Detroit Medical Center

National Labor Relations Board - Board Decisions

Jul 27, 2000

331 N.L.R.B. 878 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878
Detroit Medical Center Corporation and Michigan
Council 25, American Federation of State,
County and Municipal Employees, AFL–CIO
and Local 79, Service Employees International
Union, AFL–CIO, Joint Petitioner and Hospital
Workers Organizing Committee. Case 7–RC–
21639
July 27, 2000
DECISION AND CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN TRUESDALE AND MEMBER FOX
AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held October 1, 1999,1 and the attached relevant portions
of the hearing officer’s report (as an Appendix) recom-
mending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 186 for the Joint Petitioner, 114 for
the Intervenor and 732 against the participating labor
organizations, with 179 challenged ballots, an insuffi-
cient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief and has decided to affirm the
hearing officer’s findings and conclusions only to the
extent consistent with this decision.2

The Intervenor’s Objection 1 alleges that the Employer
interfered with employees’ free choice by granting the
Joint Petitioner’s request for access to conduct campaign
meetings on company premises during worktime while
not offering the same access to the Intervenor. The hear-
ing officer sustained the objection. In its exceptions, the
Employer contends that, unlike the Joint Petitioner, the
Intervenor never requested access to the Employer’s
premises and that, in the absence of such a request, there
was no objectionable denial of access. We find merit in
the exceptions.
The parties entered into a Stipulated Election Agree-
ment on September 1. On September 9, the Joint Peti-
tioner requested a meeting with the Employer. The In-
tervenor was not invited and did not attend. At the meet-
ing, the Joint Petitioner requested access to the Em-
ployer’s premises. The Employer agreed to allow access
subject to nonnegotiable rules established solely by the
Employer. On September 22, the Employer faxed the
Joint Petitioner two agreements memorializing the rules
for access: “Informal Meeting Agreement” and “Infor-
mal Meeting Agreement: Outdoor Events.” The Em-
ployer determined the number of meetings and the dates
but asked the Joint Petitioner for suggested times. The
names of both the Joint Petitioner and the Intervenor
appeared at the top of the agreements; however, only the
box next to the Joint Petitioner’s name was checked off.
The Employer told the Joint Petitioner that if the Interve-
nor requested access, the same arrangements would be
provided. The Joint Petitioner signed the agreement on
September 23, and scheduled meetings indoors on the
premises for September 27, 28, and 29, and outdoors on
the premises for September 30.

1 Hereinafter, all dates are in 1999 unless otherwise specified.
2 In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s overruling of the Intervenor’s Objections 4 and 6.
On September 24 or 25, one of the Intervenor’s organ-
izers saw a flyer listing the Joint Petitioner’s meetings.
The flyer stated that “on duty employees may attend
meetings, not to exceed one hour with permission of their
supervisor.” The Intervenor filed an unfair labor practice
charge3 on September 27 alleging that the Employer pro-
vided unlawful assistance to the Joint Petitioner by pro-
viding rooms for public meetings on hospital premises
and by allowing employees paid time off to attend these
meetings. The Employer’s human resources director
contacted the Intervenor on September 28 to offer access
on the same terms set forth in the agreements between
the Employer and Joint Petitioner. The Intervenor de-
clined, stating that off site meetings had already been
scheduled and it was too late to publicize new meetings.
During the campaign, the Employer did not conduct a
campaign of its own for, or against, any union.
In sustaining the Intervenor’s Objection 1, the hearing
officer concluded that the conduct of the Employer in
allowing the Joint Petitioner to conduct meetings on its
premises while not timely offering the same arrangement
to the Intervenor was objectionable. The hearing officer
thus found that the Employer had an obligation to seek
out the Intervenor and timely offer the same arrangement
regarding access that it granted the Joint Petitioner. Con-
trary to the hearing officer, we find that the Employer
had no such obligation here.
