Gulf States Canners, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1979

242 N.L.R.B. 1325 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulf States Canners, Inc. and International Brother-
hood of Teamsters, Local No. 891. Case 15-CA-
6497-2
June 20, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 29, 1977, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding.' Therein, the Board found
that Respondent had engaged in certain unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended,
by refusing to bargain with the Union, based on alle-
gations of union campaign misconduct, after it was
certified by the Board as the exclusive bargaining rep-
resentative of Respondent's production and mainte-
nance and quality control employees. Further, the
Board ordered that Respondent cease and desist from
refusing to so bargain and to take certain affirmative
action, including bargaining, upon request, with said
Union.
In the underlying representation proceeding, Re-
spondent, in its objections, alleged, inter alia, that the
Union had engaged in campaign misconduct through
its grants of economic inducements to employees for
their support in the forms of free gas, beer, and a
victory party. The Regional Director overruled this
objection2 and concluded that the Union's "furnish-
ing of beer to employees at union meeting, the pro-
viding of gas to one or two employees, and the prom-
ising of a victory party did not constitute
objectionable conduct. Rather, the facts presented
and evidence adduced during the investigation failed
to disclose that [the Union] made any promise or
granted any financial or other rewards to employees
for their support and/or votes for [the Union] in the
election."
Thereafter, on April 8, 1977, the Board, in its Deci-
sion and Certification of Representative in Case 15-
RC-6001, adopted the Regional Director's report in
which he recommended finding no merit in Respon-
dent's objections.
On December 7, 1978, pursuant to the Board's ap-
plication for enforcement of its Order in the unfair
labor practice case, the United States Court of Ap-
i 232 NLRB 601 (1977).
2 Respondent had filed five objections in this proceeding alleging cam-
paign and election misconduct, all or which were found by the Regional
Director to be without merit. Respondent raised only its objection to the
Union's gift of gas to two of the eligible voters in denying the validity of the
Union's certification in the enforcement proceeding.
peals for the Fifth Circuit issued its opinion denying
enforcement based on its conclusion that the Re-
gional Director had utilized an improper test in deter-
mining whether or not the Union's bestowal of eco-
nomic benefits in the form of gasoline constituted
objectionable conduct.3 In the court's view, the Re-
gional Director approached the issue by questioning
whether or not the Union intended to influence the
outcome of the election by purchasing the gasoline,
rather than using the appropriate standard of whether
the Union's conduct had a tendency to influence the
outcome of the election. Therefore, the court re-
manded the case to the Board for consideration under
the above proper standard noting that a hearing was
not necessary in order to make this determination as
"the facts here are undisputed and the application of
the tendency-to-influence test to these facts presents
strictly a question of law."4 Further, to assist the
Board in its analysis of whether or not the Union's
purchase of gasoline tended to influence the election,
the court listed some factors for it to consider includ-
ing "whether the size of the benefit conferred bears a
proper relationship to the actor's stated purpose in
conferring it, the number of employees receiving the
benefit, the views of the employees concerning the
purposes of the payments, and the timing of the pay-
ments."5
Thereafter, the Board accepted the remand and by
letter dated January 29, 1979, invited the parties to
submit statements of position with respect to the is-
sues raised by the court's remand. Subsequently, Re-
spondent filed such a statement.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The facts regarding Respondent's allegations of
union interference with the outcome of the election
by purchasing gas for two employees 6 are as follows:
At the first union meeting, more than I month prior
to the election, the Union announced its offer to pro-
vide gasoline to employees who transported other
workers to the union meetings and/or who cam-
paigned on behalf of the Union at their fellow em-
ployees' homes. After this meeting, one employee,
designated as witness D in the Regional Director's
report, requested gasoline from a union representa-
tive. According to witness D's account of this conver-
sation, he asked, "Didn't you say you were buying
gas?" to which the union representative replied, "No,
I N.L.R.B. v. Gulf States Canners, Inc., 585 F.2d 757 (5th Cir. 1978).
4
Id at 760, fn. 1.
Id at 759.
6 The 2 employees for whom the Union purchased gasoline were among
the 36 eligible voters in the unit. The tally in the election was 20 for, and 16
against, the Union, with no challenged ballots.
242 NLRB No. 190
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GULF STATES CANNERS. INC.
I am not buying gas. I said if you knew of anyone
who wanted to come to the meeting but didn't have a
ride I would furnish the gas to get that person. Oh, do
you want some gas?" Witness D, at that point, an-
swered, "Yes," and the union representative said,
"Okay." The union representative then purchased ap-
proximately $12 worth of gasoline for witness D. A
week later, after the second union meeting, witness D
approached the union representative and, as set forth
in his affidavit, stated, "I need some gas," to which
the union representative replied, "Okay, follow me."
(At that time, the union representative again pur-
chased approximately the same amount of gasoline
for witness D). On this occasion, another employee,
witness C, who had followed witness D and the union
representative to the gas station, received approxi-
mately $7 worth of fuel. 7
The question now before the Board is whether or
not the application of the tendency-to-influence test
to the Union's action in purchasing gasoline for two
employees during its organizational campaign, I
month prior to the election, requires finding that the
Union's action constitutes objectionable conduct and,
therefore, that the election be set aside.
