Burroughs Corp.

National Labor Relations Board - Board DecisionsMar 21, 1974

209 N.L.R.B. 824 (N.L.R.B. 1974)

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burroughs Corporation and International Union, Unit- ed Automobile , Aerospace & Agricultural Imple- ment Workers of America , UAW, Petitioner. Case 17-RC-7167 March 21, 1974 DECISION AND ORDER DIRECTING HEARING BY MEMBERS JENKINS, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties on May 3, 1973, and approved by the Regional Director for Region 17, an election by secret ballot was conduct- ed on May 31, 1973, under his direction and supervision among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that there were approximately 135 eligible voters and 127 cast ballots, of which 46 were for and 74 against the Petitioner, and 7 were challenged. The challenged ballots were insufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. Pursuant to Section 102.69 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Regional Director caused an investiga- tion of the issues raised by the objections. On November 9, 1973, the Acting Regional Director for Region 17 issued and duly served on the parties his Report on Objections in which he recommended that the Board overrule Objection 2; that it not rule on Objections 1, 3, and 5 through 10; and that it sustain Objection 4, set aside the election, and direct a second election. The Acting Regional Director further recommended that, should the Board not adopt his recommendation with respect to Objection 4, a hearing be held to resolve the issues raised by Objections 1, 3, and 5 through 10. On December 10, 1973, the Employer filed timely exceptions to the Acting Regional Director's Report and a Motion To Dismiss the Petitioner's Objec- tions.' Thereafter, the Petitioner filed an answering brief and a Motion To Strike the Employer's Exceptions, and the Employer filed an answer to the Petitioner's motion to strike. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the ' We hereby deny, for lack of ment, the Employer's motion to dismiss the Petitioner 's objections, as we find the objections sufficiently specific to meet the requirements of the Board 's Rules and Regulations Cf Atlantic Mills Servicing Corporation of Cleveland Inc, 120 NLRB 1284, 1288. National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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 purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full time and regular part time production and maintenance employees, including plant clerical employees, employed at the Employer's plant located at 3010 North Industrial Road, Kirksville, Missouri, but excluding all office employees, office clerical employees, professional and techni- cal employees, guards, watchmen and supervisors as defined in the Act. 5. The Board has considered the Acting Regional Director's Report; the Employer's exceptions, briefs, and motion; and the Petitioner's briefs and motion, and hereby adopts the findings and recommenda- tions of the Acting Regional Director only to the extent consistent herewith. The Petitioner, in its Objections 1, 2,2 3, and 5 through 10, alleges that the Employer unlawfully interfered with the results of the election through, inter alia, supervisory interrogation, interference with the distribution of union literature, unlawful predic- tions of the consequences of a union victory, and misrepresentations as to the rights of the employees, the Union, and the Employer. In its Objection 4, the Petitioner alleges that the Employer's conduct in showing the film "The Springfield Gun" to its employees on the 2 days prior to the election warrants the setting aside of the election. The Acting Regional Director recommended that Objection 4 be sustained, finding that the aforemen- tioned film contained material misrepresentations and that, in the context of the Employer's total campaign, it created an atmosphere of fear and confusion among the employees which necessitates the setting aside of the election conducted herein and 2 In the absence of exceptions thereto, we adopt pro forma the Acting Regional Director's findings and recommendation that Objection 2 be overruled 209 NLRB No. 127 BURROUGHS CORPORATION the holding of a new election. In so finding, the Acting Regional Director considered the film solely in the context of various letters sent to the employees in which the Employer stressed that strikes, grief, and turmoil would result from a union victory. The Acting Regional Director, however, made no finding as to whether the letters, in themselves, were objectionable, nor did he resolve the Petitioner's allegations in its remaining objections of other employer misconduct. We therefore shall remand Objection 4 for hearing for the purposes of admitting the film "The Springfield Gun" into evidence and taking evidence with respect thereto, and to resolve the issue of whether the showing of that film occurred in the context of illegal or objectionable conduct by the Employer. Cf. Hawesville Rolling Mill, National Aluminum Division of National Steel Corporation, 204 NLRB No. 42. As we have not adopted the Acting Regional Director's recommen- dation with respect to Objection 4, we shall order that a hearing be directed to resolve the issues raised by Objections 1, 3, and 5 through 10. - In reaching this conclusion, we deny the Petition- er's Motion To Strike the Employer's Exceptions. That motion was grounded on the fact that, unlike the exceptions filed with the Board, the copy thereof served on the Petitioner did not have attached to it certain documents referred to therein. An examina- tion of the documents in question reveals that they relate not to findings of fact supporting conclusions on the merits but to statements of matters which the Acting Regional Director finds create issues of fact in connection with Objections 1, 3, and 5 through 10 and we need not and do not consider them in reaching our decision herein. In this regard, we note that only one of the documents, a