Certified Corp.

CERTIFIED CORPORATION Certified Corporation and Hawaii Teamsters & Allied Workers, Local 996, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Certified Corporation and Bernard Rios Santiago, Pe- titioner and Hawii Teamsters & Allied Workers Lo- cal 996. Cases 37-CA-1426 and 37-RD-115 March 23, 1979 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 11, 1978, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited exceptions and a supporting brief, and Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommend Order.' 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be dismissed in its entirety, and that all objections to the election in Case 37-RD- 115 be overruled in their entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Hawaii Teamsters & Allied Workers, Local 996, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and ' Respondent's motion to dismiss General Counsel's exceptions is hereby denied because we conclude that Respondent was not prejudiced by any alleged defect in the service of General Counsel's limited exceptions and supporting brief on Respondent's counsel. 2 We agree with the Administrative Law Judge's finding that all objections to the election in Case 37-RD-115 are without merit. Consistent with this finding, we shall certify the results of the election. Helpers of America, and that said labor organization is not the exclusive representative of all the employ- ees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard before me in Honolulu, Hawaii, on April 4, 1978, pursuant to a complaint and notice of hearing that issued in Case 37-CA-1426 on December 2, 1977, alleging Certified Corporation (herein Respondent) to have violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. §151, et seq. (herein the Act).' The Respondent and Teamsters Local 996 (herein Union or Charging Party) had a successful collective-bargaining relationship for a number of years until their most recent collective-bargaining agreement expired on February 28. Thereafter a strike commenced and on August 11 a Deci- sion and Direction of Election was issued in Case 37-RD- 115 filed by an individual, Bernard Rios Santiago (G.C. Exh. 2(a)). An election was conducted on September 22, in a unit of all employees employed by Respondent at its warehouses in Honolulu, Kauai, and Hilo, Hawaii, including driver-selec- tors, driver-receivers, order selectors, laborers, machine op- erators, price labelers, load chiefs, and maintenance super- visors; excluding office clerical employees, guards and/or watchmen, professional employees, and supervisors as de- fined in the Act. The election provided numerous chal- lenged ballots and the Union filed objections to the elec- tion. All of the challenged ballots, except one which could not affect the final results of the election, were resolved and set forth in the corrected revised tally of ballots issued to the parties on February 2, 1978 (G.C. Exh. 2(j)). All of the Union's objections to the conduct of the election were dis- posed of in the acting Regional Director's Supplemental Decision and Order issued December 22, except one which related to an allegation that Respondent by its agents had interfered with, restrained, and/or coerced its employees in the exercise of their rights as guaranteed by Section 7 of the Act (G.C. Exh. 2(f)). The cases were consolidated for pur- poses of a hearing before a duly designated Administrative Law Judge. Respondent's answer has denied any and all allegations of conduct that would be violative of the Act. At the hearing all parties were represented by counselors. The parties were given full opportunity to examine and cross-examine witnesses, to introduce evidence, and to file briefs. Excellent briefs were filed by the General Counsel and Respondent and have been carefully considered. Upon the entire record in this case, including the briefs and my careful observation of the witnesses, I hereby make the following: I Most of the relevant events which are to be discussed hereinafter oc- curred in 1977, and, unless otherwise indicated, all dates shall refer to the year 1977. 241 NLRB No. 55 369 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OI FACT I. THE BUSINESS OF RESPONDENT At all times material herein Respondent has been a Ha- waii corporation with a place of business at 2888 Ualena Street, Honolulu, Hawaii, where it has been engaged in the nonretail distribution of grocery products and fresh pro- duce. During the past calendar year in the course and con- duct of its business operations, Respondent purchased and received goods and supplies valued in excess of $50,000 di- rectly from suppliers located outside the State of Hawaii. Respondent admits, and I herewith find, the Employer to be engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II1. THE LABOR ORGANIZATION Respondent admits, and I herewith find, the Union to be, and at all times material herein to have been, a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTIC(ES