Interstate Hosts, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1961

131 N.L.R.B. 1221 (N.L.R.B. 1961)

INTERSTATE HOSTS, INC. 1221
The foregoing conclusions are reached with full recognition that any of the rea-
sons which Respondent assigned would have - justified the layoff ( or, indeed, any
other reason save that of discrimination because of union or other concerted activi-
ties ), provided , of course , that the reason assigned was the real reason for Respond-
-ent's action . But a discharge ostensibly for cause must , in order to be protected
be in reality a discharge for cause ; a trumped up or synthetic cause cannot protect
an employer against a discharge where the real or moving cause is antiunion.dis-
crimination . N.L.R.B . v. C. & J. Camp , Inc., et al. d/b/a Kibler-Camp Phosphate
Enterprise, 216 F . 2d 113 , 115 (C .A. 5), enfg. 107 NLRB 226.
I find here , on the basis of the entire evidence , that Respondent 's real reason for
laying off Blaschak was to rid itself of -the last remaining employee who had sup-
ported AIA and Local 1452 and who had participated in the strike , and that it
thereby engaged in discrimination proscribed by Section 8(a) (3) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action of the type conventionally ordered in such cases, which I find necessary
to remedy and to remove the effect of the unfair labor practices- and to effectuate
the policies of the Act. For reasons which are stated in Consolidated Industries,
Inc., 108 NLRB, 60, 61, and cases there cited, I shall recommend a broad cease-
and-desist order.
Upon the-basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. AIA and Local 1452 are labor organizations within the meaning of Section
2(5) of the Act.
2. By laying off Louis Blasohak on January 4, 1960, and by thereafter failing to
recall him, Respondent engaged in discrimination to discourage membership in
Local 1452, and thereby engaged in unfair labor practices proscribed by Section
8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices having occurred in connection with the
operations of Respondent's business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommendations omitted from publication.]
Interstate Hosts, Inc. and Hotel and Restaurant Employees and
Bartenders International Union' , AFL-CIO, Petitioner
Interstate Hosts, Inc. and Coye Conley, Eddie Simmons, James
Taylor, Grace Thorpe, Willa May Johnson , Clara Whitley,
Frank Green , Myrtis Green , O'Neal Tarver, Lenore Kelly,
Dolly van Zandt , Nancy Kindig, and Mary E. Hager. Cases
Nos. 13-RC-6581, 13-CA-3568-2, 13-CA-3568-5, 13-CA-3568-6,
13-CA-3568-7,13-CA-3568-8,13-CA-3568-9,13-CA-3568-10,13-
CA-3568-11,13-CA-3568-12,13-CA-3568-13, 13-CA-3568-114, 13-
CA-3568-15,13-CA-3568-17,13-CA-3568-18, and 13-CA-3568-19.
June 20, 1961
SUPPLEMENTAL DECISION AND ORDER
DENYING MOTION
Pursuant to a Decision and Direction of Election dated Novem-
'ber 12, 1959,1 an election by secret ballot was conducted on Decem-
1125 NLRB 101.
131 NLRB No. 153.
1
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 11 and 12, 1959,. under the direction and supervision of the
Regional Director for the Thirteenth Region. Upon the completion
of the election, the parties were furnished a tally of ballots which
showed that of approximately 475 eligible voters, 458 cast ballots, of
which 193 were for, and 233 were against, the Petitioner, 31 ballots
were challenged, and 1 ballot was void. Thereafter, the Petitioner
filed timely objections to conduct affecting the results of the election,
and the Employer filed a brief in opposition to the Petitioner's
objections.
After an investigation, the Regional Director, on February 29,1960,
issued and served upon the parties his report on objections, in which
he found merit in the objections numbered 17 and 18, and recom-
mended that the election be set aside and a new election conducted, or,
in the alternative, that the Board direct a hearing to resolve the sub-
stantial and material issues raised by these two objections. The Em-
ployer and the Petitioner thereafter filed timely exceptions to the
Regional Director's report on objections.
