Adams Super Markets Corp.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1334 (N.L.R.B. 1985)

1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adams Super Markets Corp . and Local 371 , United
Food and Commercial Workers International
Union , AFL-CIO. Cases 1-CA-20252 and 1-
CA-20407'
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 20 May 1983 Administrative Law Judge Wil-
liam A. Gershuny issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings,2 findings,3
and conclusions and to adopt the recommended
Order.
The Union began organizing the Respondent's
seven grocery stores in 1981. On 7 May 1981, the
day before the scheduled election, the Union with-
drew the petition. In February 1982 the Union re-
newed its campaign. It filed a petition 23 August
and lost the 22 October election by a 195 to 86
vote. The complaint allegations stem from various
actions the Respondent took in September and Oc-
tober 1982. The judge dismissed all the allegations;
we agree for the following reasons.
1. On 2 September 1982 Store Manager Parrot
learned that employee Lefebvre, a part-time cash-
ier, was passing out authorization cards while on
duty. He took her aside and told her she could do
what she wanted on her own time, but she could
not solicit when she was engaged in work. Le-
febvre testified that no-solicitation signs were
posied in the store.4 The judge impliedly did not
i Case 1-RC-17718, involving related objections to the 22 October
1982 election , was consolidated with this case for hearing On 27 Febru-
ary 1984 the Union requested permission to withdraw its objections On
20 April 1984 the Board issued an Order granting the Union's request,
severing Case 1-RC-17718, and certifying the election results
2 The General Counsel has excepted to the judge 's rulings and conduct
at the hearing We find , on the record before us , that the judge did not
exhibit the type of bias , prejudice , or improper conduct that would war-
rant setting aside the attached decision and ordering a new hearing
9 The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings , except we do not agree that employee Damato's tes-
timony about the 28 September 1982 alleged surveillance was "simply in-
credible " Her testimony that she and two union organizers were closely
followed by Store Manager Parrot and Systems Coordinator Wager does
not markedly differ from Parrot's credited testimony We find below,
however , that even accepting her testimony as true , it does not establish
a violation
4 The signs' text is not in evidence , and the record is not clear whether
they referred only to outsiders or to employees as well The record does
not show whether no-solicitation signs were posted in other stores
credit Lefebvre's testimony that Parrot additionally
asked her about and discussed other union activi-
ties. The judge did, however, specifically credit
Parrot's testimony on this incident. We find no
reason in the record before us to disturb this reso-
lution and agree with the judge that the complaint
allegations regarding the 2 September incident
should be dismissed.5
2 On 28 September 1982 employee Damato met
two union organizers in the Respondent's West
Street store snackbar. Store Manager Parrot, Sys-
tems Coordinator Wager, and a unit employee en-
tered and sat in a booth next to Damato and the
organizers. Damato and the organizers left and
walked through the store, followed by Parrot,
Wager, and the unit employee. Damato and the or-
ganizers then briefly sat and stood about the Re-
spondent's courtesy bench immediately outside the
store while Parrot, Wager, and the unit employee
watched.6 Damato testified that they followed and
stared at them. In footnote 2 herein, we disavowed
the judge's finding that her testimony was incredi-
ble. Damato's testimony does not, however, estab-
lish a violation. The alleged surveillance of Damato
resulted from her openly meeting in the Respond-
ent's store with outside union organizers. "[U]nion
representatives and employees who choose to
engage in their union activities at the employer's
premises should have no cause to complain that
management observes them." Chemtronics, Inc., 236
NLRB 178 (1978), quoting from Milco, Inc., 159
NLRB 812, 814 (1966). As this is the case here, we
shall dismiss this allegation.
