Pacific Beach Hotel

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 372 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 30
372
HTH Corporation d/b/a Pacific Beach Hotel, and In-
ternational Longshore &Warehouse Union, Lo-
cal 142, AFL–CIO, Petitioner. Case 37–RC–4022
June 30, 2004
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to and determi-
native challenges in an election held July 31, 2002, and
the administrative law judge’s report recommending dis-
position of them. The election was conducted pursuant to
a Decision and Direction of Election. The tally of ballots
shows 209 for and 204 against the Petitioner, with 36
challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions1 and briefs, and has adopted the judge’s findings
and recommendations as discussed below.2
Introduction
The judge recommended sustaining the challenges to
the ballots of Jane Fee, Emyl Schlenker, and Lisa Haya-
shi, and overruling the challenges to the ballots of
Patricia Bell and Brenda Dolente. The judge further
found that the Employer engaged in certain objectionable
conduct, and accordingly sustained Objections 1, 2, 8,
and 9. For the reasons set forth by the judge, we adopt
his recommendations with respect to the challenges to
the ballots of Schlenker, Bell, and Dolente. For the fol-
lowing reasons, we adopt the judge’s recommendation as
to Hayashi, but find it unnecessary to pass on the chal-
lenge to Fee. Finally, we adopt the judge’s recommenda-
tion to sustain Objections 1 and 8. Because we find Ob-

1 The Employer has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
The Employer also contends that the judge’s rulings, findings, and
conclusions demonstrate bias and prejudice. On careful examination of
the judge’s decision and the entire record, we are satisfied that the
Respondent’s contentions are without merit.
2 The parties stipulated at the outset of the hearing that 13 challenged
ballots should not be counted, and at the conclusion of the hearing the
Union withdrew challenges to 3 ballots. Additionally, the judge rec-
ommended sustaining the challenge to 1 ballot, and recommended
overruling the challenges to 14 other ballots. In the absence of excep-
tions, we adopt, pro forma, these recommendations. In the absence of
exceptions, we also adopt the judge’s recommendation that Objections
4, 6, 7, 10, 11, 12, 13, 14, and portions of Objections 1 and 2 be over-
ruled. The Union withdrew Objections 3 and 5 at the hearing.
jections 1 and 8 sufficient to warrant setting aside the
election, we find it unnecessary to pass on the judge’s
recommendation that Objections 2 and 9 also be sus-
tained.3
Challenged Ballots
1. The judge found that Jane Fee was a supervisor un-
der Section 2(11) of the Act, and accordingly recom-
mended sustaining the challenge to her ballot. The Em-
ployer has excepted to this finding. We find it unneces-
sary to pass at this time on the challenge to Fee’s ballot.
In light of the numerous challenged ballots in this case,
there is a possibility that Fee’s ballot may not be deter-
minative. We will therefore hold it in abeyance pending
the revised tally of ballots.
2. In recommending that the challenge to the ballot of
Lisa Hayashi should be sustained, the judge found that
Hayashi should not be included in the unit because she
was a casual employee and because of her familial rela-
tionship to the Employer. In adopting the judge’s rec-
ommendation to sustain the challenge to Hayashi’s bal-
lot, we rely on the judge’s finding that Hayashi was a
casual employee. We do not pass on the additional find-
ing that Hayashi’s familial relationship warrants her ex-
clusion from the unit.
Objection 1
The judge recommended sustaining Objection 1, which
alleges that “the Employer . . . threatened, coerced and
interfered with the rights of employees . . . by threatening
loss of reduction of wages, hours of work, and other con-
ditions of employment, if they voted for the Union or if
the Union won representation rights.” In recommending
that the objection be sustained, the judge found that the
Employer interrogated employees about their support for
the Union. In its exceptions, the Employer argues that
Objection 1 should be overruled because it does not en-
compass interrogations. For the following reasons, we
find no merit to the Employer’s contention.
The credited testimony establishes that Sandra Toku-
naga, the Employer’s group reservations manager, asked
four reservation clerks whether they were “yes” or “no”
regarding support for the Union. Tokunaga testified that
she asked three of them at one time, sometime in May or
June,4 and they did not give her a response. About 3 days
before the election, Tokunaga called another employee,
Judith Agliam-Howard, while both she and Howard were
at work, and asked her the same question. Howard told
Tokunaga that she was undecided. Tokunaga testified

3 For that reason we find it unnecessary to comment on our dissent-
ing colleague’s discussion of Objections 2 and 9.
4 All dates are in 2002 unless otherwise indicated.

