Miami-Dickerson Steel Co.

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miami-Dickerson Steel Company and Teamsters Local Union No 957, a/w The International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner Case 9-RC-14362 18 September 1984 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The National Labor Relations Board, by a three- member panel, has considered objections to an election held 18 November 1983 1 and the hearing officer's report recommending disposition of them The election was conducted pursuant to a Stipulat- ed Election Agreement The revised tally of ballots shows six votes for and seven against the Petition- er, with no challenged ballots 2 The Board has reviewed the record in light of the Employer's exceptions and brief and has adopt- ed in the absence of exceptions the hearing officer's findings and recommendations regarding Objec- tions 1 and 2 However, for the reasons which follow, we find no merit in Objection 3 and we overrule the objections in their entirety and certify the results of the election With respect to Objection 3, the record reveals that 2 weeks before the election the Employer's president William Pannger read a speech to em- ployees in the voting unit In pertinent part, Par- Inger stated Secondly, our salaries have been frozen for the last two years and probably will be for some time to come in light of the economy and sad condition of the steel business We know how you feel when you indicated that you would like to have a wage increase The records show that the hourly employees here have received annual wage adjustments as fol- lows July 18, 1977 July 10, 1978 May 9, 1979 June 1, 1980 June 1, 1981 October 4, 1982 As you can clearly see we have kept faith with you year after year The economy 1 All dates refer to 1983 2 The initial tally of ballots revealed that of 13 eligible voters, 6 cast ballots for and 5 cast ballots against the Petitioner Pursuant to an agree ment reached between the Petitioner and the Employer and approved by the Regional Director, two ballots challenged by the Petitioner were opened and counted forced us to hold up until October 4th last year and as you all know the IBT filed a peti- tion this year on September 26th We hope that you will give us your support on Novem- ber 18th and VOTE NO Let's get on with our business and work together as a team to make this an even better place to work ! I I The hearing officer found that Pannger's speech placed the onus for the Employer's denial of a wage increase that fall on the Petitioner He fur- ther found that the statement was an attempt to in- fluence the outcome of the election, and that as such it constituted objectionable conduct which warranted setting aside the election In reaching these findings, the hearing officer noted that, al- though the Employer had not decided to grant a raise in October before the petition was filed, it had fixed early October as being the time when it would decide whether to grant a wage increase Contrary to the hearing officer, we conclude that Pannger's reference to the filing of the peti- tion in these circumstances does not warrant a find- ing of objectionable conduct We note that the ob- jected-to portion of Pannger's speech was preced- ed by references to adverse economic conditions which caused a 2-year freeze in salaries of those outside the voting unit which he noted would probably continue into the indefinite future Such conditions were also cited as the cause of a post- ponement in wage adjustments in 1982 These state- ments comport with the Employer's earlier state- ments to employees in June 1983—well before the advent of any organizing activity—that increases could not be considered at that time or for as long as unfavorable economic conditions continued Pannger did not state that the Employer was re- fusing to increase wages or to consider such in- creases because of the petition, and he did not con- dition consideration of or granting of increases on the outcome of the election While the Employer admitted at the hearing that the filing of the peti- tion weighed in its decision not to consider in- creases in October, there is no evidence that em- ployees were told or anticipated that the Employer would consider increases in October In these cir- cumstances the Employer contends that granting wage increases would have been unlawful because the timing of wage adjustments in prior years did not evidence a clear pattern and practice of grant- ing the increases Thus, although the hearing officer correctly pointed out that the Board has held that withhold- ing an increase in order to avoid violating the law is a violation where it would have been granted but for the union's presence, we note that in the 272 NLRB No 22 MIAMI-DICKERSON STEEL CO 111 cases he cited the increases had been announced,3 were part of an objectively apparent pattern of in- crease' or employees were told definitively that the Union was the cause for their not receiving an increase 5 In our view this case is factually distin- guishable from these cases relied on by the hearing officer Although the Employer did state that in the current year the Petitioner had filed an election petition, all references to frozen or delayed wage and salary increases were tied directly to economic considerations The Employer never promised an increase and there is no clearly discernible pattern of increases in October such as would cause us to find the Em- ployer deviated from the status quo, 6 and the Em- ployer never explicitly blamed the employees' or- ganizing effort for its failure to consider increases 3 Standard Brands Inc , 230 NLRB 1205 (1977) 4 Otis Hospital 222 NLRB 402 (1976) 5 Florida Steel Corp, 220 NLRB 260 (1975) a It appears that any pattern which may have developed earlier was disrupted by events in 1982 but rather relied on business considerations There- fore, we find that the Employer's action had no in- fluence on the outcome of the election According- ly, we overrule Objection 3 7 Further, having found no conduct which interfered with the em- ployees' expression of free choice in the election, we shall certify the election results CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for Teamsters Local Union No 957, a/w The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and that it is not the exclusive repre- sentative of these bargaining unit employees 7 For the reasons set forth by the Hearing Officer, Member Zimmer man would sustain Objection 3 He would therefore find that the Em ployer engaged in objectionable conduct by leading its employees to be lieve that the postponement of a wage increase provided on an annual basis was caused by the presence of the Union s petition for representa tton On that basis, the election should be set aside and a new election directed