FMC Corp.

476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FMC Corporation, Power Control Division and Team- sters "General" Local No. 200, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 30-CA-2768 and 30-RC-2321 February 4, 1975 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY On October 17, 1974, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Charging Party filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decision to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint in Case 30-CA-2768 be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the Union's objections to the election conducted in Case 30-RC-2321 on June 20, 1974, be, and they hereby are, overruled. As the Union failed to receive a majority of the valid ballots cast in the election conducted in Case 30-RC-2321 on June 20, 1974, the Board will 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 Teamsters "General" Local No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. 216 NLRB No. 86 DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: On June 25, 1974,1 Teamsters "General" Local No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, Charging Party, or Petitioner, filed a charge against FMC Corporation, Power Control Division, herein called the Company or Respondent, alleging that Respondent violated Section 8(aXl) of the Act. The Union filed the petition in the above-numbered representation case on April 30, and a Stipulation for Certification Upon Consent Election was executed by the parties on May 22 and approved by the Regional Director and the election was conducted on June 20, in a unit of: All full-time and regular part-time production and maintenance employees employed by the Employer at its Milwaukee, Wisconsin location; excluding plant clerical employees, office clerical employees, casual employees, technical employees, professional employ- ees, guards and supervisors as defined in the Act. Of the approximately 273 eligible voters, 115 cast ballots for and 115 cast ballots against the Union. In addition to two void ballots, nine Voters were challenged by the Union on the basis that they were supervisors, and two were challenged as plant clerical employees and the Board challenged two voters because their names were not on the Excelsior list. The Union filed objections to conduct affecting the results of the election on June 25. On August 7 the complaint in the unfair labor practice case was issued, alleging that Respondent had violated Section 8(a)(1) of the Act by granting wage increases between May I and June 20 to its production and maintenance employees at the two Milwaukee, Wisconsin, plants in order to discourage membership in and support of the Union. On August 9 the Region issued an order consolidating cases and notice of hearing on challenged ballots and objections to conduct affecting the results of the election, noting that the subject matter of the objections and the complaint allegation was the same, and stating that the issues concerning the resolution of the challenges could also be best resolved in a hearing. Respondent's timely answer admitted the service and jurisdictional allegations but denied that it had violated the Act in any way. There are very few conflicts in the testimony in this case, and on the basis of the evidence, I have determined that the Act was not violated and that the objections to the election should be overruled. During the trial of this matter, which took place in Milwaukee, Wisconsin, on September 9, the parties agreed and stipulated that the two persons whose names were not on the Excelsior list should have been on the list and that their ballots should be opened and counted. The Union withdrew its challenges to I Unless otherwise stated all events herein took place during 1974. FMC CORPORATION 477 10 ballots for the purposes of this case only, stating that it reserved the right to challenge in any subsequent election any persons who they felt were excluded from the coverage of the unit. The parties agreed that one challenge was proper and further agreed to open and count the ballots. A revised tally of ballots was issued showing that 126 votes had been cast against and 116 for the Union. All parties were afforded full opportunity to appear, to examine and cross-examine the witnesses, and to argue orally. General Counsel, Respondent, and the Union have filed briefs which have been carefully considered. On the entire record in this case, based on the evidence received, I make the following: FINDINGS OF FACT 1. COMMERCE FINDINGS AND UNION STATUS Respondent is a Delaware corporation engaged in a number of manufacturing endeavors, among which is the manufacture and nonretail sale of electrical equipment which it makes at its two plants in Milwaukee, Wisconsin, which are two of the four units in its Power Control Division. Respondent annually sells and ships in interstate commerce directly to points located outside the State of Wisconsin products from its two Milwaukee plants valued in excess of $50,000. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES FMC Corporation has its corporate headquarters as well as its group headquarters in Chicago, Illinois. The machinery group has 7 subgroups arranged into some 35 divisions and is comprised of approximately 85 manufac- turing facilities. The Power Control Division, which has 4 units including the 2 Milwaukee plants involved here, is thus I of about 35 divisional facilities in 1 group of this corporation. There are some 30,000 employees in the machinery group of which about 12,000 to 15,000 employ- ees in some 70 facilities are not covered by collective- bargaining contracts. The Corporation has a chemical group which employs some 18,000 employees in various divisional units. There were approximately 273 eligible voters in the unit of the two Milwaukee plants in this proceeding. The parties entered into a stipulation at the hearing in this matter which set forth that the Power Control Division was acquired by the Company in 1967, and operated under a different name until the end of 1972 when the present division was established. They further agreed that from 1967 through 1973 all the division employees received wage increases in November