Gladieux Food Service, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 744 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gladieuv Food Service, Inc. and Local 917, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
29-CA-7436
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 27, 1980, Administrative Law Judge El-
eanor MacDonald issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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 considered the record and the at-
tached Decision in light of the exceptions and
brief' and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Gladieux Food Service, Inc., Queens, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of any right guaranteed them by Section 7 of
the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
z In par. I(c) of her recommended Order, the Administrative Law
Judge uses the broad cease-and-desist language, "in any other manner."
However, we have considered this case in light of the standards set forth
in Hicknott Foods. Inc., 242 NLRB 1357 (1979)., and hase concluded that
a broad remedial order is inappropriate inasmuch as it has not been
shown that Respondent has a proclivity to violate the Act or has en-
gaged in such egregious or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental statutory rights Ac-
cordingly, e shall modify the recommended Order so as to use the
narrow injunctive language "in any like or related manner"
252 NLRB No. 106
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT interrogate our employees as
to the manner in which they intend to vote in
a representation election.
WE WILL NOT create the impression that we
have spied on the manner in which our em-
ployees have cast their ballots in a representa-
tion election.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of any right guaranteed them by
Section 7 of the Act.
GLADIEUX FOOD SERVICE, INC.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge:
This case was heard in Brooklyn, New York, on Febru-
ary 27, 1980. The Union's charge was filed and served
on August 29, 1979. The complaint alleging that Re-
spondent's agent interrogated employees concerning
their union membership, activities, and sympathies, and
created the impression of surveillance of union meeting
places and activities in violation of Section 8(a)(l) of the
Act, issued on December 10, 1979.
Respondent filed an answer denying the allegations
material to a violation of the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the brief filed by Respondent, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation engaged in the sale
and distribution of food, newspapers, magazines, candies,
and related products receives annual revenues in excess
of $500,000, and annually purchases goods valued in
excess of $50,000 which it receives at its various loca-
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GIADIEUX FOOD SERVICE. INC
lions directly in interstate commerce from States of the
United States other than the State in which the locations
are maintained. Respondent 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 Sec-
tion 2(5) of the Act.
11. THE AlI ECiEI) UNFAIR I ABOR PRACICI.S
A. The Facts
The record in this case was based on the General
Counsel's evidence that Manuel Ortiz, the manager of
Respondent's location at La Guardia Airport in Queens,
New York, interrogated an employee concerning an
election ordered by the Board, and that Ortiz created the
impression in a conversation with another employee that
he knew how she had voted.'
Elda Molero, a cashier employed by Respondent, testi-
fied that in July 1979, she met Ortiz walking in the hall-
way at La Guardia and that they began a friendly con-
versation. During this talk, Ortiz asked Molero for
whom she would vote in the forthcoming election and
she replied, "the Company."
The election took place on August 31, 1979.
Three weeks after the election, Molero and Ortiz were
engaged in another friendly conversation when Ortiz
asked her who she thought had won the election. Molero
replied, "I think it was the Company," and the two went
on talking about other matters. Molero stated that she
had responded truthfully to Ortiz.
No other employees were present during either of
these conversations, although both took place in public
areas of the airport and other people were in view. Mo-
lero's testimony was that she and Ortiz have been social
friends and that she liked him and considered him a
"nice guy." Molero was 18 years old when these events
took place.
Patricia Ann Wood, a clerk formerly employed by Re-
spondent, testified concerning a conversation which took
place 2 days after the election. Wood went to Ortiz'
office on an errand related to her work. Another em-
ployee was there, and during some discussion Wood
could not recall, Ortiz said to her, "I heard you voted
for the Union." Wood testified, "1 asked him who he
heard that from, and he didn't tell me. He was laughing
like he was kidding around." Wood stated that she told
Ortiz that she had not disclosed her vote, asked him
where he had heard how she voted, and told him that it
was her own business. She was "mad" because her vote
was none of his concern. Wood testified that "Mr. Ortiz
was nice to everybody. He was everybody's friend."
Wood did not state her age, but she appeared to be from
18 to 22 years old.
