Gate of Spain Restaurant Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1091 (N.L.R.B. 1971)

GATE OF SPAIN RESTAURANT CORP.
Gate of Spainf Restaurant CorporationI and Culinary
Workers and, _Bartendders Union Local No. 814,
Hotel and Restaurant Employees and'-Bartenders
International Union , AFL-CIO. Cases 31-CA-
2055and 31-RC-1519
August, 27, 1971
DECISION, ,,ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MIL7,ER AND - MEMBERS BROWN
AND JENKINS
On April . 13,, _1971, Trial Examiner Maurice
Alexandre issued his Decision in, the above-entitled
proceeding, finding that Respondent had' engaged in
and was engaging in certain unfair labor practices
within the meanng of the National Labor Relations
Act, as amended, and recommending that, it 'cease
and desist therefrom' and take certain affirmative
action, as set forth- in' the attached ,Trial Examiner's
Decision. The Trial Examiner also found that certain
conduct of Respondent interfered with the -election
which had been conducted pursuant to stipulation of
the parties in Case 31-RC-1519, and recommended
that the election be set- aside, the petition in Case
31-RC-1519 be dismissed, and a bargaining order be
issued . Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision together with a
supporting brief.
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 'proceeding 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 Decision, the exceptions and brief, and
the entire record in this proceeding and, finding
merit in certain of Respondent's exceptions, adopts
the findings, conclusions, 'and recommendations of
the Trial Examiner only, - to the extent consistent
herewith.
We agree that Respondent violated Section 8(a)(1)
of the ,Act in the instances and manner set forth by
the Trial Examiner in his Decision. We also agree
that certain of the Union's objections to the election
1 The name of this party appears as amended at the hearing.
2 Joanna Western Mills Co., 119 NLRB 1789, 1791 ; West Texas
Equipment Company, 142 NLRB 1358, 1360 ; Jasper Pool Car Service, Inc.,
175 NLRB No. 167.
3 Brancato Iron Works . Inc., 170 NLRB 75; Breaker Confections Inc., 163
NLRB 882, 887 . Cf. N.L R.B. v_ Security Plating Company, Inc., 356 F.2d
725 (C.A. 9); Snyder Tank Corporation 177 NLRB No. 94 ; Lake City
Foundry Company, Inc., 173 NLRB 1081, 1095 ; Holmes Foods, Inc., 170
1091
conducted in Case 31-RC-1519 are meritorious and
require us to set aside that election. In reaching this
conclusion, however, we have considered only those
objections to the election which occurred on or
subsequent to the- date on which the petition was
filed.2 Finally, we do not agree with the ' Trial
Examiner's finding that the Union' represented a
majority of the unit employees or with his -recom-
mendation that a bargaining order should issue.
The appropriate unit consists. of 45 employees, 26
of whom had signed' cards which, in printed English,
clearly and unambiguously authorized the Union ,to
represent the signatories =thereof for collective^bar-
gaining purposes. There is no meritorious dispute
concerning 16 of the cards. The remaining cards were
signed by Mexican employees, some of whom are
unable to read, write, speak, or understand English.
The record shows- that, among others in this group,
Jiminez, Garcia, , and Modesto were" completely
unaware of the existence of the Union at the time
they signed their cards, that-they-had a complete lack
of understanding of the purpose ,or function of `a
union, that they did not know either, the purpose -'of
an authorization card or the-effects of their signa-
tures thereon, that no one explained that purpose or
effect to them, that they did' 'not understand -that
purpose even when, at the hearing,, they'read that
section of the ballot explaining_that'purpose, and
that they affixed their 'signatures to -their cards, and
voted, for` purposes other than set forth on the cards.
In these circumstances, we find, contrary to the`Trial
Examiner, that these three employees ' did not
authorize or intend to authorize the Union`' to
represent them or` to bargain on 'their behalf when
they signed the cards they could not read.,Accord-
ingly, we shall not count these- . three cards.3
We also find, in agreement with`theTrial`Examin-
er, that the authorization cards ' signed by Earajas and
Nevarez are invalid and `cannot 1be counted because
they signed their ' cards - in reliance on . the - material
misrepresentation that the purpose of the cards was
"to get rid of the assistant manager." 4
Therefore, since the Union at best 'had valid
authorization cards from -only 21 of the 45 employees
in the appropriate bargaining unit, we find,, contrary
to -,the Trial Examiner, that the Union, did not
represent -a majority °'of' the unit employees 5
Inasmuch as the Union lacked majority status, the
bargaining order recommended by the Trial Examin-
NLRB 376; River Togs Inc., 160 NLRB 58,65; Lifetime Door Company, 158
NLRB 13, 21-22; Freeport Marble & Tile Co., Inc., 153 NLRB 810, 822, 824.