PACIFIC BEACH HOTEL 373
that she was subsequently told that she should not have
questioned employees as she did.
At the close of the hearing, the Union withdrew Objec-
tion 3, which alleged that the Employer coercively inter-
rogated employees.5 However, in its posthearing brief,
the Union addressed Tokunaga’s conduct as encom-
passed within Objection 1. The Employer’s posthearing
brief also addressed Tokunaga’s conduct, and specifi-
cally urged that it not be found objectionable. Although
the Employer did not specifically refer to Tokunaga’s
conduct in connection with Objection 1, the Employer
did not argue in its brief that Tokunaga’s conduct was no
longer at issue due to the withdrawal of Objection 3. The
judge recommended sustaining Objection 1 on the basis
of Tokunaga’s conduct.
In its exceptions, the Employer raises, for the first
time, the argument that Tokunaga’s conduct was not
properly before the judge because of the withdrawal of
Objection 3. The Employer contends that Objection 1 on
its face does not encompass interrogations and that Ob-
jection 3, which expressly does so, was expressly with-
drawn by the Union at the close of the hearing. On this
basis the Employer argues that the judge inappropriately
reached an issue that was not properly before him. In
support, the Employer cites Precision Products Group,
319 NLRB 640, 641 (1995), where the Board reversed a
hearing officer’s finding of objectionable conduct be-
cause the objecting party had withdrawn the relevant
objection prior to the hearing and the issue was “not rea-
sonably encompassed within the scope of the objec-
tions.” In the circumstances of this case, we find no merit
to the Employer’s contention.
There is no dispute that Tokunaga’s conduct was fully
litigated at the hearing. Indeed, both parties examined
Tokunaga and Judith Agliam-Howard, one of the em-
ployees she interrogated. Further, after the close of the
hearing, both parties addressed Tokunaga’s conduct in
their posthearing briefs, and argued whether that conduct
was objectionable. In its brief, the Union specifically
requested that the judge sustain Objection 1 on the basis
of Tokunaga’s conduct. The Employer, though not refer-
ring to Objection 1 by name, specifically urged the judge
to find that Tokunaga’s conduct was not objectionable.6

5 Objection 3 states as follows: “UNLAWFUL INTERROGATION—
Commencing on April 26, 2002 and thereafter, the Employer, acting by
and through its representative, employees, and agents, questioned em-
ployees regarding their Union sentiment, about their intention to vote
for or against the Union, and about Union meetings, inquired about
attendance of various employees at union meetings. Said conduct (and
other related practices of the Employer) violated Section 7 rights of
employees under the Act.”
6 For example, the Employer's brief states that "the Union failed to
prove that any incident between Sandi Tokunaga and Judith Agliam-
Significantly, neither party suggested to the judge that
Tokunaga’s comments were no longer at issue. Thus,
despite the Union’s withdrawal of Objection 3, the par-
ties and the judge all understood, and by their conduct
demonstrated, that Tokunaga’s conduct was a live issue
at all times. Accordingly, we find that the judge properly
recommended sustaining Objection 1 on the basis of To-
kunaga’s conduct.
Precision Products, cited by the Employer, is distin-
guishable. First, although the Board in that case found
that the conduct encompassed within a withdrawn elec-
tion objection could not be used to set aside an election,
there was nothing in that case showing, as here, an un-
derstanding by the parties that the conduct in question
was still a live issue, despite the withdrawal of an objec-
tion. In addition, the hearing officer in Precision, in re-
sponse to an evidentiary objection raised over the intro-
duction of evidence relevant to the withdrawn election
objection, assured the employer at the hearing that the
evidence would only be considered as it relates to a live
objection. Nevertheless, the hearing officer used that
evidence to reach the issues raised in the withdrawn ob-
jection. Precision Products, above at 641. Conversely, in
this case, there is no contention that the judge misled the
Employer into believing that Tokunaga’s interrogations
were not a live issue; indeed, the Employer’s brief re-
flects its clear understanding that Tokunaga’s conduct
was still at issue, despite the withdrawal of Objection 3.
For these reasons, Precision Products is inapposite.
In arguing that Objection 1 should be overruled, our
dissenting colleague contends that Tokunaga’s conduct is
beyond the scope of the objection because Objection 1
does not explicitly cover “interrogations.” We disagree.
First, Objection 1 alleges that the Employer “coerced”
and “interfered” with the rights of employees. This de-
scription aptly fits Tokunaga’s coercive interrogations of
employees. Furthermore, the record establishes that the
parties understood that Tokunaga’s conduct was still at
issue despite the withdrawal of Objection 3, and filed
their briefs accordingly. For these reasons, a refusal to
consider Tokunaga’s interrogations would be contrary to
the parties’ clear intent. Accordingly, we adopt the
judge’s recommendation to sustain Objection 1.
Objection 8
The judge recommended sustaining Objection 8, find-
ing that the Employer maintained an overly broad no-
solicitation policy. We agree. The Employer’s policy,
appearing in the handbook it gave to all employees upon
their hire, states that employees may not “solicit or pro-

