The Pine Cone Inc.

National Labor Relations Board - Board Decisions

Apr 1, 1971

189 N.L.R.B. 569 (N.L.R.B. 1971)

THE PINE CONE INC.
The Pine Cone Inc. of Monterey and Hotel , Restaurant
Employees and Bartenders Union , Local 483, Hotel
& Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, Petitioner. Case
20-RC-8962
April 1, 1971
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved on October 13, 1969,1 an
election by secret ballot was conducted on October 30
under the direction and supervision of the Regional
Director for Region 20 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 29 eligible voters, 28
cast ballots, of which 15 were cast for, and 13 against,
the Petitioner. There were no void ballots and no
challenged ballots.
On November 5, the Employer filed timely objec-
tions to the election. On January 14, 1970, the
Regional Director issued a Report on Objection
recommending that the Board overrule the objections
in their entirety and issue an appropriate certification.
The Employer timely filed exceptions to the Report
and a Brief in support thereof. On April22, 1970, the
Board, stating that issues had been raised by the
exceptions to the Regional Director's recommenda-
tion as to Objection 22 which could best be resolved
by a hearing, ordered that a hearing be held as to
Objection 2.3
Pursuant to the Board's Order, a hearing was held
on June 19, 1970, before Hearing Officer Ralph G.
Wilmot, Jr. All parties participated and were given
full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the
issues. On November 18, 1970, the Hearing Officer
issued and duly served on the parties his Report on
Objections in which he recommended that the
Employer's Objection 2 be sustained and that the
election be set aside. Thereafter, the Petitioner timely
filed exceptions to the Hearing Officer's Report and
brief in support thereof. The Employer filed an
answering brief in opposition to the Petitioner's
exceptions.
i All dates hereinafter refer to 1969 , unless otherwise noted
2 "Objection 2 Beginning no later than mid-October 1969, a supervisory
employee, working as Hostess with the authority to hire, fire, assign,
discipline , etc , did engage in activities with and on behalf of the petitioner,
i e supplying certain privileged information to the petitioner using her
position to campaign for the petitioner in a manner that would in fact be
coercive and other acts that would be detrimental to the employees' right
189 NLRB No. 88
569
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The parties stipulated, and we find, that all bar,
dining room, kitchen, and food take-out service
employees of the Employer at its Monterey, Califor-
nia, location; excluding office clerical employees,
guards, and supervisors, as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
5. The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's Report, the Petitioner's exceptions,
the briefs, and the entire record in the case, and
hereby directs that a Certirfication of Representative
be issued for the reasons stated below.
The Employer operates a restuarant and cocktail
lounge in Monterey, California. On August 1, the
Employer hired Norma Homen as a dining room
hostess.4 She continued in that position until she was
terminated on October 31. Objection 2 contends that
Homen engaged in partisan activities on behalf of the
Petitioner and that this conduct substantially inter-
fered with the election.
Homen is alleged to have supplied certain confiden-
tial information to the Petitioner. The first piece of
information was the work telephone number of John
Griffin, an employee who was serving in the Army.
The Hearing Officer concluded that the record did
not support a finding that Homen had supplied this
information. We agree. The second piece of informa-
tion was the date of hire of two new employees. Both
employees had been included on the Excelsior list,
although they had been hired after the payroll period
for eligibility. Before the election, Pat Arnold, the
and free choice By the above and other acts , the freedom of choice of the
above-named employees was interfered with destroying the laboratory
conditions which must prevail for a Board conducted election "
3 The Board deferred ruling on Objection 1, pending disposition of
Objection 2
4 The parties stipulated, and we find , that at all times material herein,
Homen was a supervisor within the meaning of the Act
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary-treasurer of the Petitioner, asked Homen
when the two employees had been hired. Homen
testified that she told Arnold that she could not give
her any information other than that they had been
hired just recently. Arnold testified that she had the
information from union records prior to her visit to
Homen. The Hearing Officer did not credit Homen or
Arnold, but concluded that Homen had supplied this
information. We do not believe that the record
supports this conclusion. However, assuming arguen-
do that Homen did supply this information, we would
not find such conduct to be objectionable. Such
material is not normally considered confidential,
particularly in this situation, where it is solicited for
purposes of vertifying the accuracy of the Excelsior
list. Therefore, we would not find that Homen's
assumed conduct was objectionable in this regard.
The Employer contended that Homen discriminat-
ed against employee Laurie Chinn because of Chinn's
antiunion sentiments. The Hearing Officer concluded
that the record did not support a finding that Chinn
was discriminated against by Homen. We agree.
The Employer also contended that Homen engaged
in several conversations with employees, in which she
openly advocated support of the Petitioner. Employee
John Griffin initiated two conversations with Homen
about the Union. In the first, he complained about a
letter that he had received from the Petitioner. Homen
told him that he should read the entire letter and then
make up his mind. In the second conversation, she
