Good Shepherd Home

426 321 NLRB No. 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 We also do not agree with our concurring colleague’s assertion that our holding today revives the holding of Young Men’s Christian Assn. (YMCA), 286 NLRB 1052 (1987), a decision that was specifi- cally overruled in Sunrise Rehabilitation. In YMCA, the employer of- fered 2 hours of pay to all employees who came in to vote if they were not scheduled to work on election day. The employer made no attempt to determine whether or not any of those employees even had transportation expenses to come in to vote, much less what those expenses were or whether they equaled 2 hours’ pay. Thus, unlike in this case, and as in Sunrise Rehabilitation, the employees would reasonably construe the payments in YMCA simply as payments for the act of voting. Good Shepherd Home, Inc. and United Food & Commercial Workers, Local 911, AFL–CIO, CLC, Petitioner. Case 8–RC–15298 May 31, 1996 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN The National Labor Relations Board, by a three- member panel, has considered objections to an election held November 2, 1995, and the Regional Director’s report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 57 for and 40 against the Petitioner, with no challenged ballots. The Board has reviewed the record in light of the exceptions and brief, has adopted the Regional Direc- tor’s findings and recommendations, and finds that a certification of representative should be issued. We agree with the Regional Director that the Union did engage in objectionable conduct as alleged by the Employer. The Regional Director’s investigation re- vealed that several employees told the Union’s orga- nizing director that a part-time employee, who was a full-time college student, could not afford to drive from school to the Employer’s facility to vote on the day of the election. The organizing director further learned that the employee’s means of transportation was an old truck that did not get good gas mileage, and that it would cost the employee about $25 to trans- port himself to the facility on election day. As a result, the organizing director gave the employee $25. In his affidavit, the employee at issue stated that his college is located in a town approximately 50 miles from the Employer’s facility. The Employer argues in its exceptions that the $25 payment is disproportionate to the actual expense in- curred by the employee. In support, the Employer con- tends that the town where the employee’s school is lo- cated is about 31 miles from the Employer’s facility, rather than 50 miles as represented by the employee in his affidavit. The Employer further notes that under the IRS reimbursement rate of 30 cents a mile, the em- ployee’s transportation cost would equal $18.60. In Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995), we held that ‘‘monetary payments that are of- fered to employees as a reward for coming to a Board election and that exceed reimbursement for actual transportation expenses . . . . [constitute] objection- able conduct.’’ Specifically, the objectionable conduct consisted of an offer of 2 hours’ pay without the ne- cessity of doing anything other than showing up at the employer’s facility on the day of the election. 320 NLRB No. 28, slip op. at 2. Because the employer also offered to provide transportation to the employer’s fa- cility, it was clear that the monetary payments were not linked in any way to transportation expenses. Conversely, the instant case involves a payment that was solely linked to transportation expenses. Indeed, the only issue raised by the Employer is whether the Union’s $25 payment was objectionable because it ex- ceeded the employee’s travel expenses. The Union in this case has made an effort to assist an employee who could not afford to travel to the polls by reimbursing him for his travel expenses. In doing so, the Union has reimbursed the employee based on a good-faith, reasonable estimate of his actual travel costs. In these circumstances, we conclude that the Union has complied with the guidelines we set forth in Sunrise Rehabilitation, which permit reimbursement of ‘‘actual’’ transportation costs. We would not require a party to produce receipts or other proof of an em- ployee’s ‘‘actual’’ costs or to otherwise prove that the reimbursement was precise to a mathematical certitude. As long as the reimbursement is clearly related only to actual travel expenses, and the party has made a good- faith effort to estimate those expenses, we would con- clude that the party has not engaged in objectionable conduct. We find without merit our concurring colleague’s contention that we have abandoned the holding set forth in Sunrise. Our holding in that case would not require us, as our colleague suggests, to ‘‘delve into the minutiae of each case to ascertain precisely the re- imbursement costs down to the last penny.’’ Rather, it requires a determination of whether the payments at issue are construed as ‘‘expense reimbursement’’ or ‘‘as something extra for employees on election day.’’ Sunrise, 320 NLRB No. 28, slip op. at 2. Indeed, such a requirement is consistent with longstanding Board precedent.1 See Federal Silk Mills, 107 NLRB 876, 877–878 (1954) (union’s payment of $3 to employee carpool drivers not objectionable, even though the drivers had to travel only an additional 1-1/5 miles to transport employees to the polls, because it ‘‘rep- resented a good-faith attempt to make transportation facilities available to eligible voters who might not otherwise be able . . . to exercise their right of fran- chise’’). 