Madison Security Group, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 15, 2007

02-RC-023205 (N.L.R.B. Nov. 15, 2007)

JD(NY)–49–07
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
MADISON SECURITY GROUP, INC.
Employer
and Case No. 2-RC-23205
SPECIAL AND SUPERIOR OFFICERS
BENEVOLENT ASSOCIATION
Petitioner
Denise Forte, Esq., (Trivella, Forte & Smith, LLC)
White Plains, NY, for the Employer
Robert T. McGovern, Esq., (Meyer, Suozzi, English
& Klein), Melville, NY, for the Petitioner
RECOMMENDED DECISION ON OBJECTIONS
STATEMENT OF THE CASE
Steven Fish, Administrative Law Judge. Pursuant to a petition filed in Case No. 2-RC-
23205 by Special and Superior Officers Benevolent Association, herein called Petitioner or the
Union, the parties entered into a Stipulated Election Agreement on June 29, 2007,1 providing for
an election to be conducted on July 27, in a unit of security guards, including site supervisors,
employed by Madison Security Corp., herein called the Employer, in New York City,
Westchester, Nassau County, and New Jersey (with certain exclusions listed).
The election was conducted as scheduled, and the initial tally of ballots revealed that
challenges were sufficient in number to affect the results of the election. On August 6, the
employer filed timely objections to the results of the election.
Subsequently, the Employer and the Petitioner agreed that one of the two challenged
voters was not an eligible voter, and that the challenge to his ballot should be sustained. This
agreement resulted in an Order Resolving Challenged Ballot and Revised Tally of Ballots,
issued on August, 16. The revised tally is as follows:

1 All dates hereafter are in 2007.
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Approximate number of eligible voters 240
Number of void ballots 0
Number of votes cast for Petitioner 56
Number of votes cast against Petitioner 54
Number of valid votes counted 110
Number of challenged ballots 1
Valid votes counted plus challenged ballots 111
A majority of valid votes counted plus challenged ballots has been cast for Petitioner.
After conducting an investigation of the Employer’s objections, the Director on
September 27, issued a Report on Objections and Recommendations and Notice of Hearing on
Objections, in which she concluded that Objection 1 filed by the Employer raised substantial and
material factual issues which best can be resolved based on record testimony at a hearing. The
Director ordered that a hearing be held before an Administrative Law Judge to receive testimony
with respect to the issues raised in the Objection and issue a Report and Recommendation to
the Board.2
Accordingly, a hearing was held before me in New York, N.Y. on October 11. Briefs
have been filed and have been carefully considered. Based upon the entire record, including
my observation of the demeanor of the witnesses, I issue the following:
FINDINGS OF FACT
1. THE OBJECTION
Objection 1 filed by the Employer, alleges as follows:
1) Throughout the course of its campaigning and electioneering, SSOBA offered
and paid its observer at the New Jersey poll the sum of Sixty Five ($65.00)
dollars per hour to serve as an observer. This sum is approximately eight times
the employee’s hourly rate of pay. This unlawful bribe and objectionable activity
occurred immediately prior to the election. Moreover, this unlawful offer of
money was disseminated among the bargaining unit members.
2. FACTS and ANALYSIS
The election was held as noted on July 27, and was conducted simultaneously at two
locations. Poll 1 was located in a conference room of a hotel in Newark, New Jersey. Poll 2
was located in a hearing room at the offices of Region 2 in New York, N.Y. There were three
voting periods at both polling location, 6:00 A.M. to 9:00 A.M., 11:00 A.M. to 2:00 P.M., and
4:00 P.M. to 7:00 P.M.
The Objection filed by the Employer relates to events at Poll 1, and more specifically
during the 6:00 A.M. to 9:00 A.M. voting period.
The Employer presented Edna Sanchez, its observer for that poll, for all three voting
periods as its sole witness. The Petitioner called Cynthia Boggs its observer as its only witness.
Boggs was the Petitioner’s observer only for the first polling period. The Petitioner did not have

2 The Director also recommended that Objection 3 filed by the Employer be overruled and
approved the Employer’s request to withdraw Objection 2.
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an observer for the second and third voting periods.
