NOTICE: This opinion is subject to formal revision
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March 31, 2009
DECISION AND ORDER REMANDING
By Chairman Liebman and Member Schaumber
The National
Labor Relations Board has considered an objection to an election held October
17, 2008, and the Regional Director’s report recommending disposition of it.1 The election was conducted pursuant to
a Stipulated Election Agreement. The tally of ballots shows 59 for and 77
against the Petitioner, with 1 challenged ballot, an insufficient number to
affect the results.
The Board has
reviewed the record in light of the Employer’s exceptions, and adopts the
Regional Director’s findings and recommendations, and finds that the election
must be set aside and a new election held.2
ORDER
It is ordered that this matter is remanded to the Regional Director for further appropriate action.
Dated,
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
REGIONAL DIRECTOR’S REPORT ON OBJECTIONS, ORDER
APPROVING WITHDRAWAL OF CERTAIN OBJECTIONS AND RECOMMENDATIONS
This report contains the
Regional Director’s recommendations regarding the objections filed by the
Petitioner. The Petitioner withdrew all
but its third objection, which alleges that the Employer offered payment to
employees to come to the facility on the day of the election. The investigation of the objection
established that the Employer offered and paid employees not scheduled to work
on the day of the election 2 hours’ show-up pay. As described below, it is recommended that the
Petitioner’s Objection 3 be sustained and that a rerun election be conducted.
Procedural History
Pursuant to a petition filed
on May 15, 2008,[1] and a
Stipulated Election Agreement approved by the Regional Director on June 9, an
election was conducted on October 17, among employees of the Employer in the
following-described appropriate collective-bargaining unit:
All full-time and regular
part-time drivers and monitors employed by the Employer at its 6121 Hall Street
and 3350 Morgan Ford, St. Louis, Missouri facilities, EXCLUDING office clerical
and professional employees, guards and supervisors as defined in the Act.
The results of the election
were as follows:
Approximate number of
eligible voters…………………. 158
Void ballots……………………………………………… 1
Votes cast for Petitioner…………………………………59
Votes cast against
participating
labor organization………………………………………77
Valid votes counted……………………………………...136
Challenged ballots……………………………………….1
Valid votes counted plus challenged
ballots…………….137
Challenges are not
sufficient in number to affect the results of the election.
A majority of the valid
votes counted plus challenged ballots has not been cast for the Petitioner.
Timely objections to conduct
affecting the results of the election were filed by the Petitioner on October
22.[2]
On November 13, the
Petitioner submitted a written request to withdraw its objections with the
exception of Objection 3.[3]
Having carefully considered
the matter and having concluded that withdrawal of Objections 1, 2, and 4 is
not inconsistent with the purposes and policies of the Act,
It is hereby ordered that the Petitioner’s request to withdraw
its Objections 1, 2, and 4 is approved.
Pursuant to Section 102.69
of the Board’s Rules and Regulations, Series 8, as amended, I have caused an
investigation to be made of the Petitioner’s Objection 3. I have carefully considered all evidence
adduced during the investigation, and I report and recommend as follows:
Background
The Employer, with facilities
located at
Objection
In Objection 3, the
Petitioner alleges that the “Employer offered payment to employees to come to
the facility on the day of the election” and paid employees not scheduled to
work 2 hours of pay if they showed up on the election day. In
support of its objection, the Petitioner presented witnesses who provided sworn
evidence and a flyer[4]
that states, in part:
URGENT
SHOW UP
PAY
TWO HOURS PAY
As you know …
Because
Please understand that this
does not mean you have to vote and if you vote, you may vote either “yes” or
“no.”
The Petitioner presented
five witnesses, all of whom were eligible voters. The Petitioner’s first witness stated that
the Employer required employees to attend two mandatory meetings at which the
Employer presented its arguments against employees voting in favor of the
The Petitioner’s second
witness stated that at a mandatory meeting on October 15, in which the Employer
campaigned against the Union, Rick, a manager for the Employer, told employees
they would get 2 hours show-up pay if they came in to vote on their day
off. Upon arriving at the facility on
the day of the election, this witness, who was not scheduled to work, checked
in with dispatch, advised the employee was there to vote, signed in on a list,
voted, and left. On the next payday, the
employee’s payroll register report indicated the employee received 2 hours
show-up pay.
A third witness who attended
a second mandatory meeting on October 15, states a manager whose name he
did not know said, “If you are off work and show up to vote on Friday you will
get 2 hours show-up pay. Let dispatch
know you are here.” The employee
received the above-described flyer upon leaving this meeting and stated the
Employer also placed the flyer on employees’ clipboards, the bulletin board,
and left it in the breakroom and working area.
On election day, the employee, who did not work, went to dispatch,
signed for the employee’s check, and then voted and left. The employee received 2 hours show-up pay as
indicated in the employee’s payroll register report.
