Labor Services, Inc.

LABOR SERVICES Labor Services, Inc. and International Brotherhood of Electrical Workers, Local 99, AFL-CIO. Case 1-CA-19743 28 February 1985 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 November 1982 the National Labor Rela- tions Board issued a Decision and Order in this proceeding,' finding that the Respondent violated Section 8(a)(5) and (1) of the National Labor Rela- tions Act by refusing to bargain with the Union as the exclusive bargaining representative of certain of its employees. The Board ordered the Respondent to bargain, on request, with the Union. Thereafter, the Board applied for enforcement of its Order in the United States Court of Appeals for the First Circuit. On 7 November 1983 the court issued its decision denying enforcement of the Board's Order and remanded the case for further proceedings.2 The Board accepted the remand and directed that a hearing be held before an administrative law judge for the purpose of receiving evidence regard- ing the objection to the election raised by the Re- spondent in the underlying representation case.3 On 26 September 1984 Administrative Law Judge Thomas T. Trunkes issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in support of the judge's decision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,4 and conclusions5 only to the extent consistent herewith. ' 265 NLRB 463 (1982) Chairman Dotson did not participate 2 NLRB v Labor Services, 721 F 2d 13 (1st Cir 1983) 3 259 NLRB 959 (1982) 4 The judge's decision contains several errors which we note (1) the date the Respondent filed objections in the underlying representation case as referenced in the "Statement of the Case" is 24 April 1981, (2) in sec B,4 "all employees" is corrected to "almost every employee", and (3) in the first paragraph following sec C,4, "Respondent" is corrected to read "Charging Party " While the judge found that most of the drinking occurred after the Union had been declared the victor, we find insufficient record evidence to support such a finding Thus, the record shows the number of drinks consumed by employees before the ballot count, but it is silent regarding the volume of dunks consumed thereafter Accordingly, the record does not support the judge's finding in this regard 5 We disavow the judge's speculations regarding how changes in the Board's composition may affect the disposition of this case, and reject his suggestion that the Board make specific rules to govern the serving of drinks and refreshments before and during elections We note that the Board's decisions are based on the facts of each case and on previously decided cases We also disavow the judge' s statement that it would not be "fair and proper" for the Board to penalize the Union by reversing our original decision, and his comment that the Union won the election "fair and square " 479 In the underlying representation case, the Re- spondent filed an objection to the election asserting that the Union interfered with the voters' free choice in the election by providing alcoholic drinks to voters before and during the election. The facts as adduced at the hearing are set forth fully in the judge's decision. The record evidence, as found by the judge and adopted herein, is summarized brief- ly below. On 22 April 1981 an election was held in a motel room for certain of the Respondent's employees. About 4:30 p.m., five to six employees entered the motel bar which was located 100-150 feet from the election room. One employee bought a drink for Union Business Agent Richard Stromberg who was already in the bar. In turn, Stromberg bought drinks for the five to six employees and told the bartender that the drinks of other employees who entered the bar after they had voted would also be on his tab. Around 5 p.m., the time the polls opened, two to three of the five to six employees arose to leave the bar. Stromberg then stated: "There's no hurry to leave. There's time before you have to vote. Have another drink before you go and vote." The employees had an additional drink and left the bar. As the five to six employees started to leave, Stromberg stated: "Don't forget how to vote, boys." Before leaving, the five to six employees had consumed two or three drinks each. Within 10 minutes, they returned and continued drinking on Stromberg's tab. After 5 p.m. the number of employees in the bar gradually grew to between 12 and 15 employees. The newcomers also drank on Stromberg's tab. An average of five to six drinks were consumed by each employee between 4:30 and 6:30 p.m. The polls closed at 6:45 p.m. Stromberg's expenditure for drinks was about $138. While in the bar, Stromberg moved about the bar engaging employees in friendly conversations, asked some employees if they wanted another drink, and played a video game with one employ- ee. The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. In reaching his decision, the judge concluded that the facts did not warrant a reversal of the original Board decision in which it adopted the Regional Director's Report on Objec- tions. In denying enforcement of the Board's Order, the court made it clear that it was not persuaded by the four factors relied on by the Regional Di- rector and adopted by the Board in its decision. First, the court noted that the absence of coercive statements and advance inducement of