S & C Security

National Labor Relations Board - Board Decisions

Aug 30, 1984

271 N.L.R.B. 1300 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S & C Security, Inc. and International Union,
United Plant Guard Workers of America
(UPGWA). Case 5-RC-12048
30 August 1984
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board, by a three-
member panel, has considered an objection to an
election held 7 and 8 October 1983 and the hearing
officer's report recommending disposition of it. The
election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 26
for and 24 against the Petitioner, with no chal-
lenged ballots.
The Board has reviewed the record in light of
the exceptions and brief, and has adopted the hear-
ing officer's findings and recommendations only to
the extent consistent herewith.
The Employer's objection alleged, inter alia, that
the Union and/or its agents made improper pay-
ments to employees to induce them to vote for the
Union. The hearing officer concluded that the evi-
dence was insufficient to establish that the Union
paid, or even promised to pay, employee Heath for
his services as an election observer on 7 October
1983. We agree that the evidence is insufficient to
establish that the Union paid, or expressly promised
to pay, Heath. Nevertheless we conclude, contrary
to the hearing officer, that the election should be
set aside for the following reasons.'
It is undisputed that Heath received about $50
from the Union for serving 2 hours as one of its
election observers in the previous election held in
1982. Prior to the election in 1982 a union repre-
sentative told Heath he would be paid and, after
the election, Heath submitted a voucher and was
paid about $50. Prior to the 1983 election Heath
was approached by Chambers, the employee who
had initially contacted the Union in 1983, who
asked him if he wanted to serve as an observer.
Both Heath and Chambers testified that Heath was
contacted in 1983 because he had been an observer
in 1982, and that payment of money for the 1983
election was not mentioned. Thus Heath was un-
aware of any changes in the previous year's ar-
rangement. Just as he had in 1982, Heath arranged
to come in on his day off and serve for 2 hours as
an observer for the 1983 election.
I In view of our decision herein, we find it unnecessary to pass on the
portion of the Employer's objection which alleges that the Union and/or
its agents interfered with the election by informing other unit employees
of the alleged payments.
271 NLRB No. 211
As noted by the hearing officer, in addition to
his conversation with Chambers Heath spoke with
two other employees and a supervisor about his
acting as a union observer. Heath testified that just
prior to the election, while employee Fife and he
were riding to work in Fife's car, he asked Fife if
he would like to be an observer. Fife had been bor-
rowing money from Heath and according to Heath
appeared to be "a little hurting for money." Heath
testified he told Fife that Fife would get paid for
being an observer. On the morning of the election
Heath discussed his acting as an observer with em-
ployee Wicker. Heath testified that he told Wicker
he had been paid the previous year, by the Union,
to serve as its observer. Similarly, Heath testified
that in a discussion sometime after the 1983 elec-
tion he told Supervisor Jones about being paid for
serving as an observer in the 1982 election. Fur-
ther, in testimony not noted by the hearing officer,
Heath, when asked by the hearing officer whether
he believed he would be paid to serve as an elec-
tion observer in 1983, admitted that he believed he
would get some money since he had "observed last
year and was paid. It was a natural assumption I
should get paid this time," although Heath further
stated he was unsure of the amount he would be
paid. We find it clear based on all his testimony,
and in view of the fact that Heath was paid about
$50 for serving as an observer in the prior election,
that Heath reasonably anticipated he would be paid
for serving as an observer in the 1983 election.
We further find that the Union, through Cham-
bers, led Heath to reasonably believe he would be
paid. In this regard we find that Chambers, who
solicited Heath to serve as an observer, was acting
as the Union's agent at least for that limited pur-
pose. Thus, Chambers testified that Schooley, a
union official, asked him to "line up" observers and
left the designation of the observers to Chambers.
When Chambers asked Heath to serve as an ob-
server, it is clear that the issue of payment was not
mentioned. Given the facts that the Union paid
Heath about $50 for serving as an observer in the
1982 election, that Heath's service in both elections
was for 2 hours on his day off, and the absence of
any statement to Heath by the Union that its prac-
tice with respect to payments to observers would
be different in 1983, we conclude that Heath rea-
sonably was left with the impression that he would
again be paid as an observer as he had been in the
prior election.
In Easco Tools, 248 NLRB 700 (1980), the Board
set aside an election where two union observers, a
number sufficient to affect the outcome of the elec-
tion, were paid 8 hours at $5 per hour, 75 cents an
hour more than their regular rate, to work about 1-
1300
S & C SECURITY
1/2 hours. In the present case it has not been estab-
lished that the Union paid, or expressly promised
to pay, Heath for his services, but this difference
from Easco is not significant where, as here, the ob-
server reasonably was led to believe that he would
be paid about $50 for acting as an observer for 2
hours as he had been under the previous arrange-
ment with the Union, and when, as here, the sum,
if paid, would have been grossly disproportionate
to the observer's normal hourly rate of $6.48. It is
questionable whether in these circumstances Heath,
whose vote is sufficient to affect the outcome of
the election, could have voted independently with-
out a sense of obligation to vote for the Union. As
the Board held in Easco, "The matter is not free
from doubt. But precisely because of that, we be-
lieve the integrity of our election processes is
better served by directing a new election in this
case."2 Accordingly, we sustain the Employer's
objection and we shall direct a second election.
[Direction of Second Election omitted from pub-
lication.]
2 Easco Tools, supra at 701.
MEMBER DENNIS, dissenting.
I disagree with the majority opinion. I consider
the evidence insufficient to establish that the Union
made improper payments to unit employees, as the
objections allege.
Testimony at the hearing focused on whether the
Union made payments to employee Heath, who
acted as an election observer. My colleagues in the
majority concede that the "evidence is insufficient
to establish that the Union paid, or expressly prom-
ised to pay, Heath" and that "it is clear that the
issue of payment was not mentioned" when em-
ployee Chambers asked Heath to serve as an ob-
server. Yet, my colleagues set aside the election on
their conclusion that Heath reasonably anticipated
he would be paid as he had been in an earlier elec-
tion and, consequently, it is questionable whether
he could have voted independently. I cannot agree
to set aside the election on such a basis. In my
view Heath's expectations, even if reasonable,
cannot substitute for evidence of union conduct.
I Absent evidence that the Union made or promised payments, I do
not reach the question whether the payment Heath anticipated would
have been improper if offered. I also do not consider the part of the ob-
jections that the majority does not pass upon.
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