The Catalyst

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1026 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Randall P. Kane, Inc., d/b/a the Catalyst and Hotel,
Motel, Restaurant Employees & Bartenders Inter-
national Union Local 483. Case 32-CA-81 (for-
merly 20-CA- 11333)
September 28, 1977
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND MURPHY
Pursuant to the Board's Supplemental Decision
and Order dated February 23, 1979,' Administrative
Law Judge Richard J. Boyce, on July 3, 1979, issued
the attached Supplemental Decision in this proceed-
ing.2 Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed cross-
exceptions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board reaffirms its Order issued in this proceed-
ing on June 21, 1977 (reported at 230 NLRB 355),
and hereby orders that the Respondent, Randall P.
Kane, Inc., d/b/a The Catalyst, Santa Cruz, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in said Order.
I Reported at 240 NLRB 904.
2The Board's original Decision and Order is reported at 230 NLRB 355
(1977).
3 Chairman Fanning, for the reasons set forth in his dissent in Serv-U-
Stores, Inc., 234 NLRB 1143 (1978), contrary to the Administrative Law
Judge and his colleagues, would find not valid only the card of Fredrickson,
who did not read the authorization card.
SUPPLEMENTAL DECISION
I. BACKGROUND
RICHARD J. BOYCE, Administrative Law Judge: On
March 15, 1977, I issued a decision herein concluding, inter
alia, that Respondent had violated Section 8(a)(5) and (1)
of the Act by refusing to recognize and bargain with the
Union. Central to that conclusion was a finding that, in
April 1976, the Union had obtained valid authorization
cards from a majority of Respondent's employees in an ap-
propriate unit. The Board affirmed that finding and conclu-
sion. 230 NLRB 355 (1977).
The Ninth Circuit Court of Appeals, however, declined
enforcement of that portion of the proceeding, instead re-
manding it to the Board with instructions to take additional
evidence of the circumstances surrounding the signing of 15
authorization cards found by me and the Board to have
been valid, and then to reconsider whether the Union had
obtained a valid card majority. 581 F.2d 215 (9th Cir.
1978). The Board, in turn, remanded the matter to me "to
take any additional evidence which the parties may wish to
present as to the validity of the 15 cards in question and to
thereafter issue a Supplemental Decision in this matter."
240 NLRB 905 (1979).
Pursuant to the Board's remand order, a supplemental
hearing was held before me in Santa Cruz, California, on
May 15, 1979. Briefs thereafter were submitted by the Gen-
eral Counsel and by Respondent.
11. THE 15 CARDS IN QUESTION
The 15 cards in question are those signed by Samuel Cas-
son, Jonathan Eckert, Lee Jackson, and Sue Phillips, all of
whom testified to some extent of the circumstances of their
signing in the original hearing: and by these I1, whose an-
ticipated testimony of the circumstances of their signing
was the subject of a stipulation by the parties: Darvin
Clark, Judy Fredrickson, Randolph Jamal, Glenn Marks.
Kenneth Miller, Glen Ortman, Joanne Petrovich, Robert
Riegner, David Savalo, Gary Tighe, and Glen Weather-
ford. The Board stated in its Supplemental Decision that it
"no longer accepts" the stipulation concerning the antici-
pated testimony of these 11. 240 NLRB No. 128. slip op. 3
fn. 5.
IIl. A SUMMARY OF FACTS PREVIOUSLY FOUND
As set forth in my earlier decision,' 51 employees signed
authorization cards between April 1 and 13, 1976; the
Union made a written demand for recognition, which went
unanswered, on April 19. The election processes of the
NLRB were never invoked. The unit, at relevant times, con-
sisted of 86 employees. The cards, all identical, stated:
HOTEL, RESTAURANT EMPLOYEES AND
BARTENDERS INTERNATIONAL UNION LOCAL
#483
I, the undersigned, agree and respectively designate
and authorize Local 483 separately and/or collec-
tively through any of its affiliated Locals, agents or
representatives to represent me, and as such represen-
tatives for me, and in my behalf of negotiate and con-
clude agreements as to hours of labor, wages and other
employment conditions.
