FMC Corp.

National Labor Relations Board - Board Decisions

Feb 4, 1975

216 N.L.R.B. 476 (N.L.R.B. 1975)

476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FMC Corporation, Power Control Division and Team-
sters "General" Local No. 200, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 30-CA-2768 and 30-RC-2321
February 4, 1975
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND KENNEDY
On October 17, 1974, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, Charging Party filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decision to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint in Case
30-CA-2768 be, and it hereby is, dismissed in its
entirety.
IT IS FURTHER ORDERED that the Union 's objections
to the election conducted in Case 30-RC-2321 on
June 20, 1974, be, and they hereby are, overruled.
As the Union failed to receive a majority of the
valid ballots cast in the election conducted in Case
30-RC-2321 on June 20, 1974, the Board will certify
the results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Teamsters "General"
Local No. 200, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and that said labor
organization is not the exclusive representative of all
the employees, in the unit herein involved, within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
216 NLRB No. 86
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: On June 25,
1974,1 Teamsters "General" Local No. 200, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union, Charging Party, or Petitioner, filed a charge against
FMC Corporation, Power Control Division, herein called
the Company or Respondent, alleging that Respondent
violated Section 8(aXl) of the Act.
The Union filed the petition in the above-numbered
representation case on April 30, and a Stipulation for
Certification Upon Consent Election was executed by the
parties on May 22 and approved by the Regional Director
and the election was conducted on June 20, in a unit of:
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Milwaukee, Wisconsin location; excluding plant
clerical employees, office clerical employees, casual
employees, technical employees, professional employ-
ees, guards and supervisors as defined in the Act.
Of the approximately 273 eligible voters, 115 cast ballots
for and 115 cast ballots against the Union. In addition to
two void ballots, nine Voters were challenged by the Union
on the basis that they were supervisors, and two were
challenged as plant clerical employees and the Board
challenged two voters because their names were not on the
Excelsior list. The Union filed objections to conduct
affecting the results of the election on June 25.
On August 7 the complaint in the unfair labor practice
case was issued , alleging that Respondent had violated
Section 8(a)(1) of the Act by granting wage increases
between May I and June 20 to its production and
maintenance employees at the two Milwaukee, Wisconsin,
plants in order to discourage membership in and support
of the Union. On August 9 the Region issued an order
consolidating cases and notice of hearing on challenged
ballots and objections to conduct affecting the results of
the election, noting that the subject matter of the
objections and the complaint allegation was the same, and
stating that the issues concerning the resolution of the
challenges could also be best resolved in a hearing.
Respondent's timely answer admitted the service and
jurisdictional allegations but denied that it had violated the
Act in any way.
There are very few conflicts in the testimony in this case,
and on the basis of the evidence, I have determined that
the Act was not violated and that the objections to the
election should be overruled. During the trial of this
matter, which took place in Milwaukee, Wisconsin, on
September 9, the parties agreed and stipulated that the two
persons whose names were not on the Excelsior list should
have been on the list and that their ballots should be
opened and counted. The Union withdrew its challenges to
I Unless otherwise stated all events herein took place during 1974.
FMC CORPORATION 477
10 ballots for the purposes of this case only, stating that it
reserved the right to challenge in any subsequent election
any persons who they felt were excluded from the coverage
of the unit. The parties agreed that one challenge was
proper and further agreed to open and count the ballots. A
revised tally of ballots was issued showing that 126 votes
had been cast against and 116 for the Union.
All parties were afforded full opportunity to appear, to
examine and cross-examine the witnesses , and to argue
orally. General Counsel, Respondent , and the Union have
filed briefs which have been carefully considered.
On the entire record in this case, based on the evidence
received, I make the following:
FINDINGS OF FACT
1. COMMERCE FINDINGS AND UNION STATUS
Respondent is a Delaware corporation engaged in a
number of manufacturing endeavors, among which is the
manufacture and nonretail sale of electrical equipment
which it makes at its two plants in Milwaukee, Wisconsin,
which are two of the four units in its Power Control
Division. Respondent annually sells and ships in interstate
commerce directly to points located outside the State of
Wisconsin products from its two Milwaukee plants valued
in excess of $50,000.
Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
FMC Corporation has its corporate headquarters as well
as its group headquarters in Chicago, Illinois. The
machinery group has 7 subgroups arranged into some 35
divisions and is comprised of approximately 85 manufac-
turing facilities . The Power Control Division, which has 4
units including the 2 Milwaukee plants involved here, is
thus I of about 35 divisional facilities in 1 group of this
corporation. There are some 30,000 employees in the
machinery group of which about 12,000 to 15,000 employ-
ees in some 70 facilities are not covered by collective-
bargaining contracts. The Corporation has a chemical
group which employs some 18,000 employees in various
divisional units. There were approximately 273 eligible
voters in the unit of the two Milwaukee plants in this
proceeding.
