Sun Mart Foods

SUN MART FOODS 161 U Save Foods d/b/a Sun Mart Foods and United Food and Commercial Workers Local No. 7, Peti- tioner. Case 27–RC–8188 January 30, 2004 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH The National Labor Relations Board, by a three- member panel, has considered objections to an election held August 23, 2002,1 and the hearing officer’s report (relevant portions are attached as an appendix) recom- mending disposition of them. The election was con- ducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 16 for and 19 against the Peti- tioner, with 3 challenged ballots, an insufficient number to affect the results of the election. The Board has reviewed the record in light of the ex- ceptions and brief, has adopted the hearing officer’s find- ings2 and recommendations,3 and finds that the election must be set aside and a new election held. Contrary to our dissenting colleague, we agree with the hearing officer, for the reasons set forth in his report and those set forth below, that the Employer engaged in ob- jectionable conduct by timing the announcement of its decision to remodel its Sun Mart grocery store in order to influence the employees’ choice in the election. I. BACKGROUND The relevant facts can be summarized as follows. The Employer owns and operates a chain of wholesale distri- bution centers and retail stores throughout the country. The store at issue is a grocery store that the Employer operates in Sterling, Colorado, known as Sun Mart Foods. In April, the Employer concluded that in order to com- pete effectively in the retail market, it needed to remodel several of its retail stores throughout the country. The Employer’s president of retail operations, Michael Mott, was in charge of deciding whether a particular store 1 Hereinafter all dates are in 2002, unless otherwise noted. 2 The Employer has excepted to some of the hearing officer’s credi- bility findings. The Board’s established policy is not to overrule a hearing officer’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings. 3 Prior to the hearing, the Petitioner withdrew its Objection 1. In the absence of exceptions, we adopt pro forma the hearing officer’s rec- ommendation that Petitioner’s Objections 2 and 3 be overruled. would be selected for remodeling.4 According to Mott’s credited testimony, he did not decide to remodel any store until after he had physically visited the premises. On July 23, 11 days after the petition for representa- tion was filed in this case, Mott visited Sun Mart Foods in Sterling.5 After taking a walking tour of the store, Mott determined that Sun Mart Foods would be an excel- lent candidate for remodeling. He immediately notified Store Manager Dennis Swigart of the decision to re- model. Swigart told other employees, including some unit employees, of the remodeling decision as soon as he learned of it. Approximately 1 week prior to the August 23 election, Swigart distributed copies of a memo to employees re- garding a series of mandatory meetings to take place on August 21. The memo stated that the meetings would be about the upcoming union election and the remodeling. On August 21, the Employer conducted four manda- tory campaign meetings for employees. At the meetings, Bob Baquet, the Employer’s regional manager, told em- ployees that the Sun Mart store was one of the “lucky five” in the region chosen for remodeling. Reading from a prepared statement, Baquet expressed the Employer’s opposition to the union campaign and encouraged the employees to vote against the Petitioner. Baquet then opened the floor for questions. Most of the questions that employees asked during this question and answer period concerned the upcoming remodeling. Employees wanted greater detail as to how the remodeling effort would benefit them. Employees also expressed concern about the existing cash registers because they were mak- ing their jobs more difficult.6 During one of the manda- tory meetings, Baquet told the employees that the re- modeling would include new cash registers. A second employee concern related to the store’s re- cent loss of customers. The resulting lack of business had caused a decrease in employees’ own work hours. At the meetings, Baquet explained that the Employer was also upset about the loss of its Sun Mart customer base and was looking to renovate the store to bring those cus- tomers back and increase business. At the election on August 23, 16 ballots were cast for the Petitioner and 19 against. The Petitioner subse- 4 The Employer decided that it would remodel approximately 50 of its retail stores. 5 Mott was originally scheduled to visit the Sun Mart store in May, but was unable to land at the airport due to inclement weather condi- tions. 6 When the Employer purchased the Sun Mart store about August 2001, it replaced the cash registers with a different brand, which did not print the front of checks. Although the dissent belittles the problem, the record shows that even the Employer acknowledged that the change made the employees’ jobs more difficult. 341 NLRB No. 22 SUN MART FOODS 162 quently filed four objections. Objection 4 is the only objection before us for consideration. It reads as follows: After the union campaign began, the Employer prom- ised to make several improvements throughout the store, including remodeling the store after the election. These improvements were not discussed prior to the union campaign and were made to induce votes against the Union. The hearing officer recommended sustaining Objection 4. Initially, the hearing officer found that the Employer’s decision to remodel the Sun Mart store constituted a benefit to the employees. In addition, the hearing officer found that the Employer’s remodeling decision was not made for the purpose of influencing employee free choice in the election.7 The announcement of the deci- sion, however, the hearing officer found to be “another matter.” Given that the remodeling decision was an- nounced just two days before the election, was made in conjunction with an antiunion speech, and that the Em- ployer failed to show that factors other than the pending election prompted the announcement at such a critical time, the hearing officer concluded that the Employer engaged in objectionable conduct by timing the an- nouncement of the remodeling decision on August 21 in order to influence the outcome of the election. We agree with the hearing officer. II. DISCUSSION The Board will infer that an announcement or grant of benefits during the critical period is objectionable; how- ever, the employer may rebut the inference by establish- ing an explanation other than the pending election for the timing of the announcement or the bestowal of the bene- fit. Star, Inc., 337 NLRB 962, 963 (2002). The em- ployer may rebut the inference by showing that there was a legitimate business reason for the timing of the an- nouncement or for the grant of the benefit. Id. See also Adams Super Markets Corp., 274 NLRB 1334, 1334– 1335 (1985); Oxco Brush Division of Vistron Corp., 171 NLRB 512, 513 (1968). In some cases, the employer may be able to successfully rebut the inference with re- spect to the grant of the benefit, but may fail to show any reason for the timing of the announcement of the benefit other than the pending election. See Mercy Hospital Mercy, 338 NLRB No. 66, slip op. at 1–2 (2002); Union Camp Corp., 202 NLRB 1023, 1024 (1973). 7 The hearing officer reasoned that the decision was part of a preex- isting plan that predated the filing of the petition and was based on factors related to profitability and retention of market share. No excep- tions were filed to the hearing officer’s finding that the Employer’s remodeling decision was not objectionable. The hearing officer properly applied the above princi- ples to the facts of this case. He correctly inferred that the announcement of the remodeling decision, which occurred during the critical period, was objectionable. The hearing officer also correctly found that the Em- ployer failed to rebut the inference that the remodeling announcement was made for the purpose of influencing the employees’ votes in the election. In sum, we agree with the hearing officer that “the credible evidence” es- tablishes that “the Employer’s announcement of the re- modeling decision two days before the election and in conjunction with an antiunion speech delivered at four mandatory employee meetings was calculated to interfere with the election.”8 The dissent does not argue that the hearing officer misapplied Board law. Nor does the dissent dispute the hearing officer’s conclusion that the Employer’s an- nouncement was calculated to influence the employees’ choice in the election. Indeed, the dissent states that it “agree[s] with the hearing officer and my colleagues, for the purposes of this discussion, that the Employer told employees of the remodeling decision in an attempt to influence the employees’ votes in the election.” Nevertheless, the dissent concludes that the Em- ployer’s announcement was not objectionable. The dis- sent’s conclusion appears to be based on the following three contentions: (1) it is doubtful that the remodeling decision was a benefit to employees; (2) there is an “im- plicit finding” or “tacit admission” in the majority deci- sion that the Employer’s remodeling announcement did not constitute a “promise”; and (3) Section 8(c) grants the Employer the right to time the announcement of the remodeling decision for the purpose of influencing the outcome of the election. As discussed below, there is no merit in any of these contentions. A. The Employer’s Decision to Remodel the Sun Mart Store Constituted a Benefit to the Employees The dissent assumes “for the sake of argument only” that the remodeling of the store was a benefit to employ- ees. The dissent’s reluctance to find that the remodeling is an employee benefit is based on a distinction it draws 8 In its exceptions, the Employer argues, inter alia, that Objection 4 encompasses only the decision to remodel the store, not the announce- ment of the decision to employees. We disagree. Objection 4 on its face alleges that “the Employer promised to make several improve- ments throughout the store, including remodeling the store after the election” and, as discussed infra, we find that the Employer’s an- nouncement constituted such an objectionable promise. Moreover, even if the announcement issue does not “exactly coincide with the precise wording” of Objection 4, we find that it is “sufficiently related” to the objection to warrant our consideration on the merits. See Fiber Industries, 267 NLRB 840 fn. 2 (1983). In addition, the announcement issue was fully litigated at the hearing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 163 between improvements that directly benefit only the em- ployees themselves (such as a wage increase), and im- provements that directly benefit the Employer and only indirectly benefit the employees (such as the remodeling of a store). According to the dissent, these two situations are “analytically distinguishable”: in the former situation “the Employer can implicitly condition, albeit unlaw- fully, the granting of the benefit on the employees’ rejec- tion of the Union”; by contrast, in the second situation, the “employees will get the ‘benefit,’ the remodeling, regardless of whether they support the Union or the Em- ployer.” The implication of the dissent is that cases fal- ling into the second category do not, as a practical mat- ter, involve the granting of a benefit. We disagree. The distinction the dissent attempts to draw is incon- sistent with the Supreme Court’s decision in NLRB v. Exchange Parts Co., 375 U.S. 405, 408–410 (1964). In that case, the Court of appeals had found that it was not an unfair labor practice for an employer to grant benefits “‘unconditionally on a permanent basis [without] any implication the benefits would be withdrawn if the work- ers voted for the union.’” 