RAPERA, INC.
`
`1287
`
`Rapera, Inc., Employer-Petitioner and Hotel Employ-
`ees and Restaurant Employees, Local 100, Hotel
`Employees and Restaurant Employees Interna-
`tional Union, AFL–CIO. Case 2–RM–2085
`May 2, 2001
`DECISION ON REVIEW AND ORDER
`BY CHAIRMAN TRUESDALE AND MEMBERS
`LIEBMAN, HURTGEN, AND WALSH
`On November 10, 1999, the Regional Director for Re-
`gion 2 administratively dismissed the Employer’s peti-
`tion for an election, finding that the Union had not exhib-
`ited a present demand for recognition. Thereafter, in
`accordance with Section 102.67 of the National Labor
`Relations Board’s Rules and Regulations, the Employer
`filed a timely request for review, which the Board
`granted on March 30, 2000.1
`The Employer’s request for review and the parties’
`briefs on review have been carefully considered by the
`Board. Chairman Truesdale and Member Hurtgen would
`reverse the Regional Director’s administrative dismissal
`and reinstate the Employer’s petition. Members Lieb-
`man and Walsh would affirm the Regional Director’s
`administrative dismissal of the petition. Accordingly,
`since the Board is equally divided, and there is no major-
`ity to reverse the Regional Director’s action, the Re-
`gional Director’s administrative dismissal is affirmed.
`See Durant v. Essex, 74 U.S. 107 (1868); United Health
`Care Services, 326 NLRB 1379 (1998); and Pocono
`Medical Center, 305 NLRB 398 (1991).
`ORDER
`The Regional Director’s administrative dismissal is af-
`firmed.
`CHAIRMAN TRUESDALE and MEMBER HURTGEN.
`The Employer operates the employee cafeteria, restau-
`rants, and other food and beverage facilities at the Met-
`ropolitan Opera House at Lincoln Center, New York
`City, pursuant to a contract with the Metropolitan Opera
`Association. There are approximately 95 hourly food
`and beverage workers in the petitioned-for bargaining
`unit. Since March 1999, the Union has attempted to or-
`ganize the employees at the Employer’s facility. During
`this time the Union has put pressure on the Employer to
`sign a neutrality/card check agreement.2 In early March
`
`1 The Employer’s and the Union’s motions for receipt of additional
`exhibits are granted.
`2 The neutrality aspect of the agreement contains provisions which
`forbid the Employer from taking “any action or mak[ing] any statement
`that will state or imply opposition by the Employer to the selection by
`the employees of a collective bargaining agent.” The card check aspect
`of the agreement requires that upon a request for recognition by the
`
`
`
`333 NLRB No. 150
`
`1999, the Union made a written demand for a neutral-
`ity/card check agreement upon the Employer’s parent
`company, Restaurant Associates. The Union thereafter
`also conducted demonstrations and directed picketing
`and leafleting near Lincoln Center.3 The Union also sent
`letters to third parties requesting that they use their influ-
`ence to “ensure” that the Employer sign the Union’s pro-
`posed neutrality/card check agreement.4 Simultaneously,
`the Union has represented in letters to specific individu-
`als, as well as in campaign fliers and newspaper articles,
`that it enjoys the support of a majority of the employees
`in the petitioned-for unit. In addition, the Union made
`this claim in a union agent’s affidavit submitted to the
`United States District Court in a case involving a related
`matter.5 Based on the Union’s actions, the Employer
`filed the instant RM petition.
`We find that the Union’s conduct constitutes a present
`demand for recognition. Accordingly, we would reverse
`the Regional Director’s administrative dismissal and re-
`instate the Employer’s petition.
`The Board has consistently construed Section 9(c)(1)
`(B) of the Act as requiring evidence of a “present de-
`mand for recognition” as the majority representative of
`the employer’s employees before an employer’s petition
`will be processed. New Otani Hotel & Garden, 331
`NLRB 1078, 1078 (2000); Windee’s Metal Industries,
`309 NLRB 1074, 1074 (1992).
`It is undisputed that the Union has requested and con-
`tinues to demand, through picketing, demonstrations, and
`letters to third parties, that the Employer sign the neutral-
`ity/card check agreement. Under the proposed agree-
`ment, the Employer would agree to recognize and bar-
`gain with the Union upon a showing of majority support
`in the form of signed authorization cards. Contempora-
`neously, the Union asserted in a court-filed affidavit that
`
`
`Union, the Employer will conduct a card check and will recognize the
`Union upon a showing of majority support.
`3 The Union held demonstrations near Lincoln Center on May 19,
`1999, during the performance of the American Ballet Theatre’s per-
`formance of La Bayadere; on September 27, 1999, and March 30,
`2000, at the Metropolitan Opera House; and on June 9, 1999, at
`Christey’s Auction House during the Metropolitan Opera Guild’s bene-
`fit auction. The flier distributed during these demonstrations explains,
`inter alia, that the Union is trying to get the Employer to sign the neu-
`trality/card check or “right to organize” agreement.
