Atlantic Limousine, Inc.

National Labor Relations Board - Board Decisions

Aug 14, 2000

331 N.L.R.B. 1025 (N.L.R.B. 2000)

ATLANTIC LIMOUSINE 1025
Atlantic Limousine, Inc. and Teamsters Local Union
No. 331, affiliated with International Brother-
hood of Teamsters, AFL–CIO, Petitioner. Case
4–RC–18132
August 14, 2000
SUPPLEMENTAL DECISION AND DIRECTION OF
THIRD ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX,
LIEBMAN, HURTGEN, AND BRAME
The issue presented in this case is whether the Em-
ployer engaged in objectionable conduct by conducting a
raffle on the day of the election.1 Applying the multifac-
tor test set forth in Sony Corp. of America, 313 NLRB
420 (1993), the Regional Director found that the raffle in
this case did not interfere with employee free choice in
the election.2 For the reasons set forth below, we have
decided to overrule the precedent relied on by the Re-
gional Director and to adopt a new rule prohibiting elec-
tion day raffles.
I. FACTUAL BACKGROUND
The underlying facts are not in dispute. On October 5,
1998, an election was conducted at the Quality Inn Hotel
in Atlantic City, New Jersey, to determine whether the
Employer’s unit employees wanted to be represented by
the Petitioner for the purposes of collective bargaining.
Approximately 5 days prior to the election, the Employer
distributed a flyer to all employees eligible to vote in the
election entitled “ELECTION DAY RAFFLE! ELECTION
DAY RAFFLE!” The flyer announced that the Employer
would hold a raffle following the election, and that the
winner of the drawing would receive a color television
with an integrated video cassette recorder. According to
the Employer’s flyer, the TV/VCR was “approximately
equal in value to what your union dues and initiation fees
could be for the first year.”3 The flyer also stated that the
“sole purpose of the raffle is to encourage everyone to
vote,” and that participation in the raffle was voluntary.

1 Pursuant to a Decision, Order, and Direction of Second Election, an
election was held October 5, 1998, in a unit consisting of “[a]ll full-time
and regular part-time limousine drivers of the Employer, excluding all
other employees, dispatchers, detailers, body person, mechanic, office
clerical employees, guards and supervisors as defined in the Act.” The
tally of ballots shows that there were approximately 145 eligible voters,
that 29 votes were cast in favor of the Petitioner and 85 votes were cast
against the Petitioner, with no challenged ballots.
2 The Sony test is as follows:
[T]he Board has held that the conduct of a raffle does not consti-
tute a per se basis for setting aside the election. Rather, the Board
will consider all of the attendant circumstances in determining
whether the raffle destroyed the laboratory conditions necessary for
assuring full freedom of choice in selecting a bargaining representa-
tive. Some of the factors considered relevant by the Board have been
whether circumstances surrounding the raffle provided the employer
with means of determining how and whether employees 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 em-
ployees away from the election and its purpose or as to inherently in-
duce those eligible to vote in the election to support the employer’s
position.
On the day of the election, the balloting area was es-
tablished in a room in the rear of the hotel. The raffle
was set up at a table in the hotel’s middle lobby, and the
voting area could not be seen from the raffle area. Vot-
ers entering the hotel through its front entrance inevitably
passed through the raffle area in the middle lobby to get
to the voting area, but voters entering through the hotel’s
restaurant could avoid the raffle area altogether. The
Regional Director’s decision does not indicate the rela-
tive proportion of voters passing through, or avoiding,
the raffle in the middle lobby.
The raffle attendant, a friend of a nonunit employee,
was paid $100 by the Employer for the single day to
conduct the raffle. The raffle attendant did not know,
and made no attempt to learn, the voters by name or face,
nor did he make any sort of voter list. He was instructed
by the Employer’s president to distribute a raffle ticket to
each person who approached the table and indicated a
willingness to participate. The TV/VCR was displayed
on the raffle table, which also held the box in which vot-
ers dropped their raffle tickets. The Employer’s flyer
announcing the raffle was affixed to the raffle box. Bal-
lots counted after the polls closed indicated that the ma-
jority of the voters voted against representation by the
Petitioner.
II. THE REGIONAL DIRECTOR’S DECISION AND THE
REQUEST FOR REVIEW
The Petitioner objected to the Employer’s election day
raffle, arguing that it constituted a conferral of benefits and
created an inappropriate “circus atmosphere” that war-
ranted setting aside the election. The Regional Director
conducted an investigation, overruled the objection, and
certified the results of the election. Specifically, the Re-
gional Director found that the raffle passed muster under
Sony, supra, because the raffle was not used as a means to
determine how or whether employees voted, participation
in the raffle was not conditioned on how the employee
voted in the election or on the election’s outcome, and the
$350 prize was not so substantial that it diverted employ-
ees’ attention away from the election or its purpose or in-
herently induced voters to support the Employer’s posi-
tion. The Regional Director observed that the Board’s
decision in Arizona Public Service (APS), 325 NLRB 723
(1998), cast some doubt on the viability of Sony.4 Be-
cause, however, there was no majority in APS to overrule
3 The Regional Director found that the cost of the TV/VCR was about
$350.
