Rodac Corp.

RODAC CORPORATION Rodac Corporation and Miscellaneous Warehouse- men, Drivers & Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Case 21-RC- 14450 August 9, 1977 DECISION AND DIRECTION OF SECOND ELECTION' BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel of the NLRB has considered the objection to an election held on February 13, 1976,2 and the Hearing Officer's report recommending disposition of the same. The Board has reviewed the record in light of the exceptions and brief and hereby adopts the Hearing Officer's findings and recommen- dations. Our dissenting colleague concludes that the Em- ployer's intrusion into the Peerless Plywood3 24-hour insulated period was inadvertent and therefore furnished no basis for setting aside the election. This conclusion of inadvertence disregards the Hearing Officer's factual findings with which she does not disagree. In reliance on the Employer's testimony, the Hearing Officer found that the Employer knew that delivery of the speech in English would consume exactly 15 minutes. This was to be followed by delivery of the speech in Spanish. There is no suggestion that its rendition in Spanish was expected to take less than 15 minutes. Thus the Employer knew that the full 30 minutes allowed for the meeting before the 3 p.m. commencement of the 24-hour insulation period would be exhausted by the speech- es alone. Nevertheless, prior to the meeting it had planned several announcements at the meeting in addition to the speeches. Announcements were to be made in English at the conclusion of the English delivery and in Spanish after the Spanish version. Thus it was a certainty, based on the Employer's deliberate planning, that the meeting would intrude into the insulated period. This can hardly be characterized as inadvertent or accidental. The Hearing Officer was clearly correct in finding this The instant Decision supplements an Order issued by the Board on June 9. 1976 (not published in the printed volumes of Board Decisions), in which we adopted the Regional Director's findings, conclusions, and recommendations overruling all of the Petitioner's objections except Objection 2, as to which we ordered the instant heanng that was held on July 9, 1976. 2 The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was: 78 ballots for, and 142 against, the Petitioner. There were 20 challenged ballots, an insufficient number to affect the results of the election. 231 NLRB No. 29 deliberate conduct to be in willful disregard of the Peerless Plywood restrictions. The cases relied on by our colleague do not support a contrary conclusion. In Granite State Veneer, Inc., 123 NLRB 1497 (1959), to ensure compliance the employer had a representa- tive present to time the speech. Accordingly, the overrun, if any, was found to be accidental. In Nebraska Consolidated Mills, Inc., 165 NLRB 639 (1967), and WATE, Inc., 123 NLRB 301 (1959), the employees' presence during the extended period was entirely voluntary. In cases involving deliberate disregard of the 24-hour limitation, strict enforce- ment is required if the Peerless Plywood rule is to survive irreparable erosion. [Direction of Second Election omitted from publi- cation.]4 MEMBER MURPHY, dissenting in part: I cannot adopt the Hearing Officer's recommenda- tion, based on Petitioner's Objection 2, to set aside the election because the Employer's speech carried over a few minutes into the Peerless Plywood5 24- hour period preceding the election. The election was scheduled to be held from 3 to 3:30 p.m. on February 13, 1976. The day before the election the Employer, by its president, first gave a speech to the assembled employees in English and then, through its general foreman, essentially repeat- ed it in Spanish. Each language segment of the speech was designed to take 15 minutes and the meeting at which the speech was given started at 2:30 p.m., as planned. The English portion was completed within 15 minutes allotted to it, after which two brief announcements were made in that language, one of which advised the employees that they were free to leave or stay and hear the speech in Spanish.6 The Spanish deliverance of the speech and a subsequent announcement that an employer-sponsored party would be held ended at 3:07 p.m., or 7 minutes past the beginning of the 24-hour proscribed period. On these facts the Hearing Officer concluded that the speech's intrusion into such period was deliberate rather than inadvertent, and thus in willful disregard of the "Peerless Plywood limitations imposed on the timing of [the Employer's] campaign speech .... " The key to whether the Peerless Plywood principle was violated in this case is, as the Hearing Officer and my colleagues have recognized, whether the 3 107 NLRB 427 (1953). ' [Excelsior footnote omitted from publication./ 5 107 NLRB 427(1953). 