Labor Services, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 479 (N.L.R.B. 1985)

LABOR SERVICES
Labor Services, Inc. and International Brotherhood
of Electrical Workers, Local 99, AFL-CIO.
Case 1-CA-19743
28 February 1985
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 November 1982 the National Labor Rela-
tions Board issued a Decision and Order in this
proceeding,' finding that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by refusing to bargain with the Union as
the exclusive bargaining representative of certain of
its employees. The Board ordered the Respondent
to bargain, on request, with the Union. Thereafter,
the Board applied for enforcement of its Order in
the United States Court of Appeals for the First
Circuit. On 7 November 1983 the court issued its
decision denying enforcement of the Board's Order
and remanded the case for further proceedings.2
The Board accepted the remand and directed that
a hearing be held before an administrative law
judge for the purpose of receiving evidence regard-
ing the objection to the election raised by the Re-
spondent in the underlying representation case.3
On 26 September 1984 Administrative Law
Judge Thomas T. Trunkes issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief
in support of the judge's decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,4 and
conclusions5 only to the extent consistent herewith.
' 265 NLRB 463 (1982) Chairman Dotson did not participate
2 NLRB v Labor Services, 721 F 2d 13 (1st Cir 1983)
3 259 NLRB 959 (1982)
4 The judge's decision contains several errors which we note (1) the
date the Respondent filed objections in the underlying representation case
as referenced in the "Statement of the Case" is 24 April 1981, (2) in sec
B,4 "all employees" is corrected to "almost every employee", and (3) in
the first paragraph following sec C,4, "Respondent" is corrected to read
"Charging Party "
While the judge found that most of the drinking occurred after the
Union had been declared the victor, we find insufficient record evidence
to support such a finding Thus, the record shows the number of drinks
consumed by employees before the ballot count, but it is silent regarding
the volume of dunks consumed thereafter Accordingly, the record does
not support the judge's finding in this regard
5 We disavow the judge's speculations regarding how changes in the
Board's composition may affect the disposition of this case, and reject his
suggestion that the Board make specific rules to govern the serving of
drinks and refreshments before and during elections We note that the
Board's decisions are based on the facts of each case and on previously
decided cases We also disavow the judge' s statement that it would not
be "fair and proper" for the Board to penalize the Union by reversing
our original decision, and his comment that the Union won the election
"fair and square "
479
In the underlying representation case, the Re-
spondent filed an objection to the election asserting
that the Union interfered with the voters' free
choice in the election by providing alcoholic drinks
to voters before and during the election. The facts
as adduced at the hearing are set forth fully in the
judge's decision. The record evidence, as found by
the judge and adopted herein, is summarized brief-
ly below.
On 22 April 1981 an election was held in a motel
room for certain of the Respondent's employees.
About 4:30 p.m., five to six employees entered the
motel bar which was located 100-150 feet from the
election room. One employee bought a drink for
Union Business Agent Richard Stromberg who was
already in the bar. In turn, Stromberg bought
drinks for the five to six employees and told the
bartender that the drinks of other employees who
entered the bar after they had voted would also be
on his tab. Around 5 p.m., the time the polls
opened, two to three of the five to six employees
arose to leave the bar. Stromberg then stated:
"There's no hurry to leave. There's time before
you have to vote. Have another drink before you
go and vote." The employees had an additional
drink and left the bar. As the five to six employees
started to leave, Stromberg stated: "Don't forget
how to vote, boys." Before leaving, the five to six
employees had consumed two or three drinks each.
Within 10 minutes, they returned and continued
drinking on Stromberg's tab. After 5 p.m. the
number of employees in the bar gradually grew to
between 12 and 15 employees. The newcomers also
drank on Stromberg's tab. An average of five to six
drinks were consumed by each employee between
4:30 and 6:30 p.m. The polls closed at 6:45 p.m.
Stromberg's expenditure for drinks was about $138.
While in the bar, Stromberg moved about the bar
engaging employees in friendly conversations,
asked some employees if they wanted another
drink, and played a video game with one employ-
ee.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Union. In reaching his decision,
the judge concluded that the facts did not warrant
a reversal of the original Board decision in which it
adopted the Regional Director's Report on Objec-
tions.
In denying enforcement of the Board's Order,
the court made it clear that it was not persuaded
by the four factors relied on by the Regional Di-
rector and adopted by the Board in its decision.