4 The APS decision is fully discussed in sec. III,A, infra. In brief, APS
involved an election day raffle similar to the one in issue here. Issuing
three separate opinions, including a dissent, the three-member panel held
that the raffle was not objectionable, but the two members comprising the
majority articulated different rationales.
331 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026
Sony, the Regional Director held that the Sony test was the
applicable precedent governing this case.
The Petitioner’s request for review argues, among other
things, that the Board’s cases involving election-timed
raffles are unwieldy and inconsistent. The Petitioner urges
that, particularly in light of the Board’s opinion in APS,
the Board should reconsider the law with regard to elec-
tion day raffles. The Employer opposes review, arguing
that the Sony test is clear, and that this raffle is not objec-
tionable on the basis of any of the Sony factors. On Janu-
ary 8, 1999, the Board granted the Petitioner’s request for
review. Thereafter, the Employer filed a brief on review.5
III. ANALYSIS
A. Overview of the Board’s Raffle Cases
In order that employees may exercise freedom of choice
on questions concerning union representation, the Board
seeks to create and preserve for its elections an atmosphere
free of undue advantage or improper influence. General
Shoe Corp., 77 NLRB 124 (1948). In applying this prin-
ciple to a variety of factual settings, the Board has im-
posed restrictions on the parties’ pre-election conduct.
Such restrictions have included, for instance, a “strict rule”
against “prolonged conversations between representatives
of any party to the election and voters waiting to cast bal-
lots;”6 a prohibition of “election speeches on company
time to massed assemblies of employees within 24 hours
before the scheduled time for conducting an election;”7 a
rule barring “changes in the payroll process, for the pur-
pose of influencing the employees’ vote in the election,
during a period beginning 24 hours before the scheduled
opening of the polls and ending with the closing of the
polls”;8 and a prohibition on the “bestowal of economic
benefits” that have “a tendency to influence the outcome
of the election.”9 The Board has imposed these restric-
tions pursuant to the wide degree of discretion it enjoys “in
establishing the procedure and safeguards necessary to
insure the fair and free choice of bargaining representa-
tives by employees.”10
Consistent with this practice, the Board has periodically
reviewed the question of whether election-related raffles
impair employee free choice in representation elections.
The Board’s first decisions involving raffles examined
their effect on representation elections in only a cursory
fashion, and ultimately concluded that the raffles had not
impaired employee free choice. For instance, in Elgin
Butler Brick Co., 147 NLRB 1624 (1964), the Board
summarily reversed the Regional Director’s finding that

5 The Employer has requested oral argument. The request is denied as
the record, exceptions, and brief adequately present the issues and the
positions of the parties.
6 Michem, Inc., 170 NLRB 362 (1968).
7 Peerless Plywood Co., 107 NLRB 427, 429 (1953).
8 Kalin Construction Co., 321 NLRB 649 (1996).
9 Gulf States Canners, 242 NLRB 1326 (1979), enfd. 634 F.2d 215
(5th Cir. 1981); B & D Plastics, 302 NLRB 245 (1991).
10 NLRB v. A. J. Tower Co., 329 U.S. 324, 330–331 (1946).
the raffle of a television set only to employees who voted
“unduly rewarded employees,” holding that the raffle
merely encouraged employees to vote and “without more”
was not objectionable conduct.

In the late 1960s, the Board considered two cases in
which employers added antiunion propaganda to their
election-related raffles. In Hollywood Plastics, Inc., 177
NLRB 678, 681 (1969), immediately prior to balloting, the
employer distributed raffle tickets to voters offering
chances at $82 worth of groceries, which had been dis-
played in the plant on the day prior to the election with
propaganda suggesting that the groceries were equivalent
in value to an employee’s union dues. The employer an-
nounced that the purpose of the raffle was to encourage
everyone to vote. Similarly, in Buzza-Cardozo, 177
NLRB 589 (1969), the employer distributed raffle tickets
to voters offering chances at $84 worth of groceries, which
were described to employees as equaling the cost of an-
nual union dues. The employer announced the raffle in a
posted advertisement which urged employees to vote. In
both cases, which the Board issued on the same day, a
divided panel held that the raffles were not objection-
able.11 Recognizing the potential of raffles to influence
voters, the Board for the first time concluded that “the use
of a raffle as a propaganda gimmick is not a per se basis
for setting aside the election, but would rather depend
upon the circumstances involved.” Hollywood Plastics,
177 NLRB at 681 (emphasis added).
Thus began the Board’s use of the multifactor test to de-
termine whether raffles interfered with representation elec-
tions. In Hollywood Plastics, the Board adopted the Re-
gional Director’s inquiry into whether the raffle was used
to propagandize about union dues, whether the distribution
of raffle tickets occurred in conjunction with any election-
11 Presaging later conceptual disagreements among Board members as
to the nature of the harm caused by raffles, Member Zagoria dissented in
both Hollywood and Buzza-Cardozo. The dissent relied not on the theory
that raffles constituted an improper promise of benefits, but rather on their
potential to distract the voters away from the task at hand:
The raffle itself I do regard, by itself, as a sufficient basis for set-
ting aside the election. A Board-sponsored election is a serious
governmental function, conducted by agents whose responsibilities
are sufficiently numerous without the additional burden of policing
games-of-chance. The introduction of the raffle into the election
creates a carnival-like atmosphere, transforming the employee from
voter into contestant, and diverting his attention from the issue be-
ing decided to the possibility of winning a prize. The decision on
whether to have a union or not is the significant one and should not
be intruded upon by eye-catching propaganda masquerading as a
game of chance.
Buzza-Cardozo, 177 NLRB at 589.
Two years later, Chairman Miller adopted Member Zagoria’s per se
disapproval of raffles, endorsing the view that they create a “carnival-like
atmosphere which diverts employees from the real issue of the election.”
Electro-Voice, Inc., 191 NLRB 425, 426 fn. 2 (1971). That case, like
Hollywood Plastics and Buzza-Cardozo, involved a raffle held on the day
of the election for the announced purpose of encouraging voting. As in
Hollywood Plastics and Buzza-Cardozo, the prize was groceries valued at
the equivalent of a year’s union dues. The panel majority held that the
holding of the raffle did not warrant setting aside the election.
ATLANTIC LIMOUSINE 1027
eering at or near the polls, whether either the distribution
of the tickets or the prize was contingent on how the em-
ployee voted or the election results, and whether the value
of the prize was so substantial as to induce a vote in favor
of the employer. Id. at 681. This multifactor analysis is
clearly the early antecedent to the test set out in Sony. See
footnote 2, supra. As later cases show, however, such a
multifactor analysis has proved to be cumbersome and
unpredictable.
Illustrative of this point is the Board’s inquiry into
whether the use of the raffle permits the employer to de-
termine whether employees had voted. In Hollywood
Plastics, for instance, the Regional Director noted that in
distributing the raffle tickets, the employer “went around
the shop and made sure that everyone had a ticket” and so
was able to “surmise[] that everyone had voted.” Holly-
wood Plastics, 177 NLRB at 681. This fact troubled nei-
ther the Regional Director nor the Board, which, as indi-
cated above, held that the raffle did not interfere with the
election. Similarly, in American Induction Heating Corp.,
221 NLRB 180 (1975), the Board found that a raffle was
not objectionable despite the fact that a supervisor was
stationed near the polling area and distributed raffle tickets
to employees after they voted.
By contrast, however, in Marathon LeTourneau Co.,
208 NLRB 213, 224, (1974), enfd. 498 F.2d 1400 (5th Cir.
1974), the Board found the employer’s election day raffle
objectionable on the ground that, during the process of
distributing raffle tickets to employees who had voted, the
employer checked their names off on a copy of the Excel-
sior list of eligible voters. Thus, the employer was able to
ascertain who had voted.
Nor has the Board been consistent when it has focused
on the value of the prize to determine whether a raffle is
objectionable. In Drilco, 242 NLRB 20, 21 (1979), the
raffle winner had a choice of an all-expense-paid trip for
two to Hawaii or a trip for the family to Disneyworld or
Disneyland. In Grove Valve & Regulator Co., 262 NLRB
285, 303 (1982), the employer raffled off a 7-day trip to
Hawaii for two with spending money. In both cases, the
Board relied on the value of the prizes in concluding that
the holding of the raffles interfered with free choice in the
elections. The Board stated in Drilco, raffles will be found
objectionable where “the size of the leading prize is so
great as to divert the attention of the employees away from
the election and its purpose . . . [and] inherently induce[]
those eligible to vote in the election to support the Em-
ployer’s position.” 242 NLRB at 21.
Such an approach is logical in theory, but the Board has
failed to apply it consistently. For instance, in E. A. Nord
Co., 276 NLRB 1418, fn. 2 (1985), the Board was per-
suaded that “the five $252 prizes offered by the Respon-
dent in the election raffle were so substantial that the raffle
constitutes objectionable conduct warranting setting aside
the election.” However, in Sony, the Board found that the
raffle of a $1300 television set and a $280 Discman—
prizes whose individual and aggregate value exceeded
both the individual and aggregate value of the prizes in E.
A. Nord—were not so substantial as to warrant a new elec-
tion. Sony, 313 NLRB at 420–421. Similarly, when
evaluating the effect on the electorate of a television set
offered in a raffle, the Board has gone both ways. Com-
pare: Tunica Mfg. Co., 182 NLRB 729, 743 (1970) (raffle
of color television set, valued at $350–$400, not objec-
tionable); and American Induction Heating, 221 NLRB
180 (1975) (raffle of television not objectionable); with
National Gypsum Co., 280 NLRB 1003 (1986) (two raf-
fles, conducted simultaneously at three different plant lo-
cations, held objectionable, in part, because the prizes of-
fered—$270 television sets and $261 in cash—were of
“substantial value”).
In Olympic Products, Inc., 201 NLRB 442 (1973), the
Board took a different approach altogether to an election
day raffle, and based its decision on two factors not among
the traditional array of considerations that had emerged in
and after Hollywood Plastics. In Olympic, the plant man-
ager personally released employees to vote instead of us-
ing the public address system, as had been agreed upon at
the preelection conference. Additionally, the plant man-
ager “utilized his own breach of procedures to solicit em-
ployees to participate in the raffle.” The Board held that
this “combination of circumstances” was “sufficiently
disruptive” to warrant a new election.
