Young Men'S Christian Association Of San Francisco-Embarcadero Branch

National Labor Relations Board - Board Decisions

Nov 23, 1987

286 N.L.R.B. 1052 (N.L.R.B. 1987)

1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Young Men 's Christian Association of San Francis-
co-Embarcadero Branch and Service Employees
Union Local 87, S.E.I.U., AFL-CIO, Petition-
er. Case 20-RC-15921
23 November 1987
DECISION AND DIRECTION
BY MEMBERS JOHANSEN, CRACRAFT, AND
STEPHENS
The National Labor Relations Board, by a three-
member panel, has considered objections to and de-
terminative challenges in an election held 4 De-
cember 1985 and the hearing officer's report rec-
ommending disposition of them. The election was
conducted pursuant to the Acting Regional Direc-
tor's Decision and Direction of Election. The tally
of ballots shows 14 votes for and 17 votes against
the Petitioner with 19 determinative challenged
ballots. i
The Board has reviewed the record in light of
the exceptions and brief and has adopted the hear-
ing officer's report2 as modified by this Decision
and Direction.
The hearing officer found merit in the Petition-
er's Objection 5 that alleged that the Employer's
offer to pay and the subsequent payment of 2
hours' wages to those employees who were not
scheduled to work on election day but came in to
vote, interfered with the election. We disagree, for
the reasons set forth below.
Prior to the 4 December 1985 election, the Em-
ployer disseminated to all employees an "Election
Notice" (not an official NLRB notice of election),
which read as follows:
ELECTION NOTICE
Finally, a new election date has been estab-
lished replacing the original date that had to
be cancelled because of frivolous charges
placed against the YMCA by Local 87.
Hopefully, the election will be conducted on
the date scheduled and there will be no stall
tactics by Local 87.
DATE: December 4, 1985
TIMES: TO BE ANNOUNCED
PLACE: EMBARCADERO YMCA
THOSE ELIGIBLE: All regular full-time
and part-time employees at the Embarcadero
YMCA, excluding room attendants, janitors,
i The Regional Director sustained 2 of the challenged ballots, leaving
17 to the heanng officer's determination
2 In the absence of exceptions , we adopt pro forma the hearing offi-
cer's recommendation that the challenges to 10 ballots be sustained and
that the challenges to 7 ballots be overruled and that the Petitioner's Ob-
jections 1, 2 , 3, 4, 6, 7, and 8 be overruled
summer camp counselors, work study students,
volunteers, confidential employees, profession-
al employees and supervisors.
Keeping Local 87 out will take the support
of all eligible employees. Plan now to vote.
The election will be decided by a majority of
those who vote, not by a majority of those eli-
gible.
If you are not scheduled to work the day of
the election, the YMCA will pay two hours of
wages to all employees who come in to vote
(be sure to punch in and out). This is to cover
your transportation and time costs.
Plan now to vote!
PROTECT YOUR FUTURE-VOTE-
VOTE NO!!
The hearing officer found that at least 15 persons
took advantage of this offer. Employees not sched-
uled to work punched in and out to indicate that
they had come in to vote. Those who did so were
paid for 2 hours' wages even though they were at
the YMCA for only a few minutes. Payment was
calculated from entries on timecards and was not
made until the next regular payday after the elec-
tion . There was no allegation that the Employer
conditioned payment on how the employees voted
nor that the Employer tried to ascertain how the
employees voted.
The Employer did not know whether the em-
ployees actually voted, only that they came in
during the election period.
