Red Lion

National Labor Relations Board - Board Decisions

Jan 9, 1991

301 N.L.R.B. 33 (N.L.R.B. 1991)

33
301 NLRB No. 7
RED LION
1 In the absence of exceptions, we adopt pro forma the hearing officer’s rec-
ommendation to overrule Objections 1 and 4. The Union withdrew Objection
3 at the hearing.
2 Chairman Stephens notes that, unlike the circumstances in Young Men’s
Christian Assn., 286 NLRB 1052 (1987), in which he dissented, the payments
to off-duty employees here were not substantial, ranging from $2.10 to $3.50,
and thus cannot be viewed as having reasonably tended to influence the elec-
tion outcome in favor of the Employer.
3 In Marathon Le Tourneau Co., 208 NLRB 213, 223–224 (1974), enfd.
mem. 498 F.2d 1400 (5th Cir. 1974), the Board found that the employer inter-
fered with the election by requiring voters who wanted to participate in a post-
election raffle to have their names checked off on a copy of the official voter
eligibility list after they had voted. We find Marathon Le Tourneau to be dis-
tinguishable from the instant case because in that case there was no showing
that the employees were aware of a legitimate reason for the employer’s main-
taining a list of employees who had voted, whereas in the instant case, as dis-
cussed above, the employees had good reason to understand the legitimate ad-
ministrative purpose of the election day payroll roster for off-duty employees.
We find Days Inn Management Co., 299 NLRB 735 (1990), to be distinguish-
able for similar reasons.
Chairman Stephens notes that his dissent in American Nuclear Resources,
300 NLRB 567 (1990), is inapplicable because the sign-in procedure for off-
duty employees here was in accord with the Employer’s standard practice of
maintaining sign-in sheets in order to reimburse off-duty employees for their
attendance at meetings.
4 Neither the Employer nor the Petitioner have either excepted to or argued
in support of the hearing officer’s posthearing rejection of the stipulation.
Red Lion, a California Limited Partnership,
Employer/Petitioner and Hotel Employees, Res-
taurant Employees, Local 360 and Arlene G.
Snow, Petitioner. Cases 36–RM–1265 and 36–
RD–1312
January 9, 1991
DECISION AND NOTICE TO SHOW CAUSE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held March 15, 1990, 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 42 for and 43 against
the Union, with 2 challenged ballots, a sufficient num-
ber to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, and adopts the hearing officer’s
findings and recommendations as discussed here.1
1. We adopt the hearing officer’s recommendation to
overrule the Union’s Objection 2, which alleges that
(1) the Employer paid employees to vote in order to
influence them to vote against the Union; and (2) the
Employer created an impression of surveillance by re-
quiring off-duty employees who came to the facility to
vote in the election to sign a special off-duty payroll
roster confirming that they had voted, as a condition
of receiving one-half hour’s pay.
The Employer has demonstrated a valid business
reason for keeping a list of off-duty employees who
voted and who wanted to receive the one-half hour’s
pay. Payment was not to be immediate, but by checks
issued sometime after the election. Thus, the Employer
needed to know, for payroll purposes, which employ-
ees were to get the payment.2 The 56 off-duty employ-
ees who potentially could have applied for this pay-
ment made accurate recordkeeping a necessity.
The employees understood the legitimate administra-
tive purpose of the election day payroll roster for off-
duty employees. The Employer’s standard method of
recording daily attendance and hours was by a signa-
ture roster. In the past, off-duty employees who at-
tended meetings at the Employer’s facility had to sign
a special roster in order to be paid.
The procedures themselves were straightforward.
The roster was kept in the office of the director of
human resources, which was located upstairs from and
out of sight of the polling place. After asserting or ac-
knowledging that they had voted, the employees signed
the roster. They were not asked how they had voted
and they did not have to identify themselves as voters
until after they had voted.
Under all the circumstances, we find that the Em-
ployer’s requiring off-duty employees to sign the spe-
cial payroll roster after they had voted, if they wanted
to receive payment for coming to the facility to vote,
did not create an impression of surveillance, and did
not otherwise interfere with the election. Accordingly,
we affirm the hearing officer’s recommendation to
overrule this objection in its entirety.3
2. We also affirm the hearing officer’s posthearing
rejection of the stipulation entered into by the parties
and accepted by the hearing officer at the start of the
hearing. The stipulation stated that the Union’s chal-
lenges to the ballots of Chana Nation and David Ritch-
ie would not be contested by the Employer.
The hearing officer observed that the parties had not
presented any evidence on the supervisory status of
these two employees. He concluded that without that
factual basis he could not rely just on the parties’
agreement that the Employer would not contest these
challenges, possibly to disenfranchise two voters
whose names were on the eligibility list. The hearing
officer recommended that the challenges to the ballots
of Nation and Ritchie be overruled, and that the ballots
be opened and counted.
In its exceptions to the hearing officer’s report, the
Union notes that the hearing officer gave no indication
at the hearing that a presentation of evidence would be
necessary to support the stipulation in question. The
Union argues that the hearing officer’s posthearing re-
jection of the stipulation on the grounds of an absence
of supporting evidence ‘‘denies the parties due proc-
ess.’’4
We find that the Union has established that it rea-
sonably relied on the hearing officer’s acceptance of
the stipulation at the hearing in not introducing evi-
dence in support of its challenges. In these cir-
cumstances, we shall not at present adopt the hearing
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
officer’s recommendation to overrule the challenges
and have the ballots opened and counted. Instead, we
shall provide the parties with an opportunity to proffer
evidence on the eligibility of Chana Nation and David
Ritchie to vote in the election. Accordingly,
Notice is given that cause be shown, in writing, filed
with the Board in Washington, D.C., on or before Jan-
uary 23, 1991 (with affidavit of service on the parties
to this proceeding), why the Union’s challenges to the
ballots of Chana Nation and David Ritchie should not
be overruled.