First, the court noted that the absence of coercive
statements and advance inducement of the employ-
ees to get them to enter the bar or to vote for the,
274 NLRB No. 68
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union was irrelevant. The court's concern was not
the Union's motive, but rather the effect of the
union business agent's activities on the electoral
process. Secondly, the court noted that the absence
of evidence of inebriation was not persuasive, as
the standard for judging the Union's conduct was
whether the conduct reasonably tends to interfere
with the employees' freedom of choice in the elec-
tion. Thirdly, the court commented that the value
of the drinks was not dispositive of the issue, as the
impropriety of buying drinks for voters was not de-
pendent on a specific figure. Lastly, the court
found equally unpersuasive the fact that the drink-
ing occurred outside the polling area, for the court
found that voters entering the polling area take
with them "the physical and psychological effects
of rounds of . . . drinks just consumed at an adja-
cent bar."
In remanding the case, the court noted that the
facts surrounding the Union's provision of drinks
which were relied on by the Regional Director,
the Board, and the court may be subject to signifi-
cant changes at a hearing. A review of the record,
however, shows that the facts relied on by the
court at the time of its remand are substantially the
same facts adduced at the hearing before the ad-
ministrative law judge. Having accepted the
remand of the instant case, we must, therefore, in
light of the similarity of facts before and after
remand, observe the court's opinion as the law of
the case. Accordingly, we shall reverse the judge's
decision, dismiss the complaint, and direct that a
second election be conducted in the underlying
representation case.
ORDER
The National Labor Relations Board orders that
its Decision and Certification of Representative in
Case 1-RC-17208, 259 NLRB 959 (1982), adopting
the Regional Director's Report on Objections and
certifying the Union, be revoked.
IT IS FURTHER ORDERED that the Board's Deci-
sion and Order in Case 1-CA-19743, 265 NLRB
463 (1982), finding that the Employer violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bar-
gain with the Union, be revoked and that the com-
plaint be dismissed.
[Direction of Second Election omitted from pub-
lication.]
DECISION
STATEMENT OF THE CASE
THOMAS T. TRUNKES, Administrative Law Judge The
above proceeding was held in Boston, Massachuetts, on
June 27, 1984, based on a complaint alleging that Labor
Services, Inc. (Respondent or the Employer), unlawfully
refused to bargain with International Brotherhood of
Electrical Workers, Local 99, AFL-CIO (the Union or
Charging Party), in violation of Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act) Respondent
filed an answer denying the commission of any unfair
labor practices, based upon its position that the Union
was improperly certified as the collective-bargaining rep-
resentative of its employees
All parties were represented and participated at the
hearing, and were afforded a full opportunity to adduce
evidence, examine and cross-examine witnesses, file
briefs, and argue orally. The Charging Party submitted a
brief oral argument. The General Counsel, the Charging
Party, and Respondent all filed briefs which have been
carefully considered.' The principal issues in this case
are:
(1) Whether the purchase of alcoholic beverages by a
union representative for employees prior to, during, and
subsequent to a Board-conducted election, per se, war-
rants setting aside the election won by the Union
(2) Whether the purchase of alcoholic beverages by a
union agent for employees prior to their voting in a
Board-conducted election , was made in order to induce
the employees to vote for the Union
(3) Whether the credible evidence developed at the in-
stant hearing is sufficient to warrant a reversal of the
Board's summary judgment.
(4) Whether the Board should establish a rule prohibit-
ing the purchase of alcoholic beverages by either the
Union or the Employer within a certain time frame
and/or within a certain distance from the polls.
On the entire record, including my observation of the
witnesses ' demeanor, I make the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
Respondent is engaged in the business of providing
electrical installation and repair service to the construc-
tion industry and various customers In prior proceedings
involving the same parties, the Board has asserted juris-
diction over Respondent and has found the Union to be
a labor organization, both within the meaning of the Act
(259 NLRB 959 (1982) and 265 NLRB 463(1983)).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
This case was initiated by the filing of a petition in
Case 1-RC-17208 in 1981 by the Union. Pursuant to a
Stipulation for Certification upon Consent Election, a
Board-conducted election was held on April 22, 1981, in
a unit consisting of the following.
All journeymen, electricians and apprentices em-
ployed by the Employer from its Pawtucket, Rhode
Island location and who work in the Employer's
' On August 31, 1984, Respondent submitted a motion to correct tran-
scripts, referring to 12 errors found in the transcript Having received no
objection to the motion by any of the parties, I grant Respondent's
motion
LABOR SERVICES
Pawtucket , Rhode Island area operations ; but ex-
cluding all other employees including all office cler-
ical employees , professional employees , truck driv-
ers, stock clerks, part-time employees who work
less than 20 hours a week , estimators , draftsmen,
salesmen , guards and supervisors as defined in the
Act.