(Date)
(Occupation)
(Employer)
i See, generally. 230 NLRB at 362.
(Signature)
(Address) (City)
245 NLRB No. 131
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THE CATALYST
On April 2, to save the time of oral explanation, one of
the employee-organizers, Tony Rice. drafted and dupli-
cated a written addendum which was attached to most of
the cards distributed thereafter. It read:
Once signed, this card gives the AFL-CIO permission
to represent you as an unorganized worker, before the
National Labor Relations Board. This does not mean
you are or have tojoin a union. This is only the first step
towards free and open discussion with regard to collec-
tive bargaining between Catalyst workers and the
management.
There is absolutely no way for the owner or friends of
the management to find out who has signed one of
these authorization cards, and it is illegal for him to
fire you for doing so.
PLEASE FILL OUT AND RETURN IMMEDI-
ATELY TO YOUR UNION REP.
The solicitation of signatures was done by Rice and two
coworkers, Peter Puhl and Frank Ryerson. The Union's
business manager, Robert Gamberg, explained on April 1,
when furnishing them with blank cards, that: (1) card so-
licitation was "the first step" in organizing; (2) if 30 percent
of the employees signed, the Union could petition for an
NLRB election; and (3) if 50 percent plus one cast ballots
for the Union in the election, collective bargaining would
follow. Rice recalled Gamberg as saying the purpose of the
cards "basically ... was to get an election."
The lion's share of the soliciting was done by Puhl. He
estimated that he obtained about 50 signatures, and that,
regardless of the presence of the stapled-on addendum after
April I, he engaged in explanatory conversation with all
but 5 or 10 of those 50. Puhl testified that his standard
explanation took this form:
I would tell them that this is the initial step in trying to
organize a union for collective bargaining, that it's not
joining a union when you sign the card, that when a
percentage of 30 percent was reached that they would
petition for an election, that it would be held secret
ballot. In order to win the election it would take 50
percent plus one. Upon winning it then they would sit
down, the union representatives, and negotiate over a
contract ....
Similarly, Rice testified that he told prospective signers
"that we're trying to get 30 percent of the people to sign so
that we could have an election to decide whether or not we
would have union representation"; and Ryerson testified of
telling would-be signers "that they were not joining a union
by signing that card, that it was leading towards an elec-
tion."
To much the same effect, five of those signing-including
four whose cards are now in question-testified that they
were told, in essence, when asked to sign, that the purpose
of the cards was to give the employees a chance to have an
election to see if they wanted union representation. More
specifically, Samuel Casson testified that Puhl told him that
he "needed a certain percentage of people employed at The
Catalyst to sign one of the cards, in order for there to be an
election to determine whether or not the employees wanted
the Union": Jonathan Eckert testified that Puhl said "we
would vote on whether we wanted to have the Union or not
have the Union": Lee Jackson testified that Puhl told him
that "essentially what we were doing was giving our okay to
an election so that we could figure out whether or not we
wanted a union"-"that was the only reason for signing
these": and Sue Phillips testified that Rice said "it would
give us a chance to have an election to see if we wanted a
union." The fifth signer to testify. Terri Beaudoin, testified
that Puhl said "the only thing that it [signing] pertained to
is that there would be an election as to whether or not we
wanted a union."
IV. THE SUPPLEMENTAl HEARING
A. Evidence
Eight of the fifteen to sign the cards now in question
testified in the supplemental proceeding. No other testi-
mony was proffered. The eight were Phillips, who had testi-
fied previously as mentioned above, and seven who were
covered by the now inoperative stipulation: Fredrickson.
Jamal, Marks, Miller, Ortman, Riegner. and Weatherford.2
As might be expected, given the 3-year lapse since the
events of which they testified, and perhaps also because of
their utter naivete concerning authorization cards and the
process generally of obtaining union representation,' their
recitals often were hazy and confused, and seemingly inter-
woven with impressions, assumptions, and even guesswork,
as distinct from objective evidence.'
