Certain-Teed Products Corp.

National Labor Relations Board - Board Decisions

Oct 21, 1968

173 N.L.R.B. 229 (N.L.R.B. 1968)

CERTAIN-TEED PRODUCTS CORP.
Certain-Teed Products Corporation and Roger D.
Jaynes, Petitioner and United Cement , Lime and
Gypsum Workers International Union , AFL-CIO.
Case 21-RD-851
October 21, 1968
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Stipulation for Certification upon
Consent Election executed on November 1, 1967, an
election by secret ballot was conducted on November
29, 1967, under the direction and supervision of the
Regional Director for Region 21, among employees in
the stipulated unit. At the conclusion of the balloting,
the ballots were impounded because of pending
charges filed shortly before the election. These charges
were subsequently withdrawn on December 13, 1967,
and on December 18, 1967, the ballots were counted
and the parties were furnished with a tally of ballots.
The tally showed that of approximately 119 eligible
voters, 110 cast ballots, of which 13 were for, and 58
against the Union. There were 39 challenged ballots.
On December 26, 1967, the Union filed timely
objections to the election, alleging eight instances of
Employer misconduct and one instance of miscon-
duct by Petitioner Jaynes. The Union served the
Employer with a copy of its objections on the same
day. The Union did not, however, serve the Petitioner
Jaynes with a copy of its objections until January 12,
1968. Shortly thereafter, the Employer requested the
Regional Director to dismiss the objections on the
ground that the Union's delay in serving Jaynes
constituted a failure to follow the procedural obliga-
tions of service imposed on objecting parties by
Section 102.69(a) of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended.' The Regional
Director then caused an investigation to be made, and
thereafter, on February 14, 1968, issued and served
on the parties his Report on Objections. The Regional
Director denied the Employer's request that the
objections be dismissed without regard to their
merits, finding that the Union's delay in serving
Jaynes did not result in any prejudice to the parties.
With respect to the merits of the objections, the
Regional Director found that, as alleged in objection
5, the Employer had interfered with the election by
posting, during the 24-hour period immediately pre-
ceding the election, a copy of the Board ballot with
an X marked in the "NO" box. The Regional Director
further found that the Employer did not otherwise
1 Section 102.69 (a) states, inter alia, "Copies of such objections
shall immediately be served on the other parties by the party filing
them, and a statement of service shall be made." (Emphasis supplied.)
2 See, for example , Allied Electric Products, Inc., 109 NLRB 1270,
and Hughes Tool Company , 119 NLRB 739. To the extent that the
173 NLRB No. 38
229
engage in objectionable conduct, and that Jaynes had
not engaged in any objectionable activity. The Re-
gional Director recommended, therefore, that objec-
tion 5 be sustained, that the election be set aside, and
that a new election be directed. He further recom-
mended that all other objections be overruled. The
Employer thereafter filed timely exceptions to the
report, together with a supporting brief in which it
asks that the objections be dismissed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of the employees of the
Employer within the meaning of Section 9 (c) (1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act-
All production and maintenance employees at the
Certain-teed plant in Riverside, California, including
shipping and receiving employees, machine super-
visors, quality control inspectors, and the store-
keeper; excluding office clerical employees, guards,
watchmen, professional employees, and supervisors
as defined in the Act, as amended.
5. The Regional Director's recommendation that
the election be set aside is based upon the undisputed
fact that, during the 24-hour period preceding the
election, the Employer posted at its plant a reproduc-
tion of the Board ballot with an "X" marked in the
"NO" box. This activity was open and well-publicized
in nature and constituted conduct which the Board
has consistently found to warrant setting an election
aside.' The Employer excepts3 to the Regional
Director's recommendation on the ground, among
others, that the Regional Director acted contrary to
the Board's Rules and Regulations in investigating and
passing upon the merits of the objections in view of
the Union's delay in serving the Petitioner Jaynes
with a copy of its objections. Assuming the Em-
ployer, upon whom service was promptly made, has
the standing to complain of the Regional Director's
action in considering the merits of the objections in
the circumstances of this case, we do not agree with
the Employer's position that the Regional Director
acted improperly in so doing.
The facts relevant to the procedural matters
Employer's exceptions question the validity of the rule set out in these
cases or its applicability to the Employer 's activity herein, we find no
merit in these exceptions.
3 Jaynes, as noted, filed no exceptions to the Regional Director's
Report and Recommendations.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described by the Employer's exceptions are not
disputed.' Although the Union on the same day
mailed to the Employer a copy of the objections it
filed on December 26, 1967, it failed to mail a copy
of these objections to Petitioner Jaynes, until January
12, 1968. Its delay in serving Jaynes is not explained.
However, as set out in the affidavit submitted by
Jaynes to the Regional Director, Jaynes received
notice from the Regional Director on December 26,
1967, that the objections had been filed that day. On
the following day, December 27, Jaynes asked An-
derson, the Employer's personnel manager, about the
objections. Anderson then exhibited the Employer's
copy of the objections to Jaynes, but permitted
Jaynes to read only that part which referred to the
conduct allegedly committed by Jaynes. On January
4 and 7, Jaynes informed the Board's Regional Office
that he had not received a copy of the objections. On
January 12, the Union sent a copy to Jaynes.