Ortiz testified and did not deny making the statements
alleged by Molero and Wood. Ortiz appears to be a
middle-aged man.
It was not disputed that Ortiz is a supervisor and an agent of Re-
spxndent. Until September 1979. hen he was transferred. Ortiz as in
charge of Respondent's operation at La Guardia. including 60 employees
and several supers isors
B. Positions of the Parties
The General Counsel maintains that the test which
should be used to determine whether a violation of Sec-
tion 8(a)(1) has occurred is whether the supervisor's con-
duct reasonably tended to interfere with the free exercise
of the employees' rights under the Act. General Counsel
asserts that the supervisor's "motive, courtesy or gentle-
ness" are not crucial, nor is it material whether the coer-
cion succeeded or failed or whether the employee and
the supervisor are on friendly terms. In support of this
position, the General Counsel cites Hanes Hosiery, Inc.,
219 NLRB 338 (1975), and Florida Steel Corporation, 224
NLRB 45 (1976).
Respondent contends that all of Ortiz' remarks are
lawful under Section 8(c) of the Act because they "con-
tained no threat of reprisal or force or promise of bene-
fit." Citing Bushnell's Kitchen, Inc., 222 NLRB 110
(1976), Respondent argues that the guidelines therein set
forth for determining whether an interrogation is lawful
have been met in the instant case. Respondent asserts
that there is no prior history of employer hostility, Ortiz
did not appear to be seeking information on which to
base action against individual employees, Ortiz is not
high in the company hierarchy, the employees were not
questioned in an atmosphere of unnatural formality, and
their answers were not evasive and fearful. Respondent
contends that Ortiz' remarks were isolated and innocuous
in all the circumstances.
Respondent distinguishes the cases cited by the Gener-
al Counsel and argues that they are inapplicable. In
Hanes Hosiery. supra, the interrogation took place over a
3-day period and preceded additional unfair labor prac-
tices. In Florida Steel, supra, there was evidence of man-
agement's hostility to the Union.
Finally, Respondent asserts that there can be no find-
ing that an unlawful impression of surveillance was cre-
ated if the only evidence consists of polling of employ-
ees, citing Agricom Oil seeds, Inc., 245 NLRB No. 70
(1979).
C. Discussion and Conclusions
It was clear from the demeanor of both Molero and
Wood as they testified that they considered themselves
friends of Ortiz and that they had no subjective feelings
of fear or coercion during their conversations with Ortiz.
Indeed, it is clear that Wood expressed her indignation
freely to Ortiz and spoke her mind without hesitation in
response to Ortiz' remarks concerning her vote.
Nevertheless, Board precedents clearly establish that
neither friendly relations between employees and an in-
terrogating manager nor the employees' lack of fear
render permissible any employer statements which have
a tendency to be coercive and to interfere with employee
rights.
In Hanes, supra, the Board found that a series of ques-
tions posed over a number of days by a supervisor who
had a long and cordial relationship with the employee
violated Section 8(a)(1) of the Act. The Board held that
the questions concerning union meetings and union activ-
ities of other employees which were a "prelude" to fur-
ther unfair labor practices tended to coerce the employ-
745
DECISIONS OF NATIONAL LABOR RELATIONS OARD
ees and to interfere with their rights. In Florida Steel,
supra, although the member of management who asked
the employee about his union sympathies and whether
there had been any union meetings was a friend of the
employee, the Board found a violation of Section 8(a)(l)
of the Act.
The Board has previously considered employer state-
ments similar to the remarks made by Ortiz in the instant
case.
Employer questions and statements relating directly to
an employee's vote in a Board election have been held to
violate Section 8(a)(l) of the Act in that such interroga-
tion tends to undermine the principle of the secret ballot.
Thus, Ortiz' question to Molero asking her how she in-
tended to vote in the forthcoming election constituted an
unlawful coercive interrogation. 2
Further, Ortiz' statement to Wood that he had heard
that she voted for the Union in the election unlawfully
created an impression of employer surveillance of the
employee's union activities. :
The other issue presented concerns Ortiz' question to
Molero as to her opinion of the outcome of the election.
