Store No. 144

National Labor Relations Board - Board Decisions

Mar 31, 1976

223 N.L.R.B. 565 (N.L.R.B. 1976)

SAMBO'S NORTH DIVISION STORE 565
Sambo's North Division Store No . 144 and Hotel,
Motel and Restaurant Employees Union Local No.
400, Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO, Petitioner.
Case 19-RC-7720
March 31, 1976
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a. three-
member panel has considered objections to an elec-
tion held on November 21, 1975,' and the Regional
Director's Report recommending disposition of
same? The Board has reviewed the record in light of
the exceptions and brief and hereby adopts the Re-
gional Director's findings and recommendations.
Unlike our dissenting colleague, we find no abuse
of discretion in the Regional Director's handling of
this matter. Neither in his refusal to extend the time
for submitting, as requested by the Region, the
names of the Employer's supporting witnesses to its
objections, together with a summary of their antici-
pated testimony and any applicable documentary ev-
idence, nor in his failure subsequently to consider
evidence untimely submitted did the Regional Direc-
tor deny due process to the Employer or misuse the
powers delegated to him by the Board.
The dissent conveniently overlooks the fact that,
when filed, the Employer's objections were not ac-
companied by any evidence or supporting materials
of any kind, despite the objecting party's burden then
to furnish evidence sufficient to establish a prima fa-
cie case. Surely, the Region's requiring less, i.e.,
names and "leads" to enable it to commence its in-
vestigation rather than full statements or pre-
sentment of the witnesses in person, was not too
much to ask the Employer to submit in the addition-
al time granted it. At the least the Employer must
have known, at the time of filing, the identity of its
supporting witnesses and must have had some idea of
what they would say: else upon what grounds were
the objections based, especially the first six which
specify the kinds of objectionable conduct allegedly
' The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election . The tally was: 19 for , and 7 against , the Petitioner;
there were 3 challenged ballots, an insufficient number to affect the results.
2 Pertinent portions of the Regional Director's Report are attached hereto
as the appendix.
committed by Petitioner? Since that was all that was
being required of the Employer in the Region's de-
mand, and inasmuch as it was reasonable for the Re-
gion to assume that the Employer already had such
information in its possession, we are at a loss to
understand why the time limitation set by the Region
for receipt of the requested matter imposed any un-
due or onerous burden on the Employer or its coun-
sel, or one which could be said to be unfair to expect
that party to meet. Yet the Employer made no at-
tempt to comply with the request in the time allotted;
nor did it even try to deal therein with its substance
in the slightest way. In such circumstances, we find
that the Employer had ample time to come forward
with the information in the limited form that was
sought. We further find, therefore, that the Regional
Director acted properly in issuing his report and rec-
ommendation on the objections to the election herein
without granting additional time for the Employer to
submit its evidence, and in not considering the
Employer's affidavits which were untimely submit-
ted.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Hotel and Restaurant Em-
ployees Union Local No. 400, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, said la-
bor organization is the exclusive representative of all
the employees in the following appropriate unit for
the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, or other
terms and conditions of employment:
All employees employed by the Employer at
its location at 3524 North Division, Spokane,
Washington, excluding all office clerical em-
ployees,. professional employees, confidential
employees, manager, assistant managers and all
other supervisors as defined in the Act.
MEMBER WALTHER, dissenting:
Contrary to my colleagues, I find that the Regional
Director abused his discretion by overruling ,the
Employer's objections without having considered the
supporting evidence submitted by the Employer.
The election was conducted on November 21,
1975. On December 1, the Employer timely filed and
duly served on Petitioner objections to conduct af-
fecting the results of the election. The objections con-
tained, inter alia, serious allegations that Petitioner
made threats of physical harm to eligible voters, told
certain employees they could not vote because they
223 NLRB No. 81
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not signed -authorization cards, and told employ-
ees that those who had signed authorization cards
were required to vote for Petitioner.
On December 1 the Regional Director mailed to
the Employer a letter which set December 8 as the
deadline for submission to the Regional Director of
evidence in support of the objections. The
Employer's attorney states that he received this letter
in the afternoon of December 4. By letter of that
same date, and postmarked December 5, the
Employer's attorney informed the Regional Director
that he would meet with certain employees in the
restaurant and prepare affidavits in support of the
objections , but that he could not do so until Decem-
ber 15 because of intervening commitments with the
Securities and Exchange Commission and a hearing
before this Board scheduled for Thursday, December
11, which he estimated would last 2 days. The
Employer's attorney promised to supply the evidence
requested by the Regional Director by Tuesday, De-
cember 16.3 He did so.
