Interstate Hosts, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1961

130 N.L.R.B. 1614 (N.L.R.B. 1961)

1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding, having personally been charged with an act of discrimination , candidly
makes the admissions against his interest that pervade the testimony of Howard, and
then forthrightly testifies that, as far as he was concerned, the union matter was a
completely dead issue after the September election and that Johnson's activity on
behalf of the Union played no part in his December selection of Johnson for release,
I feel that I have no alternative in the determination of that person's credibility but
to conclude that he was telling the truth. Accordingly, based upon Howard's de-
meanor and my close observation of him while testifying as a witness in this pro-
ceeding, I credit his testimony throughout and his denial of'unlwaful motivation in
this regard.
Having found that Howard 's selection of Johnson for release from the inspection
department was not based upon unlawful considerations , it is reasonable to conclude
that, as Johnson 's discharge at this point would not have been unlawful , Case's deci-
sion to offer Johnson a transfer , albeit to an inferior job, rather than to immediately
effectuate his discharge , was not based upon discrimination, and I so find.19
Accordingly, Johnson's separation , based upon his refusal to accept the transfer,
did not constitute a constructive discharge.
Upon all of the evidence presented , including the lack of any union animus on the
part of the Respondent subsequent to the September election , I conclude that Edwin
J. Johnson was discharged for reasons unrelated to his union activity and that the
Respondent, in effectuating his discharge , did not violate Section 8 (a)(3) and (1)
of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in this
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Rex Corporation is engaged in commerce within the meaning of Section
2(6) of the Act.
2. District #38, International Association of Machinists , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices in violation of Sec-
tion 8 (a) (3) and (1) of the Act.
[Recommendations omitted from publication.]
19 Contrary to the position taken by the General Counsel, employees working In the
Maynard operation are not excluded from the unit found appropriate by the Board in its-
representation decision.
Interstate Hosts, Inc. and Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO, Petitioner
Interstate Hosts, Inc. and Coye Conley, Eddie Simmons, James.
Taylor, Grace Thorpe , Willa May Johnson, Clara Whitley,,
Frank Green , Myrtis' Green, O'Neal Tarver, Lenore Kelly,
Dolly van Zandt , 'Nancy Kindig, and Mary E . Hager. Cases
Nos. 13-RC-6581, 13-CA-3568-2,13-CA-3568-5 through 13-CA-
3568-15, and 13-CA-3568-17 through 13-CA-3568-19. March p9,,
1961
DECISION, ORDER, AND CERTIFICATION OF RESULTS
OF ELECTION
On October 28, 1960, Trial Examiner James T. Rasbury issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint and recommending that the com-
130 NLRB No. 165.
INTERSTATE HOSTS, INC. 1615
plaint be dismissed, as set forth in the copy of the Intermediate Re-
port attached hereto. In his report, the Trial Examiner also made-
recommendations as to the disposition of objections in the representa-
tion case. Thereafter the Respondent, the General Counsel, the,
Charging Parties, and the Petitioner filed exceptions to the Inter-
mediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Leedom, and.
Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
luthe case, and hereby adopts the Trial Examiner's findings,2 Cone
sions, and recommendations.
[The Board dismissed the complaint.]
[The Board certified that a majority of the valid ballots was not,
cast for Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, and that said labor organization is not the
exclusive representative of the employees at the Employer's Michi-
gan City, Indiana, and Indiana Toll Road, Glass House Restaurants.
in the unit found appropriate in Case No. 13-RC-6581.]
3 The Respondent has excepted to the Trial Examiner 's denial of its request that the.
General Counsel -produce again the pretrial statement of one of the Charging Parties who.
testified on behalf of the General Counsel . The Respondent had the statement while
cross;examining this witness after the General Counsel's direct examination , and de-
manded the affidavit again when it recalled her later as an adverse witness under Rule
43(b) of the Federal Rules of Civil Procedure . We find it unnecessary to pass upon the-
correctness of the Trial Examiner 's ruling since , in the circumstances of this case, par--
ticularly the dismissal of the complaint , the Respondent was not prejudiced thereby.
