Durham School Services LP

National Labor Relations Board - Board Decisions

Mar 31, 2009

353 N.L.R.B. 1287 (N.L.R.B. 2009)

DURHAM SCHOOL SERVICES
353 NLRB No. 129
1287
Durham School Services LP and Laborers Interna-
tional Union of North America Local 509. Case
14–RC–12713
March 31, 2009
DECISION AND ORDER REMANDING
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The National Labor Relations Board has considered an
objection to an election held October 17, 2008, and the
Regional Director’s report recommending disposition of
it.1 The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 59 for
and 77 against the Petitioner, with 1 challenged ballot, an
insufficient number to affect the results.
The Board has reviewed the record in light of the Em-
ployer’s exceptions, and adopts the Regional Director’s
findings and recommendations, and finds that the elec-
tion must be set aside and a new election held.2

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 Relying on Sunrise Rehabilitation Hospital, 320 NLRB 212
(1995), and its progeny, Rite Aid Corp., 326 NLRB 924 (1998), and
Lutheran Welfare Services, 321 NLRB 915 (1996), the Regional Direc-
tor found that the Employer engaged in objectionable conduct by offer-
ing off-duty employees 2 hours’ show-up pay to come to its facility on
the day of the election. Member Schaumber notes that the facts in Sun-
rise are markedly different from the facts presented in this case but that
the Board extended the holding in Sunrise, Rite Aid Corp., and Lu-
theran Welfare Services to find objectionable conduct based on facts
similar to those presented here. Consequently, he adopts the Regional
Director’s finding for institutional reasons, as it is consistent with ex-
tant Board precedent.
Were he writing on a clean slate, Member Schaumber would permit
both employers and unions to reimburse employees not scheduled to
work during polling hours for reasonable transportation expenses (ac-
tual or approximated based upon averages or good faith estimates)
incurred in travelling to the polling place. He also would permit both
unions and employers to reimburse employees (whether on duty or off)
for actual wages unavoidably lost because of voting, and would further
consider a reasonable reimbursement for an employee’s lost time while
off of work. He would require that the offer be made to all eligible
voters, and that the offer include a statement that the reimbursement is
intended solely to increase participation in the election by covering
reasonable transportation expenses and lost wages or lost time, as ap-
plicable, and that it is not intended to interfere with or influence how
employees vote in the election; the choice is entirely the employees’ to
make. If such a disclaimer is included with the offer, Member
Schaumber would not find the offer objectionable simply because it is
accompanied by noncoercive and otherwise lawful exhortations to vote
for or against the Union. In Member Schaumber’s view, we should
encourage broad participation in Board elections; neutral, noncoercive
ORDER
IT IS ORDERED that this matter is remanded to the Re-
gional Director for further appropriate action.
REGIONAL DIRECTOR’S REPORT ON
OBJECTIONS, ORDER APPROVING WITHDRAWAL
OF CERTAIN OBJECTIONS AND RECOM-
MENDATIONS
This report contains the Regional Director’s recommenda-
tions regarding the objections filed by the Petitioner. The Peti-
tioner withdrew all but its third objection, which alleges that the
Employer offered payment to employees to come to the facility
on the day of the election. The investigation of the objection
established that the Employer offered and paid employees not
scheduled to work on the day of the election 2 hours’ show-up
pay. As described below, it is recommended that the Peti-
tioner’s Objection 3 be sustained and that a rerun election be
conducted.
Procedural History
Pursuant to a petition filed on May 15, 2008,1 and a Stipu-
lated Election Agreement approved by the Regional Director on
June 9, an election was conducted on October 17, among em-
ployees of the Employer in the following-described appropriate
collective-bargaining unit:
All full-time and regular part-time drivers and moni-
tors employed by the Employer at its 6121 Hall Street
and 3350 Morgan Ford, St. Louis, Missouri facilities,
EXCLUDING office clerical and professional employ-
ees, guards and supervisors as defined in the Act.

