Turnberry Isle Coutry Club

National Labor Relations Board - Board Decisions

Nov 19, 1980

253 N.L.R.B. 416 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aventura Country Club d/b/a Turnberry Isle Coun-
try Club, Employer-Petitioner and Hotel, Motel
and Hi-Rise Employees and Bartenders Union,
I,ocal 355, AFL-CIO. Case 12-RM-307
November 19, 1980
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN FANNING ANI) M.MBERS
JENKINS ANI) P NI: 1.0
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Direc-
tor for Region 12 of the National Labor Relations
Board on January 14, 1980, an election by secret
ballot was conducted on February 8, 1980, among
the employees in the stipulated unit.' At the con-
clusion of the election, the parties were furnished a
tally of ballots2 which showed that, of approxi-
mately 147 eligible voters, 125 cast valid ballots, of
which 69 were cast for the Union and 46 were cast
against the Union. There were 2 void and 10 chal-
lenged ballots. The challenged ballots are not suffi-
cient in number to affect the results of the election.
On February 15, 1980, the Employer filed timely
objections to the conduct of the election, and on
March 12, 1980, the Regional Director issued and
served on the parties an order directing a hearing
on the objections and a notice of hearing. A hear-
ing was held on April 1, 2, 8, and 9, 1980, before
Hearing Officer Bruce A. Harris. All parties were
present and participated in the hearing; they were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to present evi-
dence bearing on the issues. On June 6, 1980, the
Hearing Officer issued and served on the parties his
report wherein he recommended that certain of the
objections be overruled and others be sustained,
and that the election be set aside and a new elec-
tion directed. Thereafter, both the Employer and
the Union filed exceptions to the report,:' and the
'The stipulated unit is:
All employces of the Employer, including aiters. aitresses. bus
boys, captains. hostesses, porters, kitchen employees, restaurant cash-
iers, bartenders, bell persons, maids, cocktail waitresses, I'BX opera-
tors, laundry employees. front desk clerks. mainteilnance depariment
employees and regular banquet department employees. employed at
the Employer's hotel, restaurant and bar facility at 1999' West
Country Club Drive. Miam i. Florida; excluding all guard,, office
clerical employees supervisors and erCIployees f concessioners norll-
regular banquet employees a(d all other employees
The iEmployer refused to accept service of the tally of ballots at the
conclusion of the election Thereafter. orl February II. 1 80. a cop of
said tally watas mailed to the rEmployer's representatise.
a The Employer has excepted to certain credihility resolutions of the
Hearing Officer It is the established policy of the Board not to overrule
a hearing officer's credibility resolulions unless the clear preponderance
of all of the relevant evidence coln inces us that the resolutions are incior
rect. he Cocu-Co/ Bottling ompany oJ .mphi,. 132 NLRB 481 43
253 NLRB No. 51
Employer filed an answering brief to the Union's
exceptions.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in
this case, and hereby adopts the Hearing Officer's
recommendations to overrule the Employer's Ob-
jections 1, 3, 4, 6, 7, 9, 11, and 12 in their entirety
and portions of Objections 2, 5, 8, and 10, and
adopts his other findings and recommendations
only to the extent consistent herewith. 4
The Hearing Officer found, inter alia, that the
Union interfered with the election by conferring
certain benefits upon its members s during the criti-
cal period prior to the election. Under the terms of
the collective-bargaining agreement the Employer
paid certain insurance premiums for those of its
employees who were union members. In December
1979, the Employer stopped making these pay-
ments. Because the insurance coverage would oth-
erwise have lapsed, the Union paid the premiums
for the covered member-employees during January
and February 1980. The Union publicized this fact
during the election campaign. The Hearing Officer
found that the Union's payment of insurance premi-
ums amounted to an economic inducement of the
type proscribed in Wagner Electric Corporation,
Chatham Division, 167 NLRB 532 (1967). We dis-
agree.
