Blazes Broiler

National Labor Relations Board - Board Decisions

Mar 19, 1985

274 N.L.R.B. 1031 (N.L.R.B. 1985)

BLAZES BROILER
Blazes Broiler and Darlene -Kaiser, Petitioner and
Hotel and Restaurant Employees International
Union , Local 8 , AFL-CIO. Case 19-UD-360
19 March 1985
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board has consid-
ered objections to a union-security 'deauthorization
election held 6 November 1984 and the hearing of-
ficer's report' recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement. The tally of ballots shows
19 for and 12 agamst2 withdrawing the authority
of the bargaining representative to require, under
its agreement with the Employer, that membership
in the Union be a condition of employment.
The Board has reviewed the record in light of
the exceptions and brief, has adopted the hearing
officer's findings and recommendations, and finds
that a certification of results of election should be
issued. 3
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the employees
eligible to vote has not voted to withdraw the au-
thority of Hotel and Restaurant Employees Inter-
national Union, Local 8, AFL-CIO, to require,
under its agreement with the Employer, that mem-
bership in the Union be a condition of employment.
' Attached as an appendix
z Approximately 39 employees were eligible to vote
s In agreeing with the hearing officer that the Employer's objections
lack merit, Member Hunter would overrule Performance Measurements
Co, 148 NLRB 1657 (1964), a case relied on by the Employer In that
case the Board set aside an election because of the presence of the em-
ployer's president during the polling period at a location where employ-
ees were required to pass in order to enter the polling place Even
though the president engaged in no electioneering the Board found that
the employer's conduct interfered with employee free choice in the elec-
tion
To the extent that the Board in Performance Measurements established a
per se rule that the mere presence of a party to an election outside the
polling area constitutes objectionable conduct, Member Hunter disagrees
with that decision In his opinion, no per se rule is warranted Rather,
whenever any party, regardless of whether it is a union agent or an em-
ployer agent, stays outside the polling area during an election, Member
Hunter would examine all the circumstances present in the case and de-
termine whether the conduct, under the circumstances, is sufficient to
warrant an inference that it interfered with the free choice of the voters
See, e g , Del Rey Tortilleria, 272 NLRB 1106 (1984), Boston Insulated
Wire Co, 259 NLRB 1118 (1982), and B E & K, Inc, 252 NLRB 256
(1980) Accordingly, he would overrule Performance Measurements
APPENDIX
HEARING OFFICERS REPORT ON
OBJECTIONS AND RECOMMENDATIONS
1031
Pursuant to a Stipulation for Certification Upon Con-
sent UD Election, approved by the Regional Director on
October 15, 1984, an election was conducted by secret
ballot on November 6, 1984, among employees in the fol-
lowing unit-
All employees employed by the Employer at its
2622 N.W. Market, Seattle, Washington operation,
excluding all office clerical employees, maintenance
employees, supervisors and guards as defined in the
Act and professional employees.
An official tally of ballots was served upon the parties
on August 24, 1984, setting forth the following results:
Approximate number of eligible voters..... 39
Void ballots ............. .............. 0
Votes cast'in favor of withdrawing the authority of
the bargaining representative to require, under its
agreement with the Employer, that membership in
such Union be a condition of employment ...... 19
Votes cast against the above proposition. 12
Valid votes counted ... . .............. 31
Challenged ballots ................. ......0
On November 13, 1984, the Employer filed timely ob-
jections to the Union's conduct affecting the results of
the election, copies of which were served on all parties.
On November 28, 1984, the Regional Director issued a
Report on Objections and Direction and Notice of Hear-
ing in which he concluded that the issues presented
raised substantial and material questions of fact which
would best be resolved at a hearing. Pursuant thereto, a
hearing was held on December 10, 1984 in Seattle,
Washington, before the undersigned Hearing Officer.
Representatives of the Employer and the Union were
present at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to
introduce relevant evidence, and to provide oral argu-
ments.
Upon the entire record in this proceeding, and from
my observations of the witnesses, I make the following
findings of fact, conclusions, and recommendations
FINDINGS OF FACT AND CONCLUSIONS
Background
The Employer operates a restaurant located in Seattle,
Washington. The UD election of November 6, 1984 was
conducted during two voting sessions The objections
filed pertain to the conduct of the Union's business
agent, Glenn Hughes, during the second session held
from 5:00 to 6:00 p.m on the Employer's premises. A
pre-election conference was held by the Board Agent
conducting the election, Laurie Halpern, one-half hour
prior to the first session.
274 NLRB No. 158
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Objections
The Employer's objections to conduct affecting the re-
sults of the election are as follows:
a. The presence of the Union's agent, Glenn Hughes,
in the voting area and close to the voting booth while
the polls were open during an election; and
b Conversations with bargaining unit employees in the
voting area while the polls were open during an election.
It is undisputed that Union business agent Glenn
Hughes was in the restaurant during the second voting
session. Except for a 15 minute visit to the bar for a Tab,
he was seated at a table approximately 20 feet from the
