Raleigh County Commission

National Labor Relations Board - Board Decisions

Jul 31, 2000

331 N.L.R.B. 924 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 924
Raleigh County Commission on Aging, Inc. and Dis-
trict 1199, The Health Care and Social Service
Union, SEIU, AFL–CIO, Petitioner. Case 9–RC–
17318
July 31, 2000
DECISION AND CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held December 1, 1999, 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 30 for and 41 against the Un-
ion, with 2 challenged ballots, an insufficient number to
affect the results.
The Board has reviewed the record in light of the ex-
ceptions and brief, and has decided to adopt the hearing
officer’s findings1 and recommendations2 only to the
extent consistent with this Decision and Certification of
Results of Election.
The hearing officer found that the Employer engaged
in objectionable conduct by announcing to employees, at
a mandatory meeting held two days before the election,
that the Employer would have a dinner for employees to
celebrate the Employer’s victory in the upcoming repre-
sentation election. For the reasons set forth below, we
disagree.
On November 29, 1999,3 the Employer held the last in
a series of mandatory employee meetings about the up-
coming representation election. At this meeting, the
Employer’s executive director, Jacqueline Reid, dis-
cussed the election and asked employees to vote against
the Union. Reid also told employees that the Employer
was going to have a dinner for them to celebrate (what
she anticipated would be) the Employer’s victory in the
upcoming election.4
By letter to its employees dated December 8 (1 week
after the election), the Employer thanked those employ-
ees who supported the Employer during the organizing
campaign, and announced “[a]s promised, we will have
our Victory Celebration and Christmas Dinner on Thurs-
day, December 16, 1999.” The dinner was held on De-
cember 16. About 30 unit employees attended, and
many of them brought guests. The dinner was fully ca-
tered and cost the Employer about $15.25 a person.