The results of the election were 13 votes cast for the
Union, and 5 votes cast against the Union, with no chal-
lenges or void ballots. On April 17 and 27, 1981, Re-
spondent filed objections to the conduct of the election,
alleging that the Union had purchased drinks for em-
ployees at the bar of the motel where the election was
conducted immediately before and during the time when
the polls were open . On May 13, 1981, the Regional Di-
rector of the Board , issued his Report on Objections in
which he found no merit to the objections , and recom-
mended that they be overruled in their entirety , and that
a certification of representative issue. On May 22, 1981,
Respondent filed exceptions to the Regional Director's
Report on Objections , requesting that the election be set
aside On January 7, 1982, the Board issued its decision,
sustaining the Regional Director's report (259 NLRB 959
(1982)). Thereafter, by letter dated March 24, 1982, the
Union requested that the Respondent engaged in con-
tractual negotiations . Respondent refused this request,
contending that the Board certification of the Union was
invalid . On April 8, 1982, the Union filed a charge alleg-
ing a violation of Section 8(a)(5) and (1) of the Act by
Respondent , the instant matter herein , which resulted in
the issuance of a complaint on May 3, 1982. On May 12,
1982, Respondent filed its answer, denying a violation of
the Act, and asserting that the election be set aside. On
June 2, 1982, the Region filed a motion to transfer the
case to the Board for summary judgment . On June 15,
1982, the Board issued a notice to show cause why sum-
mary judgment should not be so granted . On November
24, 1982, the Board issued a summary judgment , order-
ing Respondent to bargain with the Union (265 NLRB
463 (1983)) By letter dated December 10, 1982, the
Union made a further request for Respondent to bargain.
By letter dated December 29, 1982, Respondent again re-
fused to bargain with the Union again , contending that
the Board certification is invalid . On March 18 , 1983, the
Board applied for enforcement of its Order with the
United States Circuit Court of Appeals for the First Cir-
cuit . On November 7, 1983, the court denied enforce-
ment , and remanded the matter to the Board , stating that
an evidentiary hearing was necessary on Respondent's
objection to the election based on the union representa-
tive's alleged offer and provision of alcoholic drinks to
voters before, during, and after the representation elec-
tion (721 F.2d 13 (1983)). On February 6, 1984, the
Board accepted the court's remand , and on May 1, 1984,
remanded the case to the Regional Director for hearing
for the limited purpose stated in the court's opinion. On
May 25, 1984, the Regional Director issued a notice of
hearing pursuant to the Board 's remand order . Said hear-
ing took place before me on June 27, 1984.
481
B. Summary of Evidence Presented
At the hearing on June 27 , 1984, following the intro-
duction of the formal papers and a brief presentation by
the General Counsel summarizing the background of this
case, four witnessess , three for Respondent , and one for
the General Counsel , were presented . A summary of the
testimony of these witnesses is as follows.
1. Eugene Champagne
Eugene Champagne , a detective employed by the
Pawtucket Police Department , Pawtucket, Rhode Island,
has been a detective for 10 years . He testified that on
Wednesday , April 22, 1981, he was present in the cock-
tail lounge of the Howard Johnson Motor Lodge, Paw-
tucket , Rhode Island , from 4 until 7 p.m. At that time,
he and his partner Edward Randall were performing un-
dercover work , which involved surveillance of an indi-
vidual not connected with this matter . While on duty, he
observed Richard Stromberg , business manager of the
Charging Party, enter the lounge at approximately 4.30
p.m., accompanied by two other union agents.2 Shortly
thereafter, approximately five or six men entered the'bar
and were greeted by Stromberg Stromberg instructed
the bartender that all drinks for these men were to be
put on his tab . He did not hear any of the five or six men
offer to buy Stromberg a drink before Stromberg stated
that the drinks were on him. All of the individuals then
started drinking . Sometime before 5 p.m. Stromberg and
the other two union agents left the bar and returned after
approximately 5 to 10 minutes. During this time, the five
or six men continued drinking Shortly before 5 p m.,
two or three of the group of five or six arose to leave
the room. Stromberg stated in a clear voice , "There's no
hurry to leave. There's time before you have to vote.