told Griffin that since she was part of management
she could not state facts but that he should read the
Petitioner's campaign literature and talk to a repre-
sentative of the Petitioner in order to see both sides of
the campaign. Griffin testified that Homen told him
that the Petitioner had certain benefits which might
be valuable to other employees.
Employee Chinn testified that in October, in the
presence of another employee, she asked Homen what
she thought about the "house" "going Union." Chinn
stated that Homen replied that she had been a union
member for many years and then proceeded to
describe the various union benefits. Homen testified
that she had told Chinn that she was a member of the
Union because the benefits made it worthwhile. She
denied describing any of the benefits to Chinn. The
Hearing Officer credited Chinn's version of the
conversation. The Hearing Officer also found that
these conversations occurred within 2 or 3 days before
the election. The Hearing Officer concluded that
5 In an affidavit given to a Board agent , Pimental stated that during the
employment interview Homen had expressed a preference for hiring union
members However , in her testimony Pimental refuted the affidavit and
stated that Homen had not made such a statement The Hearing Officer
credited her testimony at the hearing
Homen' s statements went beyond the bounds of
neutrality.
Homen also solicited two employees to sign authori-
zation cards for the Petitioner. Zelma Pimental was
hired 5 by the Employer in early September. She was a
member of the Petitioner when she was hired.
Pimental testified that she had been reluctant to sign
an authorization card because she was newly em-
ployed and did not want to get involved. On
September 26, Homen told Pimental that she was
going off duty and was on her way to the Union. She
asked Pimental whether she would sign an authoriza-
tion card. Pimental signed the card and returned it to
Homen. She also asked Homen to take her dues
payment for the past 2 months with her when she went
to the Union. That same day Homen also asked
another employee, Helen Emerson, to sign an
authorization card. Emerson, who was also a member
of the Petitioner, signed the card. Homen stated that
these two employees were the only ones she had asked
to sign cards and that she did so because she knew
that they were union members.
On October 25, the Employer posted a letter to the
employees setting forth its opposition to the Petitioner
and asking the employees to vote no. The Hearing
Officer concluded, and we agree, that the letter
effectively dispelled any thoughts that employees may
have had that the Employers was in favor of having
the Petitioner represent its employees.
The Hearing Officer properly regarded as applica-
ble the criteria that we set forth in Stevenson
Equipment Company, 174 NLRB No. 128.7 The first
consideration is whether the conduct of the supervisor
created any misleading implication that the Employer
favored the Union. In this case any such implication
that might have been raised was effectively rebutted
by the Employer's campaign letter. The second
consideration is whether or not the supervisor's
activity has had an effect in the continuing relation-
ship between the supervisor and the employees. The
Hearing Officer concluded that Homen's union
activity was coercive and that it created a fear in some
employees that they would be discriminated against if
they were against the Petitioner. He based his
conclusions upon Homen's solicitation of cards,
supplying the hiring dates of the two employees, and
describing union benefits to employees. We do not
agree with the Hearing Officer's conclusions. We do
not condone the solicitation of cards by a supervisor.
However, in this case the particular facts indicate that
such conduct was not objectionable. We note that
6 There is no indication that the Employer was aware of Homen's
activities until the eve of the election
r See also Turner 's Express, Incorporated, 189 NLRB No 23 Member
Jenkins regards the facts there as distinguishable from those in the present
case
THE PINE CONE INC. 571
Homen's solicitation was limited to these two employ-
ees, both of whom were members of the Petitioner
prior to signing the cards. The cards were signed after
September 2, the date that the petition was filed. It is
clear that both employees voluntarily signed the
cards. We refer to our prior comments as to the effect
of supplying the hiring dates. Furthermore, the mere
description of union benefits to two employees does
not amount to objectionable conduct. Homen's
conduct was not such as to lead the employees to fear
possible retribution at her hands if they rejected the
Petitioner. Considering the entire record in this case,8
we do not find that the employees were prevented
from exercising their freedom of choice in the
election.
Accordingly, as the tally shows that the Petitioner
has obtained a majority of the valid ballots cast, we
shall certify it as the exclusive bargaining representa-
tive of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Hotel , Restaurant Em-
ployees and Bartenders Union Local 483, Hotel &
Restaurant Employees and Bartenders International
Union , AFL-CIO, has been designated and selected
by a majority of the employees in the unit found
appropriate in paragraph 4 above , and that pursuant
to Section 9(a) of the National Labor Relations Act,
as amended , the said labor organization is the
exclusive representative of all the employees in such
unit for purposes of collective bargaining with respect
to rates of pay, wages , hours of employment, and
other terms and conditions of employment.
8 Employer's Objection I states that the National labor Relations Board
transmitted a list of names and addresses of the Employer 's employees (an
Excelsior list) without a prior adjudicatory proceeding to authorize such
transmittal We find this contention to be without merit , Bishop-Hansel
Ford Sales, 180 NLRB No 176