BFI Waste Systems

National Labor Relations Board - Board Decisions

Aug 3, 2001

334 N.L.R.B. 934 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934
BFI Waste Systems and Truck Drivers Union, #170
a/w International Brotherhood of Teamsters,
AFL–CIO, Petitioner. Case 1–RC–21194
August 3, 2001
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
The National Labor Relations Board has considered an
objection to an election held June 30, 2000, and the hear-
ing officer’s report recommending disposition of the ob-
jection. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 31
for and 53 against the Petitioner, with 4 challenged bal-
lots, an insufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and brief, has adopted the hearing officer’s find-
ings and recommendations, and finds that the election
must be set aside and a new election held.
Contrary to our dissenting colleague, we agree with the
hearing officer’s recommendation that the Petitioner’s
objection be sustained. The facts, fully set forth in the
hearing officer’s report, are summarized below.
The Employer operates a trash collection facility in
Auburn, Massachusetts, which is one of eight or nine
such facilities that comprise the Employer’s New Eng-
land District. Bruce Stanas manages the district’s opera-
tion from his office in Southboro, Massachusetts, and
tries to visit each facility at least one time every 2 weeks.
In March 2000,1 the Employer established a fleet
safety inspection program to promote employee safety
and the upkeep of the Employer’s vehicles. The program
applied to all of the district’s facilities and mandated one
facility inspection per month. Inspections were to be
undertaken by the facility managers, coordinators, and
supervisors, and the program’s guidelines do not mention
Stanas’ participation in the program. The guidelines
provide for discipline of employees whose vehicles fail
inspections, but are silent as to rewarding employees for
excellent results. Employees of the Auburn facility were
advised of the program on March 13, by way of an em-
ployer memorandum.
The first inspection attended by Stanas occurred at the
district’s Tyngsboro, Massachusetts facility. A cookout
and a raffle were held in conjunction with the inspection,
and on May 18, Stanas sent an e-mail message to all dis-
trict managers involved in the program announcing that
he would participate in at least three inspections per year
at each facility. Stanas informed the district managers
that he would “likely sponsor” a cookout for all facility
employees, and that he would “likely sponsor” a raffle
“for the excellent group each and every time I attend the
fleet inspection.” Both events, Stanas stated, would be
restricted to those times that he or another district repre-
sentative assisted in the inspection. There is no evidence
that the Employer advised employees of either Stanas’
participation in the inspection program or that Stanas’
participation might include an employer-sponsored cook-
out and raffle.

1 All dates refer to 2000.

The second inspection attended by Stanas occurred at
the Employer’s Quincy, Massachusetts facility in late
May, and Stanas participated in a third inspection in
early June at the Employer’s Pittsfield, Massachusetts
facility. No predetermined schedule controlled Stanas’
attendance or the timing of these inspections, and a
cookout and raffle was conducted at each facility.
On May 22, the Petitioner filed a petition to represent
employees at the Employer’s Auburn facility. Stanas
was present almost every day in June at that facility pre-
paring for the union election scheduled to be held on
June 30. On June 20, the Employer conducted and
Stanas participated in an inspection at the Auburn facility
and a cookout occurred that day. This was the third in-
spection at Auburn, but the first in which Stanas partici-
pated. The Employer distributed a number of items to
employees at the cookout, including a T-shirt that read
“BFI Safety First” on the front side and “Proud to be
Union free Auburn Facility” on the back.2 According to
Stanas, the inspection was held on June 20, because it
was convenient for him, given his almost daily presence
there working on the union campaign and because of the
district’s diverse geographic area. On June 21, the Em-
ployer posted a notice that, for the first time, advised
employees that it intended to give away five televisions.
The notice listed as eligible to win a television only those
22 employees who, from a total of 92 bargaining unit
employees, scored an “excellent” in the inspection.
There is no evidence that the Employer ever informed
employees that such raffles had been conducted else-
where and would be conducted at all facilities when
Stanas participated in inspections. The total value of the
televisions was $890. A drawing occurred between June
23 and 28, and five employee winners received televi-
sions during this time period. As stated above, the elec-
tion was held on June 30.
2 No objections have been filed to the Employer’s distribution of T-
shirts or other items at the cookout.
334 NLRB No. 110
BFI WASTE SYSTEMS 935
The hearing officer first examined the Board’s recent
decision in Atlantic Limousine, 331 NLRB 1025 (2000).