offers of reimbursement foster that objective by minimizing the finan-
cial burden of exercising one’s Sec. 7 rights.
1 All dates are in the year 2008 unless otherwise specified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1288
The results of the election were as follows:
Approximate number of eligible voters………………….158
Void ballots………………………………………………1
Votes cast for Petitioner…………………………………59
Votes cast against participating
labor organization………………………………………77
Valid votes counted……………………………………...136
Challenged ballots……………………………………….1
Valid votes counted plus challenged ballots…………….137
Challenges are not sufficient in number to affect the results
of the election.
A majority of the valid votes counted plus challenged ballots
has not been cast for the Petitioner.
Timely objections to conduct affecting the results of the elec-
tion were filed by the Petitioner on October 22.2
On November 13, the Petitioner submitted a written request
to withdraw its objections with the exception of Objection 3.3
Having carefully considered the matter and having con-
cluded that withdrawal of Objections 1, 2, and 4 is not inconsis-
tent with the purposes and policies of the Act,
IT IS HEREBY ORDERED that the Petitioner’s request to with-
draw its Objections 1, 2, and 4 is approved.
Pursuant to Section 102.69 of the Board’s Rules and Regula-
tions, Series 8, as amended, I have caused an investigation to be
made of the Petitioner’s Objection 3. I have carefully consid-
ered all evidence adduced during the investigation, and I report
and recommend as follows:
Background
The Employer, with facilities located at 6121 Hall Street and
3350 Morgan Ford, St. Louis, Missouri, is engaged in providing
school bus transportation services.
Objection
In Objection 3, the Petitioner alleges that the “Employer of-
fered payment to employees to come to the facility on the day
of the election” and paid employees not scheduled to work 2
hours of pay if they showed up on the election day. In support
of its objection, the Petitioner presented witnesses who pro-
vided sworn evidence and a flyer4 that states, in part:
URGENT
SHOW UP
PAY
TWO HOURS PAY
As you know …
Because Durham believes that it is important that you are
given an opportunity to exercise your right to vote, the Com-
pany will pay anyone not scheduled to work on Friday at the
request of your school district two (2) hours of pay if you
show up at work and check-in with dispatch while the polls
are open.