4 The record indicates an antipathy between many of the Mexican
employees and Respondent's assistant manager who, these employees
believed, was prejudiced against them.
5 In view of our findings herein, we deem it unnecessary to pass on the
validity of other authorization cards in dispute.
192 NLRB No. 161
1092 DECISIONS OF NATIONAL. LABOR' RELATIONS BOARD
er is,-notc an. ,appropriate remedy herein. ^ However,
Respondent's unfair,labor practices ,, as reflected in
the objections to.the election , which fall within the
purview of our consideration ;,,are not so insubstantial
or limited in their ;impact as to ,have had no material
effect on the results of the election ., We find,
therefore, -;that -.by-,announcing,. on the date the
petition wasyfiled, its intent , to effectuate new health,
welfare , and, dental plans ,., as-well as a, wage, increase,
and by_,effectuating that intent a few days later,
Respondent , interfered with the employees' free
choice , in the election, which was conducted in Case
31-RC-1,519 . Accordingly, we shall set aside .the
election and direct a new election.
ORDER
Pursuant to, Section ,1.0(c) of the, National Labor
Relations,. Act, , as amended, the National Labor
.Relations Board adopts -as its Order the recommend-
ed Order of the Trial Examiner ,as modified below
and, hereby orders ,that Respondent, "Gate, of Spain
Restaurant Corporation, Los-Angeles,,, California,. its
officers, agents, successors, and assigns, shall-take the
action,set forth in the Trial Examiner's recommend-
ed Order, as so modified:
1. . Delete, paragraph B, 1, of the Trial Examiner's
recommended, Order and renumber paragraphs B,2,
and B, 3, as . B, I, aid B, 2, respectively.
2. Delete the last paragraph of the Trial Examin-
er's ree'ornmended Order.
3. Substitute thc_ attached Appendix for, the, Trial
Examiner's Appendix.
'IT, IS FURTHER =ORDERED that the: election held on
September4, 1970, among Respondent's employees
be,, and'-, it hereby-' is, set aside, and that Case
3 1-RC-1519 , be,', arid it hereby, is, remanded to the
Regional Director for Region 3I for, the purpose of
conducting a new selection ,at such; time as he deems
circumstandes„permit the-free, choice of a b'ar'gaining
representative.
[Direction oI. Second Elections omitted from
publication.]
s In order, to` assure that all eligible -voters may have the opportunity Ito
be informed of the issues,in the exercise of their statutory right to vote, all
parties to. the election should have ` access to a: list of voters and their
addresses "Twhic1s may ben --used to coinmumcate with them . Excelsior
Underwear Inc., 156' NLRB 1236; N.L.R.B. v . Wyman-Gordon Co, 394 U.S.
759. Accordingly, it is hereby directed- 'that an election eligibility, list,
containing the names and addresses of all the ehgiblevoters , must be filed
by the, Employer with the Regional Director = forRegion 31 within, 7 day's
after the date of issuance of the Notice of Second Election by the Regional
Director ..The Regional Director, shall make the listavailable to,allparties to
the election. No extension - of'time to file ` this list shall be granted by' the
Regional Director except in ' extraordinary circumstances . Failure td comply
with # this-requirement .shall'be ag'rounds _for, setting aside they election
whenever proper objections are, filed,,.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER _ OF THE
NATIONAL; LABOR RELATIONS. BOARD
An Agency ` of, the -United Stales Government
"'WE =WILL'NOT unlawfully 'question our employ-
ees.
WE WILL NOT promise our employees wage
increases or other benefits to induce themmi'to'vote
against unionization.
WE ' WML" NOT grant our' employees _ wage
increases or other' enefit's to induce then; to vote
against unionization.
'WE WILL" NO'f `in any other - manner` interfere
with; 'r'estrain, 'or coerce our employees in the
exercise of their rights guaranteed' by the National
Laborltelations A'ct.
