S. & H. Grossinger's, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1968

170 N.L.R.B. 330 (N.L.R.B. 1968)

330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. & H. Grossinger 's, Inc. and Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, Local 343, Petitioner. Case
3-RC-3243
March 14, 1968
DECISION ON REVIEW AND CERTIFICATION
OF RESULTS OF ELECTION
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
Pursuant to a Supplemental Decision and
Direction of Fourth Election issued by the Regional
Director for Region 3, on April 22, 1966, an elec-
tion was conducted under his direction and supervi-
sion on April 15, 1967, among the employees in the
unit found appropriate. At the conclusion of the
election, the parties were furnished with a tally of
ballots -which showed that of approximately 631
eligible voters, 523 cast ballots, of which 177 were
for, and 208 against the Petitioner, and 138 were
challenged. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the
election.
As the challenges were sufficient in number to be
determinative of the election results, the Regional
Director, in accordance with National Labor Rela-
tions Board Rules and Regulations, conducted in-
vestigations of both the challenges and the objec-
tions and, on June 1, 1967, issued his Supplemental
Decision in which he sustained the challenges to
some ballots and reserved decision on- some, but
overruled certain other challenges. The Petitioner
then filed a request for review of the Regional
Director's Supplemental Decision, which the Na-
tional Labor Relations Board denied. Thereafter,
on June 22, 1967, the Regional Director caused the
last-described group, of ballots to be opened and
counted and thereafter duly served upon the parties
a revised tally which shows that of 489 valid ballots
cast, 190 were for, and 249 against, the Petitioner.
Thirty-two challenges had been sustained, 50
remained undetermined, and I ballot was void. As
the remaining challenges were insufficient to affect
the results of the election, the Regional Director on
the same day issued and duly served upon the
parties his Supplemental Decision and Direction of
Fifth Election in which he sustained Objection
1(a), and accordingly set aside the fourth election.
Thereafter, the Employer filed a timely request for
review of the Supplemental Decision and Direction
of Fifth Election and the Petitioner filed opposition.
' The Petitioner utilized both its opposition and its brief on review to
make belated requests for review of certain of the Regional Director's ad-
verse findings . As the requests for review are untimely, they are rejected
2S & H Grossinger's, Inc, Case 3-CA-2242, 156 NLRB 233, enfd. in
relevant part 372 F 2d 26 (C A 2)
170 NLRB No. 31
By telegraphic order, dated August 30, 1967, the
National Labor Relations' Board granted the
request for review. The parties then filed briefs.I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has considered the entire record in
this case with respect to the issue under review, and
makes the following findings:
The Petitioner's Objection 1(a) asserts that the
Employer failed to grant the Petitioner reasonable
access to the employees who reside on the Em-
ployer's premises, contrary to the Board's Order of
December 21, 1965,2 in a related unfair labor prac-
tice proceeding as subsequently enforced in rele-
vant part by a court of appeals. The Regional
Director found merit in the objection.
This case and the related unfair labor practice
proceeding have a lengthy history before the Board
and court. The first election herein was conducted
on December 14, 1963,3 'pursuant 'to the Regional
Director's Decision and Direction of Election. The
Petitioner lost this election but filed a number of
objections based on the Employer's preelection
conduct. The Regional Director sustained one of
these objections, set aside the first election, and
directed a second. The Employer filed a request for
review which the Board denied.
The second election herein was conducted on
May 2, 1964. The Petitioner again lost this elec-
tion, but filed objections and the charge in the re-
lated unfair labor practice proceeding, alleging in
both instances that the Employer failed to permit
nonemployee organizers of the Petitioner access to
the Employer's premises for the purpose of commu-
nicating with employees. These cases were, con-
solidated and a hearing was held before a Trial Ex-
aminer. The Trial Examiner, subsequently issued a
decision in which he concluded, inter alia, that the
Employer's denial of access to its premises for or-
ganizational purposes violated Section 8(a)(1) of
the Act, and constituted interference with the
second election.
On December 21, 1965, the Board issued its
Decision, Order, and Direction of Third Election.
Adopting in relevant part of Trial ^ Examiner's
findings, conclusions, and recommendations, the
Board ordered that-the Employer cease:
continuing or giving effect to its-policy or rule
barring non-employee organizers access to em-
3 Of approximately 606 eligible voters, 520 cast valid ballots, of which 82
were for, and 367 against the Petitioner, 71 were challenged, and 2 void
Of approximately 595 eligible voters, 122 cast ballots for, and 338
against the Petitioner, and 48 were challenged.
S. & H. GROSSINGER'S, INC. 331
ployees residing on company premises for the
purpose of soliciting them during their free
time on behalf of a union, or for consulting,
advising, meeting, or assisting said employees
in regard to their rights to self-organization, ex-
cept that access to the premises for the pur-
pose indicated may be reasonably regulated by
[the Employer].