3. On 17 August 1982 the Respondent announced
to employees that a new handbook would be ready
by the end of September. The Respondent distrib-
uted the handbook to employees at meetings con-
ducted 29 and 30 September, 3 weeks before the
election. On 6 October 1981 the Respondent an-
nounced it was considering revising its medical in-
surance plan. In meetings with individual employ-
ees in July and August 1982, President Young re-
plied to frequent complaints about the existing
medical plan that he was looking into a revised
plan. The Respondent announced the new insur-
ance plan at meetings conducted 12 and 13 Octo-
ber, less than 10 days before the election. Both the
new handbook and the new medical plan changed
employee benefits. "The Board has long held that
the granting of benefits during an election cam-
paign is not per se unlawful where the employer
can show that its actions were governed by factors
s We also agree with the judge that the record does not show dispar-
ate enforcement of the no-solicitation policy against union solicitation
6 Parrot testified that he observed and followed the organizers and that
Damato was with them
274 NLRB No. 194
ADAMS SUPER MARKETS
other than the pending election." American Sunroof
Corp., 248 NLRB 748 (1980).
The Respondent had been considering changing
both the handbook and the medical plan for nearly
a year before it implemented the changes. The old
medical plan had been an issue in the abortive 1981
union campaign and did not appear competitive in
the industry. The Respondent began exploring new
plans in late 1981 when it announced to employees
it was looking into the matter. The old handbook
published in September 1974 was out of date and
no longer accurate. In late 1981 Senior Vice Presi-
dent Wineberg instructed the personnel manager to
prepare a revised handbook.
Neither effort bore fruition until the height of
the 1982 union campaign The personnel director
was unable to revise the handbook, and Wineberg
explored obtaining outside help In July Wineberg
retained a consultant to prepare a new handbook.
It also took time to solicit and consider a new med-
ical plan. In the meantime, the Respondent was re-
cruiting a new chief executive. On 8 June 1982 it
hired President Young, who assumed office 12
July. During his interviews for the position, Young
stressed the importance of fringe benefits; the Re-
spondent assured him he would be allowed to up-
grade them.
Once Young assumed office matters moved more
swiftly. On 17 August the consultant sent a draft of
the new handbook. Young approved various revi-
sions and returned the revised draft to the consult-
ant for review. The consultant approved the revi-
sions and returned the handbook. The Respondent
immediately had it printed and distributed it to em-
ployees. In early August Young met with the Re-
spondent's board of directors to discuss the medical
plan revision. On 10 August the directors author-
ized Young to proceed with a new plan as quickly
as possible. On 21 September Young presented his
proposals to the directors, who authorized him to
proceed with either of two plans. On 28 September
Young selected the new plan and discussed it with
the agent. Young wanted the plan to take effect as
soon as possible because the new plan, unlike the
old self-insured plan, placed a cap on the Respond-
ent's liability. The plan was made effective retroac-
tively to 1 October. As soon as brochures explain-
ing the new plan were available, the Respondent
informed the employees about the plan.
Based on the above, we agree with the judge
that the Respondent has shown that it changed the
handbook and medical plans for legitimate reasons
and not because of the Union's campaign. Thus,
the Respondent has shown that it had business jus-
tification for making both the changes; that it had
long planned the changes; that it encountered
1335
delays; that it announced and made the changes
upon completing the plans; that Young's assuming
office affected the timing of the changes; and that
it had economic justification for not delaying an-
nouncing the medical plan until after the election.
Accordingly, we shall dismiss the relevant aspects
of the complaint.'
4. The General Counsel contends that the Re-
spondent unlawfully promulgated a no-solicitation
rule, a contention that the judge did not directly
address. The new handbook contains the following
solicitation policy:
In the interest of the convenience of the
continued good-will of our customers and for
the protection of our employees, there shall be
no solicitation or distribution of literature of
any kind by any employee during actual work-
ing time of the employee soliciting or the em-
ployee being solicited. (This does not apply
during break and meal periods.)
Persons who are not employees may not so-
licit or distribute literature for any purposes on
Company property at any time.
