Ashcraft's Market, Inc.

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ashcraft's Market, Inc. and Retail Store Employees Union, Local 20, United Food and Commercial Workers International Union, AFL-CIO, Peti- tioner. Case 7-RC-15493 August 13, 1980 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered objections to an elec- tion held on December 13, 1979,1 and the Hearing Officer's report recommending disposition of same. The Board has reviewed the record in light of the exceptions 2 and briefs, and hereby adopts the Hearing Officer's findings and recommendations to the extent consistent herewith. The Petitioner has excepted to the Hearing Offi- cer's recommendation that the Board not consider its objection to an alleged overly broad no-solicita- tion rule, the Hearing Officer having found the ob- jection untimely. During the course of the hearing in this matter, the Employer's president, Charles Ashcraft, made reference to an employee handbook, the same sub- sequently being received into evidence. After re- viewing the handbook, the Petitioner, during clos- ing argument, alleged that the maintenance of the no-solicitation rule contained therein was objec- tionable and grounds for setting aside the election; the Employer protested that this objection was un- timely. The Hearing Officer reserved ruling on the timeliness of the objection and permitted the Em- ployer to introduce evidence regarding this matter. The Employer then recalled Ashcraft who testified without contradiction that the no-solicitation rule in question, the "old" rule, was superceded by a valid no-solicitation rule, the "new" rule, 3 18 months before the petition herein was filed. Ash- craft testified that the "new" rule was posted on the bulletin board near the timeclock in the em- ployees's breakroom, that all notices to employees are placed on this bulletin board, that the Employ- er has maintained the notice on the bulletin board i The election was conducted pursuant to the Board's Decision and Direction of Election dated November 15, 1979. The tally was: 7 for, and 32 against, the Petitioner; there were 8 challenged ballots, a number in- sufficient to affect the results of the election. 2 The Board hereby adopts pro forma those findings and recommenda- tions of the Hearing Officer to which no specific exception has been filed. 3 The parties stipulated that the "new" rule was valid 251 NLRB No. 25 to date, and that the notice specifically referred to modifying the "old" rule. Although we agree with the Petitioner that, under the circumstances of this case, its objection to the alleged overly broad no-solicitation rule was timely, 4 we need not reach the question of its va- lidity as we find that the Employer changed the rule prior to the filing of the petition herein and, therefore, did not maintain an invalid rule during the critical period. The Employer has excepted to the Hearing Offi- cer's finding that the timing of its announcement of a dental plan was objectionable, to his recommen- dation that that aspect of Objection 1 which per- tains to the promise of a dental plan be sustained, and to his recommendation that the election herein be set aside and a new election be directed. We find merit in the Employer's exceptions. It is well settled that once an objecting petitioner establishes that the employer has announced new benefits during the critical period prior to an elec- tion, the burden shifts to the employer to establish that the announcement would have been forthcom- ing at the time made even if there were no union campaign. If the employer meets its burden, the Board will not consider the announcement to be conduct interfering with the results of the election. For the reasons stated below, we conclude that the Employer herein has met its burden. The uncontradicted testimony of the Employer's president, Charles Ashcraft, whom the Hearing Of- ficer found to be a credible witness, indicates that the Employer's established practice is to announce benefit changes, such as wage increases or the insti- tution of an employee handbook, at its annual em- ployee Christmas party and to put those changes into effect on or about January 1 of the coming year. This is the procedure the Employer followed in the instant matter regarding its dental plan. Since the Hearing Officer specifically found that the decision to provide dental coverage was made outside the critical period, we conclude that the Employer's announcement of the dental plan at the annual employee Christmas party was not improper and we therefore overrule that aspect of Objection 1 which pertains to the promise of a dental plan. As the Hearing Officer found no other objection- able conduct, we shall certify the results of the election. 4 For the reasons set forth in Dayton Tire & Rubber Company, 234 NLRB 504 (1978), Member Penello would overrule this objection be- cause such conduct was not specifically alleged in a timely filed written objection ASHCRAFT'S MARKET, INC. 167 CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Retail Store Employ- ees Union, Local 20, United Food and Commercial Workers International Union, AFL-CIO, and that said labor organization is not the exclusive repre- sentative of all the employees in the unit herein in- volved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended.