EFCO Corp.

978 CONSOLIDATED PRINT WORKS, INC. Consolidated Print Works, Inc., and Auto Screen Print Corp. and United Textile Workers of America, AFL-CIO, Petitioner. Case 1-RC- 17313 March 16, 1982 DECISION, DIRECTION, AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER 'n September 17, 1981, the Regional Director for Region 1 of the National Labor Relations Board issued his Report on Objections and Chal- lenged Ballot in this proceeding.'hereafter, the Employer filed exceptions, with a supporting brief, to the Regional Director's recommendation to sus- tain a portion of Petitioner's Objection 11. The Employer argued that the report should not be adopted or, in the alternative, that a hearing should be conducted on the various alleged substantial and material issues of fact involving that objection. 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 reviewed the record in light of the exceptions and brief and has decided to affirm the Regional Director's findings and recommenda- tions only to the extent consistent herewith. With respect to that portion of Objection 11 which he recommended be sustained, the Regional Director found that the Board agent had breached the parties'onsent election stipulation by changing the eligibility date for the election after receipt of both parties'igned copies of the stipulation, and that such change was prejudicial and sufficiently material to warrant that the first election be set aside and a second election held. We disagree. Be- cause Petitioner did not pursue any of the options available to it to protest the changed eligibility date after being notified of the Regional Director's ap- 'he election was conducted on July 24, 1981, pursuant to a Stipula- tion for Certilication Upon Consent Election. There were 20 votes cast for, and 19 cast against, Petitioner. There was one challenged ballot, a number suAicient to affect the election tresults. Both the Employer and Petitioner thereafter filed objections to th'e election. In his report, the Regional Director recommended overruling the Em- ployer's objections in their entirety and-'Petitioner's first 10 objections. The Regional Director also recommendpd overruling all portions of Ob- jection 11 except Petitioner's objecti&}n to the change in the eligibility date set for the election. In the absence of exceptions thereto, we adopt, pro formo, the recommended overruling of Employer's Objections 1-4, Petitioner's Objections 1-10, and those portions of Petitioner's Objection I I which the Regional Director reabmmended overruling. The Regional Director also recommended overruling the challenge to Elizabeth Steere's ballot. In the absence of exceptions thereto, we also adopt, pro formo, the recommended overruling of the challenge to Steere's ballot. 260 NLRB No. 129 proval of the same, we find that Petitioner acqui- esced impliedly in the change.'s set out in the Regional Director's report, the facts indicate that, between May 27 and June 1, 1981, in separate telephone conversations with the Board agent handling the case, the Employer and Petitioner agreed to enter into a Stipulation for Certification Upon Consent Election, and that pur- suant to their agreement the payroll period for eli- gibility set forth in the stipulation was "Saturday, May 30, 1981."'he Board agent's June 1 cover letter accompanying the stipulation to the parties stated, however, that "the date for the payroll eli- gibility list will be the Saturday prior to the ap- proval of the Stipulation by the Regional Direc- tor." Petitioner signed its copy of the stipulation on June 3, and the Regional Office received that signed copy on June 4. On June 12, not having signed the stipulation as of yet, the Employer in- formed the Board agent of its desire to change the wording of the unit description in the stipulation. On June 15, the Board agent presented the pro- posed change to Petitioner's International vice president, who agreed to the change in the unit de- scription, but protested the Employer's delay in signing the stipulation. Upon inquiring whether the Emplyer's delay would affect the eligibility date, Petitioner's representative was informed that the eligibility date would be as set forth in the Board agent's cover letter of June 1. Petitioner protested any change in the eligibility date. Later on June 15, the Board agent informed the Employer of Petitioner's agreement to the request- ed change in the unit description in the stipulation. The Employer's attorney thereafter signed and de- livered the Employer's copy of the stipulation to the Regional Office on June 19. The Employer stated no reason for its delay in signing the stipula- tion other than its desire to change the wording in the unit description. Both the Employer's and Peti- tioner's signed copies of the stipulation designated "Saturday, May 30, 1981," as the payroll period for eligibility. Since the Employer did not return its signed stipulation until late on June 19, a Friday, it was 's we find that Petitioner's objection to the change in the eligibility date is without merit substantively, we find it unnecessary to pass on the Employer's additional allegations that Petitioner never served its objec- tions properly on the Employer. Our decision assumes, without deciding, that service was proper, and also assumes, without deciding, the timely filing of that portion of Petitioner's Objection 11 which concerns the changed eligibility date. In this latter regard, the Employer alleges that the text of Petitioner's Objection 11 in no way concerns the eligibility date; that Petitioner failed to assert formally its opposition to the changed eligibility date until a letter of September I, 1981; and hence that any ob- jection based on this assertion is untimely. 'll dates hereinafter are in 1981 unless indicated otherwise. CONSOLIDATED PRINT WORKS, INC. 979 not submitted to the Regional Director for approv- al until Monday, June 22, and the Regional Direc- tor approved. it on that date. Accordingly, the Board agent, pursuant to her June 1 cover letter, changed the eligibility date on both Petitioner's and the Employer's copies of the stipulation from "May 30" to "June 20," the latter date being "the Satur- day prior to the approval of the Stipulation by the Regional Director," as designated in her cover letter. The parties did not sign or initial copies of the stipulation reflecting the changed eligibility date, although both parties received copies of the revised stipulation. Neither protested the change in the el!gibility date thereafter. According to the Employer, on June 23, the par- ties to this proceeding were mailed a letter con- firming all election arrangements, including the new eligibility date. The election was held on July 24, almost 8 weeks after Petitioner first was ap- prised of the possibility of a change in the eligibil- ity date by the Board agent's June 1 cover letter, and some 4 weeks after Petitioner had received the revised stipulation confirming the new eligibility date. At the election, Petitioner did not challenge the ballots of at least three voters who were eligi- ble to vote only as a result of the changed eligibil- ity date. In his report, the Regional Director found that the Board agent's conduct in changing the eligibil- ity date breached the stipulation. Finding the May 30 eligibility date contained in the original stipula- tion to be an acceptable eligibility date, the Re- gional Director concluded that there was no com- pelling reason for the Board agent to have changed the eligibility date to June 20 over Petitioner's pro- test. Furthermore, the Regional Director found that the changed eligibility date enfranchised three employees hired by the Employer between May 26 and June 20. All three employees, who otherwise would have been ineligible to vote, cast ballots in the election and their votes were critical to the election's outcome. On the basis of the foregoing, the Regional Director concluded that the changed eligibility date constituted a breach of the stipula- tion which was prejudicial and sufficiently material to warrant setting aside the election. In addition, the Regional Director found that Petitioner's fail- ure to withdraw from the stipulation did not pre- clude it from raising the changed eligibility date in a postelection objection because a withdrawal would have resulted only in agreement upon an even later eligibility date. . In its brief, the Employer contends, inter alia, that Petitioner had been apprised as early as the Board agent's cover letter of June 1 that the par- ties'tipulation was subject to the Regional Direc- tor's approval. The Employer argues that, if Peti- tioner wished to contest the change in the eligibil- ity date, it could have contested that change in any one of the following ways: (1) by insisting upon re- tention of the Myy 30 date prior to the Regional Director's approval of the changed date, (2) by moving the Board to review the Regional Direc- tor's decision to change the eligibility date, or (3) by requesting a withdrawal from the stipulation. According to the Ediployer, Petitioner's failure to contest the change indicated its acquiescence in it. After considering all the above, we find that Pe- titioner acquiesced in the changed eligibility date for the election. After its initial June 15 protest of a change in that date, Petitioner did not make any oral or written protest of the changed date. By fail- ing to request a withdrawal from the stipulation4 or to protest the chan'ge in the eligibility date formally after notification of the change and the Regional Director's approval thereof, Petitioner indicated its acquiescence in the change. Accordingly, Petition- er is now estopped from asserting the change in the eligibility date as a meritorious postelection objec- tion.'urther, in these circumstances, to the extent that the Regional Director relied on the fact that three voters, who were not challenged at the elec- tion, were enfranchised only by the change in the eligibility date, the Regional Director, in effect, was considering postelection challenges in contra- vention of Board policy.'e therefore overrule Petitioner's Objection 11 in its entirety.'IRECTION It is hereby directed that the Regional Director for Region 1 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Decision, open and count Elizabeth Steere's ballot and thereafter prepare and serve on the par- ties a revised tally of ballots, including the count of said ballot, and thereafter issue the appropriate cer- tiflcation based on that revised tally. 'f. Sunnyvale Medical Clinic, Inc., 241 NLRB 1156 (1979). s Cf. )Vedgewood Industries, Inc., 243 NLRB 1190 (1979) (in overruling an objection, the Board considered the union's failure to protest the em- ployer's delay in submitting the Excelsior list, see Excelsior Underwear. Inc., 156 NLRB 1236 (1966), upon learning of such delay, as one factor in excusing the untimely submission). See also Commercial Air Condition- ing Co.. Inc. dlbla Sprayk'tug, Iuc., 226 NL'RB 1044 (1976). 'ee, e.g., ltiL.R.B. v. A. J. Tower Company, 329 U.S. 324 (1946); Penn Versatile Van Division oj Penn Truck Paintitig and Lenering Corp., 215 NLRB 843 (1974). See Calcor Corporation, 106 NLRB 539 (1953); cf. Active Sportswear Co.. Inc., 104 NLRB 1057 (1953). 'ecause no exceptions were filed to the Regional Director's recom- mendation to overrule the challenged ballot, we remand this proceeding to the Regional Director to open and count that determinative ballot. 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is hereby ordered that the above-entitled matter be, and it hereby is, referred to the Regional Director for Region 1 for further processing con­ sistent herewith. MEMBER FANNING, dissenting: I agree with the Regional Director's analysis of P.titio/er's Objection 11 and for that reason agree with him that the election should be set aside and a rerun .election directed.