Freeport Gas Coal Co.

FREEPORT GAS COAL COMPANY 949 whether or not concurred in by the Employer's counsel, was within the Regional Director's discretion.2 The objections are hereby over- ruled. IT IS HEREBY ORDERED that the challenges to the ballots of the em- ployees named below be, and they hereby are, overruled; and IT IS HEREBY ORDERED that as part of the investigation to ascertain representatives for the purposes of collective bargaining with Grin- nell Brothers, Flint, Michigan, among the employees in the unit set forth in paragraph numbered 4 of the Decision and Direction of Elec- tion issued by the Board on February 8, 1952, the Regional Director for the Region in which this case was heard shall, pursuant to Na- tional Labor Relations Board Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Margaret Wagner, Josephine Vinyard, Ruhla Harris, George D. Gosdin, Irvin Collins, Suzanne Tallman, Mary Labert, and Harold Bradt, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said challenged ballots. CHAIRMAN HERZOG and MEMBER PETERSON took no part in the con- sideration of the above Supplemental Decision and Order. 2 University Metal Products Co., Inc., 98 NLRB 1194. FREEPORT GAS COAL COMPANY and LOCAL No. 18, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, PETITIONER . Case No. 8-RC-1445. June 25,1952 Supplemental Decision and Order Pursuant to the Decision and Direction of Election issued by the Board in the above-entitled case on December 26, 1951, an election was conducted by the Regional Director for the Eighth Region on January 17, 1952, among employees in the appropriate unit. A tally of ballots issued to the parties on January 17, 1952, showed the results of the election as follows : Approximate number of eligible voters---------------------------- 42 Void ballots----------------------------------------------------- 0 Votes cast for Local 18, International Union of Operating Engi- neers, AFL--------------------------------- Votes cast against participating labor organization---------------- 21 Valid votes counted---------------------------------------------- 42 Challenged ballots------------------------------------------------ 0 On Monday, January 21, 1952, the Regional Director received from the Petitioner a telegram, dated Saturday, January 19, 1952, which read as follows : 99 NLRB No. 142. 215233-53-61 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Re (sic) advised undersigned union herewith files its objections to the election conducted by your office on January 17th 1952 at the Freeport Gas Coal Company Coshocton Ohio Case No. 4 RC 1445 (sic) Statement follows by mail No copy of this telegram was served on the Employer. On January 23, 1952, the Regional Director received from the Petitioner a letter dated January 21, 1952, reading as follows : We predicate our objections upon the following facts: (1) During the week prior to the election and before, the super- intendent of the mine, Fred Barth, interviewed each and every employee in the appropriate unit individually and collectively and in unequivocal terms stated : "If you men vote for the Union and the Union wins the election, the Company will close the mine and move to West Virginia. (2) The days preceding the election, the secretary of the Com- pany, Tom Jenkins, called upon some of the employees and re- peated the statements previously made by Barth. The Petitioner did not serve any copy of this letter on the Employer. The Regional Director assigned a field examiner to investigate the objections. On March 31, 1952, the Regional Director served on the parties his report on objections, finding that on February 13 and February 29, 1952, a field examiner, assigned to investigate the objections, orally advised General Superintendent Barth and President Downing, re- spectively, of the fact that objections had been filed; that on March 4, 1952, the field examiner gave a copy of the Petitioner's letter of January 21, 1952, to the Employer's attorney; and that no prejudice resulted to the Employer because of the Petitioner's failure to serve the Em- ployer promptly with a copy of its objections. The Regional Director further found that the Employer was given ample opportunity to present evidence on the issues and recommended that the objections should be considered by the Board despite the failure of the Petitioner to comply with the Rules and Regulations of the Board with respect to service of objections. The Regional Director, thus disposing of the procedural issue, found that there was merit in the Petitioner's objec- tions and recommended that the objections be sustained and the elec- tion set aside. On April 24,1952, the Employer filed its exceptions to the Regional Director's report, denying that it had been orally apprised by the field examiner of the Petitioner's objections to the conduct of the 'election on February 13 and 29, 1952, respectively, as found by the Regional Director; admitting that on March 4, 1952, at a conference FREEPORT GAS COAL COMPANY 951 called by the field examiner approximately 7 weeks after the election, the Board's field examiner served