The hearing officer rejected the Employer's ar-
gument that the payment was comparable to fur-
nishing free transportation to employees to the
polls or to "lunch money" to employees attending
preelection meetings. Rather, the hearing officer
found that the monetary offer appeared designed to
tip the balance of a close election in favor of the
Employer, relying on recent Board cases finding
gifts or raffle prizes can constitute economic inter-
ference even when not conditioned on a favorable
vote by the employees.3 We disagree. After closely
examining the particular facts of this case, we find
that the moneys paid did not constitute a substan-
tial benefit that would influence votes, but rather
were a reasonable reimbursement for transportation
and time costs.4 The bargaining unit here included
3 Owens-Illinois, Inc, 271 NLRB 1235 (1984), Gold Bond Building Prod.
ucts, 280 NLRB 1003 (1986)
4 Contrary to our dissenting colleague, we do not believe that because
the employer did not ascertain the employees' actual transportation ex-
penses or the amount of time consumed in coming to vcte, a substantial
portion of the payment was likely to appear to be a payment to vote Nor
do we find the amount of money paid here to be controlling or as sub-
Continued
286 NLRB No. 98
YOUNG MEN'S CHRISTIAN ASSN 1053
part-time employees rendering specialized services
on an infrequent but regular basis and resulted in
obvious difficulties arranging an election when all
members of the bargaining unit would be working.
The employees in this case were required to
expend time and money to vote; the wages com-
pensated them for their cost of getting to the poll-
ing site rather than bestowing on them a windfall
or bonus, and the employees had no reason to be at
the facility except to vote. In view of the limited
hours that some of these employees worked, it can
reasonably be inferred that they had to take time
off from their normal activities , possibly from other
employment, to come to vote. It is well established
that an employer may, on a nondiscriminatory
basis, provide free transportation to employees to
the polling site.5 It has also been held that a
union's payment of cash for gas to carpool drivers
to transport other employees to vote was not un-
lawful.6 We agree with the Employer that this case
is closely aligned with the cases which hold that
furnishing transportation to employees is not objec-
tionable.7
stantial as the dissent seems to imply Only one employee , Ji Hwa Chen,
received $37, and her vote was successfully challenged There was no
evidence that any other employee received more than $20
The facts of this case were unusual in that there were many part-time
employees who worked only a few hours each pay period There ap-
peared to be no reasonable way for the Employer to provide actual trans-
portation nor to schedule the election at a time when all employees who
were working vaned schedules would be there to vote In order to vote,
these employees were using their own time i o come whatever distance at
whatever expense when they had no other reason to be at the facility
The amount of money paid was aimed at compensating them for their
time as well as out-of-pocket costs in coming to the polls and was not so
grossly disproportionate as to reasonably tend to influence their vote Its
stated purpose was to cover time and transportation and it was paid on a
nondiscriminatory basis Given the circumstances of this particular case,
we find it unreasonable to assume that employees would tend to feel obli-
gated to vote against their own interests of convictions. We do not see
the payment as a substantial benefit or a gift which tended to influence
the outcome of the election
We also do not find that the juxtaposition of the payment offer with
the Employer's statement of the need to keep the Union out would tend
to put employees leaning toward union support in an uncomfortable posi-
tion It is unfortunate that the Employer combined the offer to pay with
an exhortation to vote against the Union However, the Employer made
no attempt to find out whether or how the employees voted, nor to con-
dition the payment on the outcome of the election Payment was to be
made after the election , on the next paycheck to employees who came to
vote during their nonworking hours, regardless of the outcome of the
election
Although we agree with our dissenting colleague's summary of the
law, i e , that the appropriate objective teat is whether the conduct in
question reasonably tended to influence the election outcome in the Em-
ployer's favor , we do not agree that the conduct in this particular case
did so tend to influence the employees
5 Garner Aviation Service Corp , 114 NLRB 293 (1955), Gong Bell Mfg
Co, 108 NLRB 1314 (1954), E J Kelley Co., 99 NLRB 791, 792 ( 1952),
John S. Barnes Corp , 90 NLRB 1358 (1950), Charroin Mfg. Co, 88
NLRB 38 (1950), Hercules Motors Corp, 73 NLRB 650 (1947)
6 Federal Silk Mills, 107 NLRB 876, 877- 878 (1954)
r We agree with the hearing officer that Swift & Co, 13 NLRB 210
(1939), is distinguishable from the case at issue We also agree with the
hearing officer that it is immaterial that some of the paid voters may ulti-
mately be determined to be ineligible to vote or that they were not actu-
ally paid until after the election
For these reasons we find that the Employer's
offer to pay 2 hours' wages to employees not
scheduled to work who came in to vote and the
subsequent payment of those wages as promised, in
the circumstances of this case, did not constitute
unlawful interference with the election.