Howard rose to the level of coercion that would be sufficient to over-
turn the results of the election." Emp. Posthearing Br. at 117.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
mote support for any cause or organization AT ANY
TIME WHILE ON COMPANY PROPERTY” (emphasis
in original). In addition, the policy states that “[n]o em-
ployee shall distribute or circulate any written or printed
literature at any time while on Company property,” and
that these rules apply to any solicitation or distribution of
literature, “including . . . labor unions.”
In recommending that the objection be sustained, the
judge found that the Employer’s maintenance of the pol-
icy was overbroad because it prevented solicitation or
distribution of union literature at any time on the Em-
ployer’s property. The judge also found that the Em-
ployer had never rescinded the unlawful rule, and that the
maintenance of the unlawful rule warranted setting aside
the election. In support, the judge cited Freund Baking
Co., 336 NLRB 847 (2001), where the Board directed a
second election because of the maintenance of an em-
ployee handbook rule forbidding discussion of wages,
hours, and other terms and conditions of employment.
Even though there was no evidence in Freund that the
rule was ever enforced, the Board found that the mere
maintenance of the overbroad rule “reasonably tended to
interfere with employees’ free choice.” Id.
In its exceptions, the Employer argues that any effect
the rule had on the election was de minimis because the
policy was never enforced, and thus it is impossible to
conclude that the rule could have affected the election.
We find the Employer’s argument without merit.
To begin, the no-solicitation policy is clearly over-
broad, and our dissenting colleague does not argue to the
contrary. The policy prevents employees from discussing
the election in nonwork areas, or during non-work time,
or from distributing literature in nonwork areas. Superior
Emerald Park Landfill, 340 NLRB 449, 456 (2003) (rule
preventing solicitation during work breaks overbroad).
The rule applied to the entire bargaining unit, appeared in
the Respondent’s employee handbook, and was dissemi-
nated to all unit employees. Indeed, the policy empha-
sizes its over-breadth with capital letters, prohibiting
solicitation “AT ANY TIME WHILE ON COMPANY
PROPERTY.” Additionally, the policy was specifically
applicable to “any solicitation or distribution of litera-
ture, including . . . labor unions.” Further, there is no
evidence that the employees were ever told that they
could ignore the policy.7 These facts clearly demonstrate
that an employee “could reasonably have construed” the
policy as not tolerating any discussion of the union on