On January 30, 1968, the Employer filed with the
Regional Director its motion to dismiss the objections
without regard to their merits alleging, as grounds
therefor, the delay in serving Jaynes.
In his report dated February 14, 1968, the
Regional Director denied the Employer's motion to
dismiss the objections, finding that the Union's delay
in serving Jaynes with a copy of its objections had not
resulted in prejudice to any of the parties, and that,
therefore, the Union had not contravened the service
requirements established in Section 102.69(a) of the
Board's Rules and Regulations. The Regional Director
cited the Board's decision in Southern Service Com-
pany, Ltd.,' as supporting his determination to
consider the objections on their merits in these
circumstances.
In complaining of the Regional Director's ruling
on the dismissal motion, and in presenting that
motion here anew, the Employer does not contend
that any prejudice was in fact suffered by it or by
Jaynes because of the Union's delay in serving the
objections on Jaynes. It claims rather that the use of a
prejudice standard to test the merits of its motion to
dismiss is contrary to the intent and purpose of both
the Board's above-cited rule and certain Board deci-
sions which have imposed a requirement of "strict
adherence" to the service requirements of Section
102.69(a) of our Rules and Regulations and in which
the Board applied that requirement in dismissing
election objections without regard to their merits
where the objecting party had delayed in serving
other interested parties.6
The Employer has failed to note, however, that
the cases it cites which express the policy of "strict
adherence" predate the decision of the Sixth Circuit
Court of Appeals in N.L R.B. v. Brown Lumber Co,
336 F.2d 641 (1964). In that case, the court denied
enforcement of the bargaining order the Board issued
in 143 NLRB 174. The court rested its decision on
the ground that, in the underlying representation
case, the Board had improperly rejected and refused
to investigate election objections timely filed by the
employer simply because the employer had not served
on the Union a copy of its objections as provided in
Section 102.69(a) of the Board's Rules and Regula-
tions. The court expressly noted that, in rejecting the
employer's objections, the Board had acted under a
literal interpretation of its rules and in accord with a
policy requiring strict observance of the service
provisions of the cited Board rule.' The court made it
clear that the Board was not justified in so doing
because it should have, but did not, consider the
following: (1) the union was not prejudiced by its not
having received a copy of the employer's objections;
(2) the injury which a "slavish adherence" to the
Board's procedural rules might do to basic employee
rights the Act entrusts to the Board's protection; and
(3) the concurrently operative effect of the provisions
of Section 102.121 of the Board's Rules and Regula-
tions, declaring, "The Rules and Regulations ... shall
be liberally construed to effectuate the purposes and
provisions of the Act."
The Regional Director's action in this case accords
without present view that, where as here, a party has
timely filed election objections with the Board, such
objections should not be rejected without considering
their merits simply because of a delay by the
objecting party in serving other parties with a copy of
the same, unless some prejudice be shown.'
As previously indicated, the Employer does not
claim that any prejudice resulted by the Union's delay
in serving Jaynes with a copy of its election objec-
tions, and the Regional Director found none in fact
existed. We, therefore, hereby deny the motion to
dismiss the objections which the Employer filed with
us and expressly affirm the Regional Director's
consideration of the merits of the Union's objections.
We have also considered, but find no merit in, the
Employer's exceptions to the Regional Director's
4 The Employer takes no exception to the Regional Director's
finding that the facts with respect to the procedural issue are
substantially as stated in Jaynes ' affidavit.
5 Case 21-RC-9026, not published in NLRB volumes.
6 General Time Corporation , 112 NLRB 86, Phillips Petroleum
Company, 122 NLRB 1351, Tung-Sol Electric, Inc., 114 NLRB 104
The court further stated
We do not believe that it was ever intended that the Board rules
should operate as the law of the Medes and Persians which
"altereth not ." They should not be applied as "a rigid code to
have an inflexible meaning irrespective of circumstances ," which
was the language used by the Supreme Court in refusing to adopt
a strict and harsh construction of the Federal Rules of Criminal
Procedure . Fallen v. United States, 378 U.S. 139, . decided
June 22, 1964 . In our judgment , the Board 's rules should have no
greater sanctity than the rules governing courts 336 F.2d 641,
645.
8 To the extent that General Time Corporation, 112 NLRB 86, and
similar cases are inconsistent herewith , they are overruled.
CERTAIN-TEED PRODUCTS CORP
finding that the Employer's conduct in posting for
the 24-hour period preceding the election a copy of
the Board's ballot in its plant with an "X" marked in
the "NO" box, prejudiced the results of the election.'
Accordingly, we adopt the Regional Director's
recommendation that the election herein be set aside
and we shall direct a new election.
9 See the cases cited supra, fn. 2.
In the absence of any exceptions thereto we adopt , pro forma, the
Regional Director 's recommended dismissal of objections 1,2,3,4,6,7,8,
and 9.
10 An election eligibility list, containing the names and addresses of
all the eligible voters , must be filed by the Employer with the Regional
Director for Region 21 within 7 days after the date of issuance of the
ORDER
231
It is hereby ordered that the election conducted
herein on November 29, 1967, be, and it hereby is,
set aside.
[Text of direction of second election' ° omitted from
publication]
notice of Second Election by the Regional Director The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances . Failure to comply with
this requirement shall be grounds for setting aside the election whenever
proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.