Meier's Wine Cellars, Inc.

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.