8In the Decision and Direction of Election , the Board found Ellie Sullivan , an assistant:
manager in one of the Respondent 's restaurants ,- to be an employee and not a supervisor
within the meaning of the Act ( 125 NLRB 101 , 104). The General Counsel, the Charging--
Parties, and , the Petitioner contend that the record in that proceeding was not fully
developed as to Sullivan 's status, that the present record establishes that she is a super-
visor and/or agent of the Respondent , and that she made coercive remarks to employees-
which constitute cause to set aside the election as well as violations of Section 8(a) (1)..
The Trial Examiner found, however , and we agree , that Sullivan 's statements , made gen-
erally in response to inquiries by employees , were not violative of the Act. We find it
unncessary , therefore , to determine herein whether or not - Sullivan is a supervisor-
and/or agent of the Respondent. S
CONSOLIDATED INTERMEDIATE REPORT
Upon a petition duly filed under Section 9(c) of the National Labor Relations.
Act, as amended , hereinafter referred to as the Act, a hearing was held in Case. No.
13-RC-6581 by the Employer 1 and Petitioner herein . The Board's Decision and,
Direction of Election issued November 12, 1959 , may be found at 125 NLRB 101.
Pursuant to the Decision and Direction of Election an election by secret ballot was.
1 The name of the Respondent Company was formerly indicated as Interstate Co., Glass:
House Restaurants , Indiana Toll Road . By agreement of all parties at the hearing the-
name of the case has been changed to reflect the Respondent 's correct name.
1616 DECISIONS OF NATIONAL• LABOR RELATIONS BOARD
conducted on December 11 and 12, 1959 , under the direction and supervision of the
Regional Director for the Thirteenth Regional Office of the National Labor Rela-
tions Board . Upon the completion of the election the parties were furnished a tally
of ballots which showed that of the 458 ballots casts, 193 were for the Petitioner, 233
were against the Petitioner , 31 ballots were challenged , and 1 ballot was void.
Timely objections to conduct affecting the results of the election were filed by the
Petitioner and pursuant to the Board 's Rules and Regulations on April 19 , 1960, an
order directing hearing on "certain material and substantial questions of fact" raised
by the Petitioner was directed.
Between the date of the election and the Board 's order directing a hearing on the
objections to the conduct of the election a number of individuals employed by the
Respondent filed individual charges against the Respondent in Case No.
13-CA-3568-2, et al . Upon these charges, the General Counsel issued a complaint
alleging that the Respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8(a) (1) of the Act. In its answer the Respondent
denied the commission of any unfair labor practices . The Board 's order directing
a hearing on the objections to the conduct of the election and the complaint issued
by the General Counsel were consolidated by order dated April 1, 1960 , and with
all parties represented this case was heard on May 18 through 26, 1960, at Elkhart,
Indiana.
All parties participated in the hearing and were afforded full opportunity to be
heard , to examine and cross -examine witnesses , and to introduce evidence bearing
upon the issues . Upon the close of the hearing an opportunity to file briefs was
extended to all parties.
Upon the entire record in these consolidated cases, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation duly organized and existing by virtue of the laws of
the State of Delaware, having its principal office in Los Angeles, California. The
Respondent operates a chain of restaurants in several States. The instant case in-
volves its Indiana Toll Road division which consists of 16 restaurants located along
the Indiana Toll Road and the Glass House Restaurant at Michigan City , Indiana,
located approximately 6i miles from the Indiana Toll Road, and the commissary
building at Elkhart, Indiana, which adjoins one of the restaurants. Respondent's
gross revenue for the year 1959 was in excess of $1,000,000. The Board has previ-
ously asserted jurisdiction 2 and I now find that the Respondent is and at all material
times has been an employer engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO,
is and has been at all material times herein a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ISSUES
The General Counsel has alleged several instances occurring in December 1959,
just prior to the election, wherein Respondent's supervisors have threatened em-
ployees with reprisals and loss of economic benefits in order to discourage their par-
ticipation in union or concerted activities, made offers of economic benefit in order
to discourage participation in union or concerted activities by the employees, and
instances of interrogation by two of Respondent's supervisors. All of the said con-
duct is alleged to have interfered with, restrained, and coerced employees in the
exercise of their rights guaranteed in Section 7 of the Act, and thereby the Respond-
ent engaged in unfair labor practices within the meaning of Section 8(a) (1) of the
Act. A subsidiary issue arising from the allegations in the complaint concerns the
supervisory or agency status of Ellie Sullivan.
