Cerlo Mfg. Corp.

National Labor Relations Board - Board Decisions

Apr 5, 1979

241 N.L.R.B. 764 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cerlo Manufacturing Corporation and Warehouse,
Mail Order, Office, Technical and Professional Em-
ployees Union Local No. 743, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Petitioner.
Case 13-RC-14151
April 5, 1979
ORDER REMANDING PROCEEDING TO
REGIONAL DIRECTOR FOR HEARING
BY CHIAIRMAN FANNING AND MEMBERS PENELLO
AND MURPHY
On April 7, 1977, the National Labor Relations
Board issued a Decision and Direction of Second
Election in Case 13-RC-14151.' On January 24,
1978, the Board issued a Decision and Order in Case
13-CA-165622 finding that Respondent had unlaw-
fully refused to bargain with the Union, which had
been certified subsequent to the election conducted
pursuant to the aforementioned Decision and Direc-
tion of Second Election, and ordering Respondent to
bargain.
Respondent filed a petition for review and the
Board filed a cross-application for enforcement of its
Order in Case 13-CA-16562 in the United States
Court of Appeals for the Seventh Circuit. In an opin-
ion dated October 24, 1978, 3 the court denied enforce-
ment of the Board's Order on grounds that the first
election should not have been set aside because Cerlo
adduced uncontested evidence that the voters were
aware of their employee rights under Section 7 of the
Act. 4 However, the court specifically noted that "the
Board is of course free to conduct further proceedings
if any remaining Union objections to the first election
are still viable."
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.
In Case 13-RC-14151 the Regional Director rec-
ommended that the Union's Objection 9 be sustained
and that a second election be directed by the Board.
In the alternative he recommended that a hearing be
directed with regard to six other objections (numbers
'Not reported in bound volumes.
2234 NLRB 397.
585 F.2d 847.
' In its Decision and Direction of Second Election the Board adopted the
Regional Director's recommendation that the Union's Objection 9 be sus-
tained. Objection 9 alleged that Respondent's employees were depnved of an
opportunity to be informed of a Board election because Respondent did not
post any NLRB notices prior to the election.
1, 2, 3, 4, 5, and 8) filed by the Union. In its Decision
and Direction of Second Election the Board adopted
the Regional Director's report and sustained Objec-
tion 9; thus, no hearing was ordered on the other
objections.
In its statement of position the Union contends
that Objection 1, 2, 3, 4, 5, and 8 should be referred to
hearing and further contends that it should be given
an opportunity at the hearing to present evidence on
Objection 9.
Respondent opposes the Union's contentions argu-
ing that the remaining objections are no longer viable
and that holding an initial hearing on objections more
than 2 years after the date of the election and the
filing of the objections would severely prejudice its
rights. Specifically, Respondent contends: (1) that the
Regional Director's recommendation that a hearing
be directed with regard to Objections 1, 2, 3, 4, 5, and
8 was expressly conditioned upon the refusal of the
Board to adopt the recommendation of the Regional
Director with respect to Objection 9; (2) that the sec-
ond election held on May 12, 1977, is void, and the
results thereof cannot prospectively apply with re-
spect to any objectionable conduct as alleged in Ob-
jections 1, 2, 3, 4, 5, and 8; and (3) that during the
time elapsed since the first election Respondent's em-
ployee complement has changed to such an extent
that Respondent could be significantly prejudiced in
its ability to conduct a proper defense at any hearing
on Objections 1, 2, 3, 4, 5, and 8.
We find no merit in Respondent's contentions.
Clearly, in the absence of a hearing, Objections 1, 2,
3, 4, 5, and 8 remain viable as there has been no
determination regarding their merits. Accordingly, we
shall direct that a hearing be conducted on these ob-
jections.
ORDER
It is hereby ordered that a hearing be held before a
duly designated hearing officer for the purpose of re-
ceiving evidence on Objections 1, 2, 3, 4, 5, and 8.
IT IS FURTHER ORDERED that the hearing officer des-
ignated for the purpose conducting such hearing shall
prepare and cause to be served on the parties a report
containing resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Board
as to the disposition of said Objections. Within 10
days from the date of issuance of such report, either
party may file with the Board in Washington, D.C.,
an original and seven copies of exceptions thereto.
Immediately upon the filing of such exceptions, the
party filing the same shall serve a copy thereof on the
other party and shall serve a copy thereof on the
other party and shall file a copy with the Regional
241 NLRB No. 118
764
CERLO MANUFACTURING CORPORATION 765
Director. If no exceptions are filed thereto, the Board matter be, and it hereby is, referred to the Regional
will adopt the recommendations of the hearing offi- Director for Region 13 for the purpose of conducting
cer. such hearing, and that the Regional Director be, and
IT IS FURTHER ORDERED that the above-entitled he hereby is, authorized to issue notice thereof.