`4 The Union sent letters to the president of the Lincoln Center and
`the general manager and managing director of the Metropolitan Opera,
`among others.
`5 The Union submitted the agent’s affidavit to the United State Dis-
`trict Court for the Southern District of New York in a lawsuit in which
`the Union sought access to the Lincoln Center Plaza to picket and dis-
`tribute leaflets relating to its dispute with the Employer. The Employer
`was not a party to this lawsuit.
`
`

`

`1288
`
`DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
`
`it has in fact achieved majority support through signed
`authorization cards.
`Given the unique facts of this case, we find that the
`Union’s insistence that the Employer sign a neutral-
`ity/card check agreement combined with its sworn court
`statement of majority status is tantamount to a request for
`immediate recognition, since it is clear from the Union’s
`own representations that as soon as the Employer signs
`the neutrality/card check agreement, it will be presented
`with signed authorization cards from a majority of the
`Employer’s employees. Thus, we find that, when taken
`together, the Union’s sworn statement of majority status
`and its demand that the Employer sign a neutrality/card
`check agreement constitute a present demand for
`recognition.
`Crucial to our holding in this case is the fact that the
`Union has not merely made claims of majority status in
`the context of their promotional campaign, but that the
`Union’s agent, in a sworn affidavit submitted to United
`States District Court, stated unequivocally that the Union
`had obtained authorization cards from 80 percent of the
`95 unit workers.6 Given the context and purpose of this
`statement, it cannot be dismissed as mere campaign
`“puffery.” Affidavits submitted in courts, distinct from
`campaign leaflets or letters to third parties, are sworn
`formal statements prepared with the intent that the courts
`rely on the statements contained therein. Indeed, as
`pointed out by the Employer, a knowing misstatement of
`facts in such a document is perjurious.
`We find that processing the Employer’s petition under
`these circumstances would not conflict with legislative
`concern that an employer would use an RM petition in
`order to undercut a union’s organizing campaign by forc-
`ing a premature vote. See S. Rept. 80-105 on S. 1126,
`80th Cong., 1st Sess. 11 (1947); Albuquerque Insulation
`Contractor, Inc., 256 NLRB 61, 63 (1981). Compare
`New Otani Hotel, 331 NLRB 1078 at 1082. The Union’s
`claims as to majority status here are not hypothetical,
`conditional, or distant; they are concrete and present.
`Finally, we note that our holding in this case is not in-
`consistent with the Board’s recent decision in New Otani
`Hotel.7 In New Otani, the Board found that picketing
`aimed at pressuring an employer to sign a neutrality/card
`
`6 The June 2, 1999 affidavit stated that: “Approximately 80% of the
`worker[s] have signed union authorization cards expressing their desire
`to be represented by the Union.”
`7 Member Hurtgen dissented in New Otani, and he adheres to that
`dissent. In the circumstances set forth in that case, Member Hurtgen
`concluded that objective considerations suggested that the union made
`a present demand for recognition. However, for purposes of resolving
`this case, Member Hurtgen accepts that the majority decision in New
`Otani represents current Board law. Nonetheless, he agrees that the
`instant case is distinguishable and New Otani does not control here.
`
`
`
`check agreement is not, by itself, the equivalent of rec-
`ognitional picketing or a present demand for recognition.
`Here, unlike in New Otani, the Union’s demands for a
`neutrality/card check agreement were accompanied by a
`statement in a court affidavit that the union had already
`amassed a supermajority of signed authorization cards.
`Although such picketing alone does not constitute a pre-
`sent demand for recognition under New Otani, when
`such “picketing occurs in conjunction with other actions
`or statements establishing that the union’s real object is
`to obtain immediate recognition as the employees’ repre-
`sentative . . . the Board [will] find that the union’s con-
`duct is tantamount to a present demand for recognition.”
`New Otani, supra, citing Capitol Market No. 1, 145
`NLRB 1430 (1964). In the instant case, it is the combi-
`nation of the Union’s actions and its sworn statement to
`the court, and not merely its picketing activities, that
`establish the present demand for recognition.8
`MEMBERS LIEBMAN AND WALSH.