It is not uncommon for the labor organizations which
are party to an election to make requests of the employer
and these requests may vary. However, the employer has
no obligation to notify the party with competing interests
that it has either granted or denied such request. In the
instant case, the Joint Petitioner requested access, and the
Intervenor did not. The Employer simply considered the
only access request made to it and did not affirmatively
seek out the Intervenor to make the same offer to it. We
find that the Employer was not obligated to offer the In-
tervenor something it had not requested.4
The cases cited by the hearing officer are distinguish-
able. In Price Crusher Food Warehouse, 249 NLRB 433
3 The charge in Case 7–CA–42047 was withdrawn after the election.
The allegations of Objection 1 parallel the withdrawn charge.
4 There is no contention that the Employer would not have granted a
similar request for access from the Intervenor. Indeed, to the contrary,
the access agreements prepared by the Employer included the names of
both the Intervenor and the Joint Petitioner. Further, the Employer told
the Joint Petitioner that, if the Intervenor requested access, the same
arrangements would apply and the Employer subsequently offered
access to the Intervenor on the same basis as the Joint Petitioner.
331 NLRB No. 108
DETROIT MEDICAL CENTER CORP. 879
(1964); General Iron Corp., 224 NLRB 1180 (1980); and
Kosher Plaza Supermarket, 313 NLRB 74 (1993), in the
context of other unfair labor practices, each employer
granted access to one union while affirmatively denying
the other union’s request for similar access. In the in-
stant case, as noted above, there has been no affirmative
denial of access because the Intervenor made no request.
The hearing officer relied on Lake City Foundry Co., 173
NLRB 1081 (1968), enf. denied 432 F.2d 1162 (7th Cir.
1972), to find that allowing one of two competing unions
to conduct organizing meetings on company premises
during company time is objectionable conduct where the
second union did not request access. However, as ac-
knowledged by the hearing officer, there are “important
distinctions” between Lake Foundry and the instant case.
In Lake Foundry, the employer not only committed nu-
merous unfair labor practices and engaged in other objec-
tionable conduct, but also assisted in the formation of the
competing labor organization by suggesting to employ-
ees that they form their “own union,” naming the likely
organizers, granting those organizers permission to hold
meetings on company premises and on company time,
and signing a collective-bargaining agreement with that
labor organization when it did not represent an uncoerced
majority of its employees.
Finally, the hearing officer recommended sustaining
Objections 2, 3, and 5 as related to or providing addi-
tional support for his findings with regard to Objection 1.
We agree with the hearing officer that the conduct al-
leged in Objections 2 and 3 would be isolated and de
minimis if considered as separate objections. We also
agree with the hearing officer that, standing alone, the
conduct alleged in Objection 5 would not have a reason-
able tendency to influence the outcome of the election.
Nor do we find that Objections 2, 3, and 5, viewed cumu-
latively, warrant setting aside the election. Accordingly,
in view of our finding that the Employer’s failure to af-
firmatively offer the Intervenor the same access ar-
rangement as the Joint Petitioner was not objectionable,
we find that the Intervenor’s remaining objections do not
provide a sufficient basis for setting aside the election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for Michigan Council 25, American Fed-
eration of State, County and Municipal Employees,
AFL–CIO, and Local 79, Service Employees Interna-
tional Union, AFL–CIO or Hospital Workers Organizing
Committee, and that neither is the exclusive representa-
tive of these bargaining unit employees.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS TO CONDUCT
AFFECTING THE RESULTS OF THE ELECTION
Objection No. 1—Providing Assistance to the Joint Petitioner
by Allowing Joint Petitioner to Meet With Employees on the
Employer’s Premises During Worktime
Testimony
Donna Stern, a unit clerk employed at Harper Hospital, testi-
fied on behalf of the Intervenor and James Shepard, director of
human resources for the Central Campus, testified on behalf of
the Employer with respect to this objection. As much of testi-
mony was uncontradicted, a summarized synthesis of the un-
controverted testimony follows:
Shortly after the parties entered into the Stipulated Election
Agreement on September 1, the Joint Petitioner2 called Shepard
and requested a meeting. That meeting was held on September
9. The Intervenor was not invited and did not attend. At the
beginning of the meeting, the Joint Petitioner requested that the
Employer conduct a card check and grant voluntary recogni-
tion. The Employer refused. The Joint Petitioner then re-
quested access to the Employer’s premises. Shepard replied
that access would be granted, but that the Joint Petitioner would
have to comply with rules drafted by the Employer, and there
would have to be a written agreement.3 Shepard drafted two
agreements, incorporating the rules, entitled “Informational
Meeting Agreement” and “Informational Meeting Agreement:
Outdoor Event.”4 The documents were faxed to the Joint Peti-
tioner on September 22. The Employer determined the number
of meetings and the dates on which they could be held, and
asked the Joint Petitioner for suggested times. Pursuant to the
terms of the agreements, there was a room charge of $150 for
each indoor meeting, and the Employer agreed to pay on duty
employees up to one hour for attending an indoor meeting.