A. The Issues The issue litigated herein was accurately phrased by the General Counsel in his brief as follows: Did Respondent violate Section 8(a)(I) and (3) of the Act by placing two employees on its payroll to perform bargain- ing unit work subsequent to an unconditional offer to re- turn to work by striking employees in an appropriate bar- gaining unit? In the event the allegations are found to have merit, afortiori the violative conduct requires that the elec- tion be set aside. B. Background Respondent and the Union have had a history of peace- ful and lawful collective bargaining. The most recent collec- tive-bargaining agreement between the parties expired on February 28. On March 1, following a breakdown in nego- tiations for a new contract, all of Respondent's 66 employ- ees went out on strike and commenced picketing. Takashi Sakabe, a picket captain, testified that the purpose of the strike was to get Respondent Employer to agree to the Union's position on their contract demands. There appears to be no conflict between the parties that the strike was initially an economic strike, and I so find. Sakabe testified that on or about August 23 he and Abra- ham Hall, another rank-and-file employee, met with Roger Godfrey. a vice president of Respondent, at which time they presented Godfrey with a sealed envelope, addressed to Mr. Damore, Respondent's president, containing the names of 42 employees who requested unconditional rein- statement to their jobs (G.C. Exh. 6). When the two em- ployees learned from Godfrey that Damore was out of town, they requested that the letter remain unopened and delivered directly to Damore upon his return. Godfrey indi- cated that he would comply with their request, and ap- proximately 2 weeks later Hall and Sakabe returned to Re- spondent's premises and met with Damore. At this meeting Damore asked if the Union had any more names to add to the list of striking employees requesting unconditional rein- statement to their former jobs. Hall and Sakabe submitted a supplemental list of 16 other employees requesting uncondi- tional reinstatement "to our jobs" (G.C. Exh. 9). There ap- pears to be no serious conflict between the parties, and I herewith find that as of September 2, the Union had pro- vided Respondent Employer with the names of 58 employ- ees that were requesting unconditional reinstatement "to their jobs" (Resp. Exhs. 4 and 5). C. The Evidence I. Concerning John Boone On March 7 John Boone was hired as a strike replace- ment and worked as a forklift operator at a wage rate of $6.01 per hour. On April 22 Boone was involved in a "scuf- fle" with a fellow employee, identified only as Paul, follow- ing which both employees were taken to the office of George Madden, warehouse manager and vice president for Respondent. Following a full investigation and a review of the incident with the various employees involved, Boone was removed from the payroll. Because Boone was returned to Respondent's payroll on September 20-2 days before the election and at a point in time following the uncondi- tional request of some 58 employees to return to their jobs-a critical conflict arises. Was Boone a "new hire" that would be violative of the Act in view of the unconditional request of striking employees to return to their jobs?2 The resolution of this question is made difficult because George Madden did not testify3 and Boone gave conflicting pretrial affidavits. Moreover, his testimony at the trial was some- thing less than totally candid, coherent, and/or convincing. At the hearing Boone testified concerning the circum- stances of the little scuffle between him and another em- 2 The Laidlaw Corporation, 171 NLRB 1366 (1968). At the hearing Respondent offered an affidavit of George Madden dated September 28 which was submitted to the Board in connection with the Board's investigation of the Union's objections to election. General Counsel and the counsel for the Charging Party objected to the receipt in evidence of this particular affidavit, contending that Madden was available and should have been called to testify. Respondent's counsel acknowledged that he had not subpoenaed Madden, but represented to the court as follows: Madden is no longer employed by Respondent; that Madden had gone to the mainland for medical treatment shortly after being separated from Respondent; that Madden had returned to Hawaii sometime in December at which time Re- spondent's counsel spoke to him and reminded him of the date for this trial; that Madden stated he was only there to pick up some mail and would then return to the mainland for further medical treatment: that Madden did not know whether he would be available for trial, because it would depend on the success or lack of success of the medical treatment he intended to re- ceive: that counsel had written to Madden's last known address-a post office box number-reminding him of the date of this trial and requested Madden to contact him; that neither counsel nor any other member of Re- spondent Company had had any contact with Madden since December 1977. On the basis of this representation. I consented to have the affidavit placed in the file, but advised the parties that I would neither read nor consider the affidavit until such time as I had made a definitive ruling as to its receivability which I would make in the course of my written Decision in this case. I am of the opinion that the affidavit should not be received and admitted in evidence as an exception to the hearsay rule; Madden was not subpenaed, and I am not convinced that every available means were taken to prove Madden's unavailability to personally testify. 