Operative Plasterers' and Cement Finishers', Etc.

OPERATIVE PLASTERERS' AND CEMENT FINISHERS', ETC. 463 fusal in the course of their employment to perform any services for their em- ployers, where an object thereof is to force or require any employer or person to'cease doing business with Pittsburgh Plate Glass Company. BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPER- HANGERS OF AMERICA, LOCAL No. 193, AND DIS- TRICT COUNCIL No. 38 OF BROTHERHOOD OF PAINT- ERS, DECORATORS, AND PAPERHANGERS OF AMERICA, AFFILIATED WITH A F. OF L., Labor Organization. Dated---------------- By---------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. OPERATIVE PLASTERERS' AND CEMENT FINISHERS' INTERNATIONAL AS- SOCIATION, LOCAL 555, AFL and LEE E. PARKER. Case No. 36-CB- 90. October 25,1954 Decision and Order On June 8, 1954, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate'Report, the exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions,' and recommendations.a Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Operative Plasterers' and Cement Finishers' International Association , Local 555, AFL, its officers, representatives , agents, successors , and assigns, shall: 'We find, as did the Trial Examiner, that Respondent unlawfully prompted the dis- crimination against employee Lee it Parker. However, in reaching this conclusion, we deem it unnecessary to pass upon the existence of an illegal "tacit undeistanding" between Respondent and Teller Construction Co 2 We shall, without passing upon the propriety of the Trial Examinei 's recommended order, substitute therefor the Board's usual older in this type case. See, e. g, Local 257„ Brotherhood of Painters, Decorators aoid Paperhangers of America, etc, 109 NLRB 821. 110 NLRB No. 79. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Causing or attempting to cause Teller Construction Co., its officers, agents, successors, or assigns, or any other employer, in viola- tion of Section 8 (a) (3) of the Act, to discriminate in regard to the hire and tenure of employment or any term or condition of employ- ment of Lee E. Parker, or any other employee, because lie is not a member of the Respondent. (b) In any other manner restraining or coercing employees of Teller Construction Co., its successors or assigns, or of any other eln- ployer, in the exercise of their right to engage in, or to refrain from engaging in, concerted activities, as guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Notify Lee E. Parker and Teller Construction Co., in writing, that it has no objection to the employment of Lee E. Parker as a cement finisher if, as, and when the said Teller Construction Co. may have work within the territorial jurisdiction of the Respondent. (b) Make Lee E. Parker whole for any loss he may have sustained as a result of the discrimination against him in the manner set forth in the Intermediate Report. (c) Post at its business offices and meeting halls in Portland, Ore- gon, copies of the notice attached to the Intermediate Report and marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after having been duly signed by an official representative of the Respondent, be posted by it immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Nineteenth Region signed copies of the above notice, for posting, the Company willing, at the place of business and construction projects of Teller Construc- tion Co., in places where notices to its employees are customarily posted. (e) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. s This notice shall be modified by substituting the words "A Decision and Order" for the words "The Recommendations of a Trial Examiner ." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." OPERATIVE PLASTERERS' AND CEMENT FINISHERS', ETC. 465 Intermediate Report and Recommended Order STATEMENT OF THE CASE Lee E. Parker, an individual, hereinafter called Parker, filed a charge on October 12, 1953, against Operative Plasterers' and Cement Finishers' International Asso- ciation, Local 555, AFL, herein called the Respondent, on the basis of which charge a complaint was duly issued alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, charge, and notice of hearing were duly served on the Respondent and Parker. In substance the complaint, issued January 26, 1954, alleged that on or about July 1, 1953, the Respondent caused Parker's employer, Teller Construction Co., herein called Teller, to change Parker's employment from the job of cement finisher to that of laborer because Parker was not a member of the Respondent and for reasons other than his failure to tender periodic dues and initiation fees, thereby causing Teller to discriminate against Parker in regard to hire and tenure of employment and to encourage membership in the Respondent in violation of Section 8 (a) (3) of the Act; and that the Respondent restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. The Respondent's answer, dated Feb- ruary 13, 1954, denied the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held at Portland, Oregon, on February 15 and 16, 1954, before me as the duly designated Trial Examiner. The General Counsel for the National Labor Relations Board (the latter being herein called the Board) and the Respondent were represented by counsel, and counsel for Teller appeared as an observer. The parties were afforded full opportunity to examine and cross- examine witnesses and to introduce relevant evidence. At the conclusion of the General Counsel's case, Respondent's counsel moved to dismiss the complaint on grounds of commerce as well as on the merits. The motion was denied. At