Mark Hopkins Hotel

National Labor Relations Board - Board Decisions

Dec 12, 1979

246 N.L.R.B. 931 (N.L.R.B. 1979)

I1IH: M \RK HO()PKINS 11I()11 [
The Mark lopkins Hlotel and Joseph Mclnerne .
Case 2() (CA 14312
[ecembrcr 12, 1979
DI( ISION AND ORI):R
B' (AIRMA\ FAN\\I",( AI) 11N I11 MIRS JI NKINS
AN) %[1 R I'lN
On August 2(., 1979, Admi nstral, ci l.a, .Judgec
Michael ). Stev enson issued the attacled l)ecision ill
this proceeding. Thereafter. tile ( ar-ging t ;Part\ ilcd
exceptions and a supporting hrief .
Pursuant to the pro')isions of Sctlon ll 3(h) o the
National .ahbor Relatilons Act. as amtlietied. the Na-
tional .ahbor Rlations Board hs delegated its au-
thorito in this proceedin to a three-memlber panel.
The Board has considered the record andlI the alt-
tached )Decision it light of tile exceptionrs alld brief
and has decided to affirm the rlilgs. lfinldinsll and
conclusions oft the Administrative a\ .ludge and to
adopt his reconimended Order.
ORI)lR
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National L.abor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative I.au Judge and herehb or-
ders that the complaint be. and it herebh\ is, dismissed
in its entirety.
I he ( harging Par\ ha excepled is certain credilit\ hfirldngs made hb
the Admlllnistratuxe I l. Judge 11 Js hie tlsards estabhlshed pics not .
sixerrule rl administralie lau, Judg's resOltriltnns wih respect to credhhli'
unless the clear prepondera.nce of all oft the relcsnl c. ldence consllice us
that the resflutuins are incorrect. Standard Drn Hall Prduit-rs Ins-. 91
NLRB 544 11950). enfd 18X 2d 362 (3d (ir 1951) We have careifull
examined he record and find no basis I;or re :ersing his findings We also) find
lotaly ithout merit Respondent's allegalions of bias and prejudice oin the
part of the Administrative au. Judge. nor do ,.e perceie an es idence hat
the Administralie l.as Judge prejudged the case. made prejudlilcal rullngs,
or demonstrated a. bas against Respondent in his analsis ir discussion or
the evidence.
D[)ECISION
SIAIEIN INI f tll- (CASI
MI(IAIl ID. STI\vENSON, Administratiwe Law Judge:
This case was heard before me in San Francisco. (alifornia
on May 29, 1979. pursuant to a complaint Issued b the
Regional Director of Region 20 for the National Labor Re-
lations Board on Februar) 27, 1979 .' and which is based on
a charge filed by Joseph Mclnerney. an individual, on
Januar 5 1979. The complaint alleges that The Mark
lHopkins Hotel (herein called Respondent) has engaged in
certain violations of Section 8(a)() I and (2) of the National
Labor Relations Act. as amended herein called the Act).
k All dates herein reler to 1978 unless lherilse indicated
I ssue
hlie issue is hether Respondlent. throulh it, aent. Vol-
nc x Sl;arilnc;la. solicited eploees t run for shop ste ard
Baginstl Joseph \Iclnerne,,. n enilplo ee-ca;IdiHdate
All aties v',ere gien full olpportunlit t participate. to
iltroduce relexant eidellce. to estitlne anid tcloss-examllllne
x tniessces. to argue orall\. and to ile hriefs. Briefl. x\hich
ha e beenr cr-elull\ considered. ere iled oin belil the
(;enerlal ( unsel anll RespKc ndentl
i ptn the entillre recllid 1i tlle case. ;tld trr il ll ohscrr.al-
tisl 1 tite illlesses lld thei demlleallr. ] liake te 111ol,
Ils\l)IN(iS 01 J \( I
li Is I I S I l ,l)l 'xl
Respltondell t ;Jadmlit i Is a (alilornia crpolairll enatilg ed
itl the btusltiss ot pro tling l ho(el Illd restitltliltlt actti1lllO-
dltilotls l id ha1 nS Its hetacdquaricir Icatied 111 S;l [lt1-
cisco, (lilornia. It urtrher adtlits that urilig thie past acar.
iltl he course arld conduct ol is huisiness. it has rcc i\dJ
Ir cniLes In e\cess ( Sif $5().X)0 aind purchased ad rcci xed
materls i and supplies xaluICt Il eccss of S2.08() irectl,
troil suppliers cated Iutslde the State oft (alllitlla. Ac-
corditil). it adt111ts, d I ind. that it is an ctrinlloer en-
ga:ged Il clnmmierce alid ill a bLlinless atecting commlt erce
,ithill the Ilealning o' Sectioln 2(6) antd (7)1 ol lite ct.