370 CERTIFIED CORPORATION ployee named Paul, and then stated that Madden told him that he (Madden) "had no other alternative but to fire him; that he didn't need people like Boone working for him." Boone then testified that after "all the other people had left he told Madden that he hated to be fired and asked him. think about it. Reconsider in a few weeks, whatever." After which Madden said, "Well, I will think about it." There- after Boone called the Company, "about every other day or every day. It was quite often, quite often." After nearly 3 months had gone by, Boone stated that he went to see Mad- den personally and again pleaded to be returned to work. According to Boone, Madden indicated that it looked pretty good, and it was possible he could return him within a couple of weeks. Boone was again placed on Respondent's payroll on Sep- tember 20 and worked on the dock unloading containers at a wage rate of $4.15 per hour. Boone continued working until sometime in the first part of November when he was fired. This time there is no question that he was discharged by Madden. (This is not an issue in the case.) Richard Seaman, who was then director of distribution, testified that after Boone had been terminated "he said that he would get Greg Torgrin, who was our receiving supervi- sor, and beat his ass, and he would also get the company. and he proceeded to walk out the door."' Boone testified that immediately following his discharge he sought to locate an attorney with whom he had an ac- quaintance because he wanted to pursue some sort of a suit against Certified Corporation for the unfairness he felt had been dealt to him. When the attorney he sought to locate was not in his office, he proceeded to the Unity House which he had learned was the home office of the Union involved. There he talked to Mr. Arthur A. Rutledge. pres- ident of the Union, relating that he had been fired at Certi- fied Corporation and that he was out of work and desper- ately in need of a job. According to Boone, Rutledge expressed his interest in wanting to help Boone find work. and that he would assist him in doing so.' It was at this time that Boone decided to give the Board a second affidavit. According to the testimony the Board agent was contacted. went to the Unity House, and there the second affidavit was given to the Board agent (Court Exh. 2). Boone's first affi- davit which was given to the Board is dated September 30 and appears in the file (Court Exh. ).6 Needless to say. the two affidavits are diametrically opposed on the critical issue of Boone's status following his first scuffle in April. In the affidavit given to the Board on September 30, Boone swore that George Madden had "said it was best if I took some time off from the job and get things together and cool down. He said he would be putting me on layoff status and that I should keep in contact with him and that he would keep me in mind when an opening came up. ... Since April 22, 1977 I1 had always expected to return to work at Certi- fied, but it was only a question of a position becoming 'Boone denied threatening to "get the company." Shortly thereafter, Boone went to work as a night security guard for a hotel, The Waikiki Marina, in which the Union has a substantial financial interest. 6 The September 30 affidavit was prepared in the office of Respondent's counsel by Mr. Ernest Moore. However, Boone was taken to the Subregional Office in Honolulu where he was given a full opportunity to discuss and correct any materials in the affidavit and again swore to its contents in the presence of a Board agent. available." In the second affidavit, given to the Board agent on November 17, Boone swore that Madden said "hearing all these statements from these guys, John Boone, I see no further action at this, but to dismiss (or fire) you at this time." Boone's testimony was more in accord with his second affidavit-in other words he contended that he had been discharged on April 22. He sought to explain the wording in the first affidavit by stating that the attorney taking the affidavit had suggested using the term laid off, inasmuch as that would look better on his record than having been fired and he (Boone) went along with the wording. Mr. Ernest C. Moore was called to testify concerning the manner in which the first affidavit of