the employ- ees to get them to enter the bar or to vote for the, 274 NLRB No. 68 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union was irrelevant. The court's concern was not the Union's motive, but rather the effect of the union business agent's activities on the electoral process. Secondly, the court noted that the absence of evidence of inebriation was not persuasive, as the standard for judging the Union's conduct was whether the conduct reasonably tends to interfere with the employees' freedom of choice in the elec- tion. Thirdly, the court commented that the value of the drinks was not dispositive of the issue, as the impropriety of buying drinks for voters was not de- pendent on a specific figure. Lastly, the court found equally unpersuasive the fact that the drink- ing occurred outside the polling area, for the court found that voters entering the polling area take with them "the physical and psychological effects of rounds of . . . drinks just consumed at an adja- cent bar." In remanding the case, the court noted that the facts surrounding the Union's provision of drinks which were relied on by the Regional Director, the Board, and the court may be subject to signifi- cant changes at a hearing. A review of the record, however, shows that the facts relied on by the court at the time of its remand are substantially the same facts adduced at the hearing before the ad- ministrative law judge. Having accepted the remand of the instant case, we must, therefore, in light of the similarity of facts before and after remand, observe the court's opinion as the law of the case. Accordingly, we shall reverse the judge's decision, dismiss the complaint, and direct that a second election be conducted in the underlying representation case. ORDER The National Labor Relations Board orders that its Decision and Certification of Representative in Case 1-RC-17208, 259 NLRB 959 (1982), adopting the Regional Director's Report on Objections and certifying the Union, be revoked. IT IS FURTHER ORDERED that the Board's Deci- sion and Order in Case 1-CA-19743, 265 NLRB 463 (1982), finding that the Employer violated Sec- tion 8(a)(5) and (1) of the Act by refusing to bar- gain with the Union, be revoked and that the com- plaint be dismissed. [Direction of Second Election omitted from pub- lication.] DECISION STATEMENT OF THE CASE THOMAS T. TRUNKES, Administrative Law Judge The above proceeding was held in Boston, Massachuetts, on June 27, 1984, based on a complaint alleging that Labor Services, Inc. (Respondent or the Employer), unlawfully refused to bargain with International Brotherhood of Electrical Workers, Local 99, AFL-CIO (the Union or Charging Party), in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) Respondent filed an answer denying the commission of any unfair labor practices, based upon its position that the Union was improperly certified as the collective-bargaining rep- resentative of its employees All parties were represented and participated at the hearing, and were afforded a full opportunity to adduce evidence, examine and cross-examine witnesses, file briefs, and argue orally. The Charging Party submitted a brief oral argument. The General Counsel, the Charging Party, and Respondent all filed briefs which have been carefully considered.' The principal issues in this case are: (1) Whether the purchase of alcoholic beverages by a union representative for employees prior to, during, and subsequent to a Board-conducted election, per se, war- rants setting aside the election won by the Union (2) Whether the purchase of alcoholic beverages by a union agent for employees prior to their voting in a Board-conducted election , was made in order to induce the employees to vote for the Union (3) Whether the credible evidence developed at the in- stant hearing is sufficient to warrant a reversal of the Board's summary judgment. (4) Whether the Board should establish a rule prohibit- ing the purchase of alcoholic beverages by either the Union or the Employer within a certain time frame and/or within a certain distance from the polls. On the entire record, including my observation of the witnesses' demeanor, I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION Respondent is engaged in the business of providing electrical installation and repair service to the construc- tion industry and various customers In prior proceedings involving the same parties, the Board has asserted juris- diction over Respondent and has found the Union to be a labor organization, both within the meaning of the Act (259 NLRB 959 (1982) and 265 NLRB 463(1983)). II. ALLEGED UNFAIR LABOR PRACTICES A. Background This case was initiated by the filing of a petition in Case 1-RC-17208 in 1981 by the Union. Pursuant to a Stipulation for Certification upon Consent Election, a Board-conducted election was held on April 22, 1981, in a unit consisting of the following. All journeymen, electricians and apprentices em- ployed by the Employer from its Pawtucket, Rhode Island location and who work in the Employer's ' On August 31, 1984, Respondent submitted a motion to correct tran- scripts, referring to 12 errors found in the transcript Having received no objection to the motion by any of the parties, I grant Respondent's motion LABOR SERVICES Pawtucket, Rhode Island area operations ; but ex- cluding all other