375 U.S. at 408 (quoting 304 F.2d 368, 375 (5th Cir. 1962)). The Supreme Court re- versed, reasoning as follows: The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Em- ployees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if not obliged. The danger may be diminished if, as in this case, the benefits are conferred perma- nently and unconditionally. But the absence of condi- tions or threats pertaining to the particular benefits con- ferred would be of controlling significance only if it could be presumed that no question of additional bene- fits or renegotiation of existing benefits would arise in the future; and, of course, no such presumption is ten- able. [375 U.S. at 409–410. Footnote omitted.] In light of the Court’s decision, the dissent, like the lower court in Exchange Parts, is legally incorrect insofar as it maintains that the permanent and unconditional nature of the Employer’s decision to remodel the store renders this case “analytically distinguishable” from other grant of bene- fit cases. Contrary to the dissent, we find that the record plainly shows that the remodeling of the store did indeed consti- tute a cognizable benefit to employees. The relevant inquiry is whether the employees reasonably would view the remodeling as a benefit to them. Comcast Cablevi- sion of Philadelphia, L.P., 313 NLRB 220, 250 (1990) (finding that a proposed benefit was not de minimis be- cause employees viewed the benefit as significant). Sig- nificantly, the Employer itself presented the remodeling as a benefit to the employees, telling them that the Sun Mart store was one of the “lucky five” in the region to be chosen. In addition, the Employer addressed employees’ concerns regarding the store’s existing cash registers, indicating that the remodeling would include new cash registers that would make their jobs less difficult. Fi- nally, the remodeling was a benefit to employees by im- proving their working conditions and giving them a more pleasant work environment. In sum, as Store Manager Swigart testified, employees were excited about the re- modeling because of the “prospect of having a nicer fa- cility to come to work to, the prospect of more business, the prospect of more money.” For these reasons, we find that the remodeling of the store was a benefit to employ- ees.9 B. The Employer’s Announcement of its Remodeling De- cision Constituted a “Promise” The dissent states that there is an “implicit finding” or “tacit admission” in our decision that “there was never any ‘promise’ to remodel the store as alleged in Objec- tion 4.” Our colleague misconstrues our position. Webster’s Dictionary defines “promise,” among other things, “as a declaration that one will do or refrain from doing something specified” or “an undertaking however expressed that something will happen or that something will not happen in the future.” Webster’s Dictionary 1815 (3d ed. 1966). Here, by announcing to employees that the Sun Mart store was one of the “lucky five” se- lected for remodeling, the Employer “declar[ed]” or “ex- pressed” that it would “do something specified” “in the future”—it would renovate the store. Therefore, we find that the Employer’s announcement did indeed constitute a “promise” within the plain meaning of that word.10 C. Section 8(c) Does not Grant the Employer the Right to Time the Announcement of the Remodeling Decision for the Purpose of Influencing the Outcome of the Election The dissent’s final contention is that under Section 8(c) of the Act the Employer had an absolute right to announce the decision to remodel the store, even if the 9 See Dallas Ceramic Co., 219 NLRB 582, 586–587 (1975) (em- ployer announced shortly before Board election, inter alia, the opening of a new warehouse that would alleviate the employees’ overcrowded working conditions; Board held that the employer violated Sec. 8(a)(1) by “announcing to employees improvements in benefits and working conditions”). 10 The dissent contends that an “announcement” cannot be a “prom- ise.” We disagree. The concepts are overlapping, not mutually exclu- sive. An “announcement” may or may not be a “promise,” depending on what is being announced. SUN MART FOODS 164 Employer timed the announcement to influence the em- ployees’ votes in the election. This argument is without merit. Section 8(c) provides that if a statement is not a threat or a promise of benefit, the statement cannot be found to be an unfair labor practice.11 The Board has long main- tained that Section 8(c) was intended by Congress to apply only to unfair labor practice cases and is not, by its terms, applicable to representation cases. See, e.g., Hahn Property Management Corp., 263 NLRB 586 (1982); Rosewood Mfg. Co., 263 NLRB 420 (1982); Dal-Tex Optical Co., 137 NLRB 1782, 1787 fn. 11 (1962). T 12 Assuming arguendo, for the purposes of our decision, that Section 8(c) is applicable to the instant representa- tion case, the Employer’s announcement of the remodel- ing decision would still be objectionable. This is so be- cause, as explained below, the announcement constituted a promise of benefit made for the purpose of influencing the employees’ votes in the election, and such promises are expressly excluded from the protection of Section 8(c).13 Although the Employer intended to remodel several of its stores prior to the advent of the union campaign, the testimony of its own president establishes that it did not make the actual decision to remodel the Sun Mart store until after the representation petition was filed. As set forth in section I, above, President Mott testified that he did not decide to remodel any store until he had physi- cally visited the premises. Mott’s visit to the Sun Mart store did not occur until July 23, 11 days after the peti- tion was filed.14 Mott’s decision to remodel the Sun 11 Sec. 8(c) reads as follows: The expressing of any views, argument, or opinion, or the dissemina- tion thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of re- prisal or force or promise of benefit. 12 Member Walsh agrees with this precedent and would find Sec. 8(c) inapplicable here. Chairman Battista disagrees and would find that true and relevant statements in a representation proceeding, which do not contain threats or promises, should be protected by the policy considerations that lie behind Sec. 8(c). See his dissenting opinion in Yuma Coca-Cola Bot- tling Co., 339 NLRB No. 14 (2003). In the instant case, however, Chairman Battista agrees that the remodeling announcement was a promise. 13 See Mercy Hospital Mercy, 338 NLRB No. 66 (2002) (announce- ment of grant of benefit during the critical period held violative of Sec. 8(a)(1) and hence not protected by Sec. 8(c)). 14 However, irrespective of whether the decision would have been made in May (as the dissent suggests) or was made on July 23 (as the facts show), the significant point is that the announcement of the deci- sion was held back until two days before the election. The dissent claims to find support for its position in Capitol EMI Music, 311 NLRB 997, 1012 (1993), enfd. mem. 23 F.3d 399 (4th Cir. 1994). However, the dissent’s reliance on that case is clearly misplaced Mart store was made on July 23, the same day that he visited it. However, the Employer did not formally an- nounce the decision at that time. Instead, the Employer allowed almost a full month to elapse before officially communicating the new benefit to its employees. When the Employer finally decided to make the an- nouncement, it selected as its method of dissemination a series of meetings scheduled just 2 days before the elec- tion. The announcement of the benefit at this crucial time on the eve of the election bore no rational relation- ship to the date the remodeling decision was made. Thus, this was not an announcement made in the normal course of business unrelated to the union campaign. As the hearing officer correctly found, the Employer has shown no business reason or necessity for announcing the benefits at the time and in the manner that it did. While the Employer may have been justified in deciding to remodel the store, we are under no duty to allow that benefit “to be husbanded until right before the election and sprung on the employees in a manner calculated to influence the employees’ choice.” NLRB v. Styletek, 520 F.2d 275, 280 (1st Cir. 1975). Accord: St. Francis Fed- eration of Nurses v. NLRB, 729 F.2d 844, 850 (D.C. Cir. 1984) (“the timing of the announcement of a wage in- crease may violate Section 8(a)(1), ‘even though the em- ployer’s initial decision to raise wages was perfectly le- gitimate.’”) (quoting J.J. Newberry Co. v. NLRB, 645 F.2d 148, 151 (2d Cir. 1981)); Pedro’s Inc. v. NLRB, 652 F.2d 1005, 1008 fn. 9 (D.C. Cir. 1981) (“[a] violation of the Act may also be found where benefits, although granted for business reasons, are announced ‘right before an election and sprung on the employees in a manner calculated to influence the employees’ choice’”) (quoting Styletek, supra). The three main cases the dissent relies on are inappo- site because they do not involve the situation presented here where both the decision to grant the benefit and the announcement thereof were made after the filing of the petition. The employers in Raley’s, Inc. v. NLRB, 703 F.2d 410 (9th Cir. 1983), NLRB v. Tommy’s Spanish Foods, Inc., 463 F.2d 116 (9th Cir. 1972), and Koronis Parts, Inc., 324 NLRB 675 (1997), announced new bene- fits during a union campaign, but the new benefits were initiated prior to the union’s arrival. See Raley’s, 703 F.2d at 414 (employees’ “insurance benefits were in- creased automatically as a consequence of an agreement made two years before”); Tommy’s Spanish Foods, 463 F.2d at 119 (“uncontradicted that the Respondent’s initial effort in the matter of increasing insurance predated the because the decision to remodel the Sun Mart store was not “planned and settled upon before the advent of the union activity.” Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 165 Union’s appearance on the scene”); Koronis Parts, 324 NLRB at 697 (decision to award 10-year service plaques and $1000 bonuses was made prior to the advent of the union). In sum, while we agree with our dissenting colleague that the Employer did not delay or husband the decision to remodel the Sun Mart store in order to interfere with the election, we conclude, in agreement with the hearing officer, that the Employer husbanded the announcement of its decision to remodel the store “until right before the election and sprung [it] on the employees in a manner calculated to influence the employees’ choice.” Styletek, 520 F.2d at 280. It is the announcement of the benefit, not the decision to grant the benefit, that is objectionable in this case. Accordingly, for all these reasons, we sustain the Peti- tioner’s Objection 4, set aside the election, and direct that a second election be held. [Direction of Second Election omitted from publica- tion.] MEMBER SCHAUMBER, dissenting. Introduction The election at issue here was held on August 23, 2002. The results of the election were 16 votes for the Petitioner, 19 against, with 3 challenged ballots, an insuf- ficient number to affect the results of the election. Thereafter, the Petitioner filed four objections to the elec- tion. Only the Petitioner’s Objection 4 is at issue here.1 The Petitioner’s Objection 4 alleges that [a]fter the union campaign began, the Employer prom- ised to make several improvements throughout the store, including remodeling the store after the election. These improvements were not discussed prior to the union campaign and were made to induce votes against the Union. The hearing officer recommended that Objection 4 be sus- tained because he found that the announcement of the store remodeling—not the decision to remodel (nor, presumably, any “promise” to remodel as alleged in Objection 4)— constituted objectionable conduct that warranted setting aside the election. My colleagues adopt the hearing offi- cer’s recommendation and set aside the election. I would overrule the Petitioner’s Objection 4 and certify the results of the election. First, I do not agree that the remodeling of the Sterling store is an “employee” benefit. However, assuming ar- 1 The Petitioner withdrew its Objection 1 prior to the hearing and did not except to the hearing officer’s recommendation that its Objections 2 and 3 be overruled. guendo that it is, it is so only in the sense that any deci- sion made by management to improve a company’s prof- itability consequentially inures to the benefit of employ- ees. It is not the kind of direct “employee benefit,” such as an increase in wages or vacation time, the grant and announcement of which during the critical period will generally be deemed coercive as an attempt to influence employees’ votes in the election and therefore be found in violation of the Act. Second, since the decision to remodel was made based on a companywide remodeling plan adopted long before the union organizing campaign began, and was made in response to increased competition and a loss of customer base, and certainly not to influence employees’ votes in an election at this one store, the decision to grant this “benefit” was lawful. Under the strictures of Section 8(c) of the Act, “an employer’s true statement about law- fully granted benefits is protected.” (See fn. 9 below and accompanying text.) Since the Employer’s an- nouncement of the remodeling decision is a “true state- ment about lawfully granted benefits,” the Employer had the right to announce its decision at any time, including during the critical period, without running afoul of Board law. Facts In August 2001, Nash Finch, the Employer’s parent company, purchased several stores from Sixth Street/U Save Foods, including the Sterling, Colorado store at issue here. Previously, Nash Finch had designated $40 million for capital improvements to its retail stores. On April 10, 2002,2 it hired Michael Mott as its new presi- dent of retail operations to carry out the renovation plan. About 50 stores were to be included in the plan. Mott would not include any store in the renovation plan until he had visited the store. Mott and other individuals involved in the remodeling decisions were scheduled to visit the Sterling store about May 30, before the union campaign began. The visit, however, was postponed because of weather conditions. Mott finally visited the Sterling store on July 23, 11 days after the filing of the election petition that triggered the commencement of the critical period. On the same day, July 23, Mott made the decision to remodel the Sterling store.3 Also on July 23, Mott informed certain individu- 2 All dates hereafter refer to 2002, unless otherwise stated. 3 Mott credibly testified that he made the decision to remodel the Sterling store partly because of the store’s continued loss of market share due to increased competition, and partly because he had con- cluded that although the Sterling store was profitable, it was not as profitable as it could be with capital improvements. The projected budget for the remodeling of the Sterling store was approximately $250,000 to $325,000. SUN MART FOODS 166 als, including Dennis Swigart, the manager of the Ster- ling store, of that decision. Within a few days of July 23, Swigart had informed employees, including some unit employees, of the decision. On August 21, 2 days before the election, Robert Baquet, the Employer’s regional manager, held four mandatory employee meetings. At each meeting, Baquet informed the employees that the Sterling store was one of the stores chosen for remodeling. At two of the meet- ings, Baquet also informed employees that new cash reg- isters that had the capacity to print the front of checks would be installed as part of the remodeling.4 Baquet then read a prepared text which set out the Employer’s opposition to the Petitioner and encouraged employees to vote against it. After Baquet read the prepared text, there was a question and answer period during which employ- ees asked questions, including questions about the re- modeling. Hearing Officer’s Report I. STORE REMODELING AN EMPLOYEE BENEFIT In his analysis of whether the Employer had engaged in objectionable conduct as set out in Objection 4, the hearing officer first addressed the threshold question of whether the store renovation itself constituted a benefit to the employees. He found that the renovation was such a benefit because the remodeling addressed the employees’ concerns about loss of volume and fewer hours. In reaching this conclusion, he relied, inter alia, on Swi- gart’s testimony that the purpose of the remodeling was to make the store better, which would result in more sales volume and, therefore, more hours and more money for employees. In finding that the remodeling consti- tuted an employee benefit, the hearing officer also relied on the fact that Baquet had informed some of the em- ployees at the August 21 meetings that as part of the re- modeling they would get new cash registers capable of printing the front of checks. The hearing officer found that the new cash registers addressed an employee con- cern (see fn. 4 above) and were therefore an employee benefit.5 II. REMODELING DECISION NOT OBJECTIONABLE Having found that the renovation was an employee benefit, the hearing officer next considered whether the 4 When Nash Finch took over the Sterling store, it replaced the exist- ing cash registers that had the capacity to print the front of checks with cash registers that did not have that capacity. This change made the employees’ jobs more difficult because it did not permit them to print the front of checks and it was therefore a subject of employee dissatis- faction. 5 For the reasons set out below, I will assume, arguendo, that the re- modeling of the Sterling store constitutes an employee benefit. renovation decision and/or the announcement of the renovation to employees constituted objectionable con- duct. Citing United Airlines Service Corp., 290 NLRB 954 (1988), for the proposition that the Board infers that benefits granted during the critical period are coercive, but that an employer may rebut that inference by offering an explanation, other than the pending election, for the timing of the grant or announcement of benefits, the hearing officer inferred that the decision to remodel the Sterling store and its announcement to employees, both of which occurred during the critical period, were coer- cive. The hearing officer went on to find, however, that the Employer successfully rebutted the presumption that the remodeling decision was made for the purpose of influ- encing the employees’ votes in the election. In reaching this conclusion, the hearing officer reasoned, in effect, that although circumstances, i.e., Mott’s inability to visit the store on May 30, dictated that the decision to remodel the Sterling store was made during the critical period, it was in fact part of a preexisting plan that predated the filing of the election petition, and was based on factors related to profitability and retention of market share, not union activity. Finally, the hearing officer observed that the remodeling decision involved a significant com- panywide capital investment. III. ANNOUNCEMENT OF REMODELING DECISION FOUND