B & D Plastics

245 302 NLRB No. 33 B & D PLASTICS 1 In the absence of exceptions, we adopt pro forma the hearing officer’s rec- ommendation that the Petitioner’s Objections 1, 3, 4, and 5 be overruled. 2 In fact, when questioned at the hearing about the Employer’s plans to de- liver the final message in its antiunion campaign, the Employer’s vice presi- dent and chief operating officer, Robert Daffin, acknowledged that there were ‘‘two ways to do it . . . to have three separate events, or to have–-give people time off to have one event. And in order to be fair to everyone, we just de- cided to close the plant that day.’’ Further, contrary to our dissenting colleague, we do not find that this cook- out was consistent with any past practice. Although the evidence indicates that three times in the previous 5 years the Employer had held cookouts for its employees and given them paid time off to attend, there is no evidence that such events occurred on a continuing or regular basis. Thus, this cookout was a more random event than a customary or consistently conferred benefit, and employees could reasonably view it as one intended to influence their votes in the election. B & D Plastics, Inc. and Retail, Wholesale & De- partment Store Union, AFL–CIO. Case 15–RC– 7517 March 29, 1991 DECISION AND DIRECTION OF SECOND ELECTION 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 April 19, 1990, and the hearing officer’s report recommending disposition of them. The election was held pursuant to a Stipulated Election Agreement. The tally of ballots shows 5 votes for and 44 votes against the Petitioner, with 1 challenged ballot, an insufficient number to affect the results. The Board has reviewed the entire record in light of the exception and brief,1 has adopted the hearing offi- cer’s findings and recommendations, and finds that the election must be set aside and a new election held. In its Objection 2 the Petitioner asserts that, under all the circumstances, the Employer’s granting all em- ployees a paid day off 2 days before the election cre- ated an atmosphere that interfered with employees’ free choice. The hearing officer recommended sustain- ing this objection and directing a second election. We agree with the hearing officer, for the reasons which follow. The Board has long recognized that The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the vel- vet glove. Employees are not likely to miss the inference that the source of benefits now con- ferred is also the source from which future bene- fits must flow and which may dry up if it is not obliged. NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). The Board has held that the ra- tionale of Exchange Parts is applicable to objec- tions cases. See, e.g., United Airlines Services Corp., 290 NLRB No. 114 (Aug. 24, 1988). Our standard in preelection benefit cases is an objec- tive one. See Gulf States Canners, 242 NLRB 1326 (1979). To determine whether granting the benefit would tend unlawfully to influence the outcome of the election, we examine a number of factors, including: (1) the size of the benefit conferred in relation to the stated purpose for granting it; (2) the number of em- ployees receiving it; (3) how employees reasonably would view the purpose of the benefit; and (4) the tim- ing of the benefit. In determining whether a grant of benefits is objectionable, the Board has drawn the in- ference that benefits granted during the critical period are coercive. It has, however, permitted the employer to rebut the inference by coming forward with an ex- planation, other than the pending election, for the tim- ing of the grant or announcement of such benefits. See Speco Corp., 298 NLRB 439 fn. 2 (1990); United Air- lines, supra; May Department Stores Co., 191 NLRB 928 (1971). In this case, 2 days before the election the Employer conferred on all unit employees, with no strings at- tached, a day off with pay solely in connection with its admitted purpose to deliver the final message in its antiunion campaign. Thus, employees, including those who elected not to attend the cookout and listen to the Employer’s speeches, received what was tantamount to a substantial bonus for no other reason than the up- coming election. Employees could reasonably have viewed this conduct as intended to influence their votes in favor of the Employer’s position. The grant of such a benefit in these circumstances constitutes objec- tionable conduct sufficient to require that the election results be overturned unless the Employer comes for- ward with a persuasive business justification for grant- ing the benefit when it did. The Employer’s asserted business justification is in- sufficient to warrant a different result. The Employer essentially argues that it had no other way to end its antiunion campaign except to hold a cookout and grant a paid day off. The Employer has not explained, how- ever, why it could not have pursued alternative means of communicating its message, e.g., giving the speech- es at the plant (where they could have reached more employees, because attendance at the cookout was not required), rather than granting a substantial benefit to the entire unit shortly before the election.2 The Em- ployer’s contention that the cookout was necessary as a means of gathering all three shifts of employees to- gether incorrectly assumes that its desire to address the employees en masse at the end of its campaign without asking any of them to come to the plant outside their shifts must be accommodated without regard to the foreseeable effect of this conduct on the employee, i.e., the message it sent concerning ‘‘the source of benefits now conferred . . . which may dry up if it is not obliged.’’ NLRB v. Exchange Parts Co., supra at 409. 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Speco Corp., supra at fn. 2; May Department Stores Co., supra at 928. 1 Cf. Duo-Fast, 278 NLRB 819 (1986). 2 Lou Taylor, Inc., 226 NLRB 1024, 1029 (1976). In essence, the Employer’s ‘‘business justification’’ has little or nothing to do with its ‘‘business,’’ but amounts only to a claim that granting the paid holiday in connection with, and at the culmination of, its antiunion campaign was the most effective way to in- fluence the election outcome in its favor. Far from es- tablishing a ‘‘legitimate reason’’3 for its grant of the benefit, this argument merely underscores the likely ef- fect on the election that warrants our setting it aside. [Direction of Second Election omitted from publica- tion.] MEMBER DEVANEY, dissenting. Contrary to my colleagues, I do not find the Em- ployer’s holding of a cookout for its employees with a paid day off to be objectionable. The Board has held that continuation of a benefit conferred by the em- ployer in the past is not unlawful.1 Here, the Employ- er’s decision to hold a cookout for its employees was consistent with past practice. Record evidence indicates that some three times in the previous 5 years the Em- ployer had held a cookout for its employees, given them the day off to enable them to attend, and paid them their regular pay. These occasions gave everyone an opportunity to ‘‘get together and talk.’’ In the in- stant case, the fact that the Employer chose to utilize the occasion of the cookout as a forum to end its cam- paign does not alter the nature of the cookout so as to make it an impermissible benefit. Indeed, the Em- ployer was simply exercising its right to gather its em- ployees together in order to ‘‘speak its mind’’ and, by making attendance voluntary, it chose the least intru- sive approach. Under all the circumstances of this case, noting also that the Employer runs three continuous shifts, I find that the Employer’s choice of a cookout with a paid day off was reasonable. Under the cir- cumstances in this case, setting the election aside is not warranted. The employees in this situation would not ‘‘infer that the benefit might be withdrawn or fu- ture benefits withheld should they select a union to represent them.’’2 Accordingly, I respectfully dissent.