In that case, as quoted by the hearing officer, the Board
prohibited parties from conducting a raffle if “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 if “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.” Id. at 1026. The hearing officer determined that
the facts here did not fall under either prong of the Atlan-
tic Limousine rule.
The Board in Atlantic Limousine also concluded, how-
ever, that election raffles held outside of the 24-hour pe-
riod would be scrutinized to determine whether “they
involve promises or grants of benefit that would improp-
erly 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 ad-
ditional pressure or campaign efforts.” Id. at fn. 13.
The hearing officer found no basis on which to conclude
that the raffle in the instant case allowed the Employer to
identify employees who might or might not be sympa-
thetic.
In examining whether the raffle amounted to an objec-
tionable promise or grant of benefit, the hearing officer
applied the test set out by the Board in B & D Plastics,
302 NLRB 245 (1991).3 The hearing officer recom-
mended sustaining the Union’s objection because the
raffle conducted by the Employer was “a benefit of the
type that would improperly influence employee free
choice in the election.” Specifically, the hearing officer
concluded that: the total value of the raffle prizes ($890)
was substantial; that 22 of 92 bargaining unit employees,
or approximately 24 percent of the bargaining unit, were
eligible to participate in the raffle; that employees could
reasonably believe that the real purpose of the raffle was
to influence the election outcome because the raffle was

3 The Board in B & D Plastics stated in relevant part that:
Our standard in preelection benefit cases is an objective one.
(Citation omitted.) To determine whether granting the benefit
would tend unlawfully to influence the outcome of the election,
we examine a number of factors, including: (1) the size of the
benefit conferred in relation to the stated purpose for granting it;
(2) the number of employees receiving it; (3) how employees rea-
sonably would view the purpose of the benefit; and (4) the timing
of the benefit. In determining whether a grant of benefits is
objectionable, the Board has drawn the inference that benefits
granted during the critical period are coercive. It has, however,
permitted the employer to rebut the inference by coming forward
with an explanation, other than the pending election, for the tim-
ing of the grant or announcement of such benefits. (Citations
omitted.)
B & D Plastics, supra.
open only to bargaining unit employees, and because
employees never received notice from the Employer
connecting the raffle to Stanas’ participation in the dis-
trictwide inspection program; and that the timing of the
raffle—no more than 7 days before the election—was
telling. The hearing officer also concluded that the Em-
ployer had failed to advance a legitimate business reason
for holding the raffle so close in time to the election.
Our dissenting colleague would not find the raffle ob-
jectionable, stating that he continues to adhere to the test
of Sony Corp. of America, 313 NLRB 420 (1993), and
that he would apply the Sony test to the circumstances
here. As our dissenting colleague acknowledges, how-
ever, the Board overruled Sony in Atlantic Limousine,
stating that it was “abandon[ing]” Sony’s approach be-
cause “the costs of the case-by-case approach have been
unacceptably high: time-consuming litigation, divided
Board decisions, confusing and seemingly inconsistent
results, and unwarranted delays in the completion of rep-
resentation proceedings.” Atlantic Limousine, supra, 331
NLRB at 1028. We conclude that the reasons we gave in
Atlantic Limousine for abandoning Sony still are persua-
sive today.
The dissent maintains that B & D Plastics is not con-
trolling and that the raffle was not objectionable under
Sony and Atlantic Limousine. As stated supra, however,
the Board in Atlantic Limousine overruled Sony and con-
cluded that election raffles held outside of the 24-hour
period—such as the raffle here—would be scrutinized to
determine, inter alia, whether “they involve promises or
grants of benefit that would improperly affect employee
free choice[.]” Atlantic Limousine, supra at 1029 fn. 13.
B & D Plastics summarizes the factors the Board exam-
ines in grant-of-benefit cases, and it is therefore appro-
priate to apply B & D Plastics here.4
Our dissenting colleague also would find that even as-
suming arguendo that B & D Plastics applies to the in-
stant case, the raffle would be valid. The dissent charac-
terizes the size of the benefit conferred by the Employer
as “relatively small,” stating that “the value of a raffle
ticket was worth less than ten dollars[ ]” when the $890
in total prize value is divided amongst the bargaining
unit’s 92 employees. We disagree.
First, the Board has not adopted the approach put forth
by the dissent of focusing on the value of the raffle
ticket.5 Instead, the Board has focused on the value of
4 Even the Employer acknowledges that the B & D Plastics test is
the appropriate one to apply.