Boone had been pre- pared. Moore related that the affidavits 7 were prepared in response to a request from a Board agent that "I get the employees down to the Board with a statement concerning their response to the Union's allegations as to their employ- ment status on the election date." Moore testified that he interviewed each of the individuals separately and then dic- tated their statements as given to him, which were then transcribed. Each of the individuals was given an opportu- nity to change the language, and insofar as possible the affidavits were phrased in the affiant's own words. Moore categorically denied that he had ever suggested the use of the words "laid off" instead of "fired" and averred that Boone had informed him that "at all times during his pe- riod of absence from the company . . . he [Boone] fully intended to come back." 2. Concerning Michael McKenna There is no serious disagreement as to the dates of em- ployment for Michael McKenna. He worked from October 6 until the 28. According to the testimony of Richard Sea- man, McKenna was hired when employee Jeff Wegner, a forklift operator for Respondent, suggested that he had a friend who was looking for temporary work as a laborer. Seaman testified that at that time he needed a temporary part-time unloader for the containers and suggested that Wegner's friend come to see him. McKenna was a helicop- ter pilot and had just arrived in Hawaii and was looking for some temporary work until he found permanent employ- ment in the aviation field. Seaman testified that McKenna worked as a temporary part-time laborer unloading con- tainers and that he was on an "on call basis, to either call in at 7 in the morning, or to be notified the day before if he would work." McKenna worked only 16 hours his first week, approximately 17 hours his second week, and each of the last 2 weeks he worked in excess of 40 hours because of an absentee problem. At the end of that time he was termi- nated because the temporary work had been completed, and because McKenna had found more suitable employ- ment. Regular employees have their schedules for the fol- lowing week posted each Friday (Resp. Exh. 2, page 6, par. 16.5). 7 There were three individuals involved-Mr. Albano, Mr. Ramirez, and Boone. 371 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Evidence relating to the conversion of the economic strike to an unfair labor practice strike Takashi Sakabe testified that he had observed Boone working on the container dock on September 20. He further testified that he talked to Mr. Rutledge, the union pres- ident, about Mr. Boone working. Jean Hagi testified that she has been personnel manager for Respondent since October 3, and that she has no knowl- edge of the Union ever complaining regarding the employ- ment of either Boone or McKenna. There was no testimony to indicate that the wording on the picket signs was ever changed at any time. The parties further stipulated that there "is no reference in any of the charging party's news- papers, memoranda, minutes, notes, correspondence or other documentation which makes any reference to the Re- spondent's hiring to Mr. John Boone or Mr. Michael Mc- Kenna, either addressed to the Respondent or to any other party." D. Analysis and Conclusions I have carefully reviewed both of the affidavits given by John Boone' and his testimony at the trial. Having done so I am firmly convinced that Boone is a totally incredible witness fully capable of contriving a concoction from whole cloth when and where it is best suited to his own conve- nience. I fully credit Moore and do not believe-as testified to by Boone-that Moore suggested the use of the words laid off after Boone had indicated that he was under the impression that he had been fired. While Boone's total course of conduct-his testimony and the two affidavits-caused me to believe that he cannot be credited or trusted, nevertheless there are a number of factors which caused me to believe that the September 30 affidavit is more apt to contain some measure of truth than either his testimony or the November affidavit. In the first place, the circumstances under which the first affidavit was taken were much more relaxed or casual than were the cir- cumstances of the second affidavit. For example, the first affidavit was taken primarily for the purpose of resolving a challenged ballot. The Company had no way of knowing how Boone had voted, and Boone had nothing to gain or lose in a determination of the question. At the time of the second affidavit, Boone was admittedly angry, was seeking an attorney to bring suit against the Company, and had threatened to "beat the ass" of the supervisor responsible for his discharge. In addition, I am of the opinion that Boone would have little concern for the truth if something less would assist him in obtaining employment. The hand- written corrections which appear on the third page of the September 30 affidavit (the signature page) strike me as being words which