Finally, in APS, supra, 325 NLRB 723, the Board’s
most recent analysis of the subject, the raffle was an-
nounced in a leaflet that urged 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 Na-
tional Labor Relations Board, that practice was no longer
permitted. (The employer was apparently referring to
Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995), in
which the Board held that it would no longer permit off-
duty employees to be paid for voting.) “Instead,” the flyer
stated, the employer would provide raffle prizes for voters,
including two color television sets and two video cameras.
The value of the prizes totaled approximately $4000. The
raffle was conducted on the day of the election, and the
prizes were awarded approximately a week after the elec-
tion.
A Board hearing officer recommended that the union’s
objection be sustained and a second election conducted.
Two members of a three-member Board panel voted to
reverse the hearing officer and overrule the union’s objec-
tion, but they were unable to agree on a common rationale.
Member Hurtgen authored the lead opinion, and he rea-
soned that all the elements of the Sony test militated in
favor of finding the raffle to be unobjectionable. With
respect to the Sony factor of the substantiality of the prizes,
however, Member Hurtgen focused not on the value of the
prizes being raffled, but on the value of an individual raffle
ticket. In addition, Member Hurtgen did not attempt to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028
reconcile the Sony test with the Board’s subsequent deci-
sion in Sunrise, stating that he disagreed with Sunrise.
Further, even accepting Sunrise as the law, Member Hurt-
gen concluded that it was distinguishable because it in-
volved the payment of wages, and “raffles are treated dif-
ferently from wages.” 325 NLRB at 724.
In a concurring opinion, Chairman Gould stated that he
disagreed “with the Board’s current approach in this area,
i.e., that an election day raffle is objectionable if the prizes
are of a substantial value.” 325 NLRB at 725. Thus, con-
trary to Member Hurtgen, Chairman Gould viewed Board
precedent as focusing on the value of the raffle prizes, not
on the value of the raffle ticket. In addition, unlike Mem-
ber Hurtgen, Chairman Gould stated that “the analysis of
election day raffles needs to be consistent with the Board’s
decision in Sunrise.” Id. Chairman Gould believed such
consistency could be achieved if the Board modified “its
analysis of election day raffles to place primary considera-
tion on whether the employer has, in the past, held raffles
of a similar nature for employees.” Id. In the absence of a
majority vote for his position and because the record failed
to show that the election day raffle was inconsistent with
the employer’s past practice, Chairman Gould voted to
find that the raffle was not objectionable.
Member Liebman dissented, stating that she would set
the election aside. She disagreed with Member Hurtgen’s
assertion that under Board law “raffles are treated differ-
ently” from other grants of benefits. She emphasized that
the Board applied the same basic test in all grant of benefit
cases, i.e., whether the challenged conduct “had a ten-
dency to influence the outcome of the election.” 325
NLRB at 726 fn. 2. Her opinion took into account not
only Sony, but also other grant of benefit cases, including
Sunrise (paying off-duty employees to vote). In conclud-
ing that the raffle interfered with the election, she relied on
the manner in which the raffle was announced (flyer urg-
ing employees to vote “no”) by the employer, and the sub-
stantial value of the prizes.
B. A New Approach to Election Day Raffles
This survey of precedent reveals that current Board law
is at best confusing on the question whether the holding of
a raffle in connection with an election destroys the labora-
tory conditions necessary for assuring employees full free-
dom of choice in selecting a bargaining representative. As
outlined above, the Board’s multifactor approach has
sometimes led to contradictory results, leaving labor and
management without clear guidance on the line separating
objectionable from unobjectionable conduct. The Board’s
most recent election raffle decision of APS is likely to lead
to further confusion and litigation. One of the main fac-
tors on which the Board focused for many years, i.e., the
value of the raffle prizes, was seemingly abandoned by a
majority of the Board panel in APS (Chairman Gould and
Member Hurtgen), but they could not agree on a common
rationale for doing so. A different majority in APS
(Chairman Gould and Member Liebman) were of the view
that Board law regarding election raffles, as summarized
in Sony, should be consistent with more recent Board law
barring payments to off-duty employees for voting, as set
forth in Sunrise, but Chairman Gould and Member Lieb-
man were unable to agree on how to harmonize the two
decisions. As the Regional Director charitably phrased it,
APS “cast[s] some doubt upon the continued applicability
of the Sony test to election day raffles.”
In sum, the time has come to reexamine and clarify this
area of the law. We now turn to that task.
As discussed above, over the past 40 years, the Board
has recognized that there are several ways in which an
election raffle can interfere with the holding of a fair and
free election. The potential harms include the following:
(1) Election raffles may provide a party with the means
of determining how and whether employees voted.
(2) Election raffles may condition participation on how
the employees voted or on the results of the election.
(3) Election raffles may offer prizes so substantial as to
either (a) divert the attention of the employees away from
the election and its purpose or (b) inherently induce em-
ployees to vote in favor of the party sponsoring the raffle.
