Technicolor, Inc.

National Labor Relations Board - Board DecisionsOct 2, 1973

206 N.L.R.B. 241 (N.L.R.B. 1973)

TECHNICOLOR, INC. 241 Technicolor, Inc. and Local 201, Graphic Arts Interna- tional Union . Case 37-RC-1796 October 2, 1973 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved on October 18, 1972, an election by secret ballot was conducted in the above- entitled matter on November 10, 1972, under the di- rection and supervision of the Regional Director for Region 20, among the employees in the stipulated unit. At the conclusion of the balloting, the parties were furnished with a tally of ballots, which showed that, of approximately 81 eligible voters, 74 cast valid ballots, of which 28 were for, and 46 against, the Petitioner. There were no void or challenged ballots. Thereafter, on November 15, 1972, the Petitioner filed timely objections to conduct affecting the results of the election. Pursuant to the Board's Rules and Regulations, Series 8, as amended, the Regional Director investi- gated the objections and thereafter, on December 22, 1972, issued and served on the parties his Report on Objections. In his report the Regional Director found merit in Objection 2 and recommended that a new election be directed; he therefore found, it unneces- sary to rule on the remaining Objections 1, 3, 4, 5, 6, and 7. In a Decision and Order dated February 8, 1973, a three-member panel of the National Labor Relations Board declined to adopt the Regional Director's recommendations to sustain Objection 2 and direct a new election. The case was remanded to the Regional Director to rule on the remaining objec- tions. On February 26, 1973, the Petitioner withdrew Ob- jections 1, 2, 4, 5, and 6. The Regional Director for Region 20 caused an investigation of objections to be made and issued an order directing that a hearing be held for the purpose of receiving evidence to resolve the issues raised with respect to the remaining objec- tions, 3 and 7. It was further ordered that the Hearing Officer designated to conduct the hearing prepare and cause to be served on the parties a report containing resolutions on the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said issues. Pursuant to the Regional Director's order, a hear- ing was held at Honolulu, Hawaii, on March 23, 1973, before Hearing Officer Carole R. Kurata. All parties participated and were given full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On May 22, 1973, the Hearing Officer issued and served on the parties her Report on Objections, with findings and recommendations, in which she recom- mended that the Petitioner's Objection 3 be overruled and the Petitioner's Objection 7 be sustained and, accordingly, that a second election be directed. The Employer filed timely exceptions to the Hearing Officer's report and a supporting brief. 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. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that no prejudicial error was committed.' The Board has considered the objections, the Hearing Officer's report, the Employer's exceptions and brief, and the entire- re- cord in this, case, and hereby adopts the findings, conclusions, and recommendations of the Hearing Officer? Accordingly, we shall set the election aside and direct that a second election be conducted. 1 The Employer excepts to a- "prejudicial withholding of information" at the hearing by reason of the absence of a counsel for the General Counsel during the hearing on objections , a point it further explained in its June 29, 1973, letter to the Executive Secretary, which letter it asked to have attached to its exceptions . In our view the Employer misconceives the purpose of having the Regional file available during the hearing In this case the file, as the Hearing Officer informed the parties in advance , was in the hands of the Officer-in-Charge in an adjacent room "at the disposal of the parties to the proceeding in the event any party needed any affidavit or other pertinent information relevant to the proceeding from the Regional Office file." The Employer does not contend that it was denied any information it requested but essentially that affidavits of persons who did not testify "may" have contained information supportive of its position This ignores the fact that affidavits of those who do not testify are not available to the parties. See Holly Farms Poultry Industries, Inc, 181 NLRB 890, In 1, stating the established Board practice to direct the production only of those affidavits given by employees who have testified at Board hearings , for purposes of possible impeachment by cross-examination, as required by Jencks v US., 353 U.S 657. Likewise the Board 's Rules and Regulations , Series 8 , as amended, Sec. 102.118, speak in terms of production of witnesses' statements after direct testimony . To do otherwise would needlessly subject employees to possible retaliation and thus impair the investigative processes of the Board. 2 In the absence of exceptions we adopt pro forma the Hearing Officer's disposition of Objection 3. In adopting the conclusion of the Hearing Officer that Objection 7 should be sustained , we neither adopt nor pass on the Hearing Officer's comments that the Employer violated Federal law by granting wage increases in excess of 5.5 percent during 1972. We also consid- er it unnecessary to rely on the wage increases granted prior to the election to certain probationary employees , finding that, absent other relevant con- siderations, the increases to-other employees sufficiently support the objec- tions and warrant setting aside the election. 206 NLRB No. 30 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER or, Inc., working out of its Hawaii facility, be, and it hereby is set aside. It is hereby ordered that the election conducted on [Direction of Second Election and Excelsior foot- November 10, 1972, among employees of Technicol- note omitted from publication.]