The order directing hearing on objections to the conduct of the election stated,
"the Board believes that certain material and substantial questions of fact have been
raised in connection," with objections numbered 17, 18, and 26, "and that such facts
may best be resolved by a hearing." Objections numbered 17 and 118 concern al-
leged promises or threats made by the Employer during the election campaign. The
issue raised by these objections to the election thus becomes merged with the issue
alleged to be violative of 8(a)(1) in the complaint. Objection numbered 26 raises
2 See 125 NLRB 101.
INTERSTATE HOSTS, INC . 1617
a question concerning the permissibility of certain statements made by the Respond-
ent in a letter to all the employees and the Board requested that information be ob-
tained to establish the date on which the merit wage plan involved in said objection
was formulated. The Board also directed that testimony be taken in order to resolve
whether or not employees who were to vote by mail ballots had attended the pre-
.election meetings conducted by the Respondent in violation of the principles estab-
lished in Oregon Washington Telephone Company, 123 NLRB 339.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The alleged threats, promises , and interrogation by the General Counsel in the
complaint aspect of this case become merged with the conduct of Respondent prior
to the election of which the Petitioner has complained and the Board seeks to
resolve. These two issues then shall be considered jointly.
A. Preelection meetings
Between November 30 and December 9, 1959 , the Respondent conducted a num-
ber of preelection meetings of the employees . These meetings were held on various
dates and at various times at one of the locations owned and operated by the Re-
spondent. The employees were notified of the meeting to be held for the employees
of a particular restaurant by a posted notice advising them of the particular time
and place of the meeting. While there was nothing compulsory about attending the
meetings the employees were paid for attending. In most instances if the meeting fell
during an employee's normal working hours, relief was provided so that maximum
attendance could be obtained. Although every employee did not attend, the testi-
mony of both the General Counsel's witnesses and Respondent's witnesses clearly
indicate that a very high percentage of the employees did attend, including both full-
time regular employees and some part-time employees who were to vote by mail
ballot. The meetings were held for the purpose of the Respondent explaining to the
employees the various benefits and privileges then enjoyed by the employees, to
answer questions concerning the Union and its campaign to organize the employees,
and to fully acquaint the employees with the full significance and meaning of the
forthcoming representation election.
The 17 restaurant locations involved herein are divided into 3 groups and each
group is headed by a service supervisor who in turn reports to Mr. Gibbons, the
general manager.
The meetings were generally conducted or led by the service supervisor in charge
of the particular restaurant location, but also in attendance was the local manager,
assistant manager, and on some occasions another service supervisor and a Mr. Sulli-
van. Mr. Sullivan was identified as an employee relations management consultant
that had had experience in dealing with the Union and had in fact negotiated the
contract that existed between the Union and one of Respondent's restaurants (not
involved herein) located at the Detroit Airport. The meetings varied in length from
approximately 2 to 4 hours. They were generally conducted on a short speech and
then question-and-answer basis, with each of the supervisors or representatives of
management in attendance being given an opportunity to explain some of the Re-
spondent's current working benefits and privileges as well as their experiences with
other employers and, in some cases, unions. An opportunity was afforded all em-
ployees to ask questions of any of the supervisors.