There shall be no solicitation or distribution
of literature of any kind by any person in any
customer service areas or shopping areas of
the store during those hours when the store is
open for business.
The rule is facially valid. Our Way, Inc., 268
NLRB 394 (1983). The only issue is whether the
Respondent's promulgating the handbook rule
during the Union's campaign violated the Act. We
find that it did not. The old handbook did not con-
tain a no-solicitation rule, but did tell employees
not to "interfere with the work of others trying to
do their job." As found by the judge and as dis-
cussed above regarding the 2 September incident,
the Respondent had a no-solicitation rule posted in
at least the West Street store. The new handbook
rule amplified or clarified the Respondent's existing
no-solicitation policies and was not a promulgation
of a new rule. Lebanon Apparel Corp., 243 NLRB
1024, 1031 (1979). Moreover, an employee hand-
book containing rules for employee conduct is a
usual and reasonable place to include a no-solicita-
tion rule. As we have found that the Respondent
published the new handbook for legitimate reasons
unrelated to the union campaign, we also find that
the Respondent lawfully published the no-solicita-
tion rule. Accordingly, we shall dismiss this allega-
tion of the complaint.
7 Member Dennis finds it unnecessary to reach the issues the Chairman
raises in his concurrence because, under either his position or current
precedent, the Respondent has not violated the Act
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
CHAIRMAN DOTSON, concurring and dissenting.
I concur with my colleagues' decision to dismiss
the complaint. I do not agree, however, with the
analysis utilized in dismissing the allegation that the
Respondent violated Section 8(a)(1) by effecting
changes in its employees' terms and conditions of
employment prior to the election.'
The record reveals that 3 weeks before the elec-
tion the Respondent distributed a new employee
handbook that effected certain changes in employ-
ee benefits and that 10 days before the election the
Respondent announced revisions in the medical in-
surance plan that improved the program In evalu-
ating whether these actions violated Section
8(a)(1), both the judge and my colleagues focused
their analysis almost exclusively on the Respond-
ent's justification for its actions. Thus, the judge
stated that "the granting of benefits to employees
during known union organizational activity raises a
presumption of intent to interfere with employee
freedom of choice, in the absence of credible evi-
dence establishing that the decision was determined
by factors other than the pendency of the elec-
tion." He then set about examining the Respond-
ent's justification for the changes. Similarly, my
colleagues state that the Respondent changed bene-
fits prior to the election and, quoting American
Sunroof Corp.,2 that "the granting of benefits
during an election campaign is not per se unlawful
where the employer can show that its actions were
governed by factors other than the pending elec-
tion." Then, like the judge, they set about evaluat-
ing the Respondent's justification for the changes.
Accordingly, the judge, explicitly, and my col-
leagues, implicitly, apply a presumption3 that an
employer's change of benefits prior to an election
is unlawful. I cannot agree.4
It is a fundamental precept of our Act that when
an employer is alleged to have acted unlawfully by
detrimentally affecting an employee's terms and
' See former Member Kennedy's concurring and dissenting opinion in
Wintex Knitting Mills, 216 NLRB 1058, 1059 (1975), with which I agree
2 248 NLRB 748, 748 (1980)
3 Although my colleagues avoid use of the term "presumption" it is
implicit in their analysis Under their stated standard, the granting of ben-
efits is not per se unlawful "where the employer can show " it was moti-
vated by other factors Absent such a showing therefore, the changes
would be per se unlawful Such an analysis clearly establishes a presump-
tion
4 1 have no quarrel with the conclusion that the Respondent success-
fully demonstrated that its actions were not intended to influence the
election My quarrel is with the unwarranted presumption that required
the Respondent to shoulder that burden
conditions of employment, one of the decisive
issues is the employer's intent or motive.5 The
burden for establishing an employer's unlawful
intent or motive rests squarely and unequivocally
on the General Counsel. Wright Line, 251 NLRB
1083.
