PartyLite Worldwide, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1342 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 155
1342
PartyLite Worldwide, Inc. and Teamsters Excavating,
Grading, Asphalt, Private Scavengers, Automo-
bile Salesroom, Garage Attendants and Linen
and Laundry Drivers, Local Union No. 731, In-
ternational Brotherhood of Teamsters,1 Peti-
tioner. Case 13–RC–21259
July 29, 2005
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered an
objection to an election held November 19, 2004, and the
hearing officer’s report recommending disposition of it.
The election was conducted pursuant to a Decision and
Direction of Election issued on October 27, 2004. The
tally of ballots shows 142 for and 144 against the Peti-
tioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings2 and recommendations, and finds that the elec-
tion must be set aside and a new election held.
The Petitioner’s Objection 1 alleges that the Employer
interfered with the election by engaging in surveillance
of the Petitioner’s handbilling activities during the criti-
cal period. The hearing officer recommended sustaining
Objection 1. Contrary to our dissenting colleague, we
agree with the hearing officer. In adopting her report, we
emphasize the following points.
It is well established that management officials may
observe open and public union activity on or near the
employer’s premises, so long as such officials do not
engage in behavior that is “out of the ordinary.” Arrow
Automotive Industries, 258 NLRB 860 (1981), enfd. 679
F.2d 875 (4th Cir. 1982).
Here, the hearing officer found that, on three separate
occasions shortly before the election, no less than eight
high-ranking managers and supervisors stood at en-
trances to the employee parking lot watching the Peti-
tioner give literature to employees as they entered and
exited the parking lot during shift changes. These man-
agement officials included the vice president for World-

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
wide Operations, the human resources director, and the
director of North American Distribution. The record
shows that the Employer’s conduct was “out of the ordi-
nary.” The hearing officer credited employee testimony
that the presence of managers and supervisors at the en-
trances to the parking lot was “surprising”3 and an “un-
usual occurrence.”4 Indeed, the Employer established no
legitimate explanation for why any of its managers and
supervisors were stationed in the parking lot during the
Petitioner’s handbilling activities. Instead, the Employer
simply denied that its managers and supervisors were
present in the parking lot while the handbilling was oc-
curring. The hearing officer, however, discredited the
Employer’s witnesses based on her careful consideration
of the record as a whole. As stated in footnote 2, supra,
there is no basis for disturbing the hearing officer’s
credibility resolutions.
Our dissenting colleague claims that we have errone-
ously put the burden on the Employer to explain its pres-
ence in the parking lot during the Petitioner’s handbill-
ing. In fact, we have followed Board precedent requiring
this Employer to explain its conduct once it has been
shown the conduct was out of the ordinary.5
In agreeing with the hearing officer that the Employer
engaged in objectionable surveillance, we also emphasize
her finding that managerial personnel were stationed
“close” to the handbillers. This finding is supported by
the record. Specifically, testimony credited by the hear-
ing officer establishes that managers and supervisors
were not simply present in the parking lot, as alleged by
the dissent, but that they were positioned at the en-
trance/exit to the parking lot. The handbilling necessar-
ily took place on the public roadway immediately adja-
cent to the parking lot’s entrance/exit. Thus, the manag-
ers and supervisors’ position would put them as close to
the handbilling as possible, while remaining on the Em-
ployer’s property. Moreover, the record shows that they
were close enough to the handbilling that they could
identify not only those employees who passed by the
handbillers, but even which employees took a handbill
from the union organizers. Accordingly, contrary to our

3 Testimony of employee David Carpenter.
4 Testimony of employee Otilio Vasquez.
5 See, e.g., Sands Hotel & Casino, 306 NLRB 172 (1992) (employer
engaged in unlawful surveillance where activity was out of the ordinary
and employer failed to introduce evidence that conduct was based on
legitimate concerns), enfd. 993 F.2d 913 (D.C. Cir. 1993). Further-
more, our dissenting colleague incorrectly states that the Employer did
not engage in the type of activity that the Board has previously found to
be out of the ordinary. See Arrow Automotive, supra, 258 NLRB 860–
861 (finding that the employer “took action which was quite ‘out of the
ordinary’” when 11 of its supervisors lined up in varying numbers at
the gates where union handbilling was occurring).
PARTYLITE WORLDWIDE, INC. 1343
dissenting colleague’s contention, the hearing officer
properly determined that the Employer’s managers and
supervisors stood in close physical proximity to the
handbillers, and she correctly held that this factor further
supports a finding of objectionable surveillance. See
Gainesville Mfg. Co., 271 NLRB 1186, 1188 (1984)
(“close presence of the representatives of the [employer]
during the handbilling constituted [improper] surveil-
lance of union activities on a public road right-of-way”
adjacent to the employer’s property).6
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
diately before the date of the Notice of Second Election,
including employees who did not work during the period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the first election and who retained their employee status
during the eligibility period and their replacements.
Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those
in the military services may vote if they appear in person
at the polls. Ineligible to vote are employees who have
quit or been discharged for cause since the payroll pe-
riod, striking employees who have been discharged for
cause since the strike began and who have not been re-
hired or reinstated before the election date, and employ-
ees engaged in an economic strike that began more than
12 months before the date of the first election and who
have been permanently replaced. Those eligible shall
vote whether they desire to be represented for collective
bargaining by Teamsters Excavating, Grading, Asphalt,
Private Scavengers, Automobile Salesroom, Garage At-
tendants and Linen and Laundry Drivers, Local Union
No. 731, International Brotherhood of Teamsters.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co.,

