The New Otani Hotel & Garden

National Labor Relations Board - Board Decisions

Aug 24, 2000

331 N.L.R.B. 1078 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
The New Otani Hotel & Garden and Hotel Employees
and Restaurant Employees, Local 11, Hotel Em-
ployees and Restaurant Employees International
Union, AFL–CIO, Union. Cases 21–RM–2623
and 21–RM–2627
August 24, 2000
DECISION AND ORDER AFFIRMING DISMISSALS
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On August 26, 1997, the New Otani Hotel & Garden
(the Employer) filed a petition for an election, based on
the activities (detailed below) of Local 11 of the Hotel
Employees and Restaurant Employees (the Union). On
October 16, 1997, the Regional Director administratively
dismissed the petition, finding that the Union had not
exhibited a present demand for recognition. In accor-
dance with Section 102.67 of the National Labor Rela-
tions Board’s Rules and Regulations, the Employer filed
a request for review with the Board on October 29, 1997.
While this request for review was pending, the Employer
filed a second petition for an election on April 24, 1998,
based upon alleged new evidence in addition to that prof-
fered in its original petition. The Regional Director dis-
missed that petition on June 8, 1998, and the Employer
subsequently filed a request for review with the Board on
June 17, 1998.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
For the reasons set forth below, the Board agrees with
the Regional Director that the Union has not demon-
strated a present demand for recognition, and therefore
affirms the Regional Director’s dismissal of the peti-
tions.1
I. CASE 21–RM–2623
A. Facts
The Employer operates a hotel in downtown Los An-
geles. The Employer asserts that the Union has been
engaging in efforts to organize the employees at its hotel
for 4 years, and that an election is therefore mandated
due to the Union’s present demand for recognition. The
Employer relies primarily on the Union’s picket-
ing/boycott of the hotel and the Union’s repeated re-
quests that the Employer sign a neutrality/card check
agreement. With regard to the Union’s picketing, the
Employer asserts that the Union’s placards and leaflets
evidence a recognitional object. The Union’s placards
read: “New Otani Hotel is non-union and does not have a
contract with HERE Local 11. Please boycott.” Simi-
larly, the Employer refers to and provides copies of Un-
ion press releases and other documents, including a pub-
licly disseminated document advising that the nonunion
New Otani hotel “has substandard working conditions
when compared with Union hotels in downtown L.A.”
and urging consumers not to patronize the hotel.2 In fur-
ther support of its contention that the Union’s underlying
objective is recognitional, the Employer asserts that the
Union sought to “punish” the Employer with an eco-
nomic boycott until it would have no choice but to rec-
ognize the Union.

1 The Board has consolidated these cases for purposes of decision-
making.
B. Analysis
The Board has consistently construed Section
9(c)(1)(B) as requiring evidence of a present demand for
recognition as the majority representative of an em-
ployer’s employees before the employer’s petition will
be processed. The starting point is the language of the
statute. Section 9(c)(1) provides in relevant part that
where a petition is filed:
(B) by an employer, alleging that one or more labor or-
ganizations have presented to him a claim to be recog-
nized as the representative defined in section 9(a) . . .
the Board shall [process the petition].
Section 9(a) provides in relevant part:
Representatives designated or selected for the purposes
of collective bargaining by the majority of the employ-
ees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, or other
conditions of employment.
Literally, the words of the statute dictate that “absent a
claim by someone for recognition as the majority-
supported representative of the employees, an employer
is not entitled to an election under Section 9(c)(1)(B).”
Albuquerque Insulation Contractor, 256 NLRB 61
(1981), reaffirmed in pertinent part in PSM Steel Con-
struction, 309 NLRB 1302 (1992).
As discussed in full in Windee’s Metal Industries, 309
NLRB 1074, 1074–1075 (1992), when Congress enacted
Section 9(c)(1)(B) as part of the Taft-Hartley Act of
1947, it recognized that there was a potential for abuse in
giving employers expanded rights to petition for an elec-
tion, in that employers might file petitions early in organ-
izational campaigns in an effort to obtain a vote rejecting
the union before the union had a reasonable opportunity
to organize. The legislative history shows that Congress
therefore included the language limiting employer peti-
tions to cases in which the union has presented a “claim
to be recognized as the representative defined in section
9(a),” and that Congress understood this language to
mean that employers could ask for an election only after
2 This document additionally alleges that after workers at the New
Otani began an organizing effort, management responded with a “vi-
cious and illegal anti-union campaign” and, as a consequence, the em-
ployees and Union were seeking a pledge from the Employer that it
would not threaten the employees or interfere with their organizing
campaign.