Have another drink before you go and vote." The indi-
viduals stayed and had another drink thereafter. After
that drink the five or six individuals did leave the bar. As
they started to leave, Stromberg stated, "Don't forget
how to vote , boys." By this time , each of the five or six
individuals had approximately two or three drinks. The
majority had consumed beer , but one or two had mixed
drinks. After approximately 5 or 10 minutes, the five or
six individuals returned to the lounge, one or two at a
time and resumed drinking . As time passed , other indi-
viduals entered the lounge until the group grew to ap-
proximately 12 or 13. Stromberg told these latecomers
that they were to have their drinks on his tab. At ap-
proximately 6 p.m , a shift of bartenders took place, and
Stromberg settled his tab with the original bartender He
was observed by Champagne pulling out a large roll of
bills from his pocket. The bartender was replaced by a
female bartender who was instructed by Stromberg that
he would pay the bar tab for all the drinks Approxi-
mately 6 :20 p m Bob Blanchette , president of Respond-
ent, entered the bar with his attorney , Robert Corcoran.
They remained in the lounge for approximately 5 or 10
minutes before leaving . Blanchette returned to the
lounge alone at approximately 7 p.m Champagne stated
2 At the time, Champagne had no idea of the identity of any of the
union officials
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that each of the individuals for who Stromberg pur-
chased drinks consumed on the average five or six
drinks. He, himself, was drinking bloody marys, an alco-
holic beverage consisting of vodka and tomato juice,
which cost $1.75 each.
On cross-examination, Champagne acknowledged that
he has known Blanchette for more than 35 years, both
having grown up in the same neighborhood. However,
although Champagne admitted that he and Blanchette
were good friends whose families see each other several
times a year, he denied having any business relationship
with Blanchette or that Respondent has performed any
services for him. He further stated that to his knowledge,
no one in the lounge was in an intoxicated state He fur-
ther testified that he was not paying attention to whether
oi•'not Stromberg was drinking, and did not know what
drinks he or the other union representatives had in the
lounge. He further conceded that at least seven or more
of the individuals for whom Stromberg purchased drinks
were consuming beer.
Champagne further testified that he had no knowledge
of what was going on at the motel during the time he
was in the lounge, that it was not prearranged that he
would be there, and that it was mere coincidence that he
was there and saw what was happening. He further
stated that the following day he telephoned Blanchette
to inquire what was happening. It was then that he
learned about the election. He then informed Blanchette
that somebody was buying drinks for other people at the
bar, describing Stromberg as the purchaser of the drinks.
Blanchette told him that he would discuss the matter
with his attorney, and inquired whether Champagne
would provide a statement, which he agreed to do
Thereafter, meeting with Corcoran the following Satur-
day, he and his partner provided statements upon which
the objections to the election were based Champagne
emphasized that his testimony was not influenced in any
way because of his friendship with Blanchette and that
what he stated was the truth.
2 Edward H Randall
The second witness was Edward H Randall, a detec-
tive on the police force of Pawtucket 3 With respect to
the events in the lounge of the motel between 4 30 and 7
p.m on the day of the election, Randall essentially con-
firmed Champagne's testimony. Significantly, he recalled
Stromberg stating to the men as they got up to leave the
bar at approximately 5 p.m, "Don't forget how to vote,
boys " He estimated that the five or six individuals had
two or three rounds of drinks apiece before 5 p.m.,
drinking mixed drinks and beer. He also testified that he
was drinking bloody marys, consuming approximately
three during his stay in the lounge. Randall did not know
Blanchette prior to being introduced to him by Cham-
pagne in the bar. Randall also, like Champagne, did not
know Stromberg or any of the other individuals in the
lounge that day.
3 On the date of the election Randall had been a detective for 10
months
3 Robert Blanchette
Robert Blanchette, president of Respondent, was the
third and last witness for Respondent to testify. He testi-
fied that on the date of the election he attended a pre-
election conference at the motel immediately prior to the
election which was scheduled from 5 to 7 p.m. Also at-
tending the meeting were two observers, Stromberg,
Curtin (another union agent), and the Board agent con-
ducting the election At this meeting, it was agreed that
if all eligible voters voted prior to 7 p.m. the polls would
be closed. He testified that approximately 6:20 p.m., he
entered the lounge with Corcoran. They seated them-
selves at a table, and did not speak to any of the employ-
ees or union officials. However, he did observe approxi-
mately 12 to 15 of his employees drinking and talking
with the union officials. He and Corcoran remained in
the lounge approximately 5 minutes He returned to the
room where the polling took place at approximately 6 45
p.m. at which time the ballots were counted. Following
the tally of ballots, he returned to the lounge, and an-
nounced that he was buying drinks for everyone in the
room. The tab amounted to about $50.
On cross-examination, Blanchette asserted that all the
employees finished their work at approximately 4 p.m.
None of them were paid for any time between 5 and 7
p.m. Blanchette further stated at the time he entered the
lounge at 6:20 p.m, although observing his employees
drinking, he was not aware whether or not all the em-
ployees had voted.
