Monier Roof Tiles

MONIER ROOF TILES 703 Monier Roof Tiles and Cement, Quarry Workers, Ready Mix & Dump Truck Drivers, Local 681, International Brotherhood of Teamsters, Peti- tioner. Case 37-RC-2513 May 22, 1980 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO 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 objections to an elec- tion held on December 18, 1979,1 and the Acting Regional Director's report recommending disposi- tion of same. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Acting Regional Director's findings and recommendations. 2 l The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election The tally was: 29 for, and 7 against, the Pe- titioner; there was I challenged ballot, an insufficient number to affect the results. 2 The Employer has withdrawn its Objections I through 5, but excepts to the Acting Regional Director's recommendation that its Objections 6 through 9 be overruled and the Petitioner certified. With regard to Ob- jections 6 and 7, which the Regional Director recommended be over- ruled for lack of evidence, the Employer contends that it did not provide evidence in support of its objections because it was misled by Subregion 37's representation that the election would be set aside on the basis of its Objections 8 and 9. We find the Employer's contention without merit. The record reveals that the subject of Objections 8 and 9 was a union handbill which on one side contained a reproduction of the Board's offi- cial "Rights of Employees" notice After the Employer timely filed its nine objections, the Subregion notified the Employer that its evidence in support of objections must be submitted by January 2, 1980. Pursuant to requests from the Employer's attorney, this deadline was subsequently ex- tended to January 4 and then January 8. Prior to the deadline, the Subre- gion notified the Employer that the Petitioner had stipulated to set the election aside based on the document which was the subject of Objec- tions 8 and 9. By letter dated January 4, the Subregion forwarded copies of the proposed stipulation to the Employer's attorney and the Petition. er's president. The stipulation stated, inter alia, that the parties agreed that the Employer's objections raised substantial and material issues with respect to the election; that the election would be considered a nullity and the results set aside; and that a new election would be conducted at a time and place determined by the Regional Director. The Employer's at- torney, however, rejected the proposed settlement on January 7 and con- firmed its rejection by letter dated January 8 to the Subregion. By its re- jection of the proposed settlement, the Employer accepted submission of its objections to the Regional Director. Thus, it was the Employer's duty to present its evidence in support of objections by the mandated deadline. The Employer neither did so nor requested an extension of time in order to comply. Under these circumstances, we find no merit in the Employ- er's contention that the Region abused its discretion. We particularly reject the Employer's argument that the Region's "misrepresentation" ef- fectively prevented the Employer from presenting its evidence In our opinion, the Region in no manner prevented the Employer from present- ing its evidence Rather, it was incumbent upon the Employer to present that evidence at the time it rejected the proposed settlement. That the Employer failed to do so is in no way chargeable to the Board, the Region, or the Subregion. In any event, we find that to date the Employ- er has not met its burden to supply "specific evidence . which prima facie would warrant setting aside the election." The Howard Johnson Company, d/b/a Howard Johnson Distribution Center, 242 NLRB No 183 (1979). Accordingly, we shall adopt the Acting Regional Director's rec- 249 NLRB No. 92 CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Cement, Quarry Work- ers, Ready Mix & DumpTruck Drivers, Local 681, International Brotherhood of Teamsters, and that, pursuant to Section 9(a) of the National Labor Re- lations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment: All production and maintenance employees employed on the Island of Oahu, Hawaii; ex- cluding office clerical employees, professional employees, salesmen, guards, and supervisors as defined in the National Labor Relations Act, as amended, and installers. CHAIRMAN FANNING, dissenting: For reasons set forth in Rebmar, Inc., 173 NLRB 1434 (1968), as well as my dissenting opinions in Alyeska Pipeline Service Company, 236 NLRB 1082 (1978), and Hall-Brooks Hospital, A Division of Hall- Brooks Foundation, Inc., 244 NLRB No. 91 (1979), I would set the election aside in this case, based on Employer's Objections 8 and 9. ommendation that the Employer's Objections 6 and 7 be overruled. With regard to Objections 8 and 9, we agree with the Acting Regional Direc- tor's finding in his Report on Objections and Recommendations, the per- tinent portion of which is attached hereto and marked "Appendix." that the campaign document in issue did not compromise the Board's neutral- ity or give the impression that the Board endorsed any particular choice in the election. See Alyeska Pipeline Senilce Company, 236 NLRB 1082 (1978); Monmouth Medical Center, 234 NLRB 328 (1978). Therefore, we adopt the Acting Regional Director's recommendation that Objections 8 and 9 be overruled. APPENDIX Objections 8 and 9 Independently it came to the Region's attention that on the day before the election Petitioner passed out to employees a handbill (Ex. A to this report), which on one side reproduced that portion of the Board's election notice entitled "Rights of Employees," complete with the Board's seal and name. Added to that side of the handbill was a line drawn across the bottom of the page and below that the handprinted statement: Vote Team- sters-Vote Yes. The other side of the handbill contained pro-union election propaganda which clearly identified Petitioner as the source of the handbill, giving its name, address and the name of its principle [sic] officer. The Board has long had a policy of prohibiting repro- duction of its official documents when coupled with par- tisan messages, where the combination is capable of being interpreted by employees as an endorsement by the MONIER ROOF TILES 703 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board of one of the parties to the election.' In Rebmar, Inc., 173 NLRB 1434, the Board found objectionable re- production of that portion of the election notice entitled "Rights of Employees" coupled with union propaganda. There was no identification of the petitioner on the handbill. In the instant case, however, Petitioner is clearly des- ignated as the source of the union propaganda on one side of the handbill. The handprinted statement at the bottom of the other side containing the "Rights of Em- ployees" portion of the election notice could not reason- ably be construed by employees as a part of the Board's I Allied Electric Products, Inc., 109 NLRB 1270, Columbia Tanning Cor. poration, 238 NLRB No 899. publication, but is clearly identifiable as a partisan state- ment of Petitioner. Further, the last full sentence of the reproduced Board document states "The National Labor Relations Board as an agency of the United States Gov- ernment does not endorse any choice in the election." For these reasons I conclude that the document in issue did not compromise the Board's neutrality or give the impression of Board endorsement of Petitioner and I rec- ommend that objections 8 and 9 be overruled. 2 2 Hall-Brooke Hospital, A Division of Hall-Brooke Foundation, Inc.. 244 NLRB No. 91; Alyeska Pipeline Service Company, 236 NLRB 1082: Mon- mouth Medical Center, 234 NLRH 328, reversed and remanded to the Board on other grounds Monmouth Center v. N.L.R.B. (3d Cir. 1979) 604 F.2d 820.