Additionally, the Joint Petitioner was required to identify the
nonemployee organizers who would be coming on site for the
meetings. The Joint Petitioner signed and returned the docu-
ments to the Employer on September 23.
On either September 24 or 25, Stern was handed a flyer5 an-
nouncing on site meetings on September 27, 28, and 29, to be
conducted by the Joint Petitioner. The flyer stated, “ON DUTY
employees may attend meetings, not to exceed one hour with
permission of their supervisor.” (Emphasis in the original.)
She delivered the flyer to the Intervenor’s attorney, George B.
Washington, on September 25.
On September 27, the Intervenor filed an unfair labor prac-
tice charge6 against the Employer alleging that the Employer

2 The Employer and Joint Petitioner are signatories to a joint operat-
ing agreement covering the Employer’s service employees and some
skilled trades employees. The Employer has had a decades long collec-
tive bargaining relationship with both SEIU and AFSCME. Currently,
the Intervenor does not represent any employees of the Employer.
3 Accordingly to Shepard, the rules were to be established solely by
the Employer and were nonnegotiable.
4 Intervenor Exhs. 2 and 3, respectively. Copies are attached hereto
as Exhs. B and C, respectively.
5 Intervenor Exh. 1, entitled “Countdown to Victory!”
6 Case 7–CA–42047 (Intervenor Exh. 5) which charge was with-
drawn after the election. The allegations of Objection 1 parallel the
charge allegations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880
was providing unlawful assistance to the Joint Petitioner by
providing rooms for meetings and allowing employees to attend
the meetings on paid time. At about 3:30 p.m. the following
day, after receipt of the charge, Shepard called Washington and
asked if the Intervenor wanted to take advantage of the agree-
ments the Employer had with the Joint Petitioner. Washington
requested copies of the agreements and they were faxed to him.
This was the Employer’s first contact with the Intervenor con-
cerning meetings or access to the Employer’s premises. The
Intervenor did not accept the offer, assertedly because it came
too late to publicize the meetings and arrangements had already
been made for off premises meetings.
Shepard further testified that the Employer paid on duty em-
ployees up to 1 hour’s pay for attending an indoor meeting and
that it is not atypical for the Employer to pay employees for
attending meetings held during business hours. He added, “[I]t
was in our best interest, as part of election strategy[,] to have
the people go in and attend the meetings and get a full view of
the information that was presented, because we did not think
we could be harmed by that.”7 Additionally, he stated that each
of the agreements had the Intervenor’s acronym at the top with
a checkbox in the event that the Intervenor wanted to enter into
the agreements. The Employer advised the Joint Petitioner that
if the Intervenor requested on premises meetings, the same
agreements would be made available to the Intervenor.
