Logan Co.

National Labor Relations Board - Board Decisions

May 17, 1968

171 N.L.R.B. 524 (N.L.R.B. 1968)

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Logan Company and Sheet Metal Workers Interna-
tional Association , Local 425, AFL-CIO, Peti-
tioner . Case 9-RC-6829
May 17, 1968
DECISION ON REVIEW AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On July 21, 1967, the Regional Director for Re-
gion 9 issued a Third Supplemental Decision,
Order, and Direction of Third Election in the
above-entitled proceeding in which he adopted a
Hearing Officer's report and recommendations
sustaining the Petitioner's Objection 2, alleging
conduct affecting the results of the second election
hereinbefore held on November 18, 1966, and on
such basis he set aside the second election and
directed that a new one be held.' Thereafter, in ac-
cordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Se-
ries 8, as amended, the Employer filed a timely
request for review of the Regional Director's Third
Supplemental Decision on the grounds, inter alia,
that he erred in adopting certain findings of fact
made by the Hearing Officer, and departed from of-
ficially reported precedent.'
On November 28, 1967, the National Labor
Relations Board issued a telegraphic order granting
the request for review and staying the direction of
third election pending decision on review. The
parties filed briefs on review.
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
powers in connection with this case to a three-
member panel.
The Board has considered the entire record in
this case with respect to the issues under review, in-
cluding the briefs of the parties, and makes the fol-
lowing findings:
The Petitioner's Objection 2 alleged that during
the critical period before the second election the
Employer unilaterally granted wage increases to
unit employees calculated to influence their choice
in the election. The critical period dated from July
29, 1966,' when the first election was held. Shortly
thereafter, in the third week of August, the Em-
ployer announced the wage increases in question,
based on a job evaluation study, ranging from 15 to
40 cents per hour, retroactive to August 1.; The
Regional Director adopted the Hearing Officer's
conclusion that these job evaluation increases were
based partly on merit and were not the type of
wage increases regularly and periodically granted to
employees, and that the Employer had not met its
burden of showing that the timing of such increases
was for reasons other than to influence the election
results . The Employer contends that the conclusion
is in error , as the increases were given pursuant to a
decision made prior to the filing of the instant peti-
tion, and as the employees were notified as early as
June 14 that a job evaluation study was being un-
dertaken. We find merit in this contention.
As found by the Hearing Officer, in early 1966,
Geo. J. Meyer Manufacturing Co., herein called
Meyer, acquired an option to purchase controlling
interest in the Employer. Meyer retained Rath &
Strong , a management consulting firm, to survey
the Employer's operations. On April 19 Rath &
Strong submitted its report to Meyer recommend-
ing exercise of the option if certain specific condi-
tions were met. Among the conditions were recom-
mendations that the Employer's starting wage rate
be increased to cut down employee turnover, and
that a new wage incentive plan be introduced after
a job evaluation study was made.'
On April 29 Meyer exercised the option and then
retained Rath & Strong to implement the recom-
mendations it had made. The instant petition was
filed on May 5. The Employer began to act on a
number of the recommendations, such as abandon-
ment of certain buildings, reorganization of produc-
tion lines , rehabilitation of buildings, and repair and
replacement of machinery and equipment, and
after a more detailed report from Rath & Strong
concerning increases in the base rate, the Employer
on June 10 announced an increase in the starting
rate from $1.35 to $1.60 per hour, effective June
' The tally of ballots for the second election showed that of approximate-
ly 446 eligible voters, 407 cast ballots, of which 146 were valid ballots for,
and 247 against , the Petitioner , and 14 were challenged The Regional
Director investigated the Petitioner 's objections and in his Second Supple-
mental Decision , Order, and Notice of Hearing, issued April 6, 1967, over-
ruled Objections I and 3 and directed a hearing
' The Employer subsequently filed a letter supplement to its request for
review
' Unless otherwise indicated the dates below relating to the conduct in
issue are 1966 dates
' The Employer also granted a number of merit increases during the criti-
cal period However, the Regional Director found them unobjectionable