of each year on what the Company termed a merit basis and with no general midyear adjustments being granted other than on July 22, 1968. Further, they stipulated that effective June 3 increases ranging from 15 cents to 30 cents an hour, averaging 5.16 percent overall, were given to all unit and nonunit employees in the Power Control division. Two witnesses testified for the General Counsel that they received raises in June after being called to Production Manager Galliart's office. In the office the following statement was read to them as it was to all the employees: For some time now the Company has been working on plans for a special merit increase to be put into effect after the removal of the Federal economic controls. Our office people are aware of this as are many of our production people. This special accelerat- ed individual merit review does not reduce or in any way adversely affect the timing of your next regular review. This is a special additional increase adminis- tered on a local basis. We feel it would be unfair to deny you an increase now because of the union campaign, and therefore we are going ahead because we believe we are morally and legally right. This increase has nothing to do with the present union campaign or election. One of the witnesses responded that he did not feel the 15- cent raise was sufficient and there was further discussion along that line. He also testified he had received a raise in November 1973, at which time he stated he wanted a bigger raise and he was told by the production manager that they would review his wages in about 6 months. The other witness testified that in February he had approached his supervisor concerning a raise and the supervisor said he would get back to him later. During the June conversation he was told that it was a merit raise and not a general raise and testified that he had never had a merit raise before. During cross-examination he admitted that on each of the previous occasions when he received raises he had been called to the office where the amount of the raise was discussed and stated that the Company had always called these raises merit raises. The raises which were given were not uniform but were always individually discussed with each employee and were within a particular range. Respondent offered testimony that from 1971 through April 1974 it had been under wage and price controls as a "tier I" group in the price control regulations and stated that all of its groups and divisions located in the continental United States were under such controls. The director of personnel for the machinery group of the Corporation testified that, when President Nixon an- nounced in February 1974 that he was not going to seek an extension of the controls, company managers began to review what they wished to do after the end of the controls. He said that managers were told there would be price changes and salary changes when the controls ended. In mid-April 1974 a meeting of managers decided that the group would initiate an accelerated merit raise wage for all machinery group personnel not covered by bargaining contracts. Accordingly his office started preparing a program of salary ranges for this wage raise setting compensation limits for the wage grade levels. Individual compensation ranges for the various wage grades for each of the divisions was then worked out together with an order to each of the division managers to institute this program 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as quickly as possible and complete it within 60 days. The schedule for the divisions and the authorizing order was sent on May 3 to all divisions including the Power Control division. Thus the raises averaging over 5 percent which were granted through this authorization in the machinery group went to some 12,000 to 15,000 employees. There was also testimony that approximately the same percentage wage increase was authorized for all employees not covered by collective-bargaining contracts in the Compa- ny's chemical group. While the Union's brief places great emphasis on the fact that employees were individually spoken to by supervisors in regard to this June raise, the Company was following its standard procedure in calling each employee in individual- ly and discussing with him the amount of the raise which he was to receive, with those raises ranging from 15 cents to 30 cents . This was not a blanket percentage raise nor were the previous raises given by Respondent. The Union's suggestion that calling employees into supervisors' offices to discuss the raises is violative of the Act is an erroneous confusion of "locus of authority" interrogation with the present situation. The written statement is not violative of the Act and in the circumstances of the union campaign it would seem that a disclaimer by Respondent would be warranted. While the statement could have been more explicit in stating that the wage raises were part of a corporatewide wage raise which had been planned prior to the advent of the union to meet the inflationary pressures being experienced by all, the statement does not present a basis for concluding that the raises were connected to the organizational campaign. Richard Baumann, who was at that time the director of personnel relations with the Power Control division in Milwaukee, testified that he first started to work for the Company and with that division around April 15 and became aware of the union organization at the plant when he received a copy of the Union's petition in the representation case somewhere around May 1. After receiving both the petition and the notification concerning the raises to be given, he contacted the office of the personnel director of the machinery group and discussed with them the question of the union organization campaign and the granting of raises at that time . He testified that he was told that the wage raise policy was a total corporate policy and that not to grant a wage raise to these employees when raises were being given to all other corporate employees similarly located could be considered an unfair labor practice . He therefore proceeded as directed and laid out the program for granting the individual wage increases to the unit