employees including all office cler- ical employees, professional employees , truck driv- ers, stock clerks, part-time employees who work less than 20 hours a week , estimators, draftsmen, salesmen, guards and supervisors as defined in the Act. The results of the election were 13 votes cast for the Union, and 5 votes cast against the Union, with no chal- lenges or void ballots. On April 17 and 27, 1981, Re- spondent filed objections to the conduct of the election, alleging that the Union had purchased drinks for em- ployees at the bar of the motel where the election was conducted immediately before and during the time when the polls were open . On May 13, 1981, the Regional Di- rector of the Board, issued his Report on Objections in which he found no merit to the objections, and recom- mended that they be overruled in their entirety , and that a certification of representative issue. On May 22, 1981, Respondent filed exceptions to the Regional Director's Report on Objections, requesting that the election be set aside On January 7, 1982, the Board issued its decision, sustaining the Regional Director's report (259 NLRB 959 (1982)). Thereafter, by letter dated March 24, 1982, the Union requested that the Respondent engaged in con- tractual negotiations. Respondent refused this request, contending that the Board certification of the Union was invalid . On April 8, 1982, the Union filed a charge alleg- ing a violation of Section 8(a)(5) and (1) of the Act by Respondent, the instant matter herein , which resulted in the issuance of a complaint on May 3, 1982. On May 12, 1982, Respondent filed its answer, denying a violation of the Act, and asserting that the election be set aside. On June 2, 1982, the Region filed a motion to transfer the case to the Board for summary judgment . On June 15, 1982, the Board issued a notice to show cause why sum- mary judgment should not be so granted . On November 24, 1982, the Board issued a summary judgment , order- ing Respondent to bargain with the Union (265 NLRB 463 (1983)) By letter dated December 10, 1982, the Union made a further request for Respondent to bargain. By letter dated December 29, 1982, Respondent again re- fused to bargain with the Union again, contending that the Board certification is invalid . On March 18 , 1983, the Board applied for enforcement of its Order with the United States Circuit Court of Appeals for the First Cir- cuit. On November 7, 1983, the court denied enforce- ment, and remanded the matter to the Board , stating that an evidentiary hearing was necessary on Respondent's objection to the election based on the union representa- tive's alleged offer and provision of alcoholic drinks to voters before, during, and after the representation elec- tion (721 F.2d 13 (1983)). On February 6, 1984, the Board accepted the court's remand, and on May 1, 1984, remanded the case to the Regional Director for hearing for the limited purpose stated in the court's opinion. On May 25, 1984, the Regional Director issued a notice of hearing pursuant to the Board 's remand order. Said hear- ing took place before me on June 27, 1984. 481 B. Summary of Evidence Presented At the hearing on June 27 , 1984, following the intro- duction of the formal papers and a brief presentation by the General Counsel summarizing the background of this case, four witnessess, three for Respondent, and one for the General Counsel , were presented . A summary of the testimony of these witnesses is as follows. 1. Eugene Champagne Eugene Champagne , a detective employed by the Pawtucket Police Department , Pawtucket, Rhode Island, has been a detective for 10 years . He testified that on Wednesday, April 22, 1981, he was present in the cock- tail lounge of the Howard Johnson Motor Lodge, Paw- tucket, Rhode Island , from 4 until 7 p.m. At that time, he and his partner Edward Randall were performing un- dercover work, which involved surveillance of an indi- vidual not connected with this matter . While on duty, he observed Richard Stromberg , business manager of the Charging Party, enter the lounge at approximately 4.30 p.m., accompanied by two other union agents.2 Shortly thereafter, approximately five or six men entered the'bar and were greeted by Stromberg Stromberg instructed the bartender that all drinks for these men were to be put on his tab . He did not hear any of the five or six men offer to buy Stromberg a drink before Stromberg stated that the drinks were on him. All of the individuals then started drinking . Sometime before 5 p.m. Stromberg and the other two union agents left the bar and returned after approximately 5 to 10 minutes. During this time, the five or six men continued drinking Shortly before 5 p m., two or three of the group of five or six arose to leave the room. Stromberg stated in a clear voice, "There's no hurry to leave. There's time before you have to vote. Have another drink before you go and vote." The indi- viduals stayed and had another drink thereafter. After that drink the five or six individuals did leave the bar. As they started to leave, Stromberg stated, "Don't forget how to vote , boys." By this time , each of the five or six individuals had approximately two or three drinks. The majority had consumed beer, but one or two had mixed drinks. After approximately 5 or 10 minutes, the five or six individuals returned to the