Westwood Horizons Hotel

National Labor Relations Board - Board Decisions

May 18, 1984

270 N.L.R.B. 802 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westwood Horizons Hotel and Culinary Workers
and Bartenders Union, Local No. 814, AFL-
CIO, Petitioner. Case 31-RC-5351
18 May 1984
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 13 August 1982 and the hearing offi-
cer's report recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement. The tally of ballots shows
46 for and 24 against the Petitioner, with 2 chal-
lenged ballots, an insufficient number to affect the
results, and 4 void ballots.
The Board has reviewed the record in light of
the exceptions and brief, and has decided to adopt
the hearing officer's findings' and recommenda-
tions only to the extent consistent with this deci-
sion.
The Employer operates a hotel in Los Angeles,
California. In the summer of 1982, the Petitioner
commenced an organizing campaign among the
hotel's kitchen, dining room, housekeeping, and
laundry employees. About 2 weeks before the
Board election, Francisco Marcial, 2 a prounion em-
ployee, told employee Jesus Luna, in the presence
of three prounion employees and two or three
other employees, that he would beat Luna up if he
did not vote for the Union. Marcial then said that
he would beat up employees Ignacio Garcia and
Fernando Fuentes, who were not present, and also
any other employee who did not vote for the
Union. Arturo Naharo,3 another prounion employ-
ee present, also threatened to beat up Garcia,
Fuentes, and Luna, and anyone else who did not
vote for the Union. Luna replied that he was with
"them," that he would vote for the Union "so that
they would not . . . comply with their threats and
beat [him] up."
On election day, Garcia was working in the
hotel's kitchen when Marcial approached him and
said "let's go vote." When Garcia said that he
would vote later, Marcial said that Garcia had to
The Employer has excepted to some of the hearing officer's credibil-
ity findings. The Board's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Stretch-Tex Co.,
118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings.
I The hearing officer's report misspells Francisco Marcial's last name
as "Marciel."
a Arturo Naharo's last name is also spelled "Najarro" in parts of the
transcript.
270 NLRB No. 116
go with him immediately. Marcial then grabbed
Garcia's upper right arm and held it during the 5-
minute walk to the voting area.
Marcial still held Garcia's arm as they entered
the voting area in the hotel's garage. 4 Naharo then
told employee Ronnie Torres, one of the 15 em-
ployees waiting to vote, that Marcial had used
force to bring Garcia to the voting area. When
several of the employees waiting to vote began
saying that Marcial had used force to bring Garcia
to vote, Marcial just laughed. Marcial then put
Garcia at the front of the line of employees waiting
to enter the voting room to vote. 5 Marcial was
ahead of Garcia as they entered the voting room
together. When the Board agent handed a ballot to
Marcial, he, in turn, handed it to Garcia. The
Board agent told Marcial to keep his ballot and
then gave one to Garcia. Marcial and Garcia then
voted. 6
After he voted, Marcial, with three other proun-
ion employees, went to the hotel's front desk
where Fuentes was using the public address system
to release employees from work by department to
vote in the election. Fuentes was another of the
employees Marcial and Naharo threatened 2 weeks
earlier. Marcial told Fuentes, who had planned not
to vote: "Friend, Fernando, you have to go vote
now." When Fuentes explained that he could not
because he was still announcing, Marcial told
Fuentes that "if you don't go now, you'll go by
force with us." Wilfredo Sanchez, one of the
4 The hearing officer stated that "[t]here was no testimony that
Marci[a]l continued to hold Garcia's arm while they were in the garage
area." Garcia, however, testified that Marcial still held his arm when
both entered the voting area. We rely on Garcia's testimony because we
believe that the hearing officer, in stating that there was "no testimony"
on this point, simply overlooked Garcia's testimony rather than discredit-
ed it.
6 The voting took place in a small room in the hotel's garage. Employ-
ees lined up outside the room, and not more than four employees entered
the room to vote at any one time.