Madden would have used in talking to an employee receiving a disciplinary layoff. These words were added at a time when the Board's field examiner was reviewing the typed affidavit with the affiant, out of the I See Alvin J. Bart and Co., Inc., 236 NLRB 242, decided by the Board on May 22, 1978, wherein the Board carefully reviewed the law concerning the admissibility of pretrial affidavits and concluded that, "the modem trend, however, is that prior inconsistent statements are not hearsay at all and accordingly that they may be used substantively." presence of the Respondent's counsel, Mr. Moore. During cross-examination the following colloquy occured: Q. Did Mr. Madded also tell you at this meeting that it would be best if you just took some time off from the job, get things together and cool down; that he would put you on a layoff status and that you should keep in contact with him? A. No sir. Q. Did he say anything to that effect? A. He said the time off would do me good. These words, as phrased by Boone, are not the typical words that would be said to a dischargee, but are more apt to be the words that would be directed toward an employee re- ceiving a disciplinary layoff. Perhaps most important of all in resolving where some measure of truth might lie, it is inconceivable to me that if Boone had been discharged on April 22 that the Company would have tolerated his contin- ual and frequent phone calls inquiring as to when he might be returned to work. Had Respondent discharged him on April 22 with no intent of ever returning him to work, I am confident that Respondent would have made it plain in one of the early calls that he was not to continue to hold out any hope for further employment. General Counsel's arguments contrary to the above con- clusion are not persuasive. Use of the word "termination" by the Hawaii Medical Services Association is not a term that can be attributed to Respondent to describe Boone's employment status. Nor was there any obligation for Re- spondent to carry Boone's insurance during this question- able period because he had never worked long enough to establish seniority (see sec. 4.1 on p. 2 of Resp. Exh. 2). Boone's short period of employment had not qualified him under either the dental or the Hawaiian Medical Services Association plan. General Counsel also argues that Respon- dent failed to include Boone's name on the Excelsior list submitted to the Board, but stipulated that in a subsequent supplemental list submitted by Respondent that Mr. Boone's name did appear. In summay I find John Boone to be a pathological pre- varicator whose testimony in this case cannot and should not be credited; but if forced to choose in which instance he may have uttered some measure of truth the scales are strongly tipped in favor of the contents of the September 30 affidavit. In any event, the General Counsel has failed to prove by a preponderance of the evidence that Boone's re- moval from the payroll on April 22 was a discharge and not a disciplinary layoff with some reasonable expectation of being returned to the payroll.9 Under Board rules, eligibility to vote in a representation election is dependent upon em- ployment in the designated bargaining unit during the eligi- bility period and on the date of the election. Westchester Plastics of Ohio, Inc. v. N.L.R.B., 401 F.2d 903, 907 (6th Cir. 1968); See N.L.R.B. v. Pacific Gamble Robinson Co., 438 F.2d 112 (9th Cir. 1971). Employees on layoff or leave of absence during the relevant period who have not quit or been terminated and have a reasonable expectation of re- call qualify as eligible voters because of their continued ties to the employee unit. American Motors Corporation, Parts ' Falstaff Brewing Corporation, 128 NLRB 294, 295 (1960), enfd. as modi- fied 301 F.2d 216 (8th Cir. 1962). 372 CERTIFIED CORPORATION Division, 206 NLRB 287, 291 (1973), Miami Rivet Company, 147 NLRB 470, 483 (1964). 1 find that the General Counsel has failed to prove by a preponderance of the evidence that Boone was a new hire in September 1977 in violation of the reinstatement rights of any of the striking employees. The evidence is undisputed that Michael McKenna was hired and worked as a part-time temporary employee for 4 weeks during the latter part of October at a time when some 58 striking employees had made unconditional requests to return to their jobs. The General Counsel argues that this is a per se violation as enunciated in the Laidlaw case, supra, because Respondent failed to advance any legitimate or substantial business justifications for ignoring the strikers' request for rehire as recently adopted by the Board in South Central Timber Development, Inc., 230 NLRB 468 (1977). However, General Counsel ignores the fact that Respon- dent's obligation is to return the strikers to theirformer po- sitions or substantially equivalent ones if and when such posi- tions are available.' 