Anchor Inns, Inc. d/b/a Anchor Inn Hotel of St. Croix

National Labor Relations Board - Board Decisions

Jul 21, 1982

262 N.L.R.B. 1137 (N.L.R.B. 1982)

ANCHOR INN HOTEL OF ST. CROIX
Anchor Inns, Inc. d/b/a Anchor Inn Hotel of St.
Croix and Gastronomical Workers Union of
Puerto Rico, Local 610, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO. Case 24-CA-4250
July 21, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 4, 1982, Administrative Law Judge
Almira Abbott Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a response to the General
Counsel'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 record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
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 and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety; that the certification
issued in Case 24-RC-6207 be revoked; and that
Case 24-RC-6207 be severed and remanded to the
Regional Director for Region 24 for the purpose of
conducting a new election at such time as he
deems that circumstances permit the free choice of
a bargaining representative.
I The General Counsel has excepted to certain credibility findings
made by the Administrative Laaw Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Ir., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951) We have carefilly examined the record and find no basis for re-
versing her findings.
DECISION
S1 ATEMEN1 OF THE CASE
ALMIRA ABBO I STEVENSON, Administrative Law
Judge: This matter was heard October 24, 1981, at Chris-
tiansted, St. Croix, U.S. Virgin Islands, on the National
Labor Relations Board's Order remanding the proceed-
ing to the Regional Director for hearing dated July 14,
198 1.
On July 18, 1980, the Board issued its Decision and
Order' in this case finding that Respondent had engaged
in and was engaging in unfair labor practices within Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act
by refusing, on and after July 10, 1979, to bargain with
the Union. The Union was certified on May 8, 1979, fol-
lowing an election conducted by the Board on Decem-
ber 15, 1978, in a unit of six service and maintenance em-
ployees employed at Respondent's St. Croix facility in
Case 24-RC-6207.2 The Board, among other things,
found no merit in the Respondent's contention, in sup-
port of its objection to the election, that the election
should be set aside because an agent of the Union threat-
ened employees with loss of their jobs if they did not
vote for the Union, or that a hearing should be held on
the objection; the Board also affirmed its denial of a
motion for reconsideration filed by Respondent in Case
24-RC-6207 on grounds of insufficient showing that the
evidence of alleged additional misconduct proffered in
support of the motion was previously unavailable or that,
if considered, it would require a different result. Thereaf-
ter on March 20, 1981, the United States Court of Ap-
peals for the Third Circuit denied enforcement of the
Board's Order and remanded tne case to the Board for a
hearing on Respondent's motion for reconsideration and
reevaluation of the objection if the validity of the elec-
tion were upheld after hearing on the motion for recon-
sideration. In its order remanding the proceeding to the
Regional Director for hearing, the Board directed that
the hearing encompass the issues raised in both the
motion and the objection.
The issues are whether or not (1) maintenance man
Hippolyte Victor was an agent of the Union; (2) he
threatened employees if they did not vote for the Union;
and (3) Victor's conduct interfered with the election.
Upon the entire record and my observation of the de-
meanor of the witnesses, and upon due consideration of
the briefs filed by Respondent and the General Counsel,
I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. HIPPOLYTE VICTOR'S ALLEGED AGENCY STATUS
Respondent asserts, and the General Counsel denies,
that Hippolyte Victor was an agent of the Union or was
invested with the apparent authority of a union agent to
the extent that his conduct was attributable to the Union.
Victor was the maintenance man at the Inn until he
was terminated by Proprietor Lon Southerland 9 months
after the election, in September 1979, on suspicion of
vandalizing the swimming pool. He did not appear or
testify at the hearing. There is no direct evidence that he
1 250 NLRB 767.
2 The vote was four for and one against the Union, with one challenge
which was not resolved. Names of the unit employees were Albert
Hughes, Cathenne Wade, Hermnnie Joseph, Lucille Daley, and Beatrice
Duncan. Hippolyte Victor was challenged by the Employer as a supervi-
sor, but no evidence has been presented that he was a supervisor. His
vote was not determinative of the outcome of the election.
262 NLRB No. 148
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was an agent of the Union, or that the Union was aware
of his conduct described below.
During the organizational campaign Victor advocated
election of the Union, and he told the employees in the
unit that Union Special Organizer Ralph Mandrew chose
him as the Union's representative at the Inn. None of the
employees asked Mandrew whether this was true or not
and Mandrew never told any of them that Victor was
the union representative, but all the employees informed
proprietor Southerland at one time or another that
Victor was the union representative.