Beginning with Hollywood Plastics in 1969 and culmi-
nating with APS in 1998, the Board has scrutinized elec-
tion raffles on a case-by-case basis seeking to determine
whether one of these prohibited elements is present. In
essence, the Board has been engaged in an elaborate exer-
cise in line drawing, attempting to separate objectionable
election raffles from unobjectionable ones. After careful
consideration, we have decided to cease drawing this line.
As our review of the Board’s decisions in this area amply
demonstrates, the costs of the case-by-case approach have
been unacceptably high: time-consuming litigation, di-
vided Board decisions, confusing and seemingly inconsis-
tent results, and unwarranted delays in the completion of
representation proceedings. Contrary to our dissenting
colleagues, we believe the need for change is clear. We
have, therefore, decided to abandon the Hollywood Plas-
tics-Sony-APS approach of reviewing election raffles on a
case-by-case basis and to adopt instead a bright-line rule
that lends itself to definite, predictable, and speedy results.
Furthermore, consistent with the views Chairman Gould
and Member Liebman expressed in APS, we believe that
Board law concerning election raffles must be harmonized
with the Board’s decision in Sunrise, supra, 320 NLRB
212. In Sunrise, the Board held that “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 reasona-
bly tends to influence the election outcome.” Id. Specifi-
cally, the objectionable conduct in Sunrise consisted of an
offer to provide employees who were not scheduled to
work on the day of the election 2 hours of pay merely for
arriving at the employer’s facility. Because the employer
also offered to provide transportation to the employer’s
ATLANTIC LIMOUSINE 1029
facility, it was clear that the monetary payments were not
linked in any way to transportation expenses.
In determining whether the employer’s offer of pay was
objectionable, the Board applied the well-established test
of whether the “challenged conduct has a reasonable ten-
dency to influence the election outcome.” Id. The Board
reasoned that because the offer was not linked to transpor-
tation expenses, employees would reasonably perceive the
payment as “something extra . . . on election day.” 320
NLRB at 213. In addition, the Board observed that the
offer of two hours’ pay was announced in a leaflet that
urged the employees to vote “No.” In these circum-
stances, the Board concluded that “employees would rea-
sonably perceive the 2 hours’ pay as a favor from the Em-
ployer which the employees might feel obligated to repay
by voting against the Union, as the Employer requested.”
Id.
Like the conduct in issue in Sunrise, an offer of an op-
portunity to win a prize by participating in an election raf-
fle would reasonably be viewed by employees as “some-
thing extra . . . on election day.” 320 NLRB at 213. In
addition, raffles are typically announced in election propa-
ganda exhorting the employees to vote in favor of the
party sponsoring the raffle or, at the very least, linking the
raffle to issues raised by that party, such as the amount of
dues employees will be required to pay if they choose un-
ion representation. Therefore, employees would reasona-
bly perceive the offer to win a raffle prize as a “reward” or
“favor . . . which the employees might feel obligated to
repay” at the polls. Id. Consequently, election raffles are
objectionable under the rationale of Sunrise.12
We are not persuaded by the argument that election raf-
fles merely encourage employees to vote. As the Board
recently explained in United Cerebral Palsy Assn. of Ni-
agara County, 327 NLRB 40 (1998), “maximum voter
participation in Board-sponsored elections is a laudable

12 In reaching this conclusion, we note that the Federal and many State
governments also prohibit, under their respective criminal codes, the use
of financial incentives to induce citizens to vote, or to refrain from voting,
in an official public election. See, e.g., 18 U.S.C. § 597 (making it a
crime to “make[] or offer[] to make an expenditure to any person, either
to vote or to withhold his vote, or to vote for or against any candidate . .
.”); Alaska Stat. § 15.56.030 (“a person commits the crime of unlawful
interference with voting if the person . . . knowingly pays, offers to pay,
or causes to be paid money or other valuable thing to a person to vote or
refrain from voting in an election; . . . ‘other valuable thing’ includes . . .
an entry in a game of chance in which a prize of money or other present
or future pecuniary gain or advantage may be awarded to a participant . .
.”); Ariz. Rev. Stat. Ann. § 16–1014 (“it is unlawful for a person . . . to
treat, give, pay, loan, contribute, offer or promise money or other valuable
consideration . . . to or for a voter . . . to induce the voter to vote or refrain
from voting . . . or to induce the voter to go to the polls or remain away
from the polls . . .”); Colo. Rev. Stat. § 1–13–720 (same); Haw. Rev. Stat.
§ 19–3 (same); Ind. Code § 3–14–3–19 (same); Ky. Rev. Stat. Ann.
§ 119.205 (same); Mo. Rev. Stat. § 115.635 (same); Mont. Code Ann.
§ 13–35–214 (same); N.J. Stat. Ann. § 19:34–25 (same); N.Y. Elec. Law
§ 17–142 (McKinney) (same); S.D. Codified Laws Ann. § 12–26–15
(same); Tenn. Code Ann. § 2–19–126 (same); Utah Code Ann. § 20A–1–
601 (same); W. Va. Code § 3–9–16 (same); Wis. Stat. Ann. § 12.11
(same).
goal. However, the Board must protect employee free
choice in all voting decisions.” Where the challenged
conduct is objectionable, i.e., it has a reasonable tendency
to influence the election outcome, the fact that the conduct
may also encourage voter turnout is immaterial.