1 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.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule Objection 2.
3 All dates are in 1999 unless stated otherwise.
4 We find no merit to the Employer’s contention that the hearing of-
ficer failed to properly consider the testimony of witnesses who testi-
fied that Reid’s announcement of the dinner had nothing to do with the
union election or its outcome. We find that the hearing officer credited
the testimony of those witnesses, including Reid, who testified that
Reid linked the dinner announcement to the hope and anticipation that
the Employer would win the election.
The hearing officer found that the Employer’s preelec-
tion announcement of the dinner was objectionable. Not-
ing that the Employer had never held such a dinner in the
past, the hearing officer rejected the Employer’s conten-
tion that the dinner was held as a Christmas dinner. The
hearing officer found the instant facts analogous to those
in B & D Plastics, Inc., 302 NLRB 245 (1991), where
the Board found that an employer engaged in objection-
able conduct by giving employees a day off, with pay, 2
days before the election in order to attend a cookout.
The hearing officer found Reid’s announcement to be
similarly objectionable because it was made 2 days be-
fore the election and was offered to all bargaining unit
employees as an inducement to vote against the Union.
Relying on the fact that the dinner was fully catered and
cost the Employer $15.25 per person, the hearing officer
found that the dinner could be viewed as a substantial
benefit to these employees, who earn little over $5 an
hour.
Contrary to the hearing officer, we find that Reid’s an-
nouncement was not objectionable. The Board has long
held that a promise to supply food and beverages at a
postelection victory party is not necessarily coercive or
destructive of an atmosphere in which a free choice can
be made. E.g., Movsovitz & Son, Inc., 194 NLRB 444
(1971) (union representative’s promise to buy beer and
whiskey for employees “after the [u]nion won the elec-
tion” not objectionable). See also NLRB v. L & J
Equipment Co., 745 F.2d 224, 231–232 (3d. Cir. 1984)
(union’s promise to hold a dinner dance for all employ-
ees in the event of a union victory not objectionable be-
cause the effects of such a celebration would be of such
limited duration that it would not “substantially influence
employees in a decision having a major effect on their
working lives”).
Here, as the hearing officer found, Reid’s announce-
ment of “a dinner” was solely linked to the idea of cele-
brating an anticipated victory by the Employer in the
election. The announcement included no details about
the dinner, and made no promise of anything of signifi-
cant value. Although it was clear from the announce-
ment that a meal of some sort would be served, the only
detail conveyed by this announcement was that the pur-
pose of the event would be to celebrate the Employer’s
victory.
We disagree with our dissenting colleague that any
mention of a victory party is an objectionable promise of
benefit because of the food or drink that would presuma-
bly be served. Our colleague’s contention misses the
331 NLRB No. 119
RALEIGH COUNTY COMMISSION ON AGING 925
point that, to the extent this announcement would rea-
sonably have any appeal to employees, the appeal is not
the refreshments, but rather the opportunity to celebrate
the Employer’s victory. In these circumstances, the food
and drink is incidental to the opportunity to participate in
the event.5 In our view, the announcement cannot rea-
sonably be viewed as anything more than a “legitimate
form of campaign propaganda.” R. H. Osbrink Mfg. Co.,
114 NLRB 940, 942 (1955).6
The hearing officer erred in relying on the fact that the
dinner was fully catered and cost the Employer $15.25 a
person. No such details about the dinner were an-
nounced to the employees prior to the election, and thus
they could not have influenced employees’ votes.
We also disagree with the hearing officer’s reliance on
B & D Plastics, Inc., supra. The conduct at issue in that
case involved a clearly granted benefit, in the form of a
paid day off, 2 days before the election. It was not dis-
puted that the sole purpose of this benefit was to enable
employees to attend a preelection cookout where the em-
ployees could hear the employer’s final antiunion mes-
sage of the campaign. In finding that conferring the paid
holiday to employees was objectionable, the Board rea-
soned that employees in such circumstances would rea-
sonably construe the day off as an inducement to vote in
favor of the employer’s position.
Conversely, as noted above, Reid’s announcement of a
victory dinner did not promise anything of a significant
value. Unlike B & D, the employees here were not told
that they would be paid for their time at the dinner. In-
asmuch as there was no mention of any details about the
dinner, it is difficult to imagine such an announcement
having any influence on employees’ votes one way or
another. In these circumstances, it is clear that Reid’s
announcement of a victory dinner is quite different from
the employer’s conduct in B & D.
In sum, we find that the Employer did not engage in
objectionable conduct by announcing the intent to have a
victory dinner after the election. Accordingly, we shall
issue a certification of results of election.

5 For this reason, we find the instant case distinguishable from
Crestwood Manor, 234 NLRB 1097 (1978), which our dissenting col-
league contends supports his position. In that case, the union’s prom-
ised raffle could reasonably be appealing to an employee regardless of
whether the employee would have otherwise supported the union. For
the reasons stated above, the instant victory party—even with food—
does not carry a similar appeal.
6 We recognize that in Trencor, Inc. v. NLRB, 110 F.3d 268 (5th Cir.
1997), the Fifth Circuit reversed the Board’s finding that a hearing on
objectionable conduct was not warranted on an employer’s allegation
of an announcement by the petitioner union that if the union won the
election it would host “the biggest party in the state of Texas.” To the
extent that that announcement could have reasonably suggested an
event of great extravagance, that case is distinguishable from the instant
conduct. However, insofar as the Fifth Circuit’s decision can be con-
strued as holding that any announcement of a postelection victory party
with food and beverages is objectionable, we respectfully disagree with
that decision.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for District 1199, The Health Care and So-
cial Service Union, SEIU, AFL–CIO, and that it is not
the exclusive representative of these bargaining unit em-
ployees.

