The Rath Packing Co.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 102.61 of ,the Board's Rules and Regulations -provides for vi 5-day time limit in filing objections to elections. In the instant case the last day for filing objections was November 22. Section 102.83 of the Board's Rules and Regulations requires that for objections to be timely they must be received by the Regional Director within the specified time limit.' . Consequently, the Petitioner's objections re- ceived by the Regional, Director November 23 were not timely filed. We find no merit in the Petitioner's contention that it is not respon- sible for the untimely receipt of the objections. We have previously held that it is essential to certainty in procedural matters that parties be held to strict compliance with the above rule.2 Accordingly, we hereby adopt the Regional Director's findings that the objections were not timely filed and overrule the Petitioner's objections to election. As a majority of the employees eligible to vote have not voted for the participating labor organization, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for the International Woodworkers of America, AFL-CIO, and that this labor organization is not the exclusive representative of the employees employed at the Employer's Gilbertown, Alabama, plant, in the unit heretofore found to be appropriate.] 1 Paragraph 2 of Section 102.83 reads , "When the act or any of these rules requires the filing of a motion, brief, exception , or other paper in any proceeding, such document must be received by the Board or the officer or agent designated to receive such matter before the close of business of the last day of the time . limit, if any, for such filing or extension of time that may have been granted." 2 Dunn Motor Company, 100 NLRB 822. The Rath Packing Company and United Packinghouse Workers of America, AFL-CIO,' Petitioner. Case No. 16 16-RC--1591. Janu- ary 31,1956 SECOND SUPPLEMENTAL DECISION AND CERTIFI- CATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election dated February 15, _1955,2 an election by secret ballot was conducted on March 3, '1955, under the direction and supervision of the Regional Director for the Sixteenth Region among the employees of the Employer in the unit found appropriate in that Decision. At the conclusion of the election, the parties were furnished with a tally of ballots which 1 The AFL and CIO having merged, we are amending the identification of the Union's affiliation. 2 The Rath Packing Company, 18-RC-1591, February 15, 1955 (not reported in printed volumes of Board Decisions and Orders). 115 NLRB No. 48. THJ RATH PACKING COMPANY 303 showed that, of approximately • 50 eligible voters, 48 cast ballots, of which 24 were for the Petitioner, 23 were cast for no union, and 1 ballot was-challenged. The challenged ballot was sufficient to affect the results of the election. On'March 9, 1955, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation and, on April 20, 1955, issued and served upon the par- ties his report on challenged ballots and objections. In his report, the Regional Director concluded that, about 2 weeks before the elec- tion, the Employer violated the rule enunciated in Livingston Shirt Corporation, et al., 107 NLRB 400, by ordering the Petitioner's field representative to leave its premises and by refusing him permission to solicit the employees when they were leaving the plant after work- ing hours. Accordingly, he recommended that the challenged ballot be opened and counted and that the objections be sustained and the election be set aside and a new election ordered. On April 29, 1955, the Employer filed exceptions to the Regional Director's report, in which it denied that the Petitioner's representative was ordered to leave its premises or that he was refused permission to solicit the em- ployees when they were leaving the plant after working hours. On July 28, 1955, the Board issued a Supplemental Decision, Direc- tion, and Order herein 3 in which it (1) directed that the challenged ballot be opened and counted; and (2) found that substantial and material issues of fact as to the Regional Director's findings were raised by the Employer's exceptions. The Board ordered that if the chal- lenged ballot, when opened and counted, did not -determine the re- sults of the election, a hearing be held to determine the issues raised by the Petitioner's objections and the Employer's exceptions. . Upon the opening and counting of the challenged ballot, the re- vised tally of ballots furnished the parties showed that there were 24 ballots cast for the Petitioner and 24 ballots cast for no union. Accordingly, on August 18 and 19, 1955, pursuant to the Board's Order, a hearing was held before Marvin L. Smith,'Jr., hearing of- ficer. The Employer and the Petitioner appeared and participated. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence pertinent to the issues was afforded the parties. On September 2, 1955, the hearing officer issued and served upon the parties a hearing officer's' report and recommendations in which he recommended that the objections to the conduct of the election be overruled. On September 9, 1955, the Petitioner filed exceptions to this report. 8113 NLRB 382. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the hearing officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the hearing officer's report, the objections and exceptions, and the entire record in the case, and hereby makes the following findings : On January 12, 1955, Abe Freeman and Steve Mauser, field repre- sentatives of the Petitioner, visited the Employer's premises and requested recognition as collective-bargaining agent of certain em- ployees of the Employer. The plant superintendent refused to recog- nize the Petitioner until it had been certified by the Board. The Petitioner filed the instant petition with the Board on January 13, 1955, and from that date until February 16, 1955, Freeman visited the plant periodically for the purpose of soliciting the employees. His practice was to park his automobile on the Employer's parking lot and contact the employees as they were leaving the plant after working hours. On the afternoon of February 16, 1955, when Freeman was in his automobile on the Employer's parking lot contacting employees as they left the plant, the plant superintendent asked that he come into the plant and talk to the plant manager. During the ensuing conver- sation with the plant manager, Freeman was requested to discontinue the practice of parking on the Employer's parking lot because, on the days Freeman was present on the parking lot, the employees were congregating in the plant rather than leaving after, they had com- pleted their work. Freeman