River Parish Maintenance, Inc.

National Labor Relations Board - Board Decisions

May 19, 1998

325 N.L.R.B. 815 (N.L.R.B. 1998)

815
325 NLRB No. 153
RIVER PARISH MAINTENANCE, INC.
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.
Further, in the absence of exceptions, we adopt pro forma the
hearing officer’s recommendation to overrule the Petitioner’s Objec-
tions 1 and 8 and the challenged ballot of Lazarus Turner.
2 In light of our sustaining the Petitioner’s Objection 10, we find
it unnecessary to pass on the hearing officer’s analysis or determina-
tion regarding the Petitioner’s Objection 9.
1 Initially, I note that, as the Employer contends, the hearing offi-
cer sustained both these objections on theories different from those
set forth in the objections. Both these objections were premised on
allegations that the Employer discriminated between union support-
ers and nonsupporters. The evidence does not support a finding of
such discrimination. The hearing officer nonetheless proceeded to
consider these objections in terms of a conferral of benefits on all
employees.
River Parish Maintenance, Inc. and Construction
and General Labors Union, Local 1177, AFL–
CIO, Petitioner. Case 15–RC–8062
May 19, 1998
DECISION AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
and objections in an election held July 24, 1997, and
the hearing officer’s report recommending disposition
of them (pertinent parts are attached as an appendix).
The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 20 for
and 18 against the Petitioner, with 7 challenged bal-
lots.
The Board has reviewed the record in light of the
exceptions1 and briefs and has adopted the hearing of-
ficer’s findings and recommendations as modified.
In adopting the hearing officer’s recommendation to
set aside the election on the basis of Objection 10, we
find that the Employer’s holding of an offsite ‘‘crab
boil’’ for employees 2 days before the election, and
paying them for their attendance, was objectionable
under the principles set out in B & D Plastics, 302
NLRB 245 (1991). We note in particular that the Em-
ployer required all but four unit employees to attend
its offsite campaign meeting from 3:15 until 4 p.m.,
which was the employees’ regular quitting time, and
then paid the employees an extra hour’s pay to attend
the ‘‘crab boil’’ from 4 to 5 p.m. The Employer has
advanced no business reason unrelated to the election
that might justify this grant of benefit. Under these cir-
cumstances, as in B & D Plastics, the Employer’s
grant to employees of a bonus for no reason other than
the upcoming election constitutes objectionable con-
duct sufficient to require that the election be set aside.
Contrary to our dissenting colleague’s assertion, the
basis of our finding that the Employer engaged in ob-
jectionable conduct is not that the Employer held the
‘‘crab boil’’ offsite but rather that the employees could
reasonably have viewed their receipt of an extra hour’s
pay as intended to influence their votes in favor of the
Employer’s position.2
DIRECTION
IT IS DIRECTED that this proceeding is remanded to
the Regional Director for further appropriate action.
MEMBER HURTGEN, dissenting in part.
Unlike my colleagues and the hearing officer, I
would overrule the Petitioner’s Objections 9 and 10.1
In sustaining Objection 9, the hearing officer con-
cluded that the Employer provided a benefit to em-
ployees by permitting them, before the election, to
‘‘run a tab’’ for meals in the cafeteria at the Employ-
er’s site. The evidence fails to support a finding of ob-
jectionable conduct. As the hearing officer noted, a
few employees were told by a cafeteria worker, who
was not an employee of the Employer, that they could
charge their meals. There was no evidence that the
Employer authorized this statement or even knew
about it. Nor did any Employer officials tell the em-
ployees about any tab. My colleagues understandably
do not rely on the hearing officer’s findings regarding
Objection 9. The evidence falls far short of showing
a conferral of benefits by the Employer.
Petitioner’s Objection 10 is based on the Employer’s
sponsoring a campaign meeting at a hotel 2 days be-
fore the election. Employees were released early from
work to attend the meeting, and those who attended
were paid for their time. The meeting lasted from 3:15
to 5 p.m. The Employer provided employees with free
food and drink at the function. Employees were re-
quired to attend from 3:15 to 4 p.m., inasmuch as 4
p.m. was the regular quitting time. Employees who
chose to stay until 5 p.m. were paid for the extra hour.
Clearly, it was not objectionable to pay employees
their wages from 3:15 to 4 p.m. Employers are per-
mitted to hold campaign meetings during worktime
and to pay employees for that time. In essence, an em-
ployer pays employees for a day’s service. If the em-
ployer chooses to have employees spend a portion of
that day listening to a campaign speech, that is a legiti-
mate prerogative of the employer. Further, based on
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816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In the instant case, the meeting was held offsite because the
property-owner would not permit the Employer to hold the meeting
onsite.
3 See, e.g., L.M. Berry and Co., 266 NLRB 47, 51 (1983); Fashion
Fair, Inc., 157 NLRB 1645 fn. 3 (1966); Lloyd A. Fry Roofing Co.,
123 NLRB 86, 87–88 (1959).
4 My colleague’s characterize the 1 hour’s pay as a ‘‘bonus.’’
They do not contend that it is a substantial amount of money. Clear-
ly, the average reasonable employee would not regard it as such.
One hour’s pay in this case ranges from $6 to $12.
this same rationale, it makes no difference whether the
speech is onsite or offsite.2
Nor was it objectionable to pay the employees from
4 to 5 p.m. In this regard, I note that the first portion
of the event (3:15 to 4 p.m.) cannot realistically be
separated from the ‘‘Crab Boil’’ portion of the event
(4 to 5 p.m.). Indeed, as my colleagues apparently con-
cede, both portions were part and parcel of the Em-