GATE 'OF - SPAIN`
RESTAURANT
CORPORATION ` -
(Employer)
Dated By
(Representative) (Title)
, This;ais an official notice and must not be defaced
by anyone.,
This notice, must remain posted-If or 60 consecutive
days from ' the date of posting and must-not be
altered,, defaced, or coveTed, by any other material.
Any questions concerning, this, notice or ; compli-
ance with, its ` provisions may,,, be , directed „to . the
Board's Office, Federal Building,. Room-,121Q10, 11000
Wilshire Boulevard, Los Angeles, ,California 90024,
Telephone 213-824-7351. - ,
TRIAL EXAMINER'S }DECISION
- MAURICE ALE%ANDRE, Trial ' Exaniiiier: On July 29;
1970,1 Culinary Workers Local 814 filed a petition for
certification as collective-bargaining; representative - of
Respondent's employees. On August. 6, Respondent and
Local 814 entered into a, Stipulation for Certification Upon
Consent Election. An .election was conducted, on, Septem-
ber 4, at which time 39 ballots were cast, of which 15 were
A Alt dates hereafter mentioned. refer to 1970 unless ,otherwise stated.
GATE OF SPAIN RESTAURANT CORP. - 1093
for Local 814,23 were against, and one was-challenged. On
September 11, Local 814 filed objections to conduct; by
Respondent affecting the election , together with - an unfair
labor practice charge. On September -14, Respondent filed
its- -response-, to the objections. On' November -9, the
Regional Director issued a complaint; based on the said
charge, alleging. that Respondent had violated Section
8(a)(1) of the National Labor Relations Act, as amended.
On the same date," the Regional Director issued a report on
the, objections filed, by Local- 814 in which-he concluded
that -the issues raised by the objections could best be
resolved-, at the • hearing, upon the complaint, and -he
accordingly consolidated the two matters -for the:.hearing.
In its answer to the complaint;, Respondent denied the
commission ,of - the unfair labor practices -alleged. The
consolidated proceedings were heard, in Los Angeles,
California, on January 5, 6; and 7, 1971. The issues
presented are (1) whether, or not -Respondent unlawfully
interfered' with, restrained, and coerced employees; and (2)
if so, whether or .not a bargaining order is warranted. The
latter issue turns in part, on whether or not Local 9,14 had a
majority.
Upon the entire record, my observation-of-the witnesses,
and the briefs filed by the General Counsel and 'the
Respondent, I make the following:
FINDINGS AND CONCLUSIONS 2
1. THE UNFAIR LABOR PRACTICES
Respondent, a subsidiary corporation of Specialty
Restaurants Corporation, is engaged in the business of
operating a public restaurant known as Gate of Spain in
Santa Monica , California. The managerial hierarchy at all
material times included the following individuals: Joseph
Alvarado--Respondent's restaurant manager, , Jack
Nichols-Respondent's budget v director and the adminis-
trative controller of Specialty Restaurants Corporation,
and Kenneth Dennis vice president and division manager
of specialty Restaurants Corporation. On July 24 and 25, a
number of Respondent's employees signed authorization
cards designating Local 814 as their bargaining representa-
tive (see infra). It is undisputed that the following incidents
took place on and after the latter" date:
1:' About 5:30 p.m. on July 25, Alvarado • asked
Employee Chymbur whether he had received one of the
Union cards that were being passed'around. -
2. About 11:30 + 'p.m. on July 25, Alvarado told
Employees Escala, Hunter, and Kotero thathe had heard
rumors that 'somebody was passing out Union cards and
asked them what they knew about it and about the Union,
why they wanted a union, and what were the employees'
grievances . Escala and Hunter ' told Alvarado that the
employees were unhappy about Respondent's health and
welfare plan, its dental plan, the rotation of work stations,
the frequent change in managers , the lack of communica-
tion between management and employees, job security,
and wage scales. Alvarado agreed with most of their
grievances, implied that he would try to correct-them, and
stated that he would try to arrange a meeting at which they
could repeat their grievances to Dennis. ,
3. During the afternoon of July 27,uDennis and Nichols
asked Employees Escala , Chymbur, and Cosio about their
complaints, and the three employees repeated the various
matters- which troubled them . Ennis and Nichols agreed
that working conditions were not'satisfacto y, promised to
correct some of- the complaints, and stated that- they, would
investigate the others. Specifically,. they promised to clean
up; the men's room, to rotate Chymbur, s -work, station in
view of his seniority , to ascertain whether better insurance
plans could be obtained for the employees and to have an
insurance man talk to them, and to give preference in work
assignments to senior employees in accordance with
company policy. " -
A. At a -meeting of unit - employees on, July 29,
Respondent announced that a new health ,and welfare plan
and a- new dental plan would become effective August 1,
and an insurance representative explained that the pro-
posed plans -were , superior ,to "the union plan." The_ new
plans were-'put-into-effect on the latter date. -
5. -On July 29, Respondent posted on the;, restaurant
bulletin board an announcement that the minimum wage
rates of unit employees would be increased as of August 1,
because wage rate increases under Local 814's contract
would go into effect on- that ,date , and because it was
Respondent's policy to pay to its employees. wage, rates
equal to or greater than Union rates in the area :-On,_that
date, a number of unit employees-received =wage increases.
