Lindsley Industries of Sarasota, Inc.

LINDSLEY INDUSTRIES 647 Lindsley Industries of Sarasota , Inc. and Laborers' Lo- cal Union No. 1240, affiliated with Laborers' Inter- national Union of North America, AFL-CIO, Petitioner. Case 12-RC-4013 October 10, 1972 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on April 7, 1972, under the direction and supervision of the Regional Director for Region 12 among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approxi- mately 36 eligible voters 35 ballots were cast, of which 17 were for and 17 were against the Petitioner and 1 was void. Thereafter, the Petitioner filed timely objec- tions to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director, on April 21, 1972, issued and served upon the parties his Report on Objections in which he recommended that the objections be over- ruled in their entirety because the Petitioner had failed to submit any evidence in support of any of its objections and that the Board certify the election re- sults. On April 27, 1972, the Petitioner filed exceptions to the Regional Director's report in which it: (1) re- quested that the Board remand the matter to the Re- gional Director for further consideration in light of oral representations assertedly made to Petitioner's counsel by named Board agent on April 18, 1972, with respect to the investigation of the objections; and (2) represented that the Petitioner would "complete pro- curing of evidence in support of its objections by May 2, 1972." On June 16, 1972, the Regional Director, having concluded that a "response" to the Petitioner's excep- tions, supra, was "appropriate and warranted" in the circumstances, issued and served upon the parties a Supplemental Report on Objections in which the Re- gional Director: (1) reported on the nature of the oral conversations held April 18, 1972, between Petitioner's counsel and the Board agent named in Petitioner's exceptions; (2) stated that, although Peti- tioner had now submitted affidavits in support of ob- jections the same were "attested to on May 10, 1972, and were received in this [the Regional] office on May 16, 1972"; and (3) set out his conclusion that no change in his recommended dismissal of the objec- tions was warranted in the total circumstances. There- after Petitioner filed a statement excepting to the Re- gional Director's supplemental report and requesting that a hearing be held to resolve any relevant factual issues relating to the occurrences of April 18, 1972. 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. 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 pur- poses of the Act to assert jurisdiction herein. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees of the Employer 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, in- cluding truckdrivers, excluding all office clerical employees, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Director's Report and Supplemental Report on Ob- jections in light of the Petitioner's exceptions and its request for a remand of this proceeding to the Region= al Director. In our opinion, Petitioner's exceptions assert no meritorious grounds which would justify either our reversal of the Regional Director's findings that Peti- tioner has failed to meet its obligation to supplyprima facie evidence in support of its objections or his conse- quent recommendation that the objections be over- ruled in their entirety, or which would warrant our remand of this proceeding to the Regional Director for any further consideration. The procedural obligations of parties who wish to file objections to an election and to obtain a deter- mination of their merits are fixed by the Board's Rules and Regulations. As noted by the Regional Director's reports, the parties' obligations in this respect include the prompt submission of written prima facie evidence within specified time limits. If evidence is not submit- ted with the objections when filed, the Regional Di- rector fixes, as he here did, a deadline date which the parties are not free to treat as inappropriate for rea- sons satisfactory to themselves. If, indeed, circum- stances exist which may warrant the grant of additional time for the objecting party to perfect its statement of objections in the manner our rules re- 199 NLRB No. 83 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quire, that party has the obligation to explicate these Accordingly, and as the tally of ballots shows circumstances to the Regional Director and to request that the Petitioner has not obtained a majority of the from him the extension of the deadline date in writing. valid votes cast in this election, we shall certify the Petitioner unquestionably failed to meet that obliga- results of the election. tion.' ' According to its counsel, Petitioner on April 18 advised a Board agent orally that it could not meet that deadline without , however, either setting forth with any specificity, if at all, the reasons for its inability or even mentioning the amount of additional time it felt would be needed. The representation made to us in requesting a remand of this case to the Regional Director on April 27, 1972, was that Petitioner regarded a May 2, 1972, deadline date as appropriate . This was not of course a proper request for extension, and in any event Petitioner did not submit evidence until after that date. Accepting in toto Petitioner's account of conversations with the Board agent, it being plain that Petitioner made no timely request for an extention, and as we agree that no statements attributed to the Board agent furnish a reasonable basis for assuming that said ex parse conversation resulted in a waiver of the Regional Director's clear instructions, we are satisfied that any relief to Petitioner would be improper as tantamount to the grant of a special privilege, prejudicial to uniformly applied rules designed to encourage the timely resolution of a question concerning representation. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of valid votes has not been cast for Laborers' Local Union No. 1240, affiliated with Laborers' International Union of North America, AFL-CIO, and that said labor organ- ization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Rela- tions Act, as amended.