All parties are in agreement that a wide variety of subjects in which employees
would be interested were discussed at each meeting. The subject matters discussed
included insurance, retirement program, merit raise plan, wages, hours of work,
overtime and premium rates of pay, coffee and cigarette breaks, supervisors' per-
forming work, uniforms-including laundering, cost, and color-union contracts
and how they were negotiated, employee meals, and "no tipping" signs. The primary
question to be resolved by this Trial Examiner is exactly what was said by the super-
visors in the course of discussing these topics of interest to the employees.
Several of General Counsel's witnesses testified that they were told at these meet-
ings that in the event the Union was voted in that the employees would have their
coffee and cigarette breaks taken away from them. On the other hand Mrs. Del
Lynch, a service supervisor, testified that she merely pointed out to the employees
that at the present time they were always free to go to the employees' table and
have coffee or Coca-Cola and a cigarette, but that frequently labor-management
contracts provided for a specified time during the morning and/or afternoon for the
employees to have a coffee break and that in the event the union contract so
provided the Respondent would have to adhere to the terms of the contract.
597254-61-vol. 130-103
1618 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
In December 1959 Respondent was not paying "premium pay" for hours in excess
of 8 per day or40 hours-per week . Employees were paid their regular ,straight-time
rate for all hours worked in excess of their regularly scheduled hours . Some of the
employees contend that they were told by Respondent 's supervisors that they would
be denied all overtime work in the event that the Union were voted in. The dis-
cussion of the overtime work appears to have been closely related to premium pay.
The following testimony was given by Coye Conley.
Question by Trial Examiner:
What did you ask her? I am interested in your exact question.
A. I asked Miss Lynch , I said, "I hear if the Union comes in, we will be
paid time and a ,half for overtime." Miss Lynch says , "If the Union comes in,
that would have to be drawn up in the contract between the Company and
the Union , and besides that you won't be paid no overtime because you won''t
be working any overtime."
On the other hand Mrs. Lynch testified that 'in response to a question as to whether
or not premium or overtime rates would be paid for all overtime work she responded
by asking the following question : "Would it be logical to pay a man a , premium
pay for a job that could be done at a straight salary by just adding additional people
to our schedules."
General Counsel 's witnesses testified that the supervisors at these meetings threat-
ened to have "no tipping" signs posted in the restaurants in the event the Union
won the election. Respondent's witnesses testified that it was the Union that first
raised the issue concerning the placing of "no tipping " signs. When the question
was asked at the meetings, it was explained to the employees that while the Employer
might have the right to place "no tipping" signs that it would not be done because
such action would be in direct conflict with the efforts of the service supervisors in
stressing the importance of rendering good service. One of General Counsel's own
witnesses testified that a service supervisor stated that while they might have the
right to post "no tipping" signs that they would not do it because it would be against
the policy of the Company.3
The question of employee meals was discussed at the various meetings and some
of General Counsel's witnesses testified that they were told that if the Union was
voted in there would be a change ,in the meals for employees. One employee testi-
fied that a service supervisor said "we would have to eat-if they fixed something to
eat, we would have to eat what they fixed, if it was nothing but mashed potatoes." 4
The service supervisor accused of having made the remark testified: "Oh, yes, along
this same general theme of meals, in explaining to them how I felt that they were
dealt with very liberal by Interstate, that I had worked in a number of restaurants
where it was just a normal practice that the employees ate a separate prescribed
meal and that was it. I was not intimating that that would be our case. I even went
so far as to say that even if this were regulated within a union contract that Inter-
state had always felt it was far better to feed the employees than to have them steal
it and that I had always said it was a poor waitress that didn't get what she wanted
to eat in a restaurant." 5
General Counsel's witnesses testified that the Respondent's supervisors told them
at the meetings that if the Union was voted in that the employees would not.get a
raise, but that if the Union was not voted in the employees would receive a raise.
The service supervisors 6 denied that any promise of a raise had been given the
employees but candidly testified that they told the employees of a merit review
plan which had been under serious study by the Respondent, but which had to be
laid aside during the union organizing campaign for fear of the Company being
accused of unfair labor practices.