The testimony, summarized:
Phillips: Phillips testified that she obtained her card from
Rice at work on April 2, during a 15- to 20-minute conver-
sation. She elaborated that only the final 5 to 8 minutes of
the conversation pertained to the union drive, and that Rice
told her, when tendering the card, that "it was just to see if
we were going to have an election." Rice also stated, ac-
cording to Phillips, that if enough employees signed cards,
the employees could obtain more information from the
Union. Rice did not show her the addendum that was at-
tached to some of the cards.
Phillips continued that she took the card home, where
she read and signed it, and returned it to Rice the next day.
Phillips further testified that: (1) she was a social friend
of Rice's; (2) she had discussed the union situation with him
previous to the time he tendered the cards; and (3) she
signed not only because of the things he said when giving
her the card, but "based on everything" he had told her in
their several conversations on the subject. Expanding on
the other conversations, Phillips related that Rice "was
feeding [her] a lot of information," not all of which she
absorbed, and that he "was generally saying good things
2 Respondent assumed the burden of going forward with evidence. Its
counsel represented that six of the signers in question-Clark, Casson, Eck-
ert, Jackson, Petrovich, and Savalo could not be located, and that it chose
not to call Tighe.
In this regard, Jamal might well have been speaking for all when he
testified: "I didn't know what I was doing. I didn't understand the ramifica-
tions."
'This is not to impugn the witnesses' sincerity. With perhaps one excep-
tion. they were remarkably conscientious in the circumstances.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the Union," such as its "improving the wages" and
getting medical and dental plans for the employees.
Phillips concluded that she was not induced to sign by
anything in particular that Rice had said, explaining that
she "had a lot of information fed to [her] at the point," but
that one of her reasons was that Rice was a friend and had
asked her.
Fredrickson and Jamal: Fredrickson and Jamal testified
that they obtained their cards from Rice, and signed them
during a meeting at Frederickson's and Jamal's home on
April 8; Frank Ryerson also was present and participated.
Fredrickson testified that she signed after "about three
hours' worth" of discussion among the four the them. She
recalled Rice's stating, before she signed, that "this card
meant only that it was going to allow ... the ... employees
to have a democratic vote as to [whether] they even wanted
to think about having any kind of union whatsoever"; that
"all it would do was enable people to vote"; and that he
"needed a certain amount of people to sign cards." Fred-
rickson reputedly replied that she "did not want to sign the
card, did not want to vote, could care less, and was doing it
to be left alone and have some peace and quiet."'
Fredrickson testified at one point that she signed "in
sympathy because he [Rice] said it was the democratic
thing to do"; at another time she did it "to get [Rice] out of
there"-"after three hours of listening to him, I wanted to
get rid of him." She further testified that she did not read
her card before signing, and that it was not accompanied by
the addendum Rice had prepared.
Jamal testified that (I) "most of the conversation was
devoted to Mr. Rice trying to persuade . . . that with the
Union coming in, the Union would somehow improve what
was happening at The Catalyst"; (2) "there was some glow-
ing praise about what being in a union would do"; and (3)
Rice said "signing this card will guarantee ... an election
by the entire group of employees that would determine
whether or not we would be represented by the Union."
Rice also stated, according to Jamal, that signing "didn't
mean I was joining the Union."
Jamal testified that Ryerson said "essentially the same
things" that Rice did-"it was a joint effort." Jamal re-
called that one or the other said that: (I) a certain number
of cards were needed "to secure an election"; (2) after the
requisite number of cards had been obtained, the Union
could come in and show the employees what it had to offer;
and (3) "the Union would attempt to improve the wages
and hours and working conditions of the people at The
Catalyst."
Jamal testified that he read his card before signing, and
that Rice's addendum was attached to it, which was "one of
the reasons" he signed. He asserted that he also was influ-
enced to sign, "to some degree," by all that had been said
during the meeting, because he "wanted to get [Rice] out of
my house" after so long a discussion, and because "I was
guaranteed, presumably, that signing this blasted card
would assure everyone else with whom I worked that they
would have the opportunity to elect or not elect to have a
union."