Plainly an employer can also violate the Act by
favorably affecting an employee's or a group of em-
ployees' terms and conditions of employment.
NLRB v. Exchange Parts Co, 375 U S. 405 (1964).
In such cases, however, the presence of unlawful
intent or motive is no less a necessary element than
it is in cases where employees are detrimentally af-
fected. Thus, in Exchange Parts the Court stated,
"The precise issue is whether [Section 8(a)(1)] pro-
hibits the conferral of such benefits, without more,
where the employer's purpose is to affect the outcome
of the election." 375 U.S. at 406 (emphasis added).
Also, in response to the claim that such conferrals
of benefits must be accompanied by other acts of
interference and restraint, the Court held that (375
U.S. at 410).
Other unlawful conduct may be an indication
of the motive behind a grant of benefits while
an election is pending, and to that extent it is
relevant to the legality of the grant; but when as
here the motive is otherwise established, an em-
ployer is not free to violate Section 8(a)(1) by
conferring benefits simply because it refrains
from other, more obvious violations. [Empha-
sis added.]
If, as is clearly the case, an employer's unlawful
intent or motive is a necessary element for the find-
ing that a benefit increase violates the Act, I am
unable to comprehend why the General Counsel is
discharged from establishing that element as part of
the prima facie case that a violation was commit-
ted.6 As noted, the General Counsel is not relieved
of that obligation in cases where employees are af-
fected detrimentally. Indeed, it is an essential tenet
of Board jurisprudence that the General Counsel
must establish each necessary element of an unfair
5 As the Board stated in Wright Line, 251 NLRB 1083, 1083 (1980)
In resolving cases involving alleged violations of Section 8(a)(3)
and, in certain instances , Section 8(a)(1), it must be determined, inter
aba, whether an employee's employment conditions were adversely
affected by his or her engaging in union or other protected activities
and, if so, whether the employer's action was motivated by such employ-
ee activities [Emphasis added ]
6 Nothing less is achieved by the majority's analysis For under its
rule, an employer that presents no evidence concerning its motive would
be found in violation of the Act on a showing that a petition was pending
and benefits were increased Interestingly, application of such an analysis
to a reduction in benefits would presumably result in a finding that an
employer violated Sec 8(a)(1) if the parties rested after stipulating that
the employer received an election petition and employees' insurance ben-
efits were reduced So far as I know, such is not the law
ADAMS SUPER MARKETS
labor practice. NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
Absent an articulated basis for the maintenance
of a presumption that relieves the General Counsel
of its obligation' to establish a necessary element
of an unfair labor practice, i.e., unlawful intent or
motive, I can only assume that the majority be-
lieves that the inference is warranted because the
employer's intent is either inferred or irrelevant.
Surely this is not the type of case where unlawful
motive is properly inferred because the action is in-
herently destructive of employees' Section 7 rights.
Cf. NLRB v. Great Dane Trailers, 388 U.S. 26
(1967). The Board has never so held, and even if it
did, such a holding clearly is contrary to the Su-
preme Court's Exchange Parts decision discussed
above.8 Nor at this late date can it be seriously
contested that the employer's intent is irrelevant.9
Concededly there are certain alleged 8(a)(1) viola-
tions where the employer's intent or motive, be it
lawful or unlawful, is irrelevant. Here, however,
where the violation turns on the evidence of the
Employer's intent, any analogy to cases where mo-
tives is irrelevant would be specious.
In summary, I am unable to adopt the majority's
standard for determining whether an employer's
grant of benefits during the pendency of an elec-
tion petition violates Section 8(a)(1). In my view,
the General Counsel bears the burden of proving
each and every necessary element of the alleged
unfair labor practice including the element that the
employer's action was intended to influence the
employee's election choice. If the General Counsel
makes a prima facie showing of a violation, then,
and only then, would I require the employer to
come forward with evidence to rebut the prima
facie showing.
In the instant case, I would find that the General
Counsel failed to establish a prima facie case.
