Arthur Fulmer of Mississippi, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1974

212 N.L.R.B. 732 (N.L.R.B. 1974)

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.