American Safety Equipment Corp.

AMERICAN SAFETY EQUIPMENT CORP. American Safety Equipment Corporation and Lodge No. 822, International Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. Case 14-RC-8247 January 26, 1978 DECISION AND ORDER DENYING REVIEW Pursuant to a Supplemental Decision and Order issued by the Regional Director for Region 14 on December 9, 1976, a second election was conducted on January 14, 1977, among employees of the Employer in an appropriate unit. The tally of ballots for the second election shows that, of 349 eligible voters, 326 cast ballots. There were 174 ballots cast for, and 152 ballots cast against, the Petitioner. Thereafter, on January 20, 1977, the Employer filed a timely objection to the election results. On January 26, 1977, the Regional Director issued a Second Supplemental Decision and Certification of Repre- sentative overruling the Employer's objection and certifying the Petitioner as the exclusive representa- tive of unit employees for the purposes of collective bargaining. On February 2, 1977, the Employer filed a request for review of the Regional Director's Second Supplemental Decision and Certification of Representative. In its request for review the Employer urges that the Regional Director erred in directing and con- ducting the January 14, 1977, rerun election, and that he erred in overruling its objection that a valid election was conducted among employees in the same unit' on October 29, 1976. The Board has considered the Regional Director's Second Supplemental Decision and Certification, the Employer's request for review and brief in support thereof, and the record as a whole, and has decided to adopt the Regional Director's findings and recom- mendations as contained in the said Second Supple- mental Decision. 2 Accordingly, we shall deny the Employer's request for review. As noted previously, 3 the Regional Director, sua sponte, set aside the first election based on matters which came to his attention during his investigation t The tally of ballots in the October 29, 1976, election showed that a majority of the valid ballots counted, plus the challenged ballots, were not cast for the Petitioner. However, the Petitioner filed timely objections to the election results and on December 9, 1976, the Regional Director issued his Supplemental Decision and Order in which he concluded that certain acts and conduct by the Employer, although not specifically alleged by the Petitioner in its objections, constituted grounds for setting aside the election. A panel of the Board, Chairman Murphy and Member Jenkins with Member Walther dissenting, denied the Employer's request for review on January 13, 1977. This Decision and Order supplies the rationale and explanation for our telegraphic decision to the parties, pursuant to which a rerun election has been won by the Union. 2 The relevant portion thereof is attached hereto as an appendix. 3 Supra, fn. I. 234 NLRB No. 95 of the Petitioner's timely filed objections to the election results. We think the circumstances of the case afford an appropriate vehicle for restating and reaffirming our longstanding policy which permits a Regional Director to set aside an election based on conduct which he has discovered during his investi- gation, even though that particular conduct had not been the subject of a specific objection. The Board has long held "the Regional Director is not required to, nor can he properly, ignore evidence relevant to the conduct of the election . . . simply because the Union may not have specifically men- tioned such conduct in its objections." Thomas Products Co., Division of Thomas Industries, Inc., 169 NLRB 706 (1968), citing Hobart Manufacturing Company, 92 NLRB 203 (1950); Merrimac Hat Corporation, 85 NLRB 329 (1949); and J. I. Case Company, Inc., 86 NLRB 12 (1949).4 Thus while it is the burden of the parties initially to investigate and to complain if they believe that objectionable con- duct has occurred, once the Board's investigative machinery has been set in motion by timely filed objections, it is within the Regional Director's discretion to determine the scope of the investigation. In the exercise of the discretion he may confine the investigation to matters specifically complained of in the objections or intimately connected thereto. On the other hand, he may view the filed objections as having cast suspicion over the entire election process, thereby justifying his independent investigation of matters not specifically contained in the objections. 5 However, no matter which approach the Regional Director chooses, if he receives or discovers evidence during his investigation that shows that the election has been tainted, he has no discretion to ignore such evidence and it is reversible error if he fails to set aside the election. The reason for this policy is at once apparent. For it is this Board's obligation to provide voters with the "laboratory conditions" under which they may exer- cise their franchise in a free and informed manner. 4 See also Neptune Water Meter Company, a Division of Neptune International Corporation, 221 NLRB 428, 438-439 (1975): General Electric Company, 215 NLRB 520 (1974); and Coca-Cola Bottling Company of Blytheville, 210 NLRB 706, 715(1974). 5 The courts, in approving the Board's policy in this area, have pointed out that there are two facets of the Regional Director's investigation and, although the Regional Director may properly decline to consider objections that are untimely, "this limitation does not preclude his consideration of matters which he may choose to investigate independently. . .. N.LRB. v. Realist, Inc., 328 F.2d 840, 843 (C.A. 7, 1964), cert. denied 377 U.S. 994 (1964). Of course, in every case the Regional Director's discretion to pursue or not to pursue any matter is informed by his judgment of the probability that further investigation will be fruitful and only after consideration of. among other factors, the Region's workload and available manpower. 