Nu Skin International

National Labor Relations Board - Board Decisions

Apr 22, 1992

307 N.L.R.B. 223 (N.L.R.B. 1992)

223
307 NLRB No. 46
NU SKIN INTERNATIONAL
1 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
2 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendation to overrule Objections 1 and 2 and his find-
ing that employee Gunn, whose alleged actions pertained only to
Objection 1, was not an agent of the Union.
In adopting the hearing officer’s October 8, 1991 order denying
the Employer’s motion to reopen the record, we additionally note
that the evidence that the Employer wished to introduce was not
shown to have been previously unavailable.
3 The Union contends that, because its distribution of T-shirts was
not raised in an objection, the hearing officer erred in considering
whether this activity constituted objectionable conduct. We find,
however, that the hearing officer properly considered this issue be-
cause it was raised at the hearing not by the objecting party, the Em-
ployer, but rather through the Union’s own examination of witnesses
and, contrary to the Union, was fully litigated. See generally White
Plains Lincoln Mercury, 288 NLRB 1133, 1138 fn. 24 and accom-
panying text (1988); John W. Galbreath & Co., 288 NLRB 876, 878
(1988); cf. Iowa Lamb Corp., 275 NLRB 185 (1985).
4 The T-shirts carried the slogan: ‘‘The Best Things in Life are
Negotiable. UNION YES.’’ Between ‘‘UNION’’ and ‘‘YES’’ was a
square containing a check mark.
5 See R. L. White, Inc., 262 NLRB 575 (1982).
6 414 U.S. 270 (1973).
7 Id. at 277.
Nu Skin International, Inc. and Graphic Commu-
nications International Union, AFL–CIO, Peti-
tioner. Case 10–RC–14132
April 22, 1992
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held August 2, 1991, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 217 for and 200
against the Petitioner, with 16 challenged ballots, an
insufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs and adopts the hearing officer’s
findings1 and recommendations only to the extent con-
sistent with this decision.
We adopt the hearing officer’s recommendation that
the Employer’s Objections 3–4 and part of Objection
5 be overruled.2 However, we do not adopt the hearing
officer’s recommendation to sustain the portion of the
Employer’s Objection 5 concerning the Union’s dis-
tribution of T-shirts to employees.3
1. On the day before the election, the Union hosted
a free picnic luncheon for employees. The luncheon,
held during the first and second shifts’ mealbreaks,
took place in a parking lot adjacent to the Employer’s
facility. During the luncheon, union representatives
distributed ‘‘Union Yes’’ T-shirts.4 To receive a T-
shirt, employees were required to sign a prounion peti-
tion that was to be used as a handbill on election day.
The petition was headed ‘‘WE ARE VOTING YES
ON AUGUST 2ND!’’ and stated that the undersigned
employees agreed to openly support the Union and
asked their coworkers to join them.
The hearing officer found that, as the T-shirts—cost-
ing $4 or $5—were of nominal value, their free dis-
tribution in itself, under established precedent,5 was
not objectionable conduct. He further found, however,
that the Union’s inducing employees to sign the
prounion petition by requiring signing as a condition
of receiving a T-shirt constituted objectionable con-
duct. In so ruling, he analogized the T-shirt offer to a
union’s offering to waive initiation fees conditioned on
employees’ signing authorization cards. In NLRB v.
Savair Mfg. Co.,6 the Supreme Court found such a fee
waiver objectionable because it ‘‘allow[ed] the union
to buy endorsements and paint a false portrait of em-
ployee support during its election campaign.’’7 In find-
ing Savair applicable to the Union’s distribution of T-
shirts, the hearing officer concluded that the nominal
monetary value of the T-shirts was irrelevant, noting
that in Savair the waived initiation fee was a ‘‘nomi-
nal’’ $10.
Contrary to the hearing officer, we find Savair inap-
plicable to the Union’s offer of the T-shirts, as the T-
shirt offer differs from Savair’s fee-waiver offer in
several important respects. First, we do not agree that
the value of the fee waiver in Savair was irrelevant.
In Savair, the Court was concerned that the Union’s
offer of a fee waiver in exchange for employees’ sign-
ing union authorization cards amounted to the buying
of endorsements. The Court described the value of the
fee waiver as follows:
Under the bylaws of the Union, an initiation fee
apparently was not to be higher than $10; but the
employees who testified at the hearing (1) did not
know how large the fee would be and (2) said
that their understanding was that the fee was a
‘‘fine’’ or ‘‘assessment.’’ [414 U.S. at 274.]
Thus, in Savair the employees did not know the
amount of the initiation fee and feared it to be a fine
or assessment. Therefore, the inducement at issue in
Savair—avoiding an obligation to pay a fee or fine of
uncertain magnitude—was not understood to be some-
thing of only nominal value. Rather, the fee waiver in
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 We similarly reject the Employer’s contention, in its brief in op-
position to the Union’s exceptions, that the Union’s providing T-
shirts in conjunction with its providing the picnic luncheon unduly
influenced the employees’ vote. See R. L. White, Inc., above; Lach-
Simkins Dental Laboratories, 186 NLRB 671 (1970).
9 289 NLRB 736 (1988).
10 292 NLRB 1074 (1989).
11 The record indicates that photographs similarly were taken at an
employer-sponsored picnic held about 2 weeks before the Union’s
picnic.
Savair was understood as possibly having significant
monetary value.
By contrast, in the present case, it was undoubtedly
clear to all concerned that the T-shirts offered by the
Union were inexpensive items. As the hearing officer
properly found that the T-shirts were of such little
value that their free distribution in itself would not
interfere with employee free choice, it is a consider-
able leap to conclude that the offer of these ‘‘Union
Yes’’ T-shirts conditioned on employees’ signing a
prounion petition was an inducement tantamount to
buying endorsements.
