The Regency Hyatt House

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 489 (N.L.R.B. 1969)

THE REGENCY HYATT HOUSE
Hotel Equities, d/b/a The Regency Hyatt House and
Hotel and Restaurant Employees and Bartenders
Union , Local 151 , affiliated with Hotel and
Restaurant Employees and Bartenders
International Union, AFL-CIO, Petitioner. Case
10-RC-7169
December 16, 1969
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY MCCULLOCH AND MEMBERS FANNING AND
ZAGORIA
On July 31, 1969, Trial Examiner Robert Cohn
issued his attached Report on Objections and
Challenges in the above-entitled proceeding,'
recommending that the nine challenged ballots be
opened and counted, and that a revised tally of
ballots be furnished the parties.' The Trial Examiner
also recommended that each of the Employer's
objections be overruled. Thereafter, the Employer
filed exceptions to the Trial Examiner's Report and
a supporting brief, and Petitioner filed a brief in
support of the Trial Examiner's Report.
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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Report, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following additions and
modifications.
1. One of the Employer's objections to the
election was that five eligible voters (Ledford,
Fisher, Webb, Lytle, and Green) were denied the
right to vote in the election. The Trial Examiner
found the objection without merit. We agree.
The unit found appropriate covered "full-time and
regular part-time employees . including . .
banquet waiters." Because a large number of
'After the election of July 15, 1968, the Acting Regional Director for
Region 10 issued his Second Supplemental Decision and Order on
November 29, 1968, in which, Inter alla , he overruled the challenges to the
ballots of nine restaurant captains and all of Employer's objections
Thereafter, the Board , by telegraphic order on February 3, 1969, granted
Employer' s Request for Review and, on April 3, 1969, ordered that a Trial
Examiner conduct a hearing and prepare a report resolving credibility
questions , making findings of fact, and recommending disposition of the
challenges and certain Employer objections
'The Board, by telegraphic order on October 15, 1969, adopted the Trial
Examiner's recommendations with respect to the challenges to the ballots
of the nine captains and directed the Regional Director for Region 10 to
open and count the challenged ballots and issue a revised tally of ballots
The revised tally, issued on October 20, showed 207 voted for, and 201
voted against , Petitioner.
180 NLRB No. 34
489
"banquet waiters" worked only intermittently, the
parties agreed, with the Regional Director's
concurrence, on a formula which required
intermittent employees to have worked a certain
number of days during a 3-month period preceding
June 13, 1968, in order to be eligible to vote in the
election which was held on July 15, 1968.' About 3
weeks prior to the election, the Employer submitted
a list of employees whom it considered to be eligible
to vote, and thereafter submitted corrections
consisting of additions to and deletions from the list
to account for intermittent employees who did or
did not meet the eligibility formula. Among the
names of employees submitted by the Employer for
deletion from the list were those of banquet waiters
Lytle, Fisher, Ledford, and Webb. The Union and
the Board agent agreed to the Employer's proposed
deletions and their names were striken from the
eligibility list; however, Webb's name was
subsequently restored to the list, although out of
alphabetical order.
The evidence indicates that Webb and Ledford
were, in fact, eligible to vote under the intermittent
employee formula, but is inconclusive as to whether
Fisher and Lytle were similarly eligible.4
As set forth in the Trial Examiner's Report, when
these four employees appeared at the polls, they
were told, in substance, by the Board agents that,
according to the voting eligibility list, they were not
eligible to vote and they should check further with
employer representatives as to their eligibility. None
of the four thereafter attempted to vote, although
Webb was told by an employer representative that
his name had been added to the list.
The parties had agreed before the election, on the
basis of information furnished by the Employer, that
certain employees were ineligible. The purpose of a
preelection agreement on an eligibility list is to
expedite the election process by eliminating
groundless challenges.5 It would defeat this purpose
if the Employer could object to an election because
certain employees, as expected, were told at the
election that they were not eligible to vote when the
Employer had previously agreed to their ineligibility.6
'The formula was as follows
Those in the unit who work on an intermittent basis and who worked a
total of 21 days during the period beginning March 14, 1968, extending
through June 13, 1968, providing also that they worked at least one day
during the period beginning May 14, 1968, and extending through June
13, 1968
'Fisher had worked 19 days between March 27, 1968, and June 7, 1968,
and Lytle 18 days between April 3, 1968, and June 7, 1968 The formula
required a total of 21 days of employment through June 13. Instead of
submitting payroll data which would show the exact days these two
individuals worked during the crucial last week, the Employer introduced
into evidence cards which showed the number of meals charged against
these employees during that week and then explained that at 50 cents per
meal, an entry like "$2 00" indicates 4 days because the waiters only
receive one meal per day when they serve as waiters.
'Fulton Bag and Products Company, 121 NLRB 268, 270
'The Employer relies on the following language from Shoreline
Enterprises v. N L R.B , 262 F 2d 933, 946 (C.A. 5), to support its
objection.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find , therefore , that, assuming arguendo,
Board agents had categorically refused to permit
Ledford, Fisher, and Lytle to vote, this would not
justify setting aside the election on the Employer's
objection. Although Webb's name was on the
eligibility list, and the statement to him that he was
not eligible was erroneous, the mistake was not
prejudicial because Webb was told he could check
with his supervisor. He did and was told he was
eligible, but he did not return to vote. In any event,
Webb's vote could not have affected the outcome of
the election.
Moreover, we agree with the Trial Examiner that
the four employees were not denied the right to vote
by challenged ballot. In fact, Fisher was explicitly
offered the opportunity to vote a challenged ballot,
but declined to do so before checking with the
department secretary.7
Although the Trial Examiner grouped Green with
Ledford, Lytle, Fisher, and Webb in disposing of the
Employer's objection, we find that her status was
different from that of the other four. Green was not
a banquet waiter but a hostess. She was hired on
May 4, 1968, with the understanding that she would
work on weekends until she finished school in June,
and thereafter full time. In fact, she worked only
one weekend in May and did not begin full-time
work until June 10. When Green came to vote on
July 15, no one could find her name on the
eligibility list because the Employer had not
included it. When questioned by a Board agent,
Green said that she had quit her job to return to
school and had not returned to work until June 10
(the eligibility period for full-time employees ended
June 9). The agent then told her that she could not
vote. The agent's statement to her was correct.
A Board agent is present not only to make sure eligible employees vote
but also to make sure that an employee who thinks he is eligible may
cast a challenged ballot
The above language is not applicable to the Employer's situation. In
Shoreline . the employer and the union agreed to the exclusion of four
employees from the unit , their names were stricken from the eligibility list,
and they were not allowed to vote. The employees then intervened in the
proceeding and objected to the election on the ground that they had been
wrongfully denied the right to vote. The Regional Director overruled the
objection , but admitted in his Report on Objections that the field examiner
conducting the election knew that the four would probably have been
included in the unit and found eligible to vote if the Board had decided the
issue of their inclusion The court agreed with the Board that the employer
could not object to the election on the ground that the four employees had
been denied the right to vote because the employer was bound by its
agreement which , in effect , excluded the employees . However , the court
held that the agreement was not binding on the employees themselves and
they could object to the election based upon the improper denial to them
of the right to vote . In the present case , it is the Employer, and not the
employees , who is objecting to the election . Further, unlike Shoreline. the
Board agent here neither knew nor had reason to know that they were
eligible to vote
'Inasmuch as a Board agent proffered Fisher a challenged ballot,
Fisher 's failure to vote such ballot was his fault and not that of the Board
agent . Moreover , under any theory, there was no failure of duty toward
Fisher and his failure to vote furnishes no basis for objecting to the
election . Hence, even if Ledford, Lytle, and Webb were found to have been
improperly denied the right to vote, these denials were not prejudicial
because their votes were not sufficient in number to affect the final results
of the election
According to her own account, she had quit her
regular part-time job as a weekend hostess in order
to devote her full time to her schoolwork and had
not become a full-time hostess until after the June 9
eligibility date. Hence, she was not eligible.
2. Since the revised tally of ballots shows 207
votes for, and 201 votes against, Petitioner, the
Employer's objections 10 and 11 could not affect the
outcome of the election since they only directly
involve two votes. In one incident, an employee
inadvertently left the voting area without depositing
his ballot in the box and, when being directed by a
fellow employee to the ballot box's location,
returned and deposited it without first being stopped
by the Board agent. There was no proof of so-called
"chain voting." In the other incident, the Board
agent permitted the Petitioner's observer, without
objection from Employer's observer, to give the only
Spanish-speaking employee directions on how to
vote, in Spanish. There was no proof of
electioneering.
3. The Employer contends that the cumulative
effect of the various alleged irregularities connected
with the election destroyed the "laboratory
conditions" for the holding of a free election. We
have found without merit contentions as to certain
of the claimed irregularities. As for the remainder,
even assuming, arguendo, that they occurred, we
find that under the circumstances they did not create
an environment of tension or coercion such as to
preclude employees from exercising a free choice.$
Accordingly, we find, as did the Trial Examiner,
that this objection is without merit.
