United Cerebral Palsy

National Labor Relations Board - Board Decisions

Oct 30, 1998

327 N.L.R.B. 40 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40
United Cerebral Palsy Association of Niagara
County, Inc. and Yvonne Page, an Individual
Petitioner, and AFL–CIO Hospital & Nursing
Home Council. Case 3–UD–184
October 30, 1998
DECISION AND DIRECTION
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to and determi-
native challenges in a deauthorization election held Feb-
ruary 5 and 6, 1998, and the Regional Director’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows that of approximately 141 eli-
gible voters, 111 cast ballots, of which 68 were cast in
favor of the proposition to withdraw the authority of the
Union, under its agreement with the Employer, to require
that employees make certain payments to the Union in
order to retain their jobs; 38 ballots were cast against this
proposition; and 5 ballots were challenged, a sufficient
number to affect the results of the election.1
The Board has reviewed the record in light of the ex-
ceptions and brief and adopts the Regional Director’s
findings2 and recommendations.
We adopt the Regional Director’s findings and analy-
sis of Objection 3 that a new election is required under
Kalin Construction Co., 321 NLRB 649 (1996). Under
the rule established in Kalin, if a valid objection is filed,
an election will be set aside where the employer changes
the “paycheck process” during the period beginning 24
hours before the scheduled opening of the polls, absent a
showing that “the change was motivated by a legitimate
business reason unrelated to the election.” Here, the
Employer made three changes to the “paycheck process,”
as defined in Kalin. Thus, on the first day of polling, the
Employer: (1) accelerated the time at which checks were
made available to employees; (2) changed the distribu-
tion site from individual workplaces to the polling loca-
tions; and (3) changed the individuals who distributed
checks. Further, the Employer offered no business justi-
fication unrelated to the election to justify the changes.
On the contrary, the Employer’s proffered reason for the
change—employee convenience—relates directly to the
election. Finally, as found by the Regional Director, the
changes were particularly significant because of their
foreseeable effect of enhancing voter turnout, a critical
fact in deauthorization elections where a majority of eli-
gible voters must vote for deauthorization in order for
that proposition to prevail.3

1 In a deauthorization election a majority of the eligible voters must
vote in favor of deauthorization in order for it to prevail.
2 There were no exceptions to the Regional Director’s recommenda-
tion to overrule the challenge to the ballots of Yvonne Page, Meghan
Wielgus, and Dennis Lynk and to sustain the challenge to the ballot of
Zelice Caldwell. There was also no exception to the Regional Direc-
tor’s recommendation that the challenge to the ballot of Thomas C.
Weston, Sr., be held in abeyance pending resolution of a pending griev-
ance over his discharge and the charge in Case 3–CA–21159.
The Union withdrew its Objection 1, and no exceptions were filed to
the Regional Director’s recommendation to overrule its Objections 2, 5,
7, and 8.
By stressing the foreseeable effect of the Employer’s
changes on voter turnout, we so not suggest that we dis-
agree with our dissenting colleague’s assertion that
maximum voter participation in Board-sponsored elec-
tions is a laudable goal. However, the Board must pro-
tect employee free choice in all voting decisions. As the
Board held in Kalin, employees’ paychecks are a singu-
larly powerful symbol of their economic dependence on
the employer, so any changes in how those paychecks are
distributed, especially if they occur just before the elec-
tion, are likely to have a particularly strong influence on
employee sentiments. Id. at 652. Thus, the Employer
interferes with employee free choice by making any
changes in this process that are related to any facet of the
election, including voter turnout.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 3, shall, within 14 days of this Decision and Direc-
tion, open and count the ballots of Yvonne Page, Meghan
Wielgus, and Dennis Lynk and thereafter prepare and
cause to be served on the parties a revised tally of ballots.
In the event that the revised tally of ballots shows that a
majority of the eligible voters have not voted to deau-
thorize the Union, and that the challenged ballot of Tho-
mas C. Weston Sr. would not be determinative, the Re-
gional Director shall issue a certification of results.
IT IS FURTHER DIRECTED that, in the event that
the challenged ballot of Thomas C. Weston Sr., should
be determinative on the issue of deauthorization, the Re-
gional Director shall hold the disposition of this chal-
lenged ballot in abeyance pending the outcome of the
unfair labor practice proceeding involving Weston.
Finally, in the event that the revised tally of ballots
(following disposition of the challenge to Weston’s bal-
lot) reflects that a majority of eligible employees have
voted to deauthorize the Union, IT IS DIRECTED that
the February 5 and 6, 1998 election shall be set aside and
that the Regional Director shall conduct a new election in
conformance with the following Direction.
[Direction of Second Election omitted from publica-
tion.]

MEMBER HURTGEN, dissenting in part.
My colleagues conclude that if, after tabulation of the
challenged ballots, a majority of the unit employees have
voted to deauthorize the Union, the election should be set
aside based on Objection 3. I disagree. Instead, in the
event the revised tally shows that a majority of eligible
3 In light of this finding, we find it unnecessary to pass on the Re-
gional Director’s alternative recommendation that a hearing be con-
ducted on the Union’s Objections 4 and 6.
327 NLRB No. 14
UNITED CEREBRAL PALSY ASSN. OF NIAGRA COUNTY 41
employees voted for deauthorization, I would overrule
Union Objection 3 and remand this case for a hearing on
its Objections 4 and 6.1
In Objection 3, the Union alleged that the Employer
interfered with the election by making changes to the
“paycheck process” during the election as proscribed in
Kalin Construction Co., 321 NLRB 621 (1996). The
Regional Director recommended, and my colleagues
find, that under Kalin’s per se test, the election must be
set aside based on Employer changes to the place, time,
and distributors of paychecks of February 5, 1998. The
Regional Director held that it was irrelevant that the
changes were undertaken for the convenience of the vot-
ers. I do not agree.
Under Kalin, a change in the paycheck process, related
to the election and implemented in the period beginning
24 hours before the election, is per se objectionable.
Such matters as motive, justification, and circumstances
are irrelevant. I disagree with Kalin. I adopt the dissent
therein and its rationale. I need only add a few further
thoughts.
The pre-Kalin rule (looking at all of the facts and cir-
cumstances) is particularly appropriate here. In the in-

1 No exceptions were filed to the Regional Director’s recommenda-
tion to conduct a hearing on these objections.
stant case, the motive, justification, and circumstances of
the change make it clear that the Employer was simply
trying to enhance voter turnout. Thus, the application of
the per se test yields a particularly anomalous result
herein. A cherished goal of industrial democracy, viz.
maximum employee participation in the election, be-
comes a victim of the Kalin per se rule. The Employer
changed the paycheck process in order to enhance the
prospects of voter participation, and that change is now
condemned as objectionable.2
Finally, I recognize that, in a “UD” election, enhanced
voter turnout can be said to favor the party who seeks
deauthorization. This is because deauthorization requires
the affirmative vote of a majority of all unit employees.
However, this principle is simply the embodiment of the
relevant Section 8(a)(3) proviso. It does not change the
more fundamental goal of having maximum voter turn-
out in all elections. Consistent with this goal, the Em-
ployer had the same paycheck arrangement in the “RC”
election in 1996.
In sum, I disagree with Kalin, and I find that its appli-
cation to this case is especially pernicious.

2 There is neither evidence nor claim that the changes were accom-
panied by unlawful threats, inducements, or even campaign rhetoric.