`We agree with the Regional Director that the record
`fails to establish that the Union has presented to the Em-
`ployer a present demand for recognition as the majority
`representative of the Employer’s employees and there-
`fore that the Employer’s petition for an RM election
`should be dismissed. Under the Board’s decision in New
`Otani Hotel & Garden, 331 NLRB 1078 (2000), the
`Union’s March 1999 request that the Employer sign a
`neutrality/card check agreement does not constitute a
`present demand for recognition. Specifically, the agree-
`ment would require the Employer to refrain from cam-
`paigning against the Union during an organizing cam-
`paign and to recognize the Union as the employees’ bar-
`gaining representative upon proof that a majority of
`workers have signed authorization cards. In New Otani,
`the Board found that a union’s 4-year picketing and boy-
`cotting campaign to pressure an employer into signing a
`very similar neutrality/card check agreement did not con-
`stitute a present demand for recognition precisely be-
`cause the language of the agreement was conditional and
`concerned with future conduct. Id. at 4.9
`
`
`8 Contrary to our colleagues, we do not find it critical that the Union
`did not make a “direct communication” to the Employer. It was rea-
`sonably foreseeable that the Union’s sworn court statement, which was
`filed in support of the Union’s lawsuit seeking access to Lincoln Center
`to picket and leaflet about its dispute with the Employer, would become
`known to the Employer. The instant case involves not only this claim
`of majority status but also a demand that the Employer recognize the
`Union upon a card-check showing of majority status.
`9 The requirement that such a present claim of majority status or de-
`mand for recognition must be made to the employer is critical. It is
`clear from the legislative history of Sec. 9(c)(1)(B) of the Act that
`Congress added this requirement specifically because it was concerned
`that a union have control over its own election campaign. See Win-
`
`

`

`RAPERA, INC.
`
`1289
`
`der Section 9(c)(1)(B) to file a representation petition.
`The Employer fails to put forth a single instance of a
`direct communication by the Union to the Employer or
`the Employer’s representatives that it had majority sup-
`port, let alone any instance of the Union demanding im-
`mediate recognition from the Employer. Since there is
`no evidence to indicate that the Union at any time con-
`veyed to the Employer any claim, written or oral, that it
`represented its employees or that it was seeking immedi-
`ate recognition, we affirm the Regional Director’s
`administrative dismissal of the Employer’s petition. New
`Otani, supra at 1081.10
`
`
`10 Our colleagues suggest that the Union’s statement that it has at-
`tained majority status is sufficient to allow an employer to initiate an
`election if it is “reasonably foreseeable” that the employer would learn
`of the statement. As set forth above, however, Congress clearly in-
`tended to endure that unions “can time the holding of an election to suit
`themselves.” Labor Management Relations Act, 1947 (H.R. 3020),
`H.R. Rep. No. 245 (80th Cong., 1st Sess.) at 35, 1 Leg. Hist. 326. Our
`colleagues’ approach would undermine this clear expression of con-
`gressional intent by removing the §9(c)(1)(B) requirement that the
`union communicate a request for recognition to the employer. This
`result is clearly at odds with the intent of Congress to preserve a un-
`ion’s right to control the timing of the election. Our colleagues’ ap-
`proach has an additional flaw, which is that it would saddle the Board
`with the speculative process of determining whether it is “reasonably
`foreseeable” that the union’s statement of majority support might even-
`tually reach the employer’s attention. To avoid this conjectural analy-
`sis, it is certainly preferable to apply the clear statutory requirement that
`a union must affirmatively communicate its claim of recognition to the
`employer before the employer is permitted to initiate an election.
`
`
`
`We further find that the Union’s statements to third
`parties that a majority of employees in the petitioned-for
`unit had signed authorization cards do not constitute a
`demand for recognition. First, a statement of majority
`support is not the same as a present demand for recogni-
`tion. A union might, for example, announce that it had
`cards signed by a majority of employees, but prefer to
`wait to seek recognition until its support was nearly 100
`percent. Second, it is uncontested that the third parties in
`question are not agents or representatives of the Em-
`ployer. Third, there is no evidence that the Union ever
`presented any cards or made claims of majority status
`directly to the Employer. The language of the statute
`specifically provides that the demand must be made di-
`rectly to the employer. Section 9(c)(1) provides that
`where a petition is filed:
`(B) by an employer, alleging that one or more labor or-
`ganizations have presented to him a claim to be recog-
`nized as the representative defined in section 9(a) …
`the Board shall [process the petition]. (emphasis added)
`See also: New Otani, 331 NLRB 1078 at 1081; Windee’s
`Metal Industries, 309 NLRB at 1075 fn. 4.
`Our colleagues find that because one of these state-
`ments of majority status was made in a court affidavit, it
`should be construed as a direct declaration of majority
`status to the Employer. Although it is true that such a
`statement was made in a sworn affidavit, the Employer
`was not a party to that lawsuit and that lawsuit did not
`involve the issue in this case—the Employer’s right un-
`
`dee’s Metal Industries, 309 NLRB 1074, 1074–1075 (1992), and legis-
`lative history cited therein. By imposing the requirement of a demand
`on the employer, Congress was attempting to guard against an em-
`ployer’s attempt to short-circuit a union’s organizing campaign by
`precipitating a premature election. 93 Cong. Rec. 1911, 2 Leg. Hist.
`LMRA 983 (1947) (Leg. Hist.) (remarks of Senator Morse).
`
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`