Arkansas-Missouri Power Co.

National Labor Relations Board - Board Decisions

Oct 25, 1973

206 N.L.R.B. 612 (N.L.R.B. 1973)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arkansas-Missouri Power Company & Associated Nat-
ural Gas Company, Jointly and Local 1439 , Interna-
tional Brotherhood of Electrical ' Workers,
AFL-CIO, Petitioner. Case 14-RC-7300
October 25, 1973
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Pursuant to a petition and stipulation for certifica-
tion upon consent election, an election by secret bal-
lot was conducted on May 14, 15, and 22, 1973, under
the direction and supervision of the Regional Director
for Region 14 among the employees in the stipulated
unit. At the conclusion of the election, the parties
were furnished a tally of ballots which showed that of
approximately 236 eligible voters, 102 cast ballots for,
and 124 cast ballots against, the Petitioner. There was
one challenged ballot, not sufficient in number to
affect the results of the election. Thereafter, the Peti-
tioner filed timely objections to conduct affecting the
results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, after notice to the parties and opportunity
to present relevant evidence, the Regional Director
conducted an investigation of the issues raised by the
objections. On June 29, 1973, he issued and duly
served on the parties his report on objections, in which
he found, inter alia, that the Petitioner's Objection 1
had sufficient merit to warrant setting the election
aside.'
The Employer filed exceptions to the recommenda-
tion that the election be set aside, and a supporting
brief, and the Petitioner filed limited exceptions to the
Regional Director's report.
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, including the
exceptions and briefs, 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 concern-
ing the representation of the employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
i The Regional Director overruled all other objections except Objection 2.
He recommended that in the event the Board does not adopt his recommen-
dation regarding Objection 1, that a hearing be held to resolve factual issues
raised by Objection 2.
lowing employees constitute a unit appropriate for the
purpose of collective bargaining within the, meaning
of Section 9(c) of the Act:
All production, construction, maintenance, ser-
vice, tree trimmers and store employees engaged
in the distribution, transmission, storage, mainte-
nance and repair of gas and electric transmission
and distribution facilities, excluding all presently
represented employees, clericals, guards, sales,
professional, managerial and supervisory person-
nel as defined in the Act.
5. The Board has considered the Regional
Director's report and the exceptions and briefs, and
hereby adopts the of the announcement of the wage
increase was motivated Regional Director's findings,
conclusions, and recommendations.
ORDER2
It is hereby ordered that the election conducted
herein on May 14, 15, and May 22, 1973, be, and it
hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication]
MEMBER KENNEDY , dissenting in part:
The Petitioner lost the election and filed objections
alleging, inter alia, that the Employer had unilaterally
granted,wage increases to a substantial number of
employees in order to induce them to vote against
representation by the Petitioner. The Regional Direc-
tor investigated the objections and reports that the
Employer had made two separate wage increases be-
fore the election': one a 5.5-percent across-the-board
cost-of-living increase to all unrepresented employ-
ees, and the other a 2-percent increase exclusively to
gas employees. The Regional Director concluded that
the 5.5-percent increase was a regular annual cost-of-
living increase that had been granted prior to the fil-
ing of the representation petition and was not moti-
2 In its exception to the Regional Director's recommendation with respect
to Objection 1 , the Employer concedes that it`was aware of organizational
activity among the employees . It argues, however, that since there is no
finding that it was aware of the fact that the Union had petitioned for an
election at that time, it was error for the Regional Director to find that the
timing of the announcement of the wage increase was motivated by a desire,
to interfere with the election . Member Kennedy finds merit in the Employer's
position.
In Carver Manor Nursing Home, Inc., 197 NLRB 1283, where an employer
announced the granting of benefits on the same day on which a petition was
filed, a majority of the Board stated that it could not conclude the benefits
were calculated to affect the outcome of the election absent "a finding that
the Employer had knowledge of organizational activities by its employees"
Accordingly , the case was remanded for further investigation on the issue "as
to whether the Employer had knowledge of the Union' s organizational activi-
ties or the pendency of the petition." [Emphasis supplied.] Inasmuch as the
instant record shows the Employer at all material times had knowledge that
the Union had resumed its drive to organize the employees after having lost
an election about a year earlier, we do not agree with the dissent.
In our opinion none of the Employer's or the Petitioner's exceptions raises
any material issue of fact or law which would warrant reversal of the Region-
at Director's findings and recommendations , or,require it, hearing-
206 NLRB No. 71
ARKANSAS-MISSOURI POWER CO. 613
vated by an intention to affect the results of the elec-
tion. But he found that the 2-percent increase was