I have carefully evaluated the testimony of Sanchez and Boggs as to their conversations
on July 27, and the related events dealing with the amount of money Boggs received from the
Union for acting as its observer. For the reasons described below, I have credited the testimony
of Boggs, where it conflicts with that of Sanchez. That conclusion results in the following factual
findings.
On the day before the election, Boggs telephoned Union representative Al Dooley to ask
a question. During this conversation, Dooley asked Boggs to serve as the Union’s Observer in
the next day’s election, starting at 5:30 A.M. At first, Boggs replied “No”, because she worked
two jobs, and does not get to bed until 12 midnight. Thus she would be too tired to serve,
starting early in the morning. Although Boggs worked two jobs, including at the Employer,
ordinarily she is not working at 5:30 A.M. Dooley replied that all she has to do is sit there and
check off names. Boggs then reconsidered, and agreed to serve as an observer, for the first
polling session, from 6:00 A.M. to 9:00 A.M.3 Boggs did not ask, and Dooley did not tell her
whether or not or how much she would be paid by the Union to act as an observer.
After the polls opened, Boggs and Sanchez were the first two employees to vote. About
30-60 minutes into the voting, there was a lull, and Boggs asked Sanchez if she was going back
to work, after the first polling period ended. Sanchez replied “No”, that she was serving as an
observer for the whole day, and was getting paid by the Employer for the whole day. Boggs
responded “Why didn’t the company ask me to do it?”, and added that she could have taken the
whole day off, but couldn’t because of her night job. At that point Boggs informed Sanchez that
she was getting paid $65 an hour from the Union. Boggs testified that she falsely told Sanchez
that she was getting paid $65.00 per hour because Sanchez had told her that she was getting
paid for the whole day, and “So I had to make myself look good”.
After the polls closed, Dooley and the Employer’s representative Earl Thomas came into
the room. Boggs said to Dooley, in the presence of Sanchez and Thomas, “Let’s go to
breakfast”. Dooley laughed and said nothing. Dooley did not have breakfast with Boggs that
day, nor did he pay for her breakfast.
The next day Dooley had a telephone conversation with Boggs, during which he thanked
her for acting as an observer, and informed her that she would be paid $8.00 per hour for three
hours, for a total of $24.00. On August 14, Boggs received a check from the Union for $24.00
as promised by Dooley.
Dooley, although he was in the hearing room during the hearing, was not called as a
witness, by either side.
Although as noted, my factual findings as detailed above, represents Boggs’ version of
events, the crucial aspect of her testimony, is consistent with that of Sanchez. That is, the
undisputed fact that Boggs did inform Sanchez that she (Boggs) would be receiving $65.00 per
hour from the Union as payment for her services as an observer for the morning session.
While there are some differences between the testimony of Sanchez and Boggs, such as when

3 While both Boggs and Sanchez testified that the first polling period was from 7:00 AM to
9:00 AM, I conclude that both of them were incorrect and confused as to the time, since the Stip
for Cert, and the Director’s report make clear that the first poll ran from 6:00 AM to 9:00AM.
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the statement was made, 4 and whether or not as Sanchez testified, Boggs also informed her
that the Union had promised to take her to breakfast,5 these differences are not determinative of
whether objectionable conduct has been established.
Thus, where observers for a party are paid for their services as an observer,
objectionable conduct will be found, only where the payments are grossly disproportionate to
their usual pay rate, and where the number of observers so paid, are sufficient to affect the
results of the election. Cedars-Sinai Medical Center, 342 NLRB596, 605-606 (2004) (Payment
compensated employees only for lost wages. Observers who served on day off, received no
compensation. Election not set aside); J.R.T.S. Ltd., 325 NLRB 970 (1998) (Objection
dismissed because the payments to observers could not have affected the outcome, in view of
large margin of victory for the Union); Kux Mfg. Co. v. NLRB, 890 F.2d 804, 810 (6th Cir. 1989)
(Payment based on hourly wage); Easco Tools, 248 NLRB 700, 701 (1980) (Election set aside,
where Union paid one observer for day, where he also was paid by Employer, thereby doubling
his pay, and the other observer was paid even though that observer was off from work that day.