331 NLRB No. 159
NEW OTANI HOTEL & GARDEN 1079
a union had sought recognition as the majority represen-
tative of the employees. Id. (citing legislative history).
As the Board explained in Albuquerque Insulation, su-
pra,
The Section 9(c)(1)(B) requirement that an employer
may secure an election only if a claim is made by a
party that it is the majority representative of the em-
ployees was placed in the statute to prevent an em-
ployer from precipitating a premature vote before a un-
ion has the opportunity to organize. See S. Rept. 80–
105 on S. 1126, 80th Cong. 1st Sess. 11 (1947); Legis-
lative History of the Labor Management Relations Act,
1947, 417 (G.P.O. 1974). Thus, the Act contemplates
that a union which is not presently majority representa-
tive may decide when or whether to test its strength in
an election by its decision as to when or whether to re-
quest recognition or itself petition for an election. This
is important because, under Section 9(c)(3) and Section
8(b)(7)(B), a Board-conducted election has the effect of
barring any further election or recognitional picketing
for a full year. Until the union makes such a move, it is
free to organize without the imposition of an election
. . . . [O]nce the union seeks recognition as majority
representative, the election process––with its potential
risks and rewards––may be invoked by either side.
But, until that time, an employer may not attempt to
short-circuit the process or immunize itself from recog-
nitional picketing by obtaining a premature election.
Albuquerque Insulation, 256 NLRB at 63 (emphasis
added).
The mere fact that the union is engaged in activities
which it hopes will enable it eventually to obtain recogni-
tion by the employer is not evidence of a present demand
for recognition such as would support the processing of
an employer petition. As the Board has noted, all union
organizational activity, including such common activities
as soliciting authorization cards, meeting employees and
appointing in-plant committees, has as its ultimate goal
the union’s recognition as majority representative. Win-
dee’s Metal Industries, supra at fn. 5.3 But if such activi-
ties were considered sufficient to allow an employer’s
petition for an election to go forward, then employers
could do precisely what Congress sought to prevent in
enacting 9(c)(1)(B)––short-circuit the union’s organizing
campaign by precipitating a premature election. Thus,
the Board has held, “it would be contrary to the Congres-
sional intent underlying Section 9(c)(1)(B) to find that
any conduct with a representational objective, which falls
short of an actual, present demand for recognition, will
support an election petition filed by an employer.” Id. at
1075.

3 See also Laborers Local 840 (C. A. Blinne Construction Co.), 135
NLRB 1153, 1168 fn. 29 (1962) (observing that “in the long view all
union activity, including strikes and picketing, has the ultimate eco-
nomic objective of organization and bargaining”).