granted after the filing of the petition and was intend-
ed to interfere with the election. On this ground he
recommended that the election be set aside.'
The Employer has excepted to the Regional
Director's recommendation. It denies that it had an
improper motive in granting the 2-percent increase to
the gas employees. It asserts that it granted this wage
increase to those employees in order to correct a dis-
parity between wages paid to electrical employees and
to gas employees. It further asserts that it decided to
grant the increase on March 20, 3 days before the
filing of the petition and more than a month before
the actual election. Although the Employer was aware
that the Petitioner was soliciting authorization cards,
the Employer said it granted the 2-percent increase
because of repeated complaints by the gas employees
of a growing disparity between their wages and the
wages of electrical employees and because of industry
surveys which showed the legitimacy of those com-
plaints.
Finally, the Employer states that, although the an-
nouncement of the wage increase to the gas employ-
ees was made on Monday, March 26, after the filing
of the representation-petition on Friday, March 23, it
was unaware of and was not notified of the filing until
Tuesday, March 27, a day after the announcement of
the increase. The original petition is date-stamped as
being filed at 4:15 p.m. on Friday, March 23, 1973.
The St. Louis Regional Office, where this petition was
filed, closes officially at 4:30 p.m. The Employer al-
leges that the Regional Office did not mail a copy of
the petition until Monday, March 26, because that is
the date shown on the Regional Director's letter serv-
ing the petition. The Employer says it received the
petition on Tuesday, March 27, which was the next
day after it was mailed. That was also 1 day after the
announcement of the 2-percent wage increase. Thus,
the Employer asserts that it had no knowledge of the
petition being filed at the Regional Office until after
it had announced the 2-percent wage increase.
In addition, the Employer points to its past practice
in March 1972 to show that it acted in the same man-
ner as it did in March 1973. After its cost-of-living
increase in March 1972, similar complaints as to dis-
parity in wages were voiced by gas employees. At that
time the Employer began a survey of wage rates paid
by other utilities in the area, but in 1972 the Employer
says that it did not give a second wage increase be-
cause Phase II economic guidelines were in effect at
the time.
In support of his recommendation as -to Objection
1, the Regional Director cited the decision in,
-Hineline's,Meat Plant, ,Inc„ 193 NLRB 867 (Chairman
3 The Regional Director also recommended that-Petitioner's Objections 3,
4, and 5 be overruled , and that if necessary a hearing be held as to the merits
of Objection 2 1 concur in these recommendations.
Miller dissenting). That case is distinguishable from
the present one. In Hineline's, the employer made an
announcement of a profit-sharing plan only 11 days
before the election and presumably after it was aware
of the filing of the petition. The majority in its deci-
sion stressed the closeness of the announcement to the
election. It stated: "Thus, in the Exchange Parts case
[N.L.R.B. v. Exchange Parts Company, 375 U.S. 405
(1964)] as here, the first general announcement' of the
new benefits was made 2 weeks prior to scheduled
election." In the present case, the announcement of
the special increase for gas employees was made more
than a month before the election. More important, at
the time of the announcement, according to the Em-
ployer, it was unaware of the filing of the petition. It
therefore has a valid basis for arguing that the an-
nounced increase was not intended to affect the elec-
tion since not only had no election then been directed,
but to its knowledge no petition for such an election'
had yet been filed.
An employer is not required to withhold for an
indefinite period a wage increase decided upon for
legitimate business reasons because a union is en-
gaged in an organizing campaign. Indeed, if the Em-
ployer had subsequently withheld the announced
wage increase, such conduct might have been held to
be interference with the election and an unfair labor
practice. In The Gates Rubber Company, 182 NLRB
95, the Board said:
In these circumstances, neutrality is not main-
tained by an announced withholding of a wage
increase because of a pending Board-conducted
election. It is well settled that the employer's legal
duty is to proceed as he would have done had the
union not been on the scene.
Here the Respondent withheld increases which
would normally have been granted but for the
presence of the Union and pendency of the elec-
tion and advised employees that their wage in-
creases were being withheld for this reason.
It seems to me that the Employer has set forth
sufficient facts to raise a substantial and material is-
sue as to its motive in granting the wage increase to
gas employees and therefore as to the legality of such
increase. If the Employer was unaware of the petition
at the time the wage increase was announced, then-it
cannot be said that the wage increase was intended to
interfere with the election. Under Board procedure, a
hearing is required to resolve this question.4 Accord-
ingly, I would direct a hearing on this issue as well as
on the issue raised by Objection 2. I therefore dissent
from the majority's decision to adopt the Regional
Director's -recommendation to set aside the election
and direct a new one.
4 Sec. 102.69(e) of NLRB Rules and Regulations, Series S, as amedded.