In conclusion, having reconsidered Board precedent in
this area in light of Sunrise’s prohibition on offering em-
ployees rewards on election day, we have decided to adopt
a new rule barring election raffles. Specifically, our rule
prohibits 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 elec-
tion site on election day or (2) the raffle is conducted at
any time during a period beginning 24 hours before the
scheduled opening of the polls and ending with the closing
of the polls. The term “conducting a raffle” includes the
following: (1) announcing a raffle; (2) distributing raffle
tickets; (3) identifying the raffle winners; and (4) awarding
the raffle prizes. If there is a showing that such a raffle has
occurred during the proscribed period, we will set aside
the election upon the filing of a valid objection.13 We will
also look with disfavor on attempts to circumvent this rule
by, for example, announcing a raffle more than 24 hours
before the opening of the polls and then completing the
raffle immediately after the closing of the polls.
We hasten to add that our new rule does not encompass
certain types of electioneering that we have historically
found not to be objectionable. For instance, prior to a
Board election, parties often distribute T-shirts, hats, but-
tons, stickers, or other items bearing a message or insignia,
that have no “intrinsic value sufficient to necessitate our
treating [them] differently than other types of campaign
propaganda, which we do not find objectionable or coer-
cive.” R. L. White Co., 262 NLRB 575, 576 (1982); ac-
cord: NLRB v. Coca-Cola Bottling Co., 132 F.3d 1001,
1005 (4th Cir. 1997) (“[T]he Board has carved out a niche
for grants of benefit which, although of some economic
value, are intended as mere propaganda and do not
threaten to create a sense of obligation on the part of em-
ployees. The paradigm example of this is the distribution
of . . . buttons and bumper stickers. . . . ”). Similarly, our
new raffle rule does not disturb our prior decisions regard-
ing such campaign devices as providing free food, drink,
or parties prior to the election, which we will continue to
13 We overrule prior cases to the extent that they are inconsistent with
the rule we announce today.
Raffles conducted more than 24 hours before the scheduled opening of
the polls, not aimed at encouraging employees to come out to vote, do not
raise the concerns that underlie the Board’s decision in Sunrise. Rather,
such raffles held earlier in the election campaign primarily would raise
issues of whether or not they involve promises or grants of benefits that
would improperly affect employee free choice; or whether they allow the
employer to identify employees who might or might not be sympathetic,
and thus to learn where to direct additional pressure or campaign efforts.
See National Gypsum Co., 280 NLRB 1003 (1986). Accordingly, we
shall not apply our new per se rule to such raffles, but shall analyze them
based on whether or not they implicate those particular concerns.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030
examine under the B&D Plastics, 302 NLRB 245 (1991),
test to determine whether the grant of benefit would im-
properly tend to influence the outcome of the election.14
IV. APPLICATION OF THE RULE TO THIS CASE
Having adopted the new rule, we now apply it to the
facts of this case.15 Approximately 5 days before the elec-
tion, the Employer announced that a TV/VCR would be
awarded in a raffle to be conducted on the day of the elec-
tion. An Employer representative distributed raffle tickets
to employees as they approached the voting area on the
day of the election. The distribution of raffle tickets
within the 24 hours immediately preceding the election
and throughout the duration of the polling itself is objec-
tionable under our new rule. Accordingly, we shall set
aside the results of the October 5, 1998 election, and order
that a new election be held.
[Direction of Third Election omitted from publication.]
MEMBERS HURTGEN AND BRAME, dissenting.
The raffle in this case clearly passed muster under Sony
Corp. of America, 313 NLRB 420 (1993). The Regional
Director so found, and our colleagues do not disagree.
Instead, and in recognition of this fact, our colleagues
overrule Sony and over 31 years of Board law. We would
not do so.
As shown by our colleagues, the law in this area has
gone from a per se acceptance of raffles to a “multi-factor”
approach. The latter approach began in 1969 in Holly-
wood Plastics, Inc., 177 NLRB 678 (1969). Its most re-
cent expression was in 1993 in Sony Corp. Our colleagues
now abandon this 31-year-old approach and return to a per
se approach (this time to prohibit raffles). There is no
need for this dramatic change in law, and the change itself
is not a good policy choice.
