Witty Diversities And Contradictions, And Other. Interesting, Peculiar And (Perhaps) Entertaining. Board Decisions

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1 AMERICAN BAR ASSOCIATION SECTION OF LABOR & EMPLOYMENT LAW COMMITTEE ON DEVELOPMENT OF THE LAW UNDER THE NLRA MID-WINTER MEETING 2009 SAN DIEGO, CALIFORNIA Witty Diversities And Contradictions, And Other Interesting, Peculiar And (Perhaps) Entertaining Board Decisions James M. L. Ferber, Esq. Erik C. Hult, Esq. Tracy Stott Pyles, Esq. Littler Mendelson, P.C. 21 East State Street, Suite 1600 Columbus, Ohio James M. L. Ferber is the Managing Shareholder of Littler Mendelson s Columbus, Ohio, Office, and Co-Chair of the firm s Traditional Labor Law Practice Group. Erik C. Hult and Tracy Stott Pyles are Associates in Littler s Columbus Office. 1

2 INTRODUCTION The transition of the Presidency from George Bush to Barack Obama and the significant Democratic majorities in the 111 th Congress portend a change in direction of the National Labor Relations Board. Recently appointed Board Chair Wilma Liebman has commented that she opposes the roll-back[s] in statutory protections that she believes took place during the Bush years. 1 And, she will, of course, be joined on the Board by a Democratic majority appointed by President Obama. There can, thus, be little doubt that the new Board s rulings will be markedly different than those of the past eight years. While we have experienced other changes in direction at the Board as administrations change in Washington, we have decided to take this opportunity to explore some of the witty diversities and contradictions, and interesting, peculiar and (perhaps) entertaining Board decisions that have occurred over the years, from both Republican and Democratic Boards. In exposing these decisions, we will attempt to do so without regard to our views of them (lest we offend any Board Members, past or present) and with the utmost respect for the Board and the National Labor Relations Act. SECTION 7 RIGHTS: PROTECTED AT THE WRONG TIMES FOR THE WRONG REASONS The primary purpose of the National Labor Relations Act is to ensure that workers receive the full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection or be permitted to not engage in that activity. 2 The language 1 2 Toering Electric, 351 NLRB No. 18 (2007). 29 U.S.C. 151 (1994). 2

3 of Section 7 of the Act must be viewed as an outgrowth of this broader policy. 3 But, as Justice Reed explained, in Republic Aviation Corp., labor law brings two undisputed right[s] into combat the right of self-organization and the right to maintain discipline in one s business. 4 Employers violate employees Section 7 rights when they interfere with union or protected concerted activity without having any legitimate interest in doing so. While the term legitimate interest is typically viewed as applying to the relationship between the employer s property and business rights, and employees Section 7 rights, the Board, in its desire to uphold Section 7 rights, has occasionally trampled on employees other legal rights such as those set forth in federal anti-discrimination laws and in a growing body of law protecting employees in the workplace from bullying. 5 Bullying suits often allege that one employee (whether a supervisor or not) verbally abused another employee, even though the behavior does not necessarily run afoul of any federal or state anti-discrimination laws. 6 The result, in the most extreme circumstances, is a conflict between the NLRA and these other rights, such that the broad purpose of Section 7 may have been pushed beyond the limit and, in the process, eviscerated other protected rights. The Board has made it clear that the ambit of Section 7 is very broad, and that the appropriate inquiry is whether the [employer s] rules would reasonably tend to chill employees in the exercise of their Section 7 rights. 7 These legal principles, which the Board reiterated as Developing Labor Law, (BNA) Fifth Edition, p. 82. Republic Aviation Corp v. NLRB, 324 U.S. 793 (1945). See The Phenomenon of Workplace Bullying and the Need for Status-Blind Hostile Work Environment Protection, 88 Geo L.J. 475 (March 2000) (decrying the growing trend of workplace bullies and arguing that increasing state and federal legislation is needed to ensure that victim s of such bullying have legal recourse); See Raess v. Doescher, 858 N.E.2d 119 (Ind. App. 2006) (subsequently overturned jury award in a bullying case for $325,000). 6 7 See Doescher, 858 N.E.2d at 120. Martin Luther Memorial Home, Inc., 343 NLRB No. 75 (2004). 3

