Arizona Public Service

National Labor Relations Board - Board Decisions

May 4, 1998

325 N.L.R.B. 723 (N.L.R.B. 1998)

723
325 NLRB No. 137
ARIZONA PUBLIC SERVICE CO.
1 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations to overrule Objections 1 and 4, and his
granting of the Petitioner’s motion to withdraw Objection 7.
The Employer filed a Motion to Supplement the Record, and the
Petitioner filed an opposition. In its motion, the Employer seeks to
supplement the record with an affidavit of a company official de-
scribing raffles allegedly conducted by the Employer prior to the one
at issue here. In light of our decision herein, the Employer’s motion
is denied as moot.
Arizona Public Service Company and International
Brotherhood of Electrical Workers, Local 387,
AFL–CIO, Petitioner. Case 28–RC–5407
May 4, 1998
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held May 30, 1996, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Decision and Direction of
Election. The tally of ballots shows 374 votes for, and
428 against, the Petitioner, with 43 challenged ballots,
an insufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, and adopts the hearing officer’s
findings and recommendations1 only to the extent con-
sistent with this decision and certification of results of
election.
I do not agree with the hearing officer’s rec-
ommendation to sustain the Petitioner’s Objection 5,
which alleges that the Employer interfered with the
election by conducting a raffle on the day of the elec-
tion.
The election in this case was held at four polling
places: three at the Employer’s Palo Verde, Arizona
facility, where the unit employees worked; and one at
a hotel in Phoenix, Arizona where off-duty employees
could vote. There were 928 employees in the unit.
The Employer conducted a preelection raffle. The
stated purpose of the raffle was to encourage employ-
ees to vote. The raffle prizes were two television sets
worth $999.99 each, two camcorders worth $799.99
each, and four restaurant certificates worth $100 each.
These prizes were to be split evenly between the on-
site employees and the off-duty employees.
The Board’s multifactor test for determining the le-
gality of raffles is set forth in Sony Corp., 313 NLRB
420 (1993). Interestingly, the dissent does not even
mention this test. This is not surprising. As shown
below, that result clearly leads to the result that the
raffle was lawful.
In Sony, the Board quoted the following principles
regarding raffles:
[T]he Board has held that the conduct of a raffle
does not constitute a per se basis for setting aside
the election. Rather, the Board will consider all of
the attendant circumstances in determining wheth-
er the raffle destroyed the laboratory conditions
necessary for assuring employees full freedom of
choice in selecting a bargaining representative.
Some of the factors considered relevant by the
Board have been whether the circumstances sur-
rounding the raffle provided the employer with
means of determining how and whether employ-
ees voted, whether participation was conditioned
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 em-
ployer’s position.
I agree with the hearing officer’s finding that there
is no evidence that the Employer used the raffle to de-
termine how and whether the employees voted, or that
participation in the raffle was conditioned upon how
the employee voted or upon the result of the election.
Thus, these elements of the Sony test clearly militate
in favor of the legality of the instant raffle.
With respect to the monetary value of the raffle, I
note that the value of a raffle ticket was even less than
it was in Sony (where the raffle was upheld). In Sony,
the unit consisted of about 120 employees, and the
prizes were worth $1500. Thus, a raffle ticket was
worth $12.50. In the instant case, the unit consisted of
928 employees, and the prizes were worth $4000.
Thus, the value of a raffle ticket was about $7. In sum,
under this element of the Sony test, the raffle passes
muster.
The dissent argues that the Employer’s purpose was
to induce employees to vote against the Union. In re-
sponse, I note that this factor is not a part of the Sony
test. The only part of Sony that even comes close to
this contention is the inquiry into whether the mone-
tary values are so substantial ‘‘as to inherently induce
those eligible to vote in the election to support the em-
ployer’s position.’’ As discussed above, the monetary
values involved here were even less than those in
Sony.
Further, even if the dissenter’s point is relevant, this
would not change the result. In essence, the dissent as-
serts that the Employer wanted a large voter turnout
because it believed that such a turnout would more
likely result in a union loss. In my view, a large turn-
out is a public good, quite consistent and indeed desir-
able under the Act. If one party or the other thinks that
a large voter turnout will favor its side, there is noth-
ing wrong in encouraging such a turnout. In that way,
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724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 302 NLRB 245 (1991).
