United Methodist Home of New Jersey

National Labor Relations Board - Board Decisions

Aug 1, 1994

314 N.L.R.B. 687 (N.L.R.B. 1994)

687
314 NLRB No. 116
UNITED METHODIST HOME OF NEW JERSEY
1 In the absence of exceptions, we adopt, pro forma, the Acting
Regional Director’s recommendation to overrule Objections 3, 4, and
6.
We find no merit in the Petitioner’s exceptions to the Acting Re-
gional Director’s recommendation to overrule its Objection 5. Chair-
man Gould finds it unnecessary to pass on this objection.
2 We note that the report contains no denials by the Employer of
the employee witnesses’ assertions described there.
3 Atlantic Forest Products, 282 NLRB 855, 858 (1987), and cases
cited there.
United Methodist Home of New Jersey and 1115
Nursing Home & Service Employees, Union—
New Jersey B, A Division of 1115 District
Council, Hotel Employees & Restaurant Em-
ployees International Union, AFL–CIO, Peti-
tioner. Case 22–RC–10817
August 1, 1994
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The National Labor Relations Board has considered
objections to an election held July 29, 1993, and the
Acting Regional Director’s report recommending dis-
position of them. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of ballots
shows 47 for and 58 against the Petitioner, with 5
challenged ballots, an insufficient number to affect the
results.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has reviewed the record in light of the
exceptions and briefs,1 and has adopted the Acting Re-
gional Director’s findings and recommendations, ex-
cept as to the Petitioner’s Objections 1 and 2.
A. Introduction
The essence of the issues raised by the Petitioner’s
Objections 1 and 2 is whether during the critical
preelection period of June 14 to July 29, 1993, the
Employer discouraged employees from voting for the
Petitioner by refusing to grant them a wage increase
that allegedly was due in July. The Acting Regional
Director found that the Employer’s withholding of a
wage increase was not objectionable conduct. He con-
cluded that there was no clearcut history of wage in-
creases during the summer months, and assuming a
wage increase was promised the employees in July
1993, the Employer’s explanation for withholding it
was ‘‘to avoid the appearance of impropriety due to
the pending election.’’ Accordingly, he recommended
that these objections be overruled. We find merit to the
Petitioner’s exceptions to that recommendation, and we
accordingly will set aside the election and direct a new
one.
B. Relevant Evidence
The Acting Regional Director’s Report on Objec-
tions sets forth the following relevant evidence taken
from the statements and affidavits of four unit employ-
ees,2 and an Employer’s memorandum. Regarding the
Employer’s practice of granting wage increases prior to
1992, two witnesses stated that they received two an-
nual increases, one on the anniversary date of hire and
the other in July. One of the witnesses said, however,
that prior to 1992 they received an increase only on
their anniversary dates. Three witnesses agreed that in
1992 they received only one increase, in July 1992,
while a fourth said she also received a second increase
in December of that year. Regarding an increase in
1993, the witnesses stated that they were told by dif-
ferent representatives of the Employer, in conversa-
tions that occurred from late 1992 until June 1993, that
they would receive a wage increase in July 1993. No
wage increase was given at that time.
The Acting Regional Director’s report describes two
efforts by the Employer to explain its decision to with-
hold the wage increase in July 1993. According to one
employee, at a meeting of unit employees in early July
1993, the Employer’s administrator, Fred Heliene, stat-
ed that according to the Board’s Rules the Employer
could not give raises during the pendency of a rep-
resentation election, in order to avoid the appearance
of offering employees bribes for their votes. He added,
however, that ‘‘if the union got in, our raises would
be negotiable, and that if the union didn’t get in, we
would get our raises.’’ Subsequently, the Employer
issued to employees a memorandum, dated July 14,
1993, which stated that unit employees would not re-
ceive wage increases at that time due to the Employ-
er’s understanding of the Board’s Rules which, the
memorandum stated, ‘‘prohibit management from mak-
ing any changes in working conditions during the time
before the election.’’ The memorandum added:
Should the election result in a decision by the em-
ployees to have Local 1115 represent them, the
issue of a raise and other economic items will be
considered at the bargaining table. Should the re-
sult be no union, management will act promptly
after the election.
C. Analysis
It is well settled that an employer is required to pro-
ceed with an expected wage or benefit adjustment as
if the union were not on the scene.3 A limited excep-