7 To that end, the Employer’s reliance on Bell Halter, Inc., 276
NLRB 1208, 1223 (1985), is misplaced. There, the employer actually
told all unit employees that they could distribute literature in nonwork
areas on nonworktime in spite of its policy. In this case, the Employer
made no such announcement.
“company property.” Freund, supra at fn. 5. In these cir-
cumstances, the Employer’s maintenance of this over-
broad rule during the critical period could reasonably
tend to interfere with the employees’ free choice.
The Employer contends, and our dissenting colleague
agrees, that the lack of evidence of enforcement of the
rule requires overruling the objection. We vigorously
disagree. As explained in Freund, the mere maintenance
of an overbroad rule can affect the election results be-
cause employees could reasonably construe the provision
as a directive from their employer that they refrain from
engaging in permissible Section 7 activity. Freund, supra
at fn. 5. In other words, the lack of evidence of enforce-
ment does not establish that employees could not rea-
sonably believe that they might be subject to disciplinary
consequences if they violated the policy. This is espe-
cially so in this case, where the policy explicitly stated
that the rules apply to solicitation and distribution of ma-
terial concerning “labor unions.” For this reason, it is
reasonable to conclude that the maintenance of the rule
could have affected the election results.8 Accordingly, we
adopt the judge’s recommendation to sustain this objec-
tion.
In sum, we find that the Employer engaged in objec-
tionable conduct by coercively interrogating employees
and maintaining an overly broad no-solicitation policy.
This conduct warrants setting aside the election if the
revised tally of ballots does not show a majority of votes
for the Union.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
20 shall, within 14 days from the date of this Decision
and Direction, open and count the ballots of David
Tanimoto, Melanie Rubin, Reden Bartolome, Alma
Hamamoto, Rendi Kanaiaupuni, Daniel Kadowaki, Ches-
ter Huan, Marlene Morimoto, Scott Kazunga, Donna
Hashiro, Elizabeth Fuji, Leslie Shim, Wendy Mukai,
Patricia Bell, Brenda Dolente, Shaun Nawatani, Shota
Fujinaga, Hidemi Oba, and Peter To. In the event that
the revised tally of ballots shows that a majority of the
valid ballots have been cast for the International Long-
shore & Warehouse Union, Local 142, AFL–CIO, and
that the challenged ballot of Jane Fee would not be de-
terminative, the Regional Director shall then serve on the
parties a revised tally of ballots and issue the appropriate
certification.

8 See also IRIS U.S.A., 336 NLRB 1013 (2001) (finding objection-
able overly-broad rule without evidence of enforcement); and FGI
Fibers, Inc., 280 NLRB 473, 474 (1986) (finding overly-broad rule
objectionable despite “absence of evidence that the rule was actually
enforced”).

PACIFIC BEACH HOTEL 375
IT IS FURTHER DIRECTED that, in the event that the chal-
lenged ballot of Jane Fee should be determinative on the
issue of whether the Petitioner is the exclusive collective-
bargaining representative of the unit employees, any cer-
tification shall be held in abeyance pending the resolu-
tion of the challenge to the ballot of Jane Fee.
Finally, in the event that the revised tally of ballots
(following disposition of the challenge to Fee’s ballot, if
determinative) reflects that a majority of the valid ballots
have not been cast for the International Longshore &
Warehouse Union, Local 142, AFL–CIO, IT IS DIRECTED
that the July 31, 2002 election be set aside and that the
Regional Director shall conduct a second election in con-
formance with the following direction.
[Direction of Second Election omitted from publica-
tion.]

CHAIRMAN BATTISTA, dissenting in part.
Contrary to my colleagues, I would reverse the judge’s
recommendations to sustain Objections 1, 2, 8, and 9.
Accordingly, I would direct the Regional Director to
issue a revised tally of ballots and issue the appropriate
certification.1
1. My colleagues adopt the judge’s recommendation to
sustain Objection 1, which alleges that “the Employer . . .
threatened, coerced and interfered with the rights of em-
ployees . . . by threatening loss of reduction of wages,
hours of work, and other conditions of employment, if
they voted for the Union or if the Union won representa-
tion rights.” My colleagues sustain this objection on the
basis that Supervisor Sandra Tokunaga interrogated four
employees about their support for the Union. Contrary to
my colleagues, I find that the conduct at issue is beyond
the scope of this objection, and accordingly the objection
should be overruled.
The facts at issue show that Supervisor Tokunaga
questioned four employees whether they were “yes” or
“no” regarding their support for the Union. The conduct
involved nothing more. Significantly, the conduct in-
volved no threats of any kind.

