Drilco, a Division of Smith International, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drilco, a division of Smith International, Inc. and In- ternational Association of Machinists and Aero- space Workers, AFL-CIO, Petitioner. Case 23- RC-4691 May 4, 1979 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 23 of the National Labor Relations Board on September 15, 1978, an election by secret ballot was conducted in the above-entitled proceeding on October 6, 1978, un- der the direction and supervision of said Regional Di- rector. Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with the Board's Rules and Regulations, Series 8, as amended. The tally of ballots shows that of approximately 856 eligible voters 326 ballots were cast for, and 371 against, Petitioner. There were 2 void ballots and 105 challenged ballots. The challenged ballots were suffi- cient in number to affect the results of the election.' Thereafter, timely objections to the election were filed by Petitioner. On November 21, 1978, the Regional Director is- sued an order directing that a hearing be held for the purpose of receiving evidence to resolve the issues raised by the challenged ballots and the objections. On December 11 and 12, 1978, and January 23, 24, and 25, 1979, a hearing was held before Hearing Offi- cer Robert G. Levy II. The Hearing Officer's report and recommendations was issued on February 14, 1979. The Employer filed timely exceptions and a supporting brief, wherein it excepted to the Hearing Officer's conclusion that Petitioner's Objection 10 should be sustained and to his recommendation that the election be set aside and a new election con- ducted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Subsequent to the election, the Employer and Petitioner entered into a stipulation in which they agreed that certain of the challenges should be sustained and that certain other challenges should be overruled. Pursuant to the stipulation, certain of the challenged ballots were opened and counted, and a revised tally of ballots was issued and duly served on the parties. The revised tally of ballots showed that of approximately 856 eligible voters, 336 ballots were cast for, and 421 against, Petitioner. There were 3 void ballots and 12 undetermined challenged ballots. Upon the entire record in this case the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and 2(6) and (7) of the Act. 4. The following employees constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All hourly paid production and maintenance em- ployees and leadmen employed by the Employer at its plant located at 16740 Hardy Street, Hous- ton, Texas, excluding all salaried employees, of- fice clerical, professional and technical employ- ees, lab technicians, service center, repair center, field service, time study and safety department employees, field inspectors, truckdrivers, guards, watchmen and supervisors as defined in the Act. 5. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that no prejudicial error was committed. The Board has con- sidered the Hearing Officer's report and recommen- dations, the exceptions and brief, and the entire rec- ord in this case and makes the following findings: The Hearing Officer recommended that Petitioner's Objections 2, 4, and 5 be overruled and that Petition- er's Objection 10 be sustained. In recommending that Objection 10 be sustained, the Hearing Officer found that by instructing voters to place their em- ployee identification numbers on raffle tickets and by questioning a voter after the voter had cast his ballot in the election the Employer engaged in conduct which warranted setting aside the election. The Em- ployer has excepted to these findings. While we agree with the Hearing Officer's conclusion that Objection 10 should be sustained and that the election should be set aside, we do so solely for those reasons set forth below. Four days prior to the election, the Employer dis- tributed leaflets announcing to its employees that a raffle would be conducted on the day of the election. The leaflet informed employees that the holder of the first ticket drawn in the raffle would receive $50, that the holder of the second ticket drawn would win $100, and that the holder of the third ticket drawn 2 Petitioner's Objections , 3, 6, 7, 8, 9, and I I were withdrawn prior to the conclusion of the hearing. No exceptions were filed to the Hearing Officer's recommendation that Objections 2, 4, and 5 be overruled. Accordingly, we adopt the Hearing Officer's recommendations regarding Objections 2, 4, and 5, pro forma. 242 NLRB No. 9 20 DRILCO, A DIVISION OF SMITH INTERNATIONAL, INC. would, at his or her option, receive an all-expense- paid trip for two to Hawaii or a trip for a family to either Disneyland or Disneyworld. The record does not reflect the value, in dollars and cents, of the trips. The purpose of the raffle, according to the leaflet, was "not to influence [the employees'] vote, but simply to encourage everyone to vote." Only those employees who voted in the election were eligible to participate in the raffle. As voters fin- ished casting their ballots, they were instructed by a Board agent to leave the polling area through a desig- nated exit. After leaving the polling area, they walked a short distance to a raffle table attended by two cleri- cal employees. As they approached the table, one of the attendants asked them if they had voted. Those who replied that they had were given two tickets with matching numbers. The voters were instructed to write their employee identification numbers on the back of one of the tickets and to deposit the ticket displaying the identification number into a raffle box.3 It appears from the record that, in some instances, the voters inserted their own tickets into the box, while in others they handed the marked ticket to an attendant, who, in turn, placed the ticket in the box. No list of names or identification numbers was main- tained at the raffle table. After the polls were closed, the raffle box was opened and the three winning tick- ets were drawn. The Board has held that the conduct of a raffle does not constitute a per se basis for setting aside a Board-conducted election.4 In those cases in which 3 The reverse side of one of the tickets in the two-ticket set handed to voters provided spaces for "name," "address," and "phone no." In some instances, employees wrote their names on the reverse side of the tickets rather than their employee identification numbers. ' Hollywood Plastics, Inc., 177 NLRB 678 (1969); Buzza-Cardozo a division ofGibson Greeting Cards, Inc., 177 NLRB 589 (1969); Thrift Drug Company, 217 NLRB 1094 (1975). raffles have been the subject of timely filed objections, however, the Board has said that it would consider all of the attendant circumstances in determining whether the raffle destroyed the laboratory conditions necessary for assuring employees full freedom of choice in selecting a bargaining representative We conclude that, under the circumstances of this case, the voters' freedom of choice was impaired by the conduct of the raffle. Here, the size of the leading prize is so great as to divert the attention of employees away from the elec- tion and its purpose. In addition, such a substantial prize inherently induces those eligible to vote in the election to support the Employer's position. In reach- ing this conclusion we have considered the fact that the stated purpose of the raffle was to encourage em- ployees to vote. The Employer's announcement that the asserted purpose of the raffle was only to encour- age employees to vote does not, however, overcome the impact of its simultaneous announcement that it would give away such a large prize on the day of the election.' Furthermore, by instructing voters to record num- bers through which the voters may be readily identi- fied, the Employer engaged in conduct similar to maintaining a list proscribed by Board policy.7 There- fore, we conclude that, in circumstances of this case, the Employer destroyed the laboratory conditions re- quired of Board-conducted elections by instructing voters to record their identification numbers. Accordingly, we shall set aside the election and di- rect that a second election be conducted. [Direction of Second Election and Excelsior foot- note omitted from publication.] I See Hollywood Plastics, Inc., supra. 6 Chairman Fanning relies solely on this ground. Cf. Marathon LeTourneau Company, Gulf Marine Division of Marathon Manufacturing Company, 208 NLRB 213 (1974) (where a copy of the Excel- sior list was used to indicate who was eligible to participate in the raffle). 21