and nonunit employ- ees in the division. There are no other allegations of violations of the Act by Respondent, nor was there any testimony to establish animosity towards the Union by Respondent other than one statement that the Company would not like anybody else coming in telling them how to run the plant. The question then becomes whether this wage increase, standing by itself, is an unfair labor practice under all the circumstances noted above. I must conclude, under all the circumstances detailed, that the granting of wage raises at that time was not an unfair labor practice even though the timing of the wage increases may appear fortuitous. There is nothing to contradict the Company's evidence that these wage raises were planned for all of the employees of the corporation prior to the end of the wage and price controls on April 30, and that getting the program set and getting it out to the individual divisions, along with the range of raises that the individual divisions were to grant, consumed the period of time until May 3. Thus there is no evidence to demonstrate that the Union's filing of the petition on April 30, with notification to the Milwaukee Power Control division shortly thereafter, caused, effected, or affected the decision to grant these wage increases . There is no evidence that Respondent knew of the union campaign prior to its being served with a copy of the petition. All the briefs appear to recognize that it would seem nonsensical to suggest that the Company would have embarked on a scheme to give wage increases to some 15,000 or more employees to forestall or hinder a union campaign in two plants where 200 to 300 employees worked. While it is true, as General Counsel contends, that this was an unusual raise since all the raises for the previous 6 years had been given in November on a once -a-year basis, and this was a special raise which was occurring some 7 months after a previous raise, and was stated and intended as an extra raise not to interfere with another November raise, it also must be remembered that this was an unusual period in the nation's economy. We had been under wage and price controls for a couple of years while at the same time continuing to endure mounting inflationary pressures and there were pressures for increases even as the two witnesses for the General Counsel testified. Further, the previous midyear raise in 1968 had been as a result of economic changes when a surcharge on income tax had been established and as the Company stated then it granted the increase to compensate the employees for loss of take-home wages. The program adopted here is somewhat parallel as a special raise at the end of a price and wage freeze when prices generally were going up. It is a strong possibility that, if Respondent had withheld the granting of these wages, the Union would have had a justifiable claim that the Company was penalizing the unit employees by not giving them a companywide wage increase and that such action could have been held to violate the Act. General Counsel's brief appears to fault Respondent for granting the raises prior to the June 22 election when under the terms of the corporate directive the divisions were to accomplish the raises within 60 days. The Union's brief conversely states that the Company took too much time in granting the raises following the authorization. Both the General Counsel and the Union in their briefs assert that the interviews were devices to ascertain the union sympathies of the employees and as such violate Section 8(a)(1) of the Act. However , no such allegation is in the complaint and no such contention was made at the trial of this matter . Based on Respondent's prior practice in giving wages in this individual manner, I would not find the present practice violative of the Act. FMC CORPORATION 479 In summary the evidence shows that the corporation planned the wage increase for thousands of employees prior to receiving knowledge of the Union's interest in organizing some 250 employees in two facilities. The Company took no measures to punish or reward the employees because of any such organizing activities and there is a paucity of any evidence to demonstrate animus. General Counsel's brief asserts that Respondent should explain why the increases were put into effect at the midpoint of the 60-day period within which Respondent stated it wished the raises effected . Respondent asked its divisions to respond in 2 to 3 weeks concerning its plans and to effect them as soon as possible within the 60 days. Again, to delay such raises could have given rise to charges of unfair treatment too. The fact is that Respondent's action here paralleled its 1968 action in giving a midyear raise and it appears that the intent and purpose of its act were proper and correct business judgments, unconnected to a union campaign. Considering the full scope of the situation , I cannot find that the wage raises granted to the employees in this production and maintenance unit were, in the words of the complaint, granted "in order to discourage membership in, and support of the Union," and violative of the Act. 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. Accordingly, I will recommend that the complaint be dismissed. 111. OBJECTIONS TO THE ELECTION Since the objections to the election rest on the same basis as the complaint allegation, it follows that I cannot find that the objections to the election should be sustained, since it is impossible for me to find that the wage raise plan was concocted and set in motion or had the purpose or effect of inhibiting or discouraging membership or support of the Union. Therefore, the objections to the election should be overruled and I so recommend to the Board. Upon the basis of the foregoing findings, conclusions of law, and the entire record, I hereby issue the following recommended: ORDER2 The complaint and charge in this matter are hereby dismissed and it is recommended that the objections to the election be overruled and in accordance with the revised tally of ballots issued on September 9, 1974, that a certification issue that the Union has not received a majority of the valid ballots. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.