0 The part-time temporary job held by McKenna cannot be characterized as "substantially equiv- alent" to any job formerly held by any striker since the strikers were all employed on a regular full-time basis. While certainly not binding as judicial precedent, it is inter- esting to note that the division of advice in the General Counsel's office authorized dismissal of a charge in a case that raised an issue identical to that surrounding the hiring of McKenna." According to the advice memorandum the "case was submitted for advice on the question of whether an employer is under a Laidlaw obligation to offer part-time jobs to permanently replaced strikers who have made an unconditional offer to return to work, even though the part- time jobs are not substantially equivalent to the strikers former jobs." In concluding that the charge should be dis- missed, the memorandum cited New Era Electric Coopera- tive, Inc., 217 NLRB 477 (1975), wherein the Board had noted that "assuming the Charging Party was an economic striker, the first class lineman position and the second class lineman position were not substantially equivalent jobs be- cause they were unequal in authority, hours, and pay." The advice memorandum further pointed out that the employer had not violated the Act by failing to offer strikers the non- equivalent position since (1) the strikers' offer to return to work did not clearly encompass an offer to take nonequiva- lent jobs and (2) there was no evidence that the employer's failure to offer the jobs was discriminatorily motivated. These factors are present in the instant case. I conclude and find that the temporary part-time employment of Michael McKenna did not violate the reinstatement rights of any of the strikers because McKenna's job was unequal in duties, hours, and pay and thus not substantially equivalent to the jobs formerly performed by the strikers.'2 There was absolutely no probative evidence to substanti- ate the allegation that on and after September 20 the strike was converted from an economic strike to an unfair labor practice strike. In the first place, I have found that neither the return of Boone to the payroll on or about September 0 It should be noted that in requesting reinstatement the employees indi- cated only that they were requesting unconditional reinstatement to theirjobs or to our jobs and not to any job. (G.C. Exhs. 6 and 9.) " Case 13-CA- 14896, Howard Publications, Inc., Publisher of the Times, July 12, 1977, reported in CCH NLRB 20.154. 12 See Western Steel Casting Company, 233 NLRB 870 (1977). 20 or the hiring of Michael McKenna for a temporary part- time job was, violative of the Act. Second, but of equal importance, even if I had found the allegations to be viola- tive of the Act, it would have been necessary for the Gen- eral Counsel to show some causal connection between the unfair labor practices and the prolongation of the strike. This was not done. "It is well established that an employer's unfair labor practices during an economic strike do not per se convert it into an unfair labor practice strike, absent proof of a causal relationship between the unfair labor practices and the prolongation of the strike."'" Or as the Board more recently stated, "we are unwilling to hold that the mere fact that a strike follows an unfair labor practice, establishes a causal relationship as a matter of law." In order for the Board to reach a conclusion that the economic strike was converted to an unfair labor practice strike, it must be shown "that these unfair labor practices played a significant part in the Union's decision to strike or to re- main on strike thereafter."' I conclude and find that the strike by the Union against Respondent in the instant case remained an economic strike at all times. CONCL USIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6). and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Certified Corporation at its warehouses in Honolulu, Kauai. and Hilo. Hawaii. in- cluding driver-selectors, driver-receivers, order selectors, la- borers, machine operators, price labelers, load chiefs, and maintenance supervisors, excluding office clerical employ- ees, guards and/or watchmen, professional employees, and supervisors as defined in the Act, constitute appropriate units for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The strike which commenced on or about March I, 1977, by the Union herein, directed against Respondent herein, has at all times been, and remains, an economic strike. 5. Respondent has not engaged in unfair labor practices as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER'6 It is hereby ordered that the complaint issued herein against the Respondent, Certified Corporation, be. and it hereby is, dismissed; any and all objections to the election are herewith found to be without merit. '" Harcourt & Company, Inc., 98 NLRB 892. 909 (1952). ' Capitrol Rubber A Speciality Co., Inc., 198 NLRB 260 (1972). 15 Coca Cola Bottling Works, Inc., 186 NLRB 1050, 1053 (1970). 16 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. 373