Conclusion as to Preelection Meetings
This Trial. Examiner has carefully studied and analyzed the testimony of both
the Respondent's witnesses and that of the General Counsel's witnesses. Based on
my observation of the witnesses. their ability to recall events that transpired at the
meetings, their frankness on both direct examination as well as cross-examination,
and the total demeanor of each witness I am compelled to resolve credibility in favor
of Respondent 's witnesses. In accepting the testimony of Respondent's supervisors
as to what occurred at the " various meetings held by the Respondent between No-
3 See the testimony of ('race Thorpe.
4 See the testimony of Eddie Simmons.
5 See the testimony of June Dingier.
See the testimony of both Mrs. Del Lyncb and June Dingier.
INTERSTATE HOSTS, INC. - 1619
vember 30 and December 9, 1959 , I• am unable to -find that there were any threats
of reprisal or promises of,benefit made by the Respondent 's supervisors that were
violative of Section . 8(a)(1) of the Act. While there were references to the possi-
bility of certain working conditions being changed because such matters were
generaly regulated - by the contract that would be negotiated in the event the Union
won the election , I am unable to find that such references interfered with the em-
ployees free choice in the election . I am unable to find the kind of veiled threat
on the part of Respondent that caused the Board to set aside the election in Columbia
(LP) Record Club, Columbia Records, a Division of Columbia Broadcasting System,
Inc., 120 NLRB 1030, or in Norris-Thermador Corporation, 117 NLRB 1340. In
reaching my determination that the testimony of the Respondent's supervisors pre-
sented a more accurate picture of what was done and said at the various meetings,
I am particularly impressed with the testimony of Audrey Orcutt , a waitress located
at the restaurant facility designated as 3-W . Orcutt impressed this Trial Examiner
as being an able, intelligent , rank-and-file employee that had approached the repre-
sentation election with a fair and impartial attitude . She attended a union meeting
as well as the company meeting. She attempted to read and evaluate the company
letters concerning the election as well as the union letters which she received. Her
ability to recall what had transpired at the company meeting covering employees
of the restaurant at which she worked was the most complete of any of the rank-
and-file employees . Orcutt's version of what transpired at the various meetings
corroborates the testimony .of the Respondent 's supervisors . There was not a single
instance of unlawful threats, coercion , or promises made by the Respondent at the
meeting.
B. Interrogation
Joyce van Vactor is alleged to have interrogated Nancy Kindig concerning her
union membership, activities, and sympathies. Nancy Kindig, who was employed
as a cook at Respondent's restaurant designated as 3-W from May 1958 until
February 1960, testified that she.and Mary Hager had been at the Michigan City,
Indiana, Plaza talking to the employees concerning the Union during the early part
of December 1959. On the following Saturday morning her manager, Joyce Van
Vactor, called her to the office and talked to her. Mrs. Van Vactor does not deny
that she called Mrs. Kindig into her office and asked her if she and Mary Hager had
been at the Michigan City restaurant talking to the employees there about the Union.