As we have adopted the Trial Examiner's
findings, conclusions, and recommendations, that
each of the Employer's objections be overruled, and
as the Petitioner has received a majority of the valid
votes cast, we shall certify it as the
collective-bargaining representative of the employees
in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Hotel and Restaurant
Employees and Bartenders Union , Local 151,
affiliated with Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO, has
been designated and selected by a majority of the
employees of the Employer in the appropriate unit
as their representative for the purposes of collective
bargaining , and that, pursuant to Section 9(c) of the
Act, the said labor organization is the exclusive
representative of all such employees for the purposes
of collective bargaining with respect to rates of pay,
wages, hours of employment , and other terms and
conditions of employment.
'Home Town Foods. Inc v N L R B., 416 F 2d 392 (C.A. 5), and cases
cited therein.
THE REGENCY HYATT HOUSE 491
TRIAL EXAMINER'S REPORT ON
OBJECTIONS AND CHALLENGES
STATEMENT OF THE CASE
ROBERT COHN , Trial Examiner : The original petition in
this case was filed August 8, 1967, by Hotel and
Restaurant Employees and Bartenders Union, Local 151,
affiliated with Hotel and Restaurant Employees
Bartenders International Union , AFL-CIO (herein the
Petitioner or Union ), seeking certification as
representative of certain employees employed by Hotel
Equities, d/b/a The Regency Hyatt House (herein the
Employer or Company ) in Atlanta , Georgia. Thereafter,
on July 15, 1968 , pursuant to a Decision and Direction of
Election by the Acting Regional Director for Region 10
dated November 15, 1967, as modified by the Board's
Decision on Review dated June 13, 1967,' an election was
conducted by the Regional Director among certain
employees ofd the Employer in an appropriate unit. It
appears that the 27 ballots which were challenged at the
election were sufficient in number to affect the results
thereof, and, in addition , both the Petitioner and the
Employer , respectively , filed timely objections to the
election . Whereupon , the Regional Director for Region 10
caused an investigation to be made after which some of
the challenges were opened and counted pursuant to a
stipulation of the parties dated November 20, 1968.
However , a revised tally of ballots still showed that 201
employees cast valid votes for and 198 cast valid votes
against the Petitioner , with 9 remaining challenged ballots
Thus, the remaining challenged ballots were sufficient in
number to affect the results of the election.
On November 29, 1968, the Acting Regional Director
issued his Second Supplemental Decision and Order
pursuant to his investigation of the issues raised by the
aforesaid challenged ballots and the objections of the
parties, and made findings with respect thereto. On
December 24, 1968, the Employer filed with the Board a
request for review of the Acting Regional Director's
Second Supplemental Decision and Order, contending
error respecting such findings
By telegraphic order of February 3, 1969 , the Board
granted the Employer's request for review and on April I,
1969, the Board, being of the opinion that certain issues
raised by the challenged ballots and some of the
Employer 's objections could best be resolved on the basis
of record testimony , ordered that a hearing be conducted.
Such order was amended on April 3, 1969, such
amendment requiring that the hearing be held before a
Trial Examiner "for the purpose of receiving evidence
with respect to the eligibility to vote of the 9 captains
[challenged ballots] , and the issues raised by Employer's
objections 4, 5, 6, 7, 9, 10, 11, 12, and that portion of 13
relating to the conduct of the Board Agent."
Pursuant to such order , as amended , a hearing was held
before me in Atlanta , Georgia , on April 22 through 25,
and May 13, 1969 , in which all parties appeared through
counsel , and were given full opportunity to present
evidence pertinent to the issues , to examine and
cross-examine witnesses , to argue orally, and to file briefs.
Oral argument was waived , and helpful posthearing briefs
have been received from counsel for the parties.'
'This Decision is reported at 171 NLRB No. 172
'Although a field attorney from the Board 's Regional Office appeared
and participated in the proceeding " to see that the evidence adduced during
the investigation is made available to the Trial Examiner," he filed no
Upon the entire record in the case, including my
observation of the demeanor of the witnesses while
testifying, I make the following
FINDINGS AND CONCLUSIONS
1. THE CHALLENGED BALLOTS
As found by the Board in its Decision on Review, the
Employer operates a luxury hotel in Atlanta, Georgia,
which commenced operation on May 1, 1967. There is no
history of collective bargaining or of prior Board
proceedings. The hotel offers several eating and drinking
facilities to its guests and visitors; however, the only ones
involved in this proceeding are a supper club, "The Club
Atlantis," and a gourmet restaurant called "Hugo's,"
both of which are located on the lower level to the main
lobby. The issue raised by the challenged ballots is the
supervisory status of the "captains" employed in the two
aforementioned restaurants, the Employer contending that
they are supervisors within the meaning of Section 2(11)
of the Act, while the Union contends they are
nonsupervisory and therefore entitled to vote.' The votes
of the captains were challenged at the election by the
Board agent conducting the election since their eligibility
had not been specifically determined in prior proceedings.
There is general agreement that the authority, duties,
functions, and responsibilities of the captains in both
restaurants are identical so that they rise or fall together
as respects their status as supervisors. In both locations,
service is rendered by teams of three individuals including
a captain and two waiters.' One of the waiters is generally
denominated a front waiter while the other is a kitchen
waiter. The order of service to the customers may be
briefly described as follows: Customers are greeted and
seated by the maitre d' in charge of the restaurant.' The
captain would normally then take their drink order and
give it to the waitress or waiter to be filled A short while
later (or if the party did not desire drinks) the captain
would take the food order and give it to the waiter to be
delivered to the kitchen. When the food is ready for
serving, it is normally brought in by the waiter and served
by the captain (particularly as respects a fancy salad or
entree), although there is credible testimony that if a
captain is engaged with other customers at the time food
is ready for a particular party, the waiter may serve the
food. In other words, although the timing of the service is
generally under the control of the captain, a waiter, who
sees that the food is ready and observes that the customer
is ready for it, is not required to wait for the captain's
brief.
'Section 2(11) defines a supervisor as follows.
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer , suspend , lay off, recall,
promote, discharge , assign, reward , or diciplme other employees, or
responsibly to direct them, or to adjust their grievances , or effectively to
recommend such action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment
'In the Club Atlantis a waitress may substitute for one of the waiters.
However, this circumstance does not affect a decision on the ultimate
issue
'The maitre d' is looked to by management as being responsible for the
operation of the restaurant , and is a conceded supervisor At the time of
the election herein the maitre d ' at Hugo's was one Udo Wald, at the Club
Atlantis he is John Pierre Durant In Hugo 's there is , in addition, an
assistant maitre d ' who is also a conceded supervisor In Hugo's there are
five teams while in the Club Atlantis there are four
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permission in order to serve the food.' It is emphasized by
all parties that the paramount consideration is service to
the customer, and it is to that primary goal that the team
works.
In addition to servicing the customer, each team has a
specific duty called a "side job" which they are
responsible for performing, such as filling the salt and
pepper shakers, cleaning and washing the candleholders,
etc. Although such side jobs are, as stated, assigned to a
team, it is the captain who normally performs the job.
As respects wages, captains are paid on the basis of $60
a week or $10 a day, while waiters receive 65 cents an
hour. However, tips, which are generally acknowledged in
the restaurant business to be the primary source of income
to waiters and waitresses, are shared equally among the
members of the team. As respects fringe benefits, all
employees including acknowledged supervisors share such
benefits as group insurance, vacations or holidays, on the
same basis.
It is universally recognized that the captain supervises
the service of the customers in his station,' and
coordinates the team members to that end. It follows, of
course, that in connection with this duty he directs the
work of the waiters and tells them what to do. This would
be particularly true as respects a new and inexperienced
waiter, the training of whom is normally the responsibility
of the captain and, to a lesser extent, the maitre d' since
the latter does not have as much contact with the waiter
as does the captain. However, the evidence is clear that
the usual duties and responsibilities of the waiters are
routine and repetitive and do not require constant
instruction and supervision. For example, normally the
front waiter reports for work an hour earlier than the
captain and sets up the station, which includes getting out
the linens, silverware, etc. Indeed, the duties and
responsibilities of each member of the team are so well
known to the other that when one of the waiters
commenced working as a captain, the maitre d' did not
even bother to instruct him relative to his new position
Thus, when asked what the maitre d' told him at the time
respecting his authority regarding the other people on his
team, Captain Winnie replied:
THE WITNESS: Nothing really. He just said I was
captain and that I knew the proper service and the
duties of the captain and to start, I knew the duties of a
captain and I should just come in and take over the job
because I had been in the room for quite a long time
and it wasn't a case where he was hiring somebody
from the outside to come in and take over a job that
they didn't know before, the duties of the job.