In accordance with that principle, the Board has con-
sistently held that informational picketing as defined in
the second proviso to Section 8(b)(7)(C) of the Act––that
is, picketing that truthfully advises the public, including
consumers, that an employer does not employ members
of, or have a contract with, a union––does not, without
more, establish that the union has made a “claim to be
recognized” as required by Section 9(c)(1)(B), even as-
suming that the union is interested in organizing the em-
ployees and in ultimately representing them. Id.; Mar-
tino’s Complete Home Furnishings, 145 NLRB 604, 607
(1963); John’s Valley Foods, 237 NLRB 425, 426
(1978); Autohaus-Brugger, Inc., 173 NLRB 184 (1968);
Old Angus Restaurant, 165 NLRB 675 (1967); and
Miratti’s, Inc., 132 NLRB 699 (1961).4 The Board has
also made clear that picketing for the purpose of putting
pressure on the employer to conform its wage and benefit
practices with area standards does not constitute a de-
mand for recognition that would support a petition under
Section 9(c)(1)(B). Old Angus Restaurant, supra.5 Only
if informational or area standards picketing occurs in
conjunction with other actions or statements establishing
that the union’s real object is to obtain immediate recog-
nition as the employee’s representative will the Board
find that the union’s conduct is tantamount to a present
demand for recognition. Capitol Market No. 1, 145
NLRB 1430 (1964). Such other actions or statements
might include a demand by the union for a contract or a
statement by the union that picketing would cease if the
employer would agree to negotiate and sign an agree-
4 As the Board explained in Windee’s, supra, 309 NLRB at 1075–
1076:
[I]t would be inconsistent with the statutory scheme established by
Sec.n 8(b)(7) of the Act to find that informational picketing alone is
sufficient to warrant processing an election petition under Section
9(c)(1)(B). Thus, while Section 8(b)(7)(C) prohibits a union from en-
gaging in recognitional picketing unless an election petition has been
filed within a reasonable period of time not to exceed 30 days, and
provides for an expedited election without regard to the provision of
Section 9(c)(1) under those circumstances, the second proviso to Sec-
tion 8(b)(7)(C) specifically exempts informational picketing from the
above prohibition and expedited election process. If informational
picketing were found to be equivalent to a claim for recognition under
Section 9(c)(1)(B), then an employer could file an election petition
under that provision of the Act as soon as the informational picketing
commenced and, if the union lost the election, further recognitional
picketing--including informational picketing--would be barred for 12
months pursuant to Section 8(b)(7)(B). This result would be inconsis-
tent with the immunity granted such picketing under the second pro-
viso to Section 8(b)(7)(C). [Footnotes omitted.]
5 The Board has long recognized that a union “has a legitimate inter-
est apart from organization or recognition that employers meet prevail-
ing pay scales and employee benefits, for otherwise employers paying
less than the prevailing wage scale would ultimately undermine the area
standards.” Plumbers Local 741 (Keith Riggs Plumbing), 137 NLRB
1125, 1125–1126 (1962). As the Board explained in Laborers Local 41
(Calumet Contractors Assn.), 133 NLRB 512 (1961), the objective of
eliminating substandard working conditions can be achieved without
the employer either bargaining with or recognizing the union. Thus,
area standards picketing “is not tantamount to, nor does it have an
objective of, recognition or bargaining.” Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
ment. See, e.g., Roberts Tires, 212 NLRB 405 (1974);
Holiday Inn of Providence, 179 NLRB 337 (1969); Ro-
chelle’s Restaurant, 152 NLRB 1401, 1403 (1965).
Applying these principles to this case, we agree with
the Regional Director that the Union has not engaged in
any conduct which demonstrates a present demand for
recognition as the majority representative of the Em-
ployer’s employees. Dismissal of the Employer’s elec-
tion petition is therefore warranted.
It is, of course, undisputed that the Union’s campaign
has an overall organizational objective with the eventual
goal of obtaining recognition as the employees’ represen-
tative. As we have discussed, however, the law is clear
that the existence of such objectives does not mean that
the union is making an immediate “claim to be recog-
nized” as the employees’ representative within the mean-
ing of Section 9(c)(1)(B). Here, there is no evidence to
indicate that the Union at any time conveyed to the Em-
ployer any claim, written or oral, that it represented its
employees or that it was seeking immediate recognition
or a contract. Rather, in a letter from the Union’s presi-
dent to the Employer’s general manager requesting that
the Employer accept a neutrality agreement, the Union
president specifically disclaimed any immediate recogni-
tional objective, stating: “Please understand that I am not
asking you to recognize Local 11 as your employees’
bargaining representative, nor am I asking you to negoti-
ate a collective bargaining agreement with our union.”
Although the Employer contends to the contrary, there is
nothing in the record to indicate that the Union has en-
gaged in conduct inconsistent with that disclaimer, or
that the Union has otherwise conveyed to the Employer
that it did not in fact mean what it said.
