Gladieux Food Service, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gladieuv Food Service, Inc. and Local 917, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 29-CA-7436 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 27, 1980, Administrative Law Judge El- eanor MacDonald issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 brief' and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein.2 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, as modi- fied below, and hereby orders that the Respondent, Gladieux Food Service, Inc., Queens, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(c): "(c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of any right guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. i Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties. z In par. I(c) of her recommended Order, the Administrative Law Judge uses the broad cease-and-desist language, "in any other manner." However, we have considered this case in light of the standards set forth in Hicknott Foods. Inc., 242 NLRB 1357 (1979)., and hase concluded that a broad remedial order is inappropriate inasmuch as it has not been shown that Respondent has a proclivity to violate the Act or has en- gaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights Ac- cordingly, e shall modify the recommended Order so as to use the narrow injunctive language "in any like or related manner" 252 NLRB No. 106 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT interrogate our employees as to the manner in which they intend to vote in a representation election. WE WILL NOT create the impression that we have spied on the manner in which our em- ployees have cast their ballots in a representa- tion election. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of any right guaranteed them by Section 7 of the Act. GLADIEUX FOOD SERVICE, INC. DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge: This case was heard in Brooklyn, New York, on Febru- ary 27, 1980. The Union's charge was filed and served on August 29, 1979. The complaint alleging that Re- spondent's agent interrogated employees concerning their union membership, activities, and sympathies, and created the impression of surveillance of union meeting places and activities in violation of Section 8(a)(l) of the Act, issued on December 10, 1979. Respondent filed an answer denying the allegations material to a violation of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the brief filed by Respondent, I make the follow- ing: FINDINGS OF FACT I. JURISDICTION Respondent, an Ohio corporation engaged in the sale and distribution of food, newspapers, magazines, candies, and related products receives annual revenues in excess of $500,000, and annually purchases goods valued in excess of $50,000 which it receives at its various loca- 744 GIADIEUX FOOD SERVICE. INC lions directly in interstate commerce from States of the United States other than the State in which the locations are maintained. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 11. THE AlI ECiEI) UNFAIR I ABOR PRACICI.S A. The Facts The record in this case was based on the General Counsel's evidence that Manuel Ortiz, the manager of Respondent's location at La Guardia Airport in Queens, New York, interrogated an employee concerning an election ordered by the Board, and that Ortiz created the impression in a conversation with another employee that he knew how she had voted.' Elda Molero, a cashier employed by Respondent, testi- fied that in July 1979, she met Ortiz walking in the hall- way at La Guardia and that they began a friendly con- versation. During this talk, Ortiz asked Molero for whom she would vote in the forthcoming election and she replied, "the Company." The election took place on August 31, 1979. Three weeks after the election, Molero and Ortiz were engaged in another friendly conversation when Ortiz asked her who she thought had won the election. Molero replied, "I think it was the Company," and the two went on talking about other matters. Molero stated that she had responded truthfully to Ortiz. No other employees were present during either of these conversations, although both took place in public areas of the airport and other people were in view. Mo- lero's testimony was that she and Ortiz have been social friends and that she liked him and considered him a "nice guy." Molero was 18 years old when these events took place. Patricia Ann Wood, a clerk formerly employed by Re- spondent, testified concerning a conversation which took place 2 days after the election. Wood went to Ortiz' office on an errand related to her work. Another em- ployee was there, and during some discussion Wood could not recall, Ortiz said to her, "I heard you voted for the Union." Wood testified, "1 asked him who he heard that from, and he didn't tell me. He was laughing like he was kidding around." Wood stated that she told Ortiz that she had not disclosed her vote, asked him where he had heard how she voted, and told him that it was her own business. She was "mad" because her vote was none of his concern. Wood testified that "Mr. Ortiz was nice to everybody. He was everybody's friend." Wood did not state her age, but she appeared to be from 18 to 22 years old. Ortiz testified and did not deny making the statements alleged by Molero and Wood. Ortiz appears to be a middle-aged man. It was not disputed that Ortiz is a supervisor and an agent of Re- spxndent. Until September 1979. hen he was transferred. Ortiz as in charge of Respondent's operation at La Guardia. including 60 employees and several supers isors B. Positions of the Parties The General Counsel maintains that the test which should be used to determine whether a violation of Sec- tion 8(a)(1) has occurred is whether the supervisor's con- duct reasonably tended to interfere with the free exercise of the employees' rights under the Act. General Counsel asserts that the supervisor's "motive, courtesy or gentle- ness" are not crucial, nor is it material whether the coer- cion succeeded or failed or whether the employee and the supervisor are on friendly terms. In support of this position, the General Counsel cites Hanes Hosiery, Inc., 219 NLRB 338 (1975), and Florida Steel Corporation, 224 NLRB 45 (1976). Respondent contends that all of Ortiz' remarks are lawful under Section 8(c) of the Act because they "con- tained no threat of reprisal or force or promise of bene- fit." Citing Bushnell's Kitchen, Inc., 222 NLRB 110 (1976), Respondent argues that the guidelines therein set forth for determining whether an interrogation is lawful have been met in the instant case. Respondent asserts that there is no prior history of employer hostility, Ortiz did not appear to be seeking information on which to base action against individual employees, Ortiz is not high in the company hierarchy, the employees were not questioned in an atmosphere of unnatural formality, and their answers were not evasive and fearful. Respondent contends that Ortiz' remarks were isolated and innocuous in all the circumstances. Respondent distinguishes the cases cited by the Gener- al Counsel and argues that they are inapplicable. In Hanes Hosiery. supra, the interrogation took place over a 3-day period and preceded additional unfair labor prac- tices. In