As respects the authority of the captains to hire or fire
other members of the team, the credible evidence is
overwhelming that they do not possess such an authority,
but that such authority rested solely with the maitre d'
and the personnel office of the Employer.'
'The contrary implication in the testimony of Udo Wald is not credited.
'A "station" may comprise seven or eight tables
'Contrary and self-serving testimony by the maitre d' is not credited
There is some testimony in the record that the authority to discharge was
conferred upon the Company subsequent to the election , but I deem this
irrelevant to the consideration of the issue of the supervisory status of the
captains at the critical time There was one incident reflected in the record
where a captain actually told a waiter (who was apparently a persistent
imbiber of alcohol ) that he was fired . However , even on this occasion, the
captain testified that approval of the maitre d' was obtained before this
occurred. Even if it may be assumed , as urged by the Employer, that the
captains actually possessed such authority , there is scant evidence that it
was ever exercised . In this connection , consider the following language of
the court in Food Store Employees Union . Local 347 v. N L.R.B. [G C
The effectiveness of a recommendation by a captain to the
maitre d' respecting firing seems to turn more upon the
particular relationship between the two individuals than
upon an established, objective consideration. That is to
say, two captains (Santamaria and Morera) testified that
they requested the maitre d' to transfer one of the waiters
on their team to another team, but that in each instance
the maitre d' procrastinated and it was never
accomplished. On the other hand, Maitre d' Udo Wald,
who was a friend of Captain Medina and had worked with
him in the past, accepted Medina's recommendation to
fire the drinking waiter, as aforesaid.'
Although, again , the practice among the various teams
might differ, it appears that captains do not have
authority, without first checking with the maitre d', to
allow waiters to take time off. As a practical matter,
according to the testimony of Maitre d' Wald, the
employees will call in if they expect to be late or do not
appear, and give the message to the hostess who will
report it to Wald, who, in turn, will pass the information
to the captain. In cases where some members of a team
are absent, the maitre d's normal practice would be to
combine the teams under one captain or have the captain
operate with just one waiter at a smaller station.
Analysis and Concluding Findings
"It is a question of fact in every case as to whether the
individual is merely a superior worker who exercises the
control of a skilled worker over less capable employees, or
is a supervisor who shares the power of management."10 It
is my judgment, after a review of all the evidence in the
record as a whole, that while the captains herein
admittedly have a certain degree of control and direction
of the waiters on their team, I am not, persuaded that they
possess and exercise the requisite authority and the
independence of judgment in carrying out their duties so
as to constitute them supervisors within the meaning of
the statute." In reaching this conclusion, I have
considered as particularly significant the following factors:
1. The teams are small and the captains perform
manual labor along with their team members for
substantially all of their working hours."
Murphy Companv/, 422 F 2d 685 (C A.D.C )
As far as the instruction sheet is concerned, it is well established that
"theoretical of paper power will not suffice" to make an individual a
supervisor . N L R B v Security Guard Service , 384 F 2d 143, 149 (5th
Cit. 1967 ). The test is what power the worker actually exercises , and the
finely-shaded gradations of power in any enterprise proscribe a wooden
reading of Section 2(11). Almost any employee "directs" other
employees in some fashion at some time The mere fact that a worker
exercises one or more of the functions listed by the statute cannot be
determinative , therefore . Section 2(11) must function as a guide rather
than a checksheet , and the Board is far more able than this court to
evaluate "the infinite possible variations in responsibilities enumerated in
[the statute]."
'However even this incident was only after Wald had disapproved
Medina's desire to fire the waiter on the first occasion and directed
Medina to give him a second chance before discharge.
"N L R.B. v. Griggs Equipment , Inc. 307 F.2d 275, 279 (C A 5)
"See Ross Porta-Plant, Inc v N L R B., 404 F.2d 1180, 1182 (C A 5)
"See, e g., Crown Corrugated Container , Inc.. 123 NLRB 318, 323 In
this connection, see particularly the testimony of Captain Santamaria, who
distinguished between a "captain " under the European system who is an
assistant of the maitre d' "he usually hires people, he can fire people, he
supervise the busboy and he has got the authority of assistant to Maitre D' "
and the American "captain " who, because of the requirement of fast
service and saving time, is "nothing but a waiter with a captain title
working in a team together with other two waiters and splitting the tips "
THE REGENCY HYATT HOUSE
2. The work is generally of a repetitive and routine
nature, and, with the exception of trainees, the waiters do
not require any extensive degree of instruction or direction
from the captains.
3. Generally speaking, the captains are older, more
experienced craftsmen who teach and direct waiters of
lesser experience and capability and work along with them
rather than simply supervise the latter's work.
4. With the exception of a short period at the close of
each day's business, an admitted supervisor - the maitre
d' or his assistant is constantly on duty and in charge
of the restaurant."
5. Should the nine be found to be supervisors, the
resulting ratio would be approximately one supervisor for
every two employees. Such a disproportionate ratio has
been considered by the Board to be significant in
determining supervisory status."
Essentially, I find the authority, duties, and
responsibilities of the captains here to be substantially
similar to those of the "service captains" in Brennan's,
Inc." In finding the service captains there to be
nonsupervisory, the Trial Examiner (whose findings in this
regard were affirmed by the Board) stated at 1551:
Aside from busboys, who need not here concern us,
the tables in Respondent's dining rooms are serviced by
teams of three men. One member of the team wears a
red coat and he is the service captain. The other two
waiters wear black coats. All three split evenly the tips,
which are their principal source of income. The service
captain, as far as appears, occupies his position by
reason of his greater experience and knowledge as a
waiter. All three men assist in supplying the wants of
the customers at the tables. The service captain is in
general charge of his team and is responsible for the
proper discharge of their duties. He does direct the
team in its work and in its conduct on the job. There is
no evidence that a service captain can hire or discharge
employees . I am of the opinion that a service captain's
position is comparable to a group leader or gang pusher
in industrial type organizations and that he is not a
supervisor within the meaning of the Act. It is true that
a service captain can recommend disciplinary action as
to the members on his team and that Respondent's
supervisors will pay heed to such recommendations. But
this appears to be nothing more than a matter of
commonsense considering the nature of the restaurant
operation, I believe that the record indicates that
management evaluates recommendations from a service
captain but does not take definitive action, such as
discharge or layoff or transfer, based solely on the
recommendation of the service captain."
I also find the status of the captains here to be
essentially similar to those of the "compass points
captains" in Columbus Plaza Motor Hotel," who were
found to be nonsupervisory. Accordingly , I shall
recommend that the challenged ballots of the nine
captains involved herein be opened and counted , and that
a revised tally of ballots be furnished the parties.
"This period is approximately an hour about I a.m. when the "closing
captain" is in charge of the room.
"Welsh Farms Ice Cream, Inc., 161 NLRB 748, 750-751.
"147 NLRB 1545. As the Trial Examiner in that case acknowledged,
(fn. 19) "... Brennan 's is generally regarded as a distinguished French
restaurant in the French Quarter of New Orleans." It may thus be
considered comparable to the gourmet type restaurants involved in the
instant case.
"In the instant case , as in Brennan 's, the captains wear tuxedos rather
than a regular waiter's uniform.
11. THE EMPLOYER 'S OBJECTIONS
493
A. Objections 4, 5, and 6
These objections (the exact language of which is set
forth in the margin)" may be considered together since
they are concerned with the significance of one of the
Union's election observers (Donald Setzer) acting as a
company election observer for approximately 30 minutes
at the beginning of the second shift. The events may be
briefly summarized as follows:
The hours of the election were from 5:45 a.m. to 6:30
p.m. on Monday, July 15, 1968. The hours were to be
divided into two shifts for election observers, the breaking
point to be at 1 p.m. Each party - Union and Company
- were to have three observers on each shift." At
approximately 12:45 p.m., all election observers (with the
exception of Company Observer James Hayes) appeared
at the polling place and replaced the first-shift observers,
who thereupon left the polling area . The first-shift
observers had left their identification badges denominated
"company observer " and "union observer," respectively,
on the table. It appears that Setzer donned a company
observer badge and took a seat at the far end of the table
for the purpose of watching the ballot box.
At approximately 12:50 p.m., Company Attorney
Swann, who was outside the voting area '20 requested of
Board Agent Harper that he would like to speak with the
Company's second-shift observers for a few minutes
outside of the voting area . Harper agreed so long as the
Company's first-shift observers resumed their duties for a
few minutes during the absence of the second-shift
observers. However, when Harper returned to the voting
area and announced that "Mr. Swann wants to speak to
his observers," Setzer left the voting area along with the
other company observers (Doris Foster and Cleo
Baldwin)."
"148 NLRB 1053, 1055.
""4 - Officers, agents and legal representatives of the Petitioner
illegally and improperly instructed its appointed election observer and legal
representative to misrepresent himself to the Board 's agents supervising the
election as the official election observer of the Employer, thereby creating
confusion within the polling area and serving to misrepresent to voting
employees that the "Employer's observer and official election
representative" (and consequently the Employer ) was in favor of union
representation for its employees.