II. li I IfoR ()Rx\t/AIl()i\ I l x1\l
RespIonIdenlt ti rther aIhit. altd1 t find. ithat te I)tel and
Restauralnt lmploccs land Bairtenders Ilsion. I.ocal 2. Ilto-
tel anld Restaurant Ilploocc' ;and Bartenders' Interna-
tiorial Itnion. Al ('1() (heretin called nioln. Is . labor
organi lion \.ithitl[ 1 ie remlltlg of Sectioli 21( I ) te Act.
A. /,t1t'fd/dl( (1t1t
On March 22. 1979. an election was held for union shop
steward. The sole candidate ws Joseph Mclnerne,. Jr.. a
dishwasher emploed bh Respondent in the steward depart-
ment. lie was elected with the six votes cast out of approxi-
matel, 25 to 27 persons who ere eligible to vote.: Mclner-
ne: believed he was opposed in the election b Thnomas
Kingsbury. an assistant steward, but KingsburN was never a
candidate nor had he ever told ansone that he was a candi-
date. Ihe basis for Mclnerne's belief that he had an oppo-
nent in the election was an alleged preelection statement b\
JerrN Powell a business agent (for the Union. to Mclnerne
that Kingsbur> was running against Mclnerney for union
shop steward.' It is charged that Respondent. threugh its
agents. has interfered with Mclterne,s efforts to be elected
shop steward b\ encouraging other emploees to run
against him. Before discussing the merits of this charge.
additional facts will be helpful.
- According t Mclnleriles. a se enth hallotl a spoiled and therefore not
counted
i lernern lestllie] In ;n unrespsnsl'c .Iru, ei to . questlni aLskcd h I ile
that Jerr. Pouel told the (General i(un,.il Iha ,t se retlsed i I testi at the
hearing tier absence A no1it otherlise explainCed
246 NLRB No. 141
931
I)Il('ISIONS ()I NAI l()NAI IABOR R.AI IONS BOARI)
Respondent is a large well-known hotel located in the
cit of San francisco, (alifirnia. It emplos., atlonog others.
25 to 27 persons in the steward department. I-he chiel stev -
ard is Vwolney Salamanca: the assistant chief steward is
I'homlas Kingshurs. I:mployees in the steward depart meni
are emnploed as dishwashers. potwaslhers and silver polish-
ers, and are members of the Unllion. Besides the ohs indi-
cated ahove. the steward department is also responsible olr
setting up special parties and events with necessar sIup-
plies. for ordering in adv ance. and for cleaning up on a dal-
to-daN basis.
Mans of the employees in the tewau;rd departiment are
Spanish speaking. with little or no understa nding ol Inig-
lish. Salanica is fluent in English anii Spanlish. As chief
steward, he had power to make daily a ssignments and to
hire persons lnl a tempoar} has is. s to peliLnaienit hires
Ihe can onlI make recomlmenda tions to his suer i olr.
Antes. Salamanca also has some responisibilits tfor disciplin-
arv matters aong emplosees in the te\,arl departmnlcl.
hut thile extent of this responsihilil is unclear. Neither is the
record clear as to whether Salai;ianca could ire people. lie
is a member of the Unlion. although aIn inactive Inermherz
and he did not vote in the election for shop steward.
In November or I)ecember the inion posted notices in
and around the steward department announIcin1g an diec-
tion for union shop steward. In addition, Pouell held an
infornmal meeting in mid- to late )ecember to further puh-
licize the new union policy that members should elect a
union shop steward. She was speakinig in nglish to Gloria
Sosa. Jose Medina. Adrian Sarria. Christinai Mc Ka. Jose
Barazza, and Salamanca.4 Some of the group. i particul;r.
Medina, did not understand what Powell was s;aNig, so
Salamanca was asked to and did translate Powell's an-
noucement. There followed a short general discussion about
the election. Powell suggested Sosa for the job. but the lat-
ter declined. Then McKay asked Salamanca if he had an,
ideas about a likely candidate. In response to this question.
he stated that anyole could he a candidate. More specifi-
cally, he suggested Sarria or a man named scobar for the
job. I owever. when it was pointed out to Sarria that there
was no additional pay for the job, he stated that he was not
interested. McKay asked Salamanca whether it w as re-
quired to elect someone to the job since at least no one at
the meeting appeared interested. Salamanca said he would
attempt to find out.