Marks. Marks testified that he obtained his card from
Ryerson and signed it during a 15- to 20-minute conversa-
tion at Marks' home on April 11. Marks first asserted that
Ryerson said, "If we get enough signatures, we could have
an election to see if we even wanted a union": and, later
Ryerson stated, "All this card means is so we can have an
election." Ryerson further stated, according to Marks, that
it was necessary to get a certain number of cards signed,
and that, if enough were signed, "we'd get an election."
Marks added that Ryerson "probably said" that the Union
"could probably" improve the employees' benefits.
Marks testified that: (I) he read the card before signing:
(2) he did not see Rice's addendum; and (3) he signed "for
one reason-just to see if we could get a union and have an
election."
Miller.' Miller testified that he obtained his card from
Peter Puhl while manning the dishwasher at work on April
2, and that he signed and returned it "right away."
He testified initially that Puhl said signing was "the first
step towards maybe getting together and having a meeting
about a union," and that he did not think Puhl said any-
thing about an election. He later testified variously that
Puhl said that: (I) "if the majority signed, then we could get
together and have a meeting, and go ahead and have a
real-after we talked [it] over, we could have a real elec-
tion"; (2) "if we get a majority of the people signing these
cards together.... we would get together, go over what
they [the Union] could do for us and then have the election
later"; and (3) after the cards were signed, "the Union
would come and tell the people what they could do for
them," after which the employees "would vote on whether
they wanted what the Union had to offer."
Miller testified that he did not see Rice's addendum be-
fore signing.
Ortman. Ortman testified that he obtained his card from
Puhl at work on April 9, and signed and returned it in a
matter of minutes. Puhl told him in the accompanying con-
versation, according to Ortman, that, "by signing the card,
I would open up bargaining for an election as the employ-
ees decided on The Catalyst for a possible union . . .- it was
to allow the employees to have an election, and decide
whether or not we would want a union in the club."
Ortman later testified that he believed Puhl said "that [an
election] will be the result of signing of the cards, and of a
majority signing the cards" and that the election "would be
whether or not we wanted to have the Union in the club."
He also testified of Puhl's saying that, if a majority of the
employees signed cards, it would open "bargaining for an
election," and there would be a meeting "between the em-
ployer and employees."
Ortman testified, finally, that: (I) he read the card before
signing it; (2) he saw Rice's addendum the same day, but
could not recall its being attached to the card; (3) he be-
lieved the purpose of the cards was "so that some bargain-
ing. . ., some meeting, would develop between the employ-
ees, the employer, and possible union, unions"; and (4) he
could not remember if Puhl said that signing meant that
Ortman would be represented by the Union. or that the
Union would have power to speak for him.
Riegner. Riegner testified that he obtained his card from
Puhl on April 10, during a break at work, and that, after a
brief conversation-"it was a very quick kind of thing"-he
signed and returned it. He testified that Puhl told him that,
by signing, the employees "would have a meeting with Ran-
1028
THE CATALYST
dall Kane, the owner] to discuss getting more money and
also health and dental kinds of benefits," and that "the
Union would be represented there."
Puhl also stated, according to Riegner, that a "possible
election would happen after we talked to Randall," and
that it would be "about joining the Union," but that signing
alone did not make one a member.
Riegner testified that he read the card "very quickly"
before signing, and that he did not see Rice's addendum.
Weatherford. Weatherford testified that he obtained his
card from Puhl on about April 5 in the early morning hours
after work, in a parking lot near The Catalyst, and that he
signed it on April 8.
Weatherford testified that Puhl stated, upon tendering
the card, that "a certain number of signatures" were neces-
sary "for the Union to be able to come down and represent
themselves to us"-for it "to be able to come on the prem-
ises and hold a meeting," and that an election would follow
the meeting "to decide whether we wanted the Union to
represent us in bargaining or not." Weatherford asked in
this some conversation if signing meant joining. Puhl re-
plied that he was not sure, but would check.
Weatherford testified of a second conversation, on the
8th before he signed, in which Puhl assured him that sign-
ing did not mean joining, but "was merely to allow the
Union to come on the premises." Puhl further stated, ac-
cording to Weatherford, that, "after the Union talked to us
and told us what they had to offer, then there would be an
election amongst the employees to decide . . . whether we
wanted the Union or not," and that the Union would im-
prove working conditions.
