Union Carbide and Carbon Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1952

99 N.L.R.B. 774 (N.L.R.B. 1952)

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. Local Union 558, International Brotherhood of Electrical Workers, is a
labor organization , within the meaning of the Act.
2. By interfering with, restraining , and coercing its employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Elbert O. Estes , the Respondent has engaged , in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
5. The Respondent did not commit unfair labor practices by discriminatorily
discharging Lawson Taylor.
[Recommendations omitted from publication in this volume.]
NATIONAL CARBON COMPANY, DIVISION OF UNION CARBIDE AND CARBON
CORPORATION and UNITED GAS, COKE AND CHEMICAL WORKERS OF
AMERICA, CIO, PETITIONER. Case No. 8-RC-1316. June 17, 1952
Decision and Order
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on July 13, 1951, under the
direction and supervision of the Regional Director for the Eighth
Region, among the employees in the stipulated unit. Thereafter, a
tally of ballots was furnished the parties, which showed the results to
be inconclusive.' Accordingly, a runoff election was conducted on
August 1, 1951. Upon the completion of the runoff election, a tally of
ballots was furnished the parties. The tally shows that of approxi-
mately 1,462 eligible voters, 1,278 cast valid ballots, of which 637 were
for, and 641 were against, the Petitioner. There were 3 challenged
ballots.
On August 3, 1951, the Petitioner filed a letter with the Regional
Office stating, in general terms, that it wished to protest the Employer's
conduct affecting the election results and that supporting evidence
would be supplied on the Board's request.2 A copy of this letter was
immediately served on the Employer by the Petitioner.
1 The tally of ballots showed that of approximately 1,479 eligible voters, 1 , 270 cast valid
ballots, of which 611 were for the Petitioner , 36 were for other labor organizations, and
623 were against the participating labor organizations . There were 7 challenged ballots.
No objections to this election were filed.
2 The letter reads : "The United Gas, Coke and Chemical Workers of America, CIO,
wish to protest the conduct of the Company affecting the results of the election held
August 1, 1951, Case No . 8RC1316. Evidence supporting this protest will be forthcoming
upon-the request of the National Labor Relations Board."
99 NLRB No. 117.
NATIONAL CARBON COMPANY 775
Before filing this letter, the Petitioner apparently had been advised
by a Board agent that its supporting reasons would not be required
until a later date. The Petitioner nevertheless filed a second letter with
the Regional Office on August 17, 1951, setting forth various reasons in
support of its earlier filed protest. However, this second letter was not
served on the Employer until almost 4 months later, at the Employer's
initial conference with a Board agent on December 7, 1951, and then
by that agent rather than by the Petitioner.
The Regional Director, on January 25, 1952, issued and duly served
upon the parties a report on objections in which he'found, relying on
Wilson & i Co., Inc., 88 NLRB 1, and earlier cases, that objections were
before him for consideration on the merits. The report sustained these
objections in part and recommended that the runoff election of Au-
gust 1, 1951, be set aside.
On February 7, 1952, the Employer filed timely exceptions to the
Regional Director's report, contending in part that no consideration
should be given the Petitioner's objections because they were not filed
and served in conformity with Section 102.61 of the Board's Rules and
Regulations. The Petitioner did not file 'exceptions to the Regional
Director's report.
We find merit in the Employer's procedural contention. Section
102.61 of the published Rules and Regulations requires that objections
contain a short statement of reasons and that a copy be served imme-
diately upon the other parties.? It is undisputed that the required
statement of supporting reasons, although filed in the middle of Au-
gust, was not served on the Employer immediately or even during the
ensuing period of more than 31/2 months. Assuming, as we do, that
the Petitioner acted reasonably in relying upon the Board agent's ex
parte advice extending the original 5 days for producing the support-
ing reasons, it is clear that this advice did not purport to dispense with
the requirement of immediate service on the Employer once those sup-
porting reasons were filed with the Board. Under our Rules and
Regulations, the Employer was entitled to be served immediately by
Petitioner with Petitioner's statement of reasons. As such service was
not made, we are- satisfied that the Petitioner did not follow funda-
mental procedures essential to fairness, as set forth in the Rules and
Regulations 4 In the absence of compliance with the service require-
ments, we find that the objections should not have been considered by
the Regional Director.
7 The pertinent part of the rule reads , "within 5 days after the tally of ballots has been
furnished , any party may file with the regional director four copies of objections to the
conduct of the election or conduct affecting the results of the election, which shall contain
a short statement of the teai,ons therefor . Such filing must be timely whether or not the
challenged hallots ai a sufficient in number to affect the results of the election Copies of
such objections shall immediately be served upon each of the other parties by the party
filing them. and proof of service shall be made "
^ R & R News Company, 92 NLRB 1134 , Beacon Manufacturing Company, 94 NLRB 881,
(decided since the Wilson & Co . case relied on by the Regional Director.