There is no credited evidence of union animus, no
contemporaneous violations of the Act, and no
credited evidence that the benefit increases were,
in any way, aimed at affecting how the employees
voted in the election. For these reasons, I concur
with my colleagues' result.
7 The majority's rule not only relieves the General Counsel of part of
its burden, it also imposes a corresponding burden on the employer to
establish a negative , i e , that its actions were not aimed at influencing the
employees' election choice
6 Of course , even if benefit grants were ruled to be inherently destruc-
tive, unlawful intent or motive would remain a necessary element of the
unfair labor practice P. W. Supermarkets, 269 NLRB fn 5 (1984), and
accompanying text
9 Some earlier cases, see , e g, Goodyear Tire & Rubber Co, 170 NLRB
539, 547 (1968), stated that the employer's motive was not controlling be-
cause the employer's action allegedly violated Section 8(a)(1) But see
Admiral Semmes Hotel, 154 NLRB 338, 350 (1965), where motive was
viewed as a necessary element of the alleged violation
DECISION
STATEMENT OF THE CASE
1337
WILLIAN A GERSHUNY, Administrative Law Judge.
A hearing was conducted in Pittsfield, Massachusetts, on
April 6-7, 1983, on complaints issued November 9 and
December 20, 1982, alleging a number of 8(a)(1) viola-
tions during the course of an election campaign Identical
objections were consolidated for hearing.
The principal issue is whether the Employer 's issuance
of a new employee handbook and its announcement of a
new medical insurance plan shortly before the election
unlawfully interfered with the conduct of that election
and requires that a new election be conducted.
On the entire record, including my observation of wit-
ness demeanor, I make the following
FINDINGS OF FACT AND CONCLUSION OF LAW
1. JURISDICTION AND LABOR ORGANIZATION STATUS
The complaints allege, the answers admit, and I find
that Respondent is an employer subject to the Act and
that Local 371 is a labor organization within the meaning
of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. Background
The Employer operates seven supermarkets in north-
west Massachusetts, with approximately 325 employees
in the unit sought to be represented
In 1981, the Union launched an organization campaign
and, by order of the Regional Director dated April 10,
1981, an election was scheduled for May 8. On May 7,
the Union withdrew the petition, informing the Employ-
er that it would be back.
In early 1982, another campaign was initiated by the
Union and a new representation petition was filed on
August 23, 1982. At the October 22, 1982 election, the
Union lost by a vote of 195-86.
This second campaign was a relatively clean one. The
principal thrust of the complaints and the objections is
the issuance of a new handbook on September 29-30
which admittedly effected certain changes in employ-
ment and the announcement of an improved medical in-
surance plan on October 12-13, effective retroactively to
October 1 Both had been in preparation long before the
filing of the second representation petition on August 23
The remaining two allegations each involve only a single
incident, a single employee, and a single store manager.
B. The September 2 Incident
The credible evidence is that on September 2, at the
West Street store, Store Manager Parrott was told by an
employee that part-time cashier Lefebvre was passing
out union cards while on duty at a cash register. Upon
questioning by him, she admitted doing so, was advised
that she could do whatever she wanted on her own time,
but not while engaged in work, and was warned that dis-
ciplinary action could be taken if her conduct was re-
peated. No warning was placed in her personnel file. Le-
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
febvre testified that there were no -solicitation signs
posted at the store.
Based on my observation of his demeanor on the wit-
ness stand , Parrott apeared trustworthy and his testimo-
ny was convincing and consistent with a hearing record
which reflects a campaign free from employer interfer-
ence with campaign activities on the part of its 325 em-
ployees at seven widely scattered stores.
The General Counsel's evidence purporting to estab-
lish disparate enforcement of a no-solicitation rule falls
well short of the mark. Not only was the testimony
vague and unconvincing, it either related to solicitations
for charitable purposes or failed to establish certain es-
sential elements. that the activity occurred during a rele-
vant period, that it was observed by management; and
that it was engaged in by employees and/or supervisors
while on duty and not on break or other free time.