4 recently as 2004 in the Martin Luther Memorial Home decision, occasionally illuminate the conflict between federal labor law, on the one hand, and federal anti-discrimination law and an employee s protection from bullying, on the other. For example, in Martin Luther Memorial Home, the Board held that an employer s rules prohibiting abusive and profane language, harassment and verbal, mental and physical abuse were lawful, because they were merely intended to maintain order in the workplace; 8 as a result, verbal abuse and profane language are not an inherent part of an employee s Section 7 rights. But, in a dissenting opinion, Members Liebman and Walsh wrote that [t]he place of work is a place uniquely appropriate for dissemination of views by employees. 9 They opined that words like abusive and harassment are highly subjective, and that one person s abuse may be mere annoyance to another and no bother at all to a third. Thus, they reasoned, rules that prohibit verbally... abusing... a supervisor are overbroad, because it is not known how the supervisor perceives the abuse. The dissent then argued that a broad reading of certain terms used in workplace rules puts them in serious tension with Section 7 rights protected by the Act, a statute that turns on the right of employees to communicate freely about their terms and conditions of employment, at work. 10 While this observation may seem innocuous when viewed in isolation, its application in certain situations exposes contradictions between the NLRA and other statutory and civil rights. Moreover, notwithstanding the view of Chairperson Liebman and some legal scholars that the Board has stripped away Section 7 rights over the past eight years, some of the Board s decisions during that period reveal an expansive, rather than a restrictive, view of the primacy of , quoting NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974). Martin Luther Memorial Home, Inc., 343 NLRB No. 75 (2004). 4

5 Section 7 over other legal rights. For example, in the 2005 Stanford Hotel decision, the Board ruled that the employer violated the Act when it discharged an employee who had called his general manager a liar, a bitch and a fucking son of a bitch. 11 The Board held that the employee s outburst was only a direct and temporally connected response to the manager s threat of unlawful termination. While the Board recognized that the use of foul language was inappropriate in the hotel, that the general manager had not used profanity during the conversation, and that the manager did not allow employees to use profanity in his presence, this was apparently of little consequence. Moreover, even though other employees and managers had overheard the outburst, the Board felt that the employee had attempted to maintain privacy during his outburst. In essence, the Board gave the employee license to lose control because it believed his outburst involved conditions of employment, at work, even though it was clearly directed at the general manager. The Board was apparently unconcerned that the general manager may have had a right not to be subjected to such abuse, particularly from a subordinate and in front of other employees and managers. Although one might argue that the Board should not be concerned with the manager, as he is not an employee within the meaning of the NLRA and, thus, not accorded the protections of Section 7, he, nonetheless, has certain rights and expectations, both as an individual and as an employee of the hotel in the broader sense. While the Stanford Hotel decision may cause us to raise an eyebrow, two similar, but significantly more troubling, decisions highlight the extent to which the Board is willing to protect employees unrestrained emotional outbursts, under the ambit of Section 7 and in derogation of other employees rights. In Airo Die Casting, the Board affirmed the Administrative Law Judge s holding that the employer violated Sections 8(a)(3) by discharging 11 Stanford Hotel, 177 LRRM 1085, NLRB No. 69 (2005). 5

6 an employee due to his union activity. 12 The facts were that, after a strike commenced at the Airo Die Plant, the employer hired striker replacements, who had to cross picket lines at the entrance to the plant. The picketers were particular unruly, but, on June 22, 2005, conditions progressed from merely unruly to ugly. One of the occupants of a van with replacement workers that drove through the picket line was an African-American security guard sitting in the front seat. As the van rolled past the picket line, a striker approached it and, with both middle fingers raised, yelled fuck you nigger at the African-American security guard. 13 A security video captured the incident and the striking employee was discharged. In his decision, the Administrative Law Judge recognized that the striker s comments and gestures were clearly repulsive and offensive, in particular the racial epithet, but, nonetheless, found that they did not occur during his working time or in his working place. 14 The conclusion that this strike misconduct was not unprotected, because it did not occur during working time or in a work area, is, in itself, a contradiction. In order to be protected by Section 7, an employee must be communicating about terms and conditions of employment. It is difficult to imagine conduct more directly related to terms and conditions of employment than a strike over working conditions and conduct that occurs in furtherance of the strike. Moreover, other Board decisions uphold an employer s right to terminate strikers for strike misconduct, even though it does not occur on working time or in a work area. 15 Nonetheless, the Board, in Airo Die Casting, affirmed that this striker s use of racial epithets did not deprive him of the protection of Section 7. Equally astonishing is the ruling that while the employer had an anti Airo Die Casting, 347 NLRB No. 75 (2006). at 811. See Universal Truss Inc., 348 NLRB No. 41, 181 LRRM 1385 (2006) (upholding discharge of striking employee for throwing stones at security guards). 6

