Food & Commercial Workers Local 347 (Best Western)

National Labor Relations Board - Board Decisions

Aug 15, 1984

271 N.L.R.B. 1004 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Food Store Employees Union, Local 437, United
Food & Commercial Workers International
Union, AFL-CIO-CLC and Stanton Enter-
prises d/b/a Best Western, Elk River Inn
West Virginia Inns d/b/a Holiday Inn, Heart-O-
Town and Food Store Employees Union, Local
347, United Food & Commercial Workers Inter-
national Union, AFL-CIO-CLC, Petitioner
Stanton Enterprises d/b/a Best Western, Elk River
Inn and Food Store Employees Union, Local
347, United Food & Commercial Workers Inter-
national Union, AFL-CIO-CLC, Petitioner.
Cases 9-CB-5572, 9-RC-14267, and 9-RC-
14271
15 August 1984
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 27 October 1983 Administrative Law Judge
Marion C. Ladwig issued the attached decision.
The Charging Party Employer filed exceptions and
a supporting brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, 2 and
conclusions 3 and to adopt the recommended
Order.
I We note that these representation cases and the related Poole Associ-
ares d/b/a Holiday Inn Charleston House, Case 9-RC-14273, involve three
separate elections at motels in Charleston, West Virginia, operated by a
single employer. The hearing in this consolidated proceeding was held
before the Board could rule on the Employer's objection in each election
that any objectionable conduct which the Petitioner may have engaged in
at one election site would also affect the election results at other loca-
tions. After considering that issue in light of the exceptions the Employer
previously filed, we adopt the Regional Director's recommendation in
each case overruling the objection.
2 The Charging Party Employer has excepted to some of the judge's
credibility findings. The Board's established policy is not to overrule all
administrative law judge's credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
I In adopting the judge's dismissal of the complaint, we do not pass on
his finding that, even if the Respondent's organizer had made the state-
ments attributed to him by employee Carolyn Kimberling. they would
not constitute an unlawful threat to do her bodily harm.
In the absence of exceptions thereto, we adopt pro forma the judge's
recommendations on the unexcepted-to objections in both representation
cases as well as his disposition of determinative challenged ballots in Case
9-RC-14271.
271 NLRB No. 144
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
ITr IS FURTHER ORDERED that in Stanton Enter-
prises d/b/a Best Western, Elk River Inn, Case 9-
RC-14271, the Regional Director for Region 9
shall, pursuant to the Rules and Regulations of the
Board, within 10 days from the date of this deci-
sion, open and count the ballots of Dortha Derrick,
Roger Hanshaw, Mary Huffman, Della Naylor,
Shirley Palmer, and Marie Rhodes and, if a suffi-
cient number of these ballots has been cast in favor
of the Petitioner so that the outcome of the elec-
tion is no longer in doubt regardless of the eligibil-
ity of the challenged voters, the Regional Director
shall issue a certification of the Petitioner as the ex-
clusive collective-bargaining representative of the
employees in the appropriate unit.
IT IS FURTHER ORDERED that, if a sufficient
number of ballots has been cast against the Peti-
tioner to affect the election results, i.e., to make it
necessary to determine the eligibility of the chal-
lenged voters, the Regional Director shall hold the
disposition of the challenged ballots of Dortha
Derrick, Roger Hanshaw, Mary Huffman, Della
Naylor, Shirley Palmer, and Marie Rhodes in abey-
ance pending the outcome of the unfair labor prac-
tice proceeding involving the status of these indi-
viduals, whereupon he may take such action as he
deems appropriate.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that in West Virginia Inns d/b/a
Holiday Inn, Heart-O-Town, Case 9-RC-14267, a
majority of the valid ballots have been cast for
Food Store Employees Union, Local 347, United
Food & Commercial Workers International Union,
AFL-CIO-CLC, and that it is the exclusive collec-
tive-bargaining representative of the employees in
the unit found appropriate:
All full-time and regular part-time maids em-
ployed by the Employer, but excluding all
other employees and guards, professional em-
ployees, housemen or porters, and supervisors
as defined in the Act.
DECISION
STATF.tMI NI OF THE CASE
MARION C. LAiDWICG, Administrative Law Judge.
These consolidated cases were tried at Charleston, West
Virginia, September 20, 1983. The charge was filed May
1004
FOOD & COMMERCIAL WORKERS LOCAL 347 (BEST WESTERN)
16, 1983,1 the complaint was issued June 22, and orders
consolidating the cases and transferring the representa-
tion cases to the Board were issued July 25 and 26.
