Frazee Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frazee Industries, Inc. and Paint Makers Local Union 1232, affiliated with the International Brotherhood of Painters & Allied Trades, AFL-CIO; Building Material & Dump Truck Drivers Local Union No. 36, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Joint Petitioners. Case 2 1-RC- 15046 January 5, 1978 DECISION ON REVIEW AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 21 on June 20, 1977, an election by secret ballot was con- ducted on July 15, 1977, under the direction and supervision of the Regional Director for Region 21, among the employees of the Employer in the unit1 found appropriate for the purposes of collective bar- gaining. At the conclusion of the election, the parties were furnished with a tally of ballots which shows that, of approximately 53 eligible voters, 51 cast bal- lots, of which 16 were cast for, and 32 against, the Joint Petitioners, and 3 were challenged. Thereafter, the Joint Petitioners filed timely objections to the election. The Regional Director conducted an inves- tigation of the objections and thereafter, on Septem- ber 20, 1977, issued and served upon the parties his Supplemental Decision and Certification of Results of Election in which he overruled the objections and certified the results of the election. Thereafter, in ac- cordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, Joint Petitioners filed a timely request for review of the Regional Director's decision on the grounds, inter alia, that he departed from officially reported Board precedent. By telegraphic order dated November 16, 1977, the request for review was granted. Thereafter, the Em- ployer filed a "Brief in Opposition to Petitioners' Re- quest for Review" which has been treated as a brief on review, and the Joint Petitioners filed a brief in support of their request for review. 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 entire record in this case with respect to the issues under review, includ- I All production and maintenance employees, including truckdrivers, shipping, receiving, warehouse. mill, and plant clerical employees, tinters, colorant machine operators, canners, labelers, label printers, and tub clean- ers employed by the Employer at its facility located at 6625 Miramar Road, San Diego. California: excluding all other employees, office clerical employ- 234 NLRB No. 1 ing the Regional Director's Supplemental Decision and Certification of Results of Election, the Joint Petitioners' request for review, the Joint Petitioners' brief, and the Employer's brief on review, and makes the following findings: The Joint Petitioners' Objections to Election al- leged, inter alia,2 that the Regional Director erred in refusing to approve the request made by the Joint Petitioners not to participate in the election. In over- ruling the objection, the Regional Director found that the request to withdraw was untimely, and fur- ther found that it was inconsistent with a petition filed by one of the Joint Petitioners for a portion of the unit found appropriate. Joint Petitioners assert that both of these findings were erroneous. The Em- ployer asserts in its brief that the request to withdraw was untimely. For the reasons set forth below, we find merit in the Joint Petitioners' arguments. The Employer is engaged in the manufacture and wholesale distribution of paint and related products. Joint Petitioners sought a unit of approximately 40 production and maintenance employees, truck- drivers, shipping, receiving, and warehouse employ- ees at the Employer's facility in San Diego, Califor- nia. The Employer asserted that 14 additional per- sons in several job classifications should also be in- cluded in the unit. In his Decision and Direction of Election, the Re- gional Director for Region 21 found that 10 of the 14 disputed persons should be included in the unit, and excluded the remaining 4. The Employer and the Joint Petitioners filed timely requests for review, which were denied by telegraphic order dated July 14, 1977. However, in its telegram the Board ordered that the status of five contested persons, four of whom were excluded by the Regional Director, should be resolved through the use of the challenge procedure. The parties were informed of the Board's action by telephone on July 14, 1977, and the Board's telegram was received by Joint Petitioners at approx- imately 2:30 p.m. on July 15, one-half hour before the election was scheduled to begin. Meanwhile, at 11:30 a.m. on the day of the elec- tion, prior to receipt of the Board's telegram but after telephonic notification of the Board's action, Joint Petitioners hand-carried a letter to the offices for Re- gion 21 in which Joint Petitioners stated that they did not wish to participate in the election and disclaimed interest in the unit found appropriate.3 Simulta- neously with the delivery of the letter, the Paint Mak- ers Local Union 1232 (herein Local 1232), one of the ees, sales employees, managerial employees. professional employees, guards and suoervisors as defined in the Act. 2 The remaining objections, which involved claims that certain chal- lenges to votes should have been accepted by the Board agent conducting the election and that no election should have been held in the enlarged unit. are rendered moot by our Decision herein and will not be discussed. 3 In their request for review, Joint Petitioners allege that the Regional 56 FRAZEE INDUSTRIES, INC. Joint Petitioners, filed a petition on its own behalf for an election in a portion of the unit previously sought by the Joint Petitioners. 4 In rejecting the Joint Petitioners' request to with- draw, the Regional Director relied in part on the fact that the letter was received less than 4 hours prior to the time scheduled for the election. The timeliness of such a request cannot be determined by reference to any rigid rules, but must be viewed in the light of the facts in any given case. Here, the Joint Petitioners were telephonically notified on the afternoon preced- ing the election that the Board had rejected their unit position. Allowing the Joint Petitioners a reasonable period to consider their position, we find that their request to withdraw was made in a timely fashion. Moreover, the request was received sufficiently early so that all parties could have been notified of the request and the election canceled. The Regional Director further relied on the simul- taneous filing of a representation petition by Local 1232 as evidence that the request to withdraw was not made unequivocally and in good faith, but was merely an attempt to relitigate unit issues previously resolved. In so concluding, the Regional Director im- properly relied on cases where the petitioning union continued to assert an interest in representing em- ployees in the same unit by threatening to engage in Director was advised during the week of June 27, 1977, that Joint Petitioners would withdraw from the election if their request for review was denied; they allege further that the Board agent who conducted the election was notified the night before the election that Joint Petitioners wished to with- draw and advised Joint Petitioners that their request should be directed to the Regional Office. The Regional Director made no findings concerning these allegations, and in view of our resolution of the case based on undis- puted facts it is unnecessary to determine whether these allegations are true. 4 Unlike the unit previously sought, Local 1232 sought to exclude ship- ping, receiving, and warehouse employees, and truckdrivers. economic activity5 or by continuing to claim to rep- resent employees in postelection proceedings. 6 In the instant case, only one of the Joint Petitioners seeks an election; more significantly, the unit sought by Local 1232 differs from that in the instant petition in that it excludes employees in classifications previous- ly sought by the Joint Petitioners, and no union claims to represent employees in the broader unit. The Joint Petitioners have participated in postelec- tion proceedings only insofar as they have urged that the election should not have been held. Accordingly, contrary to the Regional Director, we conclude that the filing of a petition by Local 1232 was not incon- sistent with the request to withdraw filed by the Joint Petitioners. Since we find that the request to with- draw should have been accepted, we shall vacate the election and dismiss the petition without prejudice to the right of the Joint Petitioners to file a petition in an appropriate unit. 7 ORDER It is hereby ordered that the election of July 15, 1977, among the employees in the unit hereinbefore set out, be, and it hereby is, vacated. It is hereby ordered that the petition filed herein be, and it here- by is, dismissed. I SlandardAutomorive Manufactunng Company, 109 NLRB 726 (1954). 6 Mississippi Valley Strrtcural Steel Company, 115 NLRB 1288 (1956). This case is further distinguishable in that the request to withdraw was made after the election and therefore would not ordinarily have been considered timely. I Buckeye Oil Company, Chermucal Pulp Division, 101 NLRB 30 (1952). See also National Labor Relations Board Casehandling Manual (Part Two) Representation Proceedings, Sec. 11114.4. Member Murphy points out that originally she dissented from the grant of review. However, since her col- leagues granted review, she now joins them in dismissing this petition. 57