1 I join my colleagues in adopting the judge’s recommendation to
sustain the challenge to the ballot of Lisa Hayashi on the basis that she
is a casual employee, to sustain the challenge to the ballot of Emyl
Schlenker, and to overrule the challenge to the ballots of employees
Patricia Bell and Brenda Dolente. With respect to Bell and Dolente, I
note that the Employer does not argue that these employees are jointly
employed by the Employer and Pagoda Hotel. I also join my colleagues
in adopting pro forma the judge’s recommendations concerning the
disposition of other challenged ballots.
I would adopt the judge’s recommendation to sustain the challenge
to the ballot of Jane Fee for the reasons set forth in the judge’s decision,
including the finding that Fee is a supervisor within the meaning of
Sec. 2(11) of the Act.
As noted, Objection 1 alleged threats and Objection 3
alleged interrogation. At the close of the hearing, the
Union withdrew Objection 3. The withdrawal was ac-
cepted by the judge. The Employer reasonably concluded
that interrogation was no longer at issue. Despite the fact
that there no longer was an objection alleging an interro-
gation of any kind, the judge nonetheless found that To-
kunaga’s interrogation was objectionable under Objec-
tion 1.
Objection 1 clearly does not encompass interrogation.
Rather, it alleges that the Employer “threaten[ed] loss of
reduction of wages, hours of work, and other conditions
of employment.” Tokunaga’s conduct did not involve a
threat, and she made no mention of wages, hours of
work, or other conditions of employment. Thus, while
Tokunaga’s conduct was within the scope of withdrawn
Objection 3, it is clearly not within the scope of Objec-
tion 1, and cannot be a basis for sustaining that objection.
My colleagues note that the Employer did not argue in
its brief to the judge that the interrogation matter was no
longer before the judge. However, there was no need to
do so. The Employer reasonably thought that the judge
would not consider the interrogation matter, inasmuch as
Objection 3 had been withdrawn.
My colleagues also note that the Employer briefed to
the judge the testimony concerning the interrogation.
However, it is not unusual for a diligent attorney to ad-
dress himself to all possible adverse testimony in the
record. I would not conclude that, by doing so, counsel
waived the right to contest that which he could not have
foreseen, viz., that the judge would consider the sub-
stance of the withdrawn Objection 3.
My colleagues rely on the fact that Tokunaga’s ques-
tioning could be described as “coercive” and “interfer-
ing,” and that these two words are included in Objection
1. However, such a description in that objection clearly
had reference to alleged threats. To repeat, Objection 3
alleged the interrogation. To adopt my colleagues’ view
would render meaningless the requirement that each ob-
jection “shall contain a short statement of the reasons
therefor”. See 102.69(a) of the Board’s Rules. In short,
Objection 3 specifically related to interrogation, and it
was withdrawn. It cannot be resurrected by seeking to
shoehorn it into Objection 1.
2. The judge recommended sustaining Objection 2. I
disagree. Revamonte, the Union’s observer during the
afternoon voting session, saw several large security
guards standing in a line in a hallway outside the voting
area. She passed them on her way to the restroom, and
one of them said, “kick their ass.” The guard then
laughed, as did another, and some others smiled and
looked at her. The judge found that the remark could