Analysis and Recommendation
Unfortunately, most of the case law involving an employer’s
assistance to a labor organization during an election campaign
involves unfair labor practices or unfair labor practices and
objections, rather than just objections. As a preliminary matter,
this objection concerns alleged assistance to a labor organiza-
tion, but does not raise directly 8(a)(2) issues of domination or
interference in the formation or administration of a union. Ac-
cordingly, I find that the objection is properly before me and
does not involve the type of unfair labor practice conduct that
cannot be litigated in a representation case hearing. See, e.g.,
Texas Meat Packers, 130 NLRB 279 (1961).
Generally, objectionable conduct is defined as those actions
which create an atmosphere which tends to interfere with the
exercise by employees of their free choice in an election. Gen-
eral Shoe Corp., 77 NLRB 124 (1948); Cambridge Tool &
Mfg. Co., 316 NLRB 716 (1995); and Hopkins Nursing Care
Center, 309 NLRB 958, 959 (1992). Conduct which violates
Section 8(a)(1) of the Act is a fortiori, conduct which interferes
with employees’ exercise of free choice in an election. Enola
Super Thrift, 233 NLRB 409 (1977); Vencor Hospital-Los An-
geles, 324 NLRB 234, 253 (1997); and Eskaton Sunrise Com-
munity, 279 NLRB 68, 80 (1986). A limited exception exists
for violations which are such that it would be virtually impossi-
ble to conclude that they could have affected the results of the
election. Enola, supra. The standard for finding conduct objec-
tionable is less stringent than that for finding conduct an unfair
labor practice. Regardless of whether the conduct at issue is
alleged as an unfair labor practice or an objection, essentially
the same test is utilized for considering whether that conduct is
isolated or de minimus. Factors to be considered, other than
the severity of the misconduct, include the number of incidents
of misconduct, the extent of dissemination and the size of the
bargaining unit. Enola, supra. Other considerations in an ob-

7 Tr. 82.
jection context, are the closeness of the election,8 proximity of
the conduct to the election date,9 number of unit employees
affected, misconduct of the other party(ies), and degree of a
party’s responsibility for the misconduct. Phillips Chrysler
Plymouth, 304 NLRB 16 (1991).
Under circumstances where a question concerning represen-
tation exists, granting one union access to company property to
conduct organizing activities during worktime, while denying
such access to another union, has been found by the Board to be
an unfair labor practice. Kosher Plaza Supermarket, 313
NLRB 74, 85 (1993); Price Crusher Food Warehouse, 249
NLRB 433, 439 (1964); and General Iron Corp., 224 NLRB
1180, 1184 (1976). Similarly, the Board held that allowing one
of two competing unions to conduct organizing meetings on
company premises during company time, where the second
union did not request access, was an unfair labor practice and
objectionable conduct. Lake City Foundry Co., 173 NLRB
1081, 1089 (1968). The Seventh Circuit Court of Appeals re-
fused to enforce the Board’s order on this aspect of the case
because meetings on company property were not uncommon
and the second union did not request to meet with employees
on company property.10 I am, however, bound by Board law.
Although the instant case resembles Lake City Foundry, su-
pra, there are some important distinctions. In Lake City Foun-
dry, the employer engaged in numerous other acts of miscon-
duct, including interrogating and threatening employees, assist-
ing in the formation of a labor organization, and signing a col-
lective-bargaining agreement with a labor organization when it
did not represent an uncoerced majority of its employees. Ad-
ditionally, the Employer in the instant case offered to allow the
Intervenor access to its premises on the same basis as access
was granted to the Joint Petitioner.
In the case before me, the Employer allowed the Joint Peti-
tioner to conduct 11 indoor meetings on its premises, granting
employees up to an hour of paid time to attend one of the meet-
ings.11 It also allowed the Joint Petitioner to conduct three
outdoor meeting on its premises which employees attended on
their own time. The indoor meetings were conducted 2 to 4
days before the election; the outdoor meetings were conducted
the day before the election. Clearly, the conduct was not iso-
lated as the opportunity to attend an indoor meeting on com-
pany time and an outdoor meeting on their own time was made
available to all employees and the meetings were well publi-
cized.
