Ara Food Services

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.