3 I recognize that the Board in Drilco found that the announcement
of the prizes was unlawful. However, as noted above, in finding that
the announcement was objectionable, the Board relied on the fact
that the prizes were given away on the day of the election.
many employees, rather than a few, will vote their
choice. That is the way a democracy works.
The dissent says that the Employer opposed the
Union, and stated its opposition in its announcement of
the raffle. The dissent concedes that such an expres-
sion of opinion is itself permissible. I do not see how
this permissible expression of an opinion can render
objectionable that which is otherwise unobjectionable.
As stated at the outset, the dissent is unwilling to
deal with the Sony test. It has chosen instead the B &
D Plastics test.2 Of course, Sony deals specifically
with raffles, while B & D deals with changes in em-
ployee terms and conditions of employment (a paid
day off). Clearly, Sony is the applicable test inasmuch
as the instant case involves a raffle. My colleague gets
to her B & D test through a curious route. She says
that Gulf States Canners, 242 NLRB 1326 (1979), sets
forth a test for ‘‘grants of benefits,’’ and that this test
does not distinguish between ‘‘raffle’’ benefits and
other benefits. She then says that Gulf States was
‘‘cited and applied’’ in B & D. However, she ignores
the facts that: (1) Gulf States was not a raffle case; (2)
B & D was not a raffle case; (3) Gulf States was cited
only for the proposition that the test in ‘‘grant of bene-
fit’’ cases is an objective one (no one disagrees with
that proposition); and (4) the Sony case is a raffle case.
Further, even if B & D were applicable, the raffle
would not be objectionable. The dissent focuses on
only one (of four) of the B & D factors. The dissent
asserts that the employees ‘‘would perceive the pur-
pose of the raffle for what it was—a material incentive
to vote against the Union.’’ There is no evidence to
support the assertion. As noted, the purpose of the raf-
fle was to encourage employees to vote. The Employer
hoped and believed that a large turnout would result in
a union loss. However, offering an incentive to vote is
not the same thing as offering an incentive to vote
against the Union.
The dissent also relies upon Sunrise Rehabilitation
Hospital, 320 NLRB 212 (1995). I agree with the dis-
sent in that case, with the similar dissent in Lutheran
Welfare Services, 321 NLRB 915 (1996), and with the
concurrence in Good Shephard Home, 321 NLRB 426
(1996). That is, I see nothing objectionable in com-
pensating off-duty employees for their transportation
expenses and for their time in coming to the polls,
where the purpose of the compensation is to encourage
employees to vote.
Further, even accepting Sunrise as the law, I note
that the instant case is different. As in B & D Plastics,
the Sunrise employees were given a benefit concerning
their terms and conditions of employment (they were
given 2 hours wages for coming in to vote.) As dis-
cussed supra, raffles are treated differently from wages.
Accordingly, Sony (the raffle case) was not overruled,
or even mentioned, in Sunrise.
The dissent notes that there is no evidence of a past
practice of raffles in the instant case. The concurrence
also emphasizes the factor of past practice. However,
the asserted absence of a past practice of raffles was
not a basis for the objection, and thus the Employer
had no occasion to introduce any rebuttal evidence on
this point. In any event, as the dissent concedes, the
past practice does include the payment of transpor-
tation expenses as a means of encouraging employees
to vote. The Employer paid such expenses in the past,
i.e., when such payments were lawful under Young
Men’s Christian Assn., 286 NLRB 1052 (1987). The
Employer resorted to a new practice (the raffle) in this
case in order to comply with the ‘‘new law’’ of Sun-
rise. In these circumstances, I would not condemn the
Employer’s raffle simply because it never held one be-
fore.
The dissent relies on Drilco, a Division of Smith
International, Inc., 242 NLRB 20 (1979). The case is
clearly distinguishable. In Drilco, the employer an-
nounced, 4 days prior to the election, that the raffle
prizes would be given away on the day of the election.
In finding objectionable conduct, the Board empha-
sized that the prizes were to be given away ‘‘on the
day of the election.’’ The Board concluded that such
conduct would ‘‘divert the attention of the employees
away from the election and its purpose.’’ In the instant
case, the Employer did not award the prizes until al-
most a week after the election. Thus, the Employer
took care not to sully the atmosphere on election day.3
Finally, with respect to the concurrence, I do not be-
lieve that I have wandered into ‘‘the Scylla of exces-
sive deregulation.’’ However, the phrase is more color-
ful than precise, and thus I am uncertain as to what it
means. If it means that I would permit reasonable ef-
forts to get out the vote, I plead guilty to such deregu-
lation. As stated above, I believe that a large turnout
at the polls is consistent with the democratic goals of
the Act, and I would not use government regulation as
a device to hinder the attainment of that goal.