MEMBER HURTGEN, dissenting.
Contrary to my colleagues, I find that the Employer
engaged in objectionable conduct by promising employ-
ees, shortly before the election, that it would provide
them with a dinner if the Employer won that election. I
find that this offer constituted an inducement to employ-
ees to vote for the Employer, which inducement would
reasonably interfere with employee free choice. Accord-
ingly I would set aside the election.
As more fully set forth in the hearing officer’s report,
the Employer conducted the final in a series of manda-
tory employee meetings, 2 days before the election. Dur-
ing that meeting, in which it urged employees to reject
union representation, the Employer announced that it
would provide employees with a dinner to celebrate an
election victory by the Employer. One week after the
election—which the Employer won—the Employer
wrote its employees, stating that “[a]s promised, we will
have our Victory Celebration and Christmas Dinner on
Thursday, December 16.” The letter stated that the din-
ner would be held at the local armory and that each em-
ployee could bring, at no cost, a guest. The dinner was
held, as promised. It was a catered dinner at which door
prizes were awarded. The cost of the affair was $15.25
per person.
The hearing officer found that the announcement of a
victory dinner to employees, shortly before the election,
was objectionable because it constituted an inducement
to vote against the Union. The hearing officer particu-
larly noted that the offer was made to all unit employees,
shortly before the election, in the context of an antiunion
campaign meeting where attendance was required.
My colleagues reverse, concluding that the Employer’s
promise of a postelection victory celebration was “a le-
gitimate form of campaign propaganda,”1 and was thus
unobjectionable. See, e.g., Movsovitz & Son, Inc., 194
NLRB 444 (1971). I disagree. Consistent with prior
Board law, as set forth by the Fifth Circuit Court of Ap-
peals in Trencor, Inc. v. NLRB, 110 F.3d 268 (1997), I
find that the Employer’s announcement interfered with
the election.
The instant case is to be distinguished from those in-
volving preelection campaign parties. Such preelection
functions may be appropriate because they are designed
to “induce employees to hear the message of the sponsor
and because they are not conditioned on the sponsor’s
1 R. H. Osbrink Mfg. Co., 114 NLRB 940, 942 (1955).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 926
victory.” Trencor, 110 F.3d at 270 fn. 2. (Emphasis
added.)
In the instant case, the benefit was conditioned on the
sponsor’s victory. In essence, the employees were told
that defeat of the union would result in a benefit, while
victory of the union would result in no benefit.
In this regard, the evidence shows that the benefit was
conditional. That is, the Employer’s promise of an em-
ployee dinner was conditioned on the Employer’s pre-
vailing in the election. The Employer made the offer in
the course of its antiunion meeting, where it urged em-
ployees to vote against the Union. It also termed the
event a “victory” dinner to celebrate its winning the elec-
tion. In these circumstances, it was clear that the dinner
would be given if the Employer won the election. This
interpretation is consistent with employees’ testimony
that they understood the Employer to be promising the
dinner if the Employer prevailed. Further, this interpre-
tation was reinforced by the Employer’s December 8
letter, thanking those employees who had supported the
Employer during the organizing campaign, and announc-
ing “as promised” the specifics of the “victory” dinner.
Finally, even if the Employer’s intention was to have the
party even if it lost, employees could reasonably under-
stand the contrary. That is, a reasonable interpretation of
the Employer’s offer was that it was conditional. NLRB
v. L & J Equipment Co., 745 F.2d 224, 232 fn. 9 (3d Cir.
1984) (“[A]ny such promise is prima facie to be pre-
sumed contingent upon a victory, since the notion of a
union-sponsored party in the event of a union defeat
seems silly.”)
Next, I find that the dinner reasonably would be
viewed by unit employees as a benefit. The majority
argues that the specifics of the dinner were not an-
nounced before the election, and thus the precise cost-
per-person to be borne by the Employer was not known
by the employees. However, the precise amount of the
benefit is not a necessary element of the objection.
Where, as here, a benefit is conditioned upon the election
result, it is sufficient (for objection purposes) to show
that there is some benefit. That is, compared to the
“zero” amount that the employees would receive if the
Union won the election, the employees would realize that
they would receive “something” if the Union lost.
The foregoing point has been made by the Board itself.
Indeed, the court in Trencor cited the Board’s own rule
as follows.
The Board stated in Crestwood Manor, 234 NLRB
1097 (1978), that “the conditioning of the receipt of
benefits on favorable election results is impermissible
conduct for parties engaged in the election.”
The court also noted that “even minor inducements
conditioned on a union or company victory can be im-
proper.” See fn. 7.
The Court went on to say that “even the potential
benefit of $1.18 per employee was considered impermis-
sible by the Board.”
Crestwood Manor, supra, cited by the court, supports
my position. In Crestwood, the Board set aside an elec-
tion based on a union’s promise to hold an employee
raffle if it won the election. The Board found this prom-
ise objectionable because it conditioned receipt of bene-
fits on favorable election results. The Board clearly rec-
ognized the consequences of a contrary result:

[W]e might well envision future elections in which
employers and unions alike might be tempted to prom-
ise employees all sorts of inducements - raffles, prizes,
vacation trips, or whatever if their side won the elec-
tion. Such an intrusion into the election process would
be highly undesirable.

