Otsego Ski Club-Hidden Valley, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1975

217 N.L.R.B. 418 (N.L.R.B. 1975)

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Otsego Ski Club-Hidden Valley, Inc. andLocal 395,
Hotel, Hospital, Restaurant Employees & Bartend-
ers Union, AFL-CIO, Petitioner. Case
7-RC-11674
April 16, 1975
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
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-mem-
ber panel has considered challenges and objections to
an election held on March 12, 1974,' and the Hearing
Officer's report and amendment thereto recommending
disposition of the same. The Board has reviewed the
record in light of the exceptions and briefs, and hereby
adopts the Hearing Officer's findings and
recommendations,2 as modified herein.
The Hearing Officer after making his findings on
challenges, which we adopt, recommended that if the
number of remaining challenges (he did not know the
outcome of Case 7-CA-10620) was insufficient "to ef-
1 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 3 for, and 39 against, the Petitioner;
there were 58 challenged ballots.
2 The Hearing Officer had before him for disposition 40 of the 58 chal-
lenges, the other 18 challenged voters were the subject of an unfair labor
practice charge, alleging violations of Sec 8(a)(3) and (1) of the Act, in Case
7-CA-10620, decided this day The Hearing Officer found 21 of the 40
challenged voters were ineligible to vote In Case 7-CA-10620, the Ad-
ministrative Law Judge found two of the alleged 8(a)(3)'s were not entitled
to reinstatement due to picket line misconduct. We have found in Case
7-CA-10620, Member Fanning dissenting, that an additional employee,
Mankowski, was also ineligible for reinstatement due to picket line miscon-
duct Thus, the challenges to the ballots of three employees involved in the
unfair labor practice case are also sustained As a result of these findings the
challenged ballots are no longer determinative of the results of the election.
Although we agree with the Hearing Officer's finding that Margaret Domi-
mque, formerly Margaret Miller, was not entitled to vote, we also rely on
the fact that when offered a job in December 1973 which was not to her
liking, she refused it.
3 Member Fanning, contrary to his colleagues and in agreement with the
Hearing Officer, would also find the omissions from the Excelsior hit suffi-
cient grounds for setting the election aside.
fect the results of the election the election be set aside
on the basis of -Petitioner's Objection 1, and that a
second election be directed. Specifically, he found that
the omission of the names of eight employees, who the
parties at the hearing stipulated were eligible to vote,
from the Excelsiorlist which constituted a 12.5-percent
omission is not substantial compliance under Board
law and is sufficient grounds to set the election aside.
Although we agree that the election should be set
aside, we do so for other reasons, and find it unneces-
sary to pass on the Hearing Officer's findings with
respect to the omissions from the Excelsior list.' For,
as part of its Objection 2, the Petitioner alleged that the
Employer interfered with the conduct of the election by
"firing employees to discourage union activity."' The
petition was filed on March 6, 1973, and due to delays,
including the filing of unfair labor practices charges,
the election was not held until March 12, 1974. In
September 1973, within the critical preelection period,
22 employees, who were the subjects of the unfair labor
practice case in Case 7-CA-10620, were discharged by
the Employer. The Administrative Law Judge found
that 13 of these employees were discharged in violation
of Section 8(a)(3). We have adopted his Decision with
the modifications discussed therein (see 217 NLRB No.
64, decided this day). No citation is required for the
proposition that discriminatory discharges constitute
interference which warrants setting aside an election.
Therefore, we shall set aside the election on the grounds
that by unlawfully discharging employees to discour-
age union activity the Employer interfered with the
conduct of the election as alleged in Objection 2. Ac-
cordingly, we shall direct a second election.
[Direction of Second Election and Excelsior footnote
omitted from publication.]
4 Neither the challenges to the alleged 8(a)(3)'s nor the 8(a)(3) discharges
were before the Hearing Officer for disposition, and he therefore did not rule
on the part of Objection 2 alleging the discharges as objectionable conduct.
The Administrative Law Judge , on the other hand, did not have the objec-
tions or challenges before him but only the 8(a)(3) and (1) allegations. In
this circumstance , we shall consider the aforementioned part of Objection
2 which alleges that the Employer interfered with the election "by firing
employees to discourage union activity" on the basis of our findings in Case
7-CA-10620.
217 NLRB No. 66