the conclusion of the hearing, the Respondent renewed its motion to dismiss and ruling was reserved thereon. It is now denied. Oral argument was waived by the parties but, on request, a date was fixed for the filing of briefs. A brief was filed only by the Respondent. From my observation of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF TELLER Teller is a partnership formed in 1940 and having its principal place of business in Portland, Oregon. It is engaged in the construction of various types of commer- cial structures. During 1953, it engaged in such business in the States of Oregon, Washington, California, and Montana. During that period it was performing work on fish hatcheries in the State of Washington for Federal Fish and Wild Life under two contracts with the United States, for a combined sum of $110,000.1 Likewise in that period, it performed repair and construction work for the Standard Oil Com- pany of California, at various locations in the State of Washington, having a value of from $10,000 to $15,000. In Montana, in 1953, Teller constructed a concrete spill- way for Federal Fish and Wild Life having a value of about $30,000. In California, in 1953, Teller constructed a station for the Standard Oil Company having a value of about $10,000. In the performance of its out-of-State contracts Teller transported by its own trucks from Oregon tools and such supplies as bolts, nails, and forms, having a value of about $5,000, and it caused to be shipped in interstate commerce to jobs in the State of Washington about $5,000 worth of reinforcing steel and to Mon- tana about $1,000 worth of reinforcing steel. Most of the lumber and cement used were purchased near the location of the work and certain equipment was hired lo- cally on an hourly basis. Laborers for the work would be hired locally except for the foreman and on some jobs a cement finisher, and 1 or 2 others who were specialists in their work. During 1953 Teller performed construction work in the State of Oregon for the Standard Oil Company of California, having a value of $400,000; for the Oregon State Highway Commission, having a value of $80,000; for the Union Pacific Rail- 'One contract, for $50,000, was half completed in 1952 and was finished in 1953. A $60.000 contract was performed entirely in 1953. 338207-55-vol 110-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD road, having a value of $75,000; and smaller contracts with the Shell Oil Company and Signal Oil Companies , having a combined value of $25,000. The Respondent denies that Teller is engaged in commerce within the meaning of the Act. On all the evidence, however, I find that the activities of Teller do sub- stantially affect interstate commerce and that it would effectuate the policies of the Act to assume jurisdiction in this case.2 IL THE LABOR ORGANIZATION INVOLVED The Respondent admits that it is a labor organization as defined in the Act. It admits to membership cement finishers , some of whom Teller employs. III. 1HE UNFAIR LABOR PRACTICES The Discrimination Caused by Respondent 1. Parker's employment history Lee E. Parker sad been a member of the Respondent until, in 1951, he was ex- pelled. Parker had first worked for Teller as a cement finisher in 1950 and had thereafter been used by Teller on various jobs in the same capacity. Teller had always found his work to be satisfactory. In the latter part of May 1953, Parker telephoned Theodore Johnson, one of the partners in Teller, and asked for a job as cement finisher. Johnson asked Parker if he was "straight" with the Respondent yet. Parker replied that he was as straight as he ever would be. Johnson, knowing that Parker was not then a member of the Respondent, told Parker he would call him back in a couple of days. Parker said he needed work immediately and that he was not above doing a laborer's work. Johnson asked if he could get a laborer's card (i. e., membership card in the Laborers' union). Parker said he thought he could, and Johnson told him to come in the next morning. Parker was employed by Teller on May 27, 1953, as a laborer. After working on several projects as a laborer, he was put on the Stand- ard Oil office building project. Parker told Willis Saucerman, the foreman on the job, that he was a cement finisher working as a laborer. Saucerman told Parker that there was no finishing to be done at that time but that Parker would be put on that work when they started stripping (removing forms after concrete had set). About July 1, Parker was given work normally done by cement finishers. Most of the work he did during the remainder of his time on that project was on grinding, an abrasive process by means of a power tool to remove the roughness left on the surface of the hardened cement after the forms are removed. Although this is classi- fied by the American Federation of Labor as a cement finisher's work as distin- guished from a laborer's work, the cement finishers find it a disagreeable type of work because of the dust created, which can be injurious to health, and when they do the work they normally rotate on it. Teller was using laborers on this work during July 1953. It is not entirely clear whether Teller used these laborers on the grinding work because of a belief that it was a laborer's work or because of a shortage of cement finishers. Of the laborers doing grinding work only Parker received pay at the cement finisher's rate of $2.60. The laborer's rate was $2 or $2.10, but some laborers were given 25 cents more while on grinding. Johnson explained Parker's receipt of the cement finisher's rate by saying that it was a