Id. at 1097–1098.
In sum, the amount of the benefit is not critical. It is
the conditioning of the benefit that is critical. In any
event, the party-dinner promised here would be viewed
by employees as significant. The employees here were
paid about $5 per hour, and received few or no benefits.
Thus, they reasonably would view the promise of an un-
precedented dinner as something of particular value. The
fact that the benefit was in “kind,” and not expressly
monetary, does not warrant a contrary result.2
As noted above, the Employer promised a victory din-
ner. It is axiomatic that food and drink are served at a
dinner. My colleagues assert that the promise is nonethe-
less privileged because “the appeal is not the refresh-
ments, but rather the opportunity to celebrate the Em-
ployer’s victory.” I disagree. The food and drink is a
benefit, and it is granted only if the employees vote
against the union. Further, the employees who voted for
the union will presumably not be celebrating the Union’s
loss. They will simply reap the benefits resulting from
the fact that their fellow employees voted against the
Union.
I also agree with the hearing officer that the Em-
ployer’s purpose in promising the postelection dinner
was to influence employee votes. In this regard, I note
that the dinner was announced shortly before the elec-
tion, during a mandatory meeting in which employees
were urged to reject the Union. See generally Lou Tay-
lor, Inc., 226 NLRB 1024, 1029 (1976), enfd. in relevant
part 564 F.2d 1173 (5th Cir. 1977). Even had that not
been the Employer’s express intent in announcing the
victory dinner, it was certainly reasonable for employees
to perceive that to be its purpose. In my view, the condi-
tional benefit in this context would reasonably interfere
with employee free choice. Indeed, such a promised
postelection victory dinner could present just the neces-

2 See Trencor, Inc. v. NLRB, supra, 110 F.3d at 273. Cf. NLRB v.
L & J Equipment Co., supra.
RALEIGH COUNTY COMMISSION ON AGING 927
sary edge for those employees who had not otherwise
made up their minds as to whether to support or oppose
the Union.
The cases cited by my colleagues (Movsovitz, Osbrink,
and L & J Equipment) were correctly distinguished by
the court in Trencor. In regard to Movsovitz and Os-
brink, see Trencor, supra, 110 F.3d at 270 fn. 2. In re-
gard to L & J, see Trencor, supra at 272. More particu-
larly, the court distinguished between cases where a pos-
telection party is conditioned upon how the employees
voted, and cases where a preelection party is held. The
court noted that it was questionable whether a condi-
tional promise was made in Movsovitz, and criticized the
Board for confusing the “conditional promise” cases with
the “pre-election party” cases. Further, unlike L & J
Equipment, there is nothing in the instant case to suggest
that the victory party was to lay the groundwork for a
productive union-employee relationship. To the con-
trary, a victory party here would be held only if the union
had lost the election. Finally, contrary to my colleagues’
selective citation to Osbrink, the Trencor court also cor-
rectly noted that, in that case—unlike here—there was a
very real question as to whether a conditional promise of
a postelection benefit had even been made. Thus, the
Board noted in Osbrink that the Regional Director had
rejected the employer’s argument that the union told the
employees that there could be no victory party unless the
union won the election, and instead concluded that that
the union literature referencing the party was “a legiti-
mate form of campaign propaganda.” Further, the Board
noted that there were no exceptions to the Regional Di-
rector’s factual findings. 114 NLRB at 942.
Based on all of the above, I find that the Employer’s
promise of a postelection employee dinner if the Union
were defeated constituted objectionable conduct. There-
fore, I would set aside the election and direct a second
one.