Eltra Corp.

' PRESTOLITE WIRE DIVISION 327 Presto'lite Wire Division, Eltra Corporation and Inter- national Union, United Automobile, Aerospace and Agricultural Workers of America (UAW). Case 7- CA-12848 October 8, 1976 - ORDER DENYING MOTION BY CHAIRMAN 'MURPHY MURPHY AND MEMBERS FANNING AND,JENKINS On June 24, 1976, pursuant to a Motion for'Sum- mary Judgment filed by counsel for the General Counsel, the National Labor Relations Board issued a Decision and Order 1 in Case 7-CA-12848, finding that the Respondent had engaged in and was engag- ing in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the National Labor Rela- tions Act, as amended, and ordering that Respon- dent cease and desist therefrom and take certain af- firmative action to remedy such unfair labor practices. Asserting that it learned for the first time that none of the affidavits developed during the course of the Regional Director's investigation of the Respon- dent's objections to the election conducted in Case 7-RC-13057 were considered by the Board,2 Re- spondent on August 30, 1976, filed a motion for re- consideration moving that the Board (i) review the entire record submitted to and developed by the Re- gional Director in the investigation of the Respon- dent's election objections; (ii) reconsider its decisions in the representation case and in the instant unfair labor practice case in the light of said record; (iii) withdraw its Order herein; and (iv) either set aside the election or remand the case for a hearing on Re- spondent's objections to the election. Its basic con- tention is that when the Board overruled Respon- dent's election objections and certified the Union the representation case record before it was incomplete because it did not contain either affidavits submitted by Respondent to the Regional Director in support of its election objections or those taken by a Board agent in the course of the investigation of Respon- dent's objections. Respondent argues that in stipula- tion cases such affidavits must be included in the i 225 NLRB No. 1 (1976). 2 After an election conducted by the Regional Director pursuant to a Stipulation for Certification Upon Consent Election, the Board, on January 30, 1975, issued in Case 7-RC-13057 a Decision and Certification of Repre- sentative in which , after considering the Regional Director's report recom- mending that the Respondent's election objections be overruled in their entirety, the Respondent's exceptions thereto and brief, and the entire rec- ord, it adopted the findings, conclusions, and recommendations of the Re- gional Director and certified the Union record (1) because the Board's decision in su& pro- ceedings is de novo, and (2) because the definition of "record" in Section 102.69(g). of the Board's Rules and Regulations, Series - 8, as amended, includes "documentary evidence," and the affidavits Respon- dent submitted and -the investigatory-affidavits which were not within its control are "documentary evi- dence" and therefore a part of the record. - 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, having duly considered the matter, is of the opinion that the Respondent's motion for re- consideration must be denied. First, we note that Respondent's motion for recon- sideration is untimely filed with respect to the repre- sentation case and the instant unfair labor practice proceedings under the Board's Rules and Regula- tions, which provide that, absent "extraordinary cir- cumstances" and "newly discovered evidence," mo- tions for reconsideration must be filed within 10 days in representation cases and 20 days in unfair labor practice cases after the service of the Board decision? The motion herein was filed on August 30, 1976, over 2 months after the issuance and service of the Board's Decision and Order herein and long after the Board's earlier Decision and Certification of Repre- sentative. The Respondent asserts that it first learned of the absence of the affidavits in a discussion with a representative of the General Counsel concerning designation of the record for proceedings in the Court of Appeals for the Sixth Circuit in the instant unfair labor practice case. We do not consider these circumstances to constitute "extraordinary circum- stances" or "newly discovered evidence" under the aforesaid rules, especially since footnote 1 of the Board's Decision and Order alerted the parties to the definition of the term "record" in a representation proceeding. Further, it is well established, by various Board and court cases cited in footnote, 1, that docu- ments such as letters, statements, or affidavits related to the representation case which were before the Re- gional Director in his disposition of election objec- tions are not part of the record in either the represen- tation case or in the related unfair labor practice proceeding .4 In these circumstances, we conclude that the Respondent has not alleged "extraordinary circumstances" or "newly discovered evidence" justi- 3 Sec 102 65(e) and 102 48(d) of the Board's Rules and Regulations, Ser- ies 8 , as amended ° E.g, in Golden Age Beverage Comapny, 167 NLRB 151 (1967), enfd 415 F 2d 26 (CA 5, 1969), a stipulation case , the record transmitted to the Board consisted of exactly the same type documents as were before the Board in this case , see International Union of Electrical, Radio and Machine Workers, AFL-CIO [Liberty Coach Co Inc J v N L R B, 418 F 2d 1191, 1198, fn 18 (C.A.D C, 1969), also a stipulation case. 226 NLRB No. 62 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fying the untimely filing of its motion, for reconsider- ation and that, in any event, the record, under the Board's ,Rules and,established precedents, does not include the affidavits sought to be included by the Respondent. Accordingly, we find that, the Respon- dent's motion for reconsideration must be denied for untimeliness under the Board's Rules and for lack of merit.5 5 We also reject the Respondent's contention that the term "documentary evidence" as used in Sec 102.69(g) of the Board's rules contemplates the inclusion ,of objection affidavits where there has been no hearing. Rather, it refers only, to "documentary evidence" submitted by the parties during the course of a hearing and there was none here . See International Union of It is hereby ordered that' the, Respondent's motion for reconsideration be,-and it hereby is, denied. Electrical Radio and Machine Workers v. N.LR. B, supra. Further,-under the provisions of Sec. 102.69(g), the Respondent could have submitted, but did not submit, to the Board its affidavits supplied to the Regional Director, by attaching them to its exceptions to-the Regional Director's report on objec- tions Nor do we find merit in Respondent's contention that the Board's decision in stipulated representation proceedings is de nova, where, as here, the Board, after considering the Respondent's exceptions` to the Regional Director's report on objections, adopted it and, as stated in the instant Decision and Order, "necessarily found that there were no substantial or material facts warranting a' hearing." Seca 102.69(f) provides that, unless a party's exceptions raise substantial and material issues with respect to the conduct or results of the election, the Board decides the case based on the "record" as defined in Sec. 102.69(g). See International Union of Electrical Radio and Machine Workers v. N.L.R B, supra.