6 Our dissenting colleague argues that the Employer’s conduct was
not objectionable because it was a usual response to an unusual situa-
tion. We note, however, that this argument runs directly counter to the
Employer’s own assertion that “the presence of Union representatives
at the facility passing out handbills between shifts was hardly anything
new.” Moreover, the Employer emphatically disputes that it engaged in
the conduct that the dissent attempts to justify.
394 U.S. 759 (1969). Accordingly, it is directed that an
eligibility list containing the full names and addresses of
all the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election if proper objections
are filed.
MEMBER SCHAUMBER, dissenting.
Introduction
At issue in this case is whether the presence of the
Employer’s representatives in its parking lot and their
observation of union handbilling constituted objection-
able conduct that would tend to interfere with employ-
ees’ free choice in the election.1 My colleagues find that
such conduct was objectionable. I disagree. I find that the
Union failed to show that the silent presence of certain of
the Employer’s managers and supervisors in the facility
parking lot during union handbilling reasonably tended
to interfere with employee free choice in the Board’s
subsequent secret ballot election.
The Union Did Not Meet its Burden
It is well settled that “representation elections are not
lightly set aside.”2 Thus, “there is a strong presumption
that ballots cast under specific NLRB procedural safe-
guards reflect the true desires of the employees.”3 As the
objecting party, the Petitioner has the burden of proving
interference with the election. That burden, which the
Board has consistently described as a “heavy one,”4 has
not been met here.
The evidence shows that on three occasions during the
critical period, the Petitioner handbilled employees out-
side the six entrances to the Employer’s parking lot as
the shifts were changing. On these days, supervisors and
managers stood in the parking lot and at the entrances to
the parking lot for approximately 15 minutes, watching
the Union give literature to employees as they entered
and exited the premises.

1 See Harsco Corp., 336 NLRB 157, 158 (2001).
2 NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328 (5th Cir.
1991) (citing NLRB v. Monroe Auto Equipment Co., 470 F.2d 1329,
1333 (5th Cir. 1972), cert. denied 412 U.S. 928 (1973)).
3 Id.
4 Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir. 1989) (quoting
Harlan #4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th Cir. 1974), cert.
denied 416 U.S. 986 (1974).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1344
It is well settled that where, as here, union organizers
and the employees they seek to organize openly conduct
their activities on or near the company’s premises, they
have no cause to complain that the employer has ob-
served their activities.5 In observing open union activity,
however, an employer may not do something “out of the
ordinary” to give employees the impression that it is en-
gaging in surveillance of their protected activities.6
Here, the Employer’s representatives did nothing more
than stand in the parking lot and at the entrances to the
parking lot and observe the open union activity. They did
not approach employees’ vehicles, take notes or pictures
of the employees or handbillers, yell at the handbillers or
otherwise attempt to stop the distribution of the litera-
ture. In short, the Employer did not engage in the type of
activity that the Board has found to be “out of the ordi-
nary.”7 My colleagues cite to Arrow Automotive Indus-
tries, 258 NLRB 860, to support their finding that the
Employer’s mere presence and observation was suffi-
ciently “out of the ordinary” to constitute objectionable
conduct. In that case, however, managers not only stood
near the exit gates and observed the handbilling, the
managers yelled at employees such things as “don’t take
the garbage,” “bring that card to me”, and “don’t sign
anything, you can end up in court.” No such interference
was present here.
The majority relies on the testimony by employees that
the Employer’s representatives’ presence in the parking
lot was “surprising” and an “unusual occurrence.” There
is no evidence, however, that supervisory presence in the