4. Richard Stromberg
Following Blanchette's testimony, Respondent rested,
and the General Counsel called on his only witness,
Richard Stromberg.
Stromberg testified that on April 22, 1981, he arrived
at the Howard Johnson Motel in Pawtucket approxi-
mately 3.30 p m., along with Earl J. Curtin, president of
the Union, and Al Spaziano, the Union's financial secre-
tary The group waited for the arrival of the Board
agent, who came shortly after 4 p.m Shortly thereafter
Blanchette and Corcoran appeared Approximately 4.40
p in the preelection conference was held, lasting ap-
proximately 10 minutes. Following the pre-election con-
ference, he entered the lounge, located approximately 50
yards from the room where the election was being held.
The three union officials sat down on bar stools. After a
short time, Howie Zahn, one of the voters, entered the
lounge with two other voters and all sat down at a table
nearby. Zahn approached the bar, ordered drinks, and in-
structed the barmaid to provide drinks for the union offi-
cials which was refused by Stromberg After some ban-
tering back and forth between Zahn and Stromberg,
Zahn did purchase a drink for the union officials. Strom-
berg agreed to accept the drink under condition that he
buy Zahn a drink also. Stromberg and Curtin ordered
soft drinks, Spaziano ordered wine. Immediately thereaf-
ter, Stromberg instructed the barmaid to "give them
whatever they want." He further told her, "Anyone else
who comes in here from Labor Services when they get
through voting put it on my tab. There [sic] drinks are
on me." Thereafter, from 5:10 until almost 6:30 p in.,
LABOR SERVICES
various employees of Respondent entered the lounge, all
of whom were drinking on Stromberg's tab Stromberg
stated that he had approximately $150 in cash at the time
he entered the bar At approximately 6 p in he settled
with the outgoing bartender for approximately $58 or
$68 including a tip. He left the lounge sometime later for
the tally of ballots, and returned to the lounge to cele-
brate as the Union had won. He thinks he told the bar-
person to set up drinks for anyone in the bar who
wanted one, including people who were not employees
of Respondent He left approximately 8 or 8:30 p.m. with
Curtin and Spaziano. His total expenditure for the
evening on drinks was approximately $135.
With respect to conversations he had with employees
prior to their voting, Stiomberg denied stating to
anyone, "Don't go yet. You have a few minutes more to
take a drink," and "Don't forget how to vote "
Stromberg further testified that some of the employees
pointed out to him that Robert Blais, one of the supervi-
sors of Respondent, was present in the lounge, arriving
at approximately 5:10 p in Blais remained in the lounge
for at least 1 hour, and was there when Blanchette ar-
rived at 620 p.m. He thinks that Blais, accompanied by
one other employee of Respondent, joined the other em-
ployees at a table for a few drinks.
On cross-examination, Stromberg acknowledged that
Arther Deciutis, a member of the executive board of the
Union, entered the lounge shortly prior to 5 p.m and
joined him and the other union officials He acknowl-
edged that neither Zahn nor the other two employees
with him had not voted prior to his purchasing drinks
for them. He conceded that he did not tell the bartender
to ask each individual whether or not he had voted
before giving him a drink He further testified that all the
employees who came into the lounge after 5 p.m. told
him that they had already voted, after which he bought
drinks for them. He recalls that Zahn was drinking beer,
as was the majority of employees, but does not know
whether or not any one was drinking mixed drinks.
On cross-examination, Stromberg stated that Blais, Re-
spondent's supervisor, was in the company of another
employee of Respondent who was not eligible to vote,
but that he did not see Blais or the other employee
buying drinks for employees during the election.
Following the testimony of Stromberg all parties
rested
C Credibility of the Witnesses
It is unfortunate that none of the employees voted in
the election appeared as witnesses for either side to ex-
plain what occured in the lounge on the date of the elec-
tion Blanchette testified without contradiction that these
were former employees. I therefore have drawn the con-
clusion that none of the voters are still employed by Re-
spondent. Whether any of them are still members of the
Union was not established. Therefore, I am compelled to
weigh the testimony of two detectives of the Pawtucket
Police Department, one of whom is a close friend of Re-
spondent's president, against that of Stromberg, business
manager of the Charging Party
In addition to considering the demeanor of the wit-
nesses, the Board has stated, "It is abundantly clear that
483
the ultimate choice between conflicting testimony also
rests on the weight of the evidence, established or admit-
ted facts, inherent probabilities, reasonable inferences
drawn from the record, and, in sum, all of the other vari-
ant factors which the trier of fact must consider in re-
solving credibility" Northridge Knitting Mills, 233 NLRB
230, 235 (1977). I have arrived at my credibility findings
based on these criteria.