The Regional Director received this letter on De-
cember 8 . Without further notice to the Employer or
its Attorney, the Regional Director overruled the ob-
jections on December 12. His rationale was that he
had not requested affidavits , but rather a list of the
witnesses and a summary of their testimony. The Re-
gional Director also found that 17 days-the period
from the date of the election until December 8-was
ample time in which to submit the requested evi-
dence . Further, the Regional Director found fault
with the Employer's attorney for not having contact-
ed the Region in advance of the December 8 dead-
line to seek an extension of time in which to submit
evidence . In support of his decision, the Regional Di-
rector cites Mohawk Bedding Corp., 178 NLRB 432
(1969), and PSI Division of Warner Electric Brake
and Clutch, 194 NLRB 499 (1971). This rationale is
not persuasive.
The Employer's attorney was not made aware of
the December 8 deadline until late in the day of De-
cember 4. He responded promptly, requesting an ex-
tension of time , for reasons which are quite under-
standable to lawyers practicing under the press of
time . Furthermore , since the Regional Director chose
to impose the deadline by mail and to eschew other
modes of communications , I think it unreasonable of
the Regional Director to overrule the objections be-
cause the request for an extension was made by re-
turn mail . Nor do I find merit in the Regional
Director's complaint that the attorney wished to sub-
mit affidavits . Such things are, after all, simply one
form of a "summary of a witnesses' testimony,"
which has customarily been accepted by the Board.
In its simplest terms then , the result here, if the
Regional Director's decision is adopted, is that an
election conducted by this Board, which could have
been seriously disrupted under applicable Board pol-
icies if the substance of the objections is proven, will
nevertheless receive the imprimatur of this Board's
approval because the Regional Director refused an
extension of only 4 days for the submission of evi-
dence. I find no good reason to subscribe to this sort
of "for want of a nail" philosophy.
Finally, I note that the cases cited by the Regional
Director clearly do not support his recommendation
in this case. In Mohawk Bedding Corp., 178 NLRB
432, the Board overruled the objections where, de-
spite two requests by the Regional Director, the em-
ployer refused to specify when if ever it would sub-
mit evidence in support of its objections . In PSI,
supra, the Board overruled the petitioner's objections
because of its failure to submit supporting evidence,
despite petitioner's plea that its agent was ill at the
time, because the petitioner never contacted the Re-
gion, prior to the expiration of the deadline, in order
to request an extension of time. Neither of those situ-
ations is apposite here.
Accordingly, I would remand this case to the Re-
gional Director and direct him to complete the inves-
tigation of the Employer's objections.
3 In his exceptions , the Employer 's attorney adds that the United Airlines
strike made it more difficult than normal for him to reach the Employer's
Spokane , Washington , store (the site of the election) from the Employer's
corporate headquarters in Santa Barbara, California.
APPENDIX
THE OBJECTIONS
The Employer's objections are as follows:
1. Petitioner Local 400 interfered with the conduct
of the election by materially misrepresenting the ap-
plicability of its contracts of other companies and, in
addition, misrepresented the applicability of the clas-
sifications in those contracts and other provisions at
a time when the Employer had no opportunity to
respond.
2. Petitioner Local 400 interfered with the rights
of employees in their free choice in the election by
stating that certain classifications of employees could
not vote because those employees had not signed
union authorization cards.
3. Petitioner Local 400 further created the impres-
sion that only those who signed cards were allowed
to vote, and that when they signed cards, they were
required to vote for the Petitioner.
4. The election was unfair and the free choice of
the employees interfered with due to threats of physi-
SAMBO 'S NORTH DIVISION STORE 567
cal harm against employees who had stated a prefer-
ence for no union. Said threats were directed to those
who claimed to have not signed union authorization
cards , as well as those indicating a preference for no
union.
5. Petitioner Local 400 interfered with the election
by falsely accusing the Employer's letters to employ-
ees as being totally untrue at a time when the Em-
ployer had no opportunity to respond.
6. Petitioner Local 400 interfered with the election
by materially misrepresenting the employees and the
union's rights to challenge alleged Employer wrong-
doing at a time when the Employer had no opportu-
nity to respond.
7. Petitioner Local 400 and others interfered with,
restrained, and coerced the employees in the exercise
of their rights.
THE INVESTIGATION
Because the Employer's objections were not ac-
companied by evidence to support them, a letter was
sent by the Region to the Employer on December 1,
1975, which read as follows:
Your objections to the election conducted in
the above-captioned case were received by this
office on December 1, 1975, and have been as-
signed to the undersigned for preliminary inves-
tigation. If you have not already done so, it is
necessary that timely service of your objections
also be made upon the other parties to this case.
If your objections were not accompanied by
prima facie evidence in support thereof, such evi-
dence must be submitted either at the time of
filing or forthwith upon the request 'of the Re-
gion.
