Sheraton Motor Inn

National Labor Relations Board - Board Decisions

Dec 23, 1971

194 N.L.R.B. 733 (N.L.R.B. 1971)

SHERATON MOTOR INN 733
Flint Motor Inn Company d/b/a Sheraton Motor Inn
and Local 794, Hotel and Restaurant Employees
and Bartenders International Union,, AFL-CIO,
Petitioner . Case 7-RC-10367
December 23, 1971
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved on February 10, 1971, an
election by secret ballot was conducted on March 17,
1971, under the direction and supervision of the
Regional Director for Region 7 among the employees
in the stipulated unit. At the conclusion of the
election, the parties were furnished with a tally of
ballots which showed that of approximately 69
eligible voters, 27 votes were cast for the Petitioner, 27
votes were cast against the Petitioner, and 3 votes
were challenged. Thus, the challenged ballots were
sufficient in number to affect the ultimate results of
the election.
The Petitioner and the Employer filed timely
Objections to Conduct Affecting the Results of the
Election on March 22, 1971, and March 24, 1971,
respectively.
Pursuant to a stipulation agreed to by the parties,
the challenged ballots were resolved; two challenges
were sustained and one was overruled. Upon opening
and counting the appropriate challenged ballot, the
corrected tally showed that, of 55 valid votes cast, 28
were cast for the Petitioner, and 27 were cast against
the Petitioner.
The Petitioner withdrew its objections after the
challenged ballots were resolved and it received a
majority. The Employer's objections stood. Accord-
ingly, the Regional Director conducted an investiga-
tion and on April 26, 1971, issued his Report and
Recommendations on Objections, in which he recom-
mended that the Employer's objections be overruled
in their entirety and the Union be certified. Thereafter
the Employer filed timely exceptions to the report and
a supporting brief.
The Board considered the Employer's exceptions
and the entire record and was of the opinion that
issues had been raised as to "the impact on the
election of the alleged conduct of the supervisor, and
as to the Employer's knowledge of that conduct,"
which could best be resolved by a hearing. According-
ly, on June 21, 1971, the Board directed that a hearing
be held before a Hearing Officer who would prepare
recommendations to the Board. The hearing was held
on July 19,197 1.
The Hearing Officer in his report, issued September
3, 1971, recommended that the objections be over-
ruled in their entirety and that the Petitioner be
certified as the collective-bargaining representative of
the employees. Thereafter, the Employer filed timely
exceptions to the Hearing Officer's report, together
with a supporting brief; the Petitioner filed a brief in
opposition to the Employer's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds no prejudicial
error was committed. The rulings are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that all full-
time and regular part-time employees including
maids, housekeepers, desk clerks, kitchen employees,
waitresses, bus boys, bartenders, cashiers, hostesses,
and maintenance employees employed by the Em-
ployer at its motel facilities. located at 4300 W. Pierson
Road, Flint, Michigan, excluding office clerical and
supervisory employees as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
The Board has considered the Hearing Officer's
Report, the exceptions and briefs, and the entire
record in this case and hereby adopts the findings,
conclusions, and recommendations of the Hearing
Officer, only to the extent consistent herewith.
The Hearing Officer found that the chef, Patrick
Gibbons, was a supervisor within the meaning of the
Act. Neither party disputes this finding. We agree
with the finding.
Moreover, the record clearly shows that Gibbons
had a major supervisory role at the Employer's
motel.' He had the authority to hire, train, discipline,
schedule work, including overtime, and supervise the
motel's entire complement of kitchen employees. He
also exercised supervisory authority in the reprimand-
ing of waitresses and other dining room employees.
1 Gibbons resigned the day following the election.
194 NLRB No. 115
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He planned menus, purchased food and supplies,
pledged the credit of the motel, and had authority to
operate the kitchen facilities in the manner he deemed
appropriate. These responsibilities brought Gibbons
into contact with approximately 60 percent of the
motel's staff each day. Gibbons was a salaried
employee (all unit employees were hourly employees),
and the second highest paid employee in the motel.
The Hearing Officer found that Gibbons solicited
authorization cards,2 actively and outspokenly advo-
cated union representation, and was the Union's
"contact man" during the organizational campaign.
With respect to these findings, the record shows that
Gibbons' advocacy of union representation occurred
throughout the organizational campaign including
the day of the election. Further, Gibbons told
employees that, if they did not vote for the Union,
management, other than himself, was perhaps intend-
ing to cut wages. Gibbons also advised several
employees that union representatives were intending
to come to the motel, take a room and discuss the
Union with them, or have other employees sign
authorization cards. The record is unclear as to
whether this meeting ever took place. However,
Gibbons testified that upon his advice those plans
