El Cid, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1976

222 N.L.R.B. 1315 (N.L.R.B. 1976)

EL CID, INC. 1315
El Cid, Inc. and Valerie Walkerling , Petitioner and
- Hotel, Motel, and Restaurant Employees ' and Bar-
tenders' Local No. 294, AFL-CIO.' Case
19-RD-751
March 10, 1976
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was con-
ducted on January 17, 1975, among the employees in
the appropriate unit set forth in the stipulation. The
tally of ballots furnished the parties showed that, of
approximately 36 eligible voters, 31 cast valid ballots
of which 12 were for and 14 against the Union. There
were five challenged ballots which were sufficient to
affect the results of the election. Thereafter, the
Union filed timely objections to the election. On
March 11, 1975, the Acting Regional Director issued
and served on the parties his Report on Challenged
Ballots, Objections to Election and Direction of Sec-
ond Election. On March 14, 1975, he issued an erra-
tum correcting an inadvertent error in his report re-
lating to the challenged ballots. In his report, as
corrected, the Acting Regional Director recommend-
ed that three challenges be sustained, that one be
overruled, and that no action be taken on the re-
maining challenge as it would not be determinative
of the results of the election.' He also recommended
that Objection 2 be sustained and all others be over-
ruled. Thereafter, the Employer filed timely excep-
tions to the Acting Regional Director's findings and
recommendation pertaining to Objection 2.
On May 21, 1975, the Board issued its Decision
and Order Directing Hearing adopting the findings
and recommendations to which no exceptions had
been filed and directing a hearing be held to resolve
all issues raised by Objection 2.
A hearing pursuant to the Board's decision and
order was held on June 19, 1975, at which time the
Employer, the Petitioner, the Union, and counsel for
the Regional Director for Region 19 appeared and
participated. All parties were afforded full opportu-
nity to be heard, to examine and cross-examine wit-
nesses, to introduce evidence bearing upon the issues,
The name of the Union appears as amended at the hearing.
and to present oral argument to the Hearing Officer.
On July 14, the Hearing Officer issued his Report
and Recommendations on Objection to the Election
in which he recommended that the results of the elec-
tion be set aside and a second election be held.
Thereafter, the Employer filed timely-exceptions, and
a supporting brief, to the Hearing Officer's, report.
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.
Upon consideration of the entire record in this
case, including the Hearing Officer's report, the
Employer's exceptions thereto, the Union's motion
to reject Employer's exceptions,3 and the Employer's
opposition to the Union's motion, the Board has de-
cided to reject the recommendation of the Hearing
Officer that Objection 2 be sustained and to certify
the results of the election.
The Union's Objection 2 alleged that the Employ-
er "promised benefits to employees if they would
vote against the Union representation." In recom-
mending that this objection be sustained, the Hear-
ing Officer found that the Employer's promise, in the
event the Union lost the election, that employees
would receive health insurance comparable to that
provided under the existing contract with the Union
precluded the holding of a fair election.
On January 15, 1975, 2 days before the election,
the Employer held a meeting with employees at
which questions were raised as to the status of the
employees' health insurance plan if, as a result of the
Union's loss of the election, the current union trust
insurance program were terminated. The Hearing
Officer concluded that the effect of the Employer's
replies to the numerous questions of employees con-
cerning health insurance was to promise "that in the
event the Union lost the election the Employer would
attempt to make certain that the employees would be
covered by a health insurance plan comparable to
the Union's." Relying on I. C. Refrigeration Service,
Inc., 200 NLRB 687, 695 (1972), which involved an
employer's attempt to persuade an employee to
abandon the Union by the promise of a medical plan
"comparable to what the Union could offer" and
other cases which found violations of Section 8(a)(1)
in promises to offer what the Union has to offer, the
Hearing Officer held the Employer's promise here in-
terfered with the employees' free choice in the elec-
tion and recommended that the election be set aside.
We do not believe that those cases in which an
employer makes promises of future benefits to match
2 The Board's decision dated May 21, 1975, and the Hearing Officer's 3 The Union's motion to reject Employer's exceptions and brief in opposi-
report dated July 14, 1975, which are discussed hereafter, inadvertently tion to Hearing Officer's report, which were served on the Union's attorney
misstate the action of the Acting Regional Director on the challenged bal- but not on the Union, is hereby denied in the absence of any showing of
lots. prejudice to the Union.
222 NLRB No. 201
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Union's promises are pertinent to a decertification
election situation, like the present one, where the em-
ployer promises only to maintain the status quo if the
Union loses the election. In the instant case, the Em-
ployer promised nothing more than the employees
already enjoyed. The employees had been repre-
sented by the Union for a period of time. The em-
ployees present at the meeting knew that the Em-
ployer had made health and welfare payments to a
union plan under its collective-bargaining agreement
with the Union. The Employer thus had the right to
assure the employees that it would continue to make
comparable payments to a private plan and that they
would continue to receive comparable health cover-
age. In these circumstances, the Employer was not
offering or promising new or increased benefits to
the employees, but was simply advising them he
would maintain the status quo.
We conclude that this assurance did not interfere
with the employees' free choice in the decertification
election and therefore overrule Objection 2.
As the tally of ballots shows that the Union has
not received a majority of valid votes cast in the elec-
tion, and as the outstanding challenged ballots are
insufficient in number to affect the results, we shall
certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Hotel, Motel, and Res-
taurant Employees' and Bartenders' Local No. 294,
AFL-CIO, in the election held herein, and that said
labor organization is not the exclusive representative
of the employees, in the unit herein involved, within
the meaning of Section 9(a) of the National Labor
Relations Act, as amended.
MEMBER FANNING, concurring:
For reasons set forth in my separate opinion in
Ellex Transportation, Inc., 217 NLRB No. 120 (1975),
I agree with my colleagues that the Employer did not
interfere with the employees' free choice in the elec-
tion by promising nothing more than the mainte-
nance of existing benefits.
*U S GOVERNMENT PRINTING OFFICE 1977-241-754/1