It has been held that no unlawful interrogation occurs
where an employer asks an employee for an opinion
about the probable outcome of an election but does not
couple this with a request for information concerning the
employee's personal wishes for or against the Union. 4
Therefore, I find that Ortiz did not unlawfully interro-
gate Molero by asking her who she thought had won the
election.
I do not find Respondent's arguments persuasive for
several reasons. Respondent relies on cases where em-
ployees were lawfully polled to determine their wishes
concerning union representation. In the instant case, a
Board election had been ordered when Ortiz questioned
Molero and there was thus no justification for polling
employees.5 Further, in Bushnell, supra, relied on by Re-
spondent, the employer did not ask how the employees
would cast their ballots but merely asked if they favored
union representation, and this was done in the presence
of both the union president and business agent during a
meeting at which the union demanded recognition. Final-
ly, contrary to Respondent's contention, Ortiz did not
"poll" Wood. Instead, he told Wood that he had heard
she voted for the Union and thereby suggested that he
had access to her secret ballot. Thus, he created the im-
pression of employer surveillance of Wood's protected
activities. In the circumstances of this case where Ortiz'
questions related directly to employees' votes in an elec-
tion, in view of the substantial age difference between
Ortiz and Molero and Wood, and in view of Ortiz' man-
2 Clark Printing Company. Inc., 146 NLRB 121, 122 (1964) In the in-
slant case, the information sought was quite specific and was designed to
inform the highest placed member of management at La Guardia Airport
of the precise nature of an employee's intended vote Thus, even the re-
strictive test put frth by the Second Circuit in Bourne v. NL.R.B., 322
F.2d 47, 48 (1964), has been met in this case
3 Long Island Airport Limousine Service Corp., 191 NLRB 94 (1971),
enfd. by the Second Circuit at 468 F 2d 292 (1972) Coosa 'alley Conva-
lescent Center, 224 NLRB 1288 (1976)
4 Federal Stainless Sink Division of Unarco Industries. Inc., 197 NLRB
489, 500 (1972)
s Clark Printing Co.. supra.
agerial rank, I find that his conduct reasonably tended to
interfere with employees in the exercise of rights guaran-
teed by the Act. Blue Flash Express, Inc., 109 NLRB 591
(1954).
CONCIUSIONS OF LAW
1. The Respondent, Gladieux Food Services, Inc., is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local 917, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning Section 2(5) of the
Act.
3. By the following conduct Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act:
(a) Coercively interrogating an employee as to the
manner in which she intended to vote in a representation
election.
(b) Creating the impression that the manner in which
an employee had cast her ballot in a representation elec-
tion was under the surveillance of Respondent.
4. The unfair labor practices engaged in by Respond-
ent set forth in c conclusions of Law 3, above, affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
5. No other violations of the Act were committed.
Ttl RMEI)Y
Having found that Gladieux Food Services, Inc., en-
gaged in certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist therefrom
and that it take certain affirmative action to effectuate
the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER6
The Respondent Gladieux Food Services, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees as to the
manner in which they intend to vote in a representation
election.
(b) Creating the impression that the manner in which
its employees cast their ballots in a representation elec-
tion was under the surveillance of the Respondent.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act:
In1 the ceent Io exceptions are filed as provided by Sec 102 46 iof the
Rules and Regulations eof the National Labor Relations HBoard, the find-
ings, conclusions. and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations. be adopted by the Board an
become its findings, conclusions, and Order, and all objections thereto
shall be deteld waived fr all purposes
746
GLADIEUX FOOD SERVICE. INC.
(a) Post at its location at La Guardia Airport copies of
the attached notice marked "Appendix. " 7 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
' In the event that this Order is enforced by a Judgment of the United
States Court of Appeals. the .ords in the notice reading "Posted hb
Order of The National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of The United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS lFURTHER ORDEREI) that the complaint be, and it
hereby is, dismissed in so far as it alleges violations of
the Act not specifically found herein.
747