The only picketing engaged in by the Union was in-
formational picketing as defined in the second proviso to
Section 8(b)(7)(C). The statements made on the Union’s
placards, advising the public that the Employer does not
have a contract with the Union and requesting a boycott,
were limited to language that is expressly sanctioned
under that proviso. As discussed above, under well-
established precedent, such picketing does not constitute
evidence of a present demand for recognition that would
support the processing of a petition under Section
9(c)(1)(B).6

6 The decisions cited by the Employer in an effort to establish that
the picketing in the instant case was covered by Sec. 8(b)(7) of the Act
are not dispositive. As the Board noted in Martino’s Complete Home
Furnishings, supra at 607–608 and fn. 16, evidence that the union is
engaged in informational picketing with an ultimate recognitional ob-
ject may, in some circumstances, violate Sec. 8(b)(7) even though it
does not seek immediate recognition and therefore would not provide a
basis for processing an employer petition under Sec. 9(c)(1)(B). We
note, moreover, that the limitations in Sec. 8(b)(7) apply not just to
picketing with an object of forcing or requiring the employer to recog-
nize or bargain with the union, but also to organizational picketing.
Thus, the question of whether particular picketing violates 8(b)(7)––a
question which is not before us in this case––is analytically distinct
Neither is there anything in the content of the handbills
distributed by the Union that would demonstrate an im-
mediate recognitional object. The allegation in the
handbills that working conditions at the hotel are sub-
standard when compared with union hotels is not, as
noted above, evidence of such an object, nor does the
fact that the handbills accused the Employer of engaging
in unlawful conduct in response to the union organizing
campaign demonstrate such an object.
Finally, we reject the Employer’s contention that the
Union’s repeated requests that it sign a neutrality/card
check agreement evince a present demand for recogni-
tion. Under such an agreement, the Employer would
pledge not to campaign against the Union during an or-
ganizing campaign and to recognize the Union upon
proof that a majority of workers have signed authoriza-
tion cards. The Employer provides numerous examples
of such requests in the form of letters to Employer man-
agement from the Union, letters to Employer manage-
ment from various third-party groups and community
leaders,7 and statements addressed to the public.8 The
Employer asserts that based on the Union’s continuing
organizing efforts, the economic boycott (and associated
pressure from third-party community leaders), and the
above documents, it is evident that the Union is request-
ing recognition through a card-check procedure. In its

from the question of whether the picketing constitutes a “claim to be
recognized” as the employees’ representative under Sec. 9(c)(1)(B).
7 Specifically, the Employer attaches letters from the Reverend Jesse
Jackson and the Asian Pacific American Labor Alliance to the Em-
ployer’s general manager, which urge the Employer to accept a neutral-
ity agreement and card check, and offer to participate in discussions
aimed at resolving the “dispute” between the Union and the Employer.
8 Additionally, the Employer claims that one document addressed to
hotel guests from the “New Otani Workers Organizing Committee”
makes a direct request for a card check and, thus, constitutes a present
demand for recognition. The document provides in part:
Tell the management of this hotel to stop intimidating and harassing
us for organizing and let us vote for a union by signing cards YES or
NO in the privacy of our homes. The majority of cards submitted
would democratically decide.
We note that this document was not authored by the Union, but
rather by what appears to be an in-house organizing committee. As
such, for the Employer to attribute the statements contained therein to
the Union, it must be established that the committee was acting as an
agent of the Union. The Board has established that members of an in-
plant committee are not, simply by virtue of their membership, agents
of the union. See Cambridge Wire & Cloth Co., 256 NLRB 1135, 1139
(1981), enfd. 679 F.2d 885 (4th Cir. 1982). Generally, such employees
will not be found to be agents of the union unless they serve as “con-
duits” for communication between the union and other employees, or
are substantially involved in the election campaign in the absence of
union representatives. See S. Lichtenberg & Co., 296 NLRB 1302 fn. 4
(1989); United Builders Supply Co., 287 NLRB 1364, 1365 (1988); and
see also Advance Products Corp., 304 NLRB 436 (1991).
The Employer presented no evidence to suggest that any of the em-
ployees comprising the New Otani Workers Organizing Committee
were acting as agents of the Union; furthermore, Local 11 has been
quite vocal and appears responsible for the direction of the picketing,
boycott, and dissemination of related documents. As such, we do not
believe that the employee union supporters in this instance should be
deemed agents of the Union.
NEW OTANI HOTEL & GARDEN 1081
opposition, the Union maintains that its attempts to se-
cure a neutrality agreement are concerned with future
campaign conduct, and that “[a] card-check as the hypo-
thetical end of a neutral campaign does not support a
present demand for recognition.”