501 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indeed, we have long recognized that it is "the rights of employees which are of paramount importance." 6 Were we to close our eyes to objectionable conduct merely because a party has failed to frame its objections properly to include such conduct, we would make a mockery of our pledge to preserve employee rights to a fair election. We would also go a long way down the road of abdicating our "weighty responsibility," in conducting elections, to assure the public, as well as the immediate parties in interest, that the selection of a bargaining agent will be determined under conditions as nearly ideal as possible. 7 Indeed, it is no exaggeration that an election can serve its true purpose only if this Board remains vigilant in ensuring that all the conditions surrounding the election process have been such as to enable employees to register their free choice in the matter of a bargaining agent. The wisdom of the Board's current policy is particularly evident in a case such as this. Here the Union's objections to the first election included an allegation of the Employer's disparate treatment of prounion and antiunion employees with respect to discussion of the union campaign during working hours. In the course of his investigation of the objection the Regional Director came across an employee handbook containing no-solicitation, no- distribution rules which he concluded, and we agree, constituted interference with the organizational rights of employees. Were we to bar the Regional Director from considering and from setting aside an election because of such patently unlawful rules, we would be in the untenable position of certifying an election as fair, even though we had in our possession clear and uncontroverted evidence that in any other instance would require us to set aside the election. Particularly is this position untenable where the unlawful no-solicitation rules were so closely related to the disparate solicitation restrictions alleged in the objection so that an investigation of the latter would almost inevitably uncover the former. Finally, we note that the liberal policy of permit- ting the Regional Director to go beyond the specific conduct alleged in filed objections is in harmony with our usual practice and procedure in other matters, and indeed with the whole trend of modem a Pure Chem Corporation, 192 NLRB 681 (1971). I N.L.R.B. v. Schwartz Brothers and District Record's, Inc., 475 F.2d 926, 930(C.A.D.C., 1973). " See, in this regard, Sec. 102.121 of the Board's current Rules which states, in pertinent part, "'The rules and regulations . . . shall be liberally construed to effectuate the policies and provisions of the Act." In commenting on the policy considerations which underlie a liberal construction and application of the Federal Rules, the Court of Appeals for the Seventh Circuit explained: "The spirit and the design of the rules dictate that every suitor shall either prevail or fail on the justness of his cause, not the technical niceties of the pleadings." United States v. The Home Indemnity Company, 489 F.2d 1004, 1007 (1973). pleading.8 For example, in unfair labor practice proceedings, consistent with rule 15(b) of the Federal Rules of Civil Procedure, we routinely permit amendment of the complaint to conform to the proof at the end of the hearing. And we find and remedy, sua sponte, violations of our Act even when the unlawful conduct that is the object of such findings is not alleged specifically in the complaint, so long as the conduct is fully litigated at the hearing and is related to matters set forth in the complaint. See Crown Zellerbach Corporation, 225 NLRB 911 (1976), and cases cited therein at 912. We see no reason to follow a different procedure in representation cases, particularly as such cases are strictly administrative and nonadversary in nature.9 ORDER It is hereby ordered that the request for review be, and it hereby is, denied as lacking in merit. MEMBER PENELLO, concurring in the result: I concur in the result reached in this case, but for reasons entirely different than those stated in the majority opinion. I regard the majority's rationale as totally inapposite in view of the issues actually contested. My colleagues have delivered an advisory opinion where none has been sought, yet failed to address themselves to the subject for which Board review has been requested. The Employer's current request for review alleges that the Regional Director erred in determining the merits of conduct which he found to be objectionable and a basis for setting aside the October 29, 1976, election, the first held in this proceeding. The question of law presented is substantive, not proce- dural. It is, in fact, essentially the same question which a Board panel majority had considered and resolved by telegraphically denying the Employer's previous request for review on January 13, 1977. (Member Walther dissented therein without com- ment.) I did not participate in the panel decision to deny the Employer's request for review at that time and I do not express any opinion with respect to the merits of that decision. However, the panel's tele- graphic decision, reflective of Board majority opin- ion, clearly and conclusively invalidated the October 9 It has sometimes been advanced as a "practical" reason for changing our policy and requiring henceforth that the Regional Director confine his investigation to conduct specifically alleged in the objection that to do so would appreciably speed up our handling of representation matters. The question of employee rights and of the public interest in the integrity of the election process aside, we see no possibility that such a result would follow abandonment of our present policy. In the first place, only in a very small number of objection cases do the Regional Directors find it necessary to go beyond the specific objections to consider other conduct that may have tainted the election. Even in these instances, there is apt to be no undue delay in the process inasmuch as the objectionable conduct is already discovered by the time of hearing or issuance of decision. 