Rite Aid Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 924 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 924
Rite Aid Corporation and United Food and Commer-
cial Workers Union, Local 381, Petitioner. Case
19–RC–13486
August 27, 1998
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered an objection to an election
held October 1, 1997, and the hearing officer’s report
recommending disposition of it. Pursuant to a petition
filed September 4, 1997, the election was conducted pur-
suant to a Stipulated Election Agreement. The tally of
ballots shows two for and three against the Petitioner,
with one challenged ballot, an insufficient number to
affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, adopts the hearing officer’s findings
and recommendations to sustain the Petitioner’s objec-
tion, and finds that the election must be set aside and a
new election ordered.1
[Direction of Second Election omitted from publica-
tion.]

MEMBER HURTGEN, dissenting.
Contrary to my colleagues, I would not find that the
Employer engaged in objectionable conduct. The Em-
ployer offered to reimburse employees who were not
scheduled to work on election day 2 hours’ pay to come
to the workplace to vote. This reasonable reimbursement
for an employee’s time and expense did not amount to a
benefit that could reasonably affect the outcome of the
election.

1 Contrary to the Employer’s contention, we find the Board’s deci-
sion in Good Shepherd Home, 321 NLRB 426 (1996), distinguishable
from this case. In that case, the Board found that the union made a
good-faith attempt to reimburse an employee for his actual transporta-
tion expenses. Here, in contrast, in announcing to employees that it
would provide 2 hours’ pay in exchange for their coming to vote on
their day off, the Employer did not describe this payment as reim-
bursement for transportation costs or other expenses associated with
traveling to the worksite. Rather, it linked the payment to its antiunion
message. Nor did the Employer thereafter establish that it based the
payment amount on any good-faith estimate of employees’ actual trans-
portation expenses. These explanations were proffered only as a post-
hoc rationale for its action. Thus, we find this objectionable conduct
sufficient to warrant setting aside the election under the standard enun-
ciated by the Board in Sunrise Rehabilitation Hospital, 320 NLRB 212
(1995).
Our dissenting colleague’s attempt to rationalize the Employer’s
payment offer as “reasonable compensation for loss of free time” by the
employees suffers from the same defect as the Employer’s post-hoc
rationale that the offer was designed to reimburse the employees for
travel and other costs. The message that the employer conveyed to the
employees by its offer was that if they voted, they would receive
“something ‘extra’” in their paychecks. The Board in Sunrise found
such payments objectionable (id. at 213), and we adhere to that deci-
sion.
The Employer’s offer was not confined to employees
who had indicated opposition to the Union. It was of-
fered to all off-duty employees. It was simply an effort
to encourage employees to vote—a goal that is quite
consistent with the purposes of the Act.
In Young Men’s Christian Assn., 286 NLRB 1052
(1987) (YMCA), the Board found unobjectionable an
employer’s offer of reimbursement that was essentially
the same as here (i.e., 2 hours’ pay). The Board reasoned
that the moneys offered “did not constitute a substantial
benefit that would influence votes, but rather were a rea-
sonable reimbursement for transportation and time
costs.”
In Sunrise Rehabilitation Hospital, 320 NLRB 212
(1995), the Board overruled YMCA. The Board held that
a party’s reimbursement of employees is objectionable
unless it is linked to actual transportation expenses.
I disagree with Sunrise. In my view, an employee in-
curs transportation costs and loss of free time by coming
to the workplace during off-duty hours. In a society that
is increasingly hectic and demanding, free time is at least
as valuable as transportation costs. Phrased differently,
employees are far more likely to give up their free time if
they are offered some reasonable compensation therefor.
Accordingly, I do not think it objectionable if an em-
ployer offers transportation costs and reasonable com-
pensation for loss of free time.
Further, I would not require the employer to be pre-
cise, to the penny, as to what an individual’s actual ex-
penses are. Questions concerning how far an employee
had to travel, and how long it took, are cumbersome to
administer and would lead to pointless litigation. As
long as the reimbursement is reasonable in the circum-
stances, I would not condemn it.
Finally, I would not condemn the offer here simply be-
cause it was made during the course of a campaign
speech. The speech was a lawful one. Thus, since the
offer was otherwise lawful (as I conclude it was), it
surely did not become unlawful simply because it was
part of a lawful speech.
In sum, the Employer made a good-faith effort to en-
courage employees to come to the polls. I would not
brand that conduct as objectionable.

326 NLRB No. 78