We agree with the Regional Director’s conclusion that
“the instant circumstances do not raise a claim by the
Union that it represents a majority of the employees in
the appropriate unit.” The Union’s repeated requests that
the Employer sign a neutrality/card check agreement
necessarily contemplate an organizing drive during
which the Employer would pledge not to express any
opinion on whether its employees should choose the Un-
ion as their bargaining representative or to interfere with
employees’ organizational activities.9 As such, the Un-
ion’s requests do not constitute a present demand for
recognition. In all of the examples of such requests
submitted by the Employer, the language utilized by the
Union is conditional; for example, a Union press release
provides that “[u]nder [the card check] process, which is
endorsed by the NLRB, if a majority of the workers sign
union cards, the hotel would recognize the union based
on their signatures” (emphasis added). Our dissenting
colleague mischaracterizes the Union’s request for a neu-
trality/card check agreement as a straight demand for
immediate recognition upon a card check. As we have
indicated, the Union in this instance merely requested––
in conjunction with its request for a neutrality agree-
ment––that the Employer agree to a card check proce-
dure, in lieu of a Board election, at some point in the
future. Our colleague also fails to distinguish between an
organizational objective (contemplating a future claim
for recognition) and a recognitional objective (making a
present claim for recognition). This, explained in Albu-
querque Insulation Contractor, is a critical distinction,
necessary to prevent an employer from precipitating a
premature election and thus interrupting employee efforts
to organize for at least the Section 9(c)(3) year.10
Moreover, as noted above, the letter from the union
president to the Employer’s general manager requesting
that the Employer accept a neutrality agreement specifi-
cally contains a disclaimer stating that the Union is not
asking the Employer to recognize or negotiate an agree-
ment with the Union. Although the Employer correctly
asserts that the Board will disregard self-serving union

9 Such agreements have been held to be enforceable under Sec. 301
of the Act. Hotel & Restaurant Employees Local 217 v. J. P. Morgan
Hotel, 996 F.2d 561 (2d Cir. 1993); Hotel Employees Local 2 v. Mar-
riott Corp., 961 F.2d 1464 (9th Cir. 1992).
10 The only decision cited by the Employer in support of the conten-
tion that a direct request for a card check (as distinguished from a neu-
trality/card check agreement) constitutes a present demand for recogni-
tion is inapposite to the instant case. In Rockwell International Corp.,
220 NLRB 1262 (1975), the union, following an organizing campaign,
notified the employer that it represented a majority of its employees
and requested recognition, and the two parties subsequently agreed to a
card check process to determine majority status.
disclaimers, there is no evidence in this instance that the
Union acted inconsistently with its position. Thus, we
similarly are not convinced that the Union’s requests for
a neutrality/card check agreement, in conjunction with
the Union’s picketing and boycott, are sufficient to estab-
lish a present demand for recognition.
II. CASE 21–RM–2627
A. Facts
A similar analysis applies to the Employer’s second
petition for an election, in which the Employer alleged
that all the facts and circumstances set forth in its initial
petition––in conjunction with “new evidence”––reveal a
present demand for recognition by the Union. In its re-
quest for review of the Regional Director’s dismissal of
the second petition, the Employer asseverates that the
following statements contained in a union newsletter and
a union flyer indicate that the clear objective of the Un-
ion’s activities at the Employer’s hotel is recognition:
(1) the statement from an article in the Union’s newslet-
ter that the “campaign to organize the non-union New
Otani Hotel in Los Angeles entered its fifth year in
1997;” (2) the statement, “Will we get these standards
without organizing? Of course not, that’s the road to
take-aways and give-backs” in a union newsletter article
discussing poor work standards and the missive of Local
11 to unionize employees in its jurisdiction; and (3) a
flyer that sets forth the salaries of employees at several
unionized hotels in Los Angeles, asks New Otani em-
ployees the amount of their compensation, and urges
employees to “join the union.”
