Perdue Farms

National Labor Relations Board - Board Decisions

Feb 2, 1996

320 N.L.R.B. 805 (N.L.R.B. 1996)

805
320 NLRB No. 64
PERDUE FARMS
1 In the absence of exceptions, we adopt pro forma, the hearing
officer’s recommendations to overrule the Petitioner’s Objections 6,
9, 10, and 12–15.
In adopting the hearing officer’s finding that the Employer’s offer
and payment of 4 hours of pay to employees not scheduled to work
on the day of the election (the Petitioner’s Objection 7) was objec-
tionable conduct warranting setting aside the election, we rely only
on our recent decision in Sunrise Rehabilitation Hospital, 320 NLRB
212 (1995), in which we held that monetary payments to employees
‘‘that exceed reimbursement for actual transportation expenses’’ are
objectionable.
Additionally, because we adopt the hearing officer’s recommenda-
tion to set aside the election on the basis of Objection 7, we find
it unnecessary to pass on the Petitioner’s exceptions as they relate
to other objections.
1 Young Men’s Christian Assn., 286 NLRB 1052 (1987) (YMCA).
2 My colleagues would apparently permit an employer to reim-
burse an employee for travel expenses, but not for use of the em-
ployee’s free time. There is no explanation for the difference, and
I perceive none.
3 I also find it unnecessary to pass on the other objections inas-
much as the Board majority is setting aside the election based on
Objection 7.
Perdue Farms, Inc. and United Food and Commer-
cial Workers Union, Local 204, a/w United
Food and Commercial Workers International
Union, AFL–CIO, CLC, Petitioner. Case 11–
RC–6094
February 2, 1996
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The National Labor Relations Board has considered
objections to an election held June 28, 1995 and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows
851 for and 952 against the Petitioner, with 53 chal-
lenged ballots, an insufficient number to affect the re-
sults.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations, and finds that the
election must be set aside and a new election held.
[Direction Of Second Election omitted from
pubication.]
MEMBER COHEN, dissenting.
In Sunrise Rehabilitation Hospital, 320 NLRB 212
(1995), my colleagues held that payments to off-duty
employees who would come to the facility and vote
would be grounds for setting aside an election, if such
payments exceeded actual transportation expenses. In
so holding, my colleagues overruled established prece-
dent to the contrary.1 I dissented in Sunrise. As set
forth more fully in that dissent, I believe that the re-
versal of precedent was unnecessary, unwise and pe-
remptory, i.e., done without knowledge of the relevant
facts.
My colleagues now repeat their error and apply Sun-
rise to overturn still another election. I would apply
YMCA and uphold the election. In this regard, I note
that the Employer made the payments in pursuit of the
goal of encouraging employees to vote. The hearing
officer found that the evidence did not establish that
the Employer made the offer only to employees who
were perceived as likely to vote against the Union. Nor
was the offer of payment coupled with an antiunion
message, as it had been in YMCA.
Concededly, the payments were, in some respects,
larger than those in YMCA. The payments were equiv-
alent to 4 hours’ pay; the payments in YMCA were
equivalent to 2 hours’ pay. However, the Employer has
explained that the 4 hours of pay (approximately $27)
was intended to compensate for: (1) the time of travel-
ing back and forth from residence to polling place, a
distance that is substantial in many cases; (2) the time
for voting; and (3) travel expenses. There is no show-
ing that the amount of money is beyond reasonable re-
imbursement for the use of an employee’s free time
and for travel expenses.2 As the objecting party, the
Petitioner bears the burden of establishing the facts to
support the objection. Since it failed to do so, I would
uphold the election.3