Allenbrooke Healthcare Center

National Labor Relations Board - Board Decisions

Aug 22, 2000

331 N.L.R.B. 1065 (N.L.R.B. 2000)

ALLEN-BROOKE HEALTHCARE CENTER 1065
Beverly Enterprises-Tennessee, Inc. d/b/a Allen-
Brooke Healthcare Center and United Food and
Commercial Workers Union, Local 1529, Peti-
tioner. Case 26–RC–8043
August 22, 2000
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX,
LIEBMAN, HURTGEN, AND BRAME
This case presents the issue of whether the Employer
engaged in objectionable conduct by holding a raffle for
employees on the election date.1 In Atlantic Limousine,
331 NLRB No. 134 slip op. at 5 (2000), the Board re-
cently adopted a new rule barring “employers and unions
from conducting a raffle if (1) eligibility to participate in
the raffle or win prizes is in any way tied to voting in the
election or being at the election site on election day or (2)
the raffle is conducted at any time during a period begin-
ning 24 hours before the scheduled opening of the polls
and ending with the closing of the polls.” The Board
also stated that, consistent with its usual practice, it
would apply this new rule to all pending cases before the
Agency.2 Applying Atlantic Limousine, we agree with
the hearing officer’s recommendation to sustain the Peti-
tioner’s Objection 5, which alleges that the Employer’s
raffle interfered with the election. We reach this conclu-
sion for the reasons set forth below.
The evidence shows that the Employer posted signs
announcing that a “Grocery Cart Raffle” would be held
on the day of the election. Employees were informed
that raffle tickets would be handed out by Renee Darling,
the Employer’s human relations/payroll manager, during
both sessions of the election and that the two winners of
the raffle would each receive a grocery cart with $234
worth of groceries. In large, bold letters the flyer stated,
“This [$234] is an approximate amount of a year’s worth
of UNION DUES!” During the morning session of the
split-shift balloting from 7–7:30 a.m., Darling, stationed
herself near the Employer’s reception desk, some 200–
300 feet from the area where the voting took place, and
distributed raffle tickets to employees as they came to
work. Employees did not have to write their names on
the numbered tickets.

1 Pursuant to a Stipulated Election Agreement, an election was held
November 12, 1998, in a unit consisting of all full-time and regular
part-time certified nursing assistants, housekeeping employees, laundry
employees, dietary employees, and maintenance assistants employed by
the Employer at its Allenbrooke Healthcare Center in Memphis, Ten-
nessee; excluding all other employees, including registered nurses,
licensed practical nurses, activities department associates, social service
associates, therapy associates, medical records clerk, central supply
clerk, registered dietitian, diet tech, maintenance supervisor, depart-
ment heads, office clerical employees, receptionists, professional em-
ployees, guards, managers, and supervisors as defined in the Act. The
tally of ballots shows that, of approximately 96 eligible voters, 42 cast
votes for, and 42 against, the Petitioner, with 2 determinative chal-
lenged ballots.
In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s recommendations to overrule the challenges to the irregularly
marked ballot and employee Mark Kane’s ballot, as well as the Peti-
tioner’s Objections 1–4 and 6–12.
2 Atlantic Limousine, supra, slip op. at 6, fn. 15.
At the afternoon voting session held from 2:30–3:30
p.m., the employees lined up in the front dining room of
the Employer’s facility, some 200–300 feet from the
polling place. At that time, as is the custom on payday,
they received their paychecks from Darling in the dining
room and signed the ledger acknowledging receipt. The
Employer, at the same time that it distributed paychecks,
also handed out raffle tickets to all employees receiving
paychecks. It is possible that some employees received
raffle tickets during both the morning and afternoon vot-
ing sessions. The day after the election the Employer
awarded two prizes, each worth $234 in groceries.
Applying Atlantic Limousine, we conclude that the
Employer’s raffle constituted election interference. The
Board in that case defined the term “conducting a raffle”
as, inter alia, “distributing raffle tickets” during the pro-
scribed period stated above. The Employer in this case
clearly violated this proscription by dispensing raffle
tickets to employees throughout the balloting. In addi-
tion, because the raffle tickets were distributed on elec-
tion day at the Employer’s facility, eligibility to partici-
pate in the raffle was clearly conditioned on being at the
election site on election day. Thus, the Employer’s raffle
violated both “prongs” of the Board’s rule concerning
election-related raffles. Accordingly, on this basis, we
affirm the Regional Director’s recommendation to sus-
tain the Petitioner’s Objection 5 and to direct a new elec-
tion.3
Because there were no exceptions filed to the hearing
officer’s recommendation that the irregularly marked
challenged ballot be recorded as a “No” vote, it is certain
that the Petitioner cannot receive a majority of the ballots
cast in this election.4 Accordingly, we shall direct a sec-
ond election.
[Direction of Second Election omitted from publication.]