5 The dissent relies on Chicagoland Television News, 328 NLRB
367 (1999), motion for reconsideration denied 330 NLRB 630 (2000),
for the proposition that the Board has previously utilized a “per em-
ployee” approach. That case did not involve an employer-sponsored
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936
the raffle prizes and we continue to do so here. See the
discussion in Atlantic Limousine, supra, 331 NLRB at
1028.
We agree with the hearing officer’s conclusion that the
televisions, valued at $890, were a substantial benefit—
particularly in light of the Employer’s purported “pur-
pose for granting [the benefit].” B & D Plastics, 302
NLRB 245. Stanas testified that the raffle was held at
the Auburn facility because it had been so well received
by employees at the Tyngsboro facility. As found by the
hearing officer, however, there is no evidence that the
Employer previous to May had ever before raffled re-
wards of any value to its employees, and there is no evi-
dence that the Employer previous to June, had ever be-
fore raffled rewards at the Auburn facility. Under these
circumstances, where the potential to receive $890 in
prizes is suddenly6 offered by the Employer to employ-
ees less than one week before the election, we are per-
suaded that $890 was a substantial benefit and sent a
message to employees that “the source of benefits now
conferred is also the source from which future benefits
must flow and which may dry up if it is not obliged.” B
& D Plastics, 302 NLRB 245.
Our dissenting colleague also asserts that “only” a
“few” employees received this benefit—those 22 em-
ployees receiving an “excellent” inspection rating—
which the dissent argues indicates that employees would
not view the purpose of the benefit as an inducement to
vote against union representation. We disagree. As
stated by the hearing officer, 22 employees is not an in-
significant number, particularly where each of the 22 is a
bargaining unit employee, and where that number com-
prises 24 percent of the total bargaining unit. The num-
ber also is not insignificant where a switch of as few as
12 employees to voting in favor of the Union could have
reversed the election’s outcome.
In addition, we believe that the timing of the Em-
ployer’s benefit, which the dissent acknowledges “pre-
sents a somewhat closer issue[,]” also supports the hear-
ing officer’s finding of objectionable conduct. The dis-

raffle and, thus, did not utilize the “per ticket” approach advocated by
the dissent here. Further, although the Board in Chicagoland did con-
clude—as the dissent points out—that a $2200 employer-sponsored
party was not objectionable, the Board relied on mitigating factors not
present here. Applying B & D Plastics, the Board found that the em-
ployer “had a history” of sponsoring similar parties, and that the em-
ployer’s posted invitation to employees clearly disassociated the event
from the election. Id. By contrast, here the Employer had never previ-
ously sponsored a raffle at the Auburn facility and the Employer did
nothing to disassociate the raffle from the election campaign in the
minds of bargaining unit employees.
6 The Employer already had conducted two inspections at the Au-
burn facility, both well in advance of the election, but the Employer
held no raffle on these occasions.
sent characterizes the timing of the Employer’s conferral
of benefit as “about a week or so before the election[.]”
The hearing officer’s finding, however, is that the raffle
took place some time between “June 23 and June 28.”
The televisions may have been distributed to employees
as late as just 48 hours before the election.7 Given the
proximity of the Employer’s conferral of benefit to the
election, the “inference that benefits granted during the
critical period are coercive” is especially strong under the
facts here. Id.
Contrary to our dissenting colleague, we agree with the
hearing officer’s rejection of the Employer’s defense that
the raffle was part of a districtwide program imple-
mented before the union campaign began. The Board
has long held that, “where an increase in benefits is part
of an established company policy or pattern, a grant of
those benefits or announcement of them prior to the elec-
tion is not grounds for setting aside an election.” North-
ern Telecom, Inc., 233 NLRB 1104, 1105 (1977) (addi-
tional citations omitted). We find, however, that the raf-
fle element of the inspection program at issue here was
not sufficiently defined to constitute an “established
company policy or pattern.”
As found by the hearing officer, the inspection pro-
gram when launched in March contained no reference to
rewarding employees in any way for their performance in
conjunction with the program. Not until May 18, on the
eve of the Petitioner’s filing of its representation petition,
did the Employer through Stanas’ e-mail incorporate a
possibility of reward for employees—the possibility that
Stanas would participate in future facility inspections and
that, when he did, he “would likely” sponsor a raffle.
This equivocation by the Employer was critical to the
hearing officer’s rejection of the Employer’s defense.
The Employer equivocated in establishing a role or
schedule for Stanas in the program and, more impor-
tantly, in incorporating the granting of a benefit to em-
ployees into the policy. As stated by the hearing officer,
the amount of discretion retained by the Employer pre-
vents the Employer now from claiming that the raffle
was part of “an established company policy or pattern
within the meaning of Northern Telecom.”8 Id.
