Micro Measurements

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). 76 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. 77