OBJECTIONABLE The hearing officer reached a different result, however, as to the announcement of the remodeling decision. Quoting NLRB v. Styletek, 520 F.2d 275, 280 (1st Cir. 1975) (“‘[w]age increases and associated benefits may well be warranted for business reasons; still the Board is under no duty to permit them to be husbanded until right before an election and sprung on the employees in a manner calculated to influence the employees’ choice’”), the hearing officer stated that “[b]oth the Board and the courts have long recognized that an announcement of a benefit can itself be calculated to interfere with an elec- tion.” In finding that the Employer’s announcement of the remodeling decision was calculated to interfere with the election and was therefore objectionable, the hearing officer emphasized that the announcement was made 2 days before the election and in conjunction with an anti- union speech. The hearing officer further observed that the Employer had offered no business reason, justifica- tion, or need for its timing of the announcement 2 days prior to the election and had not explained why it could not have delayed the announcement until after the elec- tion. Finally, although the hearing officer noted that Swigart had informed some unit employees of the re- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 167 modeling shortly after July 23, and thus well before the election, he found nevertheless that this did not change the result both because the evidence indicated that most unit employees had not heard about the remodeling prior to the August 21 employee meetings and because Swi- gart’s statements to the unit employees about the remod- eling also occurred during the critical period. For these reasons, the hearing officer found that the announcement of the remodeling at the August 21 employee meetings constituted objectionable conduct that warranted setting aside the election. I disagree. Analysis A. Whether the Remodeling is an Employee Benefit As a preliminary matter, I accept for the sake of argu- ment only, the hearing officer’s finding that the remodel- ing is an employee benefit. My reluctance to find, on this record, that the remodeling is an employee benefit arises from the fact that we are not dealing here with an employee benefit of the type the Board traditionally con- templates in the context of objectionable conduct, i.e., a benefit in the form of an immediate improvement in the employees’ wages, hours, or other terms and conditions of employment that inures directly to the advantage of, and is limited to, the employees themselves. Rather, here the Employer is undertaking the remodeling of the Ster- ling store, the “benefit” at issue, purely for business rea- sons. It will have no immediate effect on the employees’ wages, hours, or other terms and conditions of employ- ment. It is true, of course, that to the extent the remodel- ing increases the store’s customer base and creates more profit for the Employer, the employees will derive a con- sequential benefit from it in the form of increased job security and at least a potential improvement in their wages and hours. But the fact remains that the direct benefit of the remodeling inures to the Employer, and the Employer alone, not to the employees, and it is this bene- fit which was the motivating factor for the remodeling decision. In my view, such a situation is analytically distin- guishable from a situation where only employees will receive the benefit. In the former case, because the change, in this case the remodeling, was undertaken to improve the Employer’s business, it will go ahead re- gardless of whether or not the employees support the Union. In the latter case, however, because the change will affect only employees, the Employer can implicitly condition, albeit unlawfully, the granting of the benefit on the employees’ rejection of the Union. See, e.g., Lu- theran Retirement Home, 315 NLRB 103, 103–104 (1994) (emphasis added) (Board found that Anderson’s, the employer’s chairman of the board, statement to em- ployees made 2 days prior to the election, that the Em- ployer was definitely looking into getting pensions for the employees, constituted an implicit promise of a spe- cific and substantial benefit and was therefore objection- able because “employees would reasonably believe that Anderson was implicitly providing them with a concrete example of a benefit which they could obtain only by supporting the decertification effort”). In the present case, by contrast, the employees will get the “benefit,” the remodeling, regardless of whether they support the Union or the Employer. I also reject the hearing officer’s attempt to exalt the replacement of the cash registers, which itself represents only a very small part of the remodeling at issue, into an employee benefit. I find singularly unpersuasive the hearing officer’s apparent finding that employees will be coerced into voting against the Petitioner by the an- nouncement of new cash registers that will print the front of checks. B. Whether the Announcement of the Remodeling Decision is Objectionable Assuming arguendo only that the business decision to remodel the store is an employee benefit, I now address the issue presented, whether the Employer’s announce- ment of the remodeling is coercive of the employees’ right to a free and unfettered vote in the election and is therefore objectionable. For the reasons set out below, I find that it is not.6 Initially, I agree with the hearing officer, as do my col- leagues, that the Employer’s decision to remodel the Sterling store is not objectionable. I also agree with the hearing officer’s and my colleagues’ implicit finding that there was never any “promise” to remodel the store as alleged in Objection 4, and with their tacit admission that where, as here, an employer has decided to grant benefits to its employees, and the decision to grant the benefits is itself found to be lawful, the subsequent announcement to employees of that decision cannot constitute objec- tionable conduct as a “promise” of benefits. Finally, I will agree with the hearing officer and my colleagues, for the purposes of this discussion, that the Employer told employees of the remodeling decision in an attempt to influence the employees’ votes in the election. Contrary to the hearing officer and my colleagues, however, I do not find that announcement objectionable under the Act 6 For the reasons explained below, and contrary to the majority’s ap- parent argument, I am not basing my finding that the announcement of the remodeling was not objectionable on a finding that the remodeling was not itself an employee benefit. Rather, as explained above and below, in finding that the announcement of the remodeling was not objectionable, I am assuming, arguendo, that the remodeling was an employee benefit. SUN MART FOODS 168 because it contains neither a threat of reprisal nor prom- ise of benefit. In finding that the Employer’s August 21 announce- ment of the remodeling does not constitute objectionable conduct, I rely on Section 8(c) of the Act, which states: (c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such ex- pression contains no threat of reprisal or force or promise of benefit. Although Section 8(c) is technically limited to the unfair labor practice context, I find that its principles are applicable in the context of election objections, as here, because in my view an employer should be free to express its “views, ar- gument, or opinion” during an election campaign so long as those views contain “no threat of reprisal or force or prom- ise of benefit.” For if an employer’s expression of “views, argument or opinion” made during the critical period pre- ceding an election is free of any threat of reprisal or promise of benefit, that expression cannot be coercive of the em- ployees’ freedom of choice in the election, and if it is not coercive, it cannot be objectionable. And this is true regard- less of whether or not the employer’s statement is timed to influence its employees’ vote in the election. Simply put, an Employer’s attempt to “influence” its employees in their voting cannot rise to the level of “coercion” when, as here, it is the timing of the announcement that is at issue rather than its content. To conclude otherwise would be to say that an employer cannot share good news with its employees during the critical period, even though the good news is itself legally unobjectionable, because the news might influ- ence employees to favor the employer in the election. I refuse to reach such a result. Employees have the right to hear the news—all of it, both the “good” and the “bad”—in considering their votes in an election. That right should not terminate at the commencement of the critical period. Since there is no prohibition against an employer—or a union—from announcing “bad” news during the critical period that disfavors the employer, there should be no prohibition against the announcement of “good” news during the same time period. For it is only by weighing both the “good” news and the “bad” in the critical period preced- ing the election that employees may gain a better under- standing of the positions of the parties and therefore be better able to vote their consciences in the election. In reaching the contrary conclusion, i.e., that the tim- ing of the announcement of the decision to remodel the Sterling store rendered the announcement objectionable, the hearing officer erred by relying on the language from the First Circuit’s decision in NLRB v. Styletek, 520 F.2d at 280, quoted above, to the effect that while wage in- creases and other benefits may be warranted, the Board does not have to permit them to be “husbanded” until just before an election and then “sprung on” the employees in a manner calculated to influence the employees’ votes in the election. The hearing officer erred by relying on Styletek because, as the Ninth Circuit pointed out in Raley’s, Inc. v. NLRB, 703 F.2d 410 (1983), in Styletek, unlike in Raley’s and in the present case, the decision to grant the increased wages was intentionally delayed and made during the critical period when it was simultane- ously announced to employees.7 In such circumstances, an impermissible promise or grant of benefits renders its announcement objectionable. This is so because the im- permissible promise or grant and its announcement are essentially one