The Board, in an order dated April 19, 1960, adopted the recom-
mendations of the Regional Director that the Petitioner's objections
numbered 1, 2, 3, 4, 5, 6, 91101111139 14, 16,19, 20, 21, 22, 23, 24, and 25
be overruled as there were no specific exceptions to these recommenda-
tions, and directed that a hearing be held with respect to objections
numbered 17,18, and 26.
A complaint having been issued on April 1, 1960, alleging that the
conduct of the Employer involved in the Petitioner's objections to the
election also constituted unfair labor practices, a consolidated hearing
was held on May 18 through 26, 1960, at Elkhart, Indiana. The Trial
Examiner issued his Intermediate Report on October 28, 1960, recom-
mending that the Board dismiss the complaint, overrule the Peti-
tioner's objections to the election, and issue a certification of results of
election.
The Board, on March 29, 1961, issued a Decision, Order, and Cer-
tification of Results of Election,' in which it adopted the Trial Ex-
aminer 's findings, conclusions, and recommendations, and certified the
results of the election. Thereafter, the Petitioner and Charging
Parties filed a motion for reconsideration alleging (1) that the Board
had not ruled specifically on its objections to the election numbered 7,
8, 12, and 15, and (2) that they had been denied due process by the
Board's summary affirmance of the Intermediate Report. The
Employer-Respondent filed a brief in opposition to this motion.
As four of the objections to the election remain unresolved, the
validity of the certification of results of election heretofore issued
.in Case No. 13-RC-6581 turns upon the disposition of these four
objections.
2130 NLRB 1614.
INTERSTATE HOSTS, INC. 1223
The Board has considered the motion for reconsideration and the
brief in opposition , and, in connection therewith , has again considered
the Regional Director 's report and the Intermediate Report, the ex-
ceptions to both and the supporting briefs, and the entire record in
this case , and hereby makes the following :
SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS
Exceptions numbered 7 and 12: Exception numbered 7 alleges that
Board agents destroyed eight ballots during the count of ballots, and
exception numbered 12 alleges that Board agents destroyed the un-
challenged manual ballot of an employee and counted his mail ballot
as valid. The Regional Director's report indicates that during the
discussion of challenged ballots, all the parties agreed that eight em-
ployees were ineligible to vote as they were not employed on the eligi-
bility date, and that one employee had previously voted by mail.
Accordingly, after the parties agreed that these ballots should not be
counted, the Board agent announced that they would be destroyed if
no party objected. No party objected, and the nine ballots were
destroyed.
While we agree with the Regional Director's statement in his re-
port that it would have been better to preserve these ballots, it is un-
disputed that the ballots were destroyed only after both parties agreed
that these voters were ineligible, and failed to object to the Board
agent's announcement that the ballots would be destroyed. Under
these circumstances, we find that the Petitioner was not prejudiced
thereby. Accordingly, we find the Petitioner's contentions in its
exceptions numbered 7 and 12 are without merit .3
Exception numbered 8: Exception numbered 8 alleges that the Pe-
titioner withdrew its challenges to the mail ballots, which were cast
by part-time employees, because it feared that these ballots would be
destroyed. As set forth in the Regional Director's report, the Pe-
titioner, at the counting of the ballots, challenged all the mail ballots
on the ground that the employees casting them had been changed by
the Employer from full- to part-time status subsequent to the hear-
ing and prior to the election. When the Employer agreed that it too
would challenge all the mail ballots, the Petitioner withdrew its chal-
lenges. Thereupon, the Employer also withdrew its challenges to all
but 2 of the 103 mail ballots. The Petitioner claims that it feared
these ballots would be destroyed if challenged by both parties, but the
Board agents assured the parties at that time that these ballots would
not be destroyed and that any outstanding challenges would be re-
solved by the Board. All but the 2 employer-challenged mail ballots
3 Farm Too18, Inc, 93 NLRB 1295, 1297.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were counted after the parties executed a stipulation providing for
the withdrawal of challenges to the remaining 101 mail ballots.