In Wagner, supra, the union offered prospective
voters coverage under a life insurance policy in ex-
change for their joining the union. This type of gift
was held to have constituted a tangible economic
benefit which would constrain the recipients to
vote in favor of the donor, and thereby interfered
with the employees' free choice in the election. In
the instant situation, however, the recipients of the
insurance coverage were not receiving something
new from the Union, but rather were being permit-
ted to retain the status quo. Their benefits were not
enhanced by the Union's action; rather the Union
merely assumed the responsibility that the Employ-
er relinquished. Unlike a cash gift or a bribe which
can serve only to corrupt employees in their
choice, the continuance of the insurance coverage
(9hl) Stretch-lixa (o. IX NltRB 135, 1 lthl (1957) We find rio suffi-
cient basis for disturbing the credibility resolutions in this case
In adoptinig ie t che aring Officer', recommendatiii to overrule tile
portiot of Oblectiui 2 alleging that lhe tiliion threatened to confer hbete-
fits discriilillatorilN to its members onl , the Board does rlol find it neces-
sary rely on1 lluindv Idv, Inc., 228 NI R 447 (1977)
t Ihe iployer and the Uliilrn l rc parties to a
3
-year collecuxve bar-
gatiilng agreeme t s uhich expired in )ctober 179 1' he terms oif that
agreementl had been consistetitly applied irl a mcnilhers-n ly basis Be-
cause the legtlity f a rnembers-inl I conltracl was n1iot directly i issue in
this prolceeding. e do h1ot decide that questiotn
416
TURNBIERRY ISLL COUNTY C LIBt
through the Union's payment of premiums had a
legitimate relationship to the suitability of the
Union-from the employees' point of viewv-as a
bargaining representative. It had a direct bearing
on the kind and quality of services the Union might
be expected to provide, a clearly relevant consider-
ation in the election of a bargaining agent.6 In this
respect, the Union's preservation of existing bene-
fits is very similar to strike benefits. The Union did
not modify the insurance coverage or offer to
extend it to employees who decided to join prior to
the election. Therefore, the Union's payment of
these premiums is not the kind of "tangible eco-
nomic benefit" described and prohibited in Wagner,
and we find that the Union's action did not inter-
fere with the election. The Hearing Officer's rec-
ommendation to set aside the election based on this
portion of Objection 2 is hereby reversed. 7
The Hearing Officer also recommended setting
aside the election on the basis that the Union's
campaign literature contained material misrepresen-
tations about the benefits enjoyed by its members
employed elsewhere. A campaign leaflet stated that
"Local 355 new contracts now include the entire
family for dental coverage and will add the entire
family for all benefits in the future." In support of
its objection to this statement, the Employer intro-
duced into evidence a recently executed collective-
bargaining agreement between the Hilton Hotels
Corporation and the Union. That agreement con-
tained a provision that family dental coverage
would begin on January 1, 1982, but it contained
no provision that other benefits would be extended
to an employee's family in the future. The Hearing
Officer found that, because the Hilton contract did
specify that family dental coverage would become
effective during the term of the contract, albeit not
immediately, the first part of the statement did not
substantially depart from the truth and was not suf-
ficent to set aside the election under the standards
of Hollywood Ceramics Inc.," and General Knit of
California, Inc.9 However, applying the same test
to the second part of the statement, the Hearing
Officer determined that a material misrepresenta-
tion did exist. He interpreted the statement to mean
that family coverage would take effect in the
future, but within the term of an existing contract.
Under this interpretation, he found the Union's
statement sufficiently at variance with the con-
tract's provisions to set the election aside.
6 Primco Caming (rpor/tionr. 174 N. R 244 I 99)
B Hecause Ihis ctond t u.ls rol spe rfilcaly alleged Il he objcctln.
Member l'enello uould nol cl,nidcr it a a hasis lir seling aside hte
election See hi% dsentling (opiniot imn Daiton l irr & Rubbh/lr (.. 2 ;4
Nl.RB 5(14 1478)
9 14() NI.RH 221 ( 162)
239 NRB h9 (19781
We believe that the Hearing Officer misapplied
the General Knit standards in reaching his conclu-
sion. ° The statement, read in its entirety, refers
first to certain benefits which are "now" included
in contracts, and second to the extension of benefits
to employees' families in the "future." An employ-
ee would understand from the plain language of
the statement thatfamily coverage referred to a po-
tential benefit which the Union would attempt to
gain in upcoming collective-bargaining agreements.
In addition, while the Employer did not specifical-
ly respond to this aspect of the Union's campaign
handbill, it did reply to various other points in the
leaflet, which refutes the Employer's assertion that
the statement was made so soon before the election
as to deny the Employer adequate rebuttal time.