DIRECTION
IT IS DIRECTED that the Regional Director for
Region 20 shall, within 10 days from the date of
this Decision and Direction, open and count the
ballots of Beth Celani, Maria Li, Hilda Reiner,
Sydney Abrahams, Hideaki Hiraoka, Merill Jung,
and Carlos Bonilla . The Regional Director shall
then serve on the parties a revised tally of ballots
and issue the appropriate certification.
MEMBER STEPHENS , dissenting in part.
Contrary to my colleagues, I would adopt the
hearing officer's recommendation to sustain the Pe-
titioner Union's Objection 5 and order a new elec-
tion. That objection challenges the Employer's
payment of the equivalent of 2 hours' wages to em-
ployees "not scheduled to work the day of the
election" for the stated purpose of covering "trans-
portation and time costs" incurred in traveling to
the workplace to vote. Employees, receiving the
payments constituted more than 25 percent of the
eligible voters and more than 30 percent of those
who actually voted.
Several facts are, for me, especially salient. First,
so far as the record shows, the Employer made no
effort at all to ascertain what any given employee's
actual transportation expenses or the amount of
time consumed in coming to vote were. (So far as
the record shows, the Employer did not normally
pay transportation expenses simply for coming to
work.) Thus, in some cases a substantial portion of
the payment was likely to appear nothing more
than a payment to vote.'
Second, the sums of money paid here were not
insubstantial . As the hearing officer found, they
ranged from $10 to $37 (a few of the larger pay-
ments reflecting the fact that in those instances the
2-hour election-day payment was calculated at an
overtime rate because the employee had worked a
i Indeed , in several cases the hearing officer found that contrary to the
terms of the offer, employees who had already worked that day received
the extra 2 hours' pay In such cases, the payment would represent noth-
ing more than compensation for the few minutes spent in waiting in line
to vote and actually voting Even regarding employees who had not been
scheduled to work that day, it cannot reasonably be assumed that most of
the payment would go toward paying their transportation expenses As
noted below, many of the recipients normally worked only 2 or 4 hours a
week, so unless transportation expenses were modest in relation to 2
hours ' wages, we would have to make the unlikely assumption that the
employees were working at jobs that paid them little more than the cost
of getting to and from the workplace
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
full day at another employer facility). Their impact
was also a matter of the relation they bore to em-
ployees' customary wages. As the hearing officer
found, many of the beneficiaries were part-time
employees who regularly worked no more than 2
to 4 hours a week. Thus, many received the equiv-
alent of an additional week's paycheck.2
Third, the payment offer, which was made in an
"Election Notice" that the Employer disseminated
to all unit employees, followed immediately after a
paragraph in which the Employer made the fol-
lowing points:
Keeping Local 87 out will take the support of
all eligible employees. Plan now to vote. The
election will be decided by a majority of those
who vote, not by a majority of those eligible.
