Continental Investment Co.

National Labor Relations Board - Board Decisions

May 19, 1978

236 N.L.R.B. 237 (N.L.R.B. 1978)

CONTINENTAL INVESTMENT COMPANY
Continental Investment Company and Hotel-Motel.
Cafeteria & Restaurant Employees Local 327 affili-
ated with Hotel & Restaurant Employees and Bar-
tenders International Union, AFL-CIO, Petitioner.
Case 38 RC 2064
May 19. 1978
DECISION AND ORDER DIRECTING
HEARING
BY MEMBERS JENKINS, PENELtO. AND MURPIHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered the objections to an
election held on March 31, 1977,' and the Regional
Director's report recommending dispositon of same.
The Board has reviewed the record in light of the
exceptions and hereby adopts the Regional Direc-
tor's findings and recommendations with respect to
Petitioner's Objections I through II.' However. for
the reasons hereinafter stated, we find that a hearing
is required with respect to Petitioner's Objection 12.
Concerning Objection 12, the Petitioner asserts in
this objection that the Employer told employees that
it would spend any amount of money and take any
action necessary to prevent Petitioner from being
chosen as the employees' bargaining representative.
The record contains affidavit testimony by an em-
ployee that a few days before the election he was told
by his supervisor that if the employee "went union"
the supervisor could have a whole new crew come in.
In disposing of the objection. the Regional Director
assumed, arguendo, that the statement was made and
that it could be construed as a threat. IHowever, he
concluded that, even on this basis, the conduct *would
not warrant setting aside the election because it "was
the only such statement made during a 2-month caim-
paign involving some 240 employees.
In our view, there is nothing isolated about a state-
ment which, if made, can only he taken as a direct
threat to fire a whole work crew if the Union were
successful in the election. It is difficult to think of
any statement which could be more destructive of the
employees' free choice in the election. It matters little
that the statement mav have been addressed to onl'
one employee because it would be totall, unrealistic
Ihe t ietitn was cnduclted pursuant to, a Slipulation fir (CI e lfi amtlln
I pon ( onsent Elecci, n The 1alls' u, 34 for. andt 132 i:gaini. the Pen-
honer: there ere w 17 challenged hillols. an insufficien nlinmbr I, affet lie
results
o I ,r the reasons set forth in our opls.ion. >e tind that a healrine in
Petlltioer's Ob()ection II is nots arranted
to assume that a threat of such a serious nature
would not be conveyed to others, especially when
their own job security was being jeopardized.3 There-
fore, as the evidence with respect to Objection 12
raises substantial and material issues of fact and law
which could warrant setting aside the election, we
conclude that these matters must be resolved through
a hearing.
Accordingly, we shall direct that a hearing be held
for the purpose of receiving evidence relevant to Ob-
jection 12.
We shall not. however, hold a hearing on Objec-
tion I1. We are unable to construe as a threat the
Employer's alleged statement to employees that at
least one union had canceled its convention at the
hotel because of threats by the Petitioner to call a
strike of the employees, thereby harming the employ-
ees' potential income. The first thing about his re-
mark is that. whether true or false.4 it concerned a
past event and its possible consequences as regards
the employees' income: it did not refer to the future,
as would a threat. Second. the statement referred not
to an'y action which the Employer took, or might
take, but to the conduct of a union over which the
Employer clearly had no control. In N.L.R.B. v. Gis-
scl Packing Co., 395 U.S. 575, 618 (1969). the Court
defined a threat as "any implication that an em-
ployer may or may not take action solely on his own
initiative for reasons unrelated to economic neces-
sities and known only to him." In short, then, be-
cause the Employer's statement concerned a past
event which the Employer had no power to affect for
his own ends. it amounts at most to an inaccurate
statement, not a threat. Such statements no longer
form a basis for overturning an election. Shopping
Aarlt Food MarA-et, Inc.. 228 NLRB 1311 (1977).
ORDER
It is ordered that a hearing be held before a duly
designated hearing Officer for the purpose of receiv-
ing evidcnce to resolve the issues raised by Petition-
er's Objection 12.
Il Is It RIIII R ORD)iERIED that the Hearing Officer
designated for the purpose of conducting such hear-
ing shall prepare and cause to be served on the par-
ties a report containing resolutions of the credibility
of witnesses. findings of fact. and recommendations
to the Board as to the disposition of said objection.
Within 10 dai's from the date of the issuance of such
report. either party may file with the Board in Wash-
ingtonn. D.C., eight copies of exceptions thereto. Im-
See .ltiili',,mr i BIard & ( o I. l ri , iorated. 232 NLRB 848 t 19771
I'e ltlltler' i o hje titn alleted onlIs that the statement was false. not that
iI o,.ltitlted .' threat
236 NL.RB No. 38
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediately upon filing of such exceptions, the party
filing the same shall serve a copy on the Regional