Further, the Employer introduced the Hilton con-
tract into evidence at the hearing, indicating that
the information about the Union's contracts was
not exclusively within the Union's control. We find
that the Union's statement did not breach the
guidelines of General Knit, but rather that this
statement amounted to no more than a typical cam-
paign promise, amenable to employee evaluation
and employer response, and does not warrant set-
ting aside the election.
Finally, the Hearing Officer recommended set-
ting aside the election on the basis that the Union
conditioned the employees' receipt of financial
benefits upon the outcome of the election. While
not specifically alleged as objectionable, the Hear-
ing Officer found that the Union's business agent,
Morales, told employees that if they did not vote
for the Union the Employer would not pay the
backpay it owed them. The Hearing Officer relied
upon one employee's testimony. The record reveals
that this testimony consisted entirely of passing ref-
erences contained in responses to questions about
other aspects of allegedly objectionable union con-
duct. This witness was not asked for details about
the backpay-related statements and was not cred-
ited elsewhere in her testimony.
The testimony on which the Hearing Officer
relied is as follows: ". . . we should vote for the
union and-because if we don't vote for it it will
make them not pay back the back money that they
owed to the people that had been working to the
hotel a long time"; and, "Yes, he told us we should
vote for the union, because the hotel owed the peo-
ples lots of back money .... And if they get-the
only way to get the back money that they would
" nrntit .r lcll oL.J) gret, wlth h colleagues that Ilt. mllpreseilAllli0p
alleged In this thlctlin ll o lnor arrntill selhing aside the etecl tlll. hill M)i
finds for ith rca.. t% el foirth i Shopping Hart val n 4i i .rt. Int,. 22
N R I 11 I 7 (17 the principle'. f Which he ti ll adhere,. to Sc itsl
dsc.'lliing pininl) in (,ir.rJ Kl it /f( t/ihrlnit. Jilt,. iupra
417
DECISIONS OF NATIONAl. AIBO()R RELATIONS BO()ARD
have to bring the union in." Taken in the context
of her surrounding testimony, it emerges that this
witness was relating her impressions of numerous
statements made by Morales over a period of
months and that the backpay may have been just
one of the many issues brought up during this time.
The thrust of the statements is that the Union
would try to secure the backpay for the employ-
ees-the kind of statement that a party in a repre-
sentation election would make to voters to demon-
strate the potential support they could expect
through its representation. It does not promise a
reward or condition a benefit on their vote, but
simply sets forth one area in which the Union
would use its position to assist the employees. We
find that, if these statements were made, they do
not condition benefits on the employees' votes, and
do not justify setting aside the election.
On the basis of the foregoing, we reverse the
Hearing Officer's determinations with regard to the
Employer's Objections 2, 13, and portions of 5, 8,
and 10 and find that they do not warrant setting
aside the election. We overrule the Employer's ob-
jections in their entirety and issue the following
Certification of Representative.
' For the reasoilns st forlh ill his dissenting opinilon in Dayton lir, &
Ruhhr C(. vIpra, Mrncber 'Penello ould not set aside hc ciclon on
this h asi bccause the corlduct wa, ino( specifically alleged in a irnlel
filed 'Arittlcn oihljcionl, hill rather w as coitlainld in a "catch-all" ohicc-
lion
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Hotel, Motel and Hi-Rise
Employees and Bartenders Union, Local 355,
AFL-CIO, and that, pursuant to Section 9(a) of
the National Labor Relations Act, as amended, the
said labor organization is the exclusive representa-
tive of all the employees in the following appropri-
ate unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment:
All employees of the Employer, including
waiters, waitresses, bus boys, captains, hostess-
es, porters, kitchen employees, restaurant cash-
iers, bartenders, bell persons, maids, cocktail
waitresses, PBX operators, laundry employees,
front desk clerks, maintenance department em-
ployees and regular banquet department em-
ployees, employed at the Employer's hotel,
restaurant and bar facility at 19999 West
Country Club Drive, Miami, Florida; excluding
all guards, office clerical employees, supervi-
sors and employees of concessioners, non-regu-
lar banquet employees and all other employ-
ees.
41X