A few days later another informal gathering occurred in
the Silver Room with. except for Powell, the same persons
present. Again the subject of shop steward was being dis-
cussed. Salamanca pointed out that he had received infor-
mation that the employees did not have to elect anyone if
they did not want to.5 McKay then suggested Mclnernes
for the job and asked for Salamanca's opinion. lie stated in
response to the question that, in his opinion. Mclnerney
was not a good candidate as he had been discplined several
A the time of hearing. McKay and Bara7ua were no longer employed by
Respondent and were not called as witnesses.
5 Sosa testified that in late December 197 S;lamanca told her thai I om
was alsi, running but there w as n need for a shop seward. Sllamalnca
testified that this consersation occurred oin the dai of the election and that
his relerence o 'lom running was based on the McInernes leaflet saling si
(Resp. Exh. I). I credit Salamalnca's superior recollection of this consersa
lion. Al.o, his account was not rebulted.
times in the past for misconduct involving disputes with
other emplo Nees. One more incident could lead to his termi-
nation." ' th Ills occurred, tile eployees vould he leftt with-
out a shop stevlard. losc`er, Salamanca added that iti the
emplo\ces s, anted to elect McIlnerne, it was entirel up to
them. After determiningll that no one ,a;s interested i run-
niing Ir the obh. Sarria and the others decided to sore ftr
MlclnerneI and signed a document supporting his candi-
dacN. cilnerne had not been a parto to either meetilig
describhed aboe ad initiall learned of' the election bV
rcai illig tile ann1110ucccmentl posttld arounid te work aireca.
One or 2 daxs bhefre the election. MclnerieN prepared a
numblher of leaflets which he distributed to employees in the
steard departientr. A cops ofl tlis document .wats admitted
into e vidence ( Resp. txI.I ). he lealet was headed hy the
kordl " '()()P)I RA I " ('olnmittee of ()One to Prevent Ei'i-
ploser's Revision o Ag\reement to L uiploec )isadvaln-
taige-) "Joseph Mclnerne I ounder" land apparentl\ sole
nieiheer). Mcl-llne adiitted preparii the document and
heing solelk responsihic for its contents. lie leaflet reters to
t'our prior unitair lahor chaerges iled hb Mclniernes against
Respolident I lihe document also tates in pertinent part:
Y()'R RIGI'IS AREI 1:NDl)R AT'A(CK. I)L-
I i.NI) YO()RSI:I.. Mark tlopkins on Rampage
(again) Againlst UInion Activit. IN I -R :IRI S
W\I II SHI()O SI WIARD) LL.I1 ION SPIRVI-
SOR Rt NNIN(i AGAINS'I UNION AC(IIVIS'I
Just recentl , an inWestigation hb the NlRB has de-
terlined that Voltne Salamanca, Chief' Steward, has
violated the A('I administered by the l.abor Board, in
attemlpting to persuade 3 emploees under his supervi-
sionIl, to run against Joseph Mclnerney tor the position
of tUnion Shop Steward, in his department. In doing
so. Salamancav waits tr! ing to evade the consequences of
im! being elected to the position.
Now about l homas Kingshury. the Hotel's appar-
ent I Ith hour candidate sponsored no doubt by
Slamanca and his cohorts.
My qualifications: Not afraid of the Mark Hopkins
management. least of all Salamanca.
As noted above, Mclnernes won the election tor union
shop steward.
Discussion and Analysis
I begin hb concluding that the evidence in this case does
not show anv violation of' Section 8(a)( 1) and (2) b Re-
6 It did nort appear that McInerney was held in high regard by his cowork-
ers. Sarria described him as a bit on the "nutty side": McKay described him
as "crazs": Salamanca pointed out that he had been disciplined a lew imes
or dispules with ellow employees.
? Neither side iIttemptped It ela borate on these four alleged past charges. It
appears hat the insta;lnt hearing was the result of the fifth unfair lahbor prac-
tice charge bh Mclncrie. Ithis. f Acourse. clnot he considered credible
esldence of pst union anlirus bh Respondent.
932
THE MARK HOPKINS H1OI91.
spondent.' The General Counsel has charged that Sala-
manca. acting as an agent of Respondent. unlawfully solic-
ited employees to run for shop steward against Mclnerne .
The evidence refutes this charge. First, except tfor the Sosa-
Salamanca conversation described in footnote 5 there is no
evidence that at the time of the conversations described
above that Salamanca knew that Mclnerney was a declared
candidate. It is undisputed that Mclnerney was not a party
to the conversations in question. McInerne3 himself testi-
fied there was no formal nomination proceeding. Hte merely
told Powell. the business agent. that he was in the running.
