Sequel of New Mexico, LLC, d/b/a Bernalillo Academy

1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sequel of New Mexico LLC, d/b/a Bernalillo Acade- my and Andrea E. Baumgartner and District 1199NM, National Union of Hospital and Healthcare Employees AFSCME, AFL–CIO. Case 28–RD–093404 December 15, 2014 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND JOHNSON The National Labor Relations Board, by a three- member panel, has considered objections to an election held December 21 and 22, 2012, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agree- ment. The tally of ballots shows 18 for and 21 against the Union, with no challenged ballots. The Board has reviewed the record in light of the ex- ceptions and briefs, has adopted the hearing officer’s findings and recommendations only to the extent con- sistent with this Decision, and finds that a certification of results of election should be issued. The hearing officer recommended sustaining the Un- ion’s Objection 1, which alleges that the Employer en- gaged in objectionable conduct by holding a holiday par- ty for employees on the first day of the election without a past practice of holding such parties.1 For the reasons that follow, we reject the hearing officer’s recommenda- tion. On November 16, 2012,2 employee-Petitioner Andrea Baumgartner delivered a decertification petition to the Board, which was filed and served on the parties on No- vember 19. Also on November 19, the Employer’s “em- ployee retention committee” (consisting of four manag- ers and two employees) issued a flyer that announced a staff holiday party to be held on December 21.3 The flyer described the party as a “staff dinner” for employ- ees and their guests, to be held on December 21 from 6 to 9 p.m., and the invitees included nonunit as well as unit employees. On November 26, the Regional Director approved a Stipulated Election Agreement scheduling the election for December 21 and 22. On December 21, ap- proximately 65 people attended the party, which was held at a barbeque restaurant and featured appetizers, 1 In the absence of exceptions, we adopt pro forma the hearing of- ficer’s recommendations that Objections 2, 3, and 4 be overruled. 2 All dates hereafter are in 2012. 3 The flyers did not refer to the decertification election, and the De- cember 21 and 22 election dates had not been set at the time the party was announced. To the contrary, as noted in the text, the Stipulated Election Agreement was not approved by the Regional Director until November 26. drinks, and a buffet. Employees were not paid for at- tending, and the election was not discussed. The Em- ployer provided food and smoothies at its facility for employees who were required to work during the party. During the critical preelection period, the Employer offered employees food at other times in addition to the holiday party, providing smoothies on at least one other occasion. Also, about 2 weeks before the election, the Employer started allowing employees to eat lunches pro- vided for the students at the Bernalillo Academy (the Academy). No evidence was introduced regarding whether, how often, or how many employees ate the lunches. One week before the election, the Employer held a voluntary meeting at the facility during work hours at which it served breakfast burritos and beverag- es.4 Since it began managing the Academy in March 2011, the Employer had not previously hosted a party or offered free food or drink. The Union did not allege the- se other “free food” events as objectionable. The hearing officer noted that the Employer an- nounced its holiday party on the same day the petition was filed, held the party on the first day of the election, and had no prior history of hosting parties. Citing these facts and the closeness of the election, the hearing officer found that employees would reasonably view the holiday party and additional instances of free food described above as a “series” of “first-time benefits” provided to dissuade employees from supporting the Union. She recommended that the results of the election be set aside. We disagree. The Board’s principles in this area are longstanding and have been equitably applied to employers and unions alike: “[C]ampaign parties, absent special circumstanc- es, are legitimate campaign devices.” L. M. Berry & Co., 266 NLRB 47, 51 (1983) (citing Fashion Fair, Inc., 157 NLRB 1645, 1646 fn. 3 (1966), enfd. in relevant part 399 F.2d 764 (6th Cir. 1968)) (employer’s Christmas party— at which the union was not mentioned—8 days before election was lawful). Thus, the Board “will not set aside an election simply because the union or employer pro- vided free food and drink to the employees.” Chicago- 4 The hearing officer found that, at this meeting, managers “asked employees how they could make things better.” In its brief in response to the Employer’s exceptions, the Union claims that the Employer thereby engaged in an objectionable solicitation of grievances. The Union did not, however, file any objection alleging a solicitation of grievances. Assuming without deciding that the Union could have raised its solicitation-of-grievances claim by way of exceptions to the hearing officer’s report, it did not do that, either. Accordingly, the Union’s claim is not properly before us. The Union also contends that certain managers’ comments place the holiday party “in context”; but again, it filed no exceptions and thus did not except to the fact that the hearing officer did not link the managers’ comments to the party. Ac- cordingly, this contention is also not before us. 361 NLRB No. 127 BERNALILLO ACADEMY 1125 land Television News, Inc., 328 NLRB 367, 367 (1999).5 However, the Board will examine whether particular events constitute or involve benefits sufficiently large to interfere with laboratory conditions for a fair election, which can result in setting aside the election. See Chica- go Tribune, 326 NLRB 1057 (1998). In determining whether the objecting party has estab- lished special circumstances, the Board examines several factors, including (1) the size of the benefit conferred in relation to the stated purpose for granting it; (2) the num- ber of employees receiving it; (3) how employees