6. During their conversation - on,9July ,2-7, Dennis, nand
Nichols told Employees , Escala, Chymbur, and Cosio that
they intended to call a general meeting- of employees at
which the latter would elect new employee -members to,the
profit-sharing committee which, together with company
members, jointly , administered a profit-sharing, fund
maintained by Respondent. At that time1 the, committee
was inactive and there was a backlog of unpaid claims
against the fund. They asked Chymbur, who had been on
the old committee, why nothing. had :been -done about the
backlog. Chymbur^ replied ; that no, information could be
obtained from Respondent 's central-- office.,`They -- then
stated that the situation would be remedied by the new
committee. The, general meeting was held in Aught, at
which time, Alvarado and-other company representatives
addressed - the meeting. After they left,-,the -employees
elected their representatives to the committee. -
The General Counsel contends that, the above incidents
involved unlawful interrogation, promises to remedy
grievancesand otherwise improve terms-and-conditions of
employment, and effectuation of such promises., In its
brief,,`Respondent does not discuss Alvarado's;interroga-
tion of Chymbur -on July 25 . With respect to Alvarado's
interrogation " of -and ; promisesto Employees Escala,
Hunter, and Kotero later - the same day,, Respondent
contends that their "discussion" was not utdawful because
it was held in response to employee complaints,because
the three men were given an opportunity to, air their
grievances in a totally noncoercive atmosphere, and
2 No issue of commerce is presented. The complaint alleged and within the meaning of the Act. I.further find that Local S14 is, a- labor
Respondent admitted facts which , L find, establish that Respondent is an organization within the meaning of the Act. -
employer engaged in commerce and in operations affecting commerce
1094 DECISIONS ^ OF NATIONAL LABOR RELATIONS BOARD
because at 'worst the meeting represented one isolated
instance of discussion with, only-2 out of 45 employees.
With - respect to-the incident on July 27, Respondent
contends ` that no -promises of improved benefits were
made . I agree with the'General Counsel.
The undenied interrogation " on July 25 regarding Union
activity was,unlawful because it was not accompanied by
the necessary safeguards , i.e., the existence of a valid
purpose for obtaining the = information sought , communica-
tion of such purpose to the ,questioned employees, and
assurances that there would be no reprisals against them.
The undenied promises of benefit improvements on July 25
and 273 were similarly unlawful because they were clearly
designed to-discourage the unionization attempt , of which
Respondent was aware. In the light of the entire record, it
is obvious that none,of Respondent's unlawful conduct can
be regarded as isolated.
Respondent 'further contends in its brief that neither the
wage increase nor the "improvement in insurance benefits
adopted on August 1 constituted unlawful conduct.
Respondent does ' not advance any reason which would
support its,contention: regarding the improved insurance
benefits,', And-1 know, of none .,, Respondent knew -of , the
unionization attempt as early as July 25 ;. it announced the
now insurance =plan on July 29, the day on which the
petition for certification was filed ; the announcement was
coupled .with an explanation of why the-planwas superior
to the "union" plan; and the plan was permitted to become
effective August 1 , i.e., after Respondent had received the
petition.4 I accordingly find '- that the announcement and
adoption of the improved insurance benefits were timed to
discourage =the employees from unionizing and hence were
unlawful.