Union had won election by two votes); Quick Shop Markets, 200 NLRB 830, 831 (1992);
(Payment of twice observers usual pay found not be so grossly disproportionate to warrant
setting aside election); Heavenly Valley Ski Area v. NLRB, 552 F.2d 269, 272-273 fn. 3 (9th Cir.
1977) (Absent excessive or unreasonable payments, union reimbursements to employee
election observers do not in themselves constitute grounds for setting aside an election).
Further, even where the Union did not pay or promise to pay the observer, where the
observer reasonably believed that he would be paid, and the amount is disproportionate, the
election will be set aside. S & C Security, 271 NLRB 1300, 1301 (1984) (Observer had been
paid $50.00 by Union to serve as an observer in election in prior year. He was paid $50.00 in
prior election for serving on his day off for two hours. His normal salary was $6.48 per hour.
Although nothing was said to observer about payment for the election in question, he testified
that he believed that he would be paid “same money”, to serve. Board concludes that he
reasonably anticipated he would be paid the same $50.00 that he received in prior election, and
since his vote could have affected the results, election was set aside).
In applying the above precedent to the instant facts, it is clear that the amount
mentioned by Boggs to Sanchez, as the amount that she was to be paid of $65.00 per hour is
grossly disproportiate to her salary of $8.00 per hour, and Bogg’s vote, if it changed, as a result
could have affected the election. Therefore the crucial issues for determination, is whether
Boggs actually received the $65.00 per hour from the Union, or that she believed that she would
be receiving that amount, before she voted. Based on my factual findings detailed above, I
have answered both questions in the negative, and therefore conclude that objectionable
conduct has not been established by the Employer.
I have credited Boggs’ testimony for a number of reasons, not the least of which is that I
carefully observed her testional demeanor, during her direct, cross-examination, and while she
was questioned by me, and I was convinced that she was testifying truthfully. I found her to be
somewhat “flip” and impulsive, while testifying, and she impressed me as someone who would
be likely to attempt to “one up” Sanchez by telling her that she should be receiving $65.00 per

4 Sanchez contends that Boggs informed her of the payment before the observers voted.
As related above, I have credited Boggs that the conversation occurred after the observers
voted.
5 As noted, I have not credited Sanchez’s testimony in that regard, and credited Boggs that
she merely said to Dooley, in Sanchez’s presence, after the polls closed, “Let’s go to breakfast”.
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hour as payment, after Sanchez informed her that she would be paid by the Employer for the
whole day. I find Boggs’ testimony that she “Had to make myself look good”, to be believable,
not likely to be made up, and that has “the ring of truth” to it. I also note that for the most part
her testimony on direct, cross-examination, and under examination by me was consistent.6 I
also rely on the undisputed fact that the Union was unable to obtain the services of any
observer for the second or third polling periods, later in the day. In my view, if the Union was
willing to and in fact did pay Boggs $65.00 per hour, to serve as an observer, the Union would
have made the same offer to other employees or even to Boggs herself, to act as an observer
for the remaining two polling periods. It is reasonable to conclude, which I do, that the Union
made no such offers to other employees or to Boggs, for if the Union did so, it is likely that the
Union would have been able to obtain the services of an observer for the other polling periods.
Indeed I find it likely that had Boggs really been offered $65.00 an hour for acting as an
observer at the other two sessions, she would have forgone her other job for that day, to receive
such an exorbitant amount of money. Moreover, even apart from Boggs herself, I find it
extremely improbable that the Union could not have persuaded other employees to act as
observers for the other polling periods, if they were offering to pay such an amount to the
employees.
I also note that the Employer’s position, that Boggs in fact received the $65.00 per hour,
and lied about it on the stand, requires me to find a conspiracy between the Union and Boggs.
The argument is that Boggs was promised the $65.00 per hour by the Union, that she was paid
that amount by the Union in cash, that the Union, in order to cover up this action, and in
response to the filing of the objections, issued a check to her for $24.00, and then together with
Boggs concocted a story that Boggs told Sanchez that she was expecting $65.00 per hour, to
make herself look good, and persuaded Boggs to lie under oath, to testify in that fashion. I find
that scenario, as urged by the Employer to be mere “speculation” based on little objective
evidence. Sawyer Lumber, 325 NLRB 1331, 1332 (1998).
