National Labor Relations Board v. Labor Services, Inc.

721 F.2d 13, 114 L.R.R.M. (BNA) 3259, 1983 U.S. App. LEXIS 15458
CourtCourt of Appeals for the First Circuit
DecidedNovember 7, 1983
Docket83-1207
StatusPublished
Cited by4 cases

This text of 721 F.2d 13 (National Labor Relations Board v. Labor Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Labor Services, Inc., 721 F.2d 13, 114 L.R.R.M. (BNA) 3259, 1983 U.S. App. LEXIS 15458 (1st Cir. 1983).

Opinions

COFFIN, Circuit Judge.

This case presents the question whether the National Labor Relations Board permissibly found that a representation election resulting in a union victory was not tainted when a union representative supplied free alcoholic drinks to most of the electorate before, during, and after the election.

The Regional Director overruled the employer’s objections to the election. The Board, by a 3-2 decision, without elaboration, adopted the Regional Director’s findings and recommendations that a certificate of representative should issue. The subsequent unfair labor practice charge of unlawful refusal to bargain, in violation of section 8(a)(5) and (1) of the National Labor Relations Act, was accordingly decided by summary judgment in favor of the union, and the company was ordered to bargain upon request. The Board now applies to us to enforce the order.

The election was held between 5:00 p.m. and 7:00 p.m. at a Howard Johnson Motor Lodge in Pawtucket, Rhode Island. The total number of voters was 18. The final vote was 13 for the union and 5 against. Although there is another somewhat different version of what happened, the Regional Director — and the Board — accepted the following version given by the employer’s witnesses:

“At about 4:15 p.m., [petitioner union’s] Business Manager Richard Stromberg and two other men entered the bar. At about 4:30 p.m., five or six other men entered the bar together. Stromberg greeted the men and told them that their drinks would go on his tab, that he would not allow the bartender to take their money. Stromberg instructed the bartender that the men’s drinks were on him. The five or six men stayed and drank, while Stromberg and the two men with whom he had entered left briefly and then returned. Shortly before 5:00 p.m., two or three of the group of five or six men finished their drinks and appeared to be leaving. At this time, Stromberg stated in a voice that could be heard throughout the bar that there was no hurry, that there were still a few minutes before [15]*15they had to vote, and that there was time for another drink. Stromberg again reminded the men that all their drinks were to go on his tab. After a few more minutes, the five or six men left together, and as they did so, Stromberg said, ‘Don’t forget how to vote.’ A few minutes later, the same men came back into the bar and continued to drink on [Stromberg’s] tab. The original group of men was then gradually joined by other men entering the bar until, eventually, there were 12 to 15 men drinking in the bar on Strom-berg’s tab. Around 6:20 p.m., Employer’s President Robert Blanchette and the Employer’s attorney, Robert Corcoran, also entered the bar and spoke with [Paw-tucket police officers] Champagne and Randall.”1

The Regional Director, in concluding that the union business manager’s conduct did not warrant setting aside the election, relied on several subsidiary findings: (1) that there was no evidence of “advance inducement of the employees to come to the bar or to vote for the [union] in order to get a free drink”; (2) that there was no evidence of coercive statements; (3) that there was no evidence that any employees were inebriated; (4) that the value of the drinks was not “sufficient to interfere with the employees’ free choice”; and (5) that the incident occurred outside the polling area.

We are well aware of the deference given the Board in exercising its discretion in connection with rulings concerning representation elections and the heavy burden on a party to show that this discretion has been abused. New England Lumber Division of Diamond International Corp. v. NLRB, 646 F.2d 1, 3 (1st Cir.1981); Fall River Savings Bank v. NLRB, 649 F.2d 50, 56 (1st Cir.1981). Nevertheless, having in mind the Board’s own oft-articulated objective “to establish in election proceedings conditions as nearly ideal as possible to determine the uninhibited desires of the employees”, Rattan Art Gallery Ltd., 260 N.L.R.B. No. 18, 109 LRRM 1149, 1150 (1982) (citing General Shoe Corp., 77 N.L.R.B. 124, 127 (1948)), the extent to which its prior decisions fall short of encompassing the facts in this case, the absence of any rational guidance in the five factors relied upon by the Regional Director, and the grave policy implications for future elections, we reluctantly decline to enforce the order.

To begin with the last of these considerations, we think it helpful to focus a sharp if harsh light on the policy implication of the Board’s ruling. The precise holding is that a union may station a well-funded representative in a bar within a brief walk of a polling place where he may with impunity open the bar to unlimited free drinks to all voters before, during, and after the election, may in fact pay for drinks served to at least two-thirds of the electorate, and may accompany this generosity both by pressing the invitation to drink more and by reminding the electorate not to “forget how to vote”. A corollary of this ruling, not mentioned by the Regional Director or the Board, is that an employer may also station its perhaps better funded representative in a bar and offer even the higher priced brands of alcoholic beverage on the same terms to the electorate. Board counsel at oral argument acknowledged the reciprocal application of this ruling. The prospect of such a bibulous competition between union and employer hosts near and during polling seems to us an atavistic return to turn-of-the-century pursuit of votes through the discriminating distribution of alcohol.2

[16]*16The observations of the Regional Director, which the Board deemed satisfactory limitations justifying the ruling in this case, do not in our view withstand analysis. First, the absence of “advance inducement” and coercive statements cannot realistically make a difference. Even assuming that the union business manager did not advertise in advance his presence in the bar, he managed to buy drinks for 12 to 15 voters in the electorate of 18 voters. It is the effect of the union business manager’s activities, not his or the union’s motives, that disturbs us here. See Cross Baking Co. v. NLRB, 453 F.2d 1346, 1348 (1st Cir.1971). The receipt of unlimited free drinks during an election accompanied by the reminder not to forget how to vote can hardly be justified simply because a previous bargain has not been spelled out. And the absence of coercive statements is immaterial in a case such as this one where a campaigning party’s tactics take the form of friendly cajolery rather than ugly intimidation.

Second, the absence of evidence of inebriation offers no better basis for drawing a line. If it were thought to offer such, breathalyzers and similar apparatus would be standard gear for representation elections.3 Here the presence of alcohol is more than minimal; the union bought drinks for at least two-thirds of the electorate during a two-hour period. The salient point is, to use the standard endorsed by the Board in, among many cases, Weyerhaeuser Co., 247 N.L.R.B. 978, 978 n. 2 (1980), that “the conduct reasonably tends to interfere with the employees’ freedom of choice in the election.. ..

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
721 F.2d 13, 114 L.R.R.M. (BNA) 3259, 1983 U.S. App. LEXIS 15458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-labor-services-inc-ca1-1983.