Kohler Food Service, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1985

274 N.L.R.B. 1103 (N.L.R.B. 1985)

KOHLER FOOD SERVICE
Kohler Food Service, Inc. and Allene Reagan, Peti-
tioner and Hotel Employees and Restaurant
Employees International Union , Local 70, AFL-
CIO. Case 9-RD-1204
22 March 1985
DECISION AND ORDER REMANDING
PROCEEDING TO REGIONAL
DIRECTOR
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board has consid-
ered objections to an election held 28 August 1984
and the Regional Director's report recommending
disposition of them. The election was conducted
pursuant to a Stipulated Election Agreement. The
tally of ballots shows 2 for and 44 against the
Union, with 2 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of
the exceptions' and briefs, and has adopted the Re-
gional Director's findings and recommendations2
only to the extent consistent with this Decision and
Order.
The Union alleged that supervisors of the Em-
ployer, Reagan and Carson, were improperly in-
volved in the election by filing the petition, solicit-
ing the showing of interest among employees, and
acting as observers during the election. In overrul-
ing the Union's objection, the Regional Director
did not set forth what evidence he relied on in con-
cluding that Reagan and Carson are not supervi-
sors; rather, he relied on his own determination to
that effect in dismissing a concurrent unfair labor
practice charge. The Regional Director further
stated that the Union has no evidence that Reagan
and Carson are supervisors. However, the Union in
its exceptions to the Regional Director's recom-
mendation has set forth evidence that Reagan, at
' The Regional Director's report inadvertently referred to the time for
the filing of a request for review of the report, rather than exceptions to
the report, and the Union titled its exceptions "Request for Review " We
have treated the document as exceptions to the Regional Director's
report
2 In the absence of exceptions, we adopt, pro forma, the Regional Di-
rector's recommendations concerning Objections 2 and 3
1103
least, uses independent judgment in the direction of
banquet waitresses, has reprimanded employees,
and has released employees early without checking
with higher management. Under these circum-
stances, the Board cannot rely on the Regional Di-
rector's administrative conclusion in the unfair
labor practice proceeding. Rather, the Board must
obtain all the facts concerning the supervisory
status of Reagan and Carson so that it can make its
own determination as to whether they are supervi-
sors.
ORDER
IT IS ORDERED that this case be remanded to the
Regional Director to direct a hearing to decide the
factual, issues raised by the Union's Objection 1.
Thereafter, the provisions of Section 102.69(1) of
the Board's Rules and Regulations shall apply.
IT IS FURTHER ORDERED that the hearing officer
designated for the purpose of conducting such
hearing shall prepare and cause to be served on the
parties a report containing resolutions of credibility
of witnesses, findings of fact, and recommendations
to the Board as to the disposition of this objection.
Within 10 days from the date of the issuance of the
report, either party may file with the Board in
Washington, D.C., eight copies of exceptions to the
report. Immediately on the filing of exceptions, the
party filing them shall serve a copy on the other
party and shall file a copy with the Regional Di-
rector. If no exceptions are filed, the Board will
adopt the recommendation of the hearing officer.
IT IS FURTHER ORDERED that this matter is re-
ferred to the Regional Director for Region 9 for
the purpose of conducting the hearing, and that the
Regional Director is authorized to issue notice of
the hearing.
MEMBER DENNIS, concurring.
I agree that the Union's Objection 1 raises sub-
stantial and material issues of fact and law which
can best be resolved by a hearing. Therefore, I
concur in ordering that this case be remanded to
the Regional Director for Region 9 for the purpose
of conducting such a hearing before a duly desig-
nated hearing officer.
274 NLRB No. 166