Since my concurring colleague joins me in the re-
sult, we reverse the hearing officer and overrule Peti-
tioner’s Objection 5. Further, because we agree with
the hearing officer’s recommendations to overrule the
Petitioner’s other objections, we certify the results of
the election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for International Brotherhood
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725ARIZONA PUBLIC SERVICE CO.
1 Although Member Hurtgen contends that he would permit ‘‘rea-
sonable efforts’’ to get out the vote by an employer, it is readily ap-
parent from his opinion that his standard would permit employer ef-
forts that are anything but ‘‘reasonable.’’ Precisely, this view con-
stitutes much of the Scylla against which proponents of the Act’s
policies would be dashed if their ships were to pursue the siren call
of Member Hurtgen’s opinion.
2 See, e.g., my opinions in Mod Interiors, 324 NLRB No. 33 (Aug.
7, 1997); and Fountainview Care Center, 323 NLRB No. 172, slip.
op. at 2–3 (June 16, 1997) (W. Gould concurring). See also W.
Gould, Agenda for Reform: The Future of Employment Relationships
and the Law (MIT Press 1993).
3 See, e.g., Flint Iceland Arenas, 325 NLRB No. 43, slip op. at
4–6 (Jan. 23, 1998) (W. Gould, dissenting); Smith’s Food & Drug
Centers, Inc., 320 NLRB 844; 847–848 (1996) (W. Gould concur-
ring); Douglas-Randall, Inc., 320 NLRB 431 (1995), and Manage-
ment Training Corp., 317 NLRB 131 (1995).
4 This, of course, is a paraphrase of Justice Frankfurter’s words in
International Association of Machinists v. Gonzales, 356 U.S. 617,
619 (1958).
5 In Sony Corp., 313 NLRB 420 (1993) the Board took notice of
the employer’s past practice in finding that an election-day raffle
held for voting employees was not objectionable. However, the
Board in Sony did not place primary emphasis on employer past
practice, but rather applied its traditional analysis and found the raf-
fle not objectionable because the value of the prizes was not so sub-
stantial as to interfere with employee free choice in the election.
Thus, Sony did not hold that past practice was a determinative fac-
tor.
6 Further, if the employer’s past practice established that the elec-
tion-day raffle was in addition to other regularly scheduled raffles,
that too might well be considered as something extra for employees
voting in the election.
of Electrical Workers, Local 387, AFL–CIO and that
it is not the exclusive representative of these bargain-
ing unit employees.
CHAIRMAN GOULD, concurring.
The unsatisfactory nature of the competing analyses
of my colleagues in the instant case is perplexing. I am
of the view that the views set forth in my opinion are
consonant with the Act’s policy objectives and that
they carefully skirt the Scylla of excessive deregulation
provided by Member Hurtgen1 and the Charybdis of
wasteful litigation inherent in the approach devised by
Member Liebman. Neither approach is properly at-
tuned to the policies of the Act.
Nonetheless, inasmuch as the labor-management
electoral campaign arena is best addressed through
broad mechanical rules2 which put the parties on no-
tice as to their rights and obligations and given the
perils of time-consuming litigation3 inevitably more
delphic than elucidating4 ever present in the whirlpool
of Charybdis, I am persuaded that the better course is
to join the general approach of Member Hurtgen under
the circumstances of this case.
Accordingly, I join Member Hurtgen in reversing
the hearing officer’s recommendation to sustain Peti-
tioner’s Objection 5, which alleges, in part, that the
Employer held a raffle for employees who voted in the
election. I disagree with the Board’s current approach
in this area, i.e., that an election-day raffle is objec-
tionable if the prizes are of a substantial nature. See
Grove Valve & Regulator, 262 NLRB 285, 303
(1982); Drilco, a Division of Smith International, 242
NLRB 20, 21 (1979). In my view, the Board should
modify its analysis of election-day raffles to place pri-
mary consideration on whether the employer has, in
the past, held raffles of a similar nature for employees.