The ability of one of two unions to address unit employees
on company time during the week of an election is a significant
advantage. Although the Employer offered on September 28, at
3:30 p.m., to allow the Intervenor to have access to its premises
on the same basis as access was extended to the Joint Peti-
tioner, I agree with the Intervenor that the offer came too late to
be effective. By the time the offer was extended, seven of the
8 Compare, Archer Services, 298 NLRB 312, 313 (1990); General
Felt Industries, 269 NLRB 474 fn. 1 (1984), with Cambridge, supra;
and Hopkins Nursing Care, supra at 958.
9 Compare Waste Automation & Waste Management, 314 NLRB
376 (1994); Hopkins Nursing Care, supra at 959, with Recycle Amer-
ica, 310 NLRB 629 (1993); and Metz Metallurgical Corp., 270 NLRB
889 (1984).
10 432 F.2d 1162 (7th Cir. 1970).
11 Although Shepard testified that it was not unusual for employees
to attend meetings on paid time, no evidence of nonwork related meet-
ings was presented.
DETROIT MEDICAL CENTER CORP. 881
indoor meetings had either been concluded or were underway.
Assuming a 24-hour period to publicize the meetings, all 11 of
the Joint Petitioner’s indoor meetings would have been con-
cluded or underway before the Intervenor began its meetings.
Not only did these meetings allow the Joint Petitioner the op-
portunity to deliver its message on company time and premises,
they also conveyed the impression that the Employer, by allow-
ing the meetings and paying employees to attend, favored the
Joint Petitioner.12
I am cognizant of the fact that an overwhelming majority of
employees voted against representation by either labor organi-
zation. Excluding challenged ballots, the Intervenor received
only 11 percent of the ballots cast; the Joint Petitioner received
18 percent. Clearly, the ability to conduct its meetings on the
Employer’s premises, including during company time, did not
result in the Joint Petitioner’s election victory.
On balance, I find that the conduct of the Employer in allow-
ing the Joint Petitioner to conduct meetings on its premises
during company time and on employees’ own time, while not
timely offering the same arrangement to the Intervenor, was
neither isolated, nor de minimus, and created an atmosphere
which tended to interfere with the exercise of its employees’
free choice during the election. Accordingly, I recommend that
Objection 1 be sustained.
Objection 2—Disparately Posting Announcements of Joint
Petitioner’s Meetings on Management Bulletin Boards
Testimony
Anya Wislocki, a housekeeping aide at Harper Hospital, tes-
tified for the Intervenor with respect to this objection. She
testified that prior to the election she saw copies of a flyer dis-
tributed by the Joint Petitioner entitled “Countdown to Vic-
tory”13 posted in locker rooms and lying on tables in the cafete-
ria and breakrooms. The flyers contained a schedule listing the
date, time, hospital, and location of various meetings for tech-
nical employees. She did not observe any effort on the part of
the Employer to remove those notices.
Wislocki further testified that copies of a notice entitled “Un-
ion Election Informational Meeting Schedule” (Intervenor Exh.
4)14 were posted on locked management bulletin boards at
Harper Hospital15 and Hutzel Hospital. Unlike the Joint Peti-
tioner’s flyer, this notice did not identify the Joint Petitioner as
its source. According to Wislocki, the Employer never offered
to post notices for the Intervenor. She acknowledged that she
did not request, and is unaware of anyone from Intervenor re-
questing, that the Employer post the Intervenor’s literature.
Shepard testified on behalf of the Employer that the human
resources department prepared Intervenor’s Exhibit 4 and dis-
tributed the document to department supervisors so that the
supervisors would be aware of the meeting times and so that
they could make accommodations to permit employees to at-
tend. The human resources department did not direct the su-
pervisors to post or not to post the document.

12 The Employer’s counsel stated in his closing argument that the
Employer did not tell employees to vote for either labor organization,
and did not ask employees to vote for “no union.” Tr. 138.
13 Intervenor Exh. 1.
14 A copy is attached hereto as Exh. D.
15 Intervenor Exhs. 6a and b are photographs of the posting at Harper
Hospital.