In evaluating whether or not certain campaign tac-
tics constitute objectionable conduct, the Board has
generally applied an objective standard in accord
with the "tendency-to-influence test" followed by the
courts,8 and with that which we have been directed to
apply herein. For example, in Hollywood Plastics
Inc.,9 the Board stated that in determining the legality
of an election day raffle it would consider whether the
value of the economic benefit give would "reasonably
tend to have the effect that they [the employees]
would feel an obligation to vote against the union, or
otherwise impair their exercise of a free choice."' ° Ap-
plying this test in Hollywood Plastics, the Board
adopted the Regional Director's finding that an em-
ployer-conducted raffle with a prize value of $80 was
not unlawful, even though it was held for the purpose
of electioneering propaganda, as the chance of an em-
ployee winning was I out of 95, which would not
create the aforesaid sense of obligation. The Board
has also engaged in similar objective analysis in de-
ciding, inter alia, the legality of () cash prizes to 4
7 During the investigation of the instant case, witness C stated that he was
unaware of the reason the gas was furnished. A third employee, however.
claimed that Witness c told him that he was given gas so that he could attend
a union meeting. In addition, the investigation also disclosed that, although
the union representative denied that he had purchased gas for this employee,
at least three additional employees knew of the free gas incidents involving
both witnesses C and D.
'See, e.g., N.LR.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973);
Plastic Masters, Inc., v. N.LR.B., 512 F.2d 449, 450 (6th Cir. 1975); Collins
d Aiknman Corporation v. N.L R.B., 383 F.2d 722, 727-729 (4th Cir. 1967).
'177 NLRB 678 (1969).
' Id. at 681.
winners of an employer-sponsored contest in a 13-
man unit;" (2) payments to employees as a result of
competitive bidding between rival unions for the em-
ployees' attendance at their respective union meet-
ings;'2 (3) an employer's gift of a free steak dinner
with eligibility for door prizes, plus 3 hours' pay to
eligible employees;'3 and (4) a union's gift of life in-
surance coverage to prospective voters.'4 Further, it is
clear from Board and court precendent that the mere
fact that a payment in cash or in kind has been made
to an eligible voter during a preelection campaign
does not require a per se finding that the employee's
right to make a free and uncoerced choice of a bar-
gaining representative has been destroyed. 5 Whether
or not the Union's free gas policy herein resulted in a
concomitant abrogation of this right must be deter-
mined from an application of the tendency-to-influ-
ence test to the facts in the instant case, taking into
account the factors cited by the court set out above.
There is no dispute that the Union publicly an-
nounced more than I month prior to the election the
purposes to which the free gas it provided was to be
used. There is also no evidence that the gas was not in
fact utilized in accordance with the Union's stated
purpose. 6 Further, the $24 worth of fuel given to one
employee and $7 worth to another are not shown to
be grossly disproportionate to the amounts which
could have been expended while the employees were
utilizing their cars in accordance with the Union's
purposes. It should also be noted that a least one of
the two, witness D, who received $24 worth of gas,
accepted the free gas after he was made fully aware of
the reason it was given. Moreover, even greater case
payments and gifts of higher value than the cost of
the gas expended by the Union herein have been
Thrift Drug Company. 217 NLRB 1094 (1975)(Member Jenkins dissent-
ing) (not objectionable conduct as no feeling of obligation created).
2 Teletype Corporation, 122 NLRB 1594. 1595 (1959) ("IT]he payments of
moneys [were] so excessive that we cannot assume the election truly reflected
the employees' choice").
13 Winn-Dixie Stores Inc., 224 NLRB 1418, 1430 (1976) ("[Tlhe dinner
meeting was conducted under circumstances which would tend to inspire
uncommitted employees to sense an obligation to support management's
position in the election").
14 Wagner Electric Corporation, Chatham Division. 167 NLRB 532. 533
(1967) ("[The gift subjects the donees to a constraint to vote for the donor
union," and "destroyed the atmosphere which the Board seeks to preserve
for its elections in order that employees may exercise freedom of choice on
representation questions.").
II See., e.g.. Collins d Aikman v. N L.R.B., supra at 729: Thrift Drug Co..
supra; Commercial Letter, Inc., 200 NRLB 534, 542, on remand from 455
F.2d 109 (8th Cir. 1972), enfd. 496 F.2d 35 (8th Cir. 1974); Jacqueline Coch-
ran, Inc., 177 NLRB 837 (1969).
I6 The fact that the union representative admitted to giving free gas to an
employee in order for him and his brother to return to their homes after the
second meeting doc. not constitute an admission by the representative that
the free gas was simply a gift to the employees to influence their votes. The
provision of gasoline in this circumstance did in fact fit within the Union's
stated purpose of defraying the costs associated with attending the meetings.
and thereby encouraging the employees to attend these gathenngs.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found by the Board not to have the tendency to influ-
ence the outcome of an election.'7
Further, the facts in the instant case are analogous
to those in Jacqueline Cochran,'8 wherein the Board
adopted the Regional Director's report which found
that the union's action in giving a free turkey only to
those employees attending its meeting held 25 days
prior to the election, in order to encouarge such at-
tendance, did not destroy the necessary conditions for
a free and fair election. Similarly, the Union's provi-
sion of free gas herein was made to encourage attend-
ance at the union meetings and to spread the word of
the union campaign and was, in fact, announced as
such. Further, the free gas incidents, similar to the
gifts of the turkeys, were not timed to be in close
17 See Thriof Drug Co., supra; Commercial Letter, Inc., supra.
11 177 NLRB at 839.
proximity to the polling date, thereby lessening their
tendency to influence the election results.
Accordingly, on the basis of the discussion above,
including Respondent's statement of position and the
entire record in the case, we conclude that the
Union's action in purchasing gasoline for two eligible
voters during its organizational campaign was not ob-
jectionable conduct and does not require setting aside
the election herein. We, therefore, reaffirm the find-
ings, conclusions, and remedy provided in the Board's
Decision and Order of September 29, 1977.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby reaffirms the Order heretofore en-
tered in this proceeding on September 29, 1977, re-
ported at 232 NLRB 601.
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