rea- sonably would view the purpose of the benefit; and (4) the timing of the benefit. Chicagoland Television News, supra at 367 (citing B & D Plastics, 302 NLRB 245, 245 (1991)). As the objecting party, the Union has the bur- den to show by specific evidence that there has been prejudice to the election. Affiliated Computer Services, 355 NLRB 899, 900 (2010). After carefully considering all relevant factors, we find that the Union has not met its burden on the specific facts of this case. First, the Union failed to present any evi- dence regarding the size of the benefit—i.e., the cost of the food and drinks provided by the Employer—in rela- tion to its stated purpose. Absent such evidence, there is no basis to find this holiday party, even considered with the other instances of free food and drinks provided by the Employer, is like the lavish brunch found objectiona- ble in Chicago Tribune, 326 NLRB at 1057.6 Rather, the party appears to have been more like the event found unobjectionable in Chicagoland Television News, supra, 328 NLRB at 367. The Union has failed to meet its bur- den of providing specific evidence relative to the first B & D Plastics factor.7 Moreover, the evidence in this case does not establish anything about the arrangements for the party or the con- duct at the party that amounts to “special circumstances.” All employees, unit and nonunit, were invited to attend the holiday party. Attendance was voluntary, and em- ployees were not paid for the time spent at the party. See Chicagoland Television News, supra (party unobjection- able where nonunit employees were also invited to at- 5 See also Lamar Advertising of Janesville, 340 NLRB 979, 980 (2003); E-Z Recycling, 331 NLRB 950, 952 (2000); Jacqueline Cochran, Inc., 177 NLRB 837, 839 (1969); Lloyd A. Fry Roofing Co., 123 NLRB 86, 87–88 (1959). 6 See also Gould, Inc., 260 NLRB 54 (1982) (combination Christmas party and open house found objectionable where, among other actions, employer distributed more than $2000 in gifts to children of employ- ees). 7 Accordingly, we need not decide whether other instances of free food and drink not alleged as objectionable were sufficiently related to the Union’s objection concerning the holiday party to warrant consider- ation. See Precision Products Group, 319 NLRB 640, 641 fn. 3 (1995), and cases cited therein. tend, attendance was voluntary, and employees were not paid for attending); compare River Parish Maintenance, Inc., 325 NLRB 815, 815 (1998) (paying employees ex- tra hour’s pay to attend offsite “crab boil” found objec- tionable). Nor was there mention of the Union or the election at the holiday party. See Fashion Fair, Inc., 157 NLRB at 1646 fn. 3 (“Respondents’ preelection party, at which no mention was even made of the Union, clearly did not violate the Act.”); Chicagoland Television News, supra (party unobjectionable where invitation promised “No electioneering! Just food, drink, and good compa- ny!” and there were no campaign speeches). Finally, we accord little weight to the fact that this was the first such event any witness could recall because the Employer only assumed management of the facility 21 months be- fore the election. As for the timing of the party, there is no evidence that the election date had been set at the time the party was announced. We recognize that the holiday party was held in close proximity to the election, and that some of the other instances of free food and drink during the crit- ical period may not have been provided if there were no election. But where free food and drink is otherwise unobjectionable, proximity to the election is insufficient to create special circumstances warranting a new elec- tion. See Chicagoland Television News, supra (party held day before election unobjectionable); see also Peachtree City Warehouse, Inc., 158 NLRB 1031, 1035– 1036, 1039–1040 (1966) (employer-sponsored dinner with music, dancing, and liquor shortly before election unobjectionable); Lach-Simkins Dental Laboratories, 186 NLRB 671, 671–672 (1970) (union-sponsored free luncheon at the time and near the place of polling unob- jectionable); Lloyd A. Fry Roofing Co., supra (union par- ty, day before election).8 8 In upholding Objection 1, the hearing officer cited Notre Dame Hills Medical Services, 247 NLRB 957 (1980), and Lou Taylor, Inc., 226 NLRB 1024 (1976), enfd. per curiam in relevant part 564 F.2d 1173 (5th Cir. 1977). Those cases are distinguishable. In Notre Dame, the employer had announced that employees would have to pay to attend its holiday party. Two days after the representa- tion petition was served on the employer, the employer posted a notice stating that the party would be free and, soon thereafter, announced a wage increase and gave each employee $10 cash. 247 NLRB at 959. The Board adopted the judge’s findings that the employer’s conduct improperly dissuaded employees from supporting the union in violation of Sec. 8(a)(1). Here, by contrast, the party was always free, and there were no allegations of any objectionable announcements, or grants of wage increases, or bonuses. In Lou Taylor, the day before the election the employer promised there would be a Christmas party 1 week after the election and that employees (i) would work until noon the day of the party but be paid for the full day, and (ii) would receive a paid holiday the following day. 226 NLRB at 1029. The Board adopted the judge’s finding that the employer unlawfully promised and then granted “its employees a half DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126 Under the circumstances of this case, we find that the party did not constitute objectionable conduct that war- rants setting aside the election. Accordingly, for the rea- sons stated above, we overrule Objection 1 and certify the results of the election. day’s paid holiday while they attended the Christmas party.” Id. Here, by contrast, employees were not paid for attending the party as a new holiday benefit. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid ballots have not been cast for District 1199NM, National Union of Hospital and Healthcare Employees AFSCME, AFL– CIO, and that it is not the exclusive representative of these bargaining-unit employees.