"5 - The Petitioner 's legal agent and representative in his official
capacity of election observer for Petitioner misrepresented himself to the
Board 's agents supervising the election as being the Employer 's official
election observer and improperly and illegally acted in such capacity during
the polling period Furthermore , the Board ' s agents allowed the
Petitioner 's election observer to act as the Employer 's official election
observer in spite of the fact that the identity of the Employer's observers
were made known to the Board 's agents prior to the voting period.
,`6 - Petitioner's election observer misrepresented himself to Company
representatives as the Employer ' s election observer for the purpose of
obtaining from Employer confidential information concerning the
Employer's instructions to its election observers including the identity of
those employees to be challenged by the Employer."
"The duties of the three observers for each party may be briefly
described as follows: One pair of observers - one each from the Company
and Union - had the function of checking the names of prospective voters
on the eligibility list as the latter appeared at the polls to vote; the second
pair of observers sat down near the end of the table for the purpose of
observing a prospective voter going into the voting booth ; and the third
team of observers sat near the ballot box to see that the voter dropped his
ballot into the box.
"As previously noted , the election was held in a large convention hall in
the lower lobby of the hotel.
"Union observers on the second shift were Ernestine Mason , Miguel
Villar, and Selzer.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record is not explicit as to what Swann told the
observers. Baldwin testified that he gave them instructions
as to how they were to conduct themselves and handed
them a list of the persons to be challenged. However,
Baldwin acknowledged that Setzer did not come up close
to them "he sort of stood in the background. .." Setzer
recalled only that a gentleman said something that had to
do with "how to conduct ourselves" at the election, and
had no knowledge of a list of names that was given to
anyone. The conversation took only a few minutes, after
which they returned to the election room and Setzer
resumed the same seat he had vacated and donned the
same badge At that time the other Board agent, Mrs.
Reel, gave them instructions as to their duties as an
observer.
About 1:15 p.m., the third "real" company observer
(James Hayes) appeared and identified himself as the
third company observer. Whereupon, Board Agent Reel
ascertained that Setzer was in fact a union observer and
transposed the observer badges so that Hayes wore the
badge Selzer had been wearing and Setzer acquired a
union observer badge.
Analysis and Concluding Findings Regarding
Objections 4, 5, and 6
Based upon the credited testimony of the Employer's
Security Officer Clodfelter, I find that Setzer was clearly
aware, prior to his assumption of duty as an election
observer, that he was to be an observer for the Union and
not for the Company .21 However, having so found, it does
not necessarily follow that he later attended the meeting
of company observers with the company attorney or
donned the "company observer" badge with the
malevolent intent of seeking to learn company secrets or
to influence voters. I reach this conclusion after observing
this person on the witness stand and analyzing the facts as
follows
Setzer, a bellman at the hotel, is a young, inarticulate,
apparently uneducated person, who appeared completely
unsophisticated and unknowledgeable in Board election
processes. If, indeed, the Petitioner desired to plant one of
its agents in a position where it could learn company
secrets, it seems incomprehensible that it would have
chosen such a person as Selzer. However, I do not rest
my conclusion solely on such subjective observations since
the facts themselves do not support the Employer's
contention that the Petitioner instructed Setzer to
misrepresent himself at the election. In the first place this
assertion was unequivocally denied by the Petitioner's
business agent who appointed the observers (whose
testimony is credited). But more importantly, no one knew
in advance of Hayes' tardiness so that plans could be laid
for Selzer to attend any private meetings with the other
company observers. In any event, there is no proof that
Setzer heard any confidential instructions from the
Company's attorney or viewed the list of proposed
challenges given the other company observers . Even if he
had, there is no showing that the Company was prejudiced
in any way since Setzer had nothing to do with the
challenging of voters. Moreover, there is no proof that
Setzer was active on behalf of the Union (if, in fact, he
was) or that this fact was known to other employees in
"Clodfelter testified that about noon of the day of the election, Setzer
came into his office and, during a general conversation , acknowledged that
he (Setzer) was to be a union observer for which he would receive the sum
of $20 from the Union
order to establish an inference (argued by the Employer)
that such employees would thereby reach a conclusion that
the Employer favored the Union by virtue of Setzer's
wearing a "company observer" button Indeed, not one
employee testified that he (or she) even noticed that Setzer
wore such a button during the approximate 30 minutes.
Nor can I find substantial evidence to support the
Company's contention that Setzer, on his own,
misrepresented himself to accomplish an illegal or
wrongful purpose. His demeanor, above described, belies
this, and his testimony, while in some instances
implausible, strictly reflects that of a person unlearned
and confused respecting a procedure concerning which he
has had no previous experience."
Moreover, I find no substantial evidence on the record
to support the Company's contention that the Board
agents allowed Setzer to act as a company observer in
spite of the fact that they knew beforehand the identity of
the Employer's observers. Assuming the Board agents had
been supplied in advance of the election with the names of
the observers for each party, it is to be recalled that the
substitution of the second-shift observers was made at a
time when the election was still proceeding. It would be
natural that the Board agents would attempt to
accomplish this substitution without any undue
interruption with the election, and in the absence of any
notice or warning that the observers were not who they
were supposed to be, it would not seem incumbent at this
particular point and time for the Board agent to stop and
confirm this particular fact. In any event, it is undisputed
that when the mistake was first called to the Board
agent 's attention, it was immediately rectified without
further ado.
Finally, as previously noted, there is not the proverbial
scintilla of evidence that any employee who presented
himself at the poll to vote, was in any way misled or even
noticed the fact that Setzer acted as a company observer
for a half-hour during the election. Selzer seated himself
during the whole period near the end of the voting table
and merely watched the voting booth. He had nothing
whatsoever to do with checking a prospective voter's
eligibility, nor is there any evidence that his acting as
company observer for the time in question "creat[ed]
confusion within the polling area and serv[ed] to
misrepresent to voting employees that the `Employer's
observer and official election representative' (and
consequently the Employer) was in favor of union
representation for its employees."
In sum , I find no substantial evidence on this record to
support the allegations raised by the Employer's
Objections 4, 5, and 6, and will recommend that these
objections be overruled.
B. Objection 724
The election arrangements provided for two sets of
observers, the first group to serve "between 5:45 a.m. and
"In this connection I specifically discredit Baldwin's testimony that
Setzer stated when he first appeared that he was there to take Hayes'
place. This was denied by Setzer and not corroborated by either the Board
agent or Doris Foster, who Baldwin claimed overheard the statement The
record does not support the contention that Setzer even knew at the time
Hayes' identity or that the latter was, in fact, to be a company observer.
""The Board' s agents failed to follow the agreed election arrangement
for the relieving of observers at 100 p in during the polling period and
instead ordered that the first shift observers be changed prior to the agreed
time, thereby denying the Employer of its right to give instructions to its
observers as to the challenge of voters as well as other instruction relative
to Company representation at the polls prior to the time its observers
assumed their duties as the Company's official election representatives
THE REGENCY HYATT HOUSE
I p.m. and the second groups [sic ] between I p.m. and
6:30 p.m."" However, as set forth above, it appears that
two of the Company's three second-shift observers and all
of the Union's observers appeared at the polling area
approximately 15 minutes before 1 p.m., and the
substitution was made at that time. But, contrary to the
contentions of the Employer, the evidence shows that the
substitution was made voluntarily, and apparently at the
request of the Employer's observers rather than by
"order" of the Board's agents. Thus, Anne McDonald, a
company observer and witness for the Employer, testified
as respects the circumstances of the first-shift observers
being released:
Well, we - the new observers were there and I said
"may we leave the room" and they said "Yes." I said
"May we go" and they said "Yes" and I put my badge
on the table and we left.
Q. Who told you you could leave?
A. Mrs. Riel [sic].
In any event, this decision did not preclude the
Employer's attorney from giving instructions to the
second-shift observers since, as described above, about 5
minutes later he called the second-shift observers out into
the hallway and gave them the instructions he desired and
sent them back into the voting area. The whole procedure
did not comprise more than a few minutes, and there is no
evidence that the Employer's attorney objected to the
"fail[ure] to follow the agreed election arrangement" at
the time. It seems that the objection to the procedure only
came after the results of the election were answered. 26
In short, I conclude that the evidence fails to support
the claim of the Employer in its Objection 7 that the
Board's agents acted so wrongfully or improperly as to
prejudice the rights of the Employer regarding the incident
alleged therein. Accordingly, I shall recommend that that
objection be overruled.
