Best Western Motel

National Labor Relations Board - Board Decisions

Apr 21, 1980

248 N.L.R.B. 1319 (N.L.R.B. 1980)

BEST WESTERN MOTEL 1319
Pacific Motel Corp. d/b/a Best Western Motel and
Hotel-Motel-Restaurant-Cafeteria and Miscella-
neous Employees, Local 162 a/w Hotel & Res-
taurant Employees and Bartenders International
Union, AFL-CIO, Petitioner. Case 11-RC-
4801
April 21, 1980
DECISION AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, PENELLO, 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 and
challenged ballots cast in an election held on De-
cember 10, 1979,1 and the Regional Director's
report, attached hereto in pertinent part as Appen-
dix A, recommending disposition of same. 2 The
Board has reviewed the record in light of the ex-
ceptions and brief, and hereby adopts the Regional
Director's findings and recommendations. 3
I The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was 17 for, and 17 against, the
Petitioner; there were 10 challenged ballots, a sufficient number to affect
the results.
2 We make the following correction of an apparently inadvertent error
in the Erratum issued by the Acting Regional Director. The phrase "with
an arrow pointing to the 'Yes Box' of the ballot" in the next to last sen-
tence of the text of the Erratum should read "with an arrow pointing to
the 'No Box' of the ballot." This correction appears in the excerpt of the
Regional Director's report attached hereto.
3 We find no merit in the Employer's exceptions to the Regional Di-
rector's recommendation that "paragraph (B) of Petitioner's Other Acts"
be sustained. In the absence of exceptions, we adopt, pro forma, the Re-
gional Director's recommendations with respect to the remaining objec-
tions of the Petitioner and the challenged ballots. In the absence of ex-
ceptions, we also adopt, pro forma, the Regional Director's recommenda-
tion that Employer's Objections I and 2 be sustained.
In joining in the Decision herein with respect to "paragraph (B) of Pe-
titioner's Other Acts" Member Penello notes that, although he generally
will not consider matters that are not specifically alleged in timely filed
written objections, he indicated in his dissenting opinion in Dayton Tire &
Rubber Co., 234 NLRB 504, 509 (1978), that he regards as an exceptional
circumstance instances "wherein the investigation of the alleged objec-
tionable conduct discloses an unalleged flagrant abuse of the Board's pro-
cesses." Member Penello finds that the instant case falls under this excep-
tion.
Member Penello further notes that he finds the facts in this case distin-
guishable from those in Mercury Industries Inc., 238 NLRB No. 124
(1978), relied on by the Regional Director. As he noted in his dissenting
opinion in Mercury, the source of the alteration on the ballot therein was
248 NLRB No. 179
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
clearly identified on the face of the ballot, thus, there was no suggestion that
the injunctive propaganda appeared with the Agency's approval In the instant
case. however, the reproduction of the ballot is accompanied by the directive
"V'ote ho. " but there is no indication anywhere on the face of the material
that the Employer is the source of the propaganda See EDM of Texas Div.
of Chromalloy American Corp., 245 NLRB No 119 (1979) He is not per-
suaded by the Employer's contention that the source of the leaflet was
identified since it was passed out at a meeting held by the Employer, for
the reason that there is no identification of the source actually on the face
of the material.
APPENDIX A
Other Acts:
(B) The investigation also revealed that the Em-
ployer held a meeting of all employees on Decem-
ber 7, at which supervisor Charles Walker held up
a sample ballot (hereby attached as Petitoner's Ex-
hibit A) and explained the various possibilities to
the assembled employees. He testified that he did
not tell the employees which way they should
mark their ballot, only which box to mark for
either choice. At the end of the meeting or during
the meeting, Walker testified that General Manager
Lonnie Woolsey handed each employee a copy of
a sample ballot (hereby attached as Petitioner's Ex-
hibit B [omitted from publication]). This sample
ballot is a replica of the Board's sample ballot and
has the writing "Vote No" on it, and also in large
type, the statement, "Your X in this square of the
official ballot will mean that you do not want the
union," with an arrow pointing to the "No Box" of
the ballot. Nowhere on the ballot does it indicate
that the Employer was the author of the language
on the Board's sample ballot.
In Mercury Industries, Inc., 234 NLRB No. 124,
the Board reaffirmed their determination in Allied
Electric Products, Inc., supra, and restated their ad-
herence to the doctrine, ". . . that we will not
permit the reproduction of any writing which pur-
ports to be a copy or rendering of the Board's offi-
cial secret ballot, 'other than one completely unal-
tered in form and content."'
Thus, based on the foregoing, I recommend that
paragraph (B) of Petitioner's Other Acts be sus-
tained.
BEST WESTERN MOTEL