Days Inn Management Co.

National Labor Relations Board - Board Decisions

Jan 21, 1992

306 N.L.R.B. 92 (N.L.R.B. 1992)

92
306 NLRB No. 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 299 NLRB 735.
2 930 F.2d 211 (2d Cir. 1991).
3 We disagree with the conclusion our colleague draws from the
relevant facts. In this regard, every day for at least the month prior
to the election the Union campaigned in plain view on public prop-
erty adjacent to the Respondent’s facility. On four or five of those
occasions the Respondent’s supervisors also campaigned at that loca-
tion by greeting employees on public property nearby. These super-
visors did not engage in any photographing of employees, note-tak-
ing, or conversations with the union representatives. Nor did they
visibly disrupt any contact with the Union or physically block or im-
pede any employee’s access to the union representatives. There is no
evidence that they were able to overhear conversations between em-
ployees and union representatives. We thus agree with the judge that
the sum total of the conduct of the Respondent’s representatives can-
not be distinguished from mere observation of open conduct and in
these circumstances does not constitute unlawful surveillance of
union organizing under current Board law.
Days Inn Management Co., Inc. and Local 217,
Hotel and Restaurant Employees and Bar-
tenders Union, AFL–CIO. Cases 39–CA–3393
and 34–RC–719
January 21, 1992
SUPPLEMENTAL DECISION AND ORDER ON
REMAND AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 20, 1990, the National Labor Rela-
tions Board issued its Decision, Order, and Direction
of Second Election1 in this proceeding. The Board
found, inter alia, that the Respondent violated Section
8(a)(1) of the National Labor Relations Act by threat-
ening to reduce employee wages if the Union won the
Board election held on February 25, 1987, and by cre-
ating the impression of keeping employee organiza-
tional activity under surveillance on election day. The
Board also found that the election-day surveillance
constituted objectionable conduct interfering with the
conduct of the election and directed a second election.
In so doing, the Board specifically found it unneces-
sary to pass on the judge’s findings that the Respond-
ent did not violate the Act and interfere with the elec-
tion on the basis of its alleged surveillance of union
activity in February 1987.
The Respondent thereafter filed a petition for review
of the Board’s Order with the United States Court of
Appeals for the Second Circuit and the Board filed a
cross-application for enforcement. On April 10, 1991,
the court issued its opinion granting in part and deny-
ing in part enforcement of the Board’s Order and re-
manding the case to the Board for further proceedings
consistent with the court’s opinion.2 In this regard, the
court enforced the Board’s finding of a violation con-
cerning the threat, but declined to enforce those por-
tions of the Board’s Order concerning the election-day
surveillance and requiring a new election. The court
did not pass on the issues involving the alleged sur-
veillance of union activity by the Respondent in Feb-
ruary 1987.
On June 17, 1991, the Board advised the parties that
it had accepted the remand and invited the parties to
submit statements of position with respect to the issues
raised by the remand. Thereafter, the General Counsel
and the Respondent filed statements of position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has reconsidered this case in light of the
court’s opinion, which we consider the law of the case,
and the parties’ statements of position, and has decided
to affirm the judge’s rulings, findings, and conclusions
and to adopt the recommended Order.
As previously indicated, in our original decision the
Board, and consequently the court, did not pass on the
question whether the Respondent also violated Section
8(a)(1) of the Act and interfered with the February 25,
1987 election, as alleged, by observing the Union’s or-
ganizational activity conducted on the public sidewalk
in front of the Respondent’s hotel in February 1987.
For the reasons stated by the judge, we adopt his dis-
missal of this 8(a)(1) allegation and his recommenda-
tion that the corresponding election objection be over-
ruled.3 Accordingly, we shall issue a certification of
results of the election.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Days Inn Management Co.,
Inc., Bridgeport, Connecticut, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for Local 217, Hotel and Restaurant
Employees and Bartenders Union, AFL–CIO, and that
it is not the exclusive representative of the bargaining
unit employees.