and the same. In Raley’s, as here, the facts dictated a different result. In that case, the court was “presented with the bald ques- tion [of] whether an employer can violate [S]ection 8(a)(1) by announcing and explaining lawfully granted benefits in order to influence an election.” Id. at 415. In reversing the Board’s finding of the violation, the court emphasized that the Board found that Raley’s did not make the decision to grant the increased insurance bene- fits at issue in order to influence the impending election and that Raley’s did not violate Section 8(a)(1) by grant- ing the increased benefits. Thus, the court found that the unfair labor practice finding at issue “was limited to Raley’s communicative activities” (i.e., its announcing and explaining of lawfully granted benefits in order to influence the election). Id. at 414–415. Following its decision in NLRB v. Tommy’s Spanish Foods, Inc., 463 7 In Raley’s, the court distinguished cases relied on by the Board in support of its assertion that an announcement of benefits purposed to influence an election were unlawful. In distinguishing those cases, the court explained: [I]n the cases the Board relies on, “announcement” invariably refers to cases where the grant and the announcement occurred together in the preelection [i.e., critical] period. For example, in NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275 (1st Cir. 1975), the court enforced an order based on violations of [S]ection 8(a)(1) in the announcement of wage increases two weeks before a union election. The court stated that “the Board is under no duty to permit [wage in- creases and associated benefits] to be husbanded until right before an election and sprung on the employees in a manner calculated to influ- ence the employees’ choice.” Id. at 280. But there the benefits were granted and announced in a single stroke: the notice of wage benefits stated that the new wages would be reflected in the next pay checks. The Board had no reason in the Styletek case to analyze the an- nouncement and the conferral of benefits separately. Id. at 415 (emphasis added). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 169 F.2d 116 (9th Cir. 1972),8 in which the court had over- turned an unfair labor practice finding “based on the mere communication of increased benefits,” the Raley’s court held that “an employer’s true statement about law- fully granted benefits is protected under [S]ection 8(c)” of the Act.9 Id. at 415. On this basis, the court reversed the Board’s finding of the violation. Finally, I observe that Board law is not to the contrary. In Koronis Parts, Inc., 324 NLRB 675 (1997), for exam- ple, the Board adopted without comment the judge’s dismissal of a complaint allegation which alleged that the respondent unlawfully awarded bonuses to each em- ployee with more than 10 years of service in order to discourage employees from supporting the union. Dur- ing a September 27, 1995 picnic, and only 3 weeks after the September 7, 1995 onset of the union campaign, the 8 In Tommy’s Spanish Foods, the Board found that the employer had violated Sec. 8(a)(1) by advising its employees during the pendency of an election that it had been considering and reviewing its employee insurance program. In finding the violation, the Board concluded that the reference to the proposed insurance benefits was unlawfully de- signed to influence the employees in the election by promising them future benefits. Tommy’s Spanish Foods, 463 F.2d at 118. In revers- ing, the court concluded, in effect, that an employer can notify its em- ployees during the pendency of an election of efforts in progress to improve the lot of the employees, so long as those efforts predate the advent of the union. In finding that such a communication is protected by Sec. 8(c), the court quoted the following language from the dissent of Chairman Miller in the underlying Board case: The evidence is undisputed that, about a month before the petition for an election was filed, Respondent’s president had begun to explore the possibility of expanding the employees’ insurance coverage and had contacted two insurance brokers for this purpose. After the petition was filed, she discussed with her employees their present level of benefits and, in doing so, told them that she had been preparing, prior to the advent of the Union, to improve their insurance program. It seems clear to me that Respondent had a perfect right to inform em- ployees of this fact. Just as an employer is free to rehearse for em- ployees the benefits which they have previously received from the employer without a union, in order that they may evaluate the em- ployer’s past performance, so should an employer be permitted to no- tify employees of efforts in progress to improve the lot of the employ- ees. Since it is uncontradicted that the Respondent’s initial effort in the matter of increasing insurance predated the Union’s appearance on the scene and, accordingly, cannot be characterized as simply a strata- gem in response to the threat of unionism, I would find that Respon- dent’s announcement of the contemplated insurance increase was permitted under Section 8(c). The facts presented in this case do not give rise to the inference of unlawful intent drawn by the Court in NLRB v. Exchange Parts, 375 U.S. 405 (1964). Id. at 119 (quoting Tommy’s Spanish Foods, 187 NLRB 235, 238 (1970) (dissent of Chairman Miller)). 9 In holding that “an employer’s true statement about lawfully granted benefits is protected under [S]ection 8(c),” the court also relied on the “rule” in NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), that an employer is free to communicate to his employees any of his gen- eral views about unionism or any of his specific views about a particu- lar union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” [Id. at 414–415.] respondent awarded 10-year service plaques to six em- ployees and $1000 bonuses to three of them. Given the facts that the respondent had never awarded plaques and bonuses to employees for length of service, and that the awards were made shortly after the union announced its campaign, the General Counsel argued that the plaques and bonuses had been awarded as a benefit to dissuade employees from supporting the union. Having found that the respondent had established that it made the plans to award the plaques and bonuses prior to the onset of the union campaign, the judge next con- sidered whether the timing of the bonus awards, within three weeks of the onset of the union campaign, rendered the bonus awards an unlawful benefit. In rejecting this conclusion, the judge observed that “it is settled that, even during a preelection period, an employer may an- nounce benefit improvements which have become con- cretized as a result of an already initiated and ongoing process.” Id. at 697. Having set out my reasons for finding that the remod- eling is not an employee benefit, and that, even if it were, its announcement would not be objectionable, I will now respond to the majority’s criticism of the dissent. Response to Majority The majority asserts that the dissent’s conclusion— that the Employer’s announcement was not objection- able—“appears” to be based on three contentions: “(1) it is doubtful that the remodeling decision was a benefit to employees; (2) there is an ‘implicit finding’ or ‘tacit ad- mission’ in the majority decision that the Employer’s remodeling announcement did not constitute a ‘promise’; and (3) Section 8(c) grants the Employer the right to time the announcement of the remodeling decision for the purpose of influencing the outcome of the election.” I shall address these contentions in turn. 1. The remodeling is not an employee benefit To reach the issue of whether the announcement of the remodeling decision is permissible, I have assumed, ar- guendo, that it is an employee benefit. But my view, as explained above, is that the remodeling is not an em- ployee benefit. The fact that the benefit here, the remod- eling, is being undertaken company-wide to protect and increase the Employer’s market share, and, thus, accrues primarily to, and for, the Employer, and not to the em- ployees, distinguishes the present case from other grant of benefit cases. For regardless of whether the employ- ees choose to be represented by a union or not, the Em- ployer is not going to deny the “benefit” of remodeling to itself. Therefore, my colleagues’ reliance on NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), is misplaced. For the remodeling cannot conjure up the image of “a fist SUN MART FOODS 170 inside a velvet glove”10 as it does in cases where, as in Exchange Parts, the benefit at issue, in that case a wage increase, accrues only to employees. 2. Even assuming that the remodeling is a benefit, its announcement to employees does not constitute a promise of benefit To support their assertion that the announcement of the remodeling constitutes a “promise” of benefit, my col- leagues rely on Webster’s Dictionary and the following definition: a “‘promise’” is, inter alia, “‘a declaration that one will do or refrain from doing something specified,’” or “‘an undertaking however expressed that something will happen or that something will not happen in the fu- ture.’” From this definition, they form the following syllogism (emphasis added): (1) a “promise” is “a decla- ration that one will do or refrain from doing something specified,” or “an undertaking however expressed that something will happen or that something will not happen in the future”; (2) “by announcing to employees that the Sterling store was . . . selected for remodeling, the Em- ployer ‘declared’ or ‘expressed’ that it would ‘do some- thing specified’ ‘in the future’—it would renovate the store[;]” (3) “[t]herefore . . . the Employer’s announce- ment . . . constitute[s] a ‘promise’ within the plain mean- ing of that word.” Unfortunately, while my colleagues rely on the dictionary for the definition of the term “promise,” they do not rely on it for the definition of the term “announcement.” By failing to do so, they are able to formulate their syllogism. But, as explained below, it is a syllogism of convenience, not logic. I shall begin my analysis where my colleagues left off, with the definition of the term “announcement.” Web- ster’s New Collegiate Dictionary (1961) 36 defines “an- nouncement” as “a proclamation, public notification, or