University Metal Products Co., Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1952

98 N.L.R.B. 1194 (N.L.R.B. 1952)

1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Direction
As part of the investigation to ascertain representatives for the
purpose of collective bargaining with the Employer, the Regional
Director for the Third Region shall, pursuant to National Labor
Relations Board Rules and Regulations, within ten (10) days from
the date of this Direction, open and count the ballots of the employees
listed in Appendix A, and shall thereafter prepare and cause to be
served upon the parties a supplemental report on challenged ballots.
Appendix
Paul Betz
Dale Carley
Adam Distler
Frank Ebert, Jr.
George Hinman
Lester Hinman
Philander Kuhaneck
Clarence Little
William Marsh
Louis Pasa
Joseph Stritoff
Michael Tomsic
Ernest Wilson
John Woodard
UNIVERSITY METAL PRODUCTS CO., INC . and AMERICAN FEDERATION
OF LABOR, PETITIONER . Case No. 1-RC-553. April 15, 1952
Supplemental Decision and Certification of Representatives
Pursuant to a Decision and Direction of Election issued on Febru,
ary 8, 1952,1 in the above-entitled matter, an election by secret ballot
was conducted on February 29, 1952, under the direction and super-
vision of the Regional Director for the First Region. Thereafter, the
parties were furnished with a tally of ballots, which shows that of
approximately 25 eligible voters, 23 cast ballots, of which 17 were for,
and 6 against, the Petitioner.
On March 7, 1952, the Employer filed timely objections to the elec-
tion, alleging, in substance, (1) that the Regional Director arbitrarily
denied its request to schedule the election for a certain day within the
prescribed 30-day period at which time and prior thereto counsel of
its choice would be available for advice; and (2) that it was required
to resort to unpublished procedures in violation of Section 3 (a) of
the Administrative Procedure Act. Thereafter, the Regional Director
investigated the objections and on March 14, 1952, issued and duly
served on the parties a report on objections in which he found no
merit in the said objections and recommended that they be overruled.
The Employer then filed exceptions to the Regional Director's report.
1 Unpublished.
98 NLRB No. 178.
UNIVERSITY METAL PRODUCTS CO., INC . 1195
With respect to the first objection, there appears to be no dispute
that at a joint conference called by the Regional Director for the pur-
pose of arranging the election details, the parties could not agree on
a date for the election and that the Regional Director, accordingly,
scheduled the election for February 29. It also appears that Mr.
Epstein, an associate of Mr. Gordon who the Employer asserts in his
only counsel,2 requested a postponement to a later date 3 when Mr. Gor-
don would return from his vacation and be available for consultation
with the Employer. The Regional Director denied this request.
Contrary to the Employer's contention, we are not persuaded that
the Regional Director thereby acted arbitrarily or capriciously. The
matter of scheduling elections is left to the Regional Director's dis-
cretion which the Employer has not shown was abused to its prejudice.
There is no contention that the Employer did not have sufficient time
to prepare for the election or to present its views to its employees.
Nor is there any evidence, or even assertion made, that competent
advice was not available to the Employer in the absence of Mr.
Gordon.4
In support of its second objection that the Employer was required
to resort to unpublished procedures in violation of Section 3 (a) of
the Administrative Procedure Act,5 the Employer contends (a) that,
under the Board agent's threat not to count the ballots immediately
after the polls closed as prescribed in Section 101.18 (a) (3) of the
Board's Statements of Procedure, it was required against its will to
admit a union organizer to its premises; and (b) that the Board agent
in charge of the election refused to serve upon it a tally of ballots, as
prescribed in Section 101.18 (a) (3) of the Board's Statements of
Procedure.
The Regional Director reported, and the facts are not denied, that,
as the Petitioner had not designated an observer for the balloting,
the Board agent requested the Employer to permit Petitioner's rep-
resentative to be present in the Employer's office at the count of the
2 We note that in the representation proceeding the firm of Gordon and Epstein appeared
for the Employer by Mr . Gordon.
8 There appears to be an immaterial conflict between the Regional Director and the
Employer concerning the date when the Employer desired the election.
* We find no merit in the Employer's exception to the Regional Director 's report and
recommendation with respect to this objection that, as this objection was directed to his
conduct . some other person should be designated to investigate and report on this objection.
The ultimate determination as to whether the Regional Director acted arbitrarily or
capriciously is herein made by the Board on undisputed facts.
Insofar as relevant , Section 3 ( a) of the Administrative Procedure Act provides :
Every agency shall separately state and currently publish in the Federal Regis-
ter . . . (2 ) Statements of the general course and method by which its functions
are channeled and determined , including the nature and requirements of all formal or
informal procedures available as well as forms and instructions as to the scope and
contents of all papers, reports or examinations ; . . . No person shall in any manner
be required to resort to organization or procedure not so published . [Emphasis
supplied.]
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots after the election. At first, the Employer refused but, upon
being advised that under such circumstances the ballots would have to
be counted at the Board's office where the Petitioner's representative
could be present, the Employer granted the requested permission.
The Regional Director also reported, and the facts are not disputed,
that upon the conclusion of the count of the ballots, the Employer
refused to sign the tally of ballots or a receipt acknowledging service
of this tally, although he agreed to the accuracy of the tally. For this
reason, the Board agent decided to serve the Employer by registered
mail. This was done the following day, and the Employer received
the tally on March 3.
In the recent Foreman & Clark decision,, the Board stated that the
"purpose of Section 3 (a) (2) [of the Administrative Procedure Act]
is to protect a party to any proceeding from being prejudiced by rea-
son of his failure to resort to unpublished agency procedure." We find
that the Board agent's action here, which was necessitated by the
special circumstances related above, did not amount to the imposition
of a procedure which, if not pursued, would adversely affect the Em-
ployer's position in the proceeding, in violation of Section 3 (a) of the
Administrative Procedure Act. Moreover, we find that the Employer
was in fact not prejudiced by the conduct complained of.
As the Employer's objections to the election and exceptions do not
raise substantial or material issues with respect to the conduct of the
election, we hereby overrule them. As the Petitioner has secured a
majority of the votes cast, we shall certify it as the bargaining rep-
resentative of the employees in the appropriate unit.
Certification of Representatives
IT IS HEREBY CERTIFIED that American Federation of Labor has been
designated and selected by a majority of the employees in the unit
found appropriate in the Decision and Direction of Election herein,
as their representative for the purposes of collective bargaining and
that , pursuant to Section 9 (a) of the Act, as amended , the said organ-
ization is the exclusive representative of all the employees in such unit
for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
CHAIRMAN HERZOG and MEMBER MURDOCK took no part in the con-
sideration of the above Supplemental Decision and Certification of
Representatives.
0 Foreman & Clark, Inc, 98 NLRB 530.