PSQ, INC.

National Labor Relations Board - Unpublished Board Decisions

Jul 1, 2014

04-RC-112179 (N.L.R.B. Jul. 1, 2014)

NOT INCLUDED MJS
IN BOUND VOLUMES Philadelphia, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
PSQ, INC.
Employer
and Case 04-RC-112179
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 743
Petitioner
DECISION AND DIRECTION
The National Labor Relations Board, by a three-member panel, has considered a
determinative challenge and an objection to a mail ballot election held between November 6 and
November 21, 2013, and the hearing officer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows
one for and one against the Petitioner, with one challenged ballot, a number sufficient to affect
the results.
The Board has reviewed the record in light of the exceptions1 and briefs and has adopted
the hearing officer’s findings2 and recommendations,3 as modified below.

1 In the absence of exceptions, we adopt pro forma the hearing officer’s recommendation
to overrule the challenge to the ballot of employee Jayson Weir.
2 The Petitioner has excepted to some of the hearing officer’s credibility 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 have carefully examined the record and find no basis for
reversing the findings.
At one point in his report, the hearing officer inadvertently stated that the Employer
engaged in objectionable conduct. In fact, the Petitioner engaged in objectionable conduct.
The hearing officer recommended overruling the challenge to the ballot and sustaining
the Employer’s Objection. However, he recommended opening and counting the challenged
ballot only if the Board disagreed with his recommendation to sustain the Employer’s Objection.
If the Board agreed with the latter recommendation, he recommended that the election be set
aside and a new election be conducted.
Contrary to the hearing officer, the proper procedure is to open and count the challenged
ballot and then determine whether the election should be set aside and a new election conducted.
See, e.g., Skyline Builders, Inc., 340 NLRB 109, 110 (2003); Hospital del Maestro, 323 NLRB
93, 95 (1997); Pine Shores, Inc., 321 NLRB 1437, 1437 (1996). “In these circumstances, to
direct a second election, regardless of the outcome of the election tally, would in effect benefit
the wrongdoer[] . . . .” Pine Shores, above at 1437. Accordingly, consistent with Board
precedent, we shall direct that the challenged ballot be opened and counted. If the Petitioner
prevails in the revised tally, the Regional Director shall conduct a second election. If the
Petitioner does not prevail, the Regional Director shall issue a certification of results.

3 We agree with the hearing officer’s recommendation to sustain the Employer’s
Objection. The Petitioner’s grant of healthcare benefits to employee Sean Feigley during the
critical period constituted objectionable conduct. See, e.g., Mailing Services, 293 NLRB 565
(1989) (free medical screenings during critical period objectionable); Wagner Electric Corp.,
167 NLRB 532 (1967) (free life insurance during critical period objectionable).
Member Schiffer agrees that the Petitioner’s conduct is objectionable based on the
hearing officer’s findings, including credibility determinations, that Feigley was not entitled to
benefits under the Petitioner’s healthcare benefits plan, that there was no past practice of
granting employees of non-signatory employers healthcare benefits, and that the Employer
continued to provide healthcare benefits after the expiration of the Sec. 8(f) agreement. She does
not endorse the hearing officer’s interpretation of Turnberry Isle Country Club, 253 NLRB 416
(1980).
DIRECTION
IT IS DIRECTED that the Regional Director for Region 4 shall, within 14 days from the
date of this Decision and Direction, open and count the ballot of Jayson Weir. The Regional
Director shall then prepare and cause to be served on the parties a revised tally of ballots.
IT IS FURTHER DIRECTED that if the revised tally of ballots shows that the Petitioner
has not received a majority of the valid ballots cast, the Regional Director shall issue a
certification of results. If, however, the revised tally shows that the Petitioner has received a
majority of the ballots cast, the Regional Director shall set aside the election and conduct a new
election when he deems the circumstances permit the free choice of a bargaining representative.
Dated, Washington, D.C., July 1, 2014

___________________________________
Philip A. Miscimarra, Member
___________________________________
Harry I. Johnson, III, Member
___________________________________
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD