Ara Food Services

National Labor Relations Board - Board Decisions

Jul 31, 1987

285 N.L.R.B. 221 (N.L.R.B. 1987)

ARA FOOD SERVICES
ARA Food Services and Hotel Employees and Res-
taurant Employees International Union, AFL-
CIO, Petitioner. Case 23-RC-5297
31 July 1987
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 4 June 1986 and the hearing officer's
report recommending disposition of them. The
election was conducted pursuant to a Stipulation
for Certification Upon Consent Election. The tally
of ballots shows 27 for and 37 against the Petition-
er, with 2 challenged ballots, an insufficient number
to affect the results of the election.
The Board has reviewed the record in light of
the exceptions' and briefs, has adopted the hearing
officer's findings and recommendations, to the
extent consistent with this decision and finds that
the election must be set aside and a new election
held.
The Petitioner's objection in issue alleges that
the Employer decided to pay, and did in fact pay,
vacation benefits to its employees during the criti-
cal period in an effort to influence the outcome of
the election. The Employer contends that the deci-
sion to pay employees their vacation benefits was
made prior to the filing of the election petition and
was in keeping with its past practice of paying va-
cation benefits on the employee's anniversary date.
The petition was filed on 9 April 19862 and the
election held on 4 June. Vacation benefits were
paid to employees on their respective anniversary
dates in late May. Inasmuch as the facility in ques-
tion opened May 1985, May 1986 would have been
the first year that employees became eligible for
vacation pay.
The credited testimony of six employees and Su-
pervisor Swartzwelder reveals that General Man-
ager Douglas Johnson, at a March meeting with
employees, said employees were entitled to vaca-
tion pay after their anniversary dates, but did not
say when it would be paid. Further, these employ-
ees first became aware in May that they were re-
ceiving vacation moneys on their anniversary
dates.
The hearing officer discredited Johnson's testi-
mony that he had decided in early February to pay
' In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer's recommendations to overrule all objections other than the one based
on the payment of vacation pay
2 All dates are in 1986 unless otherwise indicated
221
vacation benefits on employees' anniversary dates.
Thus, the hearing officer found, and we agree, that
Johnson did not "designate" (decide on) a date to
make vacation payments until sometime during the
critical period and that his decision to pay these
benefits in May was calculated to influence the re-
sults of the election.
In further support of his decision, the hearing of-
ficer drew an adverse inference from Johnson's tes-
timony pertaining to a purported written document
which would have evinced Johnson's February de-
cision to pay vacation benefits on the employees'
anniversary dates. The hearing officer interpreted
Johnson's testimony as indicating that Johnson had
in fact reduced his decision to writing in February.
Because this written document, which would have
supported Johnson's testimony, was not placed into
evidence at the hearing, the hearing officer drew
an adverse inference that the document did not
exist.
We find, however, that Johnson's testimony re-
garding the existence of such a document is con-
fused and unreliable. It is unclear from his testimo-
ny whether Johnson actually reduced to writing
his decision to pay vacation benefits on anniversary
dates, or whether he decided to commit his deci-
sion to writing but ultimately did not do so.
Nor is there corroborating testimony which
clarifies this point. The Employer's regional indus-
trial relations director, Linda Whittlin, testified that
she consulted Johnson on a document describing
employees' benefits. As noted above, however, this
document stated that employees were entitled to
vacation benefits but did not state when benefits
were payable. Nothing in Whittlin's testimony ad-
dresses the existence of a document establishing
when vacation payments became due. Thus, be-
cause we find Johnson's testimony regarding the
existence of a document unclear, we do not draw
any inference based on it.
Finally, we agree with the hearing officer's con-
clusion that the Employer had no clearly estab-
lished practice regarding vacation benefit pay-
ments. While the Employer stated that it has col-
lective-bargaining agreements with unions at some
other facilities in which provision is made for vaca-
tion payments on an employee's anniversary date,
and that at one of its nonunion facilities in Califor-
nia, vacation checks are tendered on the anniversa-
ry date, the evidence is inconclusive. Indeed, the
Petitioner submitted into evidence another collec-
tive-bargaining agreement between the Employer
and a union in which vacation pay became due on
the last day of work before an employee's vacation.
Our dissenting colleague disagrees with the well-
established principle that when a benefit is granted
285 NLRB No. 33
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
during the critical period before an election, the
burden of showing that the timing was governed
by factors other than the pendency of the election
is on the party who granted the benefit. The logic
behind this legal principle is clear: only the party
granting the benefit can explain why it chose to do
so. An employer meets that burden if it presents
evidence which establishes justification for its
action.
Here, the thrust of the Employer's argument is
that the decision to grant vacation pay on the em-
ployees' anniversary dates (approximately 2 weeks
before the election), rather than at the time of the
employees' vacations, was made prior to the
advent of the Union. Johnson's testimony was spe-
cifically discredited and several employees credibly
testified that at a March meeting, when vacation
pay was discussed, they were not told of this "de-
cision." An inference may properly be drawn that
if the Employer had previously made the decision
to grant vacation benefits on the anniversary dates,
it would have informed the employees during this
meeting. Indeed, the employees testified that they
were surprised to receive the vacation payment. In
fact, one employee, who had not requested vaea-
tion time, unexpectedly received a cash payment
on his anniversary date. The employee testified that
the Employer had never paid him in cash for any
reason.
In view of the foregoing, we agree with the
hearing' officer that the Employer failed to meet its
burden of showing that it would have granted the
benefit during the critical period whether or not
the Union was on the scene. Mariposa Press, 273
NLRB 528, 544 (1984).
[Direction of Second Election omitted from pub-
lication.]
CHAIRMAN DoTsoN, dissenting.
Contrary to my colleagues, I would find that the
Petitioner has not met its burden of establishing
that the Employer's grant of vacation pay during
the critical period is objectionable. I, therefore,
would not set aside the election.
The Employer commenced operations on 20
May 1985. On 9 April 1986 the Union filed the pe-
tition at issue here. The election was held on 4
June 1986. The Employer gave employees their va-
cation pay on their anniversary dates in May 1986.
The Employer's general manager, Johnson, testi-
fied that he decided to give employees the vacation
pay on their anniversary dates (rather than at the
time vacation is taken) before the representation
petition was filed.
The hearing officer ' discredited Johnson's testi-
mony that he made the decision to grant the vaca-
tion pay outside the critical period. She found that
Johnson's failure to tell employees about the vaca-
tion .pay prior to the filing of the petition, and the
fact that the employees first became aware of the
vacation pay in May 1986, warranted the inference
that Johnson did not designate a date to pay the
moneys until a time during the critical period and
that his actions therefore were designed to influ-
ence the outcome of the election.' I disagree with
this conclusion.
It is, of course, well settled that the grant of a
benefit during the period immediately preceding
the election is objectionable if it is motivated by a
desire to influence the outcome of the election
rather than valid business reasons. Essex Interna-
tional, 216 NLRB '575 (1975). I have no quarrel
with this general rule. I disagree, however, with
the burdens of proof which have been established
in connection with it. Thus, the Board has long
held that when a benefit is granted during the criti-
cal period, such timing will be regarded as calcu-
lated to influence the outcome of the election, in
the absence of a showing that the timing was gov-
erned by factors other than the pendency of the
election. The burden of showing other, factors is
upon the employer. Id. at, 576.
In essence, this allocation of burdens rests on a
presumption, albeit rebuttable, that an employer's
grant of benefits in the critical period prior to an
election is objectionable. I have already discussed
the reasons why such a presumption should not be
allowed in the unfair labor practice context.2 For
similar reasons, I so not think it should be permit-
ted in evaluating preelection conduct. Just as it is
the General Counsel's burden to establish the nec-
essary elements of an unfair labor practice, so it is
the objecting party's burden, to establish that con-
duct so affects an election that the latter must be
set aside.3 The use of the presumption that a grant
of benefits during the critical period is motivated
by a desire to affect the outcome of the section re-
lieves the objection party of its burden, and instead
places the burden on the employer to prove its in-
nocence through affirmative evidence.
In the case at bar, the hearing officer, and my
colleagues fmd that the decision to grant vacation
pay was made during the critical period and that
this alone shifts the burden to the Employer. They
then fmd that the Employer fails to meet its burden
t The hearing officer also found that Johnson testified that he bad
committed his decision to writing on 6 February 1986 but failed to
produce the written document. She drew an adverse inference from his
failure to produce the document My colleagues find, and I agree, that
Johnson 's testimony regarding the existence of such a document is con-
fused and unreliable and that no inference should be drawn from it.
2 See my concurring and dissenting opinion in Adams Super Markets,
274 NLRB 1334 (1985).
3 NLRB v. Mattison Machine Works, 365 U.S. 123, 124 (1961)
ARA FOOD SERVICES 223
because it did not establish conclusive evidence of
an established practice regarding vacation benefits.
I disagree with their conclusion on two grounds.
First, as expressed above, I do not agree with the
allocation of burdens used by my colleagues.
Second, even if I did agree that the timing of the
decision required shifting the burden of proof to
the Employer, I would find that the Employer met
its burden.
It is undisputed that the employees were entitled
to the vacation pay, that the new general manager,
Johnson, had the authority to decide when the pay-
ments would be made, that vacation pay is given
on or close to the anniversary date at some of the
Employer's other facilities,4 and that May 1986
(the time of the payments here) would have been
the first year that employees at the Dow facility
became eligible for vacation pay. These are neutral
facts which, standing alone, bear no relation to the
election campaign. There is no credited evidence
of union animus and no other contemporaneous
misconduct which could connect the grant of vaca-
tion pay to the election. The only evidence which
has any connection to the election is that which led
4 While it is disputed whether the payment of vacation moneys at
these facilities establishes a past practice , it is not disputed that vacation
pay was given on the anniversary date rather than when vacation time
was taken
the hearing officer to find that the decision to grant
vacation pay on the anniversary date was made
after the filing of the representation petition. The
evidence establishes nothing more than timing: the
decision to grant the benefits and the grant of the
benefits occurred within the critical period. In my
colleagues' view that is sufficient to shift the
burden of proof to the Employer. I do not agree.
The error of this approach is particularly evident
here where there is an abundance of neutral facts
surrounding the issue of vacation pay. Further, I
disagree with my colleagues' conclusion that the
Employer failed to meet its burden because it did
not present conclusive evidence of an established
practice regarding vacation pay. This is an entirely
unreasonable conclusion because it is impossible to
show a past practice at the Dow facility inasmuch
as May 1986 was the first time that any employee
at that facility could have been eligible for vacation
pay. The presence of a rational basis for the timing
of the grants of vacation pay (i.e., the grants were
made at a time when the employees first became
eligible to receive them) in addition to the evidence
that the Employer had granted vacation pay on the
anniversary date at some of its other facilities is
sufficient in my view to rebut the presumption cre-
ated by the timing of the grants.
I would overrule the objection and certify the
results of the election.