Willamette Industries, Inc., Emerson Division

WILLAMETFE INDUSTRIES. INC., EMERSON DIVISION Willamette Industries, Inc., Emerson Division and UBC Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Petitioner. Case 26 RC 5812 December 14, 1978 ORDER REMANDING PROCEEDING TO REGIONAL DIRECTOR BY CHAIRMAN FANNING AND MEMBERS PENrF.LLO AND TRIESDAI.E Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 26 of the National Labor Relations Board, an election by se- cret ballot was conducted in the above-entitled pro- ceeding on September 15, 1978, under the direction and supervision of the Regional Director. Upon the conclusion of the election, a tally of ballots was fur- nished to the parties in accordance with the Board's Rules and Regulations, Series 8, as amended. The tally of the ballots shows there were approxi- mately 120 eligible voters, and that 119 ballots were cast, of which 23 were cast for, and 89 were cast against, the Petitioner, with 7 ballots having been challenged. On September 22, 1978, the Petitioner filed timely objections to conduct affecting the re- sults of the election. The Regional Director com- menced an investigation of the objections and, there- after, on October 3, 1978, issued and served on the parties his report on objections. In his report, the Re- gional Director recommended that the Petitioner's objections be overruled. The Petitioner filed timely exceptions to the Regional Director's report. 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 duly considered the matter and is of the opinion, for the reasons explained below, that the Petitioner's objections raise material issues of fact requiring further investigation at the regional level. Accordingly, pursuant to Section 102.69 of the Board's Rules and Regulations and statements of procedure, Series 8, as amended, we are remanding this proceeding to the Regional Director for a sup- plemental report on objections based, at his discre- tion, on a further investigation or a hearing. The Petitioner herein filed eight objections to con- duct affecting the results of the election which, if supported by the appropriate evidence, would be suf- ficient to warrant setting the election aside. As noted supra, the objections were timely filed on September 22, 1978. When the Region through its agent, Ken- neth Baylor. contacted the Petitioner on September 28, 1978, it requested that Petitioner submit all docu- mentary evidence relating to the objections and a list of all witnesses together with a concise summary of their anticipated testimony. Baylor additionally re- quested that the taking of the evidence begin that evening, or the next day, Friday. The Regional Di- rector's report goes on to state: The Petitioner stated that he could not be avail- able. It was also offered that the investigation commence over the weekend if necessary. The Petitioner declined that offer and insisted that he would not be prepared to present evidence until the week of October 9, 1978. On Friday, September 29, 1978, the Region, also through agent Baylor, sent a telegram to the Peti- tioner advising it that a Board agent was prepared to travel to Emerson. Arkansas, on Monday, October 2, in order that all the evidence be taken that evening or the following morning, Tuesday, October 3. The tele- gram also stated that the Petitioner must contact the Regional Office by noon, Monday, October 2, in or- der to set a specific time for the meeting. Stating in his report that the Petitioner made no effort to com- ply with the request made by the September 29, 1978, telegram, the Regional Director dismissed the Peti- tioner's objections for its failure to comply with the Region's investigatory requests and found no merit found no merit to the Petitioner's objections. In its exceptions, the Petitioner states, inter alia, that it did not refuse to cooperate in the Region's investigation and that it had a reasonable basis for requesting that the investigation take place the fol- lowing week.' The Regional Director's report makes no reference to any reason that might have been ad- vanced by the Petitioner regarding its inability to meet by October 2. Indeed, the report leaves the dis- tinct impression that the Petitioner failed to be pres- ent either for lack of preparation or purely by ca- price. This was, apparently, not the case herein. Moreover, a review of the relevant dates leads us to the additional conclusion that the Petitioner's request for a week's postponement was well within the bounds of reasonableness. Petitioner did not refuse to cooperate, it merely asked that it be allowed to cooperate 7 days later than the deadline set by the Region. We also note that, according to the Regional Director's report, the Region waited 6 days to con- tact the Petitioner, and then stated that it wished the Petitioner to have its witnesses available that same The Petitioner's representative avers tha! he had a prior assignment in St. Louis (Petitioner's general conventions which would render him unavail- able from Friday, September 29, through Friday. October 6, 1978. 829 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evening; neither did the Region allow for the fact that the Petitioner, in the normal course of its busi- ness activities, had apparently made other previous substantial and legitimate commitments, which could not reasonably be postponed. Unlike the Regional Director, we do not believe that, under these circum- stances the Petitioner's conduct rises to the level of "lack of cooperation." It is true that the Board, through its Regions and as mandated by Congress, attempts to resolve issues in as expeditious a fashion as possible so as to avoid or substantially minimize industrial strife.2 The Region's dismissal of the Petitioner's objections herein, however, does not serve to expedite resolution of the issues, but is rather an injudicious application of that congressional mandate. Accordingly, and inasmuch as there has been no substantive investigation of the Petitioner's objec- tions, the Board, having duly considered the matter, is of the opinion that the Petitioner's objections raise issues which require further investigation at the re- gional level. We therefore remand this case to the Regional Director for a supplemental report on ob- jections which may, at his discretion, be based on a further investigation or a hearing. This supplemental report on objections shall make recommendations concerning the substantive issues raised by Petition- er's objections. 2 See Sec. I(a) of the Act. It is hereby ordered that the above-entitled matter be, and it hereby is, remanded to the Regional Direc- tor Region 26 for a supplemental report on objec- tions which may, at his discretion, be based on a further investigation or a hearing. Such supplemental report on objections shall make recommendations concerning whether the issues raised by the Petition- er's objections warrant the setting aside of the elec- tion previously conducted herein. IT IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting any hearing pursuant to this Order shall prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings of fact, and rec- ommendations to the Board as to the disposition of said objections. Within 10 days from the date of is- suance of such report, either party may file with the Board in Washington, D.C., eight copies of excep- tions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer. IT IS FURTHER ORDERED that the above-entitled mat- ter be, and it hereby is, referred to the Regional Di- rector for Region 26 for the purpose of conducting such further investigation or hearing as he may find necessary, and that the said Regional Director be, and hereby is, authorized to issue notice of any such hearing. 830