5 Roadway Package System, Inc., 302 NLRB 961 (1991); Brown
Transport Corp., 294 NLRB 969, 971 (1989); Southwire Co., 277
NLRB 377, 378 (1985), enfd. 820 F. 2d 453 (D.C. Cir. 1987); Porta
Systems Co., 238 NLRB 192 (1978), enfd. 625 F.2d 399 (2nd 1980).
6 Loudon Steel, Inc., 340 NLRB 307, 313 (2003); Arrow Automotive
Industries, 258 NLRB 860, 861 (1981), enfd. 679 F.2d 875 (4th Cir.
1982).
7 See, e.g., Loudon Steel, supra (employer engaged in “out of the or-
dinary” activity by walking up to and within a few feet of eight to ten
employees’ vehicles as the vehicles approached the union handbillers);
Sands Hotel & Casino, San Juan, 306 NLRB 172 (1992) (posting of a
security guard with binoculars to watch employees’ union activities on
public property near the hotel constituted more than ordinary or casual
observation of pubic union activity), enfd. 993 F.2d 913 (D.C. Cir.
1993); Kenworth Truck Co., 327 NLRB 497, 501 (1999) (manager
went beyond “unobtrusive observation of openly conducted protected
activity” when he positioned himself near handbillers for an hour, re-
peatedly and erroneously accused them of trespassing, shouted at them,
ordered them off the property, and threatened them); Robert Orr-Sysco
Food Services, 334 NLRB 977 (2001) (employer engaged in objection-
able conduct when it unjustifiably altered a security camera to purpose-
fully videotape employees’ handbilling activities); Snap-On Tools, Inc.,
342 NLRB No. 2 (2004) (employer violated Sec. 8(a)(1) by changing
its normal practice of panning the parking lot with a surveillance cam-
era to pointing the camera at the plant gate where employees were
handbilling).
parking lot was out of the ordinary when something un-
usual was taking place. Indeed, the hearing officer’s
report, which my colleagues adopt, refers to the handbill-
ing as an “unusual and highly visible activity”; an “un-
usual occurrence.” In sum, the representatives’ silent
observation of the handbilling under these circumstances
was not shown to be “out of the ordinary.”8
In concluding otherwise, my colleagues place the bur-
den on the Employer to provide a “legitimate explana-
tion” for its presence in its parking lot. Under Board law,
however, as the cases I have cited above illustrate, an
employer’s mere observation of open union activity on or
near its property does not require further justification.
My colleagues rely on the hearing officer’s statement
that the “close presence” of supervisors and managers in
the parking lot during the handbilling constituted surveil-
lance. The hearing officer never said what she meant by
“close presence,” however, and she made no finding on
the proximity of the Employer’s representatives to the
handbilling itself. The majority, however, finds that the
supervisors and managers were “as close to the handbill-
ing as possible.” There is no record evidence to support
that finding. The testimony of two witnesses that the
managers and supervisors were positioned at the en-
trances on the Employer’s property and the handbillers
were similarly positioned outside the property does not
do so. It is worth noting that this is not a small parking
lot. It has six entrances and spans the length of the facil-
ity, which occupies an entire block. Furthermore, the
Employer’s representatives did not approach the hand-
billers or employees or in any manner attempt to physi-
cally interfere with the union activity.9

8 My colleagues make argument. First, they claim that my analysis
runs counter to the Employer’s own assertions as to whether union
handbilling was a usual or unusual event (see fn. 5 of their opinion.)
The hearing officer, however, did not credit those assertions and I have
accepted those credibility findings, as presumably have my colleagues.
My analysis thus rests on the credited facts which I find support the
conclusion that the Employer’s conduct was not objectionable. Second,
my colleagues say that I attempt to justify what the Employer “em-
phatically disputes” as having occurred. The truth of the matter is that
the Employer argued in the alternative: one, that the hearing officer
erred in her credibility determinations and that the conduct did not
occur as she found it to have occurred; or, two, even if its representa-
tives were in the parking lot observing the handbilling as the hearing
officer found, such conduct, observing open union activity, was not
objectionable. Consequently, my views are not inconsistent with those
of the Employer on that point even if such consistency was of any legal
moment.
9 Contrary to my colleagues, I do not find this case to be analogous
to Gainesville Mfg. Co., 271 NLRB 1186 (1984). There, the employer
interfered with the employees’ receipt of union handbills by asking the
union agents to leave, calling the police, and once attempting to physi-
cally impede the union’s efforts by stepping between the handbillers
and the exiting employee cars. Nothing of that sort happened here.
PARTYLITE WORLDWIDE, INC. 1345
Accordingly, I find that the mere presence of certain
representatives of the Employer in the Employer’s park-
ing lot and their observation of the open union handbill-
ing taking place did not have a reasonable tendency to
interfere in the Board’s subsequent secret ballot election.
Accordingly, I would overrule this objection and certify
the results of the election.