Although it is true that the Employer did not con-
dition payment on how an employee voted, the
juxtaposition of the payment offer with the point
about the need for the "support" of employees to
keep the Union "out" would reasonably tend to
place employees leaning toward support of the
Union in an uncomfortable position. They,_Would
have to choose among three unsatisfying courses of
action: (1) accepting the payment, voting for the
Union, and feeling like an ingrate who bit the bene-
factor's hand; (2) voting against the Union so as to
avoid any such feelings of guilt; and (3) foregoing
the payments and following their initial inclinations
in voting. For employees who had no strong incli-
nation one way or other, the choice would be sim-
pler; but the danger here, as the hearing officer
reasonably noted, is that apathetic voters who
would not otherwise be inclined to go to the polls
"will more likely favor the party making a mone-
tary offer."3
An observation from former Chairman Miller's
dissenting opinion in Quick Shop Markets, 200
NLRB 830, 831-832 (1972), is instructive in this
regard. In Quick Shop, the panel found unobjec-
tionable a union 's payment to six employees of
amounts equal to double their normal wage rate as
compensation for serving as the union's election
observers. In dissent, Chairman Miller stated (id. at
831-832):
In my view, any time an employer or a
union offers an observer an extra payment
over and above reimbursement at his regular
rate of pay plus expenses, there is a lurking
danger that, no matter how pure the heart of
8 As the hearing officer noted , this was one of several circumstances
that distinguishes this case from Swift & Co, 13 NLRB 210 (1939). My
colleagues in the majority and I all reject the Employer's argument that
Swift is controlling in this case
3 Cf. NLRB v Savair Mfg Co, 414 U S. 270, 277-278 (1973)
the payor, such payments will be regarded by
the recipient as a form of monetary induce-
ment to demonstrate his support of the paying
party's cause and also as an inducement to
secure his unspoken commitment to vote in the
manner desired by the payor.
Although in the present case, nearly all of the af-
fected employees received payments at only their
"regular" hourly rate, former Chairman Miller's
reasoning is applicable, because the payments rep-
resented something "extra," since all that the em-
ployees were required to do for them was show up
and vote.4
In relying on the foregoing facts to set the elec-
tion aside, I am applying the appropriate objective
test-whether the conduct in question has a "rea-
sonable tendency to influence" the election out-
come. NLRB v. Gulf States Canners, Inc., 585 F.2d
757, 759 (5th Cir. 1978), on remand 242 NLRB
1326 (1979), enfd. 634 F.2d 215 (5th Cir. 1981). I
am also relying on the direct relation between the
payment and the act of voting. I am well aware
that we have accorded some latitude to parties for
payments reimbursing employees' expenses in-
curred in the course of campaigning.5 But I think
strict scrutiny must be accorded payments directly
associated with the election itself. This, in my
view, is the key to Owens-Illinios, Inc., 271 NLRB
1235 (1984), in which the Board set aside an elec-
tion because of the union's distribution of $16 union
jackets to unit employees on election day between
voting sessions. 6 Under those circumstances, the
Board reasoned, even though the gift of a jacket
was not conditioned on how an employee voted,
the gifts "could well have appeared to the elector-
ate as a reward for those who had voted for the
Petitioner and as an inducement for those who had
not yet voted to do so in the Petitioner's favor."
Id. at 1235. I see the same danger here.
4 Although Quick Shop concerned payments to election observers
rather than payments to those who had merely to come vote, the prece-
dential value of the majority opinion has, I believe, been undermined by
the Board 's opinion in Owens-Illinois, Inc, 271 NLRB 1235 ( 1984), dis-
cussed below The rationale of the latter includes reasoning similar to
that of the Quick Shop dissent See also Easco Tools, 248 NLRB 700, 701
(1980) (noting that observers' compensation was such that they might
have felt a "sense of obligation to vote for the Petitioner")
5 See, e g, Aurora Steel Products, 240 NLRB 46 (1979), Gulf States
Canners, supra
I would read Owens-Illinois as not applying to distribution of jackets,
caps, or other regalia with a party's logo in advance of an election as
part of the campaign I also would distinguish cases in which parties have
either provided transportation to the voting site or have reimbursed em-
ployees for the expenses of transporting voters there See cases cited at
fns 4 and 5 of the majority' s opinion To the extent, however, that Feder-
al Silk Mills, 107 NLRB 876, 877-878 (1954), suggests that evidence con-
cerning employees' subjective understanding of payments is relevant, I
would not follow it As explained in Gulf State Canners, supra, the
proper standard is an objective one
YOUNG MEN 'S CHRISTIAN ASSN. 1055
In sum, under all the circumstances of this case, ited purpose; instead, the promised payments rea-
the Employer 's promised payments to "cover" em- sonably tended to influence the election outcome in
ployees' "time and transportation expenses" were the Employer's favor. For that reason I would set
not carefully restricted so as to serve only that lim- the election aside and direct a new election.