In my opinion the Board should impose as few regu-
lations with respect to elections as possible. However,
the analysis of election day raffles needs to be consist-
ent with the Board’s decision in Sunrise Rehabilitation
Hospital, 320 NLRB 212, 213 (1995). There, the
Board held that payments offered to employees as a re-
ward for coming to a Board election and that exceed
reimbursement for actual transportation expenses con-
stitutes objectionable conduct warranting setting aside
the election. Thus, where the offer of a monetary bene-
fit is closely related to voting in the election, the offer
is objectionable because it is construed as ‘‘something
extra for employees on election day.’’ Sunrise, supra
at 213.
The Employer’s election day raffle for employees
here may be similar to the offer of benefit in Sunrise
if it too is an offer of benefit that is closely related to
the election. Whether the raffle amounts to an actual
benefit, however, can only be determined by viewing
the election-day raffle in context with the Employer’s
past practice with respect to raffles.
In circumstances where an employer has a past prac-
tice of holding raffles for its employees, the conduct
of an election-day raffle—with prizes similar to those
awarded in prior raffles—would not interfere with em-
ployee free choice. Indeed, in such circumstances, em-
ployees would be accustomed to raffles and therefore
would not likely perceive the election-day raffle as a
grant of a benefit or ‘‘something extra’’ for voting in
the election.5
If, however, an employer has held no previous raf-
fles for its employees, its election-day raffle could eas-
ily be perceived as ‘‘a favor from the [e]mployer
which employees might feel obligated to repay by vot-
ing against the [u]nion, as the [e]mployer requested.’’
Sunrise, supra at 213. In such circumstances, the raffle
would undermine employee free choice in the election.
Similarly, in circumstances where an employer has a
history of conducting raffles with prizes of a certain
value, employees could well perceive an election-day
raffle—with prizes of a substantially greater value—as
‘‘something extra’’ for employees voting in the elec-
tion, and thus the raffle would constitute objectionable
conduct.6
Because prior cases concerning raffles have not
placed primary emphasis on employer past practice,
the record in the instant case is devoid of evidence
concerning the existence of prior raffles conducted by
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726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 I would also overrule Sony, supra, because it does not hold that
past practice is the determinative factor.
1 Member Hurtgen’s claim that Drilco is ‘‘clearly distinguishable’’
does not withstand scrutiny. He states that in Drilco the Board em-
phasized that the prizes were to be given away ‘‘on the day of the
election,’’ while in the instant case the prizes were awarded after the
election. In Drilco, however, it was not the grant of the prizes that
the Board found objectionable, but rather the announcement of the
prizes, the identical ground on which the hearing officer relied in
this case.
2 Member Hurtgen claims that I have applied the wrong test, stat-
ing that under Board law ‘‘raffles are treated differently’’ from other
grants of benefits. I disagree. In Gulf States Canners, 242 NLRB
1326 (1979), a leading case in this area, the Board made clear that
in deciding whether a party’s bestowal of economic benefits on em-
ployees is objectionable, it applies the same test regardless of the
particular benefit involved. Citing, inter alia, raffle cases, the Board
stated that the appropriate standard is whether the challenged con-
duct ‘‘had a tendency to influence the outcome of the election.’’ B
& D Plastics cited and applied the Gulf States Canners test.
3 I agree with Member Hurtgen that the Employer’s expression of
opposition to the Union, in and of itself, is permissible. However,
in determining whether the raffle ‘‘had a tendency to influence the
outcome of the election,’’ Gulf States Canners, supra, the Employ-
er’s statements in the flyer announcing the raffle are plainly relevant.
I fully concur with Member Hurtgen’s assertions that ‘‘a large
turnout is a public good’’ and that ‘‘there is nothing wrong in en-
couraging such a turnout.’’ But, in my view, what is ‘‘wrong’’ is
to seek to achieve the objective of a large turnout by offering em-
ployees material incentives while exhorting them to vote against the
Union.
the Employer. Thus, the most appropriate analysis of
Objection 5 would require establishing a new standard
focusing on employer past practice, and also remand-
ing that objection for further evidence concerning the
Employer’s past practice.7 However, in the absence of
a majority vote for remanding this case to place pri-
mary consideration on the Employer’s past practice, I
shall decide the case on the record that is before us.
Thus, insofar as the record fails to show that the elec-
tion-day raffle was inconsistent with the Employer’s
past practice, I am unable to find that the raffle was
objectionable. Accordingly, I join Member Hurtgen in
certifying the results of the election.
