Fall River House, Inc.

National Labor Relations Board - Board Decisions

Apr 4, 1972

196 N.L.R.B. 74 (N.L.R.B. 1972)

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fall River House, Inc.' and Hotel, Motel, Restaurant , 1971, the Board ordered a hearing on the identity of
Cafeteria and Bartenders Union Local No. 99, AFL- the Employer.
CIO, Petitioner. Case I-RC-10918 On November 5, 1971, after due hearing, the Hear-
April 4, 1972
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, JENKINS , AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved on January 5, 1970, an
election by secret ballot was conducted on February
4, 1970, under the direction and supervision of the
Regional Director for Region 1 among the employees
in the stipulated unit. On January 29, 1970 the Em-
ployer filed unfair labor practice charges 2 and at the
conclusion of the election the ballots were held im-
pounded pending disposition of the charges. Follow-
ing an investigation of the Employer's charge, the
Regional Director refused to issue a complaint. The
Employer appealed and was sustained by the General
Counsel and a complaint issued July 7, 1970. On No-
vember 16, 1970, the Union entered into a settlement
of the complaint, and the Regional Director thereafter
ordered that the impounded ballots be opened and
counted. On December 9, 1970, the Board denied the
Employer's request for special permission to appeal
this order. On December 16, 1970, the parties were
furnished with a tally of ballots which showed that of
approximately 35 eligible voters, 21 cast ballots, of
which 11 were for, and 9 against, the Petitioner, with
I challenged ballot. The challenged ballot was not
sufficient to affect the results of the election.
On December 22, 1970, the Employer filed timely
Objections to Conduct of Election and to Conduct
Affecting Results of the Election. The Regional Di-
rector conducted an investigation of the objections
and on January 5, 1971, issued and served on the
parties his Report on Objections. In his report, the
Regional Director recommended that the Employer's
objections be overruled in their entirety and that the
Petitioner be certified as the collective-bargaining
representative of the employees in the unit described
below. On January 22, 1971, the Employer filed time-
ly exceptions to the Report on Objections. On June 3,
1971, the Board ordered a hearing on certain objec-
tions to determine the impact the conduct of a super-
visor, Wilbur Heffner, had on the election and the
Employer's knowledge of that conduct; and it over-
ruled the Employer's other exceptions. On July 22,
1 The Employer's name is hereby amended as reflected in the record
ing Officer issued a report recommending that the
Employer's referred objections be overruled and that
Fall River House, Inc., be found the successor-em-
ployer. On November 30, 1971, the Employer filed
timely exceptions to the Hearing Officer's Report on
Objections.
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 reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the policies
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
All employees employed by the Employer in its
restaurant and bar operations at its motel in Fall
River, Massachusetts, but excluding all other em-
ployees, office clerical employees, guards, profes-
sional employees, and supervisors as defined in
the Act.
5. The Board has considered the Hearing Officer's
report, the Employer's exceptions and the entire rec-
ord in this case and hereby adopts the findings,3 con-
clusions, and recommendations of the Hearing
Officer, as amplified below.
During the hearing two witnesses were called. The
Employer called John Hughes, the Innkeeper (manag-
er), who testified on the substantial employee turn-
over. No attempt was made to show that this was in
any way related to Heffner's prounion activities. The
Petitioner called Mrs. Roussin, an employee and un-
ion organizer, who testified that Heffner was a union
trustee, who, to her knowledge, never engaged in so-
8(bxl)(A) of the Act by utilizing as its agent a supervisor of the Employer
to solicit employees to sign union cards and to urge them to join the Union
7 We note the following mmor error in that section of the Hearing Officer's
Report on Objections entitled "Findings of Fact and Conclusions" which in
no way affects the result in this case . The Hearing Officer correctly refused
to admit into evidence the documents relating to Case 1-CB-1576, but in his
reasoning inadvertently stated that the election was conducted after the
Petitioner had complied with its obligations to post the notices which were