I simply find it unlikely and improbable that the Union would be able to convince Boggs
to make up such a story, and so testify under oath. As noted above I found Boggs’ testimony to
be believable, to have the “ring of truth” to it, and not likely to have been made up. In my view, if
the Union and Boggs were inclined to concoct her testimony, it would have been simpler and
easier, to have Boggs deny that she ever told Sanchez that she would be receiving $65.00 per
hour.
The Employer has made several arguments, as to why I should not credit Boggs’
testimony which I have carefully considered. It argues that since Boggs admitted that she “lied”
to Sanchez about receiving the $65.00 per hour from the Union, that therefore she should not
be believed in her testimony here. I disagree. Whether or not the statement that Boggs made to

6 The one area where the Employer argues that Boggs was inconsistent, i.e., when she
spoke to Dooley about the payment , I find to be minor, and not clearly inconsistent with her
testimony on cross and before me. The transcript reveals that Boggs was asked on direct was
there any discussion of compensation when Dooley asked her to be an observer. She replied,
“No. Just then he said I get paid $8.00 an hour for three hours”. On cross and when examined
by the undersigned, Boggs was certain that nothing was said about compensation, during this
conversation, but in a conversation after the election, Dooley informed her of the payment of
$24.00 by the Union. I find that the alleged inconsistency is minor and somewhat confusing,
since even on direct testimony Boggs at first answered “No” to the inquiry about a discussion of
compensation. I find it probable that Boggs was some what confused, and meant to say that
Dooley in a later conversation informed her of the $24.00 payment
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Sanchez was a “lie” or not, it was not made under oath, and I do not consider her attempting to
make herself “look good” to Sanchez, to be comparable to lying under oath, which I do not find
to have happened here. Moreover the Employer’s argument in this regard, makes little sense.
If Boggs really received the $65.00 per hour, as the Employer contends, she was not “lying” to
Sanchez, but telling Sanchez the truth. I therefore find that since her explanation for the “lie” to
Sanchez was reasonable and believable, I find that such “lie”, has little probative value, in
assessing whether or not Boggs received or believed that she would be receiving the $65.00 an
hour from the Union.
The Employer also argues that the Union did not pay Boggs the $24.00 until August 14,
18 days after the election, and well after the objections were filed. While this fact does raise
some suspicions, I do not attach much significance to it. It is not uncommon for a Union or an
Employer for that matter, to require processing or procedures to be followed before a check was
issued. I do not find a period of 18 days from the election to be an inordinately long time, before
a check could be issued.
The Employer also argues that an adverse inference should be drawn against the Union,
for its failure to call Dooley as a witness. This contention is somewhat troubling to me, as
Dooley was in the courtroom throughout the trial. It certainly would have been better had the
Union called Dooley as a witness to confirm Boggs’ testimony concerning the payment to her of
only $24.00, and to explain why the Union took 18 days to issue her a check.
It is well settled that when a party fails to call a witness who may reasonably be
assumed to be favorably disposed to a party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have knowledge. In particular, it may be
inferred, that the witness if called, would have testified adversely to the party on that issue.
International Automated Machines, 285 NLRB 1122, 1123 (1987).
However, it is equally well settled that the adverse inference rule is not mandatory. It
permits, but does not require drawing an adverse inference. National Specialties Installations,
344 NLRB 191 (2005). ”An adverse inference may be drawn, but not must be drawn, and the
decision to draw an adverse inference lies within the sound discretion of the trier of fact”. Tom
Rice Buick, 334 NLRB 78, 79 (2001); AEIZ LLC, 343 NLRB 433 (2004); Underwriters
Laboratories Inc., v. NLRB, 147 F.3d 1048, 1054 (9th Cir. 1998); JHP Assoc. v. NLRB, 360 F.3d
904, 174 LRRM 2558, 2561 (8th Cir. 2004); AFTRA v. NLRB, 232 F.3d 944, 946 (8th Cir. 2000).