The fourth witness testified
that a flyer was on the employee’s route clipboard the day before the election
and remembered the flyer was marked “URGENT” and stated employees would get 2
hours pay if they came in on their day off to vote.
The Petitioner’s fifth
witness, who works at the other facility, testified that employees where
required to attend meetings and attended a meeting on October 15. During the meeting, a Regional manager for
the Employer, whom the witness believes is Rick, told employees, “Anyone who is
off work will get paid 2 hours for coming in to vote. I don’t care how you vote.” The witness also stated that between voting
sessions on the day of the election, the employee saw that the dispatcher had a
list of names on the counter, the type of list employees sign to acknowledge
their presence at mandatory meetings such as safety meetings, indicating which
employees had been there that day.
The Employer asserts that it
lawfully offered to compensate off-duty employees for costs associated with
travel on the day of the election and expressly told them they were free to
vote either for or against the
6. I received two (2) hours
of show-up pay on October 17, 2008.
7. The Company expressly
told me that the show-up pay was not a bribe related to voting and, based on
the Company’s communication, I understood the purpose of the show-up pay was to
reimburse me for my time and travel expenses.
8. The Company told me that
to receive the show-up pay I did not have to vote and if I voted, I could vote
“yes” or “no.”
9. The two (2) hours of
show-up pay had no impact on whether I voted or how I voted.
Two of the 39 employees who
signed the prepared affidavits amended the affidavit to read that they drove a
charter on October 17, thus receiving pay for working and not show-up pay. Two of the 39 employees who signed the
prepared affidavits struck paragraphs 7 and 8 from the affidavits they executed. One employee struck paragraph 7, and another
struck “that to receive the show-up pay I did not have to vote and if I voted”
from paragraph 8. None of the employees
made any other changes to the affidavits.
In Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995), the
Board held that an employer’s monetary payments that are offered to employees
as a reward for coming to a Board election and that exceed reimbursement for
actual transportation expenses amount to a benefit that reasonably tends to influence
the election outcome. In
In
Here, like
In cases since Sunrise, the Board has found that the
employer engaged in objectionable conduct by the single act of offering 2 hours’ of pay to off-duty employees who came
in to work to vote in the election. The
employers did not describe the payment as reimbursement for transportation
costs or other expenses associated with traveling to the election site. Rite
Aid Corp., 326 NLRB 924 (1998); Lutheran
Welfare Services, 321 NLRB 915 (1996).
The Employer argues that if
employees are paid $10 per hour after taxes that would amount to $8 per hour,
or $16 for 2 hours of pay. Payroll
information or an average hourly rate of pay for employees was not submitted,
but the Petitioner’s witnesses stated they earned more than $12 to nearly $15
per hour. The Employer then computes
mileage reimbursement at the Internal Revenue Service rate of 58.5 cents per
mile, which would equate to compensating employees for an approximately 27-mile
round trip. The fact remains, however,
that there is no evidence that employees’ 2 hours’ show-up pay was in any way
linked to transportation expenses. Two employees
who live in the same zip code as the facility they voted at received the same
amount of show-up pay as an employee who lives in
Contrary to the Employer’s
contention, I find the Board’s decision in New
Era Cap Co., 336 NLRB 526 (2001), is distinguishable. In New
Era, the employer posted a notice on the morning of a union-affiliation
vote election urging employees to vote against affiliation, and offered all
on-duty employees free transportation to and from the polling station and reimbursement
of one-half hour wages to compensate the employees for the time it took them to
vote. As that case states, an employer
may provide transportation to and from a polling station, provided that the
benefit is offered on a nondiscriminatory basis, and the employees are free to
accept or reject the offer. Further, the
compensation paid to employees to vote was valued at only $5 per employee. This is similar to Allen’s Electric Co., 340 NLRB 1012 (2003), where the union offered
to reimburse voters for wages lost because of voting. Both of these cases compensated employees for
lost work hours because of the election.
Here, employees were not losing any work hours, rather they received 2
hours’ show-up pay they otherwise would not have received.
In these circumstances, I
find that the Employer’s offer of 2 hours’ show-up pay constituted an offer or
payment for employees’ time and a reward for coming in to vote, the Employer
did not describe this show-up pay as reimbursement for transportation costs and
it exceeded reimbursement for actual transportation expenses, reasonably tended
to influence the election outcome, and is objectionable conduct sufficient to
warrant setting aside the election.
Accordingly, I recommend that Objection 3 be sustained.
Conclusion and Recommendations
Having approved the Petitioner’s request to withdraw Objections 1, 2, and
4, and having recommended that Objection 3 be sustained, I further recommend
that the election be set aside and that a rerun election be conducted.[5]
November 20, 2008
