Holyoke Nursing Home, Inc.

National Labor Relations Board - Board DecisionsAug 11, 1975

219 N.L.R.B. 1041 (N.L.R.B. 1975)

HOLYOKE NURSING HOME, INC. 1041 Holyoke Nursing Home , Inc. and District 1199 Mass., National Union of Hospital & Health- Care Employ- ees, RWDSU, AFL-CIO, Petitioner. Case 1-RC-13616 August 11, 1975 DECISION AND DIRECTION OF SECOND ELECTION By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered the objections to the election held on January 3, 1975,1 and the Regional Director's report recommending that Petitioner's Ob- jections 1, 3, and 4 be overruled 2 and that its Objec- tion 2 be found to have merit. The Employer filed exceptions and a supporting brief with respect to the Regional Director's findings and recommendation concerning Objection 2. The petition here was filed on November 14, 1974; the Stipulation for Certification Upon Consent Elec- tion was entered into on December 5 and specified the date for the election as January 3, 1975. On De- cember 9, the Employer announced an across-the- board pay increase of 15 cents an hour for practically all its employees, i.e., both unit and nonunit employ ees. The election was held on schedule, and, as indi- cated, the Petitioner lost. In its Objection 2 the Peti- tioner contends the December pay increase constituted objectionable conduct and the Regional Director so found. We agree that the foregoing facts spell out a prima facie case that the Employer's con- duct improperly interfered with the results of the election. The Employer contends, however, that the raise was granted for compelling economic or business reasons created by the escalating cost of living 3 and not for reasons related to the election. Consequently, it argues its conduct was wholly proper under the well-established rule that where economic consider- ations require a revision in the wage structure while a representation petition is pending, it is an employer's legal obligation to handle the matter in the manner it 1 The election was conducted pursuant to a Stipulation for Certification Upon Consent Election . The tally was 25 votes for , and 35 against, the Petitioner. There were no challenged ballots. 2 In the absence of exceptions, we adopt pro forma the Regional Director's findings and recommendations with respect to Objections 1, 3, and 4. They are therefore overruled. 3 There can be no question but that the year 1974 witnessed an almost unprecedented rise in the cost of living. would have done in the absence of a union.4 In support of this position the Employer, first, cites certain figures showing, a high rate of attrition of its employees, assertedly economically caused, for the first 6 months of 1974, and a substantially lower rate for the following 9 months. But these contrasting fig- ures afford little or no support for the conclusion that economic considerations dictated the disputed raise, for the figures presented do not show a high number of quits continuing toâ€¢ December 9 which would have required a pay raise around that time to forestall further depletion of the employee comple- ment, or any drop in their number following that date, which would indicate the raise had had the de- sired effect of curbing attrition. Rather it appears that on July 19 the Employer granted a 20-cent cost- of-living increase 5 which, insofar as the Employer's information presented here is concerned, may very well have been responsible for substantially all, if not all, of the drop in attrition that followed the first 6 months of 1974. Indeed, that drop may have all oc- curred prior to December. In any event, the figures offered by the Employer provide no support for its claim that economic necessity forced it to grant the second increase within the year, much less during the critical preelection period. Second, the Employer argues in support of its posi- tion that the December increase was no more than the carrying out of. an earlier promise to employees to grant raises to meet increases in the cost of living. To this end it refers to the notice announcing the July 19 wage which stated, inter alia: "As we progress through the remainder of the year we shall continue to monitor the inflationary trend in the cost of living and, hopefully reflect changes in additional payroll adjustments." Although this language does, perhaps, contain a promise to monitor inflation for the re- mainder of the year, it does not include a promise to grant a compensatory pay raise therein, much less one during the time covered by the critical preelec- tion period. And, in fact, the Employer in its brief does not really claim that it did. At most it argues that the language states only that if there were addi- tional cost-of-living increases they would be given during the remainder of the year 6 Furthermore, even 4 See, for example , Material Handling Equipment Division of FMC Corpo- ration, 217 NLRB No 16 (1975). ' The Regional Director concluded the Employer had knowledge of union activity on July 19; the Employer denies it and claims an issue of fact, requiring a hearing , has thus been raised . We find it unnecessary to pass on the matter, for we assume for purposes of our decision that the Employer had no such knowledge on July 19. We therefore deny the Employer's re- quest for a hearing. 