C. Objection 931
In support of the foregoing objection, the Employer
submitted evidence respecting five employees whom it
contended were eligible to vote but were improperly
denied their right to vote or were required to vote a
challenged ballot. These are Robert Lytle, David Franklin
Webb, Parvin Ledford, Richard Fisher, and Rosalind
Diane Green [Lee].1'
Before discussing the individual circumstances
respecting the five, some background information is
necessary. As previously noted, at the time of the election
in July 1968, the hotel had been in existence for a period
This procedure further resulted in the Petitioner's appointed election
observer improperly and illegally acting in the capacity of the Company's
observer during the polling period."
"Employer 's Exh. 3.
"Compare Shoreline Enterprises of America , Inc. v . N.L.R.8 , 262 F.2d
933, 943 (C.A. 5).
""Eligible voters whose names were contained on the voting list who
presented themselves to vote were either improperly denied their right to
vote or were required to vote challenged ballots , thereby creating an
atmosphere of confusion and turmoil resulting in the destruction of the
laboratory atmosphere so necessary in the selection or rejection of a
collective bargaining representation . Such action also served to discourage
a large number of eligible voters from presenting themselves at the voting
place to legally and properly cast their ballots."
"The last-named employee had married since her employment at the
Company . At the time of her employment - and at the time of the
election - her name was Diane Green.
495
of little more than a year, and the work force was still
relatively unstable; i.e., there was still a substantial
turnover of employees. To complicate matters further as
respects eligibility of employees, the hotel employed a
rather substantial number of part-time employees, some of
whom worked on a regular basis and were carried on the
"regular" payroll while others who worked • on a "per
function" basis were carried on a separate or extra
payroll. This latter group was apparently comprised
principally of extra banquet waiters who were called in to
work at particular functions. Mrs. Cleo Baldwin, the
Employer's payroll record clerk, identified Robert Lytle
and Richard Fisher as being on the extra banquet payroll.
According to the testimony of Marshall Race, the
Petitioner's representative, which is uncontradicted and
which I credit, the Employer supplied the original
Excelsior list on or about June 21, 1968.19 However, due
to the relatively large number of intermittent employees
employed by the hotel at this time, the parties agreed and
stipulated respecting the number of days which any such
employee in the unit was required to work in order to be
eligible to vote in the election.311 According to Race's
testimony, the Company subsequently prepared another
list containing part-time employees who did not meet the
aforesaid stipulation and whose names were supposed to
be deleted from the Excelsior list. There was a meeting
among the Board agent, the company attorney, and Race
in which such deletions were made, the Board agent
drawing a line through the names as they were read off
the deletion list. Indeed, there were apparently several
such meetings among the parties prior to the day of the
election, in which additional names were either deleted or
added to the original list. Race testified specifically to a
meeting on the Friday before the election in which names
were added to the bottom of the list in writing because
there was not enough room between the names on the
original list (arranged alphabetically) in which to add the
new names. The foregoing was the state of affairs as
respects the eligibility list at the time of the election on
July 15.71
Robert Lytle was a graduate student and employed by
the hotel as a banquet waiter. He worked on an
intermittent basis from the time of his employment in
April 1967 until he commenced working full time on June
10, 1968.3t He testified that he was sure that he had
worked a sufficient number of hours during the critical
period to come within the eligibility requirements for
intermittent employees set forth in the stipulation, and he
attempted to vote in the election. He said he approached
the table where a woman was sitting checking names and
that he gave her his name; she advised that his name had
been scratched off, and that he could not vote. At that
time another lady came up (apparently Board Agent Reel)
and asked could she help him, and that also another man
approached (apparently Board Agent Harper) and wanted
to know what the trouble was. He advised them what the
"This list derived its name from the Board case bearing its name
(Excelsior Underwear Inc.. 156 NLRB 1236). It is normally the payroll
which provides the basis for the eligibility list utilized in the election.
"The stipulation is: "Those in the unit who work on an intermittent
basis and who worked a total of 21 days during the period beginning
March 14, 1968, extending through June 13, 1968, providing also that they
worked at least one day during the period beginning May 14, 1968, and
extending through June 13, 1968." (See Employer 's Exh. 1.)
"Race testified that he believed the number of names originally
submitted (769) narrowed down to about 520 at the time of the election.
"The payroll period for eligibility of hourly paid employees was that
ending June 9, 1968.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lady at the desk had told him and protested that he had
been working at the hotel as a part-time employee since it
opened but that his name had been scratched from the
list." Finally, he asked them did they mean that he could
not vote at all, and the Board man said "right," so Lytle
left the voting area.',
However, on cross-examination, Lytle admitted that the
male Board agent could have requested him to check with
his supervisor to see whether there had been a mistake in
scratching his name, but that he did not do so. He also
conceded that he knew that a formula for voting eligibility
existed and that he did observe another employee filling
out a challenged ballot, although the Board agent did not
offer him one.
Ernestine Mason, an employee in the banquet
department, acted as an observer for the Union during the
afternoon shift. She was present when Lytle and Parvin
Ledford came in to vote and testified credibly that when
they were told that their names were not on the list, "they
said they were going to the banquet office to check up
there and they would be back, but I never did see them
come back down."
Parvin Ledford was a student who commenced working
for the hotel in the early part of June 1967 as a banquet
waiter. Although a short time later he worked in Hugo's,
he returned to waiting on banquets after December 1968,
so that during the critical period for the eligibility, he was
being paid on a "per function" basis. He further testified
to the best of his knowledge he had worked enough during
the critical period to qualify him to vote, and he
attempted to do so on July 15.
Ledford testified that as he approached the voting table
the observers asked his name and he gave it to them. He
was informed that his name had been striken from the list
and he was subsequently advised (apparently by the male
Board agent) of the formula for voting eligibility. He
stated that no one mentioned voting a challenged ballot.
However, on cross-examination, he conceded that the
male Board agent did advise that Ledford could talk to
his supervisor and find out why he was unable to vote;
however, Ledford did not speak with his supervisor that
day, but rather went home 'S
Ledford further testified that as he entered the voting
area he passed Lytle who was on his way out and that the
latter advised that he had attempted to vote but was
unable to do so, and wished Ledford luck
Richard Fisher commenced working for the hotel in
April 1967 as a part-time banquet waiter. He testified that
he also believed he had worked a sufficient number of
days during the critical period to entitle him to vote and
that he proceeded to the voting area on July 15 about I1
a.m. along with a friend. The friend was advised by the
person at the voting desk that he was not eligible to vote
under the rules of the election but that he could vote a
challenged ballot The friend decided that he would do
that and parted from Fisher. Fisher was likewise told that
his name had been crossed out and was not eligible to
"He testified subsequently that he actually observed that his name had
been penciled through in red ink
"Lytle said that after he was outside the voting area and as he was
leaving to go home , he met a group of waitresses coming in , and they
asked him if he had voted . He replied , no - that they wouldn 't let him
vote and then he went home.
"He stated that he checked with his supervisor the following day, but
they didn ' t make any mention of whether or not I had worked that many
hours
vote, and about this time the gentleman who had "filed"
the challenged ballot for his friend came back and offered
to let Fisher file a challenged ballot. Fisher replied that he
thought he was eligible but that the man (apparently the
Board agent) "replied something to the effect that the list
had been made up by the hotel and it was accurate."
Fisher decided that he would see the department's
secretary and return later. He subsequently checked with
the secretary, but she apparently did not know anything
about it. Later, he saw Lytle who advised what had
happened to him (described above) and Fisher inquired as
to whether Lytle had voted a challenged ballot. The latter
replied that he had not been offered the chance to vote a
challenged ballot so Fisher decided that he was not going
to be able to vote and did not attempt thereafter to do so.
David Franklin Webb testified that he was a part-time
banquet waiter who commenced work about October
1967, and worked in that capacity until the time of the
election. Believing that he worked enough days during the
critical period to be eligible to vote, he presented himself
at the polling place on July 15 about 12:30 p.m., and gave
his name to the observer sitting at the table. He testified
that he was not sure whether his name was scratched off
the eligibility list or whether the obseiver simply could not
find his name, but in any event he was not permitted to
vote He stated he had some conversation with a lady at
the voting booth and advised her that he thought he was
eligible to vote since he had been employed since October
1967 and punched in and out as did other waiters. Webb
further testified that later in the afternoon he went to the
banquet office and checked with the banquet manager and
his secretary concerning the matter and they advised him
that his name had been added to the list of the eligible
voters and he should have been allowed to vote However,
he did not return to the polling area or ask again to be
allowed to vote.
Board Agent Harper specifically recalled talking with
Webb (although Webb testified that he talked once only
with the woman at the voting booth), that he checked not
only the original eligibility list but also another list of
intermittent employees that the Employer had submitted a
few days prior to the election, and was unable to find
Webb's name." He asked the latter if it was possible that
he had not worked long enough at the critical period to
which Webb replied that he was sure that he had and that
the secretary in the department kept a record of how
many days they worked Harper requested him to check
with her and he said that he would, and that was the last
Harper saw of him
Rosalind Diane Green (Lee) was a student at the time
of her first employment with the Company, which was in
June 1967. She worked for 8 months and left, and was
rehired on May 3, 1968, at which time the arrangement
was that she would work only on weekends until school
terminated and then she would commence full
employment. She started working on the weekend of May
4 and 5, but did not work any other weekends
subsequently because of her schoolwork. Accordingly, her
next day of work was June 10" when she started working
full time and continued on that basis until September
1968.