Because of the small size of this unit, Mandrew did not
form an employee committee but instead did the organiz-
ing himself. It was Catherine Wade who made the initial
contact with Mandrew about bringing union representa-
tion to the employees of the Inn and it was to her that
he gave union authorization cards for distribution among
the employees and delegated the task of arranging the
first meeting with the employees on October 2, 1978.
Wade had been talked into making the contact with
Mandrew by Victor and a nonunit front-desk employee,
but there is no evidence that this was known by Man-
drew. Wade brought two signed authorization cards to
Mandrew, her own and that of one other employee;
Victor brought only his own card, as did two other em-
ployees in the unit. Mandrew first heard of Victor at the
October 2 meeting, when other employees informed him
Victor was on vacation; he first saw Victor when he
came to the union office on October 10 and signed a
card. Mandrew alone represented the Union at the pre-
election conference held at the Board's Regional Office
on November 13; no employee accompanied him. At an
employee meeting at the union office on December 6,
which Catherine Wade did not attend, the unit employ-
ees by consensus, and not Mandrew, designated Victor
to be the union observer at the polls. Mandrew gave
Victor nothing in writing and paid him no money either
during or after the campaign, and none of the employees
reported to Mandrew that Victor had threatened them.3
This evidence fails to establish that Victor was ever
designated by the Union to represent it in any capacity.
The organizing for the Union was done entirely by its
special organizer, Ralph Mandrew, whose office was lo-
cated in the same small city, Christiansted, St. Croix,
U.S. Virgin Island, at the Anchor Inn where these em-
ployees worked. Mandrew appointed no inplant organiz-
ing committee, and took none of the employees to the
I These facts are based on undisputed, mutually corroborative, and not
improbable credited testimony of Special Organizer Mandrew, Proprietor
Southerland, and employees Wade, Hermie Joseph, and Albert Hughes. I
have accepted this testimony by these witnesses without necessarily be-
lieving every detail of what each of them said. "It is no reason for refus-
ing to accept everything that a witness says, because you do not believe
all of it; nothing is more common ill all kinds of judicial decisions than to
believe some and not all." N.L.R.B. v. Universal Camera Corporation. 179
F.2d 749, 754 (2d Cir. 1950). In making these and other credibility find-
ings, I have taken into consideration that the failure without explanation
of the General Counsel and the Union to produce Victor as a witness
justifies the inference that his testimony would have been unfavorable to
them. Martin Luther King, Sr. Nursing Center, 231 NLRB 15, fn. 1 (1977).
I can find no support in the record for Respondent's contentions that the
employee gatherings in the Inn lunchroom during the campaign were or-
ganizational meetings held by Victor; or, except that it was Victor who
notified Hermie Joseph of the December 6 meeting, that he "served as
the communications link between the Union and the employees."
preelection conference at the NLRB Regional Office.
Mandrew was known to the employees and all save one
of the card signers delivered their cards to Mandrew
personally. He held at least two meetings with the em-
ployees and there was no indication that he was inacces-
sible. These facts clearly distinguish this case from
N.L.R.B. v. Georgetown Dress Corporation, 537 F.2d 1239
(4th Cir. 1976), relied on by Respondent. 4 Moreover, it
is settled Board law that service as an election observer
does not constitute one an agent of a union,5 and this is
particularly true where, as here, the Union took no part
in Victor's selection which was based, instead, on a con-
sensus of the unit employees. It is also settled that claims
of agency status made by an employee who is the pur-
ported agent do not establish such a relationship, even
though, as here, the unit employees, without checking
such claims with the Union, believe them.6 Contrary to
Respondent, I cannot, on this evidence, infer that Special
Organizer Mandrew or the Union knew or had reason to
know either of Victor's claims of representation or of his
conduct described below and failed to repudiate them.
Accordingly, I conclude that Hippolyte Victor was
not an agent of the Union or clothed by the Union with
apparent authority to the extent that his conduct was at-
tributable to the Union.'7
II. HIPPOLYTE VICTOR'S CONDUCT
Respondent contends, and the General Counsel denies,
that even if Victor was not an agent of the Union, he en-
gaged in conduct which created a general atmosphere of
fear of reprisal rendering a free choice of representatives
impossible.
A. The Motion for Reconsideration
The following facts were credibly testified t6 by em-
ployee Hermie Joseph: Victor told the employees before
the election that, if they did not join the Union, some-
body at the Union would get to them, and, if they did
not vote for the Union, somebody was going to get hurt.