lounge, one or two at a time and resumed drinking . As time passed , other indi- viduals entered the lounge until the group grew to ap- proximately 12 or 13. Stromberg told these latecomers that they were to have their drinks on his tab. At ap- proximately 6 p.m , a shift of bartenders took place, and Stromberg settled his tab with the original bartender He was observed by Champagne pulling out a large roll of bills from his pocket. The bartender was replaced by a female bartender who was instructed by Stromberg that he would pay the bar tab for all the drinks Approxi- mately 6 :20 p m Bob Blanchette , president of Respond- ent, entered the bar with his attorney , Robert Corcoran. They remained in the lounge for approximately 5 or 10 minutes before leaving . Blanchette returned to the lounge alone at approximately 7 p.m Champagne stated 2 At the time, Champagne had no idea of the identity of any of the union officials 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that each of the individuals for who Stromberg pur- chased drinks consumed on the average five or six drinks. He, himself, was drinking bloody marys, an alco- holic beverage consisting of vodka and tomato juice, which cost $1.75 each. On cross-examination, Champagne acknowledged that he has known Blanchette for more than 35 years, both having grown up in the same neighborhood. However, although Champagne admitted that he and Blanchette were good friends whose families see each other several times a year, he denied having any business relationship with Blanchette or that Respondent has performed any services for him. He further stated that to his knowledge, no one in the lounge was in an intoxicated state He fur- ther testified that he was not paying attention to whether oi•'not Stromberg was drinking, and did not know what drinks he or the other union representatives had in the lounge. He further conceded that at least seven or more of the individuals for whom Stromberg purchased drinks were consuming beer. Champagne further testified that he had no knowledge of what was going on at the motel during the time he was in the lounge, that it was not prearranged that he would be there, and that it was mere coincidence that he was there and saw what was happening. He further stated that the following day he telephoned Blanchette to inquire what was happening. It was then that he learned about the election. He then informed Blanchette that somebody was buying drinks for other people at the bar, describing Stromberg as the purchaser of the drinks. Blanchette told him that he would discuss the matter with his attorney, and inquired whether Champagne would provide a statement, which he agreed to do Thereafter, meeting with Corcoran the following Satur- day, he and his partner provided statements upon which the objections to the election were based Champagne emphasized that his testimony was not influenced in any way because of his friendship with Blanchette and that what he stated was the truth. 2 Edward H Randall The second witness was Edward H Randall, a detec- tive on the police force of Pawtucket 3 With respect to the events in the lounge of the motel between 4 30 and 7 p.m on the day of the election, Randall essentially con- firmed Champagne's testimony. Significantly, he recalled Stromberg stating to the men as they got up to leave the bar at approximately 5 p.m, "Don't forget how to vote, boys " He estimated that the five or six individuals had two or three rounds of drinks apiece before 5 p.m., drinking mixed drinks and beer. He also testified that he was drinking bloody marys, consuming approximately three during his stay in the lounge. Randall did not know Blanchette prior to being introduced to him by Cham- pagne in the bar. Randall also, like Champagne, did not know Stromberg or any of the other individuals in the lounge that day. 3 On the date of the election Randall had been a detective for 10 months 3 Robert Blanchette Robert Blanchette, president of Respondent, was the third and last witness for Respondent to testify. He testi- fied that on the date of the election he attended a pre- election conference at the motel immediately prior to the election which was scheduled from 5 to 7 p.m. Also at- tending the meeting were two observers, Stromberg, Curtin (another union agent), and the Board agent con- ducting the election At this meeting, it was agreed that if all eligible voters voted prior to 7 p.m. the polls would be closed. He testified that approximately 6:20 p.m., he entered the lounge with Corcoran. They seated them- selves at a table, and did not speak to any of the employ- ees or union officials. However, he did observe approxi- mately 12 to 15 of his employees drinking and talking with the union officials. He and Corcoran remained in the lounge approximately 5 minutes He returned to the room where the polling took place at approximately 6 45 p.m. at which time the ballots were counted. Following the tally of ballots, he returned to the lounge, and an- nounced that he was buying drinks for everyone in the room. The tab amounted to about $50. On cross-examination, Blanchette asserted that all the employees finished their work at approximately 4 p.m. None of them were paid for any time between 5 and 7 p.m. Blanchette further stated at the time he entered the lounge at 6:20 p.m, although observing his employees drinking, he was not aware whether or not all the em- ployees had voted. 