the Employer's attorney with a copy of the objections in response to his question as to why the conference was being held and why officials of the Employer had been questioned; and alleging that failure to receive timely notice of ob- jections filed resulted in prejudice to the Employer, specifically that persons involved in the alleged interference had left its employ and their whereabouts were unknown. The Petitioner filed no exceptions to the Regional Director's report. Section 102.61 of the published Rules and Regulations of the Board requires that, within 5 days after the tally of ballots has been furnished, any party may file with the Regional Director objections to the conduct of the election or conduct affecting the results of the election, which shall contain a short statement of the reasons therefor; and that copy of such objections shall immediately be served on each of the other parties by the party filing them, and proof of service made. Admittedly, the Petitioner did not serve upon the Employer either its telegram of January 19, 1952, setting forth the fact of its objections, to the election, nor its letter of January 21 setting forth specifically the basis of its objections.' The Regional Director, however, found that a field examiner of the Board orally advised certain officials of the Employer on February 13 and February 29, 4 weeks and more after the election had been held, of the fact that objections had been filed but did not disclose the basis therefor. The Employer denies that such oral notice was given. Whether or not such notice was given does not constitute compliance with the Board's rule of immediate service. It is undisputed that on March 4, 1952, approximately 7 weeks after the election, the field examiner at a preliminary conference called by him gave a copy of the Petitioner's objections to the Employer's attorney who questioned the reasons for the conference, and that no written notice of any kind had been sent to the Employer before. We are satisfied that the Petitioner did not follow the fundamental procedure essential to fairness, as set down in our Rules and Regulations, and we shall not consider the objections.2 As the Petitioner failed to win a majority of the valid votes cast in the election, we shall dismiss the petition. 'In this respect, the instant case is clearly controlled on its facts by National Carbon Company, Division of Union Carbide and Carbon Corporation, 99 NLRB 774, and becomes an a fortiori case for not considering Petitioner's objections . Although Member Styles who dissented in the National Carbon case deems himself bound by the majority opinion therein , he does in any event agree with the result reached in this case because no form of objections was timely served upon the Employer. 2 In the total absence of any compliance with service requirements set down in the Board's Rules and Regulations, we find that the objections should not have been considered by the Regional Director . It is unnecessary to decide whether the Employer was, in fact, prejudiced by the long delay in service, as such showing is irrelevant to the issue of procedural fairness. R and R News Company, 92 NLRB 1134. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order IT IS HEREBY ORDERED that the petition herein be, and it hereby is, 'dismissed. MEMBERS HOUSTON and MURDOCH took no part in the consideration of the above Supplemental Decision and Order. BETHLEHEM STEEL COMPANY, SHIPBUILDING DIVISION and AMERICAN FEDERATION OF TECHNICAL ENGINEERS , AMERICAN FEDERATION OF LABOR, PETITIONER. Case No. 1-RC-2677. June 25, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Leo J. Halloran, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed: Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of-Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner was certified in 19512 as the bargaining agent of a unit of draftsmen at the Employer's Quincy, Massachusetts, ship- yard .3 In the instant case it seeks to add to that unit all draftsmen apprentices employed at the Quincy shipyard by severing them from the contract unit now represented by the Intervenor 4 The Intervenor opposes severance on the basis of the pattern of multiplant bargaining described below. The Employer takes the position that all categories of apprentices at the Quincy shipyard should be represented by one union. The Board has already found that the draftsmen at the Quincy yard comprise a highly skilled, well defined, and homogeneous unit of 1 The Industrial Union of Marine and Shipbuilding Workers of America, CIO, was per- mitted to intervene on the basis of its contractual interest. 2 The Petitioner's name at that time was the International Federation of Technical Engineers , Architects and Draftsmen's Union, AFL. 'Bethlehem Steel Company, 95 NLRB 1508 4 The Petitioner indicates that it did not request the inclusion of the draftsmen apprentices in 1951 because it regarded the Intervenor's contract covering them as constituting a bar at that time. However, no contention is now made that the contract is a bar to the instant proceeding. 99 NLRB No. 136.