J.R.T.S Limited, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 970 (N.L.R.B. 1998)

970
325 NLRB No. 179
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the hearing officer’s finding that the Union’s pay-
ments to its election observers did not constitute objectionable con-
duct, we rely on the absence of any evidence that any employees
other than the two observers learned of the payments before casting
their ballots. Given the margin of the Union’s victory in the election,
the payments to the observers could not have affected the election
outcome. This case is therefore distinguishable from precedents re-
lied on by the Employer. See Sunrise Rehabilitation Hospital, 320
NLRB 212 (1995) (excess transportation payments objectionable
where offered to all unit employees and linked to employer’s anti-
union message); S & C Security, 271 NLRB 1300 (1984) (payment
to observer objectionable where a shift of his vote could have af-
fected outcome of election that union won 26–24); Easco Tools, 248
NLRB 700 (1980) (payments to two observers objectionable where
union won 13–11).
In adopting the hearing officer’s finding that union agents’ con-
versations with employees during the mail balloting period did not
constitute ‘‘speeches’’ to ‘‘massed assemblies of employees’’ objec-
tionable under the rule of Peerless Plywood Co., 107 NLRB 427
(1953), we need not rely on the hearing officer’s additional state-
ment that no evidence was introduced showing that the parties had
been given notice of the effective date of the mail balloting.
J.R.T.S. Limited, Inc., Employer and United Trans-
portation Union, Petitioner. Case 12–RC–8129
June 30, 1998
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
DECISION AND CERTIFICATION OF
REPRESENTATIVE
The National Labor Relations Board, by a three-
member panel, has considered objections to a mixed
mail and manual election held from August 8 to Sep-
tember 3, 1997, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 88 for and 54 against the
Petitioner, with 11 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings and recommendations, and finds that a certifi-
cation of representative should be issued.1
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been case for the United Transportation
Union and that it is the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:
All full-time and regular part-time bus drivers em-
ployed by the Employer out of its Brandon, Flor-
ida headquarters, excluding all other employees,
guards and supervisors as defined in the Act.
MEMBER HURTGEN, concurring.
I agree with my colleagues that the payments to the
observers were not objectionable.
I do not pass on whether the payments would have
been objectionable if word of such payments had
spread to a determinative number of employees prior
to the election. However, I wish to state that I do not
agree with the suggestion in Quick Shop Markets, 200
NLRB 830 (1972), that a party’s payment to an ob-
server-unit employee is objectionable if it is ‘‘grossly
disproportionate’’ to that person’s regular rate of pay.
Rather, I think that the test should be whether the
payor-party has a reasonable and rational policy re-
garding such payments. If it did, I would find no ob-
jectionable conduct, even if the payment is substan-
tially more than the employee regularly makes. As the
Board conceded in Quick Shop: ‘‘Because an observer
is not, as an observer, doing what he usually does,
there is no logical basis for saying the two jobs must
be paid at the same rate.’’ I would only add that there
is no reason to even compare the two rates.
I also concur with respect to the dismissal of the
Employer’s Objection 3. However, I note that the hear-
ing officer seemingly presumed—in the absence of evi-
dence to the contrary—that the Region did not give the
parties notice of the effective dates of the mail ballot-
ing. Contrary to the hearing officer, I would presume
that normal procedures were followed (i.e., notices
were given), unless a party establishes the contrary.
Having presumed that the proper notices were sent, I
nonetheless agree that the Employer’s Objection 3
should be overruled.
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