pre- mium rate for laborers: "He [Parker] put it down on his time slip, and we thought he was earning it. So, we paid it." Foreman Willis Saucerman testified that Parker got a higher rate because he was more experienced on that work than the others. Although deeming Parker qualified as a cement finisher, Johnson testified that he did not classify Parker as a cement finisher because he did not have a membership card in the Respondent. But before an objection raised by the Respondent, as here- inafter related, Teller did give Parker such cement finishing work as was available. In the summer of 1953, cement finishers were in short supply, and Teller had a standing order in with the Respondent for men When the Respondent was unable to supply men, it did not object to Teller's use of laborers on cement finishing work, including the grinding job.3 3 Cement Masons Local No 555, 102 NLRB 1408; Paul W. Speer, Inc, 94 NLRB 317. 3 Foreman Saucerman testified that he hired cement finishers only through the Respond- ent, but that when the Respondent was unable to furnish men, the Employer could use laborers, carpenters, steel men, or anybody else on cement finishing. He testified it was "standard practice" to classify a man as a cement finisher only if he was a member of the Respondent. OPERATIV1 PLASTERERS' AND CEMENT FINISHERS', ETC. 467 Toward the latter part of July, as a result of a request by Teller for cement fin- ishers, Carroll Keller, the Respondent's business agent, dispatched two cement fin- ishers named Joe Mangogna and Ed Boone. Keller in his testimony, did not identify the person who telephoned him for finishers. Leo Reichel, finisher foreman,4 had also recently come on this project. Boone and Reichel worked at grinding on either side of Parker for a short while, but Boone was discharged after a few days. Man- gogna continued for a while, but on July 24, 1953, Mangogna and Reichel both became uneasy about working with Parker. Mangogna told Parker that he could not work with him as he knew he would be fined, as Reichel once had been, and that he would rather quit and buck the hall than take a chance on a fine. On a date not fixed but which I find was about Monday, July 27, 1953, Reichel telephoned Keller and, among other things, told Keller that he had had doctor's orders not to run the grinder and asked Keller to issue permits to laborers to do the work. Keller said that he had no authority to issue a permit to anyone unless he was accepted as a member or potential member of the Respondent, that grinding was a cement finisher's work, and that Reichel should use cement finishers on it. He suggested that they should rotate the work so that they would not have to stay on the job too long at a time. At about the same time or perhaps a little before Reichel's conversation with Keller, Mangogna went to the Respondent's hall, told Keller that Parker was on the job, and that he did not think that he, himself, would go back on the job because he thought there would be a little trouble. Keller denied that Mangogna told him what kind of work Parker was doing but he admitted that Mangogna told him that laborers were doing grinding work. Keller told Mangogna not to let laborers do grinding work, that it was a finisher's work, and that they should rotate it. After his telephone conversation with Keller, Reichel told Foreman Saucerman that he had had a telephone conversation with Keller, that grinding was a finisher's work, and that laborers were not to be doing it .5 As a result of this notice Saucer- man, who knew that Parker was not then a member of the Respondent, therefore 6 took him and his brother, who was also a laborer, off the job and told them to go to Teller's shop. When Parker asked why, Saucerman said that there had been a little stink, that Parker should take a broken grinder to the shop for repair and take his brother with him, that Johnson had some finishing for him to do in the shop. Parker asked if the Respondent had anything to do with his being taken off the job. Saucerman answered noncommittally that he could not put himself on a limb and that Johnson had some work in the shop anyway. Parker and his brother arrived at the shop at about 10 a. m. that morning, and when they reported to Johnson, the latter, according to Parker's credited tesimony, laughed and said, "Well, they finally caught up with us, didn't they?" Johnson then assigned them to work at the shop. Parker worked at the shop until the next morning and was paid the finisher's rate of $2.60. Then he was sent to work on a high school building as a labor foreman at the rate of $2.25 per hour. He unsuccessfully applied for work on that project as a cement finisher and quit the job on August 9 as a result of dissatisfaction with his earnings. 2. Concluding findings The Respondent contends that the Union did not attempt to cause discrimination against Parker, that it was interested only in protecting its scale of pay for finishers by asserting its proper jurisdiction over cement grinding, and that its requirement that cement grinding be done by finishers was based merely on job classification and not on union membership; so that Parker's removal from the job was occasioned by the fact that he was a laborer and not on the fact that he was not a member of the Respondent. With respect to the contention that the Respondent was concerned only with seeing that workmen capable of doing cement finishing should receive the scale of pay for such work, I note that laborers were doing the grinding and apparently were doing it to Teller's satisfaction; that Keller made no effort to learn what they were being paid or whether they were sufficiently skilled; and that, without any such investigation, Keller told Mangogna not to let laborers do grinding work, as it was a finisher's work, and told Foreman Reichel that he should use finishers on that work. I find no merit in this contention of the Respondent. 