United Airlines Services Corp.

National Labor Relations Board - Board DecisionsSep 24, 1988

290 N.L.R.B. 954 (N.L.R.B. 1988)

954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Airlines Services Corp. and United Steel- workers of America , AFL-CIO Support Services , Inc. and United Steelworkers of America , AFL-CLO, Petitioner . Cases 19-RC- 11660 and 19-RC-11661 August 24, 1988 DECISION, CERTIFICATION OF RESULTS OF ELECTION, AND ORDER REMANDING FOR HEARING BY CHAIRMAN STEPHEâ€¢. S AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board has consid- ered the Petitioner's objections to elections held on December 18, 1987, and the Regional Director's report recommending disposition of them. The elections were conducted pursuant to Stipulated Election Agreements. The tally of ballots in United Airlines Services Corp., Case 19-RC-11660, shows 145 for and 228 against the Petitioner, with 7 chal- lenged ballots, an insufficient number to affect the results. The tally of ballots in Support Services, Inc., Case 19-RC-11661, shows 47 for and 50 against the Petitioner, with 10 challenged ballots, a sufficient number to affect the results. The Board has reviewed the record in light of the Petitioner's exceptions and brief, and adopts the Regional Director's findings and recommendations regarding the Petitioner's Objections 6 and 10.1 However, contrary to the Regional Director, the Board fords that Objection 8, which applies solely to Support Services, Inc., raises substantial issues of fact and law that can best be resolved on the basis of a hearing. The Petitioner's Objection 8 alleged that Em- ployer Support Services, Inc. released a letter dated November 30, 1987, in which it announced a change in the biweekly pay schedule so that the schedule would conform to the prior employer's practice of alternating its paydays with those of Government employees. According to the letter, this change was implemented to ease waiting lines in banks, credit unions, and stores. In support of this objection, the only evidence the Petitioner of- fered was a copy of the letter itself. The Regional Director found that no additional economic benefit accrued to Support Services em- ployees as a result of the change in payday. He ac- cordingly concluded that there is no showing that the Employer's conduct in this regard warrants set- ting aside the election. i In the absence of exceptions , we Adopt, pro forma, the Regional Di- rector's recommendation that the Petitioner's Objections 1, 2, 3, 4, 5, 7, 9, and 11 through 28 be overruled , and that the challenges to 8 of the 10 challenged ballots in Support Services , Inc, be overruled In its exceptions, the Petitioner relies on R. Dakin & Co., 284 NLRB 98 (1987), to argue that a change in an employer's payroll system for pur- poses of employee convenience is a benefit that can influence the outcome of an election. The Petition- er further asserts that the Employer in the instant case, like the employer in Dakin, has failed to show that the change in paydays would have been made even in the absence of the Union's organizational efforts. It is well established that the mere grant of bene- fits during the critical period is not, per se, grounds for setting aside an election. Rather, the critical in- quiry 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). As a general rule, an employ- er's legal duty in deciding whether to grant bene- fits while a representation proceeding is pending is to decide that question precisely as it would if the union were not on the scene. R. Dakin, supra, quoting Reds Express, 268 NLRB 1154, 1155 (1984). 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 explana- tion, other than the pending election, for the timing of the grant or announcement of such benefits. Uarco Inc., 216 NLRB 1, 2 (1974). See, e.g., Singer Co., 199 NLRB 1195 (1972). Applying the above-stated principles to the cir- cumstances of this case, we conclude that the issues raised by the Union regarding Objection 8 may best be resolved pursuant to a hearing. In this regard we note that, contrary to the implication of the dissent, the Employer has not offered any ex- planation for its timing, i.e., for making this change in the biweekly payroll system during the penden- cy of the election.2 Although the Employer may provide an explanation at the hearing, we cannot provide a rationale for it: it is the Employer's motive that is at issue. Compare NLRB v. Great Dane Trailers, 388 U.S. 26 at 34-35 (1967). We fur- ther note that additional information is needed to determine whether such a change constitutes a ben- efit reasonably calculated to influence the election results. R The change is puzzling in part because this more convenient payroll schedule had been used by the Employer's predecessor on the mainte- nance contract, and the Employer could have implemented it at the outset simply by continuing the predecessor's practice Instead , the Em- ployer chose to implement a new schedule at the outset , and it then re- verted to the predecessor's practice after the election petition was filed 290 NLRB No. 114 UNITED AIRLINES SERVICES CORP. 955 Accordingly, we shall order a hearing in Case 19-RC- 11661 and we shall certify the election re- sults in Case 19-RC- 11660. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots in Case 19-RC-11660 have not been cast for United Steelworkers of America , AFL-CIO-CLC and that it is not the exclusive representative of the United Airlines Services Corp. employees in the following appropriate unit: I All corrosion control tech . II, corrosion con- trol tech . III, crane electrician A, crane elec- trician B, crane mechanic A, crane mechanic B, crane mechanic C, crane operator, electron- ic tech . III, engineering equip . operator, gar- dener lead , general maintenance worker, heavy equipment mechanic , heavy motor vehi- cle operator, housekeeper I, housekeeper II, HVAC mechanic, instrument cont. tech., la- borer, lead electrician tech . III; lead engineer. equip. operator, lead housekeeper II, lead HVAC mechanic, lead locksmith, lead mainte- nance electrician, lead maintenance machinist, lead maintenance mechanic, lead motor vehi- cle mechanic , lead storekeeper II, lead wood- craft worker, light motor vehicle operator, locksmith, maintenance carpenter, maintenance electrician, maintenance machinist, mainte- nance mason, maintenance mechanic , mainte- nance painter, maintenance pipefitter , mainte- nance plumber, maintenance trades helper, maintenance welder, medium motor vehicle operator, millwright, motor vehicle mechanic, pest controller, railroad track worker , rigger, roof repairer, sheet metal mechanic , sign paint- er, stationary engineer , storekeeper I, store- keeper II, taxi driver, tractor operator , safety specialist, driver-messenger , vehicle inspector, or persons performing the functions described in the above job titles, employed by the Em- ployer at its SUBBASE Bangor, WA facility, but excluding all computer production control- ler, drafter, librarian tech., photographer lab tech., accounting clerk , data entry clerk, ste- nographer, receptionist, fire fighter, computer operator, illustrator, photographer, radio dis- patch clerk , security clerk, clerk typist, general clerk, dispatcher, security policeman, word processor, clerical salaried employees, office clerical employees, guards and supervisors as defined in the Act. ORDER DIRECTING HEARING It is ordered that a hearing be held in Case 19- RC-11661 before a duly designated hearing officer for the purpose of receiving evidence to resolve the issues raised by Objection 8. IT IS FURTHER ORDERED that the hearing officer designated for the purpose of conducting the hear- ing shall prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations to the Board concerning the disposition of the issues . Within the time prescribed by the Board's Rules and Regulations, any party may file with the Board in Washington, D.C., eight copies of excep- tions thereto. Immediately on the filing of excep- tions, the party filing them shall serve a copy on each of the other parties and shall file a copy with the Regional Director. If no exceptions are filed, the Board will adopt the recommendations of the hearing officer. IT IS FURTHER ORDERED that Case 19-RC-11661 is remanded to the Regional Director for Region 19 for the purpose of arranging and giving notice of the hearing. MEMBER CRACRAFT, concurring and dissenting in part. I agree with my colleagues and the Regional Di- rector that the Employer did not engage in objec- tionable conduct under the circumstances of this case by disseminating a new employee handbook to employees during the 2-3 weeks prior to the De- cember 18, 1987 election and by announcing (in writing) to the employees on December 16, 1987, that employees who did not require health insur- ance coverage under the Employer's plan could choose to have the Employer pay into such an em- ployee's Individual Retirement Arrangement (IRA) account-but not directly to the employee-an amount equal to the amount of the health insurance premium . However, contrary to my colleagues, I also agree with the Regional Director 's determina- tion , which I find to be satisfactorily based on his administrative investigation, that the Employer also did not engage in objectionable conduct under the circumstances of this case by announcing (in writ- ing) to the employees on November 30, 1987, that the schedule of paydays had been revised in order to alleviate overcrowding at nearby banks, credit unions, and stores, thereby "mak[ing] payday more convenient for you and your family." R. Dakin & Co., 284 NLRB 98 (1987), relied on by the Petitioner in support of its objection regard- ing alteration of the pay schedule, is distinguish- able. In that case employees complained about the pay schedule for 6 months prior to the employer's 956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD alteration of the schedule immediately after the advent of union organizational activity . In such cir- cumstances, it was proper to conclude that the al- teration constituted a grant of benefit and that the employer did not adequately explain the timing of the grant. The announcement about both the health insur- ance premium option and the revised payday schedule herein might , under other circumstances, be reasonably perceived by employees as grants of benefits . Nevertheless, I find that under the instant circumstances , the timing of both these announce- ments within the critical period is reasonably and adequately explainable by the fact that the Em- ployer's operational startup period-with its pre- dictably attendant need for clarification and revi- sion of personnel policies such as those in question here-was virtually contemporaneous with the in- stant preelection critical period. Accordingly , I find the Regional Director 's reso- lution of these matters to be sufficient under the circumstances and I find it unnecessary to remand Objection 8 for hearing . I note the Petitioner's ex- ception to the Regional Director's report does not claim that this objection should be resolved on the basis of record evidence but, rather , argues that the Regional Director 's conclusion was erroneous as a matter of law.