The remaining issues in this proceeding involve a
credibility question of whether an experienced union or-
ganizer, in a telephone conversation with a former union
supporter before an election won by the Union, (a)
threatened that she had better resign her job, (b) threat-
ened to sue her, and (c) threatened her with unspecified
bodily harm because of her opposition to the Union, vio-
lating Section 8(b)(l)(A) of the National Labor Relations
Act and requiring the election to be set aside.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, the Respondent
Union, and the Employers, I make the following
FINDINGS OF FACT
1. JURISDICTION
Stanton Enterprises, a West Virginia corporation, op-
erates a hotel in Charleston, West Virginia, where it an-
nually has over $500,000 in gross revenues and receives
goods valued over $25,000 directly from outside the
State. The Union admits and I find that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Threats
Jodie Ward, an organizer for the last 9 or 10 years,
held the initial organizing meeting April 20 at the union
hall. Carolyn Kimberling, a maid at the Best Western
Hotel, was one of the 13 housekeeping and maintenance
employees who attended the meeting and signed authori-
zation cards. She made a speech in favor of the Union.
About 4 days later, however, she telephoned Ward and
advised him that she was living for the Lord and did not
feel it would be proper to be involved with the Union.
He told her he respected her opinion.
After this conversation, Union Organizer Ward began
getting reports that Kimberling was working against the
Union and had informed the Employer which employees
had attended the meeting and signed cards.
On May 10 (about 4 weeks before the election), Ward
telephoned Kimberling. As he credibly testified, "I told
her that I called her to let her know what I thought of
her." After reminding her of her speech at the union
meeting, "that we're going to stick together," he accused
her of going back and "ratting" on the employees and
being the "slimiest thing" or the "biggest piece of slime"
in the county (Tr. 35-36). He also told her the employ-
ees were upset with her, stating that he heard she had
been going around "telling the employees not to attend
the union meetings," that they would be seen, that the
Employer had somebody watching the union hall, and
that they would lose their jobs. She responded that what
All dates are in 1983.
she was doing, she was doing for the employees because
she loved them and did not want to see them get fired
(Tr. 38-39). According to Kimberling, Ward told her he
understood she was threatening the girls, that she was
"nothing but scum," and was no Christian (Tr. 12). The
General Counsel does not contend that either version of
this part of the conversation was coercive or unlawful.
Kimberling gave other testimony in support of the al-
legations in paragraph 5 of the complaint that in this
May 20 telephone conversation, Union Organizer Ward
(a) threatened that she had better resign her job because
of her opposition to the Union, (b) threatened to sue her
for everything she had because of her opposition to the
Union, and (c) threatened her with unspecified bodily
harm because of her opposition to the Union. She
claimed (Tr. 12-13):
And he said, not only that, but the girls was mad
enough at me they could kill me if they thought
they could get by with it.
And he said, if I continue on my job, that he
would see that I got sued and lose everything that I
had.
Ward positively denied the allegations (Tr. 41).
B. Parties' Contentions on Credibility
The General Counsel contends that Kimberling's "tes-
timony, in its entirety, is plausible" and should be cred-
ited. Relying on her version of the telephone conversa-
tion, the Employer contends "That Ms. Kimberling was
coerced is beyond dispute."
To the contrary, the Union argued at the trial that
there is no logical basis for Union Organizer Ward to
have threatened the employee. "He's an experienced
union agent and would know that would be basis for
throwing out an election," and he "would never engage
in such conduct." (Tr. 137.) Concerning the purported
threat to sue her, it argued that there is no basis in fact
or law for such a threat. "What basis does he have for
suing an employee because of campaign statements,
whether she was for or against the union. There's simply
no logical basis for that." (Tr. 138.) Concerning her
claim that Ward told her the girls were mad enough that
they could kill her "if they thought they could get by
with it," the Union argued that "doesn't make any sense,
logically, for anybody to say, we're going to kill you if
we can get by with it. In a situation like that, it would be
obvious they would come looking for somebody in the
union situation." (Tr. 139.)
In its brief, the Union further argues that the purport-
ed threat if she continued on the job is not logical "be-
cause of her testimony that she told Ward in the tele-
phone conversation that she had already intended to
resign from the Employer and offered to send Mr. Ward
a copy of her resignation letter."
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Fabricated Testimony
I find that Kimberling's claim that Union Organizer
Ward threatened her in the May 20 telephone conversa-
tion was fabricated.
Concerning her mad-enough-to-kill claim, Kimber-
ling's initial pretrial affidavit (given June 3) stated,
"You're lower than scum, and you're no Christian
either." Later the sentence was added, and initialed:
"And he said the girls were so mad at me that they
could kill me." (Tr. 23.) Then at the trial, as quoted
above, Kimberling gave the embellishment that the girls
could kill her "if they thought they could get by with
it." I discredit both versions and credit Ward's testimony
that when he told Kimberling what the employees had
been telling him about her antiunion activity, he in-
formed her that the employees were upset with her (Tr.
38). Moreover, even if Ward had told Kimberling in the
conversation that "the girls were so mad at me that they
could kill me" (as claimed in the amended affidavit), or
that "the girls was mad enough at me they could kill me
if they thought they could get by with it" (as claimed at
the trial), neither version supports the allegation in the
complaint that Ward "threatened her with unspecified
bodily harm because of her opposition to the Union."