7 harassment policy, the policy did not extend to this conduct, because it did not specifically prohibit picket line behavior. 16 The Airo Die opinion supported its rationale by citing to a number of decisions in which employees use of racial or sexist epithets were found to be protected activity under the Act. Perhaps the most troubling of these is Detroit Newspapers, issued just two years before Airo Die Casting. There, the Board wrestled with the discharge of a number of strikers who had engaged in a litany of violent or offensive picket line misconduct. One incident involved replacement employee Nancy Townsend, who was driving through a picket line when striker James Ritchie approached her car. Ritchie leaned into Townsend s car and screamed: You fuckin bitch, nigger lovin whore. It s your fault that white Americans lost their jobs. Your family is going to die. I hope you tell your children before they die that it s your fault and it s because you gave our jobs away. 17 The employer discharged Ritchie. In its analysis, the Board affirmed the Administrative Law Judge, who recognized that the employer had a good-faith belief, based on the statements of Townsend, that Ritchie was the person who spoke to her on August 29, 1996, and that he made the statements she attributed to him. 18 Moreover, the Judge noted that: [c]onsidering [Ritchie s] demeanor and his testimony as a whole, I [do not] believe [his] half-hearted, selfserving denial that he was not there... or that he would not have said such things. Considering all the evidence, I credit Townsend s testimony identifying Ritchie as being at the north plant on August Airo Die Casting, 347 NLRB at 811. Detroit Newspapers, 342 NLRB 223, 268 (2004). at 268. at

8 Nonetheless, citing the broad protection of Section 7, the Judge agreed that, while Ritchie s comments were offensive and reprehensible under any objective standard, it does not constitute grounds for discharge. 20 Apparently, the use of vile racial and sexual epithets means that an employee does not lose the protection of the Act. Detroit Newspapers, Airo Die Casting, Stanford Hotel and Martin Luther cast a peculiarly expansive view of Section 7 rights in derogation of other federally-protected rights and an employee s right not to be bullied at work. The dissent s language in Martin Luther was concerned with overbroad employer rules being enforced in a discriminatory manner against seemingly innocent employees. The dissent feared that such overbroad rules would chill employees Section 7 rights to pursue improved working conditions. However, from the other decisions discussed above, it appears that the Board, in its zeal to protect Section 7 rights, has, intentionally or otherwise, elevated Section 7 rights over an employee s right not to be subjected to racist, sexist, and otherwise offensive language and conduct. This approach, namely using the shield of Section 7 to deprive individuals of other protected rights, conflicts with corollary precedent under federal anti-discrimination laws. For example, the United States Supreme Court has held that an individual cannot rely upon the freedom of speech protection of the First Amendment as a defense to charges of sexual or racial harassment or discrimination under Title VII of the 1964 Civil Rights Act. 21 In other words, the Supreme Court has instructed that, at times, First Amendment rights must take a back seat to ensure that employees are free from discrimination and harassment in the workplace. Yet, when Section 7 rights are at issue, they apparently do not defer to other rights. On the contrary, the Board seems to view that Section 7 principals protect an employee s abusive speech or conduct at 269. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992). 8

9 that simply cannot be justified as a legitimate communication regarding wages or working conditions. From a broader perspective, the contradictory protections offered by labor and discrimination laws become more apparent when the legal standards of the two are analyzed. Specifically, the Board s test for Section 8(a)(1) violations is not concerned with the employer s motive: Interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer s motive or on whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act. 22 This is in stark contrast to the standard for establishing a violation of Title VII, which requires the plaintiff to prove animus by direct evidence or by establishing a prima facie case through a burden shifting analysis. 23 But despite the seemingly unlimited protection that Section 7 affords to employees who commit racially, sexual or other offensive conduct in certain situations, while ostensibly engaging in arguably protected concerted activity, the Board has limited Section 7 protection in other contexts. It is here where labor law s witty diversities and contradictions become more apparent. For instance, can the protections afforded to striker misconduct in Detroit Newspapers or Airo Die Casting be rationalized in contrast to the actions of the employee in Waters of Orchard Park? In Waters of Orchard Park, a nursing home failed to properly control its interior heat during a particularly hot July. 24 The conditions in the nursing home deteriorated so quickly that American Freightways Co., 124 NLRB 146, 147 (1959). McDonnell Douglas v. Green, 411 U.S. 792 (1973). Waters of Orchard Park, 341 NLRB 642, 174 LRRM 1425, (2004). 9