The Employer's actions in this regard are not unlawful
and paragraphs 8(b)(i)-(v) and 9 of the complaint are dis-
missed.
C. The September 28 Incident
The credible evidence is that on September 28, two
union organizers were having coffee at the West St.
store's small, public snack bar with bakery employee
Damato, who was on break. Present also at the snack bar
on break were a number of other employees, including
Store Manager Parrott and Supervisor Wager The latter
two, joined by a bargaining unit employee, sat in a booth
next to that occupied by Damato and the organizers
Since the beginning of the campaign, each store was vis-
ited daily by 1 or 2 organizers and, when the campaign
first began, each was visited by approximately 12 orga-
nizers en masse When the organizers and Damato left
the booth, Parrott and Wager (accompained by the bar-
gaining unit employee) followed them out of the store to
observe if the organizers stopped to talk with other em-
ployees on duty Outside, some of the two groups sat on
a bench, others stood and smoked, and Parrott occupied
himself with rounding up shopping carts and the like At
no time did Parrott or Wager, as alleged , engage in or
give the appearance of engaging in surveillance of
Damato's union activities or her socializing with the
union organizers What they did do-observe union or-
ganizers in the store to ensure that the business of the
store was not interfered with-is not unlawful.
Again, I credit the testimony of Parrott for reasons set
forth above. Damato's testimony, on the other hand
(they were "following" us and were "staring" at us), was
simply incredible given the record in this case which
clearly depicts an employer intent on not interfering with
the union activities of its employees.
Accordingly, paragraph 8(e) of the complaint must be
dismissed.
D. The Handbook and Insurance Plan
Prior to August 23, 1982, when the petition was filed,
Respondent had both an employee handbook and a medi-
cal insurance plan. Following the first aborted union
campaign in 1981, Respondent undertook to revise both
and its efforts were nearing completion when the petition
was filed Deciding that it was "damned if it did and
damned if it didn't," Respondent decided to do what was
"right" for its employees and put each into effect when
completed. Thus the handbook was distributed at meet-
ings conducted on September 29-30, 3 weeks before the
election, and the insurance plan was announced at meet-
ings conducted on October 12-13, less than 10 days
before the election
1 The handbook
It is uncontroverted that the new handbook effected
changes in employee benefits- a broader definition of
"full-time employee," resulting in the availability of com-
pany benefits to 34 former part-time employees, and the
granting of personal leave days, an expanded number of
vacation days and limited jury duty pay. It also con-
tained a no-solicitation rule which the General Counsel
concedes is not unlawful. According to the testimony of
employee Lefebvre (called by the General Counsel),
there was an existing rule applicable to employees al-
ready posted at the West St. store; the store manager
does not recall one; and no other evidence was offered
to indicate whether such a rule was posted at the other
six stores. However, all employees were advised by the
Union that card solicitation was not to be engaged in if it
interfered with work.
In late 1981, Senior Vice President Wineberg directed
the personnel manager to begin a revision After several
months when it became apparent that the latter lacked
the expertise to do such a revision, Wineberg sought the
names of consultants. Two were interviewed and one,
Jackson, was retained in July 1982. By early August,
Jackson submitted a typed draft to Wineberg. Several
days later, by letter dated August 17 (1 week before the
petition was filed), Respondent's new president (as of
July 12) Donald Young advised employees that the
handbook revision project was nearing completion and
that "we will have a new guidebook by the end of Sep-
tember "
Jackson's draft was reviewed and edited by company
officials and returned to Jackson on August 24 by letter
which asked for his review "as quickly as possible" and
noted that "Local 371 has petitioned the NLRB for an
election as of Friday, August 20, 1982 " Actually, the pe-
tition was filed on August 23; it had been mailed on
August 20.