6 The hearing officer stated in the "Credibility Resolutions" portion of
her report that she did not credit Garcia "except as expressly noted." It
is clear from the report as a whole, however, that the hearing officer,
while totally discrediting Garcia's testimony about threats, generally
credited his testimony about his being forced to vote. In setting forth a
"summary" of the credited forcible voting incident involving Garcia, the
hearing officer failed to mention Garcia's testimony that Naharo com-
mented to Torres that Marcial had used force to bring Garcia to the
voting area and that several of the employees waiting to vote repeated
Naharo's comment to one another. While the hearing officer noted that
Garcia's testimony was "often vague, conclusionary and subjective,
making it extremely difficult to determine whether Garcia testified what
he felt or concluded versus what was in reality stated to or done to him,"
we do not believe that she discredited his testimony on these points. Gar-
cia's testimony on these points, unlike his specifically discredited testimo-
ny on whether Marcial attempted to mark his ballot and vote for him,
was not "vague, conclusionary [or] subjective," and the Petitioner did
not call Marcial, Naharo, or Torres to contradict Garcia. Accordingly,
we rely on all of Garcia's testimony about events occurring in the voting
area, even though not specifically detailed in the hearing officer's report,
except for Garcia's testimony that Marcial attempted to vote for him.
802
WESTWOOD HORIZONS HOTEL
prounion employees, told Fuentes: "Don't be
stupid. You have to go with us."
While taking him to vote, Marcial told Fuentes
that he had to vote yes. Hector Hurtado, another
of the prounion employees, told Fuentes: "You
have to vote yes. Don't be stupid." Then, as
Fuentes stood in line to vote with Luna (the third
employee threatened 2 weeks earlier) and 10 other
employees, Marcial and 6 other prounion employ-
ees who had already voted stood on both sides of
the voting line and kept repeating, "Vote for the
Union," "Vote Yes, Vote Yes." This activity con-
tinued for about 3 minutes until the Board agent
came to the doorway of the voting room and told
the prounion employees to leave. They left the
area for a few seconds, but returned and continued
to repeat, "Vote Yes." The prounion employees
continued this activity right outside the voting
room for about 10 minutes.
We agree with the hearing officer that, because
there is no evidence of union involvement in the
misconduct, the test to be applied is whether the
misconduct was so aggravated as to create a gener-
al atmosphere of fear and reprisal rendering a free
election impossible. 7 We disagree, however, with
her conclusion that the misconduct, even when
considered cumulatively, was not so aggravated
that it denied the employees a free expression of
choice.
In deciding that the election should not be set
aside, the hearing officer erroneously concluded
that the threats employees Marcial and Naharo
made 2 weeks before the election were not very se-
rious because they were directed at only three em-
ployees. We have held, however, that whether a
threat is serious and likely to intimidate prospective
voters to cast their ballots in a particular manner
depends on the threat's character and circum-
stances and not merely on the number of employ-
ees threatened. s In determining the seriousness of a
threat, the Board evaluates not only the nature of
the threat itself, but also whether the threat encom-
passed the entire bargaining unit; 9 whether reports
of the threat were disseminated widely within the
unit;'° whether the person making the threat was
I Diamond State Poultry Co., 107 NLRB 3, 6 (1953); P D. Gwaltney. Jr.
d Co., 74 NLRB 371, 379-380 (1947). See also NLRB v. Griffith Oldsmo-
bile, 455 F.2d 867, 870 (8th Cir. 1972).
8 Steak House Meat Co., 206 NLRB 28, 29 (1973) ("the fact that the
threats were directed at only one employee does not necessarily lead to
the conclusion that no general atmosphere of fear and coercion existed").
9 Anchor Inn Hotel of St. Croix, 262 NLRB 1137, 1139 (1982); Zeiglers
Refuse Collectors v. NLRB, 639 F.3d 1000, 1005 (3d Cir. 1981).
10Westside Hospital, 218 NLRB 96 (1975); Zeiglers Refuse Collectors v.
NLRB, supra at 1005.