10 residents became lethargic and dehydrated, many disrobed to cool down and others stopped eating. In addition to the residents problems, the nursing home had failed to provide an adequate water supply for its staff. One of the employees called a patient care hotline to report the excessive heat in the nursing home. The nursing home became aware of the call, learned which employee was responsible, and promptly fired her. 25 The Board held that the employee s action in calling the patient care hotline was not protected activity, because the employee testified that she acted out of concern for the patients health and welfare, and not primarily out of concern for her own working conditions. 26 The Board stated that the call was not related to the employee s ability to deliver patient care, despite testimony that employees had inadequate water. The majority concluded that [t]he Act protects employees interests as employees. 27 The conclusion to be drawn from this case and those discussed earlier is that assisting dehydrated nursing home residents is not protected activity, but yelling death threats and racial epithets is protected. Even those who believe that Section 7 rights have eroded over the last eight years must acknowledge the contradictions surrounding the Board s varying interpretation of what conduct constitutes conditions of employment. In defining Section 7 rights, the Board has protected conduct that is not worthy of protection, yet taken a more restrictive view of conduct that might arguably be more connected to the employment relationship. Meanwhile, the tension between the rights of workers to engage in protected concerted activity and to improve their working conditions collide head-on with the foundations of federal anti-discrimination law and the developing employment law concept prohibiting bullying in the at

11 workplace. The dissent in the Martin Luther decision, in which then Member Liebman joined, will undoubtedly now become the majority view. After Martin Luther, employers may have to consider revising potentially overbroad policies and tolerating abusive conduct as being protected concerted activity behavior that finds no such protection under Title VII or in a common law action for bullying. THE CAMPAIGN AND ELECTION PROCESS: WE TRUST EMPLOYEES EXCEPT WHEN WE DON T An important point of contention between union and employer advocates is an employer s right to use campaign literature, captive audience speeches, and other efforts to educate and inform employees during election campaigns. Union advocates argue the inherent coercive nature of these employer activities; hence, the ostensible need to substitute card check for secret ballot elections and thus avoid entirely the campaign process, as evidenced by the Employee Free Choice Act of 2007 ( EFCA ), 28 which was introduced in the 110 th Congress and is certain to be re-introduced, in some form, in the current Congress. The Board s standard, over the years, for governing campaign conduct is, in itself, worthy of review for its witty diversities, contradictions and, in some cases, peculiar or (perhaps) entertaining results. A careful reading of these decisions reveals that the Board characterizes employees as either intelligent or highly naive (and, thus, easily coerced) depending upon the times and the way in which the case is decided. The definition of laboratory conditions often changes. And, the political affiliation of a particular Board Member may be less important than his or her inherent trust (or lack thereof) in the ability of employees to discern the veracity of campaign propaganda. 28 H.R. 800, 110th Cong. 2 (1st Sess. 2007); 153 Cong. Rec. E260 (Feb. 5, 2007). 11

12 The Board s occasional faith in employees to decide, on their own, what campaign propaganda is truthful and what is not is illustrated in Midland National Life Insurance Co. 29 Midland National involved an employer who had distributed flyers along with employees biweekly paychecks. The flyers chronicled the plight of local plants that had been unionized in recent years, and one of them stated that the same local had struck a nearby plant, that Violence had ensued. Now all the workers are gone! Most of the flyers offered similar anecdotes. The Board began its analysis by reviewing its own history of election material cases, and by acknowledging the markedly different ways in which it has characterized employees ability to discern campaign propaganda. The Board noted that its 1948 ruling in General Shoe is the foundation of its decisions addressing campaign material, the seminal principle being that in election proceedings, it is the Board s function to provide a laboratory in which an experiment may be conducted, under conditions nearly as ideal as possible to determine the uninhibited desires of employees. 30 Laboratory conditions were not a utopian vision, however, as the Board noted that elections do not occur in a laboratory where controlled or artificial conditions may be established, and that, accordingly, the Board s goal was to establish ideal conditions insofar as possible and to assess the actual facts in the light of realistic standards of human conduct. 31 The roller-coaster of Board decisions regarding electioneering then began with its 1955 Gummed Products Company opinion, in which the Board announced that it would not censor or police pre-election propaganda by parties to elections, absent threats or acts of violence. 32 This doctrine placed an intense amount of faith in employees ability to recognize the veracity (or lack Midland National Life Insurance Company, 263 NLRB 127 (1982). General Shoe Corporation, 77 NLRB 124 (1948). Gummed Products Corporation, 112 NLRB 1092 (1955). 12

