SBM Management Services

National Labor Relations Board - Administrative Judge Opinions

Dec 8, 2014

05-CA-129128 (N.L.R.B. Dec. 8, 2014)

JD–70–14
Elkton, VA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SBM MANAGEMENT SERVICES
and Cases 5-CA-129128
5-RC-126500
INTERNATIONAL CHEMICAL WORKERS
UNION COUNCIL, UFCW
Timothy P. Bearse, Esq., for the General Counsel.
Paul H. Kehoe, Esq., (Seyfarth, Shaw, LLP, Washington, D.C.)
for the Respondent.
George A. Ortiz
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Harrisonburg,
Virginia on October 8, 2014. The Charging Party, International Chemical Workers Union
Council, UFCW, filed the charge on May 20, 2014. The General Counsel issued the complaint
on July 30, 2014.
On May 22, 2014, a representation election was conducted in a bargaining unit consisting
of SBM’s custodial staff, floor technicians, glassware technicians and GMP cleaning technicians
working for Respondent at Merck & Co., Inc.’s facility in Elkton, Virginia. In that election 20
votes were cast against the Charging Party Union; 8 were cast in favor of it. The Union filed
timely objections to conduct affecting the results of the election. The Regional Director for
Region 5 consolidated the objections case with the unfair labor practice proceeding.
The essence of this case is whether Respondent violated Section 8(a)(1) and engaged in
objectionable conduct warranting setting aside the results of the May 22 election and ordering a
rerun. The Union’s objection number 1 and the complaint allegations are the same, that
Respondent violated the Act and committed significant objectionable conduct by giving bonuses
to approximately 9 employees on May 16 in front of almost all the unit employees and
distributing bonuses to 2 more unit members the next day. The Union’s other objection, that a
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security guard told employees that if they voted for the Union they would lose their jobs can be
ignored as there is no substantial evidence in the record to support it.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and Charging Party Union, 5
I make the following
FINDINGS OF FACT
I. JURISDICTION10
Respondent, SBM Management Services, a corporation, provides custodial services at the
Merck & Co. facility in Elkton, Virginia. SBM’s contract is with Merck’s managing company,
JLL, which has a contract with Merck. Respondent provided services valued in excess of
$50,000 to Merck at the Elkton, Virginia facility in the year ending October 8, 2014. Merck is a 15
company directly engaged in interstate commerce.1 Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union, International Chemical Workers Union Council, UFCW, is a labor organization
within the meaning of Section 2(5) of the Act.
20
II. ALLEGED UNFAIR LABOR PRACTICES
Merck produces vaccines at its facility in Elkton, Virginia. To do so, certain areas of the
facility must be sterile. Merck has engaged JLL, a management company, to hire and manage
other companies to perform services such as custodial work and security. In October 2013, 25
Respondent SBM became the custodial contractor at the Elkton facility, replacing E.A. Breeden.
Initially Brian Wegemer was Respondent’s site manager, or de facto site manager, at the Elkton
facility. After Wegemer left this position, he was replaced, although not immediately, by Ruben
Chavez from about March to June 2014. Soon after Chavez arrived at Elkton he became aware
of the Union’s organizing drive. The Union filed a petition to represent Respondent’s custodial 30
staff, floor technicians, glassware technicians and GMP cleaning technicians on April 14, 2014.
A representation election was then scheduled on April 29, for May 22, 2014.
Since it took over the custodial contract at Elkton, Respondent has conducted regular
meetings for its employees on Fridays. Generally, safety issues are discussed at these meetings. 35
Respondent held such a meeting on Friday, May 16, 6 days before the election.
All Respondent’s approximately 20 custodial employees and 7 GMP technicians were
present at the May 16 meeting (about 27 unit employees total). The GMP technicians specialize
in “3x” cleans. These are procedures in which an area is cleaned three times in the same 40
direction; twice using different chemicals and a third time with water. This can be a time-
consuming laborious process.