Green testified that when she attempted to vote in the
election, she was told that her name was not on the list,
"Webb ' s name was, in fact , added in writing (as distinguished from
being typewritten as was the alphabetized list) to the end of the list
"It is to be recalled that the cutoff date for voting in the election was
the payroll period ending June 9, 1968
THE REGENCY HYATT HOUSE
and the "lady agent" asked when she commenced
working. Green advised her of the facts, above stated, and
asked if it made any difference that she worked 8 months
the year before, and the lady agent said "no, that
wouldn't make any difference, if [her] name wasn 't on the
list, [she] wasn't supposed to vote." Green testified that
she then requested whether she should check with her
supervisor, "... and the lady agent said I wasn't supposed
to talk to anybody and if my name wasn 't on the list, I
was not supposed to vote."
Board Agent Harper recalled the incident of a girl
(presumably Green) who had come in and her name was
not on the list and had not been stricken off. He
remembered the girl stating that she could not continue
going to school and trying to work and that she had quit,
and he asked her when she returned to work, to which she
replied June 10.
Analysis and Concluding Findings as to Objection 9
Contrary to the Employer, I am unable to agree that
there is substantial evidence on this record to sustain the
allegations of Objection 9 that the five employees involved
herein were improperly denied a right to vote in the
election and that such action also served to discourage a
large number of eligible voters from presenting themselves
to vote at the election.
With respect to Lytle, Ledford, Fisher, and Webb, the
simple fact is that their names were stricken from the
eligibility list (by having a line drawn through their
names) upon information submitted by the Employer.'$
Whether such information accurately reflected their
eligibility status, I believe to be beside the point since it
was, as noted, submitted by the Employer and agreed to
by the parties prior to the election. Under such
circumstances, it would hardly seem fair to fault the
Board agents conducting the election for such error or
confusion resulting therefrom. It is true, as argued by the
Employer and recognized by this Examiner, that the error
of a party to an election does not exculpate the Board
from an obligation to see that an individual, eligible
employee's right to vote at an election is upheld." The
Board has a challenged ballot procedure to be utilized in
cases of doubtful eligibility, and the record in this case
discloses that such procedure was utilized frequently. On
the other hand, it is not an uncommon or insalubrious
practice for a Board agent conducting an election to
attempt to minimize the number of challenged ballots by
resolving eligibility prior to voting, and the credited
testimony reveals that that is what occurred in this case;
i.e., the four waiters were requested to check with their
supervisors or payroll clerk to ascertain whether or not
their names had been erroneously stricken or omitted
from the eligibility list, and then to return to the polling
area. It perhaps would have been better practice to have
made more explicit to the affected employees that they
would have a right to vote a challenged ballot upon their
return if the matter were not rectified, but the evidence
does not disclose that either of the employees objected to
the suggested procedure. Rather, the record discloses that
they simply did not have sufficient desire or interest in the
proceedings to take the trouble to return to the voting
area. Certainly there is no evidence from which I might
draw a reasonable inference that they would have been
denied the right to vote a challenged ballot had they so
returned to the polling area and presented themselves.
Indeed, Fisher was admittedly offered the opportunity to
vote a challenged ballot in the first instance but declined
497
to do so prior to checking with the department secretary.00
With respect to Diane Green , I agree with the
Employer that the uncontradicted testimony shows that
upon her being told by the observer that her name was not
on the list, she was, unlike the four part -time waiters
discussed hereinabove , discouraged from further checking
with her supervisor as to her eligibility status and was not
offered the opportunity to vote a challenged ballot. On the
other hand , she admittedly did not work but 2 days during
the eligibility period . Accordingly , it is reasonably clear
that she was not eligible to vote in any event , and as the
Employer concedes in its brief (fn. 8) "admittedly, Board
agents have authority to refuse to issue ballots to
'obviously ineligible persons' See Neuhoff Brothers
Packers, Inc, 154 NLRB 438, and Cooper Supply
Company, 120 NLRB 1023."01
In the light of all of the foregoing , I shall recommend
that Objection 9 should be overruled .41
D. Objection 10
"After receiving their official ballots employees were
allowed to leave the voting area with ballots in their
possession and to later return to the voting area with such
"Webb 's name , of course , was not placed on the original list but was
added , out of alphabetical order , at the end of the list
"Shoreline Enterprises of America, Inc v . N.L R B.. 262 F 2d 933, 944
(C.A 5).
"Since I have found that there is insufficient evidence to sustain the
contention that the Board agents refused to allow the employees in
question the opportunity to vote a challenged ballot , I do not reach the
issue of whether either of the four were , in fact, eligible to vote under the
stipulation . For the same reason , I deem the Westinghouse Corporation
case (78 NLRB 315 ), cited by the Employer, inapposite
"The Employer deems "highly significant" the fact that Mrs Lee's
name appeared on the Employer's regular weekly payroll (as distinguished
from the "per function " payroll), arguing therefrom that such employees
are considered regular part- time employees within the unit description
However , the placement of an employee on a payroll would not appear to
be controlling on the issue of whether or not such employee should be
considered a "regular part-time employee" for the purposes of voting in an
election Rather , the actual number of hours worked per week is usually
determinative . Also, it is not unlikely , in the light of Board Agent Harper's
testimony, that Mrs Lee advised the Employer that she did not intend to
work any more until school was out. One might speculate that it was for
this reason, and under these circumstances , that Mrs. Lee's name was
omitted from the Excelsior list in the first place.
"Prior to the hearing , the Employer sought to examine the voter
eligibility list used in the election , which request was denied by the
Regional Director On appeal, the Board affirmed the Director "
without prejudice to the right of the Employer to renew said request before
Hearing Officer upon proper showing of relevancy ." (Regional Director's
Exh. I-J).
The Employer renewed its request before me, stating the following as its
reasons therefor.
Mr. Swann Of course , the main thing is to determine whether certain
voters appeared at the poll who we contend to be eligible voters who
were denied the right to vote , if they are on the list. I think also that we
are entitled to know exactly who is on the list because we have been
trying to present evidence reflecting the effect of all of these things upon
the laboratory atmosphere.
While it seemed to the Trial Examiner that the manner in which the
names of the five employees discussed heremabove appeared (or did not
appear ) on the list might be relevant to the issue , no persuasive reason was
shown as to why the Employer should be permitted to examine the list for
other names in the face of the claimed privileged status of the list.
Accordingly, in the light of the proffer by counsel for the Regional
Director to submit the list to the Trial Examiner for an in camera
inspection , and at the request of Petitioner , the Trial Examiner set forth on
the record the facts appearing thereon as respects the five persons, and
thereafter placed the documents in the record under seal. (Trial Examiner's
Exh. I-A and I-B.)
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots and subsequently drop their ballots into the ballot
box without challenge by Board agents."
This objection relates to an incident during the election
involving employee Samuel Powers, who voted in the
election during the morning hours." Powers received his
ballot, filled it out in the voting booth, but did not drop it
in the ballot box upon leaving the voting area because, as
he testified, he did not see the ballot box. Outside the
voting area he asked a foreman the location of the box,
and the latter replied that it was sitting on a table in the
voting area. Whereupon, according to Powers' testimony,
he returned to the voting area" and placed his ballot in
the box without conversing with anyone when he came
back into the room. However, Company Observer
McDonald testified that while she was checking off names
on the list, she observed Powers come from the back of
the room with what appeared to be a ballot in his hand
and she asked what he was doing. He apparently did not
respond, and McDonald testified further:
Mr. Ray said, "what have you got, what are you
doing" and the man put the ballot into the box. He
asked him if he had taken it out of the room and he
replied that he had. He asked him why he did not put it
in the ballot box after he had gone into the booth and
he replied that he forgot. [Emphasis supplied.]
Company Observer Clodfelter's testimony is somewhat
at variance with the foregoing. She testified that when she
observed the gentleman come from an entrance into the
voting area and "was fixing to drop his ballot into the
box," she remarked, "Wait, where did you get the ballot,"
and turned to Board Agent Ray and called the matter to
his attention. At that point, according to Clodfelter, Ray
called Powers over to the table and talked with him
(Clodfelter could not hear the conversation) after which
Powers dropped the ballot into the box. Subsequently,
Board Agent Ray commented to Clodfelter "if there was
a close vote, this ballot would not count.""
In the light of Powers' unambiguous denial that he
spoke with anyone in the voting area prior to dropping his
ballot into the box, which testimony is corroborated by
that of Company Observer McDonald, I credit such
testimony over that of Clodfelter.