13 thereof) of campaign propaganda, and signaled an acceptance that a federal agency has little hope of creating ideal conditions. Although unions and employers may occasionally exaggerate their respective claims in order to win votes, it is an election, like any other, and employees are certainly intelligent enough to weed through the propaganda from both sides. After all, are not employees the same individuals who also vote in political elections and must parse through the candidates claims? Or, put another way, in assessing campaign propaganda, is there a substantive difference between voting for one s political representative and his workplace representative? By the 1960 s, however, the Board changed its mind, and apparently decided that employees in the dawn of the Age of Aquarius were perhaps not as sophisticated as their parents of the Eisenhower Years, so that the Board needed to monitor the actual truth or falsity of each parties assertions. 33 Its faith in laboratory conditions and in the ability of employees to discern propaganda had faded. Thus, in Hollywood Ceramics, the Board decided that an election should be set aside where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, so that the misrepresentations, whether deliberate or not, may reasonably be excepted to have a significant impact on the election. 34 Having abandoned its faith in the ability of employees to recognize propaganda and, instead, imposing upon itself the burden of deciding what constitutes misrepresentations and campaign trickery, the line of cases following Hollywood Ceramics created more uncertainty than the dog-eat-dog standard of General Shoe. For example, under Hollywood Ceramics, union misrepresentations concerning the profit margins of employers was the basis for setting aside an election in one case while, within that same year, the Sixth Circuit held that union Developing Labor Law, (BNA) Fifth Edition, p Hollywood Ceramics Company, Inc., 228 NLRB 1311 (1962). 13

14 misrepresentations that the company had made approximately $1 million dollars, when it had actually grossed substantially less than that amount, was not sufficient to set aside the election. 35 After 15 years of Hollywood Ceramics, the Board ignobly acknowledged defeat. In its 1977 decision in Shopping Kart Food Market Inc., the Board overruled Hollywood Ceramics and indicated that it would no longer probe into the truth or falsity of the parties campaign statements. 36 Instead, the Board returned to its original proposition that employees are mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it. 37 With the 1960 s and 1970 s Counterculture waning, it apparently became safe to return to the 1950 s. But, the Board s faith in employees as mature individuals lasted a mere 20 months. In late 1978, the dissenters in Shopping Kart gained the crucial third vote. General Knit of California held that the Shopping Kart decision was inconsistent with the Board s responsibility to ensure fair elections, and stated that, where there have been misrepresentations or similar campaign trickery, which involve a substantial departure from the truth, the election should be set aside. 38 But, the General Knit decision posed the inherently unanswerable question (although it did attempt to answer it): When does a particular statement involve a substantial departure from the truth? 39 Most lay people would likely say that there is only the truth and a lie. But, to lawyers there is apparently (1) the truth; (2) an untruth; (3) a substantial departure from the truth, which may or may not be an untruth (we are uncertain of this), and (4) an insubstantial 35 Argus Optics v. NLRB, 515 F.2d 939 (6 th Cir. 1975); Henderson Trumpbull Supply Corp., 220 NLRB 210 (1975); Developing Labor Law, (BNA), p Shopping Kart Food Market Inc., 228 NLRB 1311 (1977). Hollywood Ceramics Company, Inc., 228 NLRB at General Knit, 239 NLRB 619 (1978). 14

15 departure from the truth. It would seem that an insubstantial departure would not result in an election being set aside, under General Knit, although we are unclear as to precisely the difference between a substantial and an insubstantial departure from the truth. This logic is reminiscent of the mad tea party in Alice in Wonderland: Then you should say what you mean, the March Hare went on. I do, Alice hastily replied; at least at least I mean what I say that s the same thing, you know. Not the same thing a bit! said the Hatter. Why, you might just as well say that I see what I eat is the same thing as I eat what I see! You might just as well say, added the March Hare, that I like what I get is the same thing as I get what I like! 40 But, four years after General Knit, the Board again reversed course. In Midland National, the Board noted that Hollywood Ceramics had an unrealistic view of voters ability to assess misleading campaign propaganda. 41 This protectionism was simply not warranted, according to the Board, as employees must be aware that parties to a campaign are seeking to achieve certain results and to promote their own goals. Ironically, it is this last sentence that speaks volumes about the Board s reversals of law in this area, and its characterization of employees as either mature, or as needy recipients of protectionism. Both the majority and the dissent in Midland criticize each for failing to recognize what types of propaganda really impact an election, yet throughout this line of cases, the Board rarely mentions Getman, Goldberg & Herman s famous (or infamous, depending upon one s point of view) empirical study, which concluded that the major determinants in election results are the individual voters initial predisposition and general attitudes about working conditions and 40 p LEWIS CARROLL, Alice s Adventures in Wonderland and Through the Looking-Glass, J.J. Little & Ives Co., Midland National Life Insurance Company, 263 NLRB 127 (1982). 15