The parties entered into a stipulation at the hearing in
this matter which set forth that the Power Control Division
was acquired by the Company in 1967, and operated under
a different name until the end of 1972 when the present
division was established. They further agreed that from
1967 through 1973 all the division employees received wage
increases in November of each year on what the Company
termed a merit basis and with no general midyear
adjustments being granted other than on July 22, 1968.
Further, they stipulated that effective June 3 increases
ranging from 15 cents to 30 cents an hour, averaging 5.16
percent overall, were given to all unit and nonunit
employees in the Power Control division.
Two witnesses testified for the General Counsel that they
received raises in June after being called to Production
Manager Galliart's office. In the office the following
statement was read to them as it was to all the employees:
For some time now the Company has been working
on plans for a special merit increase to be put into
effect after the removal of the Federal economic
controls. Our office people are aware of this as are
many of our production people. This special accelerat-
ed individual merit review does not reduce or in any
way adversely affect the timing of your next regular
review. This is a special additional increase adminis-
tered on a local basis. We feel it would be unfair to
deny you an increase now because of the union
campaign, and therefore we are going ahead because
we believe we are morally and legally right. This
increase has nothing to do with the present union
campaign or election.
One of the witnesses responded that he did not feel the 15-
cent raise was sufficient and there was further discussion
along that line. He also testified he had received a raise in
November 1973, at which time he stated he wanted a
bigger raise and he was told by the production manager
that they would review his wages in about 6 months.
The other witness testified that in February he had
approached his supervisor concerning a raise and the
supervisor said he would get back to him later. During the
June conversation he was told that it was a merit raise and
not a general raise and testified that he had never had a
merit raise before. During cross-examination he admitted
that on each of the previous occasions when he received
raises he had been called to the office where the amount of
the raise was discussed and stated that the Company had
always called these raises merit raises. The raises which
were given were not uniform but were always individually
discussed with each employee and were within a particular
range.
Respondent offered testimony that from 1971 through
April 1974 it had been under wage and price controls as a
"tier I" group in the price control regulations and stated
that all of its groups and divisions located in the
continental United States were under such controls.
The director of personnel for the machinery group of the
Corporation testified that, when President Nixon an-
nounced in February 1974 that he was not going to seek an
extension of the controls, company managers began to
review what they wished to do after the end of the controls.
He said that managers were told there would be price
changes and salary changes when the controls ended. In
mid-April 1974 a meeting of managers decided that the
group would initiate an accelerated merit raise wage for all
machinery group personnel not covered by bargaining
contracts. Accordingly his office started preparing a
program of salary ranges for this wage raise setting
compensation limits for the wage grade levels. Individual
compensation ranges for the various wage grades for each
of the divisions was then worked out together with an order
to each of the division managers to institute this program
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as quickly as possible and complete it within 60 days. The
schedule for the divisions and the authorizing order was
sent on May 3 to all divisions including the Power Control
division . Thus the raises averaging over 5 percent which
were granted through this authorization in the machinery
group went to some 12,000 to 15,000 employees . There was
also testimony that approximately the same percentage
wage increase was authorized for all employees not
covered by collective-bargaining contracts in the Compa-
ny's chemical group.
While the Union's brief places great emphasis on the fact
that employees were individually spoken to by supervisors
in regard to this June raise, the Company was following its
standard procedure in calling each employee in individual-
ly and discussing with him the amount of the raise which
he was to receive , with those raises ranging from 15 cents
to 30 cents . This was not a blanket percentage raise nor
were the previous raises given by Respondent. The Union's
suggestion that calling employees into supervisors ' offices
to discuss the raises is violative of the Act is an erroneous
confusion of "locus of authority" interrogation with the
present situation . The written statement is not violative of
the Act and in the circumstances of the union campaign it
would seem that a disclaimer by Respondent would be
warranted.
While the statement could have been more explicit in
stating that the wage raises were part of a corporatewide
wage raise which had been planned prior to the advent of
the union to meet the inflationary pressures being
experienced by all, the statement does not present a basis
for concluding that the raises were connected to the
organizational campaign.
Richard Baumann , who was at that time the director of
personnel relations with the Power Control division in
Milwaukee , testified that he first started to work for the
Company and with that division around April 15 and
became aware of the union organization at the plant when
he received a copy of the Union's petition in the
representation case somewhere around May 1. After
receiving both the petition and the notification concerning
the raises to be given , he contacted the office of the
personnel director of the machinery group and discussed
with them the question of the union organization campaign
and the granting of raises at that time . He testified that he
was told that the wage raise policy was a total corporate
policy and that not to grant a wage raise to these
employees when raises were being given to all other
corporate employees similarly located could be considered
an unfair labor practice . He therefore proceeded as
directed and laid out the program for granting the
individual wage increases to the unit and nonunit employ-
ees in the division.
