Crestwood Manor

National Labor Relations Board - Board Decisions

Mar 2, 1978

234 N.L.R.B. 1097 (N.L.R.B. 1978)

CRESTWOOD MANOR
Crestwood of Stockton, d/b/a Crestwood Manor and
Production, Maintenance & Public Employees
Union, Local No. 1276, LIUNA, AFL-CIO, Peti-
tioner. Case 20-RC- 12937
March 2, 1978
DECISION ON REVIEW AND
DIRECTION OF SECOND ELECTION'
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Pursuant to a Decision and Direction of Election
issued October 2, 1975, an election by secret ballot
was conducted on October 31, 1975, in a unit of
certain employees at the Employer's Crestwood
Manor facility involved herein. The Employer filed
timely objections to the election. On January 13,
1976, the Regional Director for Region 20 issued a
supplemental decision in which, inter alia, she dis-
missed the Employer's objections. Subsequently, the
Employer filed a request for review of that supple-
mental decision, which the Board denied on April 29,
1976, except as to the dismissal of the objections,
which the Board directed to be investigated in the
event Petitioner received a majority upon the open-
ing and counting of certain challenged ballots. The
revised tally revealed a majority for Petitioner.
Thereafter, the Regional Director ordered a hearing
with respect to two of the Employer's objections, and
a hearing was held on February 28, 1977. The
Hearing Officer issued his Report on Objections
recommending, inter alia, that one of the Employer's
objections be sustained. The Hearing Officer con-
cluded that the Petitioner's offering of a $100 raffle
was contingent on Petitioner's winning the election
and was thus conduct which warranted setting aside
the election.
On August 10, 1977, the Acting Regional Director
for Region 20 issued his Third Supplemental Deci-
sion and Certification of Representative in the
above-entitled proceeding, in which, contrary to the
Hearing Officer, he overruled the objections. There-
after, in accordance with Section 102.67 of the
National Labor Relations Board's Rules and Regula-
tions, Series 8, as amended, the Employer filed a
timely request for review of the Acting Regional
Director's decision on the ground, inter alia, that he
had departed from reported Board precedent in
I Hospital and Institutional Workers' Union Local 250, SEIU, AFL-
CIO, was permitted to intervene on the basis of a showing of interest.
2 In its response to the request for review, the Petitioner excepts to
various findings of the Hearing Officer on the ground that he erred in
crediting certain testimony. It is the established policy of the Board not to
overrule a hearing officer's credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that the resolutions are
incorrect. The Coca-Cola Bottling Comrnpan of Memphis. 132 NLRB 481. 483
(1961); Stretch-Tex Co.. 118 NLRB 1359. 1361 (1957). We find insufficient
basis for disturbing the credibility resolutions in this case.
234 NLRB No. 160
dismissing its objections. The Petitioner filed a timely
opposition to the request for review.
By telegraphic order dated October 12, 1977, the
Employer's request for review was granted with
respect to one of its objections which had been
overruled by the Acting Regional Director. Thereaf-
ter, the Employer filed a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record in this case,
including the briefs of the parties, and makes the
following findings: 2
Approximately 2 weeks prior to the election date, a
meeting was held by the Petitioner which several
employees of the Employer attended. At this meeting
Petitioner's business manager, Tolbert, was asked
about a $75 raffle the Employer had stated it would
hold for its employees. In response, Tolbert declared
that the Petitioner would hold a $100 drawing if the
Petitioner won the election. Petitioner received a
majority of the votes cast during the election, and the
Employer filed objections to the conduct of the
election. There was also testimony that subsequent to
the election another union meeting was held, at
which Tolbert stated that as soon as the Petitioner
"got in" the drawing would be completed.
The Employer argues that since the Petitioner's
raffle was conditioned upon Petitioner's prevailing in
the election, the Hearing Officer correctly concluded
that it was a promise of benefit which requires setting
aside the results of the election. We find merit in the
Employer's contention. As the Hearing Officer not-
ed, the Board has said that the conditioning of the
receipt of benefits on favorable election results is
impermissible conduct for parties engaged in the
election. 3 In contrast, the Board has permitted the
use of inducements by an employer or union where
such rewards are related to the furtherance of the
election process 4 or where they are not made
dependent on support for either party offering the
inducement.5 In the instant case it appears that,
however inadvertently, the Petitioner made an offer
of financial benefits to employees contingent on its
success in the election. Such a promise constitutes
objectionable conduct. 6 If we were not to so find, we
might well envision future elections in which employ-
' Harvard Coated Products Co., 156 NLRB 162 (1965). The Coca-Cola
Botting Companoy of Menmphis, 132 NLRB 481 (1961); cf. Bordo Products
Comrpan. 119 NLRB 79, 84 (1957).
4 See, e.g., Lawrence Security Inc.. 210 NLRB 1048 (1974).
Cf. N.LR.B. v. Savair Manufacturing Co., 414 US. 270, 279, fn. 6
(1973).
6 Petitioner argues that Hollywood Plastics, Inc., 177 NLRB 678 (1969). is
applicable here. However, that case involved prizes which were not
(Continued)
1097
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers and unions alike might be tempted to promise
employees all sorts of inducements-raffles, prizes,
vacation trips, or whatever-if their side won the
election. Such an intrusion into the election process
would be highly undesirable. Thus, Employer's Ob-
conditional offers and were de minimis in nature. As was noted there,
"obtaining a raffle ticket on the prize was not conditioned upon how the
employees voted in the election or the results." Id. at 681. Moreover, the
raffle offered by the Petitioner here cannot be characterized as insubstantial.
Although the Acting Regional Director reasoned that the raffle was worth
only SI.18 to each employee ($100 divided by 85 eligible employees), each
jection 14 is sustained, and Region 20 is ordered to
conduct a second election in this case.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
employee nonetheless had a l-in-85 chance to win the whole S100, a
somewhat more enticing prospect-especially for anyone who could not
otherwise make up his or her mind. Even if it could be said that the raffle
was worth only $1.18 to each employee, we could hardly countenance an
offer of $1 I to each employee for a union victory or loss.
1098