1 Although not part of the parties’ stipulation it is apparent that SBM is also engaged in interstate
commerce, Resp. Exhs. 4 and 5.
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At the May 16, meeting, Respondent provided pizza for these employees, which it did not
do at all Friday employee meetings. 9 employees were called to the front of the room by Ruben
Chavez and told to close their eyes and hold out their hands.. Chavez then placed a bonus check
in each one of employees’ hands. 8 of the employees received a $100 check; one received $75.
These employees typically earn $300 for a 40-hour week; although some work a significant 5
amount of overtime. Two other employees received a $100 bonus in the form of a gift card the
next day, Tr.120, Resp. Exh. 5, pp. 03 and 04.2
These bonus checks were given to employees who participated in two 3x (triple) cleans;
one in late April 2014, the other on or about May 13-14. The work of these employees was 10
exemplary. During the May 3x clean, the employees worked through the night to assure that
Merck did not lose production.
Respondent had not given out bonuses to any employee at Elkton prior to May 16.
Sometime in December 2014 or January 2014, on one occasion, some employees played a game 15
called Safety Poker. At least one and maybe as many as 3 employees received a gift card for
playing this game of at least $25 and possibly as much as $100.3
Supervisor Amanda Turner testified that Respondent also distributed some Visa gift cards
at Christmas 2013. However, there is no evidence as to how many cards were distributed, how 20
much they were worth or whether they were given out in front of other employees or privately.
Respondent has given employees bonuses at other facilities, Resp. Exh. R-5. There is no
evidence as to reasons or circumstances under which these bonuses have been paid. There is
also no evidence as to how many of these bonuses were given to managerial, as opposed to rank 25
and file, employees. Finally, there is no evidence whether these bonuses were distributed in
public, or privately. Respondent does not have any formal policy of paying bonuses.
Analysis
30
It is well established that the mere grant of benefits during the critical period is not, per
se, grounds for setting aside an election. Rather, the critical inquiry is whether the benefits were