Analysis and Recommendation
There being no evidence that the Intervenor ever attempted
to post its literature in locker rooms or leave literature on tables
in cafeterias or break rooms, I find no disparate treatment and
no objectionable conduct in the Employer’s failure to remove
literature posted or left on tables by the Joint Petitioner.
The posting on locked management bulletin boards of Inter-
venor, Exhibit 4, however, is a different matter. I have found
that allowing the Joint Petitioner to conduct meetings on the
Employer’s premises during worktime interfered with employ-
ees’ freedom of choice in the election. Posting Employer-
prepared notices of such meetings on locked management bul-
letin boards is an extension of the objectionable conduct16 and
further served to suggest to employees that the Employer fa-
vored the Joint Petitioner.
Because of its relationship to Objection 1, I recommend that
the aspect of Objection 2 pertaining to the posting by the Em-
ployer of Intervenor, Exhibit 4 on locked management bulletin
boards be sustained.
Objection 3—Disparately Prohibiting Intervenor’s
Nonemployee Organizers From Distributing Literature
in Nonwork Areas
Testimony
The Intervenor called Heather Bergman to the stand to testify
in support of this objection.
Bergman worked for the Employer in 1993, but was not em-
ployed by the Employer during the critical period. She was,
however, a nonemployee organizer for the Intervenor during
the election campaign. She testified that she learned of an in-
formational meeting to be conducted at Receiving Hospital on
September 27 by the Joint Petitioner. She arrived at Receiving
Hospital shortly before the 6 a.m. start of the meeting for the
purpose of distributing the Intervenor’s literature to employees
attending the informational meeting. She was stopped by secu-
rity and asked to identify herself. She did and asked where the
meeting was to be held. A security officer asked her if she was
with an organization. She replied that she was and identified
the Intervenor. She was allowed to enter, and proceeded to the
meeting room. Only two people and security officers were
present. As she was waiting for more people to arrive before
distributing the literature, security officers told her she would
have to leave the property until the meeting was over. She did
leave. She additionally testified that before leaving, she ob-
served the Joint Petitioner’s literature on a table in the meeting
room.
On cross-examination by Joint Petitioner, Bergman did not
recall seeing Kevin Bramlet, administrative director in charge
of organizing for AFSCME Council 25, at the meeting.
Kevin Bramlet was called to the stand to testify on behalf of
the Employer regarding this objection. According to Bramlet,
he arrived at Receiving Hospital at 5:30 a.m. for the meeting.
He was accompanied by two Local 79, SEIU representatives.
He denied seeing Bergman at the meeting, or outside the meet-
ing room. He stated that he stood at the back of the room fac-
ing the entrance and would have seen Bergman had she been
present.
16 Lake City Foundry, supra at 1089.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882
Analysis and Recommendation
To the extent that a credibility determination is required, I
credit Bergman’s testimony that she was present at Receiving
Hospital prior to 6 a.m. on September 27, even if Bramlet did
not see her, and that she was ordered to leave by security offi-
cers. No evidence was presented to establish that the Em-
ployer’s directive to Bergman that she vacate the premises was
made known to eligible voters prior to the election.
As a separate objection, I would find the Employer’s action
in asking a nonemployee organizer, on one occasion, to leave
its premises while attempting to distribute literature in a nonpa-
tient care, but nonpublic area, before regular business hours, to
be isolated and de minimus. Joint Petitioner, however, in con-
formance with the written agreements I have found to be objec-
tionable in Objection 1, was allowed to remain and distribute its
literature. This disparity provides additional evidence of the
preference conveyed to the Joint Petitioner and lends additional
support to my finding with respect to Objection 1.
I recommend that Objection 3 be sustained.
Objection 5–Providing Payment to Employees to
Come in to Vote
Testimony
The Intervenor presented two witnesses, Shanta Driver and
Donna Stern, in support of this objection.