ployer’s campaign. It is not unlawful to offer induce-
ments (e.g., food, prizes) to induce employees to come
to campaign meetings, so long as the monetary value
thereof is reasonable.3 In my view, the payment of 1
hour’s wages, along with food and drink, is not an un-
reasonable inducement.4
B & D Plastics, 302 NLRB 245 (1991), is clearly
distinguishable. In that case, the employees were given
the entire day off, and they were paid irrespective of
whether they attended the function. In sum, the em-
ployees received a gift equal to a full day’s pay. By
contrast, in the instant case, the employees were paid
for 1-3/4 hours and only if they attended the function.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS AND
CHALLENGES
Objections 9 and 10
Objection 9 alleges that RPM allowed employees to run a
tab in the plant cafeteria and then required employees who
supported the Union to pay back their charges while not re-
quiring those employees who did not support the Union to
do so. In support of this objection, the Petitioner presented
Chris Seymore, Patrick Washington, and Darrel White who
testified that they charged meals on a tab in the plant cafe-
teria after being told by the cashier who is not an RPM em-
ployee that RPM had a tab that employees could charge their
purchases on. There was no evidence that RPM authorized
this tab for employees and there was no evidence that any
representative of RPM told any employee about this tab.
There was, likewise, no evidence that any employee was re-
quired to pay back the cost of any purchase made on the tab.
Received into evidence was a ‘‘Guest Check’’ produced pur-
suant to a subpoena that the parties stipulated was signed by
Mark Roussel, RPM’s manager of field operations. The item
was described by Patrick Washington as similar to the tab
that he saw at the cafeteria cashier counter. The ‘‘Guest
Check’’ was for 18 items, for a total of $42.41. It had Mark
Roussel and Tonna 635-5023 RPM at the top with the
charged amounts under that and Mark Roussel’s signature at
the bottom. The highest charge was $4.99 and the lowest was
$0.50. The charge also had Wed at the top. Patrick Washing-
ton testified that he charged his breakfast and lunch on
RPM’s tab the day he was told about it and thought it was
about 1 week prior to the election. He was told by the cash-
ier it was for all RPM employees for the week. Washington
admitted that he had prounion sentiments and he was not re-
quired to pay back the charges he put on RPM’s tab at the
cafeteria. The employees were not required to sign anything
and RPM had no way to identify who used the tab.
Chris Seymore testified that since he had been there from
1992 until present, the RPM or Entergy had bought food for
the employees four or five times during the day. He also tes-
tified to a lunch bought by RPM a few days prior to the
election at a restaurant offsite. He stated that RPM had
thrown parties in the past. RPM presented no evidence in re-
gard to the tab at the cafeteria.
Objection 10 alleges that on or about July 22, RPM per-
mitted employees to attend a crab boil during worktime, but
it refused known union adherents the same benefit. In sup-
port of this objection, the Petitioner presented Chris Seymore
who testified that there was a crab boil on July 22. RPM re-
leased all its employees at 3:15 p.m. to attend the crab boil
except its Foremen Darrel White, Sergio Dukes and Inspector
Lazarus Turner who were not allowed to leave the facility
until 4 p.m. Chris Seymore was also required to stay until
4 p.m. but he did not attend the crab boil because he had
to attend a class after work. The Employer contends that all
employees were invited to the crab boil but due to coverage
of work at the facility, the above employees were not al-
lowed to leave the facility until 4 p.m. RPM admits that all
employees were paid for attending the Crab Boil from 3:15
until 5 p.m. Seymore contends that he and the other formen
were not paid for the extra time to attend the crab boil. RPM
presented no reason for having the crab boil 2 days prior to
the election.
The Board has an objective standard in determining
whether preelection benefits would tend unlawfully to influ-
ence the outcome of the election. The Board considers (1)
the size of the benefit conferred in relation to the stated pur-
pose for granting it; (2) the number of employees receiving
it; (3) how employees reasonably would view the purpose of
the benefit; and (4) the timing of the benefit. Gulf States
Canners, 242 NLRB 1326 (1979). Here, the size of the bene-
fit is the value of the crab boil and the 1 hour and 45 min-
utes of pay to all employees with the exception of the fore-
men and inspector who did not attend until after work and
the value of the tab in the cafeteria. RPM gave no reason
for the tab or the crab boil and cited no cases to support its
argument that Petitioner’s Objections 9 and 10 were without
merit.
Here, as in B & D Plastics, 302 NLRB (1991), employees
could reasonably have viewed this conduct as intended to in-
fluence their votes in favor of the Employer’s position. They
were offered the value of the meals as well as the 1 hour
and 45 minutes of paid time as a bonus within 2 days of the
election. Without any explanation from RPM as to the reason
for the crab boil 2 days prior to the election, this is a benefit
that requires the election results to be overturned. Although
there were some evidence that RPM had in the past given
some food to the employees, there was no explanation as to
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817RIVER PARISH MAINTENANCE, INC.
the timing of the tab, lunch, or the crab boil. There was no
evidence presented by RPM that it had granted paid time off
for its employees to attend a meeting and meal off the prem-
ises in the past. Speco Corp., 298 NLRB 439 fn. 2 (1990).
Therefore, the timing of this benefit is such that the employ-
ees could assume that it was given to influence their vote for
the Employer.
Accordingly, I recommend that Petitioner’s Objections 9
and 10 be sustained.
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