B. Analysis
We note initially that the second piece of evidence
proffered by the Employer is not particularly pertinent
and is somewhat speculative, in that the union article
makes a broad reference to organizing employees at fa-
cilities in the Los Angeles area, without any specific ref-
erence to the Employer. Moreover, the statement, as
well as the other two examples,11 simply indicates that
the Union is engaging in efforts to organize the Em-
ployer’s employees. For the reasons set forth above,
however, we do not believe that they embody a present
demand for recognition. As stated by the Board in Win-
dee’s Metal Industries,
[i]t would be inconsistent with the language and legis-
lative intent of Sec. 9(c)(1)(B) to find that such
[common organizational tools as soliciting authoriza-
tion cards, meeting with employees, and appointing
in-plant committees], or informational picketing, are
sufficient to allow an employer to petition for an elec-
11 With regard to the flyer urging employees to “join the union,” we
proceed on the assumption that it was produced by Local 11 within the
period of time following the dismissal of the Employer’s first petition
but preceding the second petition, as the document contains no date nor
any evidence as to authorship.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
tion merely because an objective of the activity may
be to obtain eventual recognition.
[309 NLRB 1074, 1075 fn. 5 (1992) (citation omitted).]
Finally, the Employer’s argument analogizing neutral-
ity agreements to prehire agreements is misguided. A
prehire agreement, a convention permitted in the con-
struction industry, enables a union and an employer to
execute a contract––which establishes wages and other
terms of employment––without the union first having to
establish majority status. As such, a prehire agreement is
a collective-bargaining agreement upon its execution.
See John Deklewa & Sons, 282 NLRB 1375 (1987),
enfd. Iron Workers, Local 3 v. NLRB, 843 F.2d 770 (3d
Cir. 1988), cert. denied 488 U.S. 889 (1988). Conse-
quently, the Board has indicated that when a union pick-
ets to obtain a prehire agreement beyond the time limita-
tions set forth in Section 8(b)(7), it engages in unlawful
recognitional picketing. See Laborers Local 1184 (NVE
Constructors), 296 NLRB 1325 (1989).
In contrast, a neutrality agreement merely establishes
that an employer will remain neutral in the face of a un-
ion organizational campaign. Its execution––even if cou-
pled with a card check agreement––does not create a
collective-bargaining agreement, not even one condi-
tioned on the union’s obtaining majority status. HERE
Local 2 v. Marriott Corp., 961 F.2d 1464, 1469 (9th Cir.
1992) (“Enforcement of the neutrality clause raises no
representational issues.”). As such, picketing to obtain a
neutrality agreement––unlike picketing to obtain a pre-
hire agreement––does not seek the adoption of a collec-
tive-bargaining agreement or constitute a present demand
for recognition. As the two situations are not compara-
ble, we believe the Employer’s argument lacks merit.
For all the foregoing reasons, we deny review of the
Regional Director’s decisions and affirm the dismissal of
the election petitions.

MEMBER HURTGEN, dissenting.
I would grant the Employer’s requests for review.
There are substantial issues that warrant full considera-
tion by the Board.
The Employer has filed two RM petitions. The Em-
ployer contends that the Union has demanded recogni-
tion as the representative of its employees. The Regional
Director, concluding that the Union had not made a pre-
sent demand for recognition, administratively dismissed
both Employer petitions. My colleagues deny review. I
would grant review. I think that it is at least arguable
that the Union is claiming recognition, and thus the peti-
tions are processable under Section 9(c)(1)(B).
In the first place, I note that the Union picketed with
signs protesting the fact that the Employer was non-
union, i.e., that the Employer was not recognizing the
Union. Such picketing is indicative of a recognitional
objective.1 I recognize that such recognitional picketing
may not be unlawful under Section 8(b)(7)(C). But that
is because of the “publicity” proviso to that Section.
However, that does not mean that the picketing is not
recognitional. It merely means that the law will not con-
demn, as unlawful, recognitional picketing carried out in
a certain way.2
Similarly, I recognize that such picketing means that
the Union is seeking recognition through the stratagem,
at least in part, of enlisting the support of the public.
However, that does not mean that the picketing is not for
a recognitional object.3
Concededly, there are cases which are contrary to the
position set forth above.4 For the reasons set forth above,
I believe that the Board needs to reexamine these cases.
However, even if the aforementioned picketing, without
more, does not show a present recognitional objective,
the fact is that there is something more in this case. The
Union demanded a card check, and recognition if the
card check showed majority status. My colleagues are of
the view that this is not a demand for recognition.