With-respect to the wage increase, Respondent contends
that it, was adopted pursuant" to its parent's established
policy of requiring its nonunion restaurants=to pay to their
employees wages equal to or better , than those paid to
union employees in' the area, who ,were scheduled to
receive-anincrease on-August I under Local °814's contract.
The difficulty with this contention is that therecord -fails to
establish that Respondent and its parent have adhered to
such a policy. ,The responsibility for, reviewing the wages
paid by-Respondent and other restaurants operated by its
parent - was , in the-„hands of Nichols, an official of the
parent.- On June 10,° 1968, Nichols notified.Respondentand
three other Specialty restaurants that their-wages did not
reflect company, policy. On February 12, 1970, he sent a
similar notification to one of Specialty's restaurants, but
testified, he was .not certain whether he .had sent such a
notification to Respondent at that time . , He further
testified , that he , made no review of Respondent's wages in
1969, and that hedid not know whetherrRespondenthad in
fact increased its, wages to meet the rates provided by the
Union contracts . effective - on September 30, 1968, and on
August ' 1,' 1969. The evidence shows that it had not. Thus,
a It is true as Respondent points out, that Chymbur testified that Dennis
and Nichols did not `promise to correct all the grievances described on July
27. However, the 'record established, that they' did agree to correct some of
them.
* See, Respondent's letter of September 14 filed rn response to Local
814's objections. -
S Banuelos, Barajas, Luis Casillas, Nevarez, and Talavera.
immediately prior, to August 1, 1970, Respondent respec-
tively -paid $10.00, $12.96, and $9.20 for an, 8-hour day to
its busboys,5, dishwashers ,6 and waiters.? Yet the Union
contract rates for those categories,as early as September 30,
1968, were ' $ 10.50, $ 13.75, and $9.85. Immediately prior to
August 1, 1970, -Respondent respectively-paid. $ 16.49 and
$9.20 for an 8-hour day-, to its .-pantrymen s, rand cocktail
waitresses .9 Yet the -, Union contract rates- for, those
categories as early as August 1, -1969 , were $ 19.50 , and
$11.35 . 1 accordingly ;find;that prior to the adoption of its
wage increase on August 1, 1970, Respondent had not
adhered to a firm policy of meeting the Union scale.
Absent .a legitimate explanation for increasing wages as of
August °1, 1970, i.e.,, after it received Local 814 1 s petition,,it
is reasonable to infer, and .I find, that the increases-were
unlawfully timed topers'uade the employees ;to,reject Local
814 as their bargaining. representative.
Finally, the . Respondent's brief -- does not discuss, the
reactivation of the defunct profit-sharing committee. I find
that Respondent's conduct relating to such .,reactivation
was part and parcel of , its tempt : to remedy , employee
grievances (which included complaints about unpaid
claims) in order to discourage unionization.10
II. CONCLUSIONS OF LAW
A. By the conduct described - above, Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(l) of the Act. `
B. The ,said unfair labor practices affect commerce
within the meaningof the Act.
III. THE OBJECTIONS TO THE ELECTION
The objections - in Case,31-RC-1519, are based upon the
above conduct found - to constitute unfair labor practices. I
find that such conduct interfered , with-a free choice in the
election held on September 4.
' IV.- THE REMEDY
In, order to effectuate the policies of the Act , I find it
necessary and recommend that Respondent be ordered to
cease and desist from , the unfair labor practices found, and
from in any , other manner interfering with , restraining, or
coercing its employees.
The General Counsel contends that on July 26,Local 814
had authorization cards signed by-a majority of, Respon-
dent's employees - in, an appropriate, unit, and that Respon-
dent's unfair labor practices warrant. the issuance of a
bargaining order . Accordingly , he requests that the election
in Case 31-RC--1519 be set aside, and that Respondent be
ordered to recognize , and bargain with Local 814 as the,
representative of the unit employees. Respondent contends
that the record fails to establish, the alleged majority. I
agree with the General Counsel.
s' Ignacio Garcia , Modesto , and Jimenez.
7 Chymbur,' Cosio, Escala, Jaime Flores, Hunter, Paoletti,' Alfonso
Flores,- David Flores , and Gonzalez.
8 Jose Flores and Pedro Casillas.
9 Buchanan and Perry.
10 1 find the record insufficient toestablish that the committee -also acted
as a grievance committee.