There are no other allegations of violations of the Act by
Respondent , nor was there any testimony to establish
animosity towards the Union by Respondent other than
one statement that the Company would not like anybody
else coming in telling them how to run the plant.
The question then becomes whether this wage increase,
standing by itself, is an unfair labor practice under all the
circumstances noted above . I must conclude , under all the
circumstances detailed , that the granting of wage raises at
that time was not an unfair labor practice even though the
timing of the wage increases may appear fortuitous.
There is nothing to contradict the Company's evidence
that these wage raises were planned for all of the
employees of the corporation prior to the end of the wage
and price controls on April 30, and that getting the
program set and getting it out to the individual divisions,
along with the range of raises that the individual divisions
were to grant, consumed the period of time until May 3.
Thus there is no evidence to demonstrate that the Union's
filing of the petition on April 30, with notification to the
Milwaukee Power Control division shortly thereafter,
caused , effected, or affected the decision to grant these
wage increases . There is no evidence that Respondent
knew of the union campaign prior to its being served with a
copy of the petition. All the briefs appear to recognize that
it would seem nonsensical to suggest that the Company
would have embarked on a scheme to give wage increases
to some 15,000 or more employees to forestall or hinder a
union campaign in two plants where 200 to 300 employees
worked.
While it is true, as General Counsel contends, that this
was an unusual raise since all the raises for the previous 6
years had been given in November on a once -a-year basis,
and this was a special raise which was occurring some 7
months after a previous raise, and was stated and intended
as an extra raise not to interfere with another November
raise, it also must be remembered that this was an unusual
period in the nation's economy. We had been under wage
and price controls for a couple of years while at the same
time continuing to endure mounting inflationary pressures
and there were pressures for increases even as the two
witnesses for the General Counsel testified.
Further, the previous midyear raise in 1968 had been as a
result of economic changes when a surcharge on income
tax had been established and as the Company stated then it
granted the increase to compensate the employees for loss
of take-home wages.
The program adopted here is somewhat parallel as a
special raise at the end of a price and wage freeze when
prices generally were going up.
It is a strong possibility that, if Respondent had withheld
the granting of these wages , the Union would have had a
justifiable claim that the Company was penalizing the unit
employees by not giving them a companywide wage
increase and that such action could have been held to
violate the Act.
General Counsel's brief appears to fault Respondent for
granting the raises prior to the June 22 election when under
the terms of the corporate directive the divisions were to
accomplish the raises within 60 days. The Union's brief
conversely states that the Company took too much time in
granting the raises following the authorization.
Both the General Counsel and the Union in their briefs
assert that the interviews were devices to ascertain the
union sympathies of the employees and as such violate
Section 8(a)(1) of the Act. However , no such allegation is
in the complaint and no such contention was made at the
trial of this matter . Based on Respondent 's prior practice in
giving wages in this individual manner, I would not find
the present practice violative of the Act.
FMC CORPORATION 479
In summary the evidence shows that the corporation
planned the wage increase for thousands of employees
prior to receiving knowledge of the Union's interest in
organizing some 250 employees in two facilities. The
Company took no measures to punish or reward the
employees because of any such organizing activities and
there is a paucity of any evidence to demonstrate animus.
General Counsel's brief asserts that Respondent should
explain why the increases were put into effect at the
midpoint of the 60-day period within which Respondent
stated it wished the raises effected . Respondent asked its
divisions to respond in 2 to 3 weeks concerning its plans
and to effect them as soon as possible within the 60 days.
Again, to delay such raises could have given rise to charges
of unfair treatment too.
The fact is that Respondent's action here paralleled its
1968 action in giving a midyear raise and it appears that
the intent and purpose of its act were proper and correct
business judgments , unconnected to a union campaign.
Considering the full scope of the situation , I cannot find
that the wage raises granted to the employees in this
production and maintenance unit were , in the words of the
complaint, granted "in order to discourage membership in,
and support of the Union ," and violative of the Act.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
Accordingly, I will recommend that the complaint be
dismissed.
111. OBJECTIONS TO THE ELECTION
Since the objections to the election rest on the same basis
as the complaint allegation, it follows that I cannot find
that the objections to the election should be sustained,
since it is impossible for me to find that the wage raise plan
was concocted and set in motion or had the purpose or
effect of inhibiting or discouraging membership or support
of the Union. Therefore, the objections to the election
should be overruled and I so recommend to the Board.
Upon the basis of the foregoing findings, conclusions of
law, and the entire record, I hereby issue the following
recommended:
ORDER2
The complaint and charge in this matter are hereby
dismissed and it is recommended that the objections to the
election be overruled and in accordance with the revised
tally of ballots issued on September 9, 1974, that a
certification issue that the Union has not received a
majority of the valid ballots.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.