502 AMERICAN SAFETY EQUIPMENT CORP. 29, 1976, election results. I therefore agree with the Regional Director's rationale in disposing of the Employer's sole objection to the rerun election held on January 14, 1977,10 and would deny the Employ- er's request for review since it raises no substantial issues warranting Board review. The Employer has never challenged the Regional Director's actions in this case on the procedural grounds that Regional Directors lack the authority to set aside elections based on conduct discovered during their investigations but not specifically al- leged in timely objections. I have fully elaborated my opinion opposing the majority on this issue when it was properly before the Board in Dayton Tire & Rubber Co., 234 NLRB 504 (1978). Any discussion by my colleagues in the majority of the procedural propriety of objections raised sua sponte by a Region- al Director is inappropriate herein, since their opin- ion is not contrary to any views expressed by the litigants or the Regional Director during these proceedings. Moreover, I do not accept the Regional Director's characterization of the Employer's objectionable activity in this case as "Other Acts and Conduct" not specifically alleged in the Petitioner's objections. The Petitioner did allege that the Employer's election period enforcement of rules regulating employee activity affected the first election's results. Such an allegation necessarily entails the Regional Director's investigation and examination of any written no- solicitation, no-distribution rules promulgated or maintained by the Employer during the election period. Whether the illegality ultimately discovered lies in disparate treatment of prounion employees under a disciplinary system defined by written rules or in the facial invalidity of the rules themselves, the same conduct is involved, i.e., the Employer's unfair application of restrictive rules to employees during the election period. I therefore believe that the allegation made in the Petitioner's timely objections to the first election encompass the conduct found objectionable by the Regional Director. 10 See the appendix herein. APPENDIX The Objections In its sole objection, the Employer alleges that "the Regional Director erred in directing and holding the 2 The Employer began operations at this facility in January 1976. Prior election on January 14, 1977, in that said election was directed and conducted in violation of Section 9(cX3) of the Act in that a valid election was held in the preceding twelve month period." The Petitioner's position is that the objection is without merit, inasmuch as the October 29, 1976, election was set aside because of meritorious objec- tions filed by the Petitioner. Pursuant to a petition filed on August 26, 1976, and the Regional Director's Decision and Direction of Election issued on October 4, 1976, an election was conducted on October 29, 1976, among employees of the Employer in the collective-bargaining unit described hereinabove. 2 The tally of ballots served upon the parties at the conclusion of the election discloses that a majority of the valid votes counted plus challenged ballots were not cast for the Petitioner. Timely objections to the election were filed by the Petitioner on November 5, 1976. Thereafter, the Regional Director caused a full and complete investigation to be made of the objections. On December 9, 1976, the Regional Director's Supplemental Decision and Order issued, wherein the undersigned ordered that the election held on October 29, 1976, be set aside and that a second election be conducted. On December 20, 1976, the Em- ployer filed a request for review of the Regional Director's Supplemental Decision and Order. By telegram dated January 13, 1977, the Board denied the Employer's request for review on the ground that it raised no substantial issues warranting review. Thereafter, the rerun election was conducted on January 14, 1977, as previously scheduled. Section 9(cX3) provides, in pertinent part, that "no election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held." Subsequent to the filing of timely objections by the Petitioner, the undersigned Regional Director set aside the election conducted on October 29, 1976, and the Employer's request for review of the Supplemental Decision and Order was denied by the Board. In these circumstances, no valid election was held among employees during the 12-month period preceding the rerun election conducted on January 14, 1977, and, therefore, the conduct of the rerun election at such time constitutes no basis upon which the rerun election may be set aside. Central Swallow Coach Lines, Inc., 82 NLRB 487 (1949); Foreman & Clark; Inc., 105 NLRB 333 (1953); Sea-Land Service, Inc., 137 NLRB 546 (1962); Security Aluminum Company, 149 NLRB 581 (1964). Accordingly, the Employer's objection to the election is hereby overruled. to October 29, 1976, there had been no Board election conducted at this facility. 503