I find and conclude that even though the incident
depicted by the foregoing testimony was irregular and to
be regretted, the record reflects no violation of the secrecy
of the ballot nor does it, in my view, constitute "such a
serious irregularity in the conduct of the election as to
raise doubts as to integrity and secrecy."" Accordingly, I
will recommend that this objection be overruled as lacking
in merit.
"Board Agent Ray was in charge of the election during this period, and
was relieved by Board Agents Harper and Reel about noon
'The length of time that Powers was outside the voting area is in
question It appears that he first visited the polling area at approximately
10 a.m and Company Observer McDonald testified that she saw him
appear from the back of the room around 10.30 or I I a . m., although she
subsequently testified that it could have been as early as 10 a.m. Company
Observer Keith testified that she first saw Powers at approximately 9:45
a.m., and the next time she saw him was about noon or 12:30 p.m. I credit
Powers and McDonald and find that Powers was not absent from the
voting area more than a few minutes between the time he marked his
ballot and subsequently dropped it in the ballot box.
"The foregoing is based upon the testimony of Clodfelter, Ray not being
called as a witness
"Cf. Tidelands Marine Services, Inc. 116 NLRB 1222, 1224 . See also
Austi l Waxed Paper Company. 169 NLRB No. 169
E. Objection 11
"During the polling period a Board agent improperly
allowed the Petitioner's observers to converse with persons
in the polling area in a foreign language. Although the
Board agent claimed she knew what the conversants had
stated she refused and failed to advise the election
observers as to the content of such conversation and to
require the conversants to reveal their conversation in
English. The Board agent also failed and refused to
prohibit or attempt to prohibit such improper and illegal
conduct and to challenge the voters so conversing with the
Petitioner's observers."
This objection is concerned with an incident during the
election in which Miguel Villar, an observer for the
Union, engaged in a conversation in Spanish with a voter
respecting her ballot. The circumstances may be stated
briefly as follows: A female employee of the Employer
approached the voting table and when asked if she was
there to vote replied yes or "si." When the observers
found her name on the list indicating that she was entitled
to vote, they gave her a ballot. The employee then stated
to Villar in Spanish, "I don't know how to vote." Villar
told her that he would seek permission from one of the
Board agents to explain the procedure. Villar did so, and
the female Board agent told him "I speak a little Spanish
so go ahead and explain it."
Villar's testimony, which I credit, respecting what he
stated to the employee is as follows:
A. She showed me the ballot and I told her what to
do. It tells you to vote yes or no and that is all you
have got to do, just mark one of these. I call it a
square, right. Mark either one, the one you prefer.
What your feelings are, what you think is best for you.
I told it in spanish. I didn't explain her in spanish
anything.
Villar specifically denied telling the employee how to
vote or otherwise giving her any "sales talk to vote for the
Union."
Following the incident, Company Observer Baldwin
asked Board Agent Reel what Villar was saying, to which
Reel replied, "Oh, he just explained the ballot."
The Employer in his brief argues forcefully what the
first admonition in the Board's "Instructions to Election
Observers"" is that an observer should not "give any help
to any voter. Only an agent of the Board can assist the
voter."
The issue here is rendered more difficult since the
record is not clear as to whether the Board agent was
sufficiently conversant in Spanish to have explained the
ballot. Had she been, it would seem clearly improper for
her to have allowed an observer for one of the parties to
have assisted the voter in this manner, in the absence of
an interpreter for the other party. On the other hand, if
she was not sufficiently conversant the disallowance of
observer assistance would effectively result in the loss of
an employee's right to vote.
In the absence of evidence to the contrary, I believe the
presumption of regularity prevails here, and that the
Board agent would not have delegated the authority to
instruct the voter had she been able to effectively do it
herself. Since the instruction does not appear to be
improper, I cannot agree that the Board agent's conduct
on this occasion warrants setting the election aside.
Accordingly, I find that the evidence does not sustain the
"Employer's Exh II
THE REGENCY HYATT HOUSE
allegations of Objection 11, and will recommend that it be
overruled.'"
F. Objections 12 and That Part of 13 Dealing with
Conduct of the Board Agent
"12. During the polling period and in the presence of
voting employees and election observers a Board agent
conducted herself in a highly improper manner by making
loud, rude , abusive and threatening statements and
comments to election observers and other persons in the
voting area and by- other threats and improper conduct
created an atmosphere of fear and confusion and thereby
destroyed the necessary laboratory atmosphere . Because
of the threatening nature of such conduct a large number
of employees refrained from visiting the polling place for
the purpose of casting their ballots.
"13. Due to the threats and coercive conduct of the
Petitioner alleged herein , [ and the failure of the Board's
agents to maintain a laboratory atmosphere in the polling
area]" only some 80% of the eligible voters cast their
ballots during the election , which percentage , due to the
closeness of the vote count and the failure of either parties
to receive a majority vote within the designated bargaining
unit, fails to reflect the representatidn wishes of the
bargaining unit employees."
The foregoing objections relate to conduct attributable
to Board Agent (Mrs.) Reel who, along with Board Agent
Harper , was in charge of the afternoon session of the
election . Both Mrs. Reel and Mr. Harper assumed their
duties at approximately noon of the day of the election.
The Employer offered testimony of several incidents
involving Mrs. Reel in support of its objections . Possibly
the one that consumed the most testimony on the record
related to an incident of a lady guest who wandered into
the election area.60
Mrs. Cleo Baldwin , an observer for the Company at the
election and one of its witnesses at the hearing , testified as
follows respecting the incident:
A. This lady came out of the lobby of the hotel into
the room , quite by accident I am sure and she was
immediately challenged by Mrs . Riel [sic] as to whether
she came in to vote and the lady said "vote for what"
and she said , "are you , an employee" and the lady said,
"no, I am not an employee ." So she immediately asked
her to leave.
MR. KATZ : I will object to that characterization of
the statement.
TRIAL EXAMINER : Just tell us what Mrs. Riel said.
THE WITNESS : All right. Mrs. Riel said "this is a
Federal election and you must leave the premises
immediately and the lady said, "I am a citizen" and
she shook her hand at this woman -
TRIAL EXAMINER : When you say "she," since there
are two women involved , you had better identify.
THE WITNESS : All right , the guest said "I am a
citizen" and Mrs. Riel raised her finger and she said "I
am a Federal agent and you must leave the premises
immediately" and the lady left, the guest.
"T & G Manufacturing , Inc., 173 NLRB No. 231 , cited by the
Employer, is readily distinguishable on its facts.
"The matter in brackets is that placed in issue by the Board.
"It will be recalled that the election was held in a large convention-hall
type room in the lower level of the lobby of the hotel . It is further to be
recalled that the hotel was new and , indeed , tours for visitors and guests
were initially conducted by the management . However , it appeared that the
guest involved in this incident was alone and it is not clear whether she
simply "wandered" into the election area or was impelled by her own
curiosity . In any event , this has no immediate bearing on the issue raised.
499
Board Agent Harper, a witness for the Petitioner,
depicted the lady guest as being somewhat more
persistent, describing the circumstances in the following
manner:
THE WITNESS: As I started back in the direction of
where Mrs. Riel was talking to this lady I heard Mrs.
Riel tell her very plainly that "if you are not an
employee you will have to leave the voting area
immediately. This is a Board election and you aren't
allowed to stay in this area during the time the polls
are open."
This lady then seemed to become quite upset and she
said something to Mrs. Riel to the effect, "well, I am a
tax paying citizen, I have a right to know what is going
on here and if there is anything to be voted on I want
to know what it is and if they are voting I am going to
vote." Mrs. Riel told her again in a firm voice that this
was a Board election, that we were the NLRB Board
agents and she was again asking her, in fact insisting
that she leave the area immediately if she was not an
eligible voter.
I walked up at that time and I told the lady,Just
repeated what Mrs. Riel had told her. I said "now this
is a Board election for employees. It is not for
outsiders, this is not a civil election and only • the
employees of the hotel here are involved in this
election," or something to that effect and I asked her to
leave.
Q. (By Mr. Katz) Then what happened?
A. The lady finally turned and walked out.
Other conduct which the Employer cites as evidence of
Mrs. Reel's abusive and abrupt behavior may be
succinctly summarized as follows:
(a) Shortly after Mrs. Reel assumed her-du ' ties at
noontime she told Company Observer Anne McDonald to
stop talking and smiling since this was not a tea party but
an election.
(b) McDonaid, itestifiedWthat around 'fioontifrte she was
watching the ballot box-Lrind talkirrg"to one'bf the Board
agents when Mrs. Reel1urridd' 'asic3 '0o1i'tfed her finger at
McDonald and said "very loudly and rudely for [her] to
come over to that table and sit down, there would be no
more leg stretching until 1 o'clock."
(c) Company Observer Hayes testified that Reel
informed him that "I was not to speak, that I would have
to have a poker face and not in any way was I to
communicate with any of the voters."