advertisement.” Webster’s Third International Diction- ary (1966) 87 provides the following example of the term’s usage: “an [announcement] of marriage.” Obvi- ously, “an announcement of marriage” is not the same as a “promise of marriage.” In the former example, the announcement is a “proclamation” or “public notifica- tion”; in the latter example, the promise is “a declaration that one will do or refrain from doing something speci- fied” or “an undertaking however expressed that some- thing will happen or that something will not happen in the future.” Clearly, then, the Employer’s announcement of the remodeling is not a promise to remodel, and my 10 As stated in Exchange Parts, 375 U.S. at 409 (footnote omitted): The danger inherent in well-timed increases in benefits is the sugges- tion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. colleagues cannot make it so merely by asserting in step (2) of their syllogism that the Employer’s ‘declaration’ or ‘expression’ that it would renovate the store constitutes a promise to do so. The dictionary defines otherwise. My colleagues’ syllogism fails for want of logic. Thus, an announcement is not a promise. Since, as ex- plained above, my colleagues do not sustain Objection 4 on the ground that it is a “promise” of benefit, as it is alleged to be, but as the “announcement” of the benefit,11 I adhere to my view that my colleagues “implicitly find” or “tacitly admit” that the announcement is not a prom- ise. 3. The Employer’s announcement was protected by Section 8(c) My colleagues next assert that, even assuming Section 8(c) applies in representation cases,12 it does not protect the Employer’s announcement because it was timed to influence the employees’ votes in the election. In sup- port of this assertion, my colleagues contend that “[a]lthough the Employer intended to remodel several of its stores prior to the advent of the Union campaign . . . it did not make the actual decision to remodel the [Sterling] Sun Mart store until after the representation petition was filed” (emphasis in original). Having implied that the Employer, in effect, husbanded the decision to grant the benefit because it made the decision after the petition was filed, my colleagues then quote NLRB v. Styletek, 520 F.2d at 280 (discussed above at fn. 7 and accompa- nying text), to assert that although “the Employer may have been justified in deciding to remodel the store, we are under no duty to allow that benefit ‘to be husbanded until right before the election and sprung on the employ- ees[.]’” Thus, my colleagues claim, in effect, that the Employer’s announcement of the remodeling decision is objectionable because the Employer made the decision to remodel after the petition was filed. This argument lacks merit for two reasons. First, as explained above, the hearing officer specifically found that the decision to remodel the Sterling store was part of a preexisting plan which predated the filing of the elec- tion petition and that the decision itself was based on factors relating to profitability and retention of market share, not union activity. And it was on this basis that the hearing officer found that the Employer’s decision to remodel the store, although made during the critical pe- 11 My colleagues also assert that the concepts of “promise” and “an- nouncement” can be “overlapping.” Even if that were true, it is irrele- vant because there is no assertion that they overlap here. 12 As explained above, although Sec. 8(c) is technically limited to the unfair labor practice context, I find that its principles are applicable in the context of election objections as well. I note that Chairman Battista also subscribes to this view. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 171 riod, i.e., after the petition was filed, was not objection- able. Since my colleagues adopt the hearing officer’s finding that the decision was not objectionable, they must necessarily agree that the fact that the decision was made after the petition was filed is without legal signifi- cance.13 This being so, they cannot now assert otherwise to reach out and find the announcement objectionable. The second reason that my colleagues’ argument lacks merit is that it relies on NLRB v. Styletek, a decision which, as explained above at fn. 7 and accompanying text, is inapposite here. In sum, and contrary to my colleagues’ apparent claim, the Employer did not delay, did not husband, the deci- sion to remodel in order to influence the election. And, therefore, under the logic of Raley’s, Tommy’s Spanish Foods, and Koronis Parts, discussed above, its subse- quent “announcement” does not constitute a “promise” of benefit.14 Finally, since the announcement contains no express or implied promise of benefit, the Employer’s right to make the announcement is protected by the principles underly- 13 Since my colleagues must agree that the fact that the decision was made after the petition was filed is without legal significance, their contention that Raley’s, Tommy’s Spanish Foods, supra, and Koronis Parts, supra, are “inapposite” because in those cases, unlike here, the decision was made before the petition was filed, is inherently flawed and without merit. It is also inaccurate. For, as my colleagues them- selves point out, the respondent in Tommy’s Spanish Foods had only made an “initial effort” in its consideration to expand employees’ in- surance coverage, not a final decision, prior to the filing of the election petition in that case (see fn. 8 above, in majority). By contrast, in the present case, the Employer’s decision to remodel had been “concre- tized” prior to the filing of the petition. Thus, my colleagues’ own argument actually supports a finding that the logic of Raley’s, Tommy’s Spanish Foods, and Koronis Parts applies here and requires a finding that the announcement of the remodeling is not objectionable. 14 The majority relies on Mercy Hospital Southwest Hospital, 338 NLRB No. 66 (2002), as support for its position that even where the grant of benefits is found lawful, the announcement of those benefits can be found unlawful. But the analysis of these issues in Mercy Hos- pital is confusing. For in the underlying decision, the judge found that the decision to grant the wage increase was lawful because “the wage adjustments would ultimately have been made even if no union were on the scene[.]” Id. at 4. The judge went on to find, however, that the “effectuation timing” and the “announcement” of the wage adjustment were unlawful. Id. at 5. But if the “effectuation timing,” i.e., the actual granting of the benefit, was unlawful because it was influenced by union activity, then, of course, its announcement would also be unlaw- ful. But that is not the case here. Further, in Capitol EMI Music, 311 NLRB 997, 1012 (1993) (emphasis added), enfd. mem. 23 F.3d 399 (4th Cir. 1994), a case that the Board in Mercy Hospital cited with approval, the Board there adopted the judge’s statement that: The announcement and/or grant of wages or other benefits increases is legally permissible if it can be shown that an employer was following its past practice regarding such increases or that the increases were planned and settled upon before the advent of union activity. Since in the present case the remodeling was “planned and settled upon before the advent of union activity,” this statement supports the conclusion that the announcement of the remodeling was not objectionable. ing Section 8(c) of the Act.15 That right is not infringed, and the announcement is not rendered objectionable, merely because the Employer chose to exercise the right to make the announcement prior to the election. Conclusion The Ninth Circuit’s analysis in Raley’s, supra, and Tommy’s Spanish Foods, supra, as well as the Board’s own analysis in Koronis Parts, supra, support—indeed, require—a finding that the Employer’s announcement of its decision to remodel, a decision which was itself “con- cretized” prior to the advent of the Union, is protected by the strictures of Section 8(c). Since the content of the announcement of the remodeling contains no promise of benefit, the announcement is not coercive and, therefore, cannot be objectionable. And, as explained above, this is true regardless of whether or not the announcement is timed to influence the election. For these reasons, I would overrule the Petitioner’s Objection 4 and certify the results of the election. APPENDIX Objection 4 The Petitioner alleges: “After the union campaign began, the Employer promised to make several improvements throughout the store, including remodeling the store after the election. These improvements were not discussed prior to the union campaign and were made to induce votes against the Union.” I conclude that the Employer’s announcement of its decision to remodel the store constituted objectionable conduct which war- rants the setting aside of the election. The evidence shows that on July 23, 2002, during the critical period, the Employer decided that the Sterling store would be one of five in its region to be remodeled. On the same day, Swigart, the Employer’s store manager, was informed of the decision. Thereafter, he, in turn, informed some of the employ- ees about the decision. On August 21, 2002, two days before the election, Robert Baquet, the Employer’s regional manager, conducted four mandatory employee meetings at the store. The meetings were conducted at 9 a.m., 12 p.m., 3 p.m., and 7 p.m. At each of these meetings, Baquet read verbatim from a prepared text. His statement clearly expressed the Employer’s sentiments against the Petitioner and encouraged the employees to vote against the Petitioner. As a preface to his reading of the prepared state- ment, at each of the meetings Baquet announced to the employ- ees that the Sterling store was one that the Employer had cho- sen to remodel. Also at each of the meetings, a question and answer session followed Baquet’s reading of the prepared statement. According to Baquet, the remodeling of the store was the subject of a lot of the questions during those sessions. 