Essco Tools, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1980

248 N.L.R.B. 700 (N.L.R.B. 1980)

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Easco Tools, Inc. and United Steelworkers of Amer-
ica, AFL-CIO-CLC, Petitioner. Case 5-RC-
10931
March 26, 1980
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the objections to an
election' held on September 14, 1979, and the Re-
gional Director's Report on Objections recom-
mending disposition of same. The Board has re-
viewed the record in light of the exceptions and
briefs and has decided to adopt the Regional Di-
rector's findings and recommendations, as modified
herein.
We agree that the election conducted in this case
should be set aside. However, we believe further
discussion of the issue involved here is necessary
because the question of whether the Petitioner's
payments to its election observers impaired the in-
tegrity of the election is more complicated, and the
answer less obvious, than the Regional Director's
report suggests.
Prior to the election, the Petitioner informed
three eligible voters that if they served as election
observers for the Union they would be paid $5 per
hour for their regular 8-hour workday regardless of
whether they decided to return to work after the
election. Approximately I hour before the polls
opened, the Petitioner gave two eligible voters $40
pay vouchers ($5 per hour for the regular 8-hour
workday) in return for their agreement to act as
election observers. Both employees' normal rate of
pay was $4.25 per hour. The preelection confer-
ence lasted approximately a half hour and the polls
were open for I hour. One observer took the day
off while the other observer worked his usual shift.
In general, it is difficult to determine when pay-
ments to election observers merely compensate the
employees for serving as observers and when they
amount to economic inducements to influence the
employees' vote. A labor organization participating
in a representation election is entitled to have ob-
servers to represent its interest and to pay them.
No implication of impropriety arises from the fact
of payment alone. Furthermore, it is likely that an
organization will select observers who are known
' The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was 13 for, and 11 against, the
Petitioner; there were no challenged or void ballots.
248 NLRB No. 105
adherents to its cause to assure loyal representation
and that employees willing to act as union observ-
ers already support the organization. Nevertheless,
the opportunity to pay observers presents an op-
portunity to "buy" ballot box support and, even in
the absence of improper intent on the part of a
labor organization, payment may, in certain cir-
cumstances, instill in employees who accept the
benefit a sense of obligation to vote for the organi-
zation. Thus, the issue of whether payments to ob-
servers adversely affect employees' freedom of
choice in an election is a significant one.
The Board considered the issue in Quick Shop
Markets, Inc.,2 cited by the Regional Director, and
declined to set aside an election on the basis of
payments to union observers when it found the
payments were not grossly disproportionate to the
employees' usual pay rate or to the reasonable
value of their work as observers. The Board, how-
ever, did not set a precise test for determining
whether payments are permissible or improper.
Rather, it recognized that such a determination re-
quires the exercise of judgment in specific situa-
tions. While the Quick Shop decision presumes a
comparison between the payments made to observ-
ers and the wages they would have received if
they had not served as observers, it formulates no
mathematical method for deciding when payments
are disproportionate and infringe upon the voting
rights of employees. Clearly, it does not suggest
that a mathematical ratio based on hourly pay, as
applied by the Regional Director in this case, is de-
terminative. The decision points out that an em-
ployee serving as an observer is not performing his
or her customary work duties and that there is no
logical basis for requiring the same pay rate for the
different services. The Regional Director, although
attempting to follow Quick Shop, simply applied a
mathematical ratio, thus misinterpreting the essence
of that decision. Furthermore, he erroneously ex-
cluded from his computation the time the observers
spent in preelection conferences and post-election
ballot counting and considered only the time they
devoted to the actual balloting time.
Turning to the facts in this case, it does not
appear that the Petitioner expressly linked its pay-
ments to the way the observers would vote, or that
the Petitioner intended the payments to influence
the vote. To the contrary, it appears that at the
time the Petitioner first arranged to pay the observ-
ers there was uncertainty whether the employees
would be permitted to work a partial day on elec-
tion day and whether they would lose wages by
serving as observers. When the Employer decided
later, before the election, to allow would-be ob-
2 200 NLRB 830 (1972)
EASCO TOOLS, INC. 701
servers for the Petitioner to work a partial day,
with full day's wages, the Petitioner obviously was
faced with the prospect that if it changed the
amounts it had promised it would seem to have
"reneged" on an agreement.
The Petitioner opted to stay with its original
offer. But, as a result, one observer was able to
take the election day off from work without loss of
pay and the other observer more than doubled his
wages that day. It is questionable whether, in these
circumstances, the observers, sufficient in number
to have affected the results of the election, could
have voted independently, without a sense of obli-
gation to vote for the Petitioner. The matter is not
free from doubt. But precisely because of that, we
believe the integrity of our election processes is
better served by directing a new election in this
case.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]