NLRB Sets Aside Election Results Due to Bonuses Paid During Critical Period

In SBM Management Services, 362 NLRB No. 144 (July 8, 2015), the National Labor Relations Board held that an employer’s distribution of bonuses to 11 employees in a bargaining unit of approximately 35 employees just days before a vote on union representation violated Section 8(a)(1) of the National Labor Relations Act and ordered that a new election be held.

The Board found that six days before the election, the employer held a meeting in which about 27 unit employees attended. Nine employees were recognized at the meeting for exemplary performance and received a surprise bonus check, eight in the amount of $100 and one in the amount of $75. Two other employees received a $100 bonus in the form of a gift card the next day—five days before the election. The bonus amount equaled approximately one-third of the employees’ regular weekly salary. The employer had never before distributed bonuses to any employee at the facility. Several days later, the employees voted against the union in a 20-8 vote.

In determining whether the employer engaged in objectionable conduct during the critical period, the Board applied the following standard set forth in United Airlines Services Corp., 290 NLRB 954 (1988):

In determining whether a grant of benefits is objectionable, the Board has drawn the inference that benefits granted during the critical period are coercive, but it has allowed the employer to rebut the inference by coming forward with an explanation, other than the pending election, for the timing of the grant or announcement of such benefits.

The Board found that the employer failed to rebut the inference that it was trying to influence the union vote as the employer provided no explanation as to why it could not wait until after the election to reward its employees with those bonuses. Accordingly, the Board set aside the results of the election and directed a second election.