El Caballo

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marconi, Inc., d/b/a El Caballo and Local 28, Hotel & Restaurant Employees and Bartenders Union, AFL-CIO, Petitioner. Case 32-RC-863 August 12, 1980 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE 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 November 15, 1979, and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the Employer's "Statement," which we shall consider to be in the nature of exceptions and a brief, and hereby adopts the Regional Director's findings and recommendations with regard to Ob- jections 3, 4, 5, 6, 7, and 8. We find merit, howev- er, in the Employer's exceptions with regard to the Regional Director's disposition of Objectionsl and 2 and his recommendation that the Petitioner be issued a certification of representative. Objections 1 and 2 allege, respectively, that the Union threatened employees with deportation unless they executed union authorization cards and/or voted for the Union, and that statutory su- pervisors campaigned for the Union. The Regional Director found, and we agree, that Second Chef Montano is a supervisor within the meaning of Sec- tion 2(11) of the Act. He further found that Mon- tano (1) signed an authorization card in the pres- ence of several employees; (2) distributed cards to at least two other employees; (3) "on many occa- sions," when asked by employees what he thought of the Union, replied that the Union "was good and would mean higher wages and better insurance benefits and that they should vote for" the Union; and (4) told an employee that the Union had tried to organize the Employer once before, and, when it failed to do so, called in the Immigration and Naturalization Service, that that action resulted in I' he election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally ,as 32 for. and 24 against. the Petitioner there ere 4 challenged ballots, a insufficienlt nlumber to affect the results 251 NLRB No. 9 the deportation of a number of the Employer's il- legal alien employees, and that "the same thing would happen if the employees did not vote for [the Union] this time around." The Regional Direc- tor, relying on Stevenson Equipment Company, 174 NLRB 865 (1969), and a series of related cases, concluded that Montano's conduct did not rise to the level of objectionable conduct. We do not agree. The vice of supervisory participation in organiz- ing campaigns is that such conduct either may lead employees reasonably to believe that the employer favors the union-which is not the case here-or, alternatively, may coerce them into supporting a union out of fear of future retaliation by a union- oriented supervisor.2 The Regional Director found that the coercion issue raised by Objections I and 2 is controlled by Board precedent. The cases on which he relied, however, are inapposite factually and have no pertinent dispositive relevance to the issues under consideration. Instead, they concern situations where the offending supervisors no longer are employed, and, therefore, are incapable of exerting any coercion;3 where the supervisors still are employed, but did not engage in any threatening or coercive conduct; 4 or where the ac- tivity is by nonsupervisors. 5 Unlike any of the above-cited cases, the evidence clearly establishes that union-bent Montano still oc- cupies his supervisory position and at the time of the election was in a position to thrust his prounion sympathies onto the employees and to implement his threat. Given the context in which the threat was made and the quid pro quo Montano sought to exact, it is not unreasonable to conclude that the impact thereof on the employees was sufficiently heavy and disturbing so as to impair their freedom of choice in the election. We find, therefore, that the conduct in which Montano engaged constitutes interference with the employees' free election choice and warrants setting aside the election. [Direction of Second Election and Excelsior foot- note omitted from publication.] Sltevenvon Equipment Comnpany. upro. ' Cf. Stevenson Equipment Company. upru. urner'v Expres, Incorporated. 189 NLRB 10) (1971); Gary ,4ircruft (rporipatorn, 220 Nl.RH 187 (1975); i4d lra Perolliun Corpratron 24() NlRB 894 (1979) .,A(, }Yuroe~A & Sors, 225 NIRB 14 (19761