4 See the earlier case involving Parker and Respondent, 102 NLRB 1408, where Reichel, as foreman, played a part in Parker's discharge. 5 On July 29, Johnson telephoned Keller to verify this and Keller confirmed it. 6 Saucerman testified that he does not transfer a man from the classification of laborer to that of cement finisher unless he holds a Cement Finisher's card. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent contends that Keller used the words "laborer" and "finisher" in a generic sense and not as meaning members of one union or another. The evidence does not support this contention. It is true that if the Respondent was unable, on request, to furnish cement finishers, it made no objection to the employment of others for that work. But Keller testified that whoever wanted to do cement finishing would have to make application to join the Respondent; that if cement finishers were available, the Respondent would ask the Employer to have them do the work; and that the Respondent would not furnish men to a contractor who did not live up to the Respondent's rules and regulations. I am convinced and find by this and all the evidence in the case that when Keller told Foreman Reichel that grinding was a cement finisher's work and that Reichel should use cement finishers on that work, he used the term "cement finishers" as synonymous with "member" of the Respondent. The Respondent also contends that no discrimination was intended because the working rules involved in the earlier case 7 were amended and that with the expira- tion of its contract with employers at the end of 1952, the rules became ineffective and that there was no contract and there were no rules in effect in 1953. Keller testified that after the order of the Board in the earlier case, the Respondent told its members not to abide by the rules that "had been held illegal." The date of the Board's order was February 17, 1953. If, in fact, there were no rules in effect in 1953, there would be no reason to give such instructions.8 No notice was given to Teller that the Respondent's rules were not operative in 1953. Johnson apparently assumed that they were. He testified that Teller followed the Respondent's rules as its own but that Teller did not always know what they were until told by the Respondent. Although working rules are apparently designed to supplement a collective- bargaining agreement and, in the absence of a contract in 1953, were not formally in effect during that time, I am convinced by the evidence in this case that certain rules of the Respondent were expected by it to be followed by contractors even in the absence of a collective-bargaining agreement, that among these rules was one that required the contractor to give preference to the Respondent's members, when available for work, on all work characterized as cement finishing, that failure on the part of a contractor to give effect to such rule would result in the Respondent's refusal to honor the contractor's requests for cement finishers when they were needed, and that Teller so understood. It follows that whether or not formal rules were in existence in 1953, the Respondent and Teller had a tacit understanding and maintained conditions of employment giving illegal preferential hiring rights to the Respondent's members .9 The Respondent seems to assume that, because the AFL awarded it "jurisdiction" over cement grinding, it was entitled to require employers to give effect to that award and to require them to employ only cement finishers on cement grinding work. As no employee was recognized by the Respondent or by Teller as a cement finisher unless he was a member of the Respondent, the latter was claiming a preferential right to such work for its members. In the absence of a lawful union-security contract, the Respondent had no right to enforce its jurisdiction over cement grinding.10 As in the earlier case, the Respondent claimed that it had no intention of causing a discharge or change in rate of pay for Parker and that it had frequently informed the membership that they should not refuse to work with Parker." It is immaterial whether or not the Respondent intended to affect the employment status of any specific employee when it insisted that grinding was work to be done by its members, 7 Cement Masons Local No 555, 102 NLRB 1408. 8It may be that Keller confused the Board's order and the Intermediate Report of the Trial Examiner The latter was issued on April 15, 1952 On October 8, 1952, the Respondent revised its rules to omit those which had been discussed in the Intermediate Report. Among the rules which were not mentioned in that Intermediate Report and which reappeared in the revised rules is the following: Sec. 21. All screeds for top surfacing, such as floors, ground floors, curbs and gutters, porch steps and sidewalks must be set by a Cement Mason who is a member of this Local N L R B. v. Construction Specialties Co. and Int'l. Ass'n. of Heat and Frost Insulators and Asbestos Wkrs, Local No 28, A F. L., 208 F. 2d 170 (C. A. 10) 10 South Texas Chapter, Associated General Contractors of America, Inc., 107 NLRB 965. 