7 In this regard, the hearing officer cited employee Dennis Reidy’s
testimony that employee Tom Griffin received a television from the
Employer on June 28, just 2 days before the election.
8 Of course, Northern Telecom is not the only defense available to an
employer. Under B & D Plastics, supra, 302 NLRB 245, a grant of
benefit during the critical period is not objectionable if the employer
“com[es] forward with an explanation, other than the pending election,
for the timing of the grant” of benefit. See fn. 3, supra. Contrary to our
dissenting colleague, however, we agree with the hearing officer that
“[o]verall the Employer has failed to meet its burden that it would have
had the raffle in Auburn when it did if the Union were not on the
BFI WASTE SYSTEMS 937
The hearing officer also correctly rejected the Em-
ployer’s assertion that convenience to Stanas explains
why it conducted the raffle when it did. It is true, as
noted by the dissent, that Stanas announced to other
managers the likelihood of conducting raffles in conjunc-
tion with the Employer’s inspection program 4 days be-
fore the Union filed its representation petition. Impor-
tantly, however, Stanas did not schedule his own partici-
pation at the Auburn facility until after the petition was
filed. In addition, the Employer’s assertion of business
convenience because of Stanas’ presence at Auburn in
June is not persuasive given Stanas’ acknowledged prac-
tice as district manager to visit each facility at least once
every two weeks. As stated by the hearing officer, the
geographic size of the district is not large, and there was
nothing to prevent the Employer from scheduling a raffle
and inspection in one of the other facilities within the
district or from sponsoring the raffle at Auburn after the
election rather than before.
Under these circumstances, we find that the hearing of-
ficer correctly rejected the Employer’s defenses. Accord-
ingly, we agree with the hearing officer that the raffle
constituted objectionable conduct warranting setting
aside the election.
[Direction of Second Election omitted from publica-
tion.]

CHAIRMAN HURTGEN, dissenting.
Contrary to the majority and the hearing officer, I find
that the Employer’s preelection raffle did not interfere
with the election under the test of Sony Corp. of America,
313 NLRB 420 (1993), the test that I continue to apply in
these cases.1 Accordingly, I would overrule the Peti-
tioner’s objection and certify the election results here.
The evidence shows that the Employer’s district man-
ager, Bruce Stanas, is responsible for eight or nine dis-
trict trash collection facilities that the Respondent oper-
ates, including the Auburn, Massachusetts location in-
volved in this case. In March 2000,2 before the advent of
the Union’s campaign, Stanas developed and imple-
mented a fleet safety inspection program for the district
facilities. Under Stanas’ program, he visits one of the
sites each month.
The first fleet inspection that Stanas attended occurred
in early May at the Employer’s Tyngsboro, Massachu-
setts facility. Stanas testified that, after the inspection

scene.” See NLRB v. Styletek, 520 F.2d 275, 281 fn. 5 (1st Cir. 1975)
(burden is on the employer to “support with very specific facts the
reason for granting benefits just then”).
1 Sony recently was overruled by Atlantic Limousine, 331 NLRB
1025 (2000). Former Member Brame and I dissented and we would not
have overruled precedent.
2 All dates are in 2000, unless otherwise noted.
ended, he decided to have a cookout and raffle for all
employees who participated in the inspection. On May
18, Stanas sent an electronic mail message to all manag-
ers informing them that he expected to be present at each
location a minimum of three times annually for the
monthly inspections and that the Employer would likely
hold a cookout and raffle for employees on these occa-
sions.3 During the last week of May, Stanas was present
at the Respondent’s Quincy, Massachusetts facility for
the second fleet inspection, after which there was a
cookout and raffle. The Employer held the third of these
inspections at its Pittsfield, Massachusetts location about
the first week of June. There was no set schedule for
Stanas’ presence at the monthly inspections. The district
manager for each facility had between $800 and $1200 to
spend on prizes for the raffle winners.
On June 20, the Respondent held the fourth of these
inspections. This one was at the Auburn site. Stanas
stated that, between early June and the June 30 election,
he spent a portion of virtually every day at the Auburn
facility, participating in the Employer’s election cam-
paign. He decided to conduct the Auburn raffle and
cookout that month because it was convenient for him,
given his constant presence there. There were about 92
employees in the Auburn bargaining unit, and 22 of them
became eligible to participate in the raffle by scoring
“excellent” in the fleet inspection. The Employer se-
lected five raffle winners and each received a television
set between 2 days and a week before the June 30 elec-
tion. The total value of the five televisions that the Em-
ployer distributed was about $890.