As the Board agents assured the Petitioner that the mail ballots
were not subject to destruction even if both parties challenged them,
we agree with the Regional Director's finding that the Petitioner's
agreement to withdraw these challenges was not coerced. In any
event, this objection is in the nature of a postelection challenge and,
therefore, cannot be considered 4
Exception numbered 15: This exception alleges that the Employer
-violated the rule of the Peerless Plywood 5 case by conducting meetings
of employees on company time and property during the 24-hour period
immediately preceding the election. The Regional Director's investi-
gation ascertained, however, that, while a Christmas party was held in
one of the Respondent's restaurants on the day before the election, the
date for the party had been selected before the preelection conference
established the date for the election, the employees attended volun-
tarily and on their own time, and there was no evidence that the only
supervisor in attendance, who was the supervisor for that particular
restaurant, made a speech or led a discussion concerning the election
or the Petitioner.
The Petitioner has not presented any evidence which would contra-
dict the findings of the Regional Director, but has merely questioned
his conclusions. Under all the circumstances, we find that the Peerless
Plywood rule was not violated and, therefore, overrule this objection.6
The Petitioner and Charging Parties also contend that they were
denied due process of law by the Board's summary affirmance of the
Trial Examiner's Intermediate Report in that the Board failed spe-
cifically, fully, and adequately to rule upon the contentions of the Pe-
titioner and Charging Parties that the Trial Examiner was biased, and
upon other substantial issues presented by the case. While the Trial
Examiner credited all the witnesses of the Employer-Respondent, the
Board, prior to issuing the original Decision, Order, and Certification
of Results of Election herein, reviewed the entire record, and was
satisfied that the credibility resolutions of the Trial Examiner were
supported by the clear preponderance of all the evidence I and that no
bias was shown.
A The Babcock & Wilcox Company, 118 NLRB 944, 945; Vita Foods Products, Inc. of
Maryland, 116 NLRB 1215, 1219.
s Peerless Plywood Company, 107 NLRB 427.
8 See Vita Food Products, Inc. of Maryland, supra, at 1218. In reaching our decision
that the Peerless Plywood rule was not violated by the Employer's conduct, we have con-
sidered again the effect of its speeches to employees during the time mail balloting was in
progress. As written notice of the date the ballots were mailed to employees was not
given to the Employer, we find that the speeches in question did not violate the Peerless
Plywood rule. Oregon Washington Telephone Company, 123 NLRB 339.
7 Bargain City, U.S.A., Incorporated, et at., 129 NLRB 93 ; Standard Dry Wall Products,
Inc., 91 NLRB 544.
NORMANDIN BROS. COMPANY 1225
As to other issues which were not specifically ruled upon in the De-
cision, the Board was convinced that the Trial Examiner's findings
and conclusions, which it expressly adopted, were correct. More-
over, the courts have held that the requirements of due process do
not compel the Board to rule specifically on each exception of the
parties to the Intermediate Report." Accordingly, we find no merit
in the contentions presented in the motion for reconsideration of the
Petitioner and Charging Parties, and we shall, therefore, reaffirm our
Decision, Order, and Certification of Results of Election herein.
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the
consideration of the above Supplemental Decision and Order Denying
Motion.
9 See N .L.R.B. v. Wichita Television Corporation, Inc. d/b/a KARD-TV, 277 F. 2d
579, 585 (C.A. 10) ; Pittsburgh S.S. Company v. N.L.R.B., 167 F. 2d 126, 128 (C.A. 6).
Normandin Bros. Company, Petitioner and Los Angeles Joint
Board, Amalgamated Clothing Workers of America , AFL-CIO.
Case No. 21-RM-650. June 20, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Roger B. Holmes, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The Employer seeks an election in a unit of its production and
maintenance employees. The Union, the certified bargaining repre-
sentative of such unit, moved that the petition be dismissed allegedly
because it had disclaimed any interest in continuing to represent the
employees who are the subject of the petition.
On June 17, 1959, the Union was certified as the bargaining repre-
sentative of the Employer's production and maintenance employees.
Thereafter, it engaged in bargaining with the Employer, but no agree-
ment was reached. On February 17, 1960, the Union struck the Em-
ployer's plant and picketed with signs announcing that the employees
were on strike. On June 21, 1960, the Employer filed the present
petition. Two days later, the Union filed a charge alleging the Em-
ployer had violated Section 8(a) (5) and (1) of the Act. The charge
131 NLRB No. 150.