Arthur Fulmer of Mississippi, Inc.

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arthur Fulmer of Mississippi, Inc. and General Driv- ers, Salesmen & Warehousemen's Local Union No. 984, an affiliate of the'International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 26-LRC-4709 August 1, 1974 DECISION AND DIRECTION OF SECOND ELECTION gaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, shipping and receiving employees and warehouse employees employed at the, Employer's Olive Branch, Mississippi, plant; excluding all office clerical employees, professional and technical employees, watchmen, guards and supervisors as defined in the Act. BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved on February 22, 1974, an election was conducted on March 19, 1974, under the direction and supervision of the Regional Director for Region 26, among employees in the appropriate unit. At the conclusion of the counting of the ballots, the parties were furnished with a tally of ballots which showed that, of approximately 117 eligible voters, 108 cast ballots, of which 47 were cast for, and 54 were cast against, the Petitioner, and 7 ballots were chal- lenged. The challenged ballots were insufficient in number to affect the results of the election. Thereaf- ter, the Petitioner filed timely objections to the con- duct of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and on April 23, issued and duly served on the parties his Report on Objections, in which he recommended that Objection 4 be sustained, and that all other objections be overruled. Having found merit in Objection 4, the Regional Director recommended that the election be set aside and that a second election be directed. Thereafter, the Employer and the Petitioner filed timely exceptions and supporting' briefs. 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, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses 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 em lo ees of the Em- p y ployer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agree, and we find, that the following unit is appropriate for the purposes of collective bar- issues of fact are in dispute 5. The Board has considered the entire record in this case, including the Regional Director's report, the exceptions of the parties, and supporting briefs, and finds no merit in the exceptions.' We agree with the Regional Director that the Employer's announcement on February 8, 1974, just prior to the election, that all employees would receive a 10-cent-per-hour increase was an interference with the election. The Employer had never before granted such an increase to its employees and there is no explanation, other than the pendency of the election, for the announcement of a general increase at this particular time. Obviously, the employees would be substantially influenced by this clear evidence of the Employer's largesse and motivated to vote against union representation, particularly in the context of the Employer's antiunion speech made at the same time as the announcement of the wage increase. Un- der these circumstances, we cannot agree with our dissenting colleague that the announcement was "a normal consequence of events" and that this election should stand despite the interference with the employ- ees' right to make an unimpeded choice for or against unionization. Accordingly, the Board hereby adopts the findings and recommendations of the Regional Director and directs that the election be set aside and a new elec- tion be held. ORDER It is hereby ordered that the election held on March 19, 1974, in Case 26-RC-4709 be, and it hereby is, set aside. [Direction of Second Election and Excelsior fn. 2 omitted from publication.] CHAIRMAN MILLER, dissenting in part: I cannot agree with my colleagues that the Employer's announcement of a general wage increase interfered with the conduct of the election. The deci- 1 The Employer's request for a- hearing is hereby denied as no material 212 NLRB No. 110 ARTHUR FULMER OF MISSISSIPPI , INC. 733 slop to grant a general wage increase of 10 cents per hour was made on December 23, 1973, prior to the advent of the Union. Because the Respondent em- ployed salaried and piece rate workers, before imple- menting the wage increase it decided to compute adjustments in some 1,000 piece rates to achieve the equivalent of a 10-cent-per-hour increase for piece rate workers, and to have new piece rate sheets print- ed. The computation of adjustments in piece rates was completed on February 2, 1974, and the Employer estimated that the new piece rate sheets would be available to implement the wage increase in the pay period beginning February 11. Accordingly, the Em- ployer officially announced' the wage increase on J Between January I and February 8, some 25 employees had been infor- mally advised that a wage increase was in the offing February 8, and assured employees that this increase had "nothing to do with the union." In these circumstances, I would find, as the Em- ployer contends, that the announcement of the wage increase was a normal consequence of events set in motion prior to the advent of the Union, and not objectionable conduct. Domino of California, Inc., 205 NLRB 1083 (1973). See also my dissent on a like issue in Tommy's Spanish Foods, Inc., 187 NLRB 235, 238 (1970), and the opinion of the court of appeals which adopted the result and rationale of my dissent when that case was presented to it for review . N.L.R.B. v. Tommy's Spanish Foods, Inc., 463 F.2d 116 (C.A. 9, 1972). As I agree with my colleagues that the remaining objections are without merit, I would certify the re- sults of the election.