Shore & Ocean Services

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1051 (N.L.R.B. 1992)

1051
307 NLRB No. 162
SHORE & OCEAN SERVICES
1 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations to approve the withdrawal of Objections 1,
3, and 4, and that certain portions of the Petitioner’s Objection 2 be
dismissed.
2 Honolulu Sporting Goods Co., 239 NLRB 1277, 1280 (1979),
enfd. 620 F.2d 310 (9th Cir. 1980).
3 Lake Development Management Co., 259 NLRB 791, 792
(1981); Litton Dental Products, 221 NLRB 700, 701 (1975), enf. de-
nied 543 F.2d 1085 (4th Cir. 1976). Cf. Red’s Express, 268 NLRB
1154 (1984).
4 The Employer argues on brief that once the benefit changes were
announced, it was obligated to follow through with their implemen-
tation because it had ‘‘created expectations’’ among its employees.
On the contrary, the Employer could have announced to its employ-
ees that it still planned to implement the changes, but that it would
do so after the election, in order to avoid any appearance of im-
proper interference with their choice to select or not to select the
Union as their bargaining representative. See Elston Electronics
Corp., 292 NLRB 510, 526 (1989), citing Village Thrift Store, 272
NLRB 572 (1984).
Shore & Ocean Services, Inc. and International
Longshoremen’s Association Local 1922, AFL–
CIO, Petitioner. Case 12–RC–7463
June 30, 1992
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held October 11, 1991, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 12 for and 26 against
the Petitioner, with 2 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings and recommendations,1 and finds that the
election must be set aside and a new election held.
In agreement with the hearing officer, we find that
the Employer’s granting of two benefits to its employ-
ees—a change in overtime computation and the pro-
viding of uniforms—within a short period of time after
learning of the filing of the petition, constituted objec-
tionable conduct. Although it appears that the Em-
ployer contemplated both changes before the advent of
union activity, the timing of their implementation gives
rise to an inference of improper motivation and inter-
ference with employee rights. Under settled Board pol-
icy, a grant of benefits during the critical preelection
period will be considered unlawful unless the Em-
ployer comes forward with an explanation, other than
the pending election, for the timing of such action.2
Once the Petitioner made out a prima facie case by
showing that the benefits were granted during the crit-
ical period, it was incumbent on the Employer to dem-
onstrate a legitimate business reason for that timing.3
This it did not do. The Employer rests on its assertions
that, prior to its knowledge of the petition or union ac-
tivities, it decided on the changes, announced to em-
ployees that the changes would be made, and then pro-
ceeded to make them in the ordinary course of busi-
ness. However, the hearing officer found that the deci-
sion as to the uniforms was still in its formative stage
at the time of the petition. With respect to the overtime
matter, the hearing officer found no basis for con-
cluding that an announcement was made prior to com-
pany knowledge of the petition or union activities.
Further, even if the decisions were made and an-
nounced prior to the company knowledge of the peti-
tion or union activities, the Employer makes no show-
ing that it gave employees a date or timetable for their
implementation. In fact, it concedes it had no such date
or timetable in mind prior to the filing of the petition.
Vice President Lenett set both changes into motion
within a week or two of his return from vacation,
when he learned that a petition had been filed during
his absence, and the Employer has not demonstrated
that any business or economic need was driving their
implementation at this time.4 We therefore conclude,
as did the hearing officer, that the Employer failed to
rebut the Petitioner’s prima facie case of improper in-
terference with employee rights, and that it rushed to
implement these two benefits in order to influence the
outcome of the election.
[Direction of Second Election omitted from publica-
tion.]