Meier's Wine Cellars, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1971

188 N.L.R.B. 153 (N.L.R.B. 1971)

MEIER'S WINE CELLARS, INC. 153
Meier's Wine Cellars, Inc., and Produce, Frozen Food
& Cannery Employees Union Local 850, affiliated
with The International Brotherhood of Teamsters,
Chauffeurs, Warehousemen And Helpers of Ameri-
ca, Petitioner . Case 9-RC-8251
January 27, 1971
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS BROWN AND
JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, an election
by secret ballot was conducted on October 16, 1969,
under the direction and supervision of the Regional
Director for Region 9, among the employees in the
appropriate unit. At the conclusion of the election, the
parties were furnished with a tally of ballots which
showed that of approximately 61 eligible voters, 60
ballots were cast , of which 28 were for the Petitioner,
31 were against the Petitioner, and 1 was challenged.
The challenged ballot is not sufficient to affect the
results of the election. Thereafter, the Petitioner filed
timely objections to conduct affecting the results of
the election.
In accordance with the National Labor Relations
Board Rules and Regulations the Regional Director
conducted an investigation and on February 26, 1970,
issued and served on the parties his Report on Elec-
tion, Objections to Election, and Recommendations
to the Board in which he recommended that the objec-
tions be overruled in their entirety and that an appro-
priate certification of results of election be issued.
Thereafter, the Petitioner filed timely exceptions to
the Regional Director's report, with a supporting
brief, urging that the election be set aside or, in the
alternative, that the Board order a hearing on the
objections. The Employer filed a brief in opposition
thereto.
On April 13, 1970, the Board ordered that a hearing
be held for the purpose of taking testimony before a
Hearing Officer designated by the Regional Director,
with directions to prepare and cause to be served
upon the parties a report containing resolutions of the
credibility of the witnesses , findings of fact, and rec-
ommendations to the Board as to the disposition of
said issues raised with respect to the Petitioner's ob-
jections.
Pursuant to the Board's order, a hearing was held
on June 18, 1970, before Hearing Officer Daniel J.
Rokentenetz. All parties to the proceeding appeared
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing upon the issues.
On August 19, 1970, the Hearing Officer issued his
Report on Objections, finding that the evidence failed
to support Objection 1 and recommending that it be
overruled in its entirety. He further recommended
that Petitioner Objection 2 be sustained and that the
election be set aside and a second election be directed.
The Employer filed timely exceptions to the Hearing
Officer's report and the Petitioner filed a brief in sup-
port of the Hearing Officer's recommendation on
Petitioner's Objection 2.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
to a three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed.
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. We find, in accordance with the stipulation of the
parties, that the following employees of the Employer
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act:
All production and maintenance employees at
the Employer's Silverton, Ohio, location, includ-
ing bottle line employees, stube maintenance em-
ployees, production testing employees,
warehousemen and cellar laborers, but excluding
the truckdriver, casual or temporary employees,
and all office clerical employees, guards, profes-
sional employees, and supervisors as defined in
the Act and all other employees.
5. The Hearing Officer overruled Objection 1 but
found that Petitioner's Objection 2 had merit' and
recommended that the election be set aside on that
basis.
'The Hearing Officer overruled in part Objection 2 insofar as it alleges the
granting of merit increases by the Employer as grounds for setting the elec-
tion aside.
188 NLRB No. 20
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner's Objection 2 states that:
The Employer unilaterally granted wage increas-
es to employees prior to the election for the pur-
pose of interfering with the employees' free
choice of a bargaining representative.
It is uncontroverted that in September of each year
since at least 1959, the Employer granted employees
an automatic wage increase of 10 cents per hour.2 In
September 1969, during the pendency of the repre-
sentation election, the employer granted a 15-cent-
per-hour wage increase and in accord with past
practice gave no prior notice. The Hearing Officer
found that the granting of the unexplained larger than
usual wage increase and its timing was calculated to
improperly influence employees in their choice of a
bargaining representative. We do not agree.
It is undisputed that the Employer's president
reached a final decision to grant a general wage in-
crease of 15 cents per hour before the petition was
filed. Further, the Employer introduced persuasive
evidence that the larger than usual wage increase was
granted because of the extraordinary rise in the cost
of living during the year preceding the increase. In
addition, the record indicates that in deciding upon a
larger than usual wage increase, the Employer took
into consideration area wage patterns and believed a
larger than usual annual increase was appropriate.
2 In 1%2, employees received a 7-cent-per -hour increase and in 1%3 em-
ployees received an 8-cent-per-hour wage increase.
In such circumstances, since the record shows that
the Employer granted similarly timed and unex-
plained increases in the past and that the larger than
usual increase in 1969 was decided-, upon in considera-
tion of the extraordinary increase in the cost of living
and after study of area wage patterns indicated a
larger annual increase, we are persuaded that the 1969
wage increase was motivated by valid business con-
siderations. Thus, we conclude that the 1969 wage
increase did not affect the employees' freedom of
choice in the election. Therefore, we shall overrule the
Petitioner's Objection 2.
Accordingly, as we have overruled the objections
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
votes has not been cast for Produce, Frozen Food &
Cannery Employees Union Local 850, affiliated with
The International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, and
that said labor organization is not the exclusive repre-
sentative of the employees in the unit found appropri-
ate within the meaning of Section 9(a) of the National
Labor Relations Act, as amended.