6 Primco Caming (rpor/tionr. 174 N. R 244 I 99) B Hecause Ihis ctond t u.ls rol r spe rfilcaly alleged Il he objcctln. Member l'enello uould nol cl,nidcr it a a hasis lir seling aside hte election See hi% dsentling (opiniot imn Daiton l irr & Rubbh/lr (.. 2 ;4 Nl.RB 5(14 1478) 9 14() NI.RH 221 ( 162) 239 NRB h9 (19781 We believe that the Hearing Officer misapplied the General Knit standards in reaching his conclu- sion. ° The statement, read in its entirety, refers first to certain benefits which are "now" included in contracts, and second to the extension of benefits to employees' families in the "future." An employ- ee would understand from the plain language of the statement thatfamily coverage referred to a po- tential benefit which the Union would attempt to gain in upcoming collective-bargaining agreements. In addition, while the Employer did not specifical- ly respond to this aspect of the Union's campaign handbill, it did reply to various other points in the leaflet, which refutes the Employer's assertion that the statement was made so soon before the election as to deny the Employer adequate rebuttal time. Further, the Employer introduced the Hilton con- tract into evidence at the hearing, indicating that the information about the Union's contracts was not exclusively within the Union's control. We find that the Union's statement did not breach the guidelines of General Knit, but rather that this statement amounted to no more than a typical cam- paign promise, amenable to employee evaluation and employer response, and does not warrant set- ting aside the election. Finally, the Hearing Officer recommended set- ting aside the election on the basis that the Union conditioned the employees' receipt of financial benefits upon the outcome of the election. While not specifically alleged as objectionable, the Hear- ing Officer found that the Union's business agent, Morales, told employees that if they did not vote for the Union the Employer would not pay the backpay it owed them. The Hearing Officer relied upon one employee's testimony. The record reveals that this testimony consisted entirely of passing ref- erences contained in responses to questions about other aspects of allegedly objectionable union con- duct. This witness was not asked for details about the backpay-related statements and was not cred- ited elsewhere in her testimony. The testimony on which the Hearing Officer relied is as follows: ". . . we should vote for the union and-because if we don't vote for it it will make them not pay back the back money that they owed to the people that had been working to the hotel a long time"; and, "Yes, he told us we should vote for the union, because the hotel owed the peo- ples lots of back money .... And if they get-the only way to get the back money that they would " nrntit . r lcll oL.J) gret, wlth h colleagues that Ilt. mllpreseilAllli0p alleged In this thlctlin ll o lnor arrntill selhing aside the etecl tlll. hill M)i finds for ith rca.. t% el foirth i Shopping Hart val n 4i i .rt. Int,. 22 N R I 11 I 7 (17 the principle'. f Which he ti ll adhere,. to Sc itsl dsc.'lliing pininl) in (,ir.rJ Kl it /f( t/ihrlnit. Jilt,. iupra 417 DECISIONS OF NATIONAl. AIBO()R RELATIONS BO()ARD have to bring the union in." Taken in the context of her surrounding testimony, it emerges that this witness was relating her impressions of numerous statements made by Morales over a period of months and that the backpay may have been just one of the many issues brought up during this time. The thrust of the statements is that the Union would try to secure the backpay for the employ- ees-the kind of statement that a party in a repre- sentation election would make to voters to demon- strate the potential support they could expect through its representation. It does not promise a reward or condition a benefit on their vote, but simply sets forth one area in which the Union would use its position to assist the employees. We find that, if these statements were made, they do not condition benefits on the employees' votes, and do not justify setting aside the election. On the basis of the foregoing, we reverse the Hearing Officer's determinations with regard to the Employer's Objections 2, 13, and portions of 5, 8, and 10 and find that they do not warrant setting aside the election. We overrule the Employer's ob- jections in their entirety and issue the following Certification of Representative. ' For the reasoilns st forlh ill his dissenting opinilon in Dayton lir, & Ruhhr C(. vIpra, Mrncber 'Penello ould not set aside hc ciclon on this h asi bccause the corlduct wa, ino( specifically alleged in a irnlel filed 'Arittlcn oihljcionl, hill rather w as coitlainld in a "catch-all" ohicc- lion CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Hotel, Motel and Hi-Rise Employees and Bartenders Union, Local 355, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representa- tive of all the employees in the following appropri- ate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of em- ployment: All employees of the Employer, including waiters, waitresses, bus boys, captains, hostess- es, porters, kitchen employees, restaurant cash- iers, bartenders, bell persons, maids, cocktail waitresses, PBX operators, laundry employees, front desk clerks, maintenance department em- ployees and regular banquet department em- ployees, employed at the Employer's hotel, restaurant and bar facility at 19999 West Country Club Drive, Miami, Florida; excluding all guards, office clerical employees, supervi- sors and employees of concessioners, non-regu- lar banquet employees and all other employ- ees. 41X