15 For the reasons set out in Chairman Miller’s dissent in Tommy’s Spanish Foods, 187 NLRB at 238, quoted above at fn. 8, as well as for the reasons set out above at fn. 10 and accompanying text, my col- leagues’ reliance on NLRB v. Exchange Parts, supra, must fail. SUN MART FOODS 172 It is well established that the mere grant of benefits during the critical period is not, per se, grounds for setting aside an election. Rather, the critical inquiry is whether the benefits were granted for the purpose of influencing the employees’ vote in the election and were of a type reasonably calculated to have that effect. NLRB v. Exchange Parts Co., 375 U.S. 405 (1964); United Airlines Services Corp., 290 NLRB 954 (1988). In determining whether a grant of benefits is objectionable, the Board has drawn the inference that benefits granted during the critical period are coercive, but it has allowed the employer to rebut the inference by coming forward with an explanation, other than the pending election, for the timing of the grant or announcement of such benefits, United Airlines Services Corp., supra. Initially, it must be determined whether the Employer’s deci- sion to remodel the Sterling store constituted a benefit to the employees. The Employer contends that it did not. I disagree. The evidence shows that when the Employer purchased the Sterling store in about August 2001 it replaced the cash regis- ters at the checkstands with a different brand. This change pre- vented the employees from printing the front of checks which, as Baquet acknowledged, made their jobs more difficult and constituted an issue of dissatisfaction for the employees. Stacia Marin testified that at the 3 p.m. meeting on August 21 Baquet informed the six to eight employees present that the Employer had allocated $40 million toward the remodeling of stores, that the Sterling store was one of the “lucky five” picked to be re- modeled, that the remodel would involve new checkstands and new cash registers, a relocation of the service counter, more room in the meat department, more room in the frozen food department, and the relocation of the shopping carts. Gregory Underhill attended the 12 p.m. meeting. He testified that with regard to the remodel, Baquet mentioned many changes to the front end including a new register system, new checkstands, changes to the produce section and the meat section, but no changes to the deli. Baquet admitted that at at least one of the employee meetings, employees had expressed concern about the existing cash registers and asked whether the remodel would include new cash registers. According to Baquet, he told the employees that he had already expressed their concern to the individual in charge of the remodeling, Michael Mott, president of retail operations for Nash Finch, the Employer’s parent company. Baquet informed the employees that one of the Employer’s newer cash register systems permitted the em- ployees to print the front of checks, as had been the case previ- ously. According to Baquet, he told the employees that he was not sure what was going to happen but that Mott had been in- formed that the cash registers were an issue among the employ- ees. While the record is unclear as to whether Marin and Baquet or Underhill and Baquet were testifying about the same employee meeting, I credit the testimony of Marin and Under- hill as to what Baquet told the employees. I was impressed with the detail Marin provided regarding Baquet’s comments and the consistency of this detail with the Employer’s admitted remod- eling plans, particularly the $40 million budget figure allocated toward remodeling. Underhill likewise provided much of the same detail and his testimony was consistent with Marin’s. Accordingly, I find that Baquet explicitly told the employees that new cash registers would be installed as part of the remod- eling. At any rate, also find that Baquet at least implicitly prom- ised the employees that the remodel would include new cash registers which would make their jobs less difficult. See Lu- theran Retirement Village, 315 NLRB 103 (1994). I further find that the employees would reasonably have viewed such a change as a benefit since it would admittedly make their jobs easier. In addition, Baquet’s characterization of the Sterling store as one of the “lucky five” clearly indicated to the employ- ees that the Employer considered the remodel to be a benefit to them. I find that this would have bolstered the employees’ per- ception in this regard. Marin also testified that the Sterling store had suffered ero- sion of its customer base and that this had resulted in a signifi- cant reduction in the number of work hours available to em- ployees. She indicated that this constituted a concern for her. Brenda Lou Grauberger, an employee, likewise testified that the reduction in work hours was a concern to her. Swigart, the Employers store manager, testified that the purpose of a re- model was to make the store better. This would produce more sales volume which would, in turn, result in more hours for the employees. I believe that the employees would have reasonably reached this same conclusion and, therefore, would have per- ceived the decision to remodel as a benefit to them. As Swigart testified, the employees whom he had informed of the plans to remodel were excited about the news because of “[t]he prospect of having a nicer facility to come to work to, the prospect of more business, the prospect of more money.” (Tr. 167). Ac- cordingly, I find that the Employer’s decision to remodel the store constituted a cognizable benefit to the employees. The decision and announcement of the plan to remodel the store, with its attendant benefits to the employees, both oc- curred during the critical period between the filing of the peti- tion and the election. Therefore, the inference is warranted that this conduct was coercive. Pursuant to the Board’s established framework, the burden then shifts to the Employer to rebut this inference by coming forward with an explanation, other than the pending election, for the timing of its decision and an- nouncement to remodel the Sterling store. I find that the Em- ployer has met this burden with regard to the decision to re- model, but has failed to meet this burden with regard to its an- nouncement of the decision to remodel. Michael Mott testified that he began his employment as president of retail operations for Nash Finch, the Employer’s parent company, in April 2002. The evidence is undisputed that at that time Nash Finch had in place a program to increase its retail operations through the remodeling, enlargement, and replacement of certain of its current retail facilities. In addition, the program included the acquisition of other retail competitors. Virtually immediately after his hire, Mott began the task of implementing this program. He commissioned the compilation of a book detailing information on all of the existing Nash Finch stores with digital pictures and demographic data. A budget of approximately $40 million dollars had already been allocated for capital improvements, including remodels, and Mott embarked on a journey to all of the Employer’s stores to determine which would be appropriate for remodeling. Accord- ing to Mott, he did not decide to remodel any store until after DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 173 he had physically visited the premises. It is undisputed that Mott and other individuals involved in the remodeling deci- sions were scheduled to visit the Sterling store on about May 30, 2002, before the petition was filed. However, this visit was postponed because of weather problems. Eventually, Mott and the others did visit the Sterling store on July 23, 2002. It was on that day that the decision to remodel the Sterling store was made. According to Mott, the decision to remodel the Sterling store was based in part on its continued loss of market share because of the presence of a Wal-Mart store in Sterling. Also, he concluded that while the store was still profitable, it was not as profitable as it could be with capital improvements. The projected budget for the remodel of the Sterling store is ap- proximately $250,000 to $325,000. Approximately 50 stores are included in the remodeling plans. The evidence shows that although the decision to remodel the Sterling store was made during the critical period, it was part of a preexisting plan which predated the filing of the peti- tion. The evidence also shows that the decision was based on factors related to profitability and retention of market share. Finally, the evidence shows that the decision to remodel the Sterling store involved a significant capital investment. In these circumstances, I find that the Employer has rebutted the pre- sumption that the remodeling decision was made for the pur- pose of influencing the employees’ vote in the election. But while the decision to remodel may not have been made for the purpose of influencing the results of the election, the announcement of this decision is another matter. Both the Board and the courts have long recognized that an announce- ment of a benefit can itself be calculated to interfere with an election. See NLRB v. Styletek, 520 F.2d 275, 280 (1st Cir. 1975) (“Wage increases and associated benefits may well be warranted for business reasons, still the Board is under no duty to permit them to be husbanded until right before an election and sprung on the employees in a manner calculated to influ- ence the employees’ choice.”); Wm. T. Burnett & Co., 273 NLRB 1084, 1091–1092 (1984); Columbian Rope Co., 299 NLRB 1198 (1991); Sharing Community, 311 NLRB 393, 395 (1993). The credible evidence here convinces me that the Em- ployer’s announcement of the remodeling decision two days before the election and in conjunction with an antiunion speech delivered at four mandatory employee meetings was calculated to interfere with the election. The employees were notified of the mandatory August 21 meetings by memo. This memo was issued to employees shortly before the August 21 meetings. Swigart testified that the memo informed employees that the meetings were to discuss remodeling and the union election.6 Thus, it is clear that Baquet’s announcement of the remodeling at all four of the employee meetings was neither off-the-cuff nor coincidental. It was planned. In this regard, I note that the announcements of August 21 were made by the Employer’s regional manager and 6 The memo itself was not made a part of the record at the hearing. There is no evidence to show that the memo provided the employees with any details regarding the remodeling or that it even informed the employees that a definite decision had been made to remodel the Ster- ling store. that they