This conversation apparently occurred in mid-December.
But there is no evidence that Salamanca was present or
learned of Mclnerney's intention until later. To be sure.
there is evidence that the union members mentioned in this
case, including Salamanca, fully expected Mclnerney to be
a candidate. but this is difficult from knowing that he was a
candidate. Accordingly, Salamanca could not logicall be
quilty of soliciting other employees to run against Mclner-
ney when Salamanca did not know of Mclnerney's candi-
dacy.
There are additional factors supporting a finding in fasor
of Respondent. The General Counsel's own witnesses did
not particularly want Mclnerney as shop steward and the3
ultimately voted for him only as a last resort, since no one
else was interested in the position. Mclnerney was not well
liked. See footnote 6. As mentioned above. he was not a
party to the December conversations involving Salamanca
and discussed above. He did not get along with some of his
fellow employees and he had been disciplined for this in the
past. The leaflet prepared by Mclnerney and distributed by
him the day before the election for shop steward is inflam-
matory. intemperate, and partially untrue.' Only six per-
sons voted all for Mclnerney, out of 25 to 27 employees
eligible to vote. This apathy was the result of two factos. ( I )
A general indifference by the affected employees to the
election as a whole. This attitude was best represented b3
Sarria's disinterest in running for shop steward after discov-
ering there was no additional pay involved. Ms. Sosa re-
jected a possible candidacy out of hand. Others could not
speak English well enough. (2) The second factor causing
apathy was apparent negative employee reaction to Mc-
Inerney. The point is that the (;eneral Counsel's own ,ait-
nesses were looking for someone other than Mclnerney to
be shop steward. In this regard. they sought the assistance
of Salamanca. In short, there was a joint effort to get some-
one for the job who was better than Mclnerney was ex-
pected to be. Under the circumstances. Salamanca did no
more than respond in a spirit of friendly cooperation to
questions asked by other employees.
I turn now to the conversations themselves Salamanca
said that anyone could run and specifically suggested Sarria
or Escobar in response to a question asked b McKa;;. Ilis
later statement that the emplosees did not hase to elect
anyone was also in response to a question. Finall. Sala-
manca's statement that Mclnernev would not he a good
The discussion might more prolperls begin ith a discussion oi1 whether
Salamanca was acting as Respondent's agent during the lmes nllerlal
hereto However. the evidence s sol oervhelming on the priniar qesitln
posed that I chxoose to begin With the ltntlaslul solicitation issue
It was rnol true. or example, that alier nsestigation the N RB had
determined that Salamanc had sIrtlaled the Acl
shop steward because he had been disciplined in the past
and one more violation could lead to his termination was in
direct response to McKay's request for his opinion oln Mc-
Inernex's candidacy. Surel3, as a member of the Ltnion,
Salamanca had a right to express his opinion hen asked
for it. Moreover, there is no claim that Salamanca misrepre-
sented an3 facts in his answers. In flct. the evidence shows
that the persons present to hear Salamanca's answers were
not told an, ilcts that they did not alreadv know from their
own experience. Of course I also find that Salamanca told
the employees that they could vote or Mclnerne if the'
wanted to and the 3 did."'
I accept the test for an 8a)( I) violation contained in
Munro Enterpri.se.s. Inc.. 210 NRB 403 (1974), cited bh the
General Counsel: "[whether the emploxer engaged in con-
duct which. it may reasonabl be said. tends to interfere
with the free exercise of emploNee rights under the Act."
Putting aside the agencN question for the moment I ask.
where is the interference in this case'? No one was asked to
run, thes were merelN told that the3 could run. Also. the
emploNees were merelN told, when theN asked. that the' did
not have to elect anyone to the job if they were to choose
not to. No claim is made that this information was untrue
or misleading. In fact, the ultimate source of the informa-
tion was the Union itslef, through Salamanca's super isor.
ho told Salamanca.
The General Counsel did not cite the case of h\foOl. Ilnn.
Inc. 232 NLRB 978. 982 (1977). although he might '.ell
ha e. as there is a surface similarit to the present case. Il
fonks Irn. In c. an election lor shop chairman , as sched-
uled to be held in respondent's restaurant. The candidates
were men named D)emopoulous and Iaine. In a con ersa-
tion prior to the election. Dl)ais. a supervisor, told It,. other
emplo ees that he did not care who was chosen shop chair-
man as long as iHaine was not elected. as he Could not deal
with Haite alInd could not talk to him. Da\ is had expressed
his opinion as a super\ isor and as a member of respondent's
management without being asked for his opinion. It saas
found that in activii opposing the election of Haine
through );avis, Respondent had violated Section 8(a)( I) iof
the Act. After carefully considering this case. I concluide it
does not applN to the instant case because of the different
facts present. Thus. here. Salamanca responded to ques-
tions asked rather than initiating conversations. Also. he
told the emploNees that the' could vote for Mclnerne if
the' wanted to. Finally, his opposition to Mclnerne , as
not based on incon enience of management. but rather on
the potential inconvenience to the employees if Mclnerne,,
were to be fired. 'Ihese are some of the factual differences I
see betseen the two cases.