While in the exercise of my discretion, I could draw an adverse inference from the failure
of the Union to call Dooley as a witness, I am not required to do so, and I find it inappropriate to
draw such an inference here. For the reasons that I have discussed fully above, I found Boggs
to be an extremely credible witness, and have chosen to credit her testimony that she did not
receive $65.00 an hour from the Union to serve as an observer, as well as her explanation for
informing Sanchez that she was expecting to receive that amount from the Union. I see no
reason to disturb these findings, and do not believe that an adverse inference against the Union
is warranted.
While it would have been advisable for the Union to have called Dooley to corroborate
Boggs’ testimony, I do not find it essential that it do so, particularly in view of Boggs’ credible
and believable testimony. I do not know why the Union did not call Dooley as a witness, but it
may have been that its attorney reasonably believed that Boggs’ testimony was sufficiently
convincing (as did I), and that it was not essential to call Dooley. It may have also been an error
in judgment by its attorney, or a matter of over confidence. Whatever the reason, I cannot and
do not find, that Dooley’s testimony if called, would have been adverse to the Union. Indeed,
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the Employer asserts that the Union, (presumably by Dooley) and Boggs engaged in a
conspiracy to concoct a story, that denied that Boggs received $65.00 per hour, and made up
an explanation for her disclosing that fact to Sanchez. In such circumstances, I find it highly
unlikely that Dooley would not have corroborated Boggs’ testimony, had he been called as a
witness.
Moreover, as I have noted, Dooley was in the hearing room throughout the trial. If the
Employer believed that if Dooley was called as a witness, he would not have corroborated
Boggs, or would have been unable to explain why the Union delayed in issuing its check to
Boggs, the Employer could have called Dooley as its witness. I therefore rely on the failure of
the Employer to call Dooley as a witness, as support for my decision, not to draw an adverse
inference against the Union for the failure to call Dooley. Underwriters Lab, supra, 147 F.3d at
1054.
Accordingly, since I have credited Boggs’ testimony as detailed above, I conclude that
based on such testimony, that she neither received, nor expected to receive $65.00 per hour
from the Union, as payment for serving as an observer. Since the amount that she did receive,
($24.00), was not grossly disproportionate to her salary, I find that the objection has no merit,
and must be dismissed. Cedars-Sinai, supra; Quick Shop, supra; Kux Mfg. Co., supra.
I so recommend.
The Employer also argues that objectionable conduct has also been established by
virtue of the potential affect of Boggs’ statements to Sanchez, on Sanchez’s vote. This
contention can only be raised if I were to credit Sanchez’s testimony that Boggs told her about
the $65.00 payment and the alleged intention of the Union to buy her breakfast before Sanchez
voted. I have credited Boggs’ version of events, as detailed above, and find as testified to by
Boggs, that both she and Sanchez voted before the discussion between them about
compensation for serving as an observer, and that Boggs did not tell Sanchez, as Sanchez
testified, that the Union had promised to buy her breakfast.
I have set forth my reasons above as to why I credited Boggs’ testimony, which I also
rely upon in crediting her vis á vis areas where it conflicts with that of Sanchez. Additionally, I
do not credit Sanchez, where her testimony conflicts with that of Boggs, for several reasons. I
found Sanchez to be a witness who appeared to be overly intent on furnishing testimony that
she believed to be favorable to her Employer, who had chosen her as its observer and had
called her as a witness. She testified, rather incredulously, and contrary to the credited
testimony of Boggs, that she (Sanchez) was not getting paid by the Employer for serving as an
observer. She was asked that question on cross-examination, and I believe that she somehow
felt, that if she admitted to having been paid by the Employer to act as an observer, it would
somehow weaken the Employer’s case. I find it highly unlikely that the Employer would ask an
employee to be its observer, on a day that she normally works, without paying her for the day. I
again note Boggs’ credible and undenied testimony, that Sanchez told her that she was getting
paid by the Employer for all the sessions. I also rely on the fact that although at one point in her
testimony, she asserted that the statements about breakfast and compensation by Boggs, were
made to her, before she voted, her later testimony, still on direct, was inconsistent with this
version. Sanchez testified that when Dooley came in she said, “Oh yes he got here. Now I’m
going to eat some breakfast”. I said “Okay, then after that we voted”. That testimony is
preposterous, as it indicates that the observers did not vote until the conclusion of the polling,
and after the Union business agent entered the polling place. I find that scenario highly unlikely,
and further supportive of my decision not to credit Sanchez vis á vis Boggs.