4. Richard Stromberg Following Blanchette's testimony, Respondent rested, and the General Counsel called on his only witness, Richard Stromberg. Stromberg testified that on April 22, 1981, he arrived at the Howard Johnson Motel in Pawtucket approxi- mately 3.30 p m., along with Earl J. Curtin, president of the Union, and Al Spaziano, the Union's financial secre- tary The group waited for the arrival of the Board agent, who came shortly after 4 p.m Shortly thereafter Blanchette and Corcoran appeared Approximately 4.40 p in the preelection conference was held, lasting ap- proximately 10 minutes. Following the pre-election con- ference, he entered the lounge, located approximately 50 yards from the room where the election was being held. The three union officials sat down on bar stools. After a short time, Howie Zahn, one of the voters, entered the lounge with two other voters and all sat down at a table nearby. Zahn approached the bar, ordered drinks, and in- structed the barmaid to provide drinks for the union offi- cials which was refused by Stromberg After some ban- tering back and forth between Zahn and Stromberg, Zahn did purchase a drink for the union officials. Strom- berg agreed to accept the drink under condition that he buy Zahn a drink also. Stromberg and Curtin ordered soft drinks, Spaziano ordered wine. Immediately thereaf- ter, Stromberg instructed the barmaid to "give them whatever they want." He further told her, "Anyone else who comes in here from Labor Services when they get through voting put it on my tab. There [sic] drinks are on me." Thereafter, from 5:10 until almost 6:30 p in., LABOR SERVICES various employees of Respondent entered the lounge, all of whom were drinking on Stromberg's tab Stromberg stated that he had approximately $150 in cash at the time he entered the bar At approximately 6 p in he settled with the outgoing bartender for approximately $58 or $68 including a tip. He left the lounge sometime later for the tally of ballots, and returned to the lounge to cele- brate as the Union had won. He thinks he told the bar- person to set up drinks for anyone in the bar who wanted one, including people who were not employees of Respondent He left approximately 8 or 8:30 p.m. with Curtin and Spaziano. His total expenditure for the evening on drinks was approximately $135. With respect to conversations he had with employees prior to their voting, Stiomberg denied stating to anyone, "Don't go yet. You have a few minutes more to take a drink," and "Don't forget how to vote " Stromberg further testified that some of the employees pointed out to him that Robert Blais, one of the supervi- sors of Respondent, was present in the lounge, arriving at approximately 5:10 p in Blais remained in the lounge for at least 1 hour, and was there when Blanchette ar- rived at 620 p.m. He thinks that Blais, accompanied by one other employee of Respondent, joined the other em- ployees at a table for a few drinks. On cross-examination, Stromberg acknowledged that Arther Deciutis, a member of the executive board of the Union, entered the lounge shortly prior to 5 p.m and joined him and the other union officials He acknowl- edged that neither Zahn nor the other two employees with him had not voted prior to his purchasing drinks for them. He conceded that he did not tell the bartender to ask each individual whether or not he had voted before giving him a drink He further testified that all the employees who came into the lounge after 5 p.m. told him that they had already voted, after which he bought drinks for them. He recalls that Zahn was drinking beer, as was the majority of employees, but does not know whether or not any one was drinking mixed drinks. On cross-examination, Stromberg stated that Blais, Re- spondent's supervisor, was in the company of another employee of Respondent who was not eligible to vote, but that he did not see Blais or the other employee buying drinks for employees during the election. Following the testimony of Stromberg all parties rested C Credibility of the Witnesses It is unfortunate that none of the employees voted in the election appeared as witnesses for either side to ex- plain what occured in the lounge on the date of the elec- tion Blanchette testified without contradiction that these were former employees. I therefore have drawn the con- clusion that none of the voters are still employed by Re- spondent. Whether any of them are still members of the Union was not established. Therefore, I am compelled to weigh the testimony of two detectives of the Pawtucket Police Department, one of whom is a close friend of Re- spondent's president, against that of Stromberg, business manager of the Charging Party In addition to considering the demeanor of the wit- nesses, the Board has stated, "It is abundantly clear that 483 the ultimate choice between conflicting testimony also rests on the weight of the evidence, established or admit- ted facts, inherent probabilities, reasonable inferences drawn from the record, and, in sum, all of the other vari- ant factors which the trier of fact must consider in re- solving credibility" Northridge Knitting Mills, 233 NLRB 230, 235 (1977). I have arrived at my credibility findings based on these criteria. Respondent contends that "Champagne