Mrs. Van Vactor further testified, however, that she stated to Nancy Kindig. "It
doesn't make any difference to me what you do on your time off but it does make a
difference to me what Mary Hager does because after all she is on sick leave and
if she is well enough to be trotting around Michigan City shopping and going out
for lunch it seems to me that she would be well enough to work." Mrs. Van Vactor
further indicated that any other conversation concerning the Union which she had
with Nancy Kindig occurred in her home during June or July 1959 prior to the time
that Mrs. Van Vactor became a manager and during a period of time when she was
not working. The record indicates that Mary Hager was on sick leave when seen at
the Michigan City, Indiana, Plaza. This being true it does not seem unusual for
Mrs. Van Vactor to have talked to Nancy Kindig in an effort to establish the where-
abouts of Mary Hager at a time when she was supposed to be on sick leave. I credit
Joyce van Vactor and under all the circumstances of this isolated questioning find
that she did not unlawfully interrogate Nancy Kindig in a manner which interfered
with, restrained, or coerced employees in the exercise of rights guaranteed in Sec-
tion 7.7 I agree with the Ninth Circuit Court of Appeals that in this day and age
the American employee is not a craven individual afraid to stand up and express
himself freely on the subject of his own welfare.8
The complaint alleges unlawful interrogation by Juanita Schabowski. manager of
restaurant designated as 1-W, on or about December 3, 7, and 10, 1959. The evi-
dence to support this allegation is the testimony of Eddie Simmons in which he states
he was told by Schabowski that he had letter vote "no" at the election and that if
he voted "yes" he stood a chance of losing his job. No one else was present at the
alleged conversation which is categorically denied by Schabowski. There are a
number of obvious inaccuracies in Simmons' total testimony and the Trial Examiner
is forced to conclude that Simmons was in error as to what Schabowski said to him.
In any event the naked contradictory statements by the two witnesses can hardly be
accented as a preponderance of the evidence by the General Counsel which is neces-
sary in order to sustain a violation.
0 Blue Flash Express, Inc., 109 NLRB 591.
8 N.L.R . B. v. Robert Brothers, 225 F. 2d 58 ( C.A. 9).
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The testimony of Lena Harris accuses Schabowski of making statements at the
employees' table similar to those alleged to have occurred at the preelection meetings,
and which have been related above. Schabowski denies making threatening state-
ments and I credit her denial. Her comments were nothing more than predictions.
.of possible changes in some of the working conditions because these things were
normally regulated by union contract, i.e., employee meals, coffee breaks, and lunch
hour.
One Ellie Sullivan is alleged to have made a number of threatening remarks in-
cluding the loss of coffee and cigarette breaks, the necessity of punching in and out,
that the employees would not get a raise, and that the Respondent had a way of
knowing which employees voted for the Union and after the election those employees
would be dismissed. Ellie Sullivan admits having a number of conversations with
the• employees concerning the forthcoming election and the Union, but denies ever
having made a threatening remark. Most of her comments to the employees were
as a result of questions which were asked by the employees and answered by her in
much the same fashion as she had heard these matter discussed by the service super-
visors and which I heretofore found were not in violation of the Act. Moreover, the
Board found in its Decision and Direction of Election in the instant case (125 NLRB'
101) that Ellie Sullivan was not a supervisor and she was permitted to vote in the
election. While she is alleged in the complaint to be an agent of the Respondent
there is no proof in the record of any relationship between Ellie Sullivan and the
Respondent other than that previously found by the Board. I consider myself bound
by the Board's determination and find no basis for holding the Respondent responsible
for remarks made by Ellie Sullivan regardless of whether the language used was,
permissible•,under the Act .9
C. Coercive remarks
While the complaint alleges coercive remarks by Robert A. Burkhardt and Eve
Millburn, the only evidence received to prove this allegation was a remark attributed
to Burkhardt by waitress Elvesta Hayes who admitted to having heard only a portion
of the conversation in which Burkhardt was engaged as she approached the employee
table. Burkhardt denies any coercive remarks. The evidence presented is wholly
inadequate to sustain the allegation.
Conclusion
After a careful analysis and study of the entire testimony and the resolution of
credibility in favor of the Respondent 's witnesses , I am unable to find the Respond-
ent's numerous expressions to the employees to be anything more than election
campaign propaganda and a prediction of possible future events, which the Board
has held to be protected under Section '8(c) of the Act.io
D. Merle raise plan
The Board requested and there was received in evidence testimony concerning the
date on which the Respondent 's merit wage plan had been formulated.