6 In its brief the Employer states at one point that the quoted language of the notice is open to only one construction , i.e., that payroll adjustments "if granted, would be granted 'through the remainder of the year' . . (Em- phasis supplied.) At another point it says, "The December raise had been Continued 219 NLRB No. 163 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such a conditional construction of the language is, despite our dissenting -colleague's contrary conclu- sion, really more than the words themselves can bear, for we, in agreement with the Regional Director, can see no promise that compensatory raises, if given, would necessarily- come in 1974. Thus, the quoted language, to recapitulate, clearly contains no promise of any pay raise at all, much less of one at any partic- ular time 7 - In sum, we conclude that the Employer has failed to produce any plausible reasons to support its claim that economic and business considerations necessi- tated or justified granting the disputed increase dur- ing the critical preelection period, and, thus, that the timing of the raise was based on factors other than the pendency of the election. Accordingly, we adopt the Regional Director's recommendation that Objec- tion 2 be sustained, the January 3, 1975, election be set aside, and a second election be directed. [Direction of Second Election and Excelsior foot- note omitted from publication.] CHAIRMAN MURPHY, dissenting: I can see no basis for concluding that the timing of the December pay increase was related to the pen- dency of the election or that the increase itself had any improper effect on the election results. Though the Employer here was openly opposed to the Union, we are not faced with a situation involv- ing any unlawful or otherwise improper activities by the Employer. That being the case, it seems wholly unwarranted to me for this Board to search out some improper motive for the December 9 pay raise when there is a reasonable and adequate explanation both for its being placed in effect and for its timing. There can, of course, be no question here, but that through- out 1974 inflation was continuing at a high rate, with the consequence among others that the Employer found it difficult to keep employees at their then rates of pay. As a consequence, on July 19 it issued a notice announcing an immediate 20-cents-an-hour increase for practically all of its employees, whether in the unit or not, and promising them to continue monitoring the cost of living for the remainder of the year and "hopefully" to reflect changes in additional adumbrated in this July 19 notice" which is a far cry from saying there was any fixed promise to grant such a raise or that the Employer was in any way obligated to do so. 7 Consequently, there is no merit in the Employer's contention that it would have been vulnerable to an unfair labor practice complaint if it had failed to give this pay raise in December. payroll adjustments. Now it seems rather obvious to me that with the continuing high rate of inflation, a prudent businessman might conclude that an addi- tional wage increase would be necessary to keep his employees from quitting in excessive numbers. Al- though I am fully aware that the Employer's figures on attrition do not unequivocally establish such fact, nevertheless it appears to me to be a self-evident proposition in view of the continuing spiralling infla- tionary costs that have accompanied the passage of the last year or so. In any event, there is no substan- tial basis for holding that the Employer was other than wholly justified in concluding for economic rea- sons that a second cost-of-living increase was neces- sary toward the end of 1974. Furthermore, contrary to the Regional Director and the majority here, I believe any realistic reading of the July 19 notice shows that it conveyed a prom- ise of additional wage increases within the year if the cost of living continued to rise at a rapid rate. Surely the conceded promise to monitor the cost of living throughout the remainder of the year would have been a rather empty promise to employees if the sug- gested increases were not to accompany the rising prices. Thus, I would find that the July 19 notice did hold out a promise of an increase within the year, and that the most likely time to grant it would have been in December 1974, the last month of that year. The fact that the filing of the petition by the Union in November 1974 happened to intervene before the second cost-of-living increase occurred was not, after all, the Employer's doing. Thus, I believe it was noth- ing more than coincidence that this latter increase was given employees within the critical preelection period. Consequently, as the Employer had good econom- ic reasons for instituting the December 9 raise and as it had in effect promised its employees a raise about that time, I can perceive no sound basis for our hold- ing here that the raise was inspired by the pending election. Certainly, I am not convinced that the mere timing of the raise , in the face of these circumstances, is sufficient to attribute an ulterior motive to the Em- ployer in giving it. Also, as the employees had been led to believe an additional raise would be given if inflation continued, I fail to see on what basis we can conclude that they were improperly misled by the Employer's living up to its promise. In short, I would find Objection 2 to be without merit, and I would, therefore, certify the results of the election.