Respondent contends that "Champagne and Randall
should be credited over Stromberg The two detectives
were neutral, uninterested witnesses who testified can-
didly and credibly in response to a subpoena. They had
no motive to fabricate testimony, and, as police officers
accustomed to testifying under oath can hardly be pre-
sumed to have done so. On the other hand, Stromberg,
the individual whose conduct occasioned this prolonged
proceeding, had an obvious incentive not to recollect his
comments in the bar."
The General Counsel and the Charging Party contend
that the testimony of the two police officers should be
rejected because the personal friendship between one of
them and Respondent's president tainted their testimony.
Further, Stromberg's testimony was clear and consistent,
whereas the testimony of the police officers was not.
Despite the eloquent arguments of the General Coun-
sel and Charging Party, I am compelled to credit the tes-
timony of Champagne and Randall' against that of
Stromberg for the following reason-
1. Although I initially thought it to be more than mere
coincidence that Champagne, a personal friend of Blan-
chette, was present in the same lounge as the union offi-
cials and voters during the election period, no evidence
was adduced to convince me that their presence was
nothing more than coincidental. Had Champagne not
known Blanchette or had not been engaged in an under-
cover assignment involving surveillance in the lounge at
the same time Stromberg was buying drinks for voters,
this case would have been terminated years ago, as these
would have been no basis for objections to the election.
Because of such coincidences, plots unfold
2 No evidence was adduced that Respondent knew
that Stromberg was planning to buy drinks for voters
prior to and during the election in the lounge of the
motel where the election was scheduled Rather, the evi-
dence clearly established that the entire situation was a
spontaneous one, which was effectuated when Zahn and
other employees entered the lounge prior to voting.
Thus, I cannot conclude that the police officers were
planted by Respondent for the purpose of fabricating evi-
dence to void the election. Further, nothing in the
record indicates that there was any animus between the
Employer and the Union It is noted further that follow-
ing the election, Blanchette, having ascertained that he
had lost the election, bought drinks for everyone in the
lounge. It was not until the following day that he saw
the possibiliby of a reversal after Champagne informed
him what had occurred in the lounge.
3 I found Stromberg to be a candid and forthright
witness, admitting many facts damaging to him. Howev-
' With one exception noted below
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er, having no reason to suspect that his words and ac-
tions would be the cause of the present action , he had no
reason to remember specifically everything which took
place on the date of the election . Thus, when confronted
with the objections to the election several days later, in
all probability he was compelled to reconstruct the
events as he believed they had occurred , not as they actu-
ally did happen.
4. None of the employees who took part in the elec-
tion and were in the lounge on election day were called
to testify As they no longer are employees of Respond-
ent, and as they probably would not be friendly wit-
nesses from Respondent 's viewpoint , I can excuse Re-
spondent from not calling any of them as witnesses
However, neither the General Counsel nor the Charging
Party offered any explanation why none of the employ-
ees or none of the other union officials present with
Stromberg were called to testify . I conclude that either
none of them could accurately recall the facts surround-
ing the events of the day, or in recalling said events,
none would have been able to support Stromberg's ver-
sion of what happened in the lounge.
Respondent argues that , although the two police offi-
cers overheard Stromberg loudly tell the employees how
to vote, they were unaware that an election was taking
place, and , thus, should not be credited . The record does
not contain sufficient evidence to convince me that the
officers knew that an election involving his friend's em-
ployees was taking place at that time in the very motel
where the lounge was located Nor is it clear that the de-
tectives heard any talk about a victory celebration, or
that the Union had won the election Thus, it is conceiv-
able that the police officers, not sophisticated with union
elections , did not know an election was being conducted
that day.
The Charging Party further suggested that the judge
"read very closely testimony offered by Mr. Champagne
at page 104 of the transcripts ," claiming there is no refer-
ence to Stromberg 's talking to voters in the lounge. I
have read page 104 of the transcript . Although the
Charging Party correctly points out that Champagne did
not supply Blanchette details of the conversations be-
tween Stromberg and the voters , in response to whether
he would submit an affidavit , he responded , "Sure, I'll
tell you what I heard and saw " I find that this statement
sufficiently refutes the Charging Party's argument.