At store meetings conducted on September 29 and 30,
at which attendance was not compulsory, the handbook
was distributed.
Respondent's decision to issue the handbook was based
on the advice of counsel and represented what Wineberg
considered to be a "damned if you do (i e. publish the
handbook), damned if you don't" (i e. withhold new ben-
efits which the employees had been promised prior to
the filing of the Union's second representation petition)
position.
2 The medical insurance plan
Learning from the Union's aborted 1981 campaign that
the employes wanted improved medical insurance bene-
fits and wanting, in any event, to remain competitive
ADAMS SUPER MARKETS
with other employers, Wineberg, in an October 6, 1981
letter to employees, announced that the Company's ef-
forts in this regard had begun. Over the next 6 months, a
number of proposals were solicited and considered. In
the meantime , Respondent was recruiting candidates for
president. At Young's interviews with the Company,
such benefits were discussed and, when he was hired on
June 8, Young was assured he could upgrade them
When he assumed ofice on July 12, Young immediately
began a lengthy series of meetings with employees,
during which employees frequently voiced complaints
about the current medical insurance plan. Young assured
them he was looking into it In early August, Young and
others met with the board of directors to discuss the
issue and , on August 10, Young was authorized to pro-
ceed with a plan as soon as possible. By letter of August
17 (1 week prior to the filing of the petition), Young told
all employees that the "company has been working for
some time on an updated and vastly improved employee
guidebook, while at the same time, we are carefully re-
viewing all of our benefit programs so we can make the
appropriate revisions in our new guidebook" and that
"we are in the process of completing this project."
On September 21, the board authorized Young to
select one of two proposals being considered, on Septem-
ber 28, Young and Wineberg selected a plan; and on Oc-
tober 5, finalized its details- one, that it would have an
effective date retroactive to October 1 and, two, that it
would have certain benefit levels The selection of Octo-
ber 1, rather than November 1, did not, in Young's view,
pose any administrative obstacles since the existing plan
was carried by Respondent as a self-insuror and thus the
normal changeover confusion would be avoided insofar
as the employees were concerned. The new plan was
first presented to employees at store meetings on Octo-
ber 13-14, less than 10 days before the scheduled elec-
tion . Young considered delaying announcement of the
plan until after the election, but decided to do "what was
right for the employees," since it was his style to tackle a
problem and implement its solution when found
E. Discussion
Board precedent by now is clear that the granting of
benefits to employees during known union organizational
activity raises a presumption of intent to interfere with
employee freedom of choice, in the absence of credible
evidence establishing that the decision was determined
by factors other than the pendency of the election. See,
e.g., Baltimore Catering Co, 148 NLRB 970 (1964). That
presumption is overcome where the decision-making
process was fully under way prior to the union activity
Greenbrier Valley Hospital, 265 NLRB 1056 (1982) Of
course, the institution of an organizational drive by a
union does not prevent management from taking reasona-
ble measures in the operation of its business, NLRB v. M.
H. Brown Co., 441 F 2d 839 (2d Cir. 1971). And while an
employer such as Respondent here often is put in a
"damned-if-you-do, damned-if-you-don't" situation (since
the granting or the withholding of benefits may consti-
tute unlawful interference), it nevertheless must make its
business decisions precisely as it would have had the
1339
union not been in the picture. Marines' Memorial Club,
261 NLRB 1356 (1982).
Applying these principles to the record evidence, I
find and conclude that the benefit changes effected by is-
suance of the new handbook on September 29-30 and
the new insurance benefits announced on October 12-13
were for a legitimate business purpose and not for the
antiunion purpose of interfering with the October 22
election.