and Randall should be credited over Stromberg The two detectives were neutral, uninterested witnesses who testified can- didly and credibly in response to a subpoena. They had no motive to fabricate testimony, and, as police officers accustomed to testifying under oath can hardly be pre- sumed to have done so. On the other hand, Stromberg, the individual whose conduct occasioned this prolonged proceeding, had an obvious incentive not to recollect his comments in the bar." The General Counsel and the Charging Party contend that the testimony of the two police officers should be rejected because the personal friendship between one of them and Respondent's president tainted their testimony. Further, Stromberg's testimony was clear and consistent, whereas the testimony of the police officers was not. Despite the eloquent arguments of the General Coun- sel and Charging Party, I am compelled to credit the tes- timony of Champagne and Randall' against that of Stromberg for the following reason- 1. Although I initially thought it to be more than mere coincidence that Champagne, a personal friend of Blan- chette, was present in the same lounge as the union offi- cials and voters during the election period, no evidence was adduced to convince me that their presence was nothing more than coincidental. Had Champagne not known Blanchette or had not been engaged in an under- cover assignment involving surveillance in the lounge at the same time Stromberg was buying drinks for voters, this case would have been terminated years ago, as these would have been no basis for objections to the election. Because of such coincidences, plots unfold 2 No evidence was adduced that Respondent knew that Stromberg was planning to buy drinks for voters prior to and during the election in the lounge of the motel where the election was scheduled Rather, the evi- dence clearly established that the entire situation was a spontaneous one, which was effectuated when Zahn and other employees entered the lounge prior to voting. Thus, I cannot conclude that the police officers were planted by Respondent for the purpose of fabricating evi- dence to void the election. Further, nothing in the record indicates that there was any animus between the Employer and the Union It is noted further that follow- ing the election, Blanchette, having ascertained that he had lost the election, bought drinks for everyone in the lounge. It was not until the following day that he saw the possibiliby of a reversal after Champagne informed him what had occurred in the lounge. 3 I found Stromberg to be a candid and forthright witness, admitting many facts damaging to him. Howev- ' With one exception noted below 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er, having no reason to suspect that his words and ac- tions would be the cause of the present action , he had no reason to remember specifically everything which took place on the date of the election . Thus, when confronted with the objections to the election several days later, in all probability he was compelled to reconstruct the events as he believed they had occurred , not as they actu- ally did happen. 4. None of the employees who took part in the elec- tion and were in the lounge on election day were called to testify As they no longer are employees of Respond- ent, and as they probably would not be friendly wit- nesses from Respondent 's viewpoint, I can excuse Re- spondent from not calling any of them as witnesses However, neither the General Counsel nor the Charging Party offered any explanation why none of the employ- ees or none of the other union officials present with Stromberg were called to testify . I conclude that either none of them could accurately recall the facts surround- ing the events of the day, or in recalling said events, none would have been able to support Stromberg's ver- sion of what happened in the lounge. Respondent argues that , although the two police offi- cers overheard Stromberg loudly tell the employees how to vote, they were unaware that an election was taking place, and, thus, should not be credited . The record does not contain sufficient evidence to convince me that the officers knew that an election involving his friend's em- ployees was taking place at that time in the very motel where the lounge was located Nor is it clear that the de- tectives heard any talk about a victory celebration, or that the Union had won the election Thus, it is conceiv- able that the police officers, not sophisticated with union elections, did not know an election was being conducted that day. The Charging Party further suggested that the judge "read very closely testimony offered by Mr. Champagne at page 104 of the transcripts," claiming there is no refer- ence to Stromberg's talking to voters in the lounge. I have read page 104 of the transcript . Although the Charging Party correctly points out that Champagne did not supply Blanchette details of the conversations be- tween Stromberg and the voters , in response to whether he would submit an affidavit , he responded, "Sure, I'll tell you what I heard and saw " I find that this statement sufficiently refutes the Charging Party's argument. With respect to whether or not Zahn first offered to purchase drinks for the union officials, I do credit Strom- berg. He clearly explained the background leading to his purchasing drinks for the employees . The detectives tes- tified that they heard no such conversation . As they had no reason to be alert to the entire events that occurred in the lounge that date , it is very probable that they missed some of the conversation that did take place. Stromberg, as stated earlier, impressed me as a candid witness. He recalled in detail what led up to his buying employees drinks. I credit this portion of his testimony. In summary, I make the following findings of facts: 1. On the date of the election, union officials entered the lounge of the Howard Johnson Motor Lodge, Paw- tucket, Rhode Island, about 4 . 