Van Camp Seafood Co.

VAN CAMP SEAFOOD COMPANY Van Camp Seafood Company, A Disision of Ralston Purina Company and United Cannery & Industrial Workers of the Pacific, affiliated with the Seafarers' International Union of North America. AFI,-CIO. Petitioner. Case 21 RC 15796 June 28. 1979 DECISION AND ORDER BY CHIAIRMAN FANNIN(; AND) MEMHIRS JNKINS ANI PNH II() Pursuant to authority granted it by the National Labor Relations Board under Section 3(h) of the Na- tional Labor Relations Act. as amended, a three- .member panel has considered objections to an elec- tion' held on February 8. 1979. and the Regional Di- rector's Report on Objections and order directing hearing. The Board has reviewed the record in light of Employer's exceptions and the Petitioner's answer thereto, and hereby adopts the Regional Director's findings and recommendations. as modified herein. On February 14. 1979. the Employer filed timely objections to conduct affecting the election. alleging. inter alia, electioneering near the polling area, threats by agents of the Petitioner against employees. and a failure by the Region to provide ballots written in the native language of the Employer's Filipino and Por- tuguese employees. In addition, the Employer in- cluded in final Objection 7 that "[tihe above incidents occurred during the weeks and days immediately pre- ceding the election." Thereafter. the Regional Direc- tor caused an investigation of the objections to be conducted and on April 6, 1979, issued and served on the parties his Report on Objections and Order Di- recting Hearing. In his report. the Regional Director overruled all of the Employer's objections, except Ob- jections 2. 3, and 4. which related to alleged threats against employees by the Petitioner's agents. and di- rected a hearing to resolve these three objections. In overruling Objection 7, the Regional Director noted that, when, after the time for filing objections had expired, the Employer submitted evidence in sup- port of its timely filed objections, it also submitted evidence of an alleged unlawful waiver of dues and initiation fees.2 See N. L. R. B. v. Savair Manufacturing I The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tallN was 814 for, and 769 against, the Peti- tioner: there were 31 challenged ballots. a number insufficient to affect the results. Additionally. there were 26 void ballots 2 This evidence apparently consisted of statements of employees that the) were told by persons indenlifing themselves as union representatives that "those who didn't turn in cards would have to pay initiation lees and those who did turn in one didn't have to pas the fees " However. the Emplo)er did not attach this evidence to its exceptions Co., 414 U.S. 270 (1973). The Regional Director de- clined to consider this evidence, however, because none of the Employer's timely filed objections men- tioned or related to a possible Savair violation. The Regional Director concluded the Employer's attempt to raise this matter after the time for filing objections had expired was untimely under the National Labor Relations Board Rules and Regulations. Series 8. as amended. The Employer excepts only to the Regional D)irec- tor's failure to consider. and subsequent refusal to re- fer to the hearing on Objections 2 3, and 4, the prof- fered evidence regarding a possible Saivair violation. It contends. inter alia. that the Regional Director's refusal to consider evidence of possible objectionable conduct solely because such conduct was not specifi- call5 alleged in an objection was arbitrary capricious. and contrary to long-settled Board policy. See. e.g.. National Electric Coil Division, l(cGrav -Edison Comn- pan' 184 N.RB 691 (1970): Thomasll Productvr Co., Division of Thomas Industrie.s Inc(.. 169 NlRB 706 (1968). We agree. As this Board recently reaffirmed, our policy "per- mits a Regional Director to set aside an election based on conduct which he has discovered during his investigation. even though that particular conduct had not been the subject of a specific objection." ,4American Sa/et' Equipment (Corporation. 234 NLRB 501 (1978)}: see also DalIon ire 02 Rhher Co., 234 NLRB 504 (1978). Administration of this policy obvi- ously depends in large part upon the exercise of dis- cretion by the Regional Director in determining the scope of his or her investigation of a party's objec- tions. Thus, a Regional Director may or may not choose to expand the scope of the investigation to include matters not specifically contained in the ob- jections. However, regardless of whether the Regional Director has chosen to restrict the investigation to the four corners of the objections or to expand it to other matters. "if he receitves or disco ers eidene h(ring hi.s investigation that shows that the election has been tainted, lie he has no discretion to ignore such evidence and it is reversible error f he ails to set aside the the election. " (Emphasis supplied.) American Safetv Equipment Corporation, supra. Here, the Regional Director was supplied with evi- dence which, if credited, indicates that employees were told by persons identifying themselves as union representatives that "[tJhose who didn't turn in cards would have to pay initiation fees and those who did turn one in didn't have to pay the fees." This state- ment, if made and if fairly attributable to the Peti- tioner. is susceptible of an interpretation. in the cir- cumstances of the solicitation of authorization cards. that persons needed to sign cards before the election in order to receive the benefit of a waiver of initiation 243 NI.RB No. 31 165 DE('ISIONS OF NATIONAL. I.ABOR RELATIONS BOARD fees. Therefore, we believe there is a substantial and material issue of fact which could only be resolved after a hearing. See Eurasian Automotnoite Products, 234 NLRB 1049 (1978). To ignore such evidence, as did the Regional Director. simply because it did not relate to a specific objection "would make a mockery of our pledge to preserve employee rights to a fair election." American Sqftbv Equipment Corporation. .su- pra. Accordingly, we shall order the hearing directed previously by the Regional Director. regarding Ob- jections 2. 3, and 4, be expanded to permit consider- ation of the Employer's evidence of a possible Sayviar violation. 3 I For the reasons set forth in his dissenting pinion in Dayrton ire & Rubber (o., upra, Member Penello would not remand for a hearing on the ORDER It is hereby ordered that the Enmployer's Objections I. 5 6. and 7 be. and they hereby are, overruled. I is FURFllR ORDI)ERI) that the hearing previously directed by the Regional Director he expanded to permit the Employer to present evidence of a possibl) objectionable offer by the Petitioner to waive dues and initiation ees. Sanir issue because tl Aas not speciicaills set lo)th in a limek tiled wsritten objection. 166