entrance to the banquet room where the voting was
being conducted . It is also undisputed that from a sitting
position, the entrance to the banquet room and the hall-
way approaching the door, which was open, are blocked
by a 5 foot wall. Because of the protruding wall, the
actual travel distance from Hughes' location to the ban-
quet room is closer to 30 feet. At no time did Hughes
enter the 15 foot corridor leading to the banquet room
and at no time was there a lineup of employees in the
corridor waiting to vote.
There were employees entering and leaving the corri-
dor who passed within a few feet of Hughes. Employees
were setting up for the evening dinner customers and en-
tered the hallway to use the coffee and service counter.
The time clock is also located at the far end of the hall
near the entrance to the banquet room. No testimony
was presented that any of these employees were actually
on their way to vote when they passed Mr Hughes. The
Employer's witness, the Petitioner Darlene Kaiser, hov-
ered around the area where Hughes was seated She tes-
tified that she saw only one person, Rhonda, enter the
banquet room, however she did not indicate whether she
passed by Hughes or entered by the time clock near the
kitchen.
Kaiser also testified that Hughes on occasion stood up
and that if one were standing, one could see over the
wall to the banquet room door. Hughes admits he got up
to go to the bar and that his return route gave him a
view down the corridor to the banquet room entrance,
but that he did not look down there. Even if he had
looked down the corridor or stood up to stretch while
seated at the table, I find these movements to be isolated
and of no impact on the outcome of the election.
The Employer asserts that Hughes' location was in the
voting area. Board Agent Halpern testified that she des-
ignated the banquet room and two corridors leading to
the two banquet room doors as the "polling area," and
instructed that all parties should remain away. Hughes
was clearly located outside the designated polling area,
and was in an area open to the public. Kaiser testified
that the station where Hughes was seated was not open.
Hughes, however, states that across the room in another
area a couple were dining. This testimony was uncontra-
dicted and, I therefore conclude that the dining room
was open to the public even though the particular station
where Hughes was seated was not yet open.
It is undisputed that Hughes had conversations with
bargaining unit employees while he was seated at the
table including the Petitioner Kaiser. There is, however,
no evidence of electioneering by Hughes. Kaiser states
that she did not hear all of Hughes' conversations, but
that what she did hear was not electioneering, but small
talk. Besides the employees who talked width Hughes at
his table, he also talked briefly to the cashier, the bar-
tender, and the cocktail waitress, but here again there is
no evidence of electioneering.
The Employer argues that the voting area or polling
area extends beyond the area designated by the Board
Agent. For support of his position the Employer cites
Performance Measurement Co., 148 NLRB 1657 (1964)
and Star Expansion Industries Corporation, 170 NLRB
364 (1968). In Star Expansion the union's chief observer
electioneered right outside the entrance to the cafeteria
where the election was being held. In the present case
there is no evidence of electioneering and Hughes was
not stationed just outside the entrance to the banquet
room Although Performance Measurement involves a
nonelectioneering case, it does involve an Employer's
President who stationed himself by the door to the
voting area where he could observe exactly who went in
to vote. In the present case Hughes had no direct view
of the door to the banquet room. Although he could see
who entered the hallway leading to the banquet room,
the hallway also leads to the coffee service area, the time
clock and the kitchen area. He had no way of knowing
who was entering the hallway to vote and who was en-
tering to perform job related duties, or heading to the
time clock to check in or out.
Although Hughes did have extended conversations
with some employees, the rule established by the Board
in Milchem, Inc., 170 NLRB 362 (1968) does not apply to
prospective voters unless the voters are, (as was not true
in the present case), in the polling area or in line waiting
to vote. Westwood Horizons Hotel, 270 NLRB No. 116
(1984), Boston Insulated Wire & Cable Co., 259 NLRB
1118 (1982), and Harold W. Moore & Son, 173 NLRB
1258 (1968). There is also no evidence that Hughes was
near the voting booth as alleged by the Employer.
SUMMARY
Because Hughes was seated outside the designated
polling area , never entered in the designated polling area,
and made no electioneering statements to employees, I
conclude that the Employer's objections lack merit. I
therefore recommend that they be overruled, and that
the Regional Director issue a Certification of Results
Right to Review
Pursuant to Section 102.69 of the Board's Rules and
Regulations , within ten (10) days from the date of issu-
ance of the Hearing Officer's Report, any party may file
with the Board an original and eight (8) copies of excep-
tions hereto, with supporting brief, if desired, which shall
BLAZES BROILER 1033
be printed or otherwise legibly duplicated Immediately Section 102.69(f) as to the time limit for filing an answer-
upon filing of such exceptions, the party filing the same mg brief to the exceptions.) If no exceptions are filed to
shall serve a copy thereof, together with a copy of any the Hearing Officer's Report, the Board may decide the
brief filed, upon each of the other parties simultaneously matter forthwith upon the record or make other disposi-
and submit to the Board a statement of such service. (See tion of the case.