15 p.m. Shortly thereafter, five or six employees of Respondent entered the lounge. One of them , Howie Zahn, offered to buy and did buy drinks for the union officials Stromberg , in turn , bought drinks for the employees, and informed the bartender that he would pay for their drinks 2. As the employees left the lounge at 5 p in . to vote, Stromberg stated , "Don't forget how to vote, boys." 3. By this time, each employee had consumed two or three drinks each , mostly beer, with one or two having mixed drinks. 4. Thereafter, the five or six voters returned to the lounge, and an additional six to nine employees entered the lounge during the time of the election between 5 and 7 p.m. Stromberg purchased drinks, mostly beer but some mixed drinks, for all of them at a cost of about $135 for the entire tab. Discussion and Analysis Having made credibility findings which afford us a clearer picture of what occurred in the lounge on April 22, 1981 , 1 am now confronted with the problem of "choosing sides." Following the Regional Director's Report on Objec- tions, in which the Regional Director concluded that the objections were without merit and issued a certificate of representative to the Union , a majority of the Board, consisting of Members Fanning, Jenkins, and Hunter, adopted the Regional Director 's report stating that it agreed with the Regional Director's recommendations, and that it had considered its colleagues' dissent and analysis. The dissenting colleagues consisted of then- Chairman of the Board Van de Water and Member Zim- merman (259 NLRB 959 (1982)) The Board's application for enforcement of its summa- ry judgment (265 NLRB 463) was denied by a three- judge panel . Judges Coffin and Fairchild, the latter, a senior circuit judge of the Seventh Circuit, sitting by designation , denied enforcement of the summary judg- ment and remanded the case to the Board for further proceedings. Judge Breyer dissented , and would have granted enforcement. In summary, one Regional Director, three of the Board Members and one judge are in agreement that the election results are valid , while two Board members and two judges are in agreement that the election results should be overturned. The Regional Director, all of the Board Members, and the judges of the court of appeals have thoroughly ana- lyzed this case and, although different conclusions were reached, it was unanimously agreed that no specific Board or court decision rested on facts similar to the set of facts found herein, and thus there was no precedent upon which they could rely in arriving at their decision. I, too, have reached the same conclusion. Circuit courts have repeatedly admonished the Board for continuing to issue decisions contrary to the court's decision rendered previously on the same point. Never- theless, I have concluded that, although the evidentiary hearing provided me with more facts, none of the addi- tional facts presented have such import as to warrant a reversal of the original Board decision, which was based on the Regional Director's Report of Objections. Al- LABOR SERVICES though the court made it clear in its split decision that it did not deem the factors relied upon by the Regional Di- rector sufficient to grant enforcement of the Board's summary judgment, with all due respect to the court, 1, as an administrative law judge, am bound by Board deci- sion, unless and until the Supreme Court of the United States rules otherwise One factor not considered by the Regional Director in his report of objections was the value of the drinks. The total cost amounted to approximately $135. Each mixed drink cost about $1 75, each bottle of beer perhaps $1. Most of the consumption of liquor took place after the employees voted and the Union was proclaimed the victor. In any event, dividing $135 into an average of perhaps $1.35 a drink indicates that approximately 100 drinks were purchased by Stromberg. Anywhere from 15 to 1 S individuals were drinking on Stromberg's tab Thus, an average of 6 or 7 drinks were consumed per capita. However, evidence established that only an aver- age of three drinks were consumed by five or six voters prior to their voting. With these additional facts before it, the Board may or may not adhere to its original decision Of the five Board Members issuing its 3 to 2 decision in 1982, only two, Hunter and Zimmerman, are still on the Board. Howev- er, Member Zimmerman already has announced his res- ignation upon completion of his term in December 1984 I cannot foretell whether the two recent appointees, in- cluding Chairman Dotson, and the two future-to-be-ap- pointed members will support Member Hunter or, indeed, whether Member Hunter himself will