MEMBER LIEBMAN, dissenting.
Unlike my colleagues in the majority, I agree with
the hearing officer’s recommendation to sustain the Pe-
titioner’s Objection 5, which alleges that the Employ-
er’s raffle of door prizes worth $4000 plus tax, con-
ducted on the day of the election, interfered with the
employees’ free choice. In recommending that the
election be set aside, the hearing officer correctly
found, consistent with Board precedent, that the raffle
prizes were so substantial as to both divert the employ-
ees’ attention away from the election and its purpose,
and to inherently induce eligible voters to support the
Employer’s antiunion position. E.g., Drilco, A Division
of Smith International, 242 NLRB 20 (1979).1 Further,
I agree with the hearing officer that the manner in
which the raffle was announced and promoted by the
Employer had the tendency to induce voters to support
the Employer’s position by voting against the Peti-
tioner.
The Employer announced the raffle in an ‘‘FYI’’
styled flyer that exhorted employees to vote against the
Union. The flyer notified employees that, in the past,
the Employer had paid off-duty employees for their
time spent voting, but, because of a recent ruling by
the National Labor Relations Board, that practice was
no longer permitted. ‘‘[I]nstead,’’ the flyer stated, the
Employer would provide prizes for voters, including
two color television sets, two video cameras, and other
door prizes. The bottom half of the one page flyer con-
sisted of a question and answer:
Q: All the talk aside, why not a union?
A: There are many reasons. The 10 most im-
portant are: . . .
Ten numbered reasons to vote against the Union fol-
lowed. At the bottom of the page, in large bold letters
was printed ‘‘85% of American workers can’t be
wrong! Vote NO!’’
I view as disingenuous the Employer’s contention
and Member Hurtgen’s conclusion that the purpose of
the raffle was purely to encourage a large voter turn-
out. From its research during the campaign, the Em-
ployer had concluded that a close election was likely
and that a high voter turnout would be important in de-
feating the Union. The raffle was thus not a simple in-
centive to vote. The manifest purpose of the raffle, as
evidenced by its announcement, was to induce employ-
ees (with prizes of not insignificant value) to ‘‘Vote
NO!’’ Significantly, the raffle was not conducted in a
neutral context. The Employer conducted an active
campaign to defeat the Union; even the raffle an-
nouncement itself was partisan.
Critical to determining the propriety of any offer of
benefit during an election campaign is how the em-
ployees would reasonably construe the purpose of the
benefit. B & D Plastics, Inc., 302 NLRB 245 (1991).2
Here, it is reasonable to infer that employees would
perceive the purpose of the raffle for what it was—a
material incentive to vote against the Union. Likewise,
it is reasonable to infer that employees would view the
raffle prizes as a favor or benefit, being offered by the
Employer, which was intended to influence their vote
in favor of the Employer, or which they might feel ob-
ligated to repay by voting against the Union, as the
Employer requested. Apathetic voters in particular,
who might not otherwise be inclined to go to the polls,
would more likely favor the party offering the induce-
ment.3
Contrary to my colleagues in the majority, I agree
with the hearing officer’s reliance on Sunrise Rehabili-
tation Hospital, 320 NLRB 212 (1995), in which the
Board held that it would no longer permit off-duty em-
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727ARIZONA PUBLIC SERVICE CO.
ployees to be paid for voting. In the instant case, as
in Sunrise, the Employer’s announcement of prizes for
voters came in a flyer exhorting the employees to vote
against the Union and was not linked to any legitimate
expense reimbursement. Also as in Sunrise, the Em-
ployer here provided something ‘‘extra’’ to the em-
ployees who voted, and it did so in a manner that like-
ly would induce employees to support the Employer’s
antiunion position. Significantly, in its flyer announc-
ing the raffle, the Employer, presumably referring to
Sunrise, expressly substituted raffle prizes for its past,
now prohibited, practice of paying employees for vot-
ing.
I also agree with the hearing officer that Sony Corp.,
313 NLRB 420 (1993), is distinguishable. In that case,
the Board considered the employer’s past practice of
conducting raffles on other occasions as a factor in
finding an election raffle unobjectionable. There was
no evidence of such a past practice in this case. Lastly,
the prizes offered in the raffle conducted in Sony were
of lesser value than those here.
Accordingly, for the reasons set forth by the hearing
officer, I find that the Employer’s election-day raffle
interfered with the election and that a new election
must be held.
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