stated that he did not have to park on the parking lot, and agreed to cooperate by complying with the plant manager's request 4 Thereafter, until March 1, 1955, Freeman parked his automobile on the city street adjacent to the parking lot, from which location he continued his organizing activities. However, on March 1, 1955, Freeman and Mauser parked their automobile on the Employer's park- ing lot, and various employees stopped to speak to the two union repre- sentatives. The plant manager also spoke with them, but did not request that they leave the premises. On the morning of March 2,1955, the Employer made a noncoercive speech to its employees on its time and property. Later that same day, the Petitioner asked for an opportunity to answer the Employer's speech, but this was refused. The representation election was con- ducted from 3: 30 to 6 p. m. on March 3. It appears that there were no company rules or instructions with respect to union activity or solicitation of members, and employees were 4 In its exceptions , the Petitioner contends , in effect, that the hearing officer miscon- strued the issue in the case when , in referring to the February 16, 1955, incident, he sub- stituted the word "request" for the word "order." However, the record shows that Freeman , when queried at the hearing as to whether he was "ordered" off the Employer's property , stated, "I would rather use the word 'request.' 11 THE RATH PACKING COMPANY `305 permitted to discuss and solicit for the Petitioner on company time and property without objection from the Employer's supervisors. Moreover, it appears that employees themselves distributed handbills within the plant for the Petitioner. The record further shows that after February 16, when the Employer requested Freeman not to park on its lot, the Petitioner continued to conduct its organizational campaign by contacting employees on the street off the Employer's property, by personal visits to employees' homes, by passing out leaf- lets, and by meetings at the union hall. In Livingston Shirt Corporation, et al., 107 NLRB 400, at 409, the Board found that in the absence of either an unlawful broad no- solicitation rule (prohibiting union access to company premises on other than working time) or a privileged no-solicitation rule (broad,"' but not unlawful because of the character of the business), an employer does not commit an unfair labor practice if he makes a preelection speech on company time and premises to his employees and denies the union's request for an opportunity to reply. In making this find= ing, the Board stated : We do not believe that unions will be unduly hindered in their right to carry on organizational activities by our refusal to open up to them the employer's premises for group meetings, particu- larly since this is an area from which they have traditionally been excluded, and there remains open to them all the customary means for communicating with employees. These include individual contact with employees on the employer's premises outside work- ing hours (absent, of course, a privileged broad no-solicitation rule), solicitation while entering and leaving the premises, at their homes, and at union meetings. These are time-honored and tradi- tional means by which unions have conducted their organizational campaigns, and experience shows that they are fully adequate to accomplish unionization and accord employees their rights under the Act to freely choose a bargaining agent. In view of the foregoing, we find, as did the hearing officer, that the Employer did not violate the rule enunciated in the Livingston Shirt case, by denying the Petitioner's request for an opportunity to reply to the speech it made to the employees the day before the elec- tion. Moreover, as the noncoercive speech to the employees was made by the Employer more than 24 hours before the scheduled election, it cannot otherwise serve as a basis for setting aside the election e Furthermore, we cannot find, as the Petitioner would have us find, that the Employer violated the principles enunciated in Livingston Shirt when it requested the union representative not to park on its s Peerless Plywood Company, 107 NLRB 427. 390609-56-vol. 115-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD premises. It is clear that the Employer had no unlawful broad no- solicitation rule and that the employees were permitted to solicit for union membership on the Employer's time and property. Further, the union representative entered the Employer's parking lot and spoke to the employees without objection by the Employer even after he had agreed not to park on the Employer's property. In addition, it ap- pears that the Petitioner was not unduly hindered in its right to carry . on organizational activities, and was able to utilize the customary means for communicating with employees, e. g., soliciting employees while they were leaving the plant, at their homes, and at union meet- ings. Accordingly, we find no merit in the Petitioner's objections and exceptions and hereby overrule them. As the revised tally shows that a majority of the ballots has not been cast for the Petitioner, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for the United Packinghouse Workers of America, AFL-CIO, and that the said Petitioner is not the exclusive representative of the employees at the Amarillo, Texas, plant, of The Rath Packing Com- pany, in the unit heretofore found to be appropriate.] General Electric Company and International Association of Ma- chinists, AFL-CIO, Petitioner. Case No. 13-RC-418P3. February 1,1956 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES On November 3, 1955, pursuant to a Decision and Direction of Election (not reported in printed volumes of Board Decisions and' Orders), an election was conducted in the unit found appropriate therein, under the direction and supervision of the Regional Director for the Thirteenth Region. Following the election, the Regional Director issued and served on the parties a tally of ballots which showed that of approximately 985 eligible voters, 494 ballots were cast for the Petitioner, 412 for Local 997, United Automobile Workers of America, AFL-CIO, herein called the Intervenor, and 7 against both participating organizations. Ten ballots were challenged and six were void. The challenges were not sufficient in number to affect the results of the election. A majority of the valid votes were cast for the Petitioner. On November 7, 1955, the Intervenor filed timely objections to the conduct of the election, alleging that (1) observers for the Petitioner engaged in campaigning during the election; (2) the Employer re- fused to permit a representative of the Intervenor to enter the plant 115 NLRB No. 42.