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However, even if I were to credit Sanchez’s testimony that the conversation about
compensation occurred before she voted, and that Boggs told her that she expected the Union
to buy her breakfast, also prior to Sanchez voting, I would not find that objectionable conduct
has been established. Even though Sanchez’s vote, could have changed the outcome, I do not
find that either statement, singly or collectively, reasonably tended to interfere with employees’
free choice in the election. Midway Hospital Medical Center, 330 NLRB 1420 (2000); Allen’s
Electric Co., 340 NLRB 1012, 1013 (2003).
With respect to Boggs’ informing Sanchez that she (Boggs) was to receive $65.00 per
hour from the Union, I find nothing even remotely objectionable about this comment vis á vis
Sanchez. I find no reasonable inference that this comment could have affected Sanchez’s vote.
Boggs made no promise, express or implied, that Sanchez would receive $65.00 per hour or
any amount of money for that matter, from the Union. Nor did Boggs make any statement,
express or implied, concerning the election or how Sanchez intended to vote. Under no stretch
of the imagination, can Boggs; statement, be construed as electioneering. Cf. Milchem, 170
NLRB 362 (1968).
Accordingly, I conclude that even if I were to find that Boggs’ comments to Sanchez,
occurred prior to Sanchez casting her vote, such comments do not reasonably tent to interfere
with employees’ free choice, and do not constitute objectionable conduct. U-Haul Co., 341
NLRB 195, 196 (2004); Midway Hospital, supra; Sawyer Lumber, supra at 1333; Dubovsky &
Sons, 324 NLRB 1068 (1997).
Similarly, even if Boggs had informed Sanchez, prior to Sanchez having voted, that she
(Boggs) expected to be taken to breakfast by the Union, such remarks are not objectionable.
Once again, Boggs made no statement either express or implied, suggesting that Sanchez
would receive breakfast or any other benefit from the Union, and did not make any connection
between voting for the Union and receiving a free breakfast. Thus I also find that this statement
by Boggs, also did not reasonably tend to interfere with employees’ free choice in the election.
See cases cited above.
Moreover, even if I were to find, which I do not, that Boggs was promised and did
receive free breakfast from the Union, this also would not result in the setting aside of the
election. “The Board has long held that a Union’s or an Employer’s provision of refreshments
and dinners during organizing campaigns is within the realm of permissible conduct”. Lamar
Advertising, 340 NLRB 979, 980 (2003); Far West Fibers, 331 NLRB 950, 952 (2000)
(Employer’s conduct in providing free lunch to employees not unlawful); Cedars-Sinai, supra at
605 (Union supplying pastries and lunches to employees when meeting with employees not
objectionable); Kux Mfg, supra, 890 F.2d at 810 (Union supplying food and drinks to employees
not objectionable. Court observes, “Supplying food and soft drinks is common place in
American elections and is not the equivalent of buying votes. See Sonicraft Inc., 276 NLRB
407, 413 (1985), and there is no evidence in the record that the food and drinks supplied in this
case were so exorbitant as to amount to a bribe”).
Similarly here there is no evidence in the record that the Union’s alleged promise to
supply breakfast to Boggs was so exorbitant as to amount to a bribe. Therefore, based on the
above precedent, the Union’s conduct would not be objectionable, even if it were found that it
had promised and supplied breakfast to Boggs.
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Accordingly, based on the foregoing analysis and authorities, I recommend that the
Employer’s objection be dismissed, and the appropriate certification be issued.7
Dated, Washington, D.C. November 15, 2007
____________________
Steven Fish
Administrative Law Judge

7 Under the provisions of Sec. 102.69 of the Board’s Rules and Regulations, Exceptions to
this Report may be filed with the Board in Washington, D.C. within 14 days from the date of
issuance of this Report and recommendations. Exceptions must be received by the Board in
Washington by November 29, 2007.