Arthur C. Chapman , the Respondent 's counsel in the instant case, took the witness
stand without objection from the other parties in this proceeding and testified that
in January 1959 James A. Murray, vice president and secretary of Respondent, first
raised the question with him concerning a merit wage plan for Respondent. From
that time until approximately October 20, 1959, Chapman had numerous discussions
and conversations with various personnel of the Respondent concerning the need,
necessity , and possibilities of such a plan . These discussions culminated in a request
by David Tucker, the. operating vice president of Respondent , to Chapman that he
"prepare a plan which could be put into effect and would , summarize the substance
of our discussions as to what was desired ." On October 28, 1959, Chapman mailed
to Tucker the plan as formulated by him. (See Respondent Exhibits Nos. 12 and
13.) Based on this undisputed evidence pit must be found that the merit review plan
was formulated prior to the November 1.2, 1959, Decision and Direction of Election.
O.Compare Earl B. Law et at. d/b/a E. B. Law and don, 92 NLRB 826, and Samuel
Flatau d/b/a Yale Filing Supply Co., 91 NLRB 1490. In the instant case there is no
proof.of knowledge on the part of Respondent of any unlawful conduct on the part of
Sullivan.
10 See Carolina Mirror Corporation, 123 NLRB 1712 ; Sunset Lumber Products, 113
NLRB 1172; Universal Producing Company, 123 NLRB 548, and the cases cited therein
at footnote 2, p. 550.
INTERSTATE HOSTS, INC. 1621
While the Respondent supervisors do not deny that the merit wage plan was men
tioned at the employee meetings held between November 30 and December 9, 1959,
I am unable to find on the-part of anyone's testimony any threats or promises or
coercive remarks in connection with.the.merit review; plan., The plan was, mentioned
by the supervisors as an activity which had had to be laid aside for fear of violating
the law.
The current law on this facet of the case seems to have been set forth by the Board
in The Gummed Products Company, 112 NLRB 1092, wherein the following is
stated: "Exaggerations, inaccuracies, partial truths, name calling , and falsehoods,
while not condoned, may be excused as legitimate propaganda, provided they are not
so misleading as to prevent the exercise of a free choice by employees in the election
of their bargaining representative. The ultimate consideration is whether the chal-
lenged propaganda has lowered the standard of campaigning to the point where it
may be said that the uninhibited desires of the employees cannot be determined in
an election." In the Trial Examiner's opinion the references by the supervisors to
the merit wage plan cannot be construed as a promise of something which they
would receive in the event the Union was rejected, the statements made were an
accurate reflection of the law and did not inhibit or mislead the employees to such
an extent as to affect the election.
E. The mail ballot problem
There remains one further aspect of this case to be considered. The Board has
requested that information and testimony be received at the hearing in order to
determine whether or not employees who were to vote by mail ballots attended the
preelection meetings of the employees held by the Respondent.
Jacquelyn Fairfield testified that she is a part-time employee of the Respondent
working as a waitress at the restaurant location designated as 5-E on Monday, Friday,
Saturday, and Sunday. She has been so employed since September 18, 1959. On
December 6, she attended one of the meetings at her place of work pursuant to a
notice placed on the bulletin board of that particular restaurant. The meeting lasted
from approximately 4 to 8:30 p.m. and was attended by full-time employees as well
as other part-time employees. Fairfield received her ballot on December 8 by mail
and promptly marked the ballot and returned it to the National Labor Relations
Board. The parties stipulated that the number of part-time employees in similar
positions as that of Fairfield was approximately 100 in number. Theresa Skubish
also testified that she saw four part-time employees, whom she named, in attendance
at the December 5 meeting at the restaurant where she worked which was designated
as 1-W. On the basis of these undisputed facts I find that there were employees
occupying a part-time status with the Respondent and who were scheduled to vote in
the representation election by mail ballot in attendance at the meetings held by the
Respondent between December 5 and 9, 1959.