MEMBERS HURTGEN AND BRAME, dissenting.
Based on our dissenting opinion in Atlantic Limousine,
331 NLRB No. 134 (2000), we disagree with the major-
ity’s finding that the Employer engaged in objectionable
conduct by holding an election raffle. We continue to
subscribe to Sony Corp. of America, 313 NLRB 420
(1993), in which the Board applied the long established
3 Because we find the Employer’s raffle objectionable under Atlantic
Limousine, we find it unnecessary to pass on the hearing officer’s find-
ing that the linking of raffle ticket distribution to the distribution of
paychecks was violative of the rule set forth in Kalin Construction Co.,
321 NLRB 649, 652 (1996).
4 Even assuming the remaining challenged ballot was cast for the Pe-
titioner, the best result that the Petitioner can attain here is a tie vote.
Therefore, we find it unnecessary to open and count the remaining
ballot and to issue a revised tally.
331 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
multifactor test for determining whether raffles constitute
election interference.
In Sony, the Board set forth the following principles
concerning raffles:
[T]he Board has held that the conduct of a raffle does
not constitute a per se basis for setting aside the elec-
tion. Rather, the Board will consider all of the atten-
dant circumstances in determining whether the raffle
destroyed the laboratory conditions necessary for assur-
ing employees full freedom of choice in selecting a
bargaining representative. Some of the factors consid-
ered relevant by the Board have been whether the cir-
cumstances surrounding the raffle provided the em-
ployer with means of determining how and whether
employees voted, whether participation was condi-
tioned upon how the employee voted in the election or
upon the result of the election, and whether the prizes
were so substantial as to either divert the attention of
the employees away from the election and its purpose
or as to inherently induce those eligible to vote in the
election to support the employer’s position.
[313 NLRB 420, quoting Grove Valve & Regulator Co.,
262 NLRB 285, 303 (1982).]
Applying the test of Sony to the present case, we find
that the Employer’s raffle was unobjectionable. Thus,
the raffle did not provide the Employer with the means
for determining how and whether employees voted in the
election. The Employer also did not condition its em-
ployees’ participation in the raffle on how they voted in
the election or on whether they rejected union representa-
tion. Regarding the issue of whether the prizes the Em-
ployer awarded were so substantial as to divert the em-
ployees’ attention away from the purpose of the ballot-
ing, the evidence shows that two employees in a unit of
approximately 96 eligible voters each received groceries
valued at $234. This means that the benefit of the raffle
ticket to the participating employees was about $5 per
employee. Since the value of the raffle ticket in Sony
was $12.50 and the Board found that the prizes the em-
ployer granted there were unobjectionable, the Em-
ployer’s raffle could not have interfered with this elec-
tion under the application of the Sony test.
Also, we would not find that the Employer changed its
method of paycheck distribution in this case simply be-
cause it distributed raffle tickets together with the em-
ployees’ paychecks. The evidence here shows that the
Employer issued paychecks to its employees at the same
time, in the same place, and in the same manner that it
always did. The distribution of raffle tickets was nothing
more than a simultaneous event that had no meaningful
impact on the election. Thus, even assuming that we
subscribe to the Board’s decision in Kalin Construction
Co., 321 NLRB 649 (1996), we would not find that the
Employer engaged in conduct that warranted setting
aside the election.1 Accordingly, we would overrule the
Petitioner’s Objection 5 and certify the election results.

1 Member Hurtgen, in any event, disagrees with the Board’s decision
in Kalin Construction for the reasons set forth in his dissenting opinion
in United Cerebral Palsy Assn. of Niagara County, 327 NLRB 40
(1998).
Member Brame finds it unnecessary to pass on the validity of Kalin
Construction in the context of this case.