Joseph felt he meant her because Victor was friendly
with the other employees but was not friendly with her.
Victor also told Joseph, at a gathering of employees in
the lunch room, that if she did not vote for the Union,
Victor would tell the manager she was a thief, stealing
from the Inn (which was not true), and she would lose
her job. Joseph was afraid of Victor because he threat-
ened her way of making a living, and so when he told
her she had to go to the union office and ask for a union
authorization card, she went. On the morning of the
election Victor told the employees they had to vote for
the Union.
· See The Cambridge Wire Cloth Company, Inc., 256 NLRB 1135
(1981).
5 Ibid.; Tennessee Plastics, Inc., 215 NLRB 315, 319 (1974).
6 Firestone Steel Products Company, A Division of Firestone 7Fre and
Rubber Company, 235 NLRB 548, 550; BuJkor-Pelzner Division, Inc., 169
NLRB 998, 999 (1968).
See Zeiglers Refuse Collectors. Inc. v. N.LR.B., 396 F.2d 1000 (3d
Cir. 1981); Abbott Laboratories, Ross Laboratories Division v. N.LR.B., 540
F 2d 662 (4th Cir. 1976).
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ANCHOR INN HOTEL OF ST. CROIX
I also credit testimony by Catherine Wade confirming
that Joseph reported to her that Joseph was physically
threatened by Victor; and by proprietor Lon Souther-
land confirming that Joseph, as well as Lucille Daley,
volunteered to him privately, 2 days before the election,
in a nervous, apprehensive, and fearful manner, that they
really did not see the need for a union.
When confronted with an affidavit she gave on Janu-
ary 22, 1979, to the Board agent investigating the Em-
ployer's objection to the election, to the effect that no
one threatened her if she voted against the Union, Joseph
testified that the affidavit was not true; she credibly ex-
plained that she swore to it falsely because Victor told
the employees that when a lady came from Puerto Rico
they were to tell her Victor had not threatened them and
thereby make a liar out of Southerland. She gave the
false affidavit, she said:
Because he make us do it. Because he was too
tough, so we do what he tell us to do. And what he
tell us to say in the statement.
Some months later, Joseph confided in her husband
about this matter and he told her Victor could not harm
her so, although she was still afraid of Victor, he told
Southerland the truth about what had happened, and
shortly thereafter on July 27, 1979, executed an affidavit
giving an accurate account of events. It was this step
which initiated the Employer's motion for reconsider-
ation, which was filed August 10, 1979.
When asked by the General Counsel whether she be-
lieved the Union would be good for her, Joseph respond-
ed:
Well, nobody did make up their mind to join the
Union in fact. But Victor insisted he was going to
tell us what and what and what, and we figured
we'll go through with it.
There is also evidence of the reasonableness of employee
fears that Victor was capable of carrying out his threats.
Thus, Catherine Wade, as corroborated by handyman
Albert Hughes, credibly testified that Victor had once
threatened to beat Wade up with a piece of pipe he kept
in the maintenance room, and, Wade added, Victor told
her he also had a gun in the trunk of his car and, "So,
what he can't take care of with his hands, he'd use the
gun"; and she believed him capable of carrying out his
threats of physical violence.8
s In crediting this testimony I have relied on the favorable demeanor
of these witnesses and its mutually corroborative undisputed nature. Al-
though Joseph testified at one point that her first affidavit was true, I at-
tribute this to confusion brought on by vigorous cross-examination. Con-
trary to the General Counsel, there is no basis for finding that Joseph or
any other employee was apprehensive of Southerland. I have considered
the evidence that Joseph added her signature under those of Victor and
other employees on a letter to the NLRB dated April 20, 1979, protesting
the delay in processing the Employer's objections and averring that the
employees had voted for the Union "of their own free will," but there is
no more basis for finding this act completely voluntary than there is for
finding Joseph's visit to the union office, her vote, and her first affidavit
completely voluntary. I consider Special Organizer Mandrew's testimony
with regard to the letter to be of limited, if any, value, as none of Vic-
tor's conduct with which we are here concerned was ever brought to
Mandrew's attention.