2 In Case l -CB-1576 the charges alleged that the Union violated Section part of the settlement in Case I -CB-1576.
196 NLRB No. 17
FALL RIVER HOUSE, INC.
liciting cards or in any prounion activity, but did at-
tend all the union meetings.
The Hearing Officer admitted into evidence the af-
fidavits of four unavailable witnesses: Heffner, David
Vilela and John Madeiros, both employees, and Ro-
land Martineau, the union business agent. These affi-
davits, which were basically mutually corroborative,
describe Heffner's prounion activities 4
The Hearing Officer found that Heffner did engage
in prounion activities, but that the impact of these
activities was insufficient to set aside the election; that
there was no evidence proving the Employer had
knowledge of those activities; and that Fall River
House, Inc., is a successor-employer to Fall River
Hotel Operating Corp. We agree with these findings.
The record indicates that Heffner was hired as a
dishwasher at $2 per hour during April 1969; promot-
ed to steward, which involved buying food, supervis-
ing, and bartending at $125 per 60-hour week, in
September 1969; and promoted to assistant manager
January 1, 1970.
Heffner's union activities consisted of joining the
Union on October 6, 1969, soliciting two other em-
ployees to sign authorization cards during October
1969, becoming a union trustee in November 1969,
and soliciting a third employee to sign an authoriza-
tion card November 21, 1969. The Union relieved
Heffner of his trustee position January 1, 1970, after
learning that he had been promoted to assistant man-
ager; Heffner also signed a withdrawal card on the
same date. During the election campaign Roussin, the
main union organizer, solicited about 15 authoriza-
tion cards from employees. The majority signed in
October 1969; the few who signed the cards during
late November and December 1969 were told by
Roussin that Heffner was a union trustee.
Heffner's total union activities consisted of solic-
iting three authorization cards and being a union trus-
tee for less than 2 months from November 1969 to
January 1, 1970. Heffner solicited the three cards be-
fore the election petition was filed on December 9,
° The Hearing Officer correctly found that Heffner's statements did not
support a finding that the impact of his prounion activities was great enough
to set aside the election , but incorrectly found that there was a contradiction
between Heffner's and Vilela's affidavits which made Heffner's affidavit
unreliable and as such could not be used to weigh the impact of Heffner's
activities.
75
1969. Subsequent to the filing of the election petition,
Heffner's union activities were limited to being a un-
ion trustee without any campaigning, electioneering,
or soliciting of cards. Heffner was a trustee for 3
weeks after the election petition was filed and was
relieved of his trustee position 5 weeks before the
February 4, 1970, election.
Heffner was a minor supervisor with few opportu-
nities for affecting the employees in the unit; his un-
ion activities were limited, he did not use his
supervisory position to coerce the employees, his so-
liciting stopped before the election petition was filed,
and he was relieved of his trustee position after the
petition was filed, but 5 weeks before the election.
The Employer distributed antiunion pamphlets.
The previous assistant manager, Heffner's predeces-
sor, was also known to have been antiunion. The em-
ployees were aware of the Employer's union hostility
and could have easily reported to him any prounion
pressure from Heffner; this would further mitigate the
impact of Heffner's union activities and also eliminate
the possiblity that the employees would believe that
the Employer favored the union.
Accordingly, for the foregoing reasons, we find that
the prounion activities of a supervisor, Heffner, did
not impair the employees' freedom of choice in the
election or constitute interference which would war-
rant setting aside the election; we also find that Fall
River House, Inc., is the successor-employer to Fall
River Hotel Operating Corp.
Therefore, as we have overruled the objections and
as the tally of ballots shows that the Petitioner has
received a majority of the valid votes cast, we shall
certify the Petitioner as the employees' representative.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for the Hotel , Motel, Restau-
rant , Cafeteria and Bartenders Union Local No. 99,
AFL-CIO, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
labor organization is the exclusive representative of
all the employees in the unit found appropriate herein
for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other
conditions of employment.