Member Hunter presumes that threats are disseminated in the absence
of evidence to the contrary.
capable of carrying it out, and whether it is likely
that the employees acted in fear of his capability of
carrying out the threat;'i and whether the threat
was "rejuvenated" at or near the time of the elec-
tion. 1 2
Applying this test, we find that the threats, when
considered with other misconduct occurring on the
day of the election, did create a general atmos-
phere of fear and reprisal that interfered with the
election. Marcial and Naharo threatened to beat up
not only employees Garcia, Fuentes, and Luna, but
also any other employee within the bargaining unit
who decided not to vote for the Union. These
threats were disseminated to some extent within
the unit, because two or three employees, not
shown to be union adherents, were present when
the threats were made.'3
On election day, Marcial and other prounion em-
ployees rejuvenated the threats by physically
taking Garcia to the voting area and by forcing
Fuentes to vote and telling him to vote for the
Union, even though, as Fuentes later testified, he
did not want to vote at all. Not only were Garcia
and Fuentes likely to be intimidated by such con-
duct, but so also were the 15 other employees wait-
ing in line to vote who saw Marcial bring Garcia
to the voting area and heard prounion employee
Naharo tell one of the employees waiting in line to
vote that Marcial had used force to bring Garcia to
the voting area. Marcial and six union adherents
further intimidated Fuentes, Luna, who was stand-
ing in line behind Fuentes, and the 10 other em-
ployees waiting in line to vote by continually re-
peating for about 10 minutes that the employees
should vote for the Union.14
"L Anchor Inn Hotel of St. Croix, supra at 1139; Zeiglers Refuse Collec-
tors v. NLRB, supra at 1005.
II Hamilton Label Service, 243 NLRB 598, 599 (1979); Cross Baking
Co., 191 NLRB 27, 28 (1971), affd. on this point 453 F.2d 1346, 1348-
1349 (Ist Cir. 1971).
's Marcial and Naharo made their threats in the presence of about five
employees. Because two of them-Hector Hurtado and Benjamin Rodri-
guez-were union adherents, it is not likely that the threats had any
effect on them. It is likely, however, that the threats had a tendency to
intimidate or coerce the other employees.
"4 The hearing officer concluded that the union adherents did not
engage in impermissible electioneering in the voting area because "the
'voting area' is limited to the room in which the balloting actually took
place and does not include any area outside the voting room." The hear-
ing officer, however, overlooked Board precedent that defines a "voting
area" as including the place where the votes are actually cast-in this
case, the room inside the garage-and the area where the employees line
up waiting to vote. Boston Insulated Wire Co., 259 NLRB 1118, 1119
(1982); Pastoor Bros. Co., 223 NLRB 451 (1976); Marvil International Se-
cunty Service, 173 NLRB 1260 (1968); Harold W Moore d Son, 173
NLRB 1258 (1968).
The Board's normal policy on electioneering is inapplicable here, be-
cause it bars any prolonged conversations between parties to the election
and employees waiting in line to vote. Milchem. Inc., 170 NLRB 362
(1968); Boston Insulated Wire Co., supra at 1119 fn. 11; Robert's Tours, 244
NLRB 818 fn. 6 (1979), affd. mem. 633 F.2d 223 (9th Cir. 1980). Rather,
Continued
803
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because an election cannot stand whenever con-
duct disruptive or destructive of the exercise of
free choice by the voters occurs, regardless of
the test to be applied is whether the conduct of the prounion employees,
who were not shown to be agents of the Union, was so disruptive as to
require setting aside the election. Boston Insulated Wire Co., supra at 1119
fn. Ii; Robert's Tours, supra at 818 fn. 6. We need not decide whether the
conduct of the prounion employees in the voting area was sufficient by
itself to set aside the election, however, because we conclude that it was
part of an impermissible pattern of conduct by prounion employees that
precluded holding a free election.
whether the person responsible for the misconduct
is an agent of a party to the election or simply an
employee, we find merit in Employer's Objections
1, 2, 3, 4, 8, and 9 to the election.1 6 Accordingly,
we conclude that this election must be set aside
and a new election held.
[Direction of Second Election omitted from pub-
lication.]
" We agree with the hearing officer that Employer's Objections 5, 6,
and 7 should be overruled.
804