I disagree with the hearing officer’s finding, which the
majority adopts, that the raffle was a benefit that improp-
erly influenced employee free choice in the election. The
multifactor test for determining the legality of raffles is
set forth in Sony. In Sony, the Board quoted the follow-
ing 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 elec-
tion. Rather, the Board will consider all of the attendant
circumstances in determining whether the raffle de-
stroyed the laboratory conditions necessary for assuring
employees full freedom of choice in selecting a bar-
gaining representative. Some of the factors considered
relevant by the Board have been whether the circum-
stances surrounding 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 re-
sult of the election, and whether the prizes were so sub-
3 The Union did not file the instant petition until May 22.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938
stantial as to either divert the attention of the employees
away from the election and its purpose or as to inher-
ently induce those eligible to vote in the election to sup-
port the employer’s position.[Id.]
The raffle held in this case was legal under the Sony
factors. Here, the employer held the raffle and awarded
the prizes before the election. For this reason, there is no
evidence that the Employer used the raffle to determine
how and whether employees voted, or conditioned par-
ticipation in the raffle on how employees voted or on the
result of the election. Thus, these elements of the Sony
test clearly militate in favor of the legality of this raffle.
Regarding 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 Board upheld the raffle. In Sony, the
unit consisted of about 120 employees, and the prizes
were worth about $1500. Thus, a raffle ticket was worth
$12.50 per person. In this case, the unit consisted of 92
employees, and the prizes were worth $890. Thus, the
value of a raffle ticket was worth less than ten dollars.
This raffle clearly passes muster under the Sony test.4
With further respect to the value of the raffle, my col-
leagues focus on the total value of the prizes, rather than
the value of a raffle ticket. I disagree with this approach.
Surely (for example), there is a difference between giv-
ing a $1000 prize in a unit of 500 employees, and giving
a $1000 prize in a unit of 3 employees. The granted
benefit to employees is a chance at the prize. The
chance, and hence the value of the raffle ticket, decreases
inversely to the size of the unit.
Indeed, the Board used a “per employee” analysis in
Chicagoland Television News, 328 NLRB 367 (1999).
In that case, the employer held a party on the day before
the election. The party cost $2200, “with an average cost
of $25 per attendee.” The cost was not so excessive as to
constitute objectionable conduct.
My colleagues seem to acknowledge the fact that the
Board applied a “per employee” analysis in Chicagoland.
They apparently seek to distinguish the party there from
the raffle here. However, they offer no good reason why
a “per employee” approach would apply to some benefits
and not to others.

4 The Board later found that a similar raffle was unobjectionable in
Arizona Public Service, 325 NLRB 723 (1998). In that case, the unit
consisted of 928 employees, and the prizes were worth $4,000. Thus,
the value of a raffle ticket was about $7 each. In Atlantic Limousine,
the unit consisted of about 145 employees, and the prize was worth
about $350. Thus, a raffle ticket there was worth about $2.50 each, and
the hearing officer found that the raffle passed muster under Sony.
Although former Member Brame and I agreed with the hearing offi-
cer’s decision, the Board majority, as noted, abandoned the Sony test
and reached a contrary result.
The majority’s other efforts to distinguish Chicago-
land are similarly unavailing. The majority says that the
employer there had a history of sponsoring similar par-
ties. However, the Board specifically found in Chicago-
land that “we are not persuaded that there would have
been a party even if there were no election.” Thus, the
evidence that the employer there made no campaign
speeches at its party did not mean that the party was un-
related to the election. Notwithstanding that, the Board
held that the party there was not objectionable. The con-
duct in this case is even less objectionable. The Em-
ployer here, in contrast to the situation in Chicagoland,
decided to hold its raffles even before the Union filed the
instant petition. Further, unlike that case in which the
employer held the party the day before the election, the
Employer here, which previously had distributed turkeys
at Thanksgiving and given Christmas parties for employ-
ees, conducted its raffle and awarded the prizes about a
week before the election.
Moreover, even focusing solely on the value of the
prize, the value of the Employer’s raffle prizes was mod-
est relative to cases in which the Board has found that an
employer raffle interfered with the election. See Drilco,
242 NLRB 20 (employer announced prizes that included
the choice of an all-expense trip for two to Hawaii or a
trip for a family to either Disneyland or Disney World)
(1979).