6 The Hearing Officer found that this did not remove the mandatory character of the meeting for the Spanish-speaking employees who did not understand English and therefore the meaning of this announcement. I have no quarrel with that finding, although I think the release of about half the employees constitutes a factor supporting my conclusion that the contraven- tion of the Peerless Plywood period in this case was inadvertent. 261 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failure of the Employer to conclude the speech outside the 24-hour period was inadvertent or not. In my opinion the extension of the Spanish rendition of the Employer's speech 7 minutes into the proscribed period was accidental and inconsequential. 7 The facts show that the Employer had no intention of breaching the proscribed period. Indeed, while aimed as a "last minute" appeal at the employees, the speech was constructed so as to last no longer than 30 minutes, 15 for each language; it was promptly started at 2:30 p.m.; there is no evidence of any interruption in its oration; and, as found by the Hearing Officer, each segment took the 15 minutes allotted to it. Hence, it should have been completed, as planned and intended, by 3 p.m. on February 12, 1976, thereby avoiding intrusion into the Peerless Plywood period. 8 That what mathematically should have occurred did not, that the Employer miscalcu- lated the actual time it would take to deliver the speech and a few accompanying announcements does not warrant the majority concluding as it has the brief intrusion that occurred here was "deliber- ate" and "willful." To draw that conclusion in the face of the above facts, which show a considered and conscientious effort by the Employer to achieve compliance with Peerless Plywood, is to pervert the dictionary meaning of the above two words, while imparting a slavish adherence to the time strictures imposed by that case. Absent evidence demonstrating that the intrusion could only have been intended from the outset or showed callous or complete disregard of the Peerless Plywood injunction, I am unwilling to characterize every minor violation of the proscribed period as deliberately intended. The test for determining 7 Granite State Veneer, Inc., 123 NLRB 1497 (1959); Nebraska Consoli- dated Mills, Inc., 165 NLRB 639 (1967). R Unlike my colleagues, I am unable to perceive how a plan for a small number of brief announcements establishes that "it was a certainty" that the meeting would intrude into the insulated period. The announcements at the end of the English version were that there would be a party, that the speech whether a contravention of the 24-hour period was intentional or inadvertent should not be that the offending party could have avoided the problem by beginning the speech earlier than it did-notwith- standing that would have been the safe and prudent thing to do. Rather, the test should be whether the party charged with violating the period in question acted reasonably and in good faith in planning, scheduling, and delivering the speech. Obviously, the length of time the intrusion lasted will be a significant factor in applying the latter test. However, unlike the approach followed by the Hearing Officer and my colleagues, its mere existence will not be dispositive of the issue in question. Under the per se test they appear to apply, it is hard to imagine the Board finding as "inadvertent" any trespass of the proscribed period, no matter how slight or uninten- tional it might be. Here, despite the Employer's precautions, there was but a laspe of 7 minutes which the Employer failed to anticipate would be needed to achieve its purpose and avoid any supportable accusation of objectionable conduct within the meaning of Peerless Plywood, and only about half of the employees were involved. I do not believe that the principle enunciat- ed by that decision was ever meant to be applied so technically or mechanistically; and the Board's decisions in Granite State Veneer and Nebraska Consolidated Mills, Inc., supra, 9 placing that principle in its proper perspective, convince me of the soundness of that view. Accordingly, I would reverse the Hearing Officer's recommendation concerning Objection 2 and certify the results of the election. would be read in Spanish, and that employees were free to leave. At the end of the Spanish version the party announcement was repeated. These announcements were of a type which takes so little time that the Employer had every reason to believe they could be made without any significant effect on its schedule. 9 See also WA TE, Inc., 123 NLRB 301 (1959). 262