2 A copy of the Petitioner’s objections is attached as Exh. 1.
3 A copy of the withdrawal request is attached as Exh. 2.
4 A copy of the flyer is attached as Exh. 3.
Please understand that this does not mean you have to vote
and if you vote, you may vote either “yes” or “no.”
The Petitioner presented five witnesses, all of whom were
eligible voters. The Petitioner’s first witness stated that the
Employer required employees to attend two mandatory meet-
ings at which the Employer presented its arguments against
employees voting in favor of the Union. The first meeting was
held on about October 3, 2007. After this meeting, a flyer was
attached to the clipboard that held this employee’s daily routes.
While the employee did not retain the flyer, the employee re-
membered the word “URGENT” and that employees would get
2 hours pay if they showed up to vote. Another meeting was
held on October 15. At that meeting, Rick and Jim, two corpo-
rate managers spoke to employees. Jim stated, “If you are off
work and show up to vote on Friday you will get 2 hours show-
up pay. Let dispatch know you are here.”
The Petitioner’s second witness stated that at a mandatory
meeting on October 15, in which the Employer campaigned
against the Union, Rick, a manager for the Employer, told em-
ployees they would get 2 hours show-up pay if they came in to
vote on their day off. Upon arriving at the facility on the day of
the election, this witness, who was not scheduled to work,
checked in with dispatch, advised the employee was there to
vote, signed in on a list, voted, and left. On the next payday,
the employee’s payroll register report indicated the employee
received 2 hours show-up pay.
A third witness who attended a second mandatory meeting
on October 15, states a manager whose name he did not know
said, “If you are off work and show up to vote on Friday you
will get 2 hours show-up pay. Let dispatch know you are
here.” The employee received the above-described flyer upon
leaving this meeting and stated the Employer also placed the
flyer on employees’ clipboards, the bulletin board, and left it in
the breakroom and working area. On election day, the em-
ployee, who did not work, went to dispatch, signed for the em-
ployee’s check, and then voted and left. The employee re-
ceived 2 hours show-up pay as indicated in the employee’s
payroll register report.
The fourth witness testified that a flyer was on the em-
ployee’s route clipboard the day before the election and re-
membered the flyer was marked “URGENT” and stated em-
ployees would get 2 hours pay if they came in on their day off
to vote.
The Petitioner’s fifth witness, who works at the other facil-
ity, testified that employees where required to attend meetings
and attended a meeting on October 15. During the meeting, a
Regional manager for the Employer, whom the witness believes
is Rick, told employees, “Anyone who is off work will get paid
2 hours for coming in to vote. I don’t care how you vote.” The
witness also stated that between voting sessions on the day of
the election, the employee saw that the dispatcher had a list of
names on the counter, the type of list employees sign to ac-
knowledge their presence at mandatory meetings such as safety
meetings, indicating which employees had been there that day.
The Employer asserts that it lawfully offered to compensate
off-duty employees for costs associated with travel on the day
of the election and expressly told them they were free to vote
either for or against the Union. In support of its position, the
DURHAM SCHOOL SERVICES 1289
Employer provided identical prepared affidavits that only re-
quired employees to fill in their name, address, telephone num-
ber, job classification, and employment date, and sign and date
the affidavit before an Employer representative. These pre-
pared affidavits state in part:
6. I received two (2) hours of show-up pay on October 17,
2008.
7. The Company expressly told me that the show-up pay was
not a bribe related to voting and, based on the Company’s
communication, I understood the purpose of the show-up pay
was to reimburse me for my time and travel expenses.
8. The Company told me that to receive the show-up pay I did
not have to vote and if I voted, I could vote “yes” or “no.”
9. The two (2) hours of show-up pay had no impact on
whether I voted or how I voted.
Two of the 39 employees who signed the prepared affidavits
amended the affidavit to read that they drove a charter on Octo-
ber 17, thus receiving pay for working and not show-up pay.
Two of the 39 employees who signed the prepared affidavits
struck paragraphs 7 and 8 from the affidavits they executed.
One employee struck paragraph 7, and another struck “that to
receive the show-up pay I did not have to vote and if I voted”
from paragraph 8. None of the employees made any other
changes to the affidavits.
In Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995),
the Board held that an employer’s monetary payments that are
offered to employees as a reward for coming to a Board elec-
tion and that exceed reimbursement for actual transportation
expenses amount to a benefit that reasonably tends to influence
the election outcome. In Sunrise, the employer distributed a
handbill to most employees that stated, in part, that report pay
of 2 hours would be paid if an employee was not scheduled to
work on the election date and came in for the election. Unlike
the Employer here, where the unscheduled employees had to
check in with dispatch while the polls were open, in Sunrise it
was not necessary for the employees to report to their supervi-
sor or prove that the employees actually voted as along as the
employees came in and properly recorded their time. In addi-
tion, in Sunrise the employer offered to provide transportation
to and from the facility and child care during the hours the polls
were open for employees not scheduled to work the day of the
election. The handbill ended with the employer encouraging
employees to vote “no.” Here, as noted, the Employer stated
employees may vote either “yes” or “no.”
In Sunrise, in determining the employer’s offer of pay was
objectionable, the Board took into account such factors as the