427 GOOD SHEPHERD HOME 2 Indeed, as the Employer points out, the IRS rate of 30 cents a mile would result in travel costs of $18.60 for a 62-mile round trip. We find this to be reasonably close to the actual reimbursement of- fered by the Union. Moreover, the Union’s consideration of the age and unusually low gas mileage of the employee’s truck demonstrates that it was making a good-faith attempt to reimburse actual travel expenses. 1 See Young Men’s Christian Assn. (YMCA), 286 NLRB 1052 (1987), and my application of YMCA in Sunrise Rehabilitation Hos- pital, 320 NLRB No. 28 (Dec. 19, 1995) (dissenting opinion), and Perdue Farms, 320 NLRB No. 64 (Feb. 2, 1996) (dissenting opin- ion). See also Federal Silk Mills, 107 NLRB 876 (1954). 2 See also Perdue, where they again sustained a union objection. 3 In terms of total operating costs, it may, of course, cost less to operate an old truck than a new truck. 4 At other parts of their opinion, my colleagues suggest that the result should turn on how ‘‘the employees would reasonably con- strue the payments.’’ Thus, it is unclear what the new rule is. How- ever, it is clear that the rule is no longer the Sunrise test of ‘‘actual transportation expenses.’’ We recognize that, in some circumstances, a pay- ment to an employee traveling in his own vehicle might be so disproportionately excessive that it could not be considered a good-faith attempt to reimburse ac- tual travel costs. We do not, however, find such cir- cumstances in the instant case. Even assuming arguendo that the Employer accurately estimates the mileage as 31 miles each way, the amount at issue would not be so excessive as to raise a question about the good faith of the Union.2 Accordingly, because the conduct at issue involves only the good-faith attempt to cover the actual trans- portation expenses of an employee who would not have otherwise been able to vote, we find, in agree- ment with the Regional Director, that no objectionable conduct occurred warranting setting aside the election. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for United Food & Commercial Workers, Local 911, AFL–CIO, CLC and that it is the exclusive collective-bargaining representative for the employees in the following appropriate unit: All full-time and part-time licensed practical nurses, nurses aides, dietary employees, house- keeping employees, maintenance employees, ac- tivities employees, barber/beauty shop employees, clerical employees, laundry employees, medical records employees and receptionists excluding all registered nurses, supervisory LPNs, confidential employees, professional employees, guards and supervisors as defined in the Act. MEMBER COHEN, concurring. I have consistently adhered to established precedent which holds that reimbursement to an off-duty em- ployee, for the time and expense of traveling to and from an election and participating there, is permissible conduct, unless the objecting party shows that the pay- ment is not reasonably related to the employee’s ex- penditure of time and money.1 That principle leads to the conclusion that the Union’s reimbursement is permissible here. I therefore join my colleagues in overruling the Employer’s objec- tion. However, I am constrained to say that my col- leagues have not consistently applied Board law. Their inconsistency began in Sunrise when they overruled the established precedent of YMCA, and sustained a union objection.2 The inconsistency continues in to- day’s case where my colleagues now depart from Sun- rise and overrule an employer’s objection. With respect to the latter inconsistency, I note that, in Sunrise, my colleagues announced that payments are objectionable if they exceed reimbursement for ‘‘actual transportation expenses.’’ In view of this holding, one would have thought that my colleagues would want to ascertain the ‘‘actual transportation expenses’’ incurred by the employee here. However, they fail to resolve that issue. For example, the employee states that he traveled 100 miles round trip; the Employer claims that the round trip was 62 miles. The conflict is unresolved. Similarly, the employee claims that his truck is old and that the IRS rate of 30 cents per mile is too low. We do not know the age of the truck or what the actual mileage rate for such a truck would be.3 Instead of resolving these issues, my colleagues now abandon the Sunrise test of ‘‘actual transportation ex- penses.’’ They now say that it is sufficient if the evi- dence shows ‘‘a good faith effort to estimate those ex- penses,’’ and a payment based on that estimate.4 I do not wish to see the Board delve into the minu- tiae of each case to ascertain precisely the reimburse- ment costs down to the last penny. That is why the rule in YMCA made perfectly good sense. My col- leagues abandoned YMCA in Sunrise, and they have now abandoned Sunrise. The Sunrise rule therefore had a shelf life of 5 months. This ‘‘zig zag’’ approach to law does not foster predictability, and it does not in- spire confidence. However, apart from this vice, it may well be that my colleagues’ new rule, in its various formulations, is better than their Sunrise rule. Unlike Sunrise, the new rule does not turn on mathematical exactitude. Indeed, the application of the new rule yields the same result, in this case, as the YMCA rule. Accordingly, although I adhere to YMCA, I concur in the result here.