Weatherford testified, finally, that: (I) he read the card
before signing; (2) he could not recall seeing Rice's adden-
dum; and (3) he signed as a consequence of everything Puhl
had told him in the two conversations, "so union represen-
tatives could come on the premises."
B. Discussion
As stated in my earlier decision, "there can be no doubt
that [Puhl, Rice, and Ryerson] were not thinking of card
recognition as an alternative to and election" when they
solicited signatures. 230 NLRB at 363. It is plain, moreover,
that the eight testifying in the present supplemental hearing
likewise were thinking primarily, if not only, in terms of
some kind of an election when they singed their cards. The
cards by their terms, however, expressly designated the
Union to represent "the undersigned" in bargaining. Be-
yond that, again as stated in my earlier decision, Rice's
addendum, "while not serving its elucidating purpose par-
ticularly well, cannot be said to have carried a message at
odds with that on the cards." 230 NLRB at 363, fn. 24.
The legal principles that govern situations of this sort are
fully set forth in the previous decision,' and have undergone
no subsequent modification of which I am aware.' Worth
'230 NLRB at 363.
Respondent to the contrary, I fail to see Serv-U-Stores, Inc., 234 NLRB
1143 (1978) as reflecting a shift in the law.
repeating is this language from N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575, 606-607 (1969):
[E]mployees should be bound by the clear language of
what they sign unless that language is deliberately and
clearly cancelled by a union adherent with words cal-
culated to direct the signer to disregard and forget the
language above his signature. There is nothing incon-
sistent in handing an employee a card that says the
signer authorizes the union to represent him and then
telling him that the card will probably be used first to
get an election.... We cannot agree ... that employ-
ees as a rule are too unsophisticated to be bound by
what they sign unless expressly told that their act of
signing represents something else.
In conjunction with these principles, which are for the
Board and not me to reorder, I am constrained to adhere to
my earlier determination that the Union had a valid card
majority at relevant times and that Respondent therefore
violated Section 8(a)(5) and (). Even ignoring the regretta-
ble quality of the present testimony--by extracting just
those shards most favorable to Respondent, and then giving
them a weight beyond their deserts-only four of the eight
witnesses told of remarks by the solicitors from which it
might be inferred that the cards were solely for a purpose in
opposition to their stated message.
Thus, Phillips testified that Rice said the cards were "just
to see if we were going to have an election"; Fredrickson,
that Rice stated that "this card meant only that it was going
to allow" an election; Jamal, that Rice said signing "will
guarantee" an election; and Marks, that Ryerson stated:
"All this card means is so we can have an election." Of
those seven who did not testify, there is arguable basis for
invalidating only Jackson's card, he having testified previ-
ously that Puhl had said "the only reason for signing" was
to give "our okay to an election so that we could figure out
whether or not we wanted a union."
Treating the cards of Phillips, Fredrickson, Jamal,
Marks, and Jackson as invalid, and also regarding that of
Terri Beaudoin as a nullity,7 the Union still had a major-
ity-45 valid cards (51, minus 6) in a unit of 86.
CONCLUSIONS OF LAW'
It is concluded that not more than 5 of the 15 cards now
in issue-those of Phillips, Fredrickson, Jamal, Marks, and
Jackson-are invalid; that the Union therefore had a valid
majority at relevant times, whether or not Beaudoin's card
is deemed invalid; and that Respondent therefore violated
Section 8(aK5) and () as described in the decision reported
in 230 NLRB 355.
' As stated earlier, Beaudoin testified in the original trial that Puhl told her
"the only thing that it signing] pertained to is that there would be an elec-
tion as to whether or not we wanted a union."
' All outstanding motions inconsistent with these Conclusions of Law
hereby are denied. In the event no exceptions are filed, as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings and conclusions herein shall, as provided Sec. 102.48 of the
Rules and Regulations, be adopted by the Board and become its findings and
conclusions. and all objections thereto shall be deemed waived for all pur-
poses.
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