There was no threat that he or anybody else would do
her bodily harm or kill her for opposing the Union.
Concerning Kimberling's claim that Organizer Ward
told her that "if I continued on my job, he would see
that I got sued and lose everything that I had" (emphasis
added), Kimberling gave a conflicting version on cross-
examination. There she claimed that he said that "if I
continued upon my job that I would get sued and lose
everything" she had (Tr. 19), and denied that he said
who was going to sue her (Tr. 21). I discredit both ver-
sions and find there was no threat to force her to quit
her job. Admittedly, she had already decided to quit and
told him so.
After Organizer Ward (who impressed me by his de-
meanor on the stand as an honest, conscientious witness)
testified that Kimberling stated the reason for her actions
(in opposing the Union) was that she loved the employ-
ees, she added that "it doesn't matter anyway, I'm going
to quit," and offered to send Ward a copy of her resigna-
tion letter (Tr. 36). Kimberling admitted on cross-exami-
nation that before the union organizing began she had in-
tentions of quitting and had told the employees her plans
(Tr. 14-15). She also acknowledged that in the May 20
telephone conversation she informed Ward she already
intended to quit and told him that she would send him a
copy of her resignation letter to the Employer (Tr. 23-
24).
Regardless of her motivation for opposing the Union, I
find that she fabricated the testimony that the organizer
threatened her. (She impressed me as being less than
candid on the stand.)
Accordingly, I find that the complaint which alleges
that the Union restrained and coerced employees in vio-
lation of Section 8(b)(1)(A) must be dismissed.
111. REPRESENTATION PROCEEDINGS
A. Best Western Election, Case 9-RC-14271
1. Objections to the election
A stipulated election was held June 8 in the following
appropriate unit:
All full-time and regular part-time housekeeping
and maintenance employees employed by the Em-
ployer at 2 Kanawha Boulevard, East, Charleston,
West Virginia; excluding all other employees, office
clerical employees, professional employees, guards
and supervisors as defined in the Act.
The Employer timely filed six objections. In a report
dated July 25, the Regional Director overruled Objec-
tions 1, 2, 4, and 5 and directed that a hearing be held on
Objections 3 and 6.
In support of Objection 3, the Employer relies on the
same evidence presented at the trial of Case 9-CB-5572.
Having found that the testimony that Union Organizer
Ward made the alleged threats was fabricated, I overrule
this objection.
In light of the admission in the Employer's brief that it
failed to prove union campaigning occurred in the poll-
ing area, I also overrule Objection 6.
2. Challenged ballots
At the June 8 election, the vote was six for and five
against the Union, with six challenged ballots. In his July
25 report, the Regional Director recommended that the
challenged ballots of Dortha Derrick, Roger Hanshaw,
Mary Huffman, Della Naylor, Shirley Palmer, and Marie
Rhodes be opened and counted. All six of them were
active in the Union's organizational campaign and were
alleged to have been discharged before the election in
violation of Section 8(a)(3) in Cases 9-CA-19613-1,-2,-
3. Each of them has signed a statement waiving the right
to a secret ballot, and they have requested that their bal-
lots be opened to resolve the representation issue.
Because of the possibility that the challenged ballots
could be determinative, I find that they must be opened.
B. Heart-O-Town Election, Case 9-RC-14267
A stipulated election was held June 17 in the following
appropriate unit:
All full-time and regular part-time maids employed
by the Employer, but excluding all other employees
and guards, professional employees, housemen or
porters, and supervisors as defined in the Act.
The vote was 11 for and I against the Union, with 4
challenged ballots (an insufficient number to affect the
outcome of the election).
The Employer timely filed seven objections. In a
report dated July 26, the Regional Director overruled
Objections 1, 2, 3, 4, 5, and 7 and directed a hearing on
Objection 6.
1006
FOOD & COMMERCIAL WORKERS LOCAL 347 (BEST WESTERN)
In light of the admission in the Employer's brief that it
failed to prove union campaigning occurred in the poll-
ing area, I also overrule Objection 6.
CONCLUSIONS OF LAW
The Union did not commit any unfair labor practices
affecting commerce within the meaning of Section
8(b)(1)(A) and Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The complaint is dismissed.
IT IS FURTHER ORDERED that Case 9-RC-14271 is re-
manded to the Regional Director to open and count the
ballots of Dortha Derrick, Roger Hanshaw, Mary Huff-
man, Della Naylor, Shirley Palmer, and Marie Rhodes;
to prepare a revised tally of ballots; and to issue an ap-
propriate certification.
In Case 9-RC-14267, IT IS CERTIFIED that a majority
of the valid ballots have been cast for Food Store Em-
ployees Union, Local 347, United Food & Commercial
Workers International Union, AFL-CIO-CLC, and that
it is the exclusive collective-bargaining representative of
the employees in the unit found appropriate.
1007