7.76 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
It is unnecessary to decide whether the Employer was prejudiced
by the long delay in service, as such a showing is irrelevant to the issue
of procedural fairness. We believe it to be the Board's duty to require
parties to adhere to the clear language of its published Rules and
Regulations, and more especially so where, as here, the deviation at
issue was fundamental and not merely technical.5
As a majority of the valid ballots were cast against the Petitioner,
we shall dismiss the petition.
Order
IT is ORDERED that the petition herein be, and it hereby is, dismissed.
MEMBERS HOUSTON and STYLES, dissenting :
We disagree with our colleagues' holding that the Board's Rules and
Regulations have not been substantially complied with in this case.
The Petitioner timely filed and served on the Employer its August 3
letter unmistakably objecting to the Employer's misconduct affecting
the election results. Moreover, before filing this letter, the Petitioner
had obtained permission from a Board agent to omit the supporting
reasons until they were required for a conference; and the Employer
was furnished a copy of the supporting reasons at the first conference,
on December 7,1951. We are impressed by the fact that the Employer
,% as thereafter given ample opportunity to present evidence on all issues
raised by the Petitioner's objections, and that the Employer in fact
admitted the preelection announcement concerning wages which the
Regional Director properly found warranted vacating the election.
The majority finds that the Petitioner's timely filed and served letter
of August 3, stating that it protested the Employer's conduct affecting
the election, did not sufficiently comply with the Board's Rules and
Regulations, because this letter contained no statement of reasons.
However, we are not called on to decide whether this omission would
1-Lave justified the Regional Director in refusing to investigate the
election, because here he proceeded with the investigation. In any
event, it seems to us that this letter was sufficient notice to the Em-
ployer that the election was being challenged because of alleged mis-
conduct. The Petitioner's subsequent letter of. August 17 is no more
than a "bill of particulars," and merely elaborates on the objections
already validly filed and served. We have previously sanctioned a
timely filed general letter of objections, although the specific reasons
in support of the objections were orally stated privately to a Board
agent, arid no service at all was or could have been made on the Em-
ployer of this oral statement.' No reason appears why the service
5 The Worthington Pump case , 99 NLRB 189 , cited by our dissenting colleagues, seems
to us entirely inapposite There the election was set aside because of a change in the
Board's contract-bar polio-, and not because of interference or objections , by any party.
9 Wilson & Co , Inc., 88 NLRB 1, where the rule in effect was substantially the same as
in the present case.
CONTINENTAL BAKING COMPANY 777
requirements in Section 102.61 of the Rules and Regulations should
now .be extended, particularly where the function of the statement is
merely to aid the Regional Director in an investigation he had already
been called on to make by validly filed and served objections.
The majority in effect holds that the later R cC R and Beacon cases,'
which require service of,exceptions, have qualified the Board's earlier
holding in the Wilson case. But since those cases the Board unani-
mously reasserted its right and duty to set aside an invalid election
although no objections were filed by the parties.8 We are unable to
perceive why, as in the Worthington case, a party should be in a
better position by not filing any objections to an invalid election than,
.as in the present case, by making a bona fide, but unsuccessful , effort to
file appropriate objections.
Such an interpretation of our Rules and Regulations as is announced
by the majority members, far from promoting a principle of fairness
,to the Employer, exalts procedure over substance to work a far greater
injustice to the Petitioner. Thus, the majority's decision enables the
Employer to evade the consequences of what, in this posture of the
controversy, we must assume to be election interference. Finally, we
are of the opinion that the Employer did receive a copy of the state-
ment of reasons within the time limit as validly extended by the Board
agent, namely, by the time of the first conference.
We would therefore proceed to a consideration of the merits of the
preelection announcement as interference with the election in this case.
7 R & R New8'Company, 92 NLRB 1134, Beacon Manufacturing Company, 94 NLRB 881.
$ Worthington Pump and Machinery Corporation, 99 NLRB 189.
'CONTINENTAL BAKING COMPANY and CONTINENTAL BAKING DIVISION
OF TH1E BAKERY ce, CONFECTIONERY WORKERS INTERNATIONAL UNION
or AMERICA, AFL, PETITIONER
BAHER'S NEGOTIATING GROUP, RICHMOND, VIRGINIA, AREA, and BROMM
BAKING COMPANY, INC., GENERAL BAKING COMPANY, INC., CONTI-
NENTAL BAKING COMPANY, INC., NOLDE BROTHERS, INC., ET AL.
PETITIONES and LOCAL 358, KAKERY AND CONFECTIONERY WORKERS
INTERNATIONAL UNION OF AMERICA, AFL, ET AL. Cases Nos.
2-RC-235,7 and 2-RM-245 through 2-RM-268. June 17, 1952
Decision and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
-tional Labor Relations Act, a consolidated hearing was held before
I. L. Broadwin, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
The motion of Continental Baking Company, herein called Conti-
,99 NLRB No. 123.