GATE OF SPAIN RESTAURANT CORP. 1095
A. The complaint alleged, the answer admitted, and I
find that the following constituted a unit appropriate for
the purposes of collective bargaining under the Act:
All employees employed by Respondent at the Gate of
Spain but excluding office clerical employees, guards,
professional employees and supervisors within the
meaning of the Act.
B. The parties are in agreement that there were 45
employees in the above unit on July 26.11 The General
Counsel introduced authorization cards signed by 26 of
such employees on or before July 26 and contends that all
were valid.1-2 The cards signed by the first 16 of the named
employees are admittedly valid. However, Respondent
challenges the validity of the remaining cards. For the
reasons noted below, I find that 8 of the 10 cards are valid.
1. Respondent contends that the cards signed by Jose
Flores' and Banuelos are invalid since the cards were
printed in English, and since the evidence shows that the
said two employees know little or no English. It is
undisputed, and I find, that the authorization cards
unambiguously designated Local 814 as collective-bargain-
ing agent.' The record shows and I further find that Jose
Flores understands and 'reads some English, and that he
knew thattthe card "was for the union." Accordingly, I find
that'his card should be counted.
I also find that the card signed by Banuelos should be
counted even' if, as several witnesses testified, he knows
virtually no English.13 Thereis no evidence that Banuelos
was aware of the purpose of the card. But even assuming
that he was unaware of its purpose because of an inability
to read the card, it would not be invalid. When an
employee signs a card which authorizes a union to act as
his bargaining agent, the union, acting on behalf of all the
signers, should be able to, and frequently does, rely on the
card in attempting to further the employees' interests. The
act of signing an authorization card is thus a serious matter
and is not to be lightly performed. For this reason, if an
employee is unable to read or understand the card, he is
under an obligation to take steps to ascertain its meaning
and purpose before signing. If he fails to do so, he should
"be bound by what [he] sign[s]" (N.L.RB, v. Gissel
Packing Co, 395 - U.S. 575, 607) and the failure is not a
basis for invalidating his card.14 Here, the record fails to
show that Banuelos had no opportunity to inquire about
and -ascertain the meaning and purpose of his card or that
any material misrepresentation was made to him. His card
should be counted.
2. Respondent contends that the card signed by
Modesto is invalid because he knows no English and his
card was ,not explained to him. Modesto testified that he
11 In its brief, Respondent abandoned its contention that Hoag was a
supervisor.
12 The 26 were as follows: -
Bonme Buchanan Robert Chymbur
Alfonso Flores Josie Cosio
David Flores Alex Escala
Jaime Flores Jose Flores
Augustinte Gonzalez Ismael Banuelos
Joseph Hoag Salvador Barajas
Joline Jung Florencio Nevarez
Frank Mancera Raul Talavera
Manuel Oshiro Luis Casillas
John Paoletti Ignacio Garcia
cannot read English, that he reads little Spanish, and that
he thought the card "was for some insurance," although no
one told him so. The evidence establishes that Employee
Hoag called a number of 'employees one at a time to
Respondent's pantry where their signatures were obtained
on authorization cards, and that' Jose Flores helped
Modesto and three others15 by filling out their cards for
them while each of them was in the pantry. Jose Flores
testified that he did not tell Modesto and the, other three
employees that the card was "for the Union," but that he
did tell them it was for the purpose of trying to get rid of
Respondent's assistant manager. I find that Jose Flores
was an unreliable witness and I do not credit his testimony
regarding what he told Modesto and the others. It follows
that any misunderstanding - on the part of -Modesto
concerning the purpose of the card did not stem from a
misrepresentation, and thus is not dispositive. Nor is the
validity of his unambiguous card governed by his subjec-
tive intent or understanding. N.L.RB. v. Gissel Packing
Company, supra,, N.LR.B. v. American Art Industries, Inc.,
supra. i, find Modesto's card to be valid.
3. Respondent contends that the cards signed by
Barajas, Nevarez, and Talavera.are invalid because they do
not know English and because the true-import of the--cards
signed by the latter two was not explained to them. None
of the three men testified, but there is testimony that they
do not know English.
I find no evidence to support Respondent 's assertion
regarding Talavera and conclude that his card -is valid.