were made on the last day that the Employer could legitimately assemble all of its employees for mandatory cam- paign speeches. Thus, the remodeling announcements were not only planned. They were planned to provide maximum effect on the results of the election. Through the memo and the actual announcements at the em- ployee meetings, the Employer established a clear nexus be- tween the remodeling and the union election in the minds of the employees. In these circumstances, the employees would rea- sonably perceive that the remodeling and its attendant benefits were intended to influence the results of the election. The Em- ployer has offered no business reason, justification or need for its actions in timing the announcement of the remodeling in conjunction with its antiunion speech presented to employees just two days before the election, and the evidence shows that none was offered to the employees at the meetings themselves. In addition, the Employer has not explained why it could not have delayed the announcement of the remodeling or pursued some alternative means of announcing the remodeling to the employees which would not have established a clear nexus between the remodeling and the election. See Wm. T. Burnett & Co., supra at 1092. (“An employer’s failure to show why preelection announcements of benefits could not reasonably have been delayed evidences improper motivation in such an- nouncements.”); B & D Plastics, 302 NLRB 245 (1991). In addition, the benefits attendant to the remodeling were to be received by virtually all of the employees. Therefore, based on all of the evidence presented and the Employer’s failure to establish a legitimate reason for the timing of the announce- ment, I conclude that the Employer’s conduct was objection- able. See Speco Corp., 298 NLRB 439 fn. 2 (1990). While the credited testimony indicates that Baquet told the employees that the remodeling was part of a $40 million effort and that the Sterling store was one of the “lucky five” in the region to be chosen for remodeling, I do not believe that this warrants a different conclusion. Although his statement indi- cated to the employees that the remodeling was more extensive than just the Sterling store, it also made clear to the employees that their store was included for the receipt of benefits by choice rather than by business necessity. As the Supreme Court has noted: “The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Em- ployees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged.” NLRB v. Exchange Parts Co., supra, 375 U.S. at 409. The Employer contends that its announcement was not ob- jectionable because by August 21 the employees had already been informed of the decision to remodel. I find that the evi- dence is not sufficient to support this contention. There is no evidence to show that before August 21 the Employer ever made a general announcement to all employees about the re- modeling decision. And while the evidence does show that some of the employees were informed of the decision between July 23 and August 21, the evidence does not show that all or even a significant number of the employees were informed before August 21. Thus, Swigart testified that after July 23, 2002, he talked to a lot of employees about the remodeling SUN MART FOODS 174 decision. However, he did not offer a particular time frame or an estimated number of employees and he admitted that he could not remember if he had talked to all of the employees. Moreover, Swigart specifically identified only seven unit em- ployees whom he had told about the remodeling—the produce manager, the dairy manager, the front end manager, the pricing coordinator, the DSD-ICC clerk, the bookkeeper, and Gregory Underhill (Tr. 161–162, 164–166, 293). There is no evidence to show that employees disseminated this information generally among the work force.7 More specifically, Stacia Marin testified that she first learned anything about the remodeling on the day before the employee meetings of August 21. At that time, according to Marin, an- other employee told her only that Mott had asked this other employee her ideas about changes to the store. Thus, there is no evidence to show that Marin was aware that a definite decision had been made to remodel the store before August 21. But the evidence does show that the August 21 announcement was the first time that Marin had heard about the remodeling decision from anyone in management.8 In the absence of any evidence to show that management had specifically informed Marin that a decision had been made to remodel the store, I credit her tes- timony that she first learned of the remodeling decision on or about August 21, 2002. Gregory Underhill testified that he first learned of the deci- sion to remodel the store when Swigart told him about it a cou- ple of days before the August 21 announcement.9 While Un- derhill admitted that he was aware that Mott had visited the store on July 23 and that his visit involved remodeling, he also testified that he saw Motts entourage taking pictures but was not sure exactly what they were for. I do not find this testimony to be inconsistent with Underhill’s assertion that he first learned of the remodeling decision only two days before August 21. Knowing that Mott’s visit involved remodeling is different from knowing that a decision to remodel the store had been made. Both Underhill and Swigart agree that Swigart informed Underhill of the remodeling decision. In view of Swigart’s inability to recall when he told Underhill, I credit Underhill’s testimony that he first learned of the remodeling decision just two days before the August 21 announcement. Linda Neil, a deli employee, testified that she first learned about the remodeling when she received the memo announcing the mandatory meetings shortly before August 21. Swigart testified that he did not believe that he had personally spoken to Neil about the remodeling. Accordingly, I credit Neil’s uncon- tradicted testimony that she first learned about the remodeling when she received the memo shortly before August 21. As noted above, there is no evidence to show that the memo pro- vided details about the remodeling or informed the employees that a decision had already been made to remodel the store. 7 Marin, Underhill and Linda Neil, a deli employee, testified that they had not heard employee discussions or rumors about remodeling between July 23 and just shortly before the meetings of August 21. 8 Swigart did not mention Marin as one of the employees whom he had informed of the remodeling decision. 9 Swigart testified that he had informed Underhill of the remodeling decision but could not recall when he told him. In sum, I find that not all of the employees were aware of the decision to remodel the store well in advance of the announce- ments of August 21 and that at least some of the employees were not aware of this decision until the announcements of August 21. Therefore, the evidence does not support a conten- tion that the Employer was merely informing all of the employ- ees of an existing benefit about which they were fully aware and which they would not reasonably connect to the results of the election. The announcement was news to at least some of the employees and it was presented to them by the Employer as a conjunct to its antiunion speech.10 In these circumstances, the employees would reasonably perceive this grant of benefit to be intended to influence the results of the election. Even with regard to those employees who had been informed of the remodeling decision soon after July 23, the evidence shows that the August 21 announcements were objectionable. The July 23 decision to remodel was made during the critical period. As a consequence, it follows that all of Swigart’s dis- cussions with employees about the remodeling occurred during the critical period. There is no evidence to show that during these discussions Swigart informed the employees of the basis of the decision or that it was part of a preexisting plan or pro- gram begun before the filing of the petition. Thus, there is no evidence to show that the employees were at any time dis- abused of the reasonable perception that the benefits of remod- eling were conferred with an intent to influence the results of the election, To the contrary, the Employer reinforced this per- ception by reiterating its remodeling decision in conjunction with its antiunion speech to employees. In these circumstances I conclude that even those employees who had earlier been informed of the decision to remodel the store would have rea- sonably perceived the grant of this benefit to be intended to influence the results of the election. Based on the above, I find that the Employer’s announce- ment of its remodeling decision on August 21, 2002 constituted objectionable conduct. I further find that this conduct warrants the setting aside of the election. The evidence shows that the decision to remodel the store implicated certain significant employee concerns and constituted a promise to remedy those concerns. As indicated above, the remodel promised to provide the employees not only with a physically improved place to work but it also promised new equipment to make their jobs easier and an increased customer base to provide them with more work hours and more money. In addition the admitted interest that the employees expressed in the subject of remodel- ing through the “lots of questions” that they asked during the August 21 meetings shows that this was a significant and im- portant subject to them and one about which they were not fully aware. Finally, as noted above, the results of the election were such that a change in only one vote could potentially affect those results. In all of these circumstances, I find that the Em- ployer’s objectionable conduct warrants the setting aside of the election. 10 In this regard I note that the results of the election were such that a change in only one vote could potentially have affected those results. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 175 Based on all of the above, I recommend that the Petitioner’s Objection No. 4 be sustained and that the election conducted on August 23, 2002 be set aside. Recommendations Based upon the foregoing findings and conclusions, and upon the record as a whole . . . that the Petitioner’s Objection No. 4 be sustained, and that the election of August 23, 2002 be set aside.