A union’s gift of free hams on the eve of an NLRB-conducted election did not influence the outcome, a union victory, the National Labor Relations Board has determined. Nuverra Environmental Solutions, Inc., 08-CA-164447 (July 8, 2016).

The union had distributed holiday hams to eligible voters five or six days prior to the election. After the union prevailed in the election, the employer filed “objections” with the NLRB’s Regional office, alleging the giveaway unlawfully influenced the results of the election and requesting the Regional Director to invalidate the election and conduct a rerun. The Regional Director denied the request and certified the union as the employees’ bargaining representative. The employer then filed an appeal (“request for review”) with the NLRB in Washington, D.C.

The NLRB denied the employer’s request for review, finding the union’s holiday giveaway did not interfere with the election. The Board noted that: the hams were of modest value ($10-$12); the stated purpose was to extend holiday greetings to the union’s members, their families, and friends; it was a yearly event; the union informed only one unit employee that unit employees were eligible after the employee inquired; attending the giveaway and accepting the hams was entirely voluntary; the union did not link the giveaway to the election and only unit employees who attended the giveaway received the hams.

The Board summarily dismissed the fact that “a potentially dispositive number of employees received free hams” or that the giveaway was so close to the election (the Board also noted that it had refused to overturn other elections where a giveaway occurred even closer, the day before, to the vote date). The Board cited the test articulated in B & D Plastics, Inc., 302 NLRB 245 (1991), for the proposition that the employer had not shown the union’s giveaway “tended to unlawfully influence the outcome of the election.”

Further, the Board concluded, even assuming the giveaway warranted an inference that the free hams were coercive, the union had rebutted that inference by its “uncontradicted” explanation for the timing of the giveaway, that is, the giveaway occurred yearly and was open to all current as well as prospective union members.

The Board did not address whether unit employees who actually received hams, rather than simply being aware of their eligibility to receive them, might have been influenced. The Board also did not consider whether the union had given away hams to other who were not union members and their families in the past or that the date of this giveaway was the same as in the past.

Nuverra likely will be a model for union giveaways in the future. However, more important, it also is a useful guide for employers, since many of the factors cited by the Board as insignificant also should be considered unimportant if similar election objections are raised by a union protesting an employer’s election victory: the voluntary nature of the giving, the fact that it had been done in the past (and not necessarily on the same date), the fact that $10-$12 is considered to be of “modest value,” and the timing of the giveaway.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.