Employee Jaime Flores testified that he gave cards to
Barajas and Nevarez; that because he felt that they would
not sign if informed of the true purpose of the cards, he
told them that their purpose was to get rid of the assistant
manager; that he observed them, sign their cards; but that
he did not receive the cards back nor-see the balance of the
cards filled out. The General Counsel contends that their
cards are valid for three reasons. The first is that other
employees may have spoken to Barajas and Nevarez about
bringing in a union before they- signed the cards, or
between the time they signed and the time they completed
and returned them to Local 814. 1- reject this argument as
speculative . The second reason is that , even assuming that
one of the reasons Barajas and Nevarez signed the cards
was to get rid of the assistant manager, that reason is not
inconsistent with the object of obtaining union representa-
tion . The difficulty with this argument is that it assumes
that the discharge of the assistant manager was not their
only reason for signing, and that a , desire for union
representation was another. There is no basis in the record
for such assumptions. The third reason is that there is no
Holly Perry, Alberto Jimenez
Virginia Pogan Arturo Modesto
Sharon Wilkison Pedro Casillas
13 Banuelos did not testify.
14 The decision in N.LR.B. v. American Art Industries, Inc., 415 F.2d
1223, 1228-1229 (C.A. 5), cited by the General Counsel , mayor may not
support this view. Although the Court stated that it was irrelevant that
certain of the card signers knew no English and could-not read the cards,
there was evidence that they were among the employees who demonstrated
their support for the designated union by actively participating in a strike
and picketing.
15 Ignacio Garcia, Jimenez, and Pedro Casillas , discussed below.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence establishing that the two signers relied on ; Jaime
Flores' misrepresentation. This argument places the shoe
on the wrong foot. Where, as here, a material misrepresen-
tation concerning the purpose of an authorization card is
made, the presumption is that the signer relied on -it, and
the card is invalid." Where objective evidence of nonreli-
ance. is presented, the presumption is rebutted and the card
is valid. Here; I' find that the misrepresentation to Barajas
and Nevarez, neither of whom knew English, was material;
and that since there is no evidence of nonreliance thereon;
their cards are invalid and should not be counted.
, The,, instant case is distinguishable from Marie Phillips,
Inc., 179,NLRB No: 53, where the Board held that despite
a misrepresentation to the card signer, that a majority of the
employees had already signed cards, the card was valid
absent, objective evidence of reliance on, the misrepresenta-
tion: My - interpretation of that decision is that it applies to
the particular' misrepresentation there involved, which,did
not relate to the purpose of the card; that since such
misrepresentation constituted "sales'talk'or puffing," it did
not involve the kind of, information on which employees
should ordinarily be expected to rely and there is no
presumption of reliance; , and that the card will
accordingly be, counted;`"absent objective evidence of
reliance.- In my view, the' decision does, not apply to a
misrepresentation, like that involved here, which relates to
the purpose of the card and which, being the - kind of
significant information on which employees should nor-
mally be expected to rely, requires a presumption - of
reliance.
4. ,Respondent- contends that the cards signed by
Ignacio Garcia, Jimenez, and Pedro ' Casillas are invalid
because they do notknow English, because Garcia thought
his" card was for the'purpose of getting rid of the assistant
manager, because Jimenez thought , his card was for that
purpose as well as for.the purpose of obtaining "work
improvements," and because, Pedro Casillas was told by
Employee Hoag that- the' card was for the purpose.. of
getting-rid of the-assistant manager. According-to'Garcia,
Jose Flores told him that he "imagined" that the purpose'
of the card was to vote to' try to get rid of the assistant
manager. According. _to Pedro Casillas, he was told by
Employee : Hoag that his. card was for that purpose.
According, to Jimenez, he was told by 'an unidentified
person, that his card was, for that purpose and to obtain
workiimprovements. The statement attributed by Garcia to
Jose' Flores- was at'best an expression of opinion by the-
latter, and did not amount -to a factual representation.