Further, in Savair all employees, regardless of their
view on unions, had an economic interest in obtaining
the fee waiver that was offered as an inducement to
sign union authorization cards. The alleged inducement
here, however—the ‘‘Union Yes’’ T-shirts—would
reasonably be desirable only to employees who fa-
vored the Union and wanted to proclaim their prounion
view. Thus, contrary to the hearing officer, the Union’s
requiring employees to sign a prounion petition in
order to obtain a prounion T-shirt would not reason-
ably induce nonsupporters to sign the petition and
thereby allow the Union to paint a false portrait of em-
ployee support.
Finally, even assuming arguendo that the T-shirts
might be desirable to nonsupporters, the Union in that
event had a justifiable interest in trying to assure that
T-shirts were distributed only to employees who would
wear them as campaign paraphernalia in support of the
Union. Requiring employees desiring T-shirts to sign a
prounion petition was a reasonable means for the
Union to try to accomplish this objective. There was
no comparable protected interest in Savair to justify
the union’s limiting the fee waiver there to union sup-
porters. In sum, on these facts we find the rationale of
Savair inapplicable to the Union’s distribution of T-
shirts, and we overrule the portion of Objection 5 sus-
tained by the hearing officer.8
2. In Objection 4, the Employer contended that the
Union created an atmosphere of fear and coercion that
destroyed laboratory conditions by photographing em-
ployees at the picnic luncheon in violation of Pepsi-
Cola Bottling Co. of Los Angeles.9 Union representa-
tives took about 88 snapshots of employees attending
the Union’s picnic luncheon. In many of the photo-
graphs, employees posed for the camera, sometimes
displaying their union T-shirts. The hearing officer
found that the photographs were for the purpose of
memorializing the chicken meal and perhaps to publish
in a union newspaper. He found disingenuous two em-
ployees’ testimony that they were ‘‘concerned’’ or
‘‘felt funny’’ about their pictures being taken. In rec-
ommending overruling Objection 4, the hearing officer
found that the photographs were innocuous and that
the Union’s taking of them did not reasonably tend to
interfere with the employees’ free and uncoerced
choice in the election. We agree.
In adopting the hearing officer’s recommendation,
we find the photographing of employees at issue in
Objection 4 markedly different from the photographing
found objectionable in Pepsi-Cola and Mike Yurosek &
Son, Inc.10 In Pepsi-Cola, on the day before the elec-
tion, while a union rally was in progress in front of the
employer’s premises, a union representative appeared
to videotape at least two employees as they exited the
employer’s premises and were handed union leaflets.
No explanation for the videotaping was offered then or
at the hearing. Finding that the videotaping intruded on
the employees’ right to refrain from union activities,
the Board concluded that, in the absence of expla-
nation from the union, the employees could reasonably
believe that the union was contemplating future repris-
als against them.
In Mike Yurosek, almost every day during an elec-
tion campaign a union representative took photographs
of prounion and antiunion employees’ campaign activi-
ties at the employer’s entrance gate. The union rep-
resentative told an antiunion activist, ‘‘We’ve got it on
film; we know who you guys are . . . after the union
wins the election some of you may not be here.’’ Find-
ing the photographing objectionable, the Board noted
that no explanation of the photographing was provided
to assuage the employees’ fears and that the union rep-
resentative’s statement was arguably threatening. The
Board also noted that no valid explanation of the
photographing was offered at the hearing.
Thus, in both Pepsi-Cola and Mike Yurosek, em-
ployees at the plant entrance in the presence of union
campaign activity were photographed or videotaped by
the union. Under the circumstances, the employees
might well have felt that their responses to the union
campaign activity were being recorded for the purpose
of future retaliation. In the present case, however, the
subject of the photographs was employees voluntarily
attending a union-sponsored picnic luncheon. While
photographing the activities present in Pepsi-Cola and
Mike Yurosek might readily suggest retaliatory pur-
pose, the Union’s photographing of employees enjoy-
ing a voluntarily attended picnic does not reasonably
suggest any such purpose.11 Moreover, when the Em-
ployer’s security guard, who was attending the picnic,
225NU SKIN INTERNATIONAL
12 Employees Ratliffe and Nuney (or Mooney), who testified for
the Employer concerning the Union’s taking photographs, did not
ask any union representatives why the Union was taking photo-
graphs. Employee Thomas, another employer witness, testified that
he asked this question but could not remember the answer he re-
ceived.
asked why a union representative was taking photo-
graphs, the union representative stated that ‘‘You all
are going to make the front page of USA Today,’’ and
‘‘we want to remember this fun-filled memory.’’12 At
the hearing, union representatives testified that the
photographs were taken for submission to the union
newspaper and to offer to employees, and that the
Union had, in fact, distributed photos to employees at
a party after the election. This explanation is consistent
with what the security guard was told. Thus, we find
the Union’s photography here innocuous and entirely
distinguishable from that in Pepsi-Cola and Mike
Yurosek.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Graphic Communications Inter-
national Union, AFL–CIO and that it is the exclusive
collective-bargaining representative of the employees
in the following appropriate unit:
All regular full-time and regular part-time service
warehouse employees, including coordinators,
front fillers, distributor window employees, cer-
tificate area employees, quality control employees,
maintenance and custodial employees, excluding
all other employees, office clerical employees,
professionals, guards and supervisors as defined in
the Act.