Certain-Teed Products Corp.

CERTAIN-TEED PRODUCTS CORP. Certain-Teed Products Corporation and Roger D. Jaynes, Petitioner and United Cement, Lime and Gypsum Workers International Union , AFL-CIO. Case 21-RD-851 October 21, 1968 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Stipulation for Certification upon Consent Election executed on November 1, 1967, an election by secret ballot was conducted on November 29, 1967, under the direction and supervision of the Regional Director for Region 21, among employees in the stipulated unit. At the conclusion of the balloting, the ballots were impounded because of pending charges filed shortly before the election. These charges were subsequently withdrawn on December 13, 1967, and on December 18, 1967, the ballots were counted and the parties were furnished with a tally of ballots. The tally showed that of approximately 119 eligible voters, 110 cast ballots, of which 13 were for, and 58 against the Union. There were 39 challenged ballots. On December 26, 1967, the Union filed timely objections to the election, alleging eight instances of Employer misconduct and one instance of miscon- duct by Petitioner Jaynes. The Union served the Employer with a copy of its objections on the same day. The Union did not, however, serve the Petitioner Jaynes with a copy of its objections until January 12, 1968. Shortly thereafter, the Employer requested the Regional Director to dismiss the objections on the ground that the Union's delay in serving Jaynes constituted a failure to follow the procedural obliga- tions of service imposed on objecting parties by Section 102.69(a) of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended.' The Regional Director then caused an investigation to be made, and thereafter, on February 14, 1968, issued and served on the parties his Report on Objections. The Regional Director denied the Employer's request that the objections be dismissed without regard to their merits, finding that the Union's delay in serving Jaynes did not result in any prejudice to the parties. With respect to the merits of the objections, the Regional Director found that, as alleged in objection 5, the Employer had interfered with the election by posting, during the 24-hour period immediately pre- ceding the election, a copy of the Board ballot with an X marked in the "NO" box. The Regional Director further found that the Employer did not otherwise 1 Section 102.69(a) states, inter alia, "Copies of such objections shall immediately be served on the other parties by the party filing them, and a statement of service shall be made." (Emphasis supplied.) 2 See, for example, Allied Electric Products, Inc., 109 NLRB 1270, and Hughes Tool Company , 119 NLRB 739. To the extent that the 173 NLRB No. 38 229 engage in objectionable conduct, and that Jaynes had not engaged in any objectionable activity. The Re- gional Director recommended, therefore, that objec- tion 5 be sustained, that the election be set aside, and that a new election be directed. He further recom- mended that all other objections be overruled. The Employer thereafter filed timely exceptions to the report, together with a supporting brief in which it asks that the objections be dismissed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Union is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of the employees of the Employer within the meaning of Section 9 (c) (1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act- All production and maintenance employees at the Certain-teed plant in Riverside, California, including shipping and receiving employees, machine super- visors, quality control inspectors, and the store- keeper; excluding office clerical employees, guards, watchmen, professional employees, and supervisors as defined in the Act, as amended. 5. The Regional Director's recommendation that the election be set aside is based upon the undisputed fact that, during the 24-hour period preceding the election, the Employer posted at its plant a reproduc- tion of the Board ballot with an "X" marked in the "NO" box. This activity was open and well-publicized in nature and constituted conduct which the Board has consistently found to warrant setting an election aside.' The Employer excepts3 to the Regional Director's recommendation on the ground, among others, that the Regional Director acted contrary to the Board's Rules and Regulations in investigating and passing upon the merits of the objections in view of the Union's delay in serving the Petitioner Jaynes with a copy of its objections. Assuming the Em- ployer, upon whom service was promptly made, has the standing to complain of the Regional Director's action in considering the merits of the objections in the circumstances of this case, we do not agree with the Employer's position that the Regional Director acted improperly in so doing. The facts relevant to the procedural matters Employer's exceptions question the validity of the rule set out in these cases or its applicability to the Employer 's activity herein, we find no merit in these exceptions. 3 Jaynes, as noted, filed no exceptions to the Regional Director's Report and Recommendations. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described by the Employer's exceptions are not disputed.' Although the Union on the same day mailed to the Employer a copy of the objections it filed on December 26, 1967, it failed to mail a copy of these objections to Petitioner Jaynes, until January 12, 1968. Its delay in serving Jaynes is not explained. However, as set out in the affidavit submitted by Jaynes to the Regional Director, Jaynes received notice from the Regional Director on December 26, 1967, that the objections had been filed that day. On the following day, December 27, Jaynes asked An- derson, the Employer's personnel manager, about the objections. Anderson then exhibited the Employer's copy of the objections to Jaynes, but permitted Jaynes to read only that part which referred to the conduct allegedly committed by Jaynes. On January 4 and 7, Jaynes informed the Board's Regional Office that he had not received a copy of the objections. On January 12, the Union sent a copy to Jaynes. On January 30, 1968, the Employer filed with the Regional Director its motion to dismiss the objections without regard to their merits alleging, as grounds therefor, the delay in serving Jaynes. In his report dated February 14, 1968, the Regional Director denied the Employer's motion to dismiss the objections, finding that the Union's delay in serving Jaynes with a copy of its objections had not resulted in prejudice to any of the parties, and that, therefore, the Union had not contravened the service requirements established in Section 102.69(a) of the Board's Rules and Regulations. The Regional Director cited the Board's decision in Southern Service Com- pany, Ltd.,' as supporting his determination to consider the objections on their merits in these circumstances. In complaining of the Regional Director's ruling on the dismissal motion, and in presenting that motion here anew, the Employer does not contend that any prejudice was in fact suffered by it or by Jaynes because of the Union's delay in serving the objections on Jaynes. It claims rather that the use of a prejudice standard to test the merits of its motion to dismiss is contrary to the intent and purpose of both the Board's above-cited rule and certain Board deci- sions which have imposed a requirement of "strict adherence" to the service requirements of Section 102.69(a) of our Rules and Regulations and in which the Board applied that requirement in dismissing election objections without regard to their merits where the objecting party had delayed in serving other interested parties.6 The Employer has failed to note, however, that the cases it cites which express the policy of "strict adherence" predate the decision of the Sixth Circuit Court of Appeals in N.L R.B. v. Brown Lumber Co, 336 F.2d 641 (1964). In that case, the court denied enforcement of the bargaining order the Board issued in 143 NLRB 174. The court rested its decision on the ground that, in the underlying representation case, the Board had improperly rejected and refused to investigate election objections timely filed by the employer simply because the employer had not served on the Union a copy of its objections as provided in Section 102.69(a) of the Board's Rules and Regula- tions. The court expressly noted that, in rejecting the employer's objections, the Board had acted under a literal interpretation of its rules and in accord with a policy requiring strict observance of the service provisions of the cited Board rule.' The court made it clear that the Board was not justified in so doing because it should have, but did not, consider the following: (1) the union was not prejudiced by its not having received a copy of the employer's objections; (2) the injury which a "slavish adherence" to the Board's procedural rules might do to basic employee rights the Act entrusts to the Board's protection; and (3) the concurrently operative effect of the provisions of Section 102.121 of the Board's Rules and Regula- tions, declaring, "The Rules and Regulations ... shall be liberally construed to effectuate the purposes and provisions of the Act." The Regional Director's action in this case accords without present view that, where as here, a party has timely filed election objections with the Board, such objections should not be rejected without considering their merits simply because of a delay by the objecting party in serving other parties with a copy of the same, unless some prejudice be shown.' As previously indicated, the Employer does not claim that any prejudice resulted by the Union's delay in serving Jaynes with a copy of its election objec- tions, and the Regional Director found none in fact existed. We, therefore, hereby deny the motion to dismiss the objections which the Employer filed with us and expressly affirm the Regional Director's consideration of the merits of the Union's objections. We have also considered, but find no merit in, the Employer's exceptions to the Regional Director's 4 The Employer takes no exception to the Regional Director's finding that the facts with respect to the procedural issue are substantially as stated in Jaynes ' affidavit. 5 Case 21-RC-9026, not published in NLRB volumes. 6 General Time Corporation , 112 NLRB 86, Phillips Petroleum Company, 122 NLRB 1351, Tung-Sol Electric, Inc., 114 NLRB 104 The court further stated We do not believe that it was ever intended that the Board rules should operate as the law of the Medes and Persians which "altereth not ." They should not be applied as "a rigid code to have an inflexible meaning irrespective of circumstances," which was the language used by the Supreme Court in refusing to adopt a strict and harsh construction of the Federal Rules of Criminal Procedure . Fallen v. United States, 378 U.S. 139, . decided June 22, 1964 . In our judgment , the Board 's rules should have no greater sanctity than the rules governing courts 336 F.2d 641, 645. 8 To the extent that General Time Corporation, 112 NLRB 86, and similar cases are inconsistent herewith , they are overruled. CERTAIN-TEED PRODUCTS CORP finding that the Employer's conduct in posting for the 24-hour period preceding the election a copy of the Board's ballot in its plant with an "X" marked in the "NO" box, prejudiced the results of the election.' Accordingly, we adopt the Regional Director's recommendation that the election herein be set aside and we shall direct a new election. 9 See the cases cited supra, fn. 2. In the absence of any exceptions thereto we adopt , pro forma, the Regional Director 's recommended dismissal of objections 1,2,3,4,6,7,8, and 9. 10 An election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 21 within 7 days after the date of issuance of the ORDER 231 It is hereby ordered that the election conducted herein on November 29, 1967, be, and it hereby is, set aside. [Text of direction of second election' ° omitted from publication] notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.