copy of the remarks allegedly made by the Employer's plant manager prior to and immediately after the showing of the film which is the subject of Objection 4, makes any specific reference to the film itself. While we do not condone the Employer's failure to serve copies of all documents on the Petitioner as required by the Board's Rules and Regulations,3 in the circum- stances here we find that such failure does not affect the validity of the exceptions with respect to Objection 4, inasmuch as the findings and recom- mendations in the report do not rely on these remarks to any extent and the grounds on which the Employer relies are fully set forth in its exceptions. Accordingly, even if we were to reject as insufficient the exceptions to the report, we must do so only insofar as it relates to the other objections to the 3 On January 21, 1974, the Employer filed an answer to the Petitioner's motion to strike the Employer's exceptions in which it contends that it is under no obligation to furnish to the Petitioner copies of documents it submitted to the Regional Director during the course of his investigation 825 election. In this event, we would be left with a valid exception to a recommendation on Objection 4, as to which we believe a hearing is warranted. There would then be no exceptions to the recommendation that if the election is not set aside based on Objection 4, a hearing be held on Objections 1, 3, and 5 through 10. This is precisely what we are doing. Furthermore, we find that no possible prejudice to the Petitioner can exist as a result of the Employer's omission here, inasmuch as we shall remand the issues raised by the objections herein for hearing, during which the Petitioner will have the opportunity to obtain the documents and to examine and cross- examine witnesses with respect thereto. In this circumstance, we deem it inappropriate to rely on what is in fact a technical rather than substantive defect in this case. Accordingly, we shall order that a hearing be held to resolve the issues raised by Objections 1, 3, 4, and 5 through 10. ORDER DIRECTING HEARING It is hereby ordered that a hearing be held before a duly designated Hearing Officer for the purpose of receiving evidence to resolve the issues raised by the Petitioner's Objections 1, 3, 4, and 5 through 10. IT IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting the 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 the above objections. Within 10 days from the date of issuance of such report, either party may file with the Board in Washington, D.C., eight 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 file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer. IT IS FURTHER ORDERED that the above-entitled proceeding be, and it hereby is, referred to the Regional Director for Region 17 for the purpose of conducting such hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. MEMBER KENNEDY, dissenting: In fairness to all parties who come before this Board, we should uphold our own Rules and Regulations and apply them even-handedly in each and that, in any event , copies of most of the documents in question are already in the possession of the Petitioner , or readily available to it. In view of our decision herein , we find it unnecessary to pass upon these contentions. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case . All parties should be expected to abide by the published Rules and Regulations of the Board, and all parties have a right to expect that the Board will enforce those provisions. The Petitioner has filed a motion to strike the Employer's exceptions because of the failure of the Employer to serve the Petitioner with a copy of the documents attached to the Employer's exceptions. It has not been contradicted that the documents which were attached to the exceptions and filed with the Board have not been served on the Petitioner. Subsequent to the filing of the Petitioner 's motion to strike, only an index listing of the 35 documents was furnished by the Employer to the Petitioner. Section 102 .69(c) of the Board 's Rules and Regula- tions provides in pertinent part: Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof together with a copy of any brief filed on the other parties and shall file copies with the regional director. The Acting Regional Director's Report, footnote 10, reminds the parties to refer to Section 102.69 of the Board 's Rules and Regulations. Regardless of whether the failure to properly serve the Petitioner with the numerous documents at- tached to the exceptions was an unintentional over- sight, the fact remains that proper service has not been made. The Board is now aware that it has received and considered what is in the nature of an ex parse communication consisting of some 35 documents in Appendices A, B, and C attached to the Employer' s exceptions . As I stated in -my dissenting opinion in Graphic Arts International Union Local 262, AFL-CIO (London Press, Inc.), 208 NLRB No. 28, I do not believe that ex parte communications with the Board should be encour- aged. Many of the documents in the appendices allegedly originated from the Petitioner . That is not the point. A party is entitled to examine a copy of all documents filed with the Board by any other party. The failure to comply with the Board's Rules and Regulations should not be excused on the grounds that the documents now before the Board may be belatedly supplied or obtained at some later date at a hearing . The Board's Rules and Regulations require immediate service on the other parties and that was not done. Because the exceptions were not properly served in accordance with the Board 's Rules and Regulations and because the appendices to the exceptions are in the nature of an ex parse communication with the Board , I would grant the Petitioner's motion to strike . In that event , there would be no exceptions before the Board , and we would be obliged to adopt the Acting Regional Director 's 'recommendations pro forma and direct a second election.