and no request for review was made as to such finding
"'The recommendation stated "Raise the wage scale to a level that will
compare favorably with rates for similar skills in the Louisville area This
can be accomplished with an increase in base rates, plus the implementa-
tion of a sound wage incentive program which, in total , would offer in-
comes equal to, or slightly higher than, the area average " No recom-
mendation was made as to the starting date for wage increases, except that
they should be given over a 2-year period
171 NLRB No. 83
LOGAN COMPANY 525
13.6 On June 14 the Employer posted a notice to
employees reading as follows:
To aid in carrying out my plans for the full
development of the Company which I wrote
about in my letter of Friday, June 10, we are
asking you to cooperate in a Job Description
and Evaluation Study to be conducted by the
consulting firm of Rath & Strong. It will be
necessary for them to interview many of you to
get an accurate picture of the work being per-
formed. Your cooperation and helpful
assistance will be most appreciated.
During June and July the job evaluation study was
made and, upon its completion, the decision was
made to grant wage increases based on the results
of the study, effective August 1. The Employer in
the third week in August granted the increases,
retroactive to August 1. According to the Em-
ployer, on advice of counsel, it delayed the an-
nouncement of the increases from August 1 until
after the period for filing objections to the first
election had expired. The new incentive program,
for which the job evaluation increases were the
predicate, was initiated in some departments in
January 1967.
Upon the foregoing and the entire record in this
case, we are unable to agree with the Hearing Of-
ficer's conclusion that the Employer has not met its
burden of showing that the timing of the job evalua-
tion increases was for reasons other than to in-
fluence the election results. It is clear from the
record that, when Meyer exercised its option in late
April 1966 to acquire control of the Employer, it
also decided to accept all the recommendations of
Rath & Strong, and it retained that firm for the pur-
pose of implementing them. Indeed, the Petitioner
was apprised of the Employer's plans in the course
of the investigation and disposition of the objec-
tions filed after the first election with respect to the
timing of the starting rate increases, and the em-
ployees themselves were notified in June that a job
evaluation study was being made. In the circum-
stances, even assuming, as found by the Hearing
Officer, that the evaluations may have been based
in part on merit, and conceding that the Employer
had some flexibility as to timing of its announce-
ment of the increases, we see no warrant for the
conclusion that it was required to delay its an-
nouncement of them until after the second election.
Nor do we, in such circumstances, view as insuffi-
cient the Employer's explanation that it delayed the
announcement of such increases until shortly after
the period for filing objections expired in order to
avoid the appearance that they were intended as a
reward for the vote against the Petitioner in the
first election and to minimize their impact on a
second election, if one were directed. We find,
therefore, that the timing of the job evaluation in-
creases some 3 months prior to the second election
was not calculated to and did not interfere with the
employee's freedom of choice, and we hereby over-
rule Objection 2 in its entirety.'
Accordingly, as the objections have been over-
ruled and the tally of ballots shows that the Peti-
tioner did not receive a majority of the valid ballots
cast in the second election, we shall certify the
results thereof.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for Sheet Metal Workers In-
ternational Association , Local 425, AFL-CIO, and
that said labor organization is not the exclusive
representative of the employees in the appropriate
unit within the meaning of Section 9(a) of the Act,
as amended.
The Regional Director set aside the first election on the basis of his
finding that the increase in starting rates was not shown to have been timed
when it was for reasons unrelated to the pending question concerning
representation The Board denied the Employer's request for review of
such action as raising no substantial issues warranting review
'We view as factually distinguishable the cases of North^te,t Engineering
Companv, 148 NLRB 1136, and Arnbox, Incorporated, 146 NLRB 1520,
which the Hearing Officer relied on as support for his conclusion that the
job evaluation increases herein were timed to reward the employees for
having rejected the Petitioner in the first election and as a further induce-
ment to vote against the Petitioner, should a second election be directed