The evidence is overwhelming and uncontroverted
that a revision of both the handbook and the insurance
plan were decided on in the fall of 1981, almost 1 year
prior to filing of the petition on August 23, 1982. During
that year, handbook revisions were attempted by in-
house personnel and, that failing, were completed by
outside consultants It was in the final revision stages
when the petition was filed and, indeed, one week prior
to the petition, employees were told that the project was
nearing completion and that "we will have a new guide-
book by the end of September." That announced goal
was in fact met and the revised handbooks were dissemi-
nated to employees on September 29-30. The Company
did return the final draft to the consultant on August 24
with a request for finalization "as soon as possible" and a
reference to the recent filing of the petition, but even
that does not indicate an effort to accelerate issuance of
the handbook. On the contrary, it is more suggestive of
an effort to meet the timetable announced to the employ-
ees prior to the filing of the petition.
Similarly, employees were told in October 1981 that
company efforts to revise employee insurance benefits
had begun. That process was delayed by the hiring of a
new president who insisted upon complete authority
over benefit upgrading to remain competitive in the in-
dustry. In a series of July meetings, the president met
with and assured employees he was studying the prob-
lem and, by letter of August 17 (1 week prior to the peti-
tion), he was able to reassure employees that the evalua-
tion process was continuing and that "we are in the
process of completing this project " Details of the new
insurance plan were not finalized until October 5 The
plan itself, with a retroactive date of October 1, was an-
nounced on October 13-14, 3 months after the president
took office and less than 10 days prior to the scheduled
election Here, unlike the case of the handbook, the new
insurance plan had no announced deadline, employees
for months were aware only that a revised plan was im-
minent.
Whether the selection of an October date for conferral
of improved health benefits was intended to-or had the
effect of-swaying the election depends ultimately on its
justification. Two appellate decisions are instructive in
this regard In NLRB v. Styletek, 520 F 2d 275 (1st Cir.
1975), the court found that the granting of benefits was
lawful, but that their announcement 2 weeks before the
election was unlawful Noting that it might have reached
a different result (as Chairman Miller also noted), that
the employees had been told generally (before filing of
the petition) of an ongoing study of job categories and
wage rates and that the company's explanation (the study
was concluded and the time for announcement had ar-
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rived) was neither "transparent nor implausible," the
court reasoned (520 F.2d at 282):
The August date was generally consistent with the
way matters had been handled. But the company,
either innocently or deliberately, got itself into the
bind. We think when an employer, without having
some fairly rudimentary factual explanation for the
timing, announces benefits after the petition for
election is filed and two weeks before a representa-
tion election, it must take the chance that the Board
will ascribe to it improper motives. Here Foster
took over three months before announcing the
actual details of the wage plan; the timing was
within his grasp; and to the extent the Board misap-
prehends the motives, if indeed that be the case, the
company must rightly bear the burden.
In NLRB v M. H. Brown, supra, the court of appeals
rejected the Board's finding of unlawful grant of wage
and fringe benefits. Those benefits were decided upon
prior to the filing of the petition, but announcement was
delayed until after the petition In addition, the benefit
changes were made retroactive to a date prior to the pe-
tition. Noting that the benefits were for a valid business
purpose (meeting competition), the court found that the
Board's finding that the increase was not previously
planned was not supported by substantial evidence.
Here, there is no evidence of union animus Here, the
decision to upgrade the insurance program was an-
nounced long before the petition and, from the time the
new president was hired, was a matter of high priority
within the Company . Here, the ultimate decision in-
volved the review of several complex proposals by offi-
cials inexperienced in weighing their relative merits.
Here, ultimate authority lay with Respondent's board of
directors and there is nothing in this record to suggest
that the timing of their late September meetings was re-
lated to the upcoming election . Here, there was good
reason to announce the new plan as soon as possible,
since the existing plan, unlike the new one , had no cap
on company liability. Indeed , from the standpoint of
impact on the employees , neither the date of announce-
ment nor the plan 's retroactive effect could have inter-
fered with their freedom of choice in the election, for
each employee long since knew that improved benefits
were on the way. i
ORDER
It is ordered that the complaint be dismissed and the
objections be overruled
' 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 pur-
poses