Director. If no exceptions are filed thereto, the Board
will adopt the recommendations of the Hearing Offi-
cer.
IT IS FURTHER ORDERED that the above-entitled mat-
ter be, and it hereby is, referred to the Regional Di-
rector for Region 13 for the purpose of conducting
such a hearing, and that the said Regional Director
be, and hereby is, authorized to issue notice thereof.
MEMBER JENKINS. concurring in part and dissenting
in part:
I join with my colleagues in overruling Petitioner
Objections 1 through 10. I also agree that Objection
12 raises issues which would best be resolved in a
hearing, and I join in the part of the opinion that
directs a hearing on this matter. However, I disagree
with the majority's refusal to order a hearing on Ob-
jection 11. In my view, this matter, like Objection 12,
raises issues best resolved in a hearing.
In Objection I 11, the Petitioner alleged that during
a meeting conducted by the Employer with its em-
ployees the Employer made the statement that at
least one labor organization had canceled its conven-
tion at the hotel because of threats by the Petitioner
to call the employees out on strike, thereby harming
the employees' income. The Union asserted that the
true reason for the cancellation was that the hotel
was nonunion. The Regional Director treated this
matter as an alleged misrepresentation and, relying
on the recent pronouncement by the Board in Shop-
ping Kart Food Market, Inc., 228 NLRB 1311 (1977).,
he concluded that such conduct does not warrant set-
ting aside the election.
Aside from my' general disagreement with the doc-
trine espoused in the Shopping Kart decision,' I con-
strue the aforementioned statement as a possible
threat to the employees' job security. In other words,
the employees were in effect told that support for the
Union could result in a loss of business to the Em-
ployer and, consequently, a loss of jobs among the
unit employees. A statement of this type can be con-
sidered unobjectionable only Cxhere the employer
meets the burden of demonstrating that such is a rea-
sonable foreseeable circumstance which is entirely
beyond the employer's power to control. 6 There is no
evidence that the burden was met in this case.
In the majority's view, however. the Employer's
statement concerned a past event and was therefore
only relevant to employee income not realized as a
result of the convention cancellation and that the
See the dissenting opinions filed in that case by Chairman Fanning and
me.
t V 1. R B ' (;i el Pw'Aiwg C<,. 35 U. S. 575, 618 (1969)
statement had no bearing on future income as would
a threat. The majority further reasons that the state-
ment referred to the conduct over which the Em-
ployer had no control and, thus, it should not be
deemed a coercive threat under the standards set
forth in Gissel.
I do not accept the position that the Employer's
statement about the reason for the convention can-
cellation referred only to a past event and that it was
not suggesting the likelihood of similar cancellations
in the future. The Employer told his employees that a
union had canceled its plans to use the Employer's
facilities because it feared strike activity by the Peti-
tioner. This at least implies that other unions plan-
ning to use the Employer's facility would also cancel
for the same reason. This has the effect of telling the
employees that support for the Union could result in
a loss of business to the Employer and, consequently,
a loss of jobs among the unit employees. This has
direct bearing on employee income and, if, in fact,
such a threat were made to employees, it would pre-
dictably interfere with the employees' choice in the
election.
I also do not accept my colleagues' position that
the Employer's statement referred to the conduct of a
union over which the Employer had no control. It is
true that the Employer had no ultimate control over
whether the union would have canceled its plans to
have its convention at Employer's facility or not. But
that is not the issue. What is at issue is the Employ-
er's statement implying that a reduction in the work
force--a loss of jobs within the unit-would occur if
the employees selected the Petitioner as their repre-
sentative. Mere representation of employees by a
union cannot be equated with the automatic likeli-
hood of strikers and a subsequent loss of jobs. The
Employer has the burden under Gissel of demon-
strating the reasonable predictability of the dire con-
sequences it portends will occur. The Employer has
not even attempted to meet such a burden in this
case and, in the absence of such evidence, I am un-
willing to assume, as does the Employer and appar-
ently also my colleagues, that the Union would act in
a manner designed to reduce the job opportunities
for the unit employees which it represents.
The majority's holding that the Employer's state-
ments referred to conduct of a union over which the
Employer had no control does not address the real
issue, and I cannot accept it. The Employer's asser-
tion about cancellation of patronage and the reason
therefor plainly had a tendency to influence the em-
ployees' views concerning the desirability of union
representation, and its truth or falsity is thus a mate-
rial issue which can only be resolved by a hearing. I
would direct a hearing on Objection II.
238