Jimenez could, not - identify the source of the information
given him. As for Pedro Casillas, I do not credit this
testimony as to what Hoag told him. It is clear from the
record that Hoag'`s knowledge of Spanish is minimal, and I,
am not persuaded that he was able to communicate in
is In reaching this conclusion, I have not relied on the testimony of
Hoag who, I find, was an unreliable witness. Nor have I given consideration
to, the-prehearing affidavits signed by Jose Flores, Modesto, Ignacio - Garcia,
Jimenez, and Pedro , Casillas, and 'offered by the General Counsel to
impeach , their testimony and to' establish that they were told the true
purpose of the authorization cards which , they signed., 1w view -of the
testimony , showingthat the signatures on the affidavits were obtained, under
unusual circumstances, I reserved decision regarding their admissibility in
evidence. In his brief, the General Counsel does not rely on , and indeed
Spanish to Casillas, mho knows no English,- that the
purpose of the cardwas to.get rid of the assistant manager.
I accordingly find that any misunderstanding which
Garcia, Casillas; --and Jimenez may have had' concerning
the purpose of their cards did not stem froma misrepresen-
tation.. And as stated above, their subjective understanding
is not dispositive. Their cards should be counted. , -
5. Respondent_ contends that the card signed by Luis
Casillas is invalidbecause he does not know English,and
was told by- Employee Escala that its purpose was to get rid
of the assistant manager. Casillas did not testify. Employee
Escala testified that Casillas filled out the entire card in his
presence after he told Casillas that the card was one of the
fastest ways to try to get rid of the assistant manager.
Accordingly, I, reject Escala's testimony that Casillas did
not understand English and find that Casillas was able to
read the card. There is thus no evidence that Casillas was
misled about the purpose of the card, and I find that the
card was valid.
In sum, I find that 8 of the 10 cards attacked by
Respondent are valid;16 and that since 16 additional cards
are admittedly valid, Local 814 had valid.cards signed by
24, hence a majority, of the 45 employees `in the unit.
C. 'I further find that Respondent's ,unfair labor
practices were so coercive in nature that , they have,
obviated the possibility of a fair, rerun election, andthat a
bargaining order is necessary to repair the unlawful `effect
of such unfair labor practices. Great Plains Steel Corp., 183
NLRB No. 96, and cases cited,, therein. I therefore
recommend that the requested bargaining order be issued,
that the election in Case 31-RC-1519 be set aside, that the
petition in that case be dismissed, and that ali,proceedings
held in connection therewith be vacated.
Upon the foregoing findings of fact, conclu`sions' of law,
and the entire , record,' and pursuant to,Section 10(c) of the
Act', I hereby issue the following recommended:'7
ORDER
Respondent, Gate of Spain Restaurant Corporation, its
officers , agents, successors, and assigns, shall: -
A. Cease and'desist from: -
1. , Unlawfully interrogating its employees, and unlaw-
fully promising to improve and improving their terms and
conditions of employment.
,
-
2: In any other manner interfering'with, restraihing,,or
coercing-its employees. -
B. Take the following affirmative action:
1. -Upon request, bargain collectively' with', Culinary
Workers and Bartenders Union Local 814; Hotel and
Restaurant Employees and Bartenders International Un-
ion, AFL-CIO, as he exclusive bargaining representative
of all the employees th in the unit herein found appropriate,
with respect to rates of pay, wages, hours of employment,
makes no mention of, such affidavits . Accordingly, I find that he has
abandoned and in effect withdrawn.his offer of the affidavits.
14 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations, Board,- the
findings, conclusions , and recommended Order herein shall, as;provided in
Section 102 .48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
GATE OF SPAIN RESTAURANT CORP.
and other terms and conditions of employment , and, if an
understanding is reached , embody such understanding in a
signed agreement.
2. Post at its restaurant in Santa Monica , California,
copies of the attached notice marked "Appendix." IS
Copies of said notice on forms provided by the Regional
Director for Region 31, after being signed by a representa-
tive of the Respondent, shall be posted immediately upon
receipt thereof , and be maintained by it for 60 consecutive
days thereafter in conspicuous places . Reasonable steps
is In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall
be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
1097
shall be taken by Respondent to insure that said notices
are not altered , defaced, or covered by any other material.
3. Notify the Regional Director for Region 31, in
writing, within 20 days from the receipt of this Decision
what steps have been taken to comply herewith.18
It is further recommended that the election in Can
31-RC-1519 be set aside, that the petition in that case be
dismissed, and that all proceedings held in connection
therewith be vacated.
19 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Direction for Region 31, in writing , within 20 days
from the date of this Order, what steps have been taken to comply
herewith."