On behalf of the Regional Director, the un-
dersigned is requesting that you submit forth-
with all documentary evidence in your posses-
sion, and a list of the names and addresses of all
witnesses whom you expect to substantiate the
allegations set forth in your objections together
with a concise summary of their anticipated tes-
timony. The summary should be specific as to
the date, time and locations of the actions and
incidents you alleged to be objectionable, the
names of all individuals who were present when
the alleged misconduct took place, and the
names of the persons who perpetrated the con-
duct you allege to be objectionable.
Absent receipt by this office of the requested
evidence by the close of business December 8,
1975, the undersigned will be constrained to rec-
ommend to the Regional Director that a report
on your objections, based upon the evidence be-
fore us at that time, issue immediately.
On December 8, 1975, the Region received a letter
from the Employer, dated December 4, 1975, and
postmarked December 5, 1975, which read as fol-
lows:
Thank you for your letter of December 1,
1975, regarding the evidence in support of the
objections-recently filed in the above-captioned
matter.
It will be necessary for me to meet with cer-
tain employees in the restaurant in order that I
can prepare affidavits for your consideration of
our objections.
Because of .prior commitments with the Secu-
rities and Exchange Commission early next
week and a National Labor Relations Board
hearing on Thursday, December 11, which may
last two days, I will be unable to be in Spokane
until Monday, December 15. I should complete
my gathering of evidence from the employees
and will mail to you our evidence on Tuesday,
December 16, 1975.
The National Labor Relations Board Internal In-
structions and Guidelines for Representation Pro-
ceedings [N.L.R.B. Casehandling Manual, Part II],
Section 11392.5, controls the manner in which objec-
tions are to be investigated:
Duty to Furnish Evidence: It is incumbent upon
the party filing objections to do so by the close
of business on the fifth working day following
the close of the election, and to furnish evidence
sufficient to provide a prima facie case in sup-
port thereof before the Region is required to in-
vestigate the objections. In addition to identify-
ing the nature of the misconduct on which the
objections are based, the party filing objections
is required to submit evidence in support thereof
at the time the objections are filed or forthwith
upon request from the Regional Director. This
should include a list of the witnesses and a brief
description of the testimony of each. An object-
ing party normally should not be permitted to
"piecemeal" the submission of evidence but
should be required to disclose promptly all the
evidence in support of his objection. Absent the
prompt receipt of evidence, the Regional Direc-
tor should overrule the objections.
In Mohawk Bedding Corp., 178 NLRB 432, the
Board held that the Regional Director is entitled to
some discretion in deciding whether supporting evi-
dence has been submitted forthwith. The Board in
Mohawk upheld the Regional Director's decision to.
close the case and issue a report on the employer's
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objection, when, approximately 20 days after the
election, the employer had not yet provided any evi-
dence, and could not even specify when it would be
able to furnish such. In PSI Division of Warner Elec-
tric Brake and Clutch, 194 NLRB 499, the Board fur-
ther found that the Regional Director had not
abused his discretion in setting a deadline of 15 days
after the election for filing supporting evidence to
objections. The objecting union's claim that they
needed more time because their business agent was
ill was not persuasive.
In the present case , a deadline of 17 days after the
election was set for filing evidence, and was not met.
On the last day of the deadline, the Employer asked
for an additional 8 days to gather and send in affida-
vits from witnesses . The Employer offered none of
the types of evidence requested-a witness list, docu-
ments and summaries of testimony. Rather, the Em-
ployer wanted an extension to gather affidavits-
something that the Region clearly did not ask for.
The 17 days provided the Employer ample time to
submit the types of evidence requested in the
Region's letter, but none was forthcoming. The Em-
ployer could have also contacted the Region in ad-
vance of the deadline to seek an extension, but did
not do so, its letter arriving only on the last day.
These facts lead me to conclude that a reasonable
time has passed for submitting supporting evidence,
and that there are no persuasive reasons for an exten-
sion of time to be given. In light of the facts that no
evidence has been presented at this time, I according-
ly recommend that the Employer's Objections 1
through 7 be overruled.
RECOMMENDATION
For the reasons set forth above, it is recommended
that the objections be overruled in their entirety and
that a Certification of Representative be issued.
As provided in Section 102.69(c) of the Board's
Rules and Regulations, Series 8, as amended, either
party may within 10 days from the date of issuance
of this report file with the Board in Washington, D.
C., eight (8) copies of exceptions to such report with
supporting brief if desired. Copies of such exceptions
must be duly served upon the other party and upon
the Regional Director for Region 19.'
Dated at Seattle, Washington this 12th day De-
cember 1975.
/s/ Charles M. Henderson, Regional Director,
Region 19
'Exceptions must be received in Washington , D.C., by December 26,
1975.