At the hearing the attorney representing the Petitioner in Case No. 13-RC-6581-
one of the consolidated cases herein-submitted a motion to the Trial Examiner
requesting that the counsel for the General Counsel produce such information as
he had in his possession concerning the dates on which mail ballots were sent to
those employees who were scheduled to cast their ballots in the representation elec-
tion by mail. Over the objections of Respondent's counsel', but pursuant to the
Board's order directing hearing. and for purposes of the RC case only the Trial
Examiner permitted the counsel for the General Counsel to submit a statement for
the record that would.establish "the,timeand; date on which `mail in' ballots will,be
dispatched to the voters, and also setting forth a terminal time and date by which
the ballots must be returned to the Regional Office." 11 The counsel for General
Counsel thereupon stated "all employees that were to receive mail ballots pursuant
to the part-time eligibility list as provided by Respondent had mailed to them from
the Regional Office sometime during the day of December 3, 1959, a ballot to be
used in casting their vote in Case No. 13-RC-6581; contained in the same envelope
and mailed at the same time were instructions to the employees indicating that the
ballots were to be returned to their Regional Office in Chicago and received not
later than 5 p.m., December 10, 1959," Similarly, pursuant to a motion by the
counsel for the Respondent requesting' that the General Counsel' produce a copy of
any purported "written notice" which may have been sent to the Respondent. in-,
forming it of the date on which the mail ballots, would be dispatched to the voters
and the terminal date, the counsel for General Counsel stated "the Thirteenth
Regional Office located in Chicago did not at any time send Mr. Chapman, nor any
11 Oregon Washington Telephone Company, 123 NLRB 339.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persons connected with the Interstate Co. Glass House Restaurants , Indiana Toll
Road , Employer, any formal document or letter stating that the mail ballots were
being sent out and stating the date on which the mail ballots were returnable in our
office."
Attorney Chapman was questioned concerning certain meetings and conversations
that he had in the Thirteenth Regional Office with representatives of the National
Labor Relations Board in an effort to establish that the Respondent or its attorney
(Mr. Chapman) had received oral notice of the date on which ballots were to be
mailed to the prospective voters and the terminal dates thereof . While it is quite
clear to this Trial Examiner that Chapman may have had good reason to suspect or
suspicion an approximate date on which the ballots were to be mailed to the pro-
spective mail ballot employees , it is crystal clear that he was never told any definitive
date on which the ballots were to be mailed or the terminal date thereof.
The Oregon Washington Telephone case , supra, is quite clear in establishing the
rule that "Employers and Unions alike will be prohibited from making election
speeches on company time to mass assemblies of employees within the period set
forth in the notice, i.e., from the time and date on which the `mail in ' ballots are
scheduled to be dispatched by the Regional Office until the terminal time and date
prescribed or their return ." Violations of this rule by either employers or unions
will cause an election to be set aside whenever valid objections are filed . However,
the Oregon Washington case also directs the Regional Director to give the parties
written notice at least 24 hours before the time and date on which the ballots will be
dispatched by the Regional Office . The admission by the representative of the
Regional Director and the General Counsel at the hearing was to the effect that no
written notice was ever furnished to Respondent . Certainly there was no affirmative
proof in the record that the Respondent received written notice pursuant to the
requirement set forth in the Oregon Washington case. Following the Board's lan-
guage precisely, 12 I now find that the Respondent did not violate the preelection cam-
paign rules in a manner which would cause the Board to set aside the results of the
election and I shall so recommend to the Board.
Upon the above findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of,
the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
4. The Petitioner 's objections 17, 18 , and 26, as numbered in the Regional Di-
rector's report on objections , are without merit and should be overruled.
[Recommendations omitted from publication.]
11 "However, as no written notice was given the parties informing as to the time and
date when the ballots would be mailed by the Regional Office, we do not find that the
new iule was violated."
IL H. 'Hadley, Inc.' and International Association of Machinists,
District Lodge No. 120 , AFL-CIO, Petitioner. Case No. P31-RC-
6690. March 29, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Floyd E. Folven, hearing
officer. The hearing officer 's rulings made at the hearing are free from
prejudicial. error and are hereby affirmed.
1 The name of the Employer appears as amended at the hearing.
130 NLRB No. 1.66.