16 unions. 42 The study recommended that, for the most part, the Board should leave the election process unregulated. 43 While union advocates have been critical of this recommendation, ironically, this is what would occur with the card check system envisioned by EFCA unregulated campaigning by unions to secure signatures on authorization cards that have the same effect as voting in an election. The Getman study was ignored by the Board in Midland National Life Insurance, while the majority in General Knit attempted to discredit it, commenting that even if this particular study were clearly supportive of all the authors conclusions, however, we would still not find it an adequate ground for rejecting a rule which had been well established for 15 years. While we welcome research in the behavioral sciences, one study of only 31 elections in one area of the country although it may provide food for thought is simply not sufficient to disprove the assumptions upon which the Board has regulated election conduct THE GRAND FINALE: TWO DECISIONS TO MAKE YOU SMILE On January 5, 2001, the employees of Lamar Advertising of Janesville voted to determine whether they desired union representation. The union won the election by a single vote, and the employer filed objections to the election. 45 On appeal, the Board reviewed a series of rulings by the hearing officers addressing allegations of union impropriety before and during the election Labor Law: Cases and Materials, Fourteenth Edition, Archibald Cox, etc., p General Knit, 239 NLRB 619 (1978). The Lamar Company LLC, 340 NLRB 979 (2003). 16

17 As objectionable conduct, the Company alleged that the Union had held meetings at a strip club with fantasy rooms for lap dances, and had offered Lamar employees excessive drinks. It was unclear whether the employees had actually partaken in the lap dances. According to the Company, the Union held four or five such meetings with Lamar employees at Diamond Jim s Isabella Queen. 46 The Union, however, raised the soundest, if not the most clever, of legal defenses. Its Business Manager, William Moyer, who, for reasons we can only speculate, was quite familiar with the establishment, testified that Diamond Jim s and Isabella Queen are actually two separate establishments, even though they are located in the same building. One part of the establishment, Diamond Jim s, is a bar and grill that serves food and drink, while the other, Isabella Queen, is a strip club. According to Moyer, the Union had spent most of its time with the employees in the Diamond Jim s area. 47 There was no indication as to what the employees were doing with the other portion of their time in the Isabella Queen area. As to the allegation that the Union had offered the employees excessive drinks, Moyer testified that the $1,200 dollars that was spent one night on the 16 employees also covered dinner not just booze. 48 Additionally, the Company alleged that, while the drinks were apparently flowing, a Union official had offered an employee of Lamar his leather jacket if the Union won the election. While the Board s decision does not mention whether this offer occurred in Diamond Jim s or the Isabella Queen, it nonetheless concluded that neither this nor the Union s other conduct was sufficient to set aside the election

18 But, the Board s expertise with gentlemen s clubs is not limited to the Lamar case. In Temptations, the Board had the opportunity to determine whether dancers in a strip club were employees within the meaning of Section 2(3). 50 Perhaps, the Union Business Manager in Lamar could have shed some light on this important issue, given his familiarity with the Isabella Queen strip club in that case. In any event, the Board decided that it was unnecessary for it to rule upon the Administrative Law Judge s finding that the Temptations Strip Club s dancers were employees, not independent contractors, because its decision turned upon whether the annual gross volume of business of the Club met the Board's retail standard for asserting jurisdiction. That determination turned upon the question of whether the tips received by the dancers should be included when calculating the Club s gross volume of the business. According to the Board, the parties and the Administrative Law Judge had already exercised considerable resources... investigating this question. 51 The Board s decision is unclear as to precisely what resources the parties and the judge used to investigate this issue. Although rare in Board proceedings, perhaps, an on-site view would have been helpful in determining jurisdiction. Regardless, it certainly might have aided in determining whether the dancers are employees or independent contractors, but that decision will have to be left for another day Temptations, 337 NLRB No. 35, 169 LRRM 1073, 1074 (2001). at