Micro Measurements

National Labor Relations Board - Board Decisions

Oct 19, 1977

233 N.L.R.B. 76 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Micro Measurements, an Autonomous Division of
Vishay Intertechnology, Inc. and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW)
Petitioner. Case 7-RC-14170
October 19, 1977
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the objections to an
election held on April 20, 1977,1 and the Hearing
Officer's report recommending disposition of same.
The Board has reviewed the record in light of the
exceptions and briefs, and hereby adopts the find-
ings, conclusions, and recommendations 2 of the
Hearing Officer.
As found by the Hearing Officer, months before
the inception of the union campaign, the Employer
planned an annual employee performance review to
be implemented during the first calendar quarter of
1977; a wage increase for all employees in September
1976; a second wage increase at the close of the first
calendar quarter of 1977, providing a planned
increase in the price of its major product line proved
profitable; and subsequent wage rate reviews every 6
months. Thereafter, the September 1976 wage in-
crease and the wage review program were imple-
mented as scheduled and at least some employees
were informed that if the Employer were financially
able, it would grant an additional wage increase at
the end of the first quarter of 1977. On or about April
8, 1977, the Employer learned that the price increases
effective January 1, 1977, had not decreased sales
and that, in fact, its profits for the first quarter of
1977 were the highest in the Company's history.
Based on this information, the Employer decided to
implement the previously planned wage increase. On
April 11, the Employer announced that both unit and
nonunit employees would receive a 25-cent-an-hour
wage increase retroactive to March 28, 1977, the
beginning of the pay period most closely approximat-
ing the end of the first calendar quarter of 1977.
Although granting employee benefits during the
period immediately preceding an election is not per
se objectionable, the Board finds such actions
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 55 for, and 81 against, Petitioner;
there were no challenged ballots.
2 In the absence of exceptions the Board adopts proforma the Hearing
Officer's recommendation that Petitioner's Objection I be overruled.
233 NLRB No. 6
calculated to influence employees in their choice of a
bargaining representative unless the Employer es-
tablishes that the timing of the action was governed
by factors other than the pendency of the election.3
Contrary to our dissenting colleague, we find that
justification for the wage increase has been establish-
ed here. Even prior to the advent of the Union, the
Employer had determined its economic circum-
stances dictated a revised wage structure. The
Employer therefore planned several wage increases,
including the one in question, and subsequently
implemented the first two phases of its program on
schedule. When financial reports for the first quarter
of 1977 established a clear capacity to implement the
next planned increase, the Employer had a legal duty
to grant the improvement in the same manner as it
would absent the presence of the Union. 4 There is no
evidence that the Employer deviated from its
planned course of action either with regard to the
timing or the amount of the increase. Nor is there
evidence that this increase was disproportionate to
increases previously given by the Employer. Based
on the foregoing, we find that the Employer, in fact,
relied on economic circumstances unrelated to union
organization in granting the April 1977 wage increase
to unit and nonunit employees alike, and that such
conduct is therefore not ground for setting aside the
election.5 Accordingly, we will overrule Petitioner's
Objection I 11.
As Petitioner has not received a majority of the
valid ballots, 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,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), and that
said labor organization is not the exclusive represen-
tative of all the employees in the unit herein
involved, within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
MEMBER JENKINS, dissenting:
In 1976, prior to the advent of the Union, the
Employer initiated an employee-benefits improve-
ment program which included, inter alia, a decision
to effectuate on January 1, 1977, a price increase in
certain of its products and, conditional on the fiscal
success of that increase, a tentative decision to grant
3 See, e.g., Essex International, Inc., 216 NLRB 575, 576 (1975);
Performance Measurements Co., Inc., 148 NLRB 1657, 1658 (1964).
Diamond Motors, 212 NLRB 820 (1974).
5 Material Handling Equipment Division of FMC Corporation, 217 NLRB
12(1975).
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MICRO MEASUREMENTS
an across-the-board wage increase after the end of
the first quarter. The Union began its organizational
efforts in February 1977. On April 8, the Employer's
president received its quarterly financial report,
which showed the first quarter to have been the most
profitable in the Employer's history, and he then
implemented a 25-cent-an-hour across-the-board
wage increase to all employees retroactive to March
28, 1977, apparently the beginning of the first pay
period of the second quarter, and on April 11, just 17
days prior to the scheduled election which Petitioner
lost, announced the increase to the employees.
The Employer readily admits that it could have
delayed granting the increase until after the election,
and assigns several reasons for not doing so. First, it
argues that it did not delay the increase in order to
eliminate the "suffering" which would have resulted
to nonbargaining unit employees if unit employees
only had been awarded the increase prior to the
election and, moreover, a preelection increase grant-
ed to nonunit employees only "would very definitely
effect [sic] the conduct of the election because the
people inside the bargaining unit could be swayed
one way or another, depending on how the argument
went."
It also argues that it could not have delayed the
increase because all of its rank-and-file employees
were aware of its contingent wage plan and "knew
[that the wage increase] was coming, and that kind of
thing will go like wildfire. We couldn't suppress it for
two weeks - [and] if we did not put it into effect it
would definitely be an issue" in the election.
The record does not sustain these positions. It
shows, instead, that no one, including the Employer's
president, knew that the increase "was coming" until
his April 1977 decision that it was. Moreover, the
most "some" employees were told in late 1976
and/or early 1977 was that the Company would look
at its financial posture at the end of the first quarter
of 1977 to ascertain whether a wage increase might
be feasible. Others, however, were not so informed
and knew nothing of the matter until the April Il
announcement. It is obvious, therefore, that the
matter could not have become an election issue for
this reason, and the Employer, therefore, could not
have been under pressure to grant the increase in
order to avoid that alleged consequence.
It is equally obvious that if the increase had been
delayed until after the election, the Employer would
not have been faced either with the "suffering"
flowing from an award to either the unit or nonunit
employees, or with its concern that a preelection
increase granted to only one or the other of the two
groups would become an election issue. Moreover,
since the granted increase was made retroactive to
March 28, it follows that no employee or group of
employees would have been penalized by such a
delay.
In my view, it is clear that the reasons advanced by
the Employer for instituting the wage increase when
it did are without merit, and that the Employer
therefore has not satisfied the burden of showing that
the timing of its announcement and effectuation of
the increase was for reasons other than to influence
the upcoming election results. Indeed, the record as a
whole compels the inference that the Employer timed
its actions to produce the precise effect it now
disclaims - to make the wage increase an election
issue which would inure to its benefit.
The conferred increase clearly is the type of benefit
reasonably calculated to influence employees in their
free choice of a bargaining agent and 1, therefore,
would set aside the election held on April 28, 1977,
and direct a second election.
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