The case cited bh Respondent. 11a. I '(ga. Sun. 209
NI.RB 24( (1974). is more applicable to the instant case
than is l1nA Inn. Inc. In l/ I gos Sun. as im the instIlnt
case. there s, as no background of unfair labor practices nor
all! campaign of management to undermine the Uinion.
"I 1 luriher ind th.t there *.ai nol elidence I unin hll it lli\ on tle p.rt It
Respolnden Nelther did the esidence ho,u tha the ernipl.sees .i ItlCl lnder
pressure emnlan lilg l trill SiarllnCilacas s:alemenll See ( jp/'i 1,leiln rim,l,
(;orialtiti s \ L R B. 240 tF2d 54. 571 (ist (t lsi'
I . he record in the preernt clse shovs hat Po,ucll. the .Illon huliness
igentl. hi rual\ an unlellered rght to coine t, aid go iroli R¢epndenit'
preniscs Jt ill
933
I)3 ('ISIONS OF NATI()NAL I ABOR RlA' IONS OARI)
Also, the supervisor was described as low level, as f'riendly
and sympathetic, and as expressing his personal opinion
without the knowledge or encouragement of management.
All of these factors apply here. 2 See also (Gibson (reli ng
Cards, Inc., 205 NLRB 239 (1973). Compare Pittshurgh
Press Company, 234 NLRB 408 (1978).
Finally I reject the General Counsel's claim that Section
8(c) of the Act" does not apply as I find that it does, as no
fair or reasonable person could interpret Salamanca's state-
ments in this case as containing some threat of reprisal or
f'orce or promise of benefit. See Co/pus Engineering ( orplo-
ration. suprl. 240 F.2d at 570. For all the reasons discussed
above. I recommend that the complaint be dismissed.' 4
2 I1 have carelfully examined the dissenting opinion t'f then Member Fa3n-
ning in la u VUega Sun, as the change in Board membership since 1974 might
well render said opinion a majority view. However my view is that the facts
in the present case would not warrant a similar opinion, be it majority or
dissent.
11 Sec. 8(c) provides: "The expressing of any views. argument. or opinion
of the dissemination thereof , . shall not constitute or he evidence of an
unfair labor practice under any of the provisions of this Act, if such expres-
sion contains no threat of reprisal or force or promise of benefits "
1 Because of the disposition of the primary issue, there is no reason to
make a specific finding on whether Salamanca. an admitted supervisor, was
acting as Respondent's agent at the time material to this case. However. it'
the point were material. I would be inclined to rule in favor of the (General
Counsel's position. .otal No 6h. mnied Asiociaiion I Jiirncrimelt andli 4p
prentces of Plumbing anil Pipe Fitting Indu.srs o'f UI'nld States nd ( tltadia.
AFI. C0, ei al Detroi Edison Co/ v. NL.R.R., 287 F 2d 354, 359 tl) (
('ir. 1961); Brouhill Comnparn, 210 NI.RB 288. 293 294 (1974), enfid 514
F.2d 655 (8th Clr 1975).
Based on the foregoing findings oft fact, and the record as
a whole, I hereby make the fi'llowing:
( )N( I SIONS (It I A\k
1. Respondent is an employer within the meaning of Sec-
lion 2(2) of' the Act, engaged in commerce and in an indus-
try affecting commerce within the meaning of' Section 2(6)
and (7) of the Act.
2. The Union is a labor organization is thin the meaning
of Section 2(5) of the Act,
3. Respondent has not engaged in the unfair labor prac-
tice alleged in the complaint.
Upon the basis otf the foregoing findings o fact, conclu-
sions of law., and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORD)ER"
The complaint is dismissed in its entirety.
i' In the event no exceptions are tiled as prosided by Sec. 102.46 of1 the
Rules and Regulalions the National Ihabor Relatilons Bard, the findings,
cinclusions. and recommended Order herein shall. a3 pros ided in Sec 10248
of' the Rules and Regulations. he adiopted by the Board and become its
lindings. coinclusiolns, and Order. and all objections thereto shall be deemed
waived for all purposes.
934