Florida Steel, supra, there was evidence of man- agement's hostility to the Union. Finally, Respondent asserts that there can be no find- ing that an unlawful impression of surveillance was cre- ated if the only evidence consists of polling of employ- ees, citing Agricom Oil seeds, Inc., 245 NLRB No. 70 (1979). C. Discussion and Conclusions It was clear from the demeanor of both Molero and Wood as they testified that they considered themselves friends of Ortiz and that they had no subjective feelings of fear or coercion during their conversations with Ortiz. Indeed, it is clear that Wood expressed her indignation freely to Ortiz and spoke her mind without hesitation in response to Ortiz' remarks concerning her vote. Nevertheless, Board precedents clearly establish that neither friendly relations between employees and an in- terrogating manager nor the employees' lack of fear render permissible any employer statements which have a tendency to be coercive and to interfere with employee rights. In Hanes, supra, the Board found that a series of ques- tions posed over a number of days by a supervisor who had a long and cordial relationship with the employee violated Section 8(a)(1) of the Act. The Board held that the questions concerning union meetings and union activ- ities of other employees which were a "prelude" to fur- ther unfair labor practices tended to coerce the employ- 745 DECISIONS OF NATIONAL LABOR RELATIONS OARD ees and to interfere with their rights. In Florida Steel, supra, although the member of management who asked the employee about his union sympathies and whether there had been any union meetings was a friend of the employee, the Board found a violation of Section 8(a)(l) of the Act. The Board has previously considered employer state- ments similar to the remarks made by Ortiz in the instant case. Employer questions and statements relating directly to an employee's vote in a Board election have been held to violate Section 8(a)(l) of the Act in that such interroga- tion tends to undermine the principle of the secret ballot. Thus, Ortiz' question to Molero asking her how she in- tended to vote in the forthcoming election constituted an unlawful coercive interrogation. 2 Further, Ortiz' statement to Wood that he had heard that she voted for the Union in the election unlawfully created an impression of employer surveillance of the employee's union activities. : The other issue presented concerns Ortiz' question to Molero as to her opinion of the outcome of the election. It has been held that no unlawful interrogation occurs where an employer asks an employee for an opinion about the probable outcome of an election but does not couple this with a request for information concerning the employee's personal wishes for or against the Union. 4 Therefore, I find that Ortiz did not unlawfully interro- gate Molero by asking her who she thought had won the election. I do not find Respondent's arguments persuasive for several reasons. Respondent relies on cases where em- ployees were lawfully polled to determine their wishes concerning union representation. In the instant case, a Board election had been ordered when Ortiz questioned Molero and there was thus no justification for polling employees.5 Further, in Bushnell, supra, relied on by Re- spondent, the employer did not ask how the employees would cast their ballots but merely asked if they favored union representation, and this was done in the presence of both the union president and business agent during a meeting at which the union demanded recognition. Final- ly, contrary to Respondent's contention, Ortiz did not "poll" Wood. Instead, he told Wood that he had heard she voted for the Union and thereby suggested that he had access to her secret ballot. Thus, he created the im- pression of employer surveillance of Wood's protected activities. In the circumstances of this case where Ortiz' questions related directly to employees' votes in an elec- tion, in view of the substantial age difference between Ortiz and Molero and Wood, and in view of Ortiz' man- 2 Clark Printing Company. Inc., 146 NLRB 121, 122 (1964) In the in- slant case, the information sought was quite specific and was designed to inform the highest placed member of management at La Guardia Airport of the precise nature of an employee's intended vote Thus, even the re- strictive test put frth by the Second Circuit in Bourne v. NL.R.B., 322 F.2d 47, 48 (1964), has been met in this case 3 Long Island Airport Limousine Service Corp., 191 NLRB 94 (1971), enfd. by the Second Circuit at 468 F 2d 292 (1972) Coosa 'alley Conva- lescent Center, 224 NLRB 1288 (1976) 4 Federal Stainless Sink Division of Unarco Industries. Inc., 197 NLRB 489, 500 (1972) s Clark Printing Co.. supra. agerial rank, I find that his conduct reasonably tended to interfere with employees in the exercise of rights guaran- teed by the Act. Blue Flash Express, Inc., 109 NLRB 591 (1954). CONCIUSIONS OF LAW 1. The Respondent, Gladieux Food Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning Section 2(5) of the Act. 3. By the following conduct Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act: (a) Coercively interrogating an employee as to the manner in which she intended to vote in a representation election. (b) Creating the impression that the manner in which an employee had cast her ballot in a representation elec- tion was under the surveillance of Respondent. 4. The unfair labor practices engaged in by Respond- ent set forth in c conclusions of Law 3, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. No other violations of the Act were committed. Ttl RMEI)Y Having found that Gladieux Food Services, Inc., en- gaged in certain unfair labor practices, I shall recom- mend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 The Respondent Gladieux Food Services, Inc., its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees as to the manner in which they intend to vote in a representation election. (b) Creating the impression that the manner in which its employees cast their ballots in a representation elec- tion was under the surveillance of the Respondent. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the purposes of the Act: In1 the ceent Io exceptions are filed as provided by Sec 102 46 iof the Rules and Regulations eof the National Labor Relations HBoard, the find- ings, conclusions. and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations. be adopted by the Board an become its findings, conclusions, and Order, and all objections thereto shall be deteld waived fr all purposes 746 GLADIEUX FOOD SERVICE. INC. (a) Post at its location at La Guardia Airport copies of the attached notice marked "Appendix. " 7 Copies of the notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it ' In the event that this Order is enforced by a Judgment of the United States Court of Appeals. the .ords in the notice reading "Posted hb Order of The National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of The United States Court of Appeals Enforcing an Order of the National Labor Relations Board" for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS lFURTHER ORDEREI) that the complaint be, and it hereby is, dismissed in so far as it alleges violations of the Act not specifically found herein. 747