Thereafter, on March 26, 1966, the Regional
Director conducted' the third election.6 The Peti-
tioner also lost this election but again filed objec-
tions, including one with respect to the Employer's
continued denial of access to its premises for or-
ganizational purposes. The Regional Director set
aside the third election based on this objection and
directed a fourth election. The Employer's request
for review was denied by the Board.
Thereafter, the General Counsel filed a petition
for enforcement of the Board's Order of December
21, 1965, in the United States Court of Appeals for
the Second Circuit. On February 1, 1967, the court
handed down its decision enforcing the Board's
Order insofar as it requires the Employer to permit
nonemployee union organizers to come on its
premises, under reasonable regulation as to time,
place, and number, for the purpose of soliciting em-
ployees to join the Union.
Although there had been no compliance with the
court's order, the Petitioner in the spring of 1967
requested the Regional Director to proceed to an
early fourth election. Accordingly, the Regional
Director scheduled an election for April 15, 1967,
and, on March 31, so notified the parties. The Peti-
tioner requested access to the Employer' s premises
to contact employees before the election. By tele-
gram dated April 4, the Employer notified the Peti-
tioner that it would grant access to the Petitioner's
organizers , and requested the Petitioner to arrange
a meeting to discuss the terms of regulating such
access.
The next day the parties met and executed an
agreement whereby 4 nonemployee organizers were
permitted to spend 9 hours a day at employee re-
sidence buildings on the Employer's premises from
April 6 through April 14 (the day preceding the
election). The Petitioner's organizers did-contact,
employees during this period although they did not
utilize all the access time granted by the Employer.
The Employer's grant of access ended as agreed on
April 15 and it does not appear that Petitioner's or-
ganizers have since been permitted on the premises
for organizational purposes. Compliance with the
5 Prior to the holding of the third election, the Petitioner had filed a
request to proceed notwithstanding the fact that the Employer had not yet
complied with the Board Order which required it to remedy the effect of its
unfair labor practices
6 Of approximately 655 eligible voters, 560 cast valid ballots, of which
144 were for, and 312 against the Petitioner, 104 were challenged, and 1
was void
court's order in the related unfair labor practice
proceeding still remains to be achieved.
As noted above, a majority of the voters cast bale
lots against the Petitioner in the election of April
15, 1967. The Petitioner filed 16 objections, and
the Regional Director specifically overruled all of
them except 1(a) which, as noted, alleged that the
Employer had denied the Union access to its
premises for organizational purposes.
The Regional Director set aside the fourth elec-
tion , concluding that the Employer's denial of ac-
cess to Petitioner's organizers for most of the
period between the third and fourth election
prevented the employees from freely expressing
their choice in the latter election and the Regional
Director, accordingly, directed a fifth election. We
disagree with the Regional Director's determination
and we shall instead certify the results of the fourth
election.
In all the circumstances of the case we are not
satisfied that the Employer's denial of access for a
large part of the critical period is a sufficient basis
for setting the fourth election aside. For in view of
the fact that the Employer did provide to Petitioner
before this last election 9 days of substantial ac-
cess-of which Petitioner did not fully avail itself-
the inescapable inference arises that the Petitioner
itself must have been content that it had been able
to have sufficient contact with the employees for
the purposes of this election. And if Petitioner was
willing to proceed to this election without utilizing
all of the access time allowed to its organizers,
there is little basis for us now to say-in determin-
ing this election 's fairness-that the availability of
even greater access would have materially affected
the election. Considering all the circumstances
herein, we therefore conclude that the Employer's
prior denial of access did not have a substantial ef-
fect upon the results of the fourth election.
As mentioned above, Petitioner objected to each
of the last three elections based on the Employer's
denial of access to its premises and the Board set
aside the two elections preceding this one for that
reason . We also note that, as there has been no
grant of access since the fourth election , the same
objection would again be available if a fifth electionss
were now directed. To proceed to another election
would be unwarranted in all the circumstances of
this case.
In view of all the foregoing, therefore, we over-
rule Petitioner's Objection I(a).7 Since all the Peti-
tioner's other objections have already been over-
t In so holding , we deal only with the question of whether on the unique
facts of this case Petitioner 's Objection 1(a) to this election has merit. We
wish to make it clear that in overruling this objection we are not holding
that the Employer 's grant of certain access to its premises for the 9 days
preceding the fourth election constituted compliance with the court order
in the related unfair labor practice proceeding
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ruled and since a majority of the employees voted
against it, we shall certify the results of the fourth
election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes has- not been cast for Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, Local 343, and that said labor organiza-
tion is not the' exclusive representative of the em-
ployees in the unit found appropriate within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.