The majority view appears to be that the card-check
agreement would only operate “in the future” (majority’s
emphasis). Of course a card check agreement, by its
very nature, only operates in the future. That is, it is an
agreement to have a card check. More importantly, in
the instant case, the Union was engaged in an ongoing
organizational campaign, and was seeking an agreement
for a card check in connection with that campaign. Thus,
we are not here presented with an issue concerning a card
check agreement for some future hypothetical campaign.
A card check resulting in recognition is no less imminent
than recognition following an election. Why should a
request for a card check be treated as less recognitional
than a petition for an election?
My colleagues also appear to argue that recognition
would follow only if the card check showed majority
status. In my view, this distinction may be too fine. In
the case of a petition, it only results in recognition based
on the results of the election. The Union sought recogni-
tion. It, of course, realized that neither the Employer
(nor the law) would permit recognition without a demon-
stration of majority status. Thus, it sought a card check.
But, surely, this does not gainsay a recognitional objec-
tive.
Contrary to the suggestion of my colleagues, I am not
relying on the “neutrality” aspects of the Union’s de-
mand. The Union’s quest to have employer neutrality

1 Crown Cafeteria, 135 NLRB 1183 (1962). The very language on
the sign belies a contention that the Union sought only to raise the
Employer’s employment standards.
2 Contrary to the suggestion of my colleagues, I am not relying on
any organizational aspects of the Union’s picketing. Rather, I am
relying on the recognitional aspects of that picketing.
3 Crown Cafeteria, supra.
4 Windee’s Metal Industries, 309 NLRB 1074 (1992); Martino’s
Complete Home Furnishings, 145 NLRB 604 (1963).
NEW OTANI HOTEL & GARDEN 1083
with respect to an organizational campaign is not the
same as a demand for recognition. Under a “neutrality”
agreement, the employer simply agrees not to oppose a
union’s organizational effort. Under a “card-check rec-
ognition” agreement, the employer agrees to waive its
right to a Board election. In the instant case, the Union is
seeking recognition upon the acquisition of card-majority
status.
My colleagues apparently distinguish between a pre-
sent demand for recognition and an ultimate demand for
recognition. However, Section 9(c)(1)(B) contains no
such distinction. And, even if it did, it is at least argu-
able that, as shown above, the Union is presently seeking
recognition in these cases.
My colleagues cite the language of Section 9(c)(1)(B),
and they argue that an employer petition (RM) must be
supported by a claim for recognition. The argument
misses the mark. No one is contending that an employer
can force an election on a union that has not made a
claim for recognition. Rather, the issue in this case is
whether the Union has made a claim for recognition so as
to warrant the processing of the RM petitions.
For the reasons set forth above, I believe that the cir-
cumstances of this case raise a genuine issue as to
whether the Union was seeking recognition. These cir-
cumstances include (1) picketing for a recognitional ob-
ject; (2) engaging in an organizational campaign; (3)
seeking an employer agreement to recognize the Union
upon acquisition of card majority status. I concede that
any one of these, by itself, may be insufficient to support
a finding that the Union was seeking recognition. How-
ever, in my view, the totality of circumstances raises a
genuine issue concerning the question of whether the
Union was seeking recognition. Those objective circum-
stances, rather than the Union’s self-serving declarations,
suggest a present recognitional objective.
Albuquerque Insulation Contractor, 256 NLRB 61
(1981), is quite distinguishable. The union there made
no claim to be the Section 9 majority representative. The
union sought only an 8(f) relationship. Since there was
no claim of majority status under Section 9, there was
obviously no warrant for an election. By contrast, as
noted above, the Union here sought Section 9, i.e., ma-
jority-based recognition.
My colleagues also cite the need “to prevent an em-
ployer from precipitating a premature vote before a union
has an opportunity to organize,” thereby interrupting
employees’ efforts to organize for at least the 9(c)(3)
year. They also express concern that an employer may
seek an election “early in organizational campaigns in an
effort to obtain a vote rejecting the union before the un-
ion had a reasonable opportunity to organize.” Those
statements have no relevance to the instant case. The
Employer contends, and the Union does not dispute, that
the Union’s efforts to organize have continued for over 4
years. Thus, this is not a case about a “premature” vote
to be held “early” in an organizational campaign.
For all of the above reasons, I believe that the Em-
ployer’s request for review raises substantial issues. I
would therefore grant the request.