tion to this rule permits an employer to postpone a
planned wage or benefit increase as long as the em-
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Id.
5 In concluding that the Employer was attempting to remain neutral
in postponing the wage increase, the Acting Regional Director found
that Heliene’s statement concerning the negotiability of the increase
‘‘if the Petitioner were victorious’’ constituted a ‘‘prediction of fu-
ture events.’’ We reject that finding, which is factually without sup-
port. Heliene’s statement was directed only at the postponed July in-
crease and the effect the selection of the Petitioner as the employees’
bargaining representative would have on the granting of that in-
crease. It was made wholly in connection with the Employer’s with-
holding of that particular increase and no other. In no way did it
suggest that the employees would get the raise even if the Petitioner
won, although the amount would then be negotiable.
ployer makes clear to employees that the increase will
occur whether or not they select the union, and that the
sole purpose of the postponement is to avoid the ap-
pearance of influencing the outcome of the election.4
The evidence establishes that (1) before the petition
was filed on June 14, 1993, the Employer had decided
to give the unit employees a wage increase of an un-
specified amount in July 1993, (2) the employees were
repeatedly told that they would receive, and thus they
expected, a wage increase at that time, and (3) the Em-
ployer did not then give them the increase because of
the pending election. Given the governing principles,
we find it unnecessary to determine whether the wage
increase, or the employees’ expectation of it, rested on
an established past pattern of July increases or simply
on the representations of the Employer’s representa-
tives that were made to employees from late 1992 until
June 1993. In either case, a wage increase scheduled
for July 1993 and the employees’ expectation of re-
ceiving one in that month has been established. The
only question remaining is whether, in withholding the
increase, the Employer satisfied the requirements for
the limited exception set forth above. We find that it
did not.
In postponing the expected July increase, the Em-
ployer failed to assure the employees that the increase
would ultimately be given regardless of the election’s
outcome. To the contrary, the lasting message imparted
to the employees, irrespective of any proffered state-
ment of neutrality as the purpose for the postponement,
was that receipt of a raise hinged on whether the Peti-
tioner won or lost the election: that is, the increase was
at best a matter for negotiation if the Petitioner won,
but it was a certainty if the Petitioner lost. Thus, al-
though Administrator Heliene told the employees at an
early July meeting that the Employer would refrain
from giving the increase in order to avoid the appear-
ance of offering bribes for votes, he also bluntly told
them that ‘‘if the union got in, our raise would be ne-
gotiable, and that if the union didn’t get in, we would
get our raise.’’5 That statement was repeated in the
July 14 memorandum, albeit more subtly as a ‘‘raise
and other economic items will be considered at the
bargaining table’’ if the employees selected the Peti-
tioner to represent them, but that ‘‘management will
act promptly’’ should that choice be no union. Both
statements placed the onus, therefore, on the Petitioner
for the employees not receiving a wage increase in
July. It is immaterial that in postponing the increase,
the Employer might have been acting in the good-faith
but mistaken belief that even the grant of wage in-
creases that were due and expected had to be nego-
tiated if the Petitioner became the employees’ bar-
gaining representative. Dorn’s Transportation Co., l68
NLRB 457 (1967).
Finally, the reason given in the July 14 memo-
randum for the postponement, i.e., that the Board’s
Rules ‘‘prohibit management from making any
changes in working conditions during the time before
the election,’’ neither gave the employees a basis for
deducing that the postponement of their July increase
was to avoid the appearance of influencing their votes,
nor assurance that they would receive an increase at
least in some amount once the representational matter
was settled. See Times Wire & Cable, 280 NLRB 19,
28–31 (1986). The memorandum thus did nothing to
dispel the notion that the Petitioner was to blame for
the employees not receiving their July wage increase.
Indeed, it only served to emphasize the statements that
followed it concerning the wage increase’s dependency
on the results of the election.
Accordingly, we find that the Employer’s with-
holding of the July 1993 wage increase constituted ob-
jectionable conduct and that, hence, the election must
be set aside and a second election conducted.
[Direction of Second Election omitted from publica-
tion.]