FMC Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1975

217 N.L.R.B. 12 (N.L.R.B. 1975)

12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Material Handling Equipment Division of FMC Cor-
poration and International Union of Electrical, Ra-
dio and Machine Workers, AFL-CIO, Petitioner.
Case 6-RC-6772
MARCH 20, 1975
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
By MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation of Certification Upon Con-
sent Election executed by the parties, and election 'by
secret ballot as conducted on May 8, 1974, under the
direction and supervision of the Regional Director for
Region 6, among employees in the appropriate unit. At
the conclusion of the election, the parties were fur-
nished with a tally of ballots which showed that of
approximately 630 eligible voters 614 ballots were cast,
of which 254 were for Petitioner, 50 were for the Inter-
venor, 308 were against participating labor organiza-
tions, and 2 were challenged. The challenged ballots are
not sufficient to affect the results of the election. There-
after, the Petitioner filed timely objections to conduct
affecting the results of the election.
On August 29, 1974, the Regional Director ordered
that a hearing be held with respect to Petitioner's objec-
tions. The Regional Director further ordered that the
Hearing Officer designated for the purpose of conduct-
ing the hearing should prepare and cause to be served
on the parties a report containing resolutions of the
credibility of witnesses, findings of fact, and recom-,
mendations to the Board as to the disposition of said
issues raised with respect to the Petitioner's objections.
Pursuant to the Board's order, a hearing was held on
September 11 and 12, 1974, before Hearing Officer
Donald J. Burns. All parties to the proceeding ap-
peared and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to adduce evi-
dence bearing upon the issues, and to file briefs with the
Hearing Officer at the close of the hearing.
On November 15, 1974, the Hearing Officer issued
and served on the parties his Report on Objections to
Election in which he recommended that Objection 2 be
sustained and that all other objections be overruled.
Having found merit in Objection 2, the Hearing Officer
recommended that the election be set aside and that a
second election be directed. Thereafter, the Employer
filed timely exceptions with a supporting brief. The
Petitioner filed a brief in support of the Hearing Of-
ficer's recommendation on Petitioner's Objection 2 or,
in the alternative, filed exceptions with a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel;
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A.question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
4. The parties stipulated and we find that the follow-
ing employees constitute an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees, in-
cluding group leaders, -plant clerical employees,
experimental machinists at the Material Handling
Equipment Division of FMC Corporation's
Blairsville, Pennsylvania, and Homer City, Penn-
sylvania, plants; excluding all other employees and
guards, professional employees and supervisors as
defined in the Act.
5. The Board has considered the record in this case
including the Hearing Officer's Report on Objections
to Election, the exceptions of the parties, and support-
ing briefs, and hereby adopts the Hearing Officer's
findings, conclusions, and recommendations except as
modified below. ,
The Hearing Officer found that the granting of a
wage increase prior to the election was designed to
influence employees to vote against union representa-
tion and therefore constituted grounds for setting aside
the election. We disagree.
It is well settled that the granting of benefits during
the critical preelection period is not per se ground for
setting aside an election.' The crucial determination is
whether the benefits were conferred for the purpose of
influencing the employees in their choice of bargaining
representatives and were of a type reasonably cal-
culated to have that effect.2
When economic circumstances dictate a revision in
wage structure and a representation proceeding - is
pending, an employer's legal duty is to decide whether
or not to grant improvements in wages and benefits in
the same manner as it would absent the presence of a
I Drug Fair Community Drug Co., Inc., 162 NLRB 843, 854 (1967);
Performance Measurements Co., Inc., 148 NLRB 1657, 1658 (1964), The
Baltimore Catering Company, 148 NLRB 970 973 (1964), Glosser Bros,
Inc., 120 NLRB 965, 966 (1958).
2 See NL.R.B v. Exchange Parts Company, 375 U S 405 (1964); Connor
Trading Co., Inc., 188 NLRB 263, 264 (1971); Airpax Electronics, Inc., 172
NLRB 126, 127 (1968), The Baltimore Catering Company, 148 NLRB 970,
973 (1964).
217 NLRB No. 16
MATERIAL HANDLING EQUIPMENT DIV. OF FMC CORP.
union? If the employer would have granted the bene-
fits because of economic circumstances unrelated to
union organization, the grant of those benefits will not
violate the Act. On the other hand, if the employer's
course is altered by virtue of the union's presence, then
the employer has violated the Act, and this is true
whether he confers benefits because of the union or
withholds them because of the union.'
In the instant case, the employer excepted to the
Hearing Officer's conclusion that the April 15, 1974,
wage increase was unlawful, contending that it was
granted in accordance with a decision made prior to its
knowledge of union organizational activity.