With respect to the need for change, our colleagues as-
sert that the current multi-factor test is uncertain. They
thus prefer a per se approach. However, in the great ma-
jority of areas with which the Board deals (both unfair
labor practice cases and representation cases), the Board

14 See, e.g., Chicagoland Television News, 328 NLRB 367 (1999) (12-
hour party on the day before the election not objectionable, in part, be-
cause of the employer’s history of holding such social events and because
the cost of the event was not excessive); Jacqueline Cochran, Inc., 177
NLRB 837 (1969) (union’s distribution of Thanksgiving turkey and
Christmas party during critical period not objectionable); Chicago Trib-
une, 326 NLRB 1057 (1998) (“lavish” $8000 brunch for 24 unit employ-
ees and their spouses, children, and guests, in which the employer pro-
vided gifts, valet parking, babysitting service, entertainment, opportunities
to meet Santa Claus, and separate dining for children, held 3 days before
decertification election, found objectionable); Preston Products Co., 158
NLRB 322 (1966) (employer’s party 2 days before election, which in-
cluded hard and soft liquid refreshments, corsages, a band, and distribu-
tion of watches to employees, held coercive), enf. granted in pertinent part
392 F.2d 801 (D.C. Cir. 1967).
15 In accordance with our usual practice, we shall apply our new rule
not only “‘to the case in which the issue arises,’ but also ‘to all pending
cases in whatever stage.’” Midland National Life Insurance Co., 263
NLRB 127, 133 fn. 24 (1982), quoting Deluxe Metal Furniture Co., 121
NLRB 995, 1006–1007 (1958).
eschews a per se approach and follows a “relevant circum-
stances” approach.1 Although this approach is less certain
than a mechanistic one, that is the price that the Board
chooses to pay in order to decide cases according to their
facts.
The majority seeks to exaggerate the number of areas
where a per se approach is followed. In truth, the only
ones cited which actually fall within this narrow area are
Peerless Plywood, 107 NLRB 427 (1953), and Kalin Con-
struction, 321 NLRB 649 (the latter was a 1996 case that
overruled 30 years of Board law).2
In short, the Board usually eschews a per se approach.
With respect to raffles, it has done so for 31 years. The
test of Sony continues that tradition. In Sony, the Board
said:

The 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 at-
tendant circumstances in determining whether the raf-
fle destroyed the laboratory conditions necessary for
assuring employees full freedom of choice in select-
ing a bargaining representative. Some of the factors
considered relevant by the Board have been whether
the circumstances surrounding the raffle provided the
employer with means of determining how and
whether employees voted, whether participation was
1 The majority’s imposition of a per se rule banning raffles conflicts
with the Board’s and the courts’ customary approach of applying an in the
circumstances analysis in both representation and unfair labor practice
proceedings. Where a representation objection is filed asserting that the
“laboratory conditions” [General Shoe Corp., 77 NLRB 124, 127 (1948)],
under which Board elections are to be held, have been violated by a party
to an election, the decisional standard is whether ‘the conduct reasonably
tends to interfere with the employees’ free and uncoerced choice in the
election.” [Baja’s Place, Inc., 268 NLRB 868 (1984).] In an unfair labor
practice proceeding, the question, regarding employer conduct, is whether
it may reasonably tend “to interfere with, restrain, or coerce,” [NLRB v.
Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)], or, regarding
union conduct, whether it may reasonably tend to “restrain or coerce”
[Operating Engineers Local 542 v. NLRB, 328 F.2d 850, 852–853 (3d
Cir. 1964), cert. denied 379 U.S. 826 (1964)], employees exercising rights
secured by Sec. 7 of the Act.
Utilizing an “all the circumstances” rather than a “per se” approach in
raffle cases is firmly supported by analogy to Board and court cases in-
volving alleged unlawful interrogation of employees. See Rossmore
House, 269 NLRB 1176 (1984), affd. sub. nom. Hotel Employees Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). We stress that, as with inter-
rogations, raffles are conducted in a multiplicity of circumstances. Like
the multifactor test adopted by the Board in Rossmore House, supra at
1178 fn. 21, as an aid in assessing the lawfulness of interrogations, the
Sony test is an appropriate vehicle for determining whether a particular
raffle “reasonably tends to interfere with the employees’ free and unco-
erced choice in the election.” Baja’s Place, Inc., supra at 868.
2 The other “rules” cited by our colleagues are hardly per se and
mechanistic. In this regard, our colleagues cite the prohibition against the
“bestowal of economic benefits” that have “a tendency to influence the
outcome of an election,” citing Gulf States Canners, 242 NLRB 1326
(1979), enfd. 634 F.2d 215 (5th Cir. 1981). These terms are not mecha-
nistic, and indeed they have spawned much litigation. Similarly, the
Michem principle relates to prolonged conversations at or near the polling
place. Michem, Inc., 170 NLRB 362 (1968). Again, these terms are not
mechanistic and are often litigated.
ATLANTIC LIMOUSINE 1031
conditioned upon how the employees voted in the
election or upon the result in the election, and whether
the prizes were so substantial as to either divert atten-
tion 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 posi-
tion.

313 NLRB 420, quoting Grove Valve & Regulator Co.,
262 NLRB 285, 303 (1982).
There is no reason to abandon 31 years of the “relevant
circumstances” approach. The Board should apply that
approach to raffles just as it does in other areas of Board
law.
In addition, the new rule itself is unwise policy. The
Sony test shows that none of the potential harms that the
Board has traditionally found may stem from raffles are
present here. We have set forth below the asserted harms,
and we have shown that they are not present here.
(1) Election day raffles may provide a party with
the means of determining how and whether employ-
ees voted, but the Employer here took care to assure
that it would not be able to tell how or whether em-
ployees voted. Participation in this election was not a
condition of participation in the Employer’s raffle.