2 Respondent’s exhibits 1 at p. 175 and 5 establish that 9 employees received bonus checks on May
16 (Melissa Bennett received a $75 check ; Chastity Eppard, Aron Douglas, Laresa Roberts, Cody Lam,
Jeremy Steeves, Samantha Weaver, Dakota Knight and Jeanne Twiddy each received $100). Although,
two of the General Counsel’s witnesses, Charlotte Bywaters and Dakota Knight recalled 5 or 6 employees
being called to the front of the room, Melissa Bennett recalled that there were 8 or 9. Based on Bennett’s
testimony at Tr. 73 and Respondent’s exhibits 1 and 5, I find that 9 employees were given bonus checks
on May 16 and 2 more, Darlene Stowers and Cinda McDaniel, received a $100 gift card the next day, Tr.
120. Thus, 11 employees from the bargaining unit received a bonus on May 16 or 17.
3 The evidence regarding the safety poker gift cards is very unclear. Some of the witnesses did not
recall it at all. One of the General Counsel’s witnesses recalled one employee receiving a $25 gift card.
Amanda Turner, one of Respondent’s supervisors, testified in response to the question “how many gift
cards were handed out?” “It was like two or three, I think, I believe,” Tr. 146. Respondent’s exhibit R-4
indicates that site manager Brian Wegemer purchased gift cards in January 2014, but this does not
establish that they were distributed to Respondent’s employees at Elkton. Moreover, the entries on R-4,
p. 275, do not correlate precisely to the evidence regarding distribution.
JD–70–14
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granted for the purpose of influencing the employees’ vote in the election and were of a type
reasonably calculated to have that effect, NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). As
a general rule, an employer’s legal duty in deciding whether to grant benefits while a
representation proceeding is pending is to decide that question precisely as it would if the union
were not on the scene. In determining whether a grant of benefits is objectionable and whether it 5
violates Section 8(a)(1), the Board has drawn the inference that benefits granted during the
critical period are coercive, but it has allowed the employer to rebut the inference with an
explanation other than the pending election, for the timing of the grant or announcement of such
benefits, United Airlines Services, Corp., 290 NLRB 954 (1988); B & D Plastics, 302 NLRB
245 (1991).10
Of course, the employer may have more than one reason for the grant of benefits. It may,
as in this case, wish to reward its employees for a job well done, and at the same time influence
them to vote against union representation. I find this to be so in the instant case. Generally, to
rebut the inference that the payment of bonuses was illegal, Respondent must show that it had an 15
“established past practice” of giving cash bonuses for extra or superior work. This in turn
requires the employer to establish that such events occurred on a continuing or regular basis,
DMI Distribution of Delaware, 334 NLRB 409, 411 (2001); B & D Plastics, supra, 302 NLRB
at 245 fn. 2. The very fact that the distribution of bonuses in this case was supposed to be, and
was in fact a surprise, is a strong indication that this was not an established past practice. On the 20
contrary, it would reasonably be understood by employees as a means, in part, to influence their
votes in the election 6 days later.
For a bonus to be an “established past practice,” it would generally have to be something
employees were expecting, such that if they were not given bonuses it might be objectionable 25
and violative, see, e.g., Philadelphia Coca-Cola Bottling Co., 340 NLRB 349, 353-354 (2003);
Eugene Iovine, Inc., 328 NLRB 294, 297 (1999); Sunoco, Inc.,349 NLRB 240, 244 (2007) . A
situation in which a bonus would not be violative during the critical period, even if employees
were not expecting it, would be if it was given in accordance with objective criteria consistent
with an employer’s policies. Thus, for example, if SBM had a corporate policy of awarding the 30
bonuses given in this case under the circumstances of this case at all its facilities, it would not be
violative even if the employees at Elkton were unaware of that policy. Given the amount of
discretion exercised by Respondent in this case with regarding bonuses, the awarding of bonuses
on May 16 was not an “established past practice.”
35
There is no reason why Respondent could not have waited until after the election to give
out these bonuses to reward its employees. The bonuses were given in part for work done at
least two weeks prior to May 16. Had Respondent wanted to reward its employees without
coercing them in the exercise of their Section 7 rights, it could easily have waited another week
to give out the bonus checks.40
Rewarding individual employees in front of all others was a significant departure from
Respondent’s prior practice at the Elkton site, Tr. 157. While Respondent may well have wanted
all its employees to be inspired by the work of those receiving the bonus checks, I infer it also
wanted to influence their vote in the upcoming representation election.45
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Respondent’s violative and objectionable conduct with respect to the bonuses warrants
setting aside the election
Generally, the Board will set an election and order a new election whenever an unfair 5
labor practice occurs during the critical period between the filing of the representation petition
and the election. The only exception to this policy is where the misconduct is de minimis, such
that it is virtually impossible to conclude that the election outcome could be affected. In
assessing whether the misconduct could have affected the result of the election, the Board has
considered the number of violations, their severity, the extent of dissemination, the size of the 10
unit, the proximity of the misconduct to the election and the closeness of the vote. It also
appears to consider the position of the managers who committed the violations, Bon Appetit
Management Co., 334 NLRB 1042 (2001).
All of these factors, with the possible exception of the closeness of the vote, favor 15
directing a new election. Bonuses were given to 11 of the approximately 35 eligible voters 6
days before the election. The bonuses were not insignificant compared to the employees’ weekly
wages and were given by Respondent’s highest ranking on-site official in the presence of almost
the entire bargaining unit in a rather dramatic fashion. Thus, this violation was far from de
minimis and warrants setting aside the election and ordering a rerun.20
Conclusions of Law
Respondent violated Section 8(a)(1) and engaged in objectionable conduct by distributing
bonus checks to 11 employees in a bargaining unit of approximately 35 employees during the 25
critical period between the filing of the representation petition and the election.
Respondent has engaged in objectionable conduct necessitating the setting aside of
the results of the May 22, 2014 election and the conduct of a second election.
30
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 35
the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER40
The Respondent, SBM Management Services, Elkton, Virginia, its officers, agents,
successors, and assigns, shall

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–70–14
6
1. Cease and desist from
(a) Announcing, promising and/or granting benefits in order to dissuade employees from
supporting International Chemical Workers Union Council, UFCW or any other Union.
5
(b) In any other manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
10
(a) Within 14 days after service by the Region, post at its Elkton, Virginia facility
copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In 15
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, the 20
Respondent has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since May 16, 2014.
(b) Within 21 days after service by the Region, file with the Regional Director a sworn 25
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
I further recommend that the Board set aside the results of the May 22, 2014 election and
direct a second election by secret ballot in the unit found appropriate whenever the Regional 30
Director deems appropriate.
Dated, Washington, D.C., December 8, 2014
35
____________________
Arthur J. Amchan
Administrative Law Judge

5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT announce, promise or grant you benefits in order to discourage you from
supporting International Chemical Workers Union Council, UFCW or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
SBM MANAGEMENT SERVICES
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Bank of America Center, Tower II, 100 S. Charles Street, Ste 600, Baltimore, MD 21201-2700
(410) 962-2822, Hours: 8:15 a.m. to 4:45 p.m.
JD–70–14
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CA-129128 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (410) 962-2880.