With respect to whether or not Zahn first offered to
purchase drinks for the union officials, I do credit Strom-
berg. He clearly explained the background leading to his
purchasing drinks for the employees . The detectives tes-
tified that they heard no such conversation . As they had
no reason to be alert to the entire events that occurred in
the lounge that date , it is very probable that they missed
some of the conversation that did take place. Stromberg,
as stated earlier, impressed me as a candid witness. He
recalled in detail what led up to his buying employees
drinks. I credit this portion of his testimony.
In summary , I make the following findings of facts:
1. On the date of the election, union officials entered
the lounge of the Howard Johnson Motor Lodge, Paw-
tucket, Rhode Island , about 4 . 15 p.m. Shortly thereafter,
five or six employees of Respondent entered the lounge.
One of them , Howie Zahn, offered to buy and did buy
drinks for the union officials Stromberg , in turn , bought
drinks for the employees , and informed the bartender
that he would pay for their drinks
2. As the employees left the lounge at 5 p in . to vote,
Stromberg stated , "Don't forget how to vote, boys."
3. By this time, each employee had consumed two or
three drinks each , mostly beer, with one or two having
mixed drinks.
4. Thereafter , the five or six voters returned to the
lounge, and an additional six to nine employees entered
the lounge during the time of the election between 5 and
7 p.m. Stromberg purchased drinks, mostly beer but
some mixed drinks , for all of them at a cost of about
$135 for the entire tab.
Discussion and Analysis
Having made credibility findings which afford us a
clearer picture of what occurred in the lounge on April
22, 1981 , 1 am now confronted with the problem of
"choosing sides."
Following the Regional Director 's Report on Objec-
tions, in which the Regional Director concluded that the
objections were without merit and issued a certificate of
representative to the Union , a majority of the Board,
consisting of Members Fanning, Jenkins, and Hunter,
adopted the Regional Director 's report stating that it
agreed with the Regional Director's recommendations,
and that it had considered its colleagues ' dissent and
analysis. The dissenting colleagues consisted of then-
Chairman of the Board Van de Water and Member Zim-
merman (259 NLRB 959 (1982))
The Board 's application for enforcement of its summa-
ry judgment (265 NLRB 463 ) was denied by a three-
judge panel . Judges Coffin and Fairchild, the latter, a
senior circuit judge of the Seventh Circuit , sitting by
designation , denied enforcement of the summary judg-
ment and remanded the case to the Board for further
proceedings. Judge Breyer dissented , and would have
granted enforcement.
In summary , one Regional Director, three of the
Board Members and one judge are in agreement that the
election results are valid , while two Board members and
two judges are in agreement that the election results
should be overturned.
The Regional Director , all of the Board Members, and
the judges of the court of appeals have thoroughly ana-
lyzed this case and, although different conclusions were
reached , it was unanimously agreed that no specific
Board or court decision rested on facts similar to the set
of facts found herein, and thus there was no precedent
upon which they could rely in arriving at their decision.
I, too, have reached the same conclusion.
Circuit courts have repeatedly admonished the Board
for continuing to issue decisions contrary to the court's
decision rendered previously on the same point. Never-
theless, I have concluded that, although the evidentiary
hearing provided me with more facts, none of the addi-
tional facts presented have such import as to warrant a
reversal of the original Board decision , which was based
on the Regional Director 's Report of Objections. Al-
LABOR SERVICES
though the court made it clear in its split decision that it
did not deem the factors relied upon by the Regional Di-
rector sufficient to grant enforcement of the Board's
summary judgment, with all due respect to the court, 1,
as an administrative law judge, am bound by Board deci-
sion, unless and until the Supreme Court of the United
States rules otherwise
One factor not considered by the Regional Director in
his report of objections was the value of the drinks. The
total cost amounted to approximately $135. Each mixed
drink cost about $1 75, each bottle of beer perhaps $1.
Most of the consumption of liquor took place after the
employees voted and the Union was proclaimed the
victor. In any event, dividing $135 into an average of
perhaps $1.35 a drink indicates that approximately 100
drinks were purchased by Stromberg. Anywhere from 15
to 1 S individuals were drinking on Stromberg's tab
Thus, an average of 6 or 7 drinks were consumed per
capita. However, evidence established that only an aver-
age of three drinks were consumed by five or six voters
prior to their voting.