(2) Election day raffles may condition participa-
tion on how the employees voted or on the results of
the election, but participation in this raffle was not
conditioned on how employees voted or on the results
of the election.
(3) Election day raffles may offer prizes so sub-
stantial as to either (a) divert the attention of the em-
ployees away from the election and its purpose,3 or
(b) inherently induce employees to vote in favor of
the party sponsoring the raffle, but the prize offered
here was not so substantial as to divert the attention of
the employees away from the election or to vote in
favor of the Employer. A raffle ticket is a chance at a
prize. Realistically, the value of the ticket is the
amount of the prize divided by the number of eligible

3 Our colleagues find that raffles, such as the Employer conducted
here, are likely to divert the attention of voters away from the purpose of
their voting in the election. Yet, the Board has found unobjectionable
conduct that went beyond possibly diverting voters’ attention from the
focus of the election to the point of actually trying to influence their free
choice in the balloting. For example, the Board certified unions in Com-
cast Cablevision of New Haven, 325 NLRB 833 fn. 3 (1998) (union dem-
onstrated on the morning of the election stopping vehicles entering and
exiting the employer’s facility and loudly urging employees riding in
them to vote for the union), O’Brien Memorial, 310 NLRB 943, 944
(1993) (union officials and prounion employees yelled and chanted “Vote
Yes” throughout the balloting), and Boston Insulated Wire & Cable Co.,
259 NLRB 1118 (1982), enfd. 703 F.2d 876 (1983), rehearing denied
enfd. mem. 708 F.2d 720 (5th Cir. 1983) (union officials distributed
campaign literature and spoke to employees just before they entered a
glass-paneled door that ultimately led to the polling place), despite the
campaign activities of union officials during the polling hours. The ma-
jority’s expressed rationale here is inconsistent with these cases.
participants. Thus, the benefit here is under $3 per
employee.4
The announced purpose of the raffle was to induce em-
ployees to vote, irrespective of how they might vote.
Surely, in the industrial democracy that we seek to foster,
this is a laudable goal.5
Further, the majority’s new rule makes no sense, even
under its own terms. Under that rule, if a party holds a
raffle within 24 hours before the opening of the polls, the
raffle is condemned per se, even if it is not tied to voting
or being at the election site. Thus, during this period, a
raffle for a small prize is condemned per se, even if it is
not tied to the election, while a large dinner is not con-
demned per se, even if it is tied to the election.6
Finally, the phrase “tied to” is ambiguous and will itself
spawn litigation.
For all of the foregoing reasons, the Board should not
change Board law, should not embrace a per se approach,
and, in any event, should not adopt the rule enunciated
here.7
4 Although we agree with the dissent in Sunrise Rehabilitation, 320
NLRB 212 (1995), it is clearly distinguishable. It involved a wage benefit
for all off-duty employees who came in to vote. That is, the benefit was
an employment benefit and it was certain. Thus, the Board applied the
test of B&D Plastics, 302 NLRB 245 (1991), rather than the “raffle” test
of Sony.
5 Furthermore, as a practical matter, only employers have chosen to use
election raffles as a campaign device in order to induce employees to
vote. Thus, the majority’s decision to effectively ban election raffles has
an adverse impact on just one party to our elections—employers. Our
colleagues have selectively chosen to single out a legitimate campaign
tactic used by employers to increase voter turnout and arbitrarily prohib-
ited it.
6 The Board in Chicagoland Television News, 328 NLRB 367 (1999),
suppd. by 330 NLRB 630 (2000), held, inter alia, that an employer did not
engage in objectionable conduct by holding a 12-hour party for employ-
ees the day before the election at which it provided free food and drink.
Cf. Chicago Tribune, 326 NLRB 1057 (1998) (employer engaged in
objectionable conduct by providing a brunch for 24 eligible voters and
their families that cost nearly $8000 and holding it 3 days before a decer-
tification election).
7 Member Brame further notes that the majority seeks support for their
decision in state and Federal statutes prohibiting parties’ use of financial
incentives in public elections. This purported analogy is both interesting
and inapposite. It is interesting in that, during the period from 1986 to
1996, the turnout in Board-conducted elections ranged from 87 to 89
percent (Board’s Annual Report: Vols 51–61 (1986–1996), while the
turnout in the three presidential elections occurring within this period was
50 percent in 1988 (the Internet: http://www.fec.gov/ pages/rat88.htm), 55
percent in 1992 (the Internet: http://www.fec.gov/pages/rat92.htm) [the
highest since 1972 (1995 Information Please Almanac Atlas & Yearbook,
Houghton Mifflin Company (1995))], and 49 percent in 1996 (the Inter-
net: http://www.fec.gov/pages/96to.htm), with the trend generally heading
downward. The analogy is inapposite in that the key components to
public elections are the promises the candidates and their parties make
regarding post-election conduct. By contrast, in Board elections one
party—the same party whose get-out-the-vote tactic is being arbitrarily
condemned today—is uniformly prohibited from making any promises.
See DTR Industries, 311 NLRB 833, 835–837 (1993), enf. denied on
other grounds 39 F.3d 106 (6th Cir. 1994), order supplemented 317
NLRB 825 (1995).