(d) Company Observer Clodfelter testified that about
12:30 an employee whom she knew came in and cast his
ballot and as he was leaving he said "hello" and she
responded in a like manner when Mrs. Reel turned
around, pointed her finger at Clodfelter and said "Sit
down, I do not want to hear another word out of you."
(e) Company Observer Keith testified that on one
occasion when Mrs. Reel Sawa Negro voter place a ballot
in the box but it did not completely go down, Reel stated
"come back here gal and push it down in the box, that's
it."
(f) Company Observer Baldwin testified that when
Board Agent Ray (in charge of the election on the first
shift) inquired of her as to how things had been going, she
replied that "Mrs. Riel has been ranting and raving and
screaming all afternoon.""
"Mrs. Baldwin did not further elaborate on this statement, and while I
agree with the contention of the Employer that since neither Mrs. Reel nor
Mr. Ray were called as witnesses , I should assume the truthfulness of the
Employer's witnesses on this point, I cannot close my eyes to the fact that
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board Agent Harper described Mrs Reel as a nervous
type person who normally speaks with a highly pitched
voice, and Company Observer Doris Foster (Jackson) also
characterized Mrs. Reel's tone of voice as being normally
"very harsh and loud." As respects the incident involving
Company Observer McDonald, Union Observer Willie
Scott testified that several gentlemen came into the voting
area and greeted Miss McDonald (a not unattractive lady)
and he did not recall that Mrs. Reel told Miss McDonald
to wipe a smile off of her face and not to talk to people;
however, he did hear Mrs. Reel tell McDonald that
"you're working as an agent for the company, you are
supposed to conduct yourself in this type of way. There
will be no reading of papers and no carrying on
conversations." Finally, Board Agent Harper testified that
he had worked with Mrs. Reel on prior elections and that
he did not notice that her conduct on this particular day
was any different from her normal activities in conducting
Board elections - that she tends to run a strict election
and "tries to see that the Board procedures are carried out
and followed pretty much to the letter."
In assessing the conduct of the Board agent in question,
as reflected by the evidence herein, it may be stated at the
outset that rudeness and impolite conduct on the part of
Board agents is not to be condoned. This is particularly
true with respect to those agents who work in the field
offices of the Board and who are in daily contact with the
public. In the field of labor law, highly charged as it is
with the emotions of the parties to the contest, the
standards of conduct of a Board agent are set extremely
high. Clearly, conduct of a threatening or intimidatory
nature which may reasonably be said to thwart the right
of an employee to cast his ballot in the election would be
sufficient grounds for setting aside such election. However,
while the conduct of Mrs. Reel may be legitimately
criticized for being impolite, abrupt, and even abusive as
respects her relationship with the election observers and a
member of the general public, I find, contrary to the
contentions of the Employer, no substantial evidence upon
which I may draw an inference that eligible employees did
not vote in the election because of fear of Mrs. Reel. The
most that the evidence reflects in this regard is an incident
related by Company Observer Hayes who testified as
follows:
Q. (By Mr. Swann) Do you recall the incident where
a voter came into the area and left?
A. Yes.
Q. Would you describe that incident please.
A. Well, one of the dish washers came into the area
and as he approached the area the Board agent - on
all occasions when anybody came to the door she would
scream to them more or less "are you here to vote"
and she didn't get any reply from him so she asked him
again and she still didn't get any reply from him so he
went off, I mean he left the room and later on he came
back with another fellow and he was eligible to vote
and he did votes=
Mrs. Baldwin impressed me as being a rather highly charged and
emotional person who might very well utilize hyperbole in describing the
characteristics of others.
"In its brief (fn. 14) the Employer claimed that "the Examiner
improperly denied the employer of its right to further establish the effect of
the conduct on the voters through the statements made and heard by
employees - while the election was in progress." This statement is not
exactly accurate . The ruling of the Trial Examiner merely limited
testimony of witnesses to statements they may have made to other
prospective voters . Testimony sought to be elicited from witnesses
respecting rumors or statements of employees made outside the voting area
I further note that there is no contention or evidence
that Mrs. Reel's officious attitude was directed at one
particular person or party to the election, and therefore
could be characterized as partial or discriminatory. As
Company Observer McDonald pointed out, Mrs. Reel was
not simply rude to the Company or Union, "she was just
plain rude." While, as previously noted, rudeness and
other such impolite conduct on the part of a Board agent
is certainly not to be condoned, the evidence in the record
here considered as a whole simply does not measure up, in
my judgment, to the allegation that it created "an
atmosphere of fear and confusion and thereby destroyed
the necessary laboratory atmosphere." As previously
pointed out, no employee testified that he was deterred
from casting a ballot because of reports of intimidation
emanating from the polling area or, indeed, was there any
testimony of observers or employees who had voted to
other employees advising them against exercising their
franchise.
In sum , I find the evidence fails to sustain the
allegation in Objections 12 and 13, and will recommend
that they be overruled.
Analysis and Concluding Findings On Objections to
Election Considered as a Whole
It is axiomatic that the Board seeks to have its
elections conducted under "laboratory conditions" insofar
as possible since the principal purpose of such election is,
of course, "to determine the uninhibited desires of the
employees."" Every case must stand upon its own facts in
determining whether or not the standards the Board seeks
to establish have been reached and the burden of proving
that the election was unfair is of course upon the party
making the charge." I find and conclude that the
Employer has failed to sustain its burden of proving that
the objections, considered individually and as a whole,"
have been sufficiently proven to warrant upsetting the
election herein.
It cannot be said, particularly in the light of the
irregularities and mistakes hereinabove adverted to, that
the Board agents provided a " `laboratory,' as dreamed up
in General Shoe Corp., 1948, 77 NLRB 124, in which a
controlled experiment is conducted to `determine the
uninhibited desires of the employees.' "s' But the Board
has recognized that "Board elections do not occur in a
laboratory where controlled or artificial conditions may be
established." (The Liberal Market, Inc., 108 NLRB
1481). The test, as set forth by the Board in the cited case,
is as follows at p. 1482:
In deciding whether the registration of a free choice
is shown to have been unlikely, the Board must
recognize that Board elections do not occur in a
laboratory where controlled or artificial conditions may
be established. We seek to establish ideal conditions
insofar as possible, but we appraise the actual facts in
the light of realistic standards of human conduct. It
follows that elections must be appraised realistically
and practically, and should not be judged against
theoretically ideal, but nevertheless artificial, standards.
to the witness was sustained as being the rankest form of hearsay.
"General Shoe Corporation , 77 NLRB 124, 127
"N.L R.B. v. Houston Chronicle Publishing Company , 300 F.2d 273,
278 (C.A. 5).
"See Howell Refining Company v. N.L.R. B, 400 F .2d 213 (C.A. 5).
"See Shoreline Enterprises of America , Inc., v N L R B.. 262 F 2d 933,
942 (C A. 5).
THE REGENCY HYATT HOUSE 501
In this connection, we note that a realistic appraisal of
the effect of antecedent conduct upon a Board election
must, of course, be concerned with particular acts and
their effect upon those of the voters who are directly
involved; it must also be concerned, however, with the
overall picture of how the totality of the conduct affects
not only the voters directly involved, but any others
who may or may not be indirectly affected because they
are within the voting unit. In some cases, a nice
balancing of these considerations may be required.
Basically, we feel that the results of a secret ballot,
conducted under Government sponsorship and with all
the safeguards which have been developed throughout
the years, should not be lightly set aside. Like any
other contest in which the stakes are high, the losing
party is likely to protest the result, but this Board
cannot be influenced by any subjective considerations.
Our job is to make reasonably certain that the election
reflected the true sentiments of the voters. An
evenhanded application of an objective test is the best
protection against arbitrary administrative action.
Although Liberal Market was concerned with the effect
of antecedent conduct upon a Board election, it would
seem that the standard would similarly be applicable to
the alleged wrongful conduct raised by'the objections here."
Such conduct, too, 'must'be' appraised "`realistically and
"See, e .g., Polymers , Inc. 174 NLRB No 42
practically," in the light of human frailties. I cannot find
on this record that the evidence sustains the position that
the acts and conduct comprising the objections so
threatened, intimidated, and confused the electorate that it
can be said to be reasonably certain that the results of the
election did not reflect the true sentiments of the voters.
Accordingly, I shall recommend that the objections, in
toto, be overruled.
On the basis of the foregoing findings and conclusions,
and on the record considered as a whole, I hereby make
the following:
RECOMMENDED ORDER
1. The Employer's objections, and each of them, be
overruled.
2. The challenges to the ballots of the nine captains be
overruled, and the case be remanded to the Regional
Director for the purpose of opening and counting the said
ballots and issuing a revised tally of ballots to the parties.
3. Based upon the results of said revised tally of ballots,
the Regional Director shall issue a certificate of results or
certificate of representatives, as may be appropriate in the
premises.