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
reasonably be construed as a threat and, for this reason,
recommended sustaining the objection. As noted, I dis-
agree.
First, it is not clear from the record that the guard actu-
ally directed this statement at Revamonte. Further, there
is no showing that Revamonte was identifiable to the
guards either as the Union’s observer, or as being con-
nected in any way with the Union or the election. Addi-
tionally, the conduct occurred prior to any voting, and
there is no evidence of dissemination. Moreover, even
assuming Revamonte was known by the guards to be a
union observer, it is not clear that the statement would
reasonably be construed as a threat. In fact, the statement
could just as reasonably be construed as voicing the de-
sire that one party defeat the other in the election. Even if
the desire was that the Employer prevail, this would not
establish that the guard’s conduct was objectionable.
3. Contrary to my colleagues, I also would overrule
Objection 8, which alleges that the Employer engaged in
objectionable conduct by maintaining an overly broad
no-solicitation policy. I find that the Employer’s mere
maintenance of this policy is insufficient to warrant set-
ting aside the election.
The record shows that the Employer has not enforced
its policy. For example, it is undisputed that employees
openly discussed the campaign at work. Some employees
brought in flyers that the Union had mailed to them at
home. Some supervisors knew there was union talk go-
ing on at work, but did not enforce the policy. In addi-
tion, employees freely engaged in other kinds of solicita-
tion at work. For instance, both employees and supervi-
sors bought items such as candy, chicken, or tickets for
charitable events from each other. In fact, the record
shows that many employees had no idea that the policy
even existed, as it was buried in the back of the Em-
ployer’s handbook. Importantly, there is no evidence the
Employer ever disciplined an employee for violating the
no-solicitation policy. Thus, the record establishes that
the Employer chose not to enforce its policy in the face
of open solicitation and distribution.
I recognize that the Board has held that the mere main-
tenance of an overbroad non-solicitation or distribution
rule can violate Section 8(a)(1) of the Act, and that such
a finding has been found sufficient to set aside an elec-
tion. See, e.g., Freund Baking Co., 336 NLRB 847
(2001); Farah Mfg. Co., 187 NLRB 601, 602 (1970). In
this case, there is no such unfair labor practice allegation.
Moreover, I find that even had an unfair labor practice
charge been filed, this conduct would not have warranted
setting aside the instant election, because it is “virtually
impossible to conclude that the misconduct could have
affected the election results.” Clark Equipment Co., 278
NLRB 498, 505 (1986). Thus, the record evidence shows
that the Employer did not enforce its policy, that em-
ployees freely engaged in conduct directly in conflict
with the policy, and that many employees were unaware
of the policy. This evidence affirmatively demonstrates
that it is “virtually impossible” to conclude that the mere
existence of the policy could have affected results of the
election.
The majority’s reliance on Freund Baking Co., supra,
is misplaced. In that case, there was no affirmative evi-
dence that the written policy was a nullity, i.e., that the
employees freely engaged in conduct contrary to the rule.
For all these reasons, I would overrule the objection.
4. Lastly, the judge recommended sustaining Objection
9, which alleges that the Employer engaged in objection-
able conduct by granting gifts and inducements to em-
ployees 2 days before the election. I would reverse the
judge’s recommendation and overrule the objection.
The Employer provides a daily free lunch to all unit
employees. Sometime in July, the Employer invited unit
and nonunit employees to attend a special luncheon to
mark the closing of the Ohana General Store. That store
had provided food and other items to employees who lost
hours because of the business slowdown that occurred
after September 11, 2001. At the luncheon, held 2 days
before the election, a video presentation (that did not
concern the campaign) was shown on a large monitor. At
times, “Vote No” would periodically flash on the moni-
tor for a few seconds.
Also at the luncheon, the Employer handed out, at no
cost, food and household items of a nominal value ($5–
10) that had been left over from the closing of the store.
This was not the first time that employees had received
gifts from the Employer. Previously, during national
housekeepers week, the housekeeping employees in the
unit received free gifts and a luncheon, and those same
employees have received more expensive items as gifts
at their annual Christmas party.
The judge found merit to the objection. In doing so, he
applied B&D Plastics, 302 NLRB 245 (1991), and noted
the factors the Board traditionally analyzes in determin-
ing if a preelection benefit constitutes objectionable con-
duct: (1) the size of the benefit in relation to the stated
purpose for granting it; (2) the number of employees
receiving it; (3) how employees would reasonably view
it; and (4) the timing. I disagree with the judge.
Applying the B&D Plastics factors, I find the lunch
not objectionable. The first factor, the size of the benefit,
is very small. The distributed items were of nominal
value, and the employees received a lunch from the Em-
ployer every day. There is no indication that the food at
this luncheon was any different in value from the food

PACIFIC BEACH HOTEL 377
the employees received any other day. As to the second
factor, the number of employees receiving it was no big-
ger than the number of employees who receive lunch on
any other day. The third factor, how employees would
reasonably view the lunch and free items, is arguable.
Admittedly, “Vote No” did appear on the monitor peri-
odically during lunch, but it is one element amid a num-
ber of circumstances. The nominal value of the items, the
daily occurrence of a free lunch, and the nonpartisan na-
ture of the invitation to attend the event minimize any
potential for undue influence. The fourth factor, the tim-
ing, is also problematic. Although the conduct occurred 2
days before the election, it also occurred shortly after the
closing of the store. This problematic factor and the one
discussed immediately above do not outweigh the other
two factors and thus do not support sustaining the objec-
tion. See Chicagoland Television News, 328 NLRB 367
(1999) (finding unobjectionable a 12-hour party, the day
before the election, that included food, drink, and enter-
tainment, at a cost of $26/person). Accordingly, I would
overrule the objection.
In summary, I agree with the judge’s recommendations
regarding the disposition of the challenged ballots, but,
contrary to my colleagues, I do not find that the Em-
ployer engaged in objectionable conduct. Accordingly, I
would direct the Regional Director to issue a revised
tally and issue the appropriate certification.