In November 1973, consistent with past company
policy of granting general wage increases in October or
November of each year, the Employer granted a 5.5-
percent wage increase to both its hourly and salaried
employees. This increase was restricted to a 5.5-percent
maximum in conformance with the Cost of Living
Council guidelines then in effect.' On February 15,
the Employer announced' that the Company would
review its wages and salaries to keep abreast of chang-
ing economic conditions if Congress should accept the
President's recommendation that wage controls be dis-
continued after April 30, 1974.' On March 6, 1974, it
wrote to the Cost of Living Council expressing its
desire to adjust wages and salaries due to the current
economic situation. On approximately March 26 or 27,
the Employer received a notification that the industry
was decontrolled! The Employer thereupon, on April
1, posted a notice on employee bulletin boards indicat-
ing.that effective April 15 all hourly employees would
receive a 10-cent-per-hour adjustment in their base
hourly rate.'
The Hearing Officer found that the wage increase
was granted to influence employees to vote against
union representation. Noting that the Employer never
3 Diamond Motors, 212 NLRB 820 (1974).
4 McCormick Longmeadow Stone Co, Inc., 158 NLRB 1237, 1242
(1966)
5 On November 1973, Phases III and IV of the Economic Controls Pro-
gram (Economic Stabilization Act of 1970, 12 U S C Sec 1904 (1970) was
in effect. Executive Order 11695, 38 Fed. Reg. 1473 (February 12, 1973)
Under Phase III and IV, wage controls administered by the Cost of Living
Council was shifted from "mandatory" to "voluntary" for all industries
other than food processing and retailing, construction, and health industries.
The guidelines limited increases to those not inconsistent with the 5.5-
percent wage increase (plus 0 6 percent for fringe benefits) standard of
Phase II It was no longer necessary to obtain Cost of Living Council
approval when an increase in excess of the guidelines was justified
6 The Employer placed a notice in all pay envelopes The Hearing Officer
erroneously determined that the notice was posted on the bulletin board
7 In early February 1974, President Nixon announced he would recom-
mend to Congress that wage and price controls be discontinued after April
30, 1974
8 By letter dated March 14, 1974, the Cost of Living Council responded
to the Employer's March 6 inquiry by requesting that the Company com-
plete certain forms before its submission would be officially processed.
Before the Employer completed the forms sent by the Cost of Living Coun-
cil, however, the industry was decontrolled on March 21.
9 This adjustment was first reflected in the employees' April 22 paycheck
13
before granted such an inflationary wage adjustment,
he found it implausible that the Employer's March 6
request was unrelated to the union organizational
drive. Accordingly, _ he made the inference that by
March 6 the Employer had learned of the organiza-
tional activity.
We disagree with this conclusion. No evidence was
submitted indicating that there was organizational ac-
tivity as of February 15. Although the record indicates
that there was organizational activity as of March 6,
there is no evidence that the Employer was aware of
such activity. In fact, the instant petition was not filed
until March 12.
Absent evidence establishing the relationship be-
tween Respondent's knowledge of organizational activ-
ity and its February 15 announcement,10 we view the
April wage increase as the logical culmination of a
pattern of events which began February 15 and which
was followed through on March 6. The record does not
indicate that such pattern was altered by the presence
of organizational activity."
In such circumstances we conclude that the wage
increase was not designed to interfere with the election.
Therefore, we shall overrule Petitioner's Objection 2.
Accordingly, as we have overruled the objection and
as the tally of ballots shows that Petitioner has not
received a majority of the valid votes cast, we shall
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 International Union of
Electrical, Radio and Machine Workers, AFL-CIO,
and that said labor organization is not the exclusive
representative of the employees in the unit found ap-
propriate within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
10 Cf. Revco Drug Centers, 188 NLRB 73, 76 ( 1971), Preston Products
Company, Inc, 158 NLRB 322, 345 (1966), enfd 392 F 2d 801 (C.A D C.,
1967)
11 The Respondent introduced persuasive evidence that the wage increase
was granted because of the extraordinary rise in the inflationary rate during
late 1973 and early 1974 . Employer 's manager, Dr George Sommer, testi-
fied that , never having experienced such tension , interest, and concern
regarding inflation , the Employer had been monitoring the CPI , the Cost of
Living Index , since prior to the November 1973 wage increase Continued
concern over the economic situation , as well as the Company's uncertainty
concerning the ultimate fate of economic controls, prompted the March 6
request to the Cost of Living Council He testified further that in deciding
upon the April 15, 1974, wage increase , the Company took into considera-
tion area wage patterns and concluded that an inflationary wage adjustment
was appropriate Sommers testified that it was in this context-in an effort
to remain competitive while confronted with the extraordinary inflationary
rate-that the decision to grant a 10-cent-per -hour wage increase was made