With these additional facts before it, the Board may or
may not adhere to its original decision Of the five Board
Members issuing its 3 to 2 decision in 1982, only two,
Hunter and Zimmerman, are still on the Board. Howev-
er, Member Zimmerman already has announced his res-
ignation upon completion of his term in December 1984
I cannot foretell whether the two recent appointees, in-
cluding Chairman Dotson, and the two future-to-be-ap-
pointed members will support Member Hunter or,
indeed, whether Member Hunter himself will adhere to
his original decision I do recommend that the two earli-
er Board decisions, based on the Regional Director's
Report of Objections, be upheld In reaching this conclu-
sion, I am in accord with the dissenting judge in the
court decision (721 F 2d 13,18 (1983)) who stated, ". .
this case presents precisely the type of minor, detailed in-
terstitial question of labor election policy that Congress
asked the Labor Board, not the courts, to decide. Cf
NLRB v. Hearst Publications Inc., 322 U.S. 111, 130-131,
64 S.Ct. 851, 860-61, 88 L Ed 1170 (1944) (determina-
tion of coverage of Act in borderline cases assigned pri-
marily to Board )"
The Board, having considered the facts of this case as
favorably to Respondent as possible, found no grounds
to reverse the Regional Director. The Board has held
that it will consider objection cases on an ad hoc basis,
and concluded that the facts of the instant case did not
warrant setting aside the election
Although I agree with the Board's decision, I recom-
mend that the Board re-think its position of deciding
each case on an ad hoc basis, and establish specific rules
that all parties can understand and follow on the subject
of providing drinks and other refreshments to voters
prior to and during an election.
As the court pointed out, "the Board's own oft-articu-
lated objective [is] `to establish in election proceedings
conditions as nearly ideal as possible to determine the un-
inhibited desire of the employees.' Rattan Art Gallery
Ltd., 260 NLRB 255 (1982) (citing General Shoe Corp.,
77 NLRB 124, 127 (1948). 721 F.2d at 15.
485
The court further points out that the Board's ruling
may result in unions and employers, competing for voter
preference, plying voters with drinks outside the polling
area, resulting in a "return to turn-of-the-century. pursuit
of voters through the discriminating distribution of alco-
hol "
Again, the court stated in its remand, "We think the
case at bar is different in ::ind from all other cases, is
fraught with serious implications, and demands some
helpful guidance for both unions and employers."
In his dissent, Judge Breyer wrote, "Now that the ma-
jority [of the Court] has distinguished the `tuna fish on
rye with Pepsi' from the `double scotch' what is next?
Will we have to decide where beer and hamburgers fit
on the spectrum?"
These questions posed by the court need not have
been asked had the Board established more precise rules
regarding refreshments during the day of the election.
I do not consider it fair and proper for the Board to
penalize the Union herein by reversing its original hold-
ing. The employees chose the Union fair and square by a
wide margin Several drinks do not influence voters who
have clear heads, and the evidence established that no
one left the lounge in a intoxicated or inebriated condi-
tion True no one stood at the polls with a Breathalyzer
or other scientific instruments to guage the extent of the
alcoholic content in each voter's body. At any rate, no
two individuals are affected the same by alcohol Some
are influenced after one or two drinks, others need much
to affect their senses.
It is impractical to test the effects of alcohol on each
voter who presents himself at the polls. The simple solu-
tion is for the Board to establish rules-to be effective
for future cases A suggestion of a rule to be considered
might be one similar to the Peerless Plywood rule (Peerless
Plywood Co., 107 NLRB 427 (1953)), which forbids cam-
paign speeches on company time during the 24-hour
period immediately preceding an election.
A rule on drinking, as established by 20 States, plus
the District of Columbia, but not Rhode Island, in state-
conducted elections, forbids the sale of liquor during the
time the polls are open on election day.
The Board could established a similar rule which
would proscribed the purchase of liquor by either unions
or employers on the day a Board-conducted election is
to be held.
For Board guidance, California has a statute which
reads-
A place where any alcoholic beverage is sold or
disbursed shall not be used as a polling place. A
polling place shall not be connected by a door,
window or other opening with any place where any
alcoholic beverage is sold or disbursed. [West's
California Annotated Election Code, Sec. 14404].
Massachusetts has double protection in that Section
138.33 of the Annotated Laws of Massachusetts prohibits
the sale of liquor during elections while Section 54.24,
referring specifically to the location of polling places,
states
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alcoholic beverages shall not be sold in any portion
of a building which is designated as a polling place
during voting hours or while ballots are being
counted therein
Had the Board adopted a stance similar to that of Cali-
fornia, though perhaps worded like the Massachusetts
statute, the instant case would never have occurred. The
election could not have been held in a motor lodge,
where alcoholic beverages were served on the premises
(albeit not at the polling place itself) during the voting.
Conclusion
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8 (a)(5) and ( 11) of the Act, I shall recommend
that the Remedy, Conclusions of Law, Order, and notice
to employees as stated by the Board in its summary judg-
ment , 265 NLRB 463, 464-466 (1983), be reaffirmed by
the Board.