In sum, the raffle was lawful under Sony. Further,
even under the majority view in Atlantic Limousine, su-
pra at fn. 1, the raffle did not constitute election interfer-
ence. Eligibility to participate in the raffle or win a prize
was not tied to voting in the election or being at the elec-
tion site on election day, and the raffle was not con-
ducted in the 24-hour period before the election.
My colleagues also rely heavily on B &D Plastics, 302
NLRB 245 (1991). I do not agree that B&D case is con-
trolling. It deals with the matter of beneficial changes in
employment conditions prior to an election (there, a paid
day off). The cases that deal with the specific matter of
raffles are Sony and Atlantic Limousine. I have shown
how these cases support the legality of the raffle here.
Further, even assuming arguendo that B & D applies to
the instant case, the raffle would still be valid. In B & D,
the Board set aside the election based on the employer’s
conduct in granting employees a benefit (a day off with
pay) 2 days before the election. The Board stated:
Our standard in preelection benefit cases is an objective
one. [citation omitted] To determine whether granting
the benefit would tend unlawfully to influence the out-
come of the election, we examine a number of factors
including (1) the size of the benefit conferred in rela-
tion to the stated purpose for granting it; (2) the number
BFI WASTE SYSTEMS 939
of employees receiving it; (3) how employees could
reasonably view the purpose of the benefit; and (4) the
timing of the benefit.[Id.]
Here, as found above, the size of the benefit, i.e., value
of a raffle ticket, was relatively small. Only 22 employ-
ees received this benefit, out of 92 in the unit. The Em-
ployer conducted this raffle in conjunction with its fleet
inspection program and rewarded those employees re-
ceiving an “excellent” grade, by giving them a chance in
the raffle. Thus, the employees would not reasonably
view the benefit as being tied to the election. In these
circumstances, I find that the employees would recognize
that the raffle was tied to their performance in the fleet
inspection as the Employer judged it, and was not meant
to influence their votes in the election. There is no evi-
dence that links this raffle either to the Employer’s elec-
tion campaign or to the election itself. Thus, I conclude
that the Employer’s conduct passes muster under the first
three elements of B & D Plastics.
I recognize that the last element of the test—the timing
of the benefit—presents a somewhat closer issue. None-
theless, the Employer’s conduct, in my view, did not rise
to the level of objectionable conduct. Although the Em-
ployer conducted this raffle about a week or so before the
election, the raffle was only a small part of the district
wide inspection program that the Employer had imple-
mented before the organizing campaign began. Further,
Stanas announced 4 days before the Union filed the in-
stant petition that the fleet inspections he attended would
include a cookout and raffle. There were eight or nine
facilities in Stanas’ district; the Employer previously had
held inspections, cookouts, and raffles at three of the
facilities; and the Employer was due, by late June, to
hold another at one of the five remaining district loca-
tions that remained on Stanas’ schedule of hosting three
annually for each site. In sum, it was Auburn’s turn
(among others) to host this event and it was convenient
for Stanas to hold it there since he was present at the fa-
cility nearly every day. In these circumstances, and
based on the nature of the prizes and the few employees
receiving them, I conclude that the Employer’s raffle was
not calculated to induce employees to vote against union
representation. Critically, as stated, the Employer made
no connection between the raffle being held in conjunc-
tion with its fleet inspection and the election that oc-
curred more than a week later. Thus, the timing of
events here does not establish that the Employer improp-
erly conferred benefits on the unit employees.
My colleagues correctly note that where an increase in
benefits is part of an established company policy or pat-
tern, the grant of such benefits prior to the election is
permissible. However, this is not the only manner in
which an increase in benefits is permissible. If a policy,
even a new one, is adopted prior to the union’s cam-
paign, it can be lawful. In the instant case, the policy,
albeit a new one was adopted prior to the union’s cam-
paign, it can be lawful. Thus, the action was motivated
by a legitimate business purpose unrelated to the elec-
tion. Perdue Farms, 323 NLRB 345, 352 (1997), modi-
fied on other ground, 144 F.3d 830 (D.C. Cir. 1998).
My colleagues also say that, prior to May, there were
no raffles for employees, and that, prior to June, there
were no raffles in Auburn. As to the first matter, the
decision to have a raffle was in May, and was prior to the
petition filed here. Thus, it was a lawful decision. And,
as to the second matter, the raffle at Auburn was consis-
tent with that May decision.
For these reasons, I reject the majority’s and the hear-
ing officer’s conclusion that the Employer’s conduct in
holding this preelection raffle warrants setting aside the
election. I would certify the results of this election.