were canceled. Finally, the record shows that Gib-
bons met with various union officials during the
election campaign and on the day of the election. It
should also be noted that Hesiak, the general manager
of the motel, testified, without contradiction, that the
Employer first learned of Gibbons' activities on the
day of the election when the Petitioner sought to have
Gibbons designated an observer at the election for the
Union. The record clearly supports a finding that
Gibbons played a major role in the Petitioner's
organizational campaign.
In two recent cases, Stevenson Equipment Company 3
and Turner's Express, Incorporated,4 the Board con-
sidered the impact that supervisory participation in
union organizing campaigns can have on employees.
In these cases, the Board noted that such activity
could have two different effects on employees. One, in
situations where supervisors actively encourage em-
ployees to vote for the union and the employer takes
no known stance to the contrary, the employees might
be led to believe that the employer favors the union.
The other conceivable effect involves the continuing
relationship ' between supervisors and employees;
namely, the possibility that such conduct could coerce
2 Gibbons solicited employee signatures on approximately 20 to 25
authorization cards , which cards were used to file the petition herein on
January 26, 1971 While we are cognizant that the rule in Ideal Electric and
Manufacturing Company, 134 NLRB 1275, forbids specific reliance on
prepetition conduct as grounds for objecting to an election , such conduct
may properly be considered insofar as it lends meaning and dimension to
related postpetition conduct See Stevenson Equipment Company, 174
NLRB No. 128, In I
an employee into supporting the union out of fear of
future retaliation by a union-oriented supervisor.
When the conduct of Gibbons is examined in the
light of the foregoing considerations, it becomes
obvious that the employees were not misled by
Gibbons into believing the Employer was in favor of
union representation. Specifically, we refer to two
speeches by Hesiak to the employees prior to the 24-
hour period in which he made it clear the Employer
opposed union representation. We agree with the
Hearing Officer's conclusion on this point.
However, in our judgment, the second effect given
consideration in Stevenson and Turner's cannot be so
easily dissipated. Here, unlike Turner's, Gibbons was
a "major supervisor" whose opportunities for affect-
ing the employment status of regular employees in the
unit were considerable.5 Also, unlike Stevenson,
Gibbons displayed active and outspoken support for
the Union throughout the organizational campaign
including the day of the election.6 While the record
does not show Gibbons gave any indication to
employees that he would use his authority as
supervisor to punish those who failed to support the
Union, we believe, given Gibbons' considerable
supervisory authority and his active and outspoken
support of the Union throughout the organizational
campaign, that there is a reasonable "possibility' that
[his] conduct could coerce an employee into support-
ing the union." See Turner's, 13th paragraph. Further-
more, in contrast to Stevenson and Turner's, the
employees here were suspicious of Hesiak, the general
manager, in no small measure due to the actions and
statements of Gibbons, thereby inhibiting the em-
ployees' opportunity to protest any unfair treatment
by Gibbons. Consequently, there is a reasonable basis
for concluding that possible fear of supervisory
retaliation destroyed the employees' freedom of
choice and constituted interference with the laborato-
ry conditions which the Board seeks to maintain
during an election campaign. Accordingly, we hereby
overrule the Hearing Officer's conclusion on this
point and conclude that the facts of record warrant
setting aside the election.
ORDER
It is hereby ordered that the election conducted
herein on March 17, 1971, be, and hereby is, set aside.
3 Supra.
4 189 NLRB No 23
5 In Turner 's, the Board found that both supervisors were " `minor
supervisors ' whose opportunities for affecting the employment status of
regular employees were decidedly limited."
6 In Stevenson, two of the three supervisors had been terminated well in
advance of the election The remaining supervisor, Espinosa , the Board
found, did not display "so marked or , inordinate" interest in the union
SHERATON MOTOR INN 735
[Direction of Second Election7 omitted from
publication.]
7 In order to assure that all eligible voters may have the opportunity to by the Employer with the Regional Director for Region 7 within 7 days
be informed of the issues in the exercise of their statutory right to vote, all after the date of issuance of the Notice of Second Election by the Regional
parties to the election should have access to a list of voters and their Director . The Regional Director shall make the list available to all parties
addresses which may be used to communicate with them Excelsior to the election . No extension of time to file this list shall be granted by the
Underwear Inc, 156 NLRB 1236; N L. R.B. v. Wyman-Gordon Co., 394 U.S Regional Director except in extraordinary circumstances Failure to
759 Accordingly, it is hereby directed that an election eligibility list, comply with this requirement shall be grounds for setting aside the election
containing the names and addresses of all the eligible voters, must be filed whenever proper objections are filed.