size of the benefit in relation to its stated legitimate purpose,
the number of employees receiving it, how the employees
would reasonably construe the purpose given the context of the
offer, and its timing. The Board found that the benefit was
substantial—2 hours’ pay without the necessity of doing any-
thing other than showing up on the day of the election. Second,
the flyer was generally distributed to most employees and the
number of employees potentially affected was more than de
minimis. Third, given the absence of any link to transportation
expenses, the Board found that employees would reasonably
perceive the 2 hours’ pay as a favor from the employer which
the employees might feel obligated to repay by voting against
the union, as the employer requested.
Here, like Sunrise, the Employer offered 2 hours’ show-up
pay for employees who were not scheduled to work on the elec-
tion day. The flyer was attached to employees’ clipboards
along with their daily routes and otherwise distributed at meet-
ings and at the Employer’s facility. As noted, the Employer
presented evidence that at least 37 eligible voters received 2
hours’ show-up pay, clearly more than de minimis where only
18 more votes were cast against the Petitioner than for the Peti-
tioner. Finally, there is no evidence that the 2 hours’ show-up
pay was in any way linked to transportation expenses. While
the Employer’s witnesses stated the show-up pay had no impact
on whether or how they voted, I need not inquire into the sub-
jective reactions of the potential recipients of the benefit. The
standard is an objective one—whether the challenged conduct
has a reasonable tendency to influence the election outcome.
Sunrise Rehabilitation Hospital, supra.
In cases since Sunrise, the Board has found that the employer
engaged in objectionable conduct by the single act of offering 2
hours’ of pay to off-duty employees who came in to work to
vote in the election. The employers did not describe the pay-
ment as reimbursement for transportation costs or other ex-
penses associated with traveling to the election site. Rite Aid
Corp., 326 NLRB 924 (1998); Lutheran Welfare Services, 321
NLRB 915 (1996).
The Employer argues that if employees are paid $10 per hour
after taxes that would amount to $8 per hour, or $16 for 2 hours
of pay. Payroll information or an average hourly rate of pay for
employees was not submitted, but the Petitioner’s witnesses
stated they earned more than $12 to nearly $15 per hour. The
Employer then computes mileage reimbursement at the Internal
Revenue Service rate of 58.5 cents per mile, which would
equate to compensating employees for an approximately 27-
mile round trip. The fact remains, however, that there is no
evidence that employees’ 2 hours’ show-up pay was in any way
linked to transportation expenses. Two employees who live in
the same zip code as the facility they voted at received the same
amount of show-up pay as an employee who lives in High
Ridge, Missouri, and another employee who lives in Centre-
ville, Illinois. In addition, employees were never told that the
show-up pay was linked to their transportation expenses.
Contrary to the Employer’s contention, I find the Board’s
decision in New Era Cap Co., 336 NLRB 526 (2001), is distin-
guishable. In New Era, the employer posted a notice on the
morning of a union-affiliation vote election urging employees
to vote against affiliation, and offered all on-duty employees
free transportation to and from the polling station and reim-
bursement of one-half hour wages to compensate the employ-
ees for the time it took them to vote. As that case states, an
employer may provide transportation to and from a polling
station, provided that the benefit is offered on a nondiscrimina-
tory basis, and the employees are free to accept or reject the
offer. Further, the compensation paid to employees to vote was
valued at only $5 per employee. This is similar to Allen’s Elec-
tric Co., 340 NLRB 1012 (2003), where the union offered to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1290
reimburse voters for wages lost because of voting. Both of
these cases compensated employees for lost work hours be-
cause of the election. Here, employees were not losing any
work hours, rather they received 2 hours’ show-up pay they
otherwise would not have received.
In these circumstances, I find that the Employer’s offer of 2
hours’ show-up pay constituted an offer or payment for em-
ployees’ time and a reward for coming in to vote, the Employer
did not describe this show-up pay as reimbursement for trans-
portation costs and it exceeded reimbursement for actual trans-
portation expenses, reasonably tended to influence the election
outcome, and is objectionable conduct sufficient to warrant
setting aside the election. Sunrise Rehabilitation Hospital,
supra; Rite Aid Corp., supra; Lutheran Welfare Services, supra.
See also, Perdue Farms, 320 NLRB 805 (1996).
Accordingly, I recommend that Objection 3 be sustained.
Conclusion and Recommendations
Having approved the Petitioner’s request to withdraw Objec-
tions 1, 2, and 4, and having recommended that Objection 3 be
sustained, I further recommend that the election be set aside
and that a rerun election be conducted.5
November 20, 2008

5 Under the provision of Sec. 102.69 of the Board’s Rules and Regu-
lations, exceptions to this Report may be filed with the Board in Wash-
ington, DC. Exceptions must be received by the Board in Washington
by December 4, 2008.
Under the provisions of Sec. 102.69(g) of the Board’s Rules, docu-
mentary evidence, including affidavits, which a party has timely sub-
mitted to the Regional Director in support of its objections and which
are not included in the Report, are not part of the record before the
Board unless appended to the exceptions or opposition thereto which
the party filed with the Board. Failure to append to the submission to
the Board copies of evidence timely submitted to the Regional Director
and not included in the Report shall preclude a party from relying upon
that evidence in any subsequent related unfair labor practice proceed-
ing.
DURHAM SCHOOL SERVICES 1291