Driver testified that she served as the election observer for
the Intervenor at the Harper Hospital cafeteria polling place.
The Employer’s observer during the first polling session was a
technical employee from the noninvasive department at Chil-
dren’s Hospital. During the session, two voters asked the Em-
ployer’s observer if she would sign them in so that they would
receive pay for coming in to vote. The observer stated that she
would “sign in” the two voters. The Employer’s observer ex-
plained to Driver that the voters would receive an hour’s pay
simply for coming in to vote. Driver additionally testified that
as the Intervenor’s observer, she had no authority to pay off
duty employees for coming in to vote.
Stern testified that as a unit clerk, she does scheduling for
her group. She reviewed the Employer’s payroll records and
work schedule for the noninvasive department for Children’s
Hospital for the 2-week payroll period encompassing the date
of the election. Of the eight or nine employees in that depart-
ment who were not scheduled to work on the day of the elec-
tion, six received pay for 1 hour on the date of the election.
Other than on election day, there were no instances during the
2-week period of employees being scheduled for 1 hour. Stern
has not scheduled employees in her group for 1 hour for in
service meetings and has no knowledge of other departments
doing so. She acknowledged, however, that she does not do
payroll and that other departments or units may operate differ-
ently than hers.
The Employer’s counsel conceded that six off duty employ-
ees from the noninvasive department of Children’s Hospital
received pay for 1 hour for coming in to vote in the election.
He denied, however, that receipt of the hour’s pay was condi-
tioned in any manner to how the employees voted. The Inter-
venor’s counsel acknowledged that he had no evidence that the
payment was dependent on the employee voting for the Joint
Petitioner or for “no union.”
Analysis and Recommendation
In Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995),
the Board held that generally “monetary payments that are of-
fered to employees as a reward for coming to a Board election
and that exceed reimbursement for actual transportation ex-
penses amount to a benefit that reasonably tends to influence
the election outcome.”17 An objective standard is utilized—
“whether the challenged conduct has a reasonable tendency to
influence the election outcome.”18 Factors to be considered
include the size of the benefit in relation to its stated legitimate
purpose, the number of employees receiving the benefit, and
how employees would reasonably construe the purpose of the
benefit given the context and timing of the offer.19
In the instant matter, eight or nine employees in one depart-
ment of one hospital were offered the benefit of an hour’s pay
for coming in during off duty hours to vote. Six employees
took advantage of the offer. The record does not establish the
number of employees in the department. Assuming that nine
employees were not scheduled during the hours of the election,
and assuming an equal distribution of available work hours, the
number of employees in the department would range from 45 to
63 depending on whether the department was on a 5-, 6-, or 7-
day schedule. There is no record evidence that the offer was
disseminated to employees in other departments. Neither is
there evidence that the offer was linked to transportation costs.
The reason for the offer also is not set forth in the record, but
presumably it was to encourage off duty employees to vote.
Standing alone, the offer of an hour’s pay to nine off duty
employees for coming to vote in a Board election, where 63
employees out of total voting complement of 2000 are aware of
the offer, does not, in my opinion, have a reasonable tendency
to influence the outcome of the election. The offer, however,
does not stand alone. As set forth above, I recommend that
Objections 1, 2, and 3 be sustained on the basis that the dispa-
rate assistance given by the Employer to one of two participat-
ing unions. Under the circumstances, employees could logically
assume the offered benefit was for the purpose of voting for the
favored union or “no union.”
Accordingly, I find that Objection 5 provides an additional,
independent basis for setting aside the election. I recommend
that Objection 5 be sustained.

17 See also Lutheran Welfare Services, 321 NLRB 915 (1996);
Perdue Farms, 320 NLRB 805 (1996).
18 Gulf States Canners, 242 NLRB 1326 (1979), quoted in Sunrise
Rehabilitation Hospital, supra.
19 NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964), and B &
D Plastics, 302 NLRB 245 (1991), quoted in Sunrise Rehabilitation
Hospital, supra.