11 There is reason to believe that these instructions were understood by members of the Respondent to mean that they should not refuse to work on the same construction project with Parker when Parker was not doing finishing work. OPERATIVE PLASTERERS' AND CEMENT FINISHERS', ETC. 469 when available, to the exclusion of others.12 The fact that Teller was amenable to the Respondent's direction is likewise immaterial. Absent the Respondent's insistence that grinding be done by cement finishers and Teller's compliance there- with, Parker would not have been taken off the grinding job on the Standard Oil job and would have been used as a cement finisher so long as there was need for any, which Johnson testified was until November 1953. It follows, therefore, and I find that the Respondent did cause Parker's Employer to discriminate against him because he was not a member of the Respondent and that the Respondent restrained and coerced employees in the exercise of their rights guaranteed in Sec- tion 7 of the Act, in violation of Section 8 (b) (1) (A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Teller described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As it has been found that the Respondent caused Teller to remove Parker dis- criminatorily from cement finishing work in violation of Section 8 (a) (3) of the Act, I shall recommend that the Respondent make Parker whole for any loss of pay he may have suffered because of the discrimination against him. As it appears that cement finishers were employed by Teller until November 1953 on the Standard Oil project, Parker would in all probability have continued on the job until then but for the discrimination against him. He should therefore be reimbursed for loss of pay for that period. The precise termination date in November may be determined in the compliance stage of this proceeding. I shall, accordingly, recommend that the Respondent pay Parker a sum of money equal to the amount he would normally have earned as wages on cement finishing work from July 27, 1953, to the date in November 1953 when cement finishers ceased to be needed on the Standard Oil project. Upon the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Operative Plasterers' and Cement Finishers' International Association, Local 555, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Teller Construction Co. is an Employer within the meaning of Section 2 (2) of the Act. 3. By causing Teller Construction Co. to discriminate in regard to the nature and tenure of employment of Lee E. Parker in violation of Section 8 (a) (3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By restraining and coercing employees employed by Teller Construction Co. in their exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. (Recommendations omitted from publication.] 'a Sub Grade Engineering Compancy, 93 NLRB 406 Appendix NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our members that: WE WILL NOT cause or attempt to cause Teller Construction Co., or any other employer, except in accordance with the provisions of Section 8 (a) (3) 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act, to discriminate in regard to the hire and tenure of employment or any term or condition of employment of Lee E . Parker or of any other em- ployee because he is not a member of this labor organization. WE WILL NOT in any other manner restrain or coerce employees of Teller Construction Co. in the exercise of their right to engage in or to refrain from en- gaging in concerted activities as guaranteed in Section 7 of the Act , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. WE WILL make Lee E. Parker whole for any loss of pay he may have suffered as a result of the discrimination against him. OPERATIVE PLASTERERS' AND CEMENT FINISHERS' INTERNATIONAL ASSOCIATION, LOCAL 555, AFL, Labor Organization. Dated---------------- By------------------------------------ --------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SHIRLINGTON SUPERMARKET , INC., AND ITS SUBSIDIARIES, SHIRLEY FOOD STORE No. 1, INC., SHIRLEY FOOD STORE No. 2, INC., SHIRLEY FOOD STORE No. 5, INC., SHIRLEY FOOD STORE No. 6, INC., AND WEST- MONT SUPERMARKET, INC. and LOCAL 1501 , RETAIL CLERKS INTER- NATIONAL ASSOCIATION, AFL. Case No. 5-CA-775. October 25, 1954 Order Denying Motion for Review On July 19, 1954, the Board issued an Order herein denying the Respondent's motion for reconsideration of the Board's Decision and Order dated April 29, 1954. On August 6, 1954, the Respondent filed a motion for review of the Board's Order denying the motion for reconsideration. In its motion for reconsideration, the Respondent contended, inter alia, that the second election held among the Respondent's employees I was conducted after speeches by both the Respondent and the Union on company time to massed assemblies of employees within 24 hours of the election, and therefore that that election should be set aside under the Peerless Plywood rule? In its Order denying the motion for reconsideration, the Board found that this contention was a newly raised objection to conduct affecting the results of the second election, and as it had not been filed within 5 days of that election as required by the Board's Rules and Regulations, it was untimely. Accordingly, the Board did not pass upon the merits of this contention. The Re- spondent now contends that, despite the fact that this objection was not timely filed, the Board should nevertheless consider such objec- tion on the merits, because the Peerless Plywood rule was not then available as the basis for an objection to that election . In support of this contention, the Respondent points to cases in which it alleges that i Case No. 5-RC-1095. z See Peerless Plywood Company, 107 NLRB 427. 110 NLRB No. 76.