adhere to his original decision I do recommend that the two earli- er Board decisions, based on the Regional Director's Report of Objections, be upheld In reaching this conclu- sion, I am in accord with the dissenting judge in the court decision (721 F 2d 13,18 (1983)) who stated, ". . this case presents precisely the type of minor, detailed in- terstitial question of labor election policy that Congress asked the Labor Board, not the courts, to decide. Cf NLRB v. Hearst Publications Inc., 322 U.S. 111, 130-131, 64 S.Ct. 851, 860-61, 88 L Ed 1170 (1944) (determina- tion of coverage of Act in borderline cases assigned pri- marily to Board )" The Board, having considered the facts of this case as favorably to Respondent as possible, found no grounds to reverse the Regional Director. The Board has held that it will consider objection cases on an ad hoc basis, and concluded that the facts of the instant case did not warrant setting aside the election Although I agree with the Board's decision, I recom- mend that the Board re-think its position of deciding each case on an ad hoc basis, and establish specific rules that all parties can understand and follow on the subject of providing drinks and other refreshments to voters prior to and during an election. As the court pointed out, "the Board's own oft-articu- lated objective [is] `to establish in election proceedings conditions as nearly ideal as possible to determine the un- inhibited desire of the employees.' Rattan Art Gallery Ltd., 260 NLRB 255 (1982) (citing General Shoe Corp., 77 NLRB 124, 127 (1948). 721 F.2d at 15. 485 The court further points out that the Board's ruling may result in unions and employers, competing for voter preference, plying voters with drinks outside the polling area, resulting in a "return to turn-of-the-century. pursuit of voters through the discriminating distribution of alco- hol " Again, the court stated in its remand, "We think the case at bar is different in ::ind from all other cases, is fraught with serious implications, and demands some helpful guidance for both unions and employers." In his dissent, Judge Breyer wrote, "Now that the ma- jority [of the Court] has distinguished the `tuna fish on rye with Pepsi' from the `double scotch' what is next? Will we have to decide where beer and hamburgers fit on the spectrum?" These questions posed by the court need not have been asked had the Board established more precise rules regarding refreshments during the day of the election. I do not consider it fair and proper for the Board to penalize the Union herein by reversing its original hold- ing. The employees chose the Union fair and square by a wide margin Several drinks do not influence voters who have clear heads, and the evidence established that no one left the lounge in a intoxicated or inebriated condi- tion True no one stood at the polls with a Breathalyzer or other scientific instruments to guage the extent of the alcoholic content in each voter's body. At any rate, no two individuals are affected the same by alcohol Some are influenced after one or two drinks, others need much to affect their senses. It is impractical to test the effects of alcohol on each voter who presents himself at the polls. The simple solu- tion is for the Board to establish rules-to be effective for future cases A suggestion of a rule to be considered might be one similar to the Peerless Plywood rule (Peerless Plywood Co., 107 NLRB 427 (1953)), which forbids cam- paign speeches on company time during the 24-hour period immediately preceding an election. A rule on drinking, as established by 20 States, plus the District of Columbia, but not Rhode Island, in state- conducted elections, forbids the sale of liquor during the time the polls are open on election day. The Board could established a similar rule which would proscribed the purchase of liquor by either unions or employers on the day a Board-conducted election is to be held. For Board guidance, California has a statute which reads- A place where any alcoholic beverage is sold or disbursed shall not be used as a polling place. A polling place shall not be connected by a door, window or other opening with any place where any alcoholic beverage is sold or disbursed. [West's California Annotated Election Code, Sec. 14404]. Massachusetts has double protection in that Section 138.33 of the Annotated Laws of Massachusetts prohibits the sale of liquor during elections while Section 54.24, referring specifically to the location of polling places, states 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alcoholic beverages shall not be sold in any portion of a building which is designated as a polling place during voting hours or while ballots are being counted therein Had the Board adopted a stance similar to that of Cali- fornia, though perhaps worded like the Massachusetts statute, the instant case would never have occurred. The election could not have been held in a motor lodge, where alcoholic beverages were served on the premises (albeit not at the polling place itself) during the voting. Conclusion Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a)(5) and (11) of the Act, I shall recommend that the Remedy, Conclusions of Law, Order, and notice to employees as stated by the Board in its summary judg- ment, 265 NLRB 463, 464-466 (1983), be reaffirmed by the Board.