This evidence establishes that maintenance man Hippo-
lyte Victor threatened the employees in the unit with
physical violence if they did not join the Union and vote
for the Union and threatened one employee with the loss
of her job if she did not vote for the Union during the
campaign, and followed up with an intimidating state-
ment on the morning of the election. Although employee
Joseph felt she was the main brunt of Victor's threats, it
is clear that they encompassed the full scope of the small
unit. It is also clear that Victor was considered with
reason to be capable of violence and that the employees
acted in fear of his capability of carrying out his threats.
I therefore find that the election was conducted in an
atmosphere of fear of reprisal making it more than likely
that the employees cast their votes on the basis of intimi-
dation rather than the conviction characteristic of a free
and fair election.9
Accordingly, I recommend that the election be set
aside on this ground.
B. The Objection
Handyman Albert Hughes credibly testified that he
opposed the union campaign and that he informed Victor
he did not believe in unions. As to what Victor said to
him, Hughes phrased Victor's statement two different
ways, but I am convinced after studying his entire testi-
mony as well as his prehearing affidavit, that the correct
version is that Victor told him in effect that if the Union
won the election and Hughes did not join the Union
within 30 days, he would lose his job.t ° Hughes did not
ask Victor what he meant by this but he understood
Victor to mean he would have to quit if the Union won
the election. Hughes told employee Lucille Daley what
Victor said to him, and although he did not recall telling
any of the other employees, they informed him that
Daley repeated his remark to them.
In his comments to Hughes, Victor said nothing about
a union contract with the Employer but, Hughes testi-
fied, "if the Union was to win, I had the feeling that
there had to be a contract."
Hughes reported Victor's statement to Southerland be-
cause he was concerned about the possibility of losing
his job. Southerland told Hughes in effect that his job
was secure and that neither Victor nor the Union could
put him out of his job whether he was a member of the
Union or not. t
I Sonoco of Puerto Rico. Inc., 210 NLRB 493 (1974); Steak House Meat
Company. Inc., 206 NLRB 28 (1973); Poinsett Lumber and Manufacturing
Company, 116 NLRB 1732 (1956). Accord, Zeiglers Refuse Collections,
Inc. v. NL.R.B., supra. Abbott Laboratories. Ross Laboratories Division v.
N.L.R.B. supra, and N.LR.B. v. Griffith Oldsmobile, Inc., 455 F.2d 867
(8th Cir. 1972), relied on by the General Counsel to support his conten-
tion that there was no interference with the election, are distinguishable
on this issue in that, unlike the instant case, there was no evidence in
those cases that the threats were known throughout the units or that the
employees affected were intimidated.
'O Proprietor Southerland testified that Hughes told him Victor said
Hughes would lose his job within 30 days if he did not vote for the
Union. In my opinion this was a misunderstanding by Southerland, as it
does not comport with Hughes' affidavit or any of his testimony.
I Based on the uncontradicted credited testimony of Hughes. Souther-
land could not recall his response when told of Victor's remark.
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only reasonable interpretation of Victor's remark
which occurs to me is that although not meticulously
spelled out, he was referring to the possibility of obtain-
ing a union-security contract if the Union should win the
election. In that event, under Section 8(aX3 ) of the Act
employees could lawfully be required as a condition of
employment to join the Union within 30 days of hire or
within 30 days of the effective date of the contract
whichever was later. Hughes, who was aware that a
union victory could be expected to lead to the execution
of a collective-bargaining agreement, felt threatened by
this possibility because of his opposition to unionism, but
it was not a threat that a union advocate such as Victor,
or even a union official, was prohibited from making, be-
cause the Union could be expected to try its best to per-
suade the Employer to agree to a union-security contract
if it should win the election. If the Union could not
obtain Employer agreement to such a contract, of
course, then Hughes' fears would turn out to be ground-
less, and he had Southerland's reassurances on this score.
Accordingly, as the possibility of Hughes' losing his
job for refusing to join the Union depended on a union
victory in the election and the Employer's agreement to
a valid union-security contract, in which case Hughes'
job loss would be lawful, and as Southerland's reaction
made even this possibility remote, I cannot find that Vic-
tor's remark interfered with a free election, and I recom-
mend that the objection be overruled.
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:
ORDER 1 2
The complaint in Case 24-CA-4250 is dismissed in its
entirety.
IT IS FURTHER ORDERED that the election held on De-
cember 15, 1978, among the Respondent's employees be
set aside, that the certification of the Union be revoked,
and that Case 24-RC-6207 be severed and remanded to
the Regional Director for Region 24 for the purpose of
conducting a new election at such time as he deems that
circumstances permit the free choice of a bargaining rep-
resentative.
1' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1140