Fisher Products Co.

National Labor Relations Board - Board Decisions

Sep 22, 1955

114 N.L.R.B. 161 (N.L.R.B. 1955)

FISHER PRODUCTS COMPANY 161
agreement, we find that it is not conclusive that the Petitioners will not
bargain on a joint basis for the unit herein found appropriate. We see
no reason to depart from our past practice in such cases and shall deny
the motion to dismiss.' The names of the Petitioners will appear
jointly on the ballot, and, if they are successful in the election herein-
after directed, they will be certified jointly as the bargaining repre=
sentative of the employees in the entire appropriate unit. The Em-
ployer may then insist that the Petitioners bargain jointly for such
employees as a single unit.
[Text of Direction of, Election omitted from publication.]
J.'J. Moreau & Son, Inc., 107 NLRB 999; Sonoco Products Company, 107 NLRB 82.
Fisher Products Company and Local 404, Upholsterers ' Inter-
national Union of North America , AFL. Case No. 4-RU-?d591.
-September 22,1955
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant. to a Board Decision and Direction of Election,' an election
by secret ballot was conducted on April 5,1955, under the direction and
supervision of the;Regional Director for the Fourth Region, among the,-
erliplcyees in the appropriate unit. At the conclusion of the election;
the parties were' furnished with a tally of ballots which showed that of
approximately 34 eligible voters, 7 voted for and 15 against the Union
and 12 votes were challenged.
Thereafter, on April 13,.1955, the Union filed objections to conduct
affecting the results of the election. On May 26, 1955, the Regional
Director issued and duly served upon the- parties his report and rec-
ommendation on challenges and objections, in which he recommended
that the challenges be sustained and that the objections be overruled
on the ground that they had not been timely served upon the Employer.
Thereafter'the Petitioner filed timely exceptions to the Regional Di-
rector's report and a supporting brief.
As stated, the election was held on April 5, 1955. The objections
were not filed in the Regional Director's office until April 13, 1955, and
were not actually received by the Employer until April 14. Section
102.61 of the Board's Rules and Regulations requires that objections
be-filed with the Regional Director within 5 days of the receipt of
the tally of ballots and that, copies of the objections immediately be
a Not reported in printed volumes of Board Decisions and Orders.
114 NLRB No. 37.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
served on the other parties? Section 102.83 of the Rules provides
that in computing periods of less than 7 days, intermediate Sundays
and holidays shall be excluded in the computation.' Under this for-
mula, the last day for filing the objections would ordinarily have been
April 12, 1955. However, the Petitioner contends that April 8, Good
Friday, should not be included in the 5-day computation because that
day is a legal holiday in Pennsylvania. The Petitioner further con-
tends that, as ik copy of the objections was mailed to the Employer on
the very day that it filed them with the Regional. Director, service was
timely even though the objections were not received until the following
day, April 14.
We agree with the Petitioner that service of the objections on the
Employer was timely, provided that the filing of them with the Re-
gional Director was also timely. Section 102.82 of the Board's Rules
provides that:
The date of service shall be the day when the matter served is
deposited in the United States mail or is delivered in person,, as
the case may be.
The Petitioner deposited a copy of the objections in the mail -on the
very day that it filed the objections with the Regional Director. This
constitutes immediate service within the meaning of Section 102.61.
The remaining question, whether the objections were timely filed
with the Regional Director, depends upon whether Good Friday is a
"holiday" within the intendment of Section 102.82 of the Board's
Rules . Although Pennsylvania law designates Good Friday as a holi-
day for certain limited purposes relating to the handling of commer-
cial transactions ,4 it has not been so designated by Act of Congress or
Presidential proclamation. We think our rules should be given a
single, uniform interpretation , rather than 48 different interpretations
depending on the State in which transactions arise .5 We therefore
construed the term "holiday" as used in our rule to mean only Federal
holidays, that is, holidays declared as such either by congressional
enactment or by Presidential proclamations Accordingly, we find
2 Section 102 61 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
affecting the results of the election . . . . Copies of such objections shall immediately
be served upon each of the other parties by the party filing them. . . .
Section 102.83 provides:
In computing any period of time prescribed or allowed by these rules , the day of the
act, event , or default after which the designated period of time begins to run(ls not
to be included . . . . When the period of time prescribed or allowed is less than 7 days,
intermediate Sundays and holidays shall be excluded in the computation For the
purpose of this section a Saturday on which the Board's offices are not open for
business shall be considered as a holiday. . . .
4 44 P . S. § 11.
5 Cf. N. L. R. B. v Hearst Publications, 332 U. S. 111, 123.
6 See5U.S . C.¢H86,87.
FISHER PRODUCTS COMPANY 163
that the Petitioner' filed its objections too late and they therefore are
rejected'.
There remains for our consideration the exceptions taken by the
Petitioner to the Regional Director's recommendation that the chal-
lenges to the 12 disputed ballots be sustained. The Regional Director
reported 'that on March 29, the Employer laid off 10 of the 12 chal-
lenged voters, that the Employer has suffered a sharp decline in busi-
ness during the past 2 years, and that since the layoff none of the laid-
off employees have been recalled and no new employees have been
hired. The Regional Director therefore concluded that the laid-off
employees had no present expectancy of employment, in the near fu-
ture with the Employer and recommended that ballots of these voters
not be opened and counted. The Petitioner excepts generally to the
finding that no new employees were hired after March 29, but gives no
facts to support its exceptions? We find that the Petitioner's excep-
tions do not raise substantial and material issues with respect to the
eligibility of the 10 laid-off employees, and, accordingly, adopt the
recommendation of the Regional Director that the challenges to these
ballots be sustained.
,• The remaining two challenged ballots are insufficient in number to
affect the results of the election.
As the Petitioner failed to receive a majority of the valid ballots
cast, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for the Petitioner, Local 404, Upholsterers' International Union of
North America, AFL, and that this Union is not the exclusive repre-
sentative of the employees employed at the Employer's Trainer, Penn-
sylvania, plant.]
MEMBER MURDOCK , dissenting :
I join my colleagues in the majority opinion insofar as it construes
the term "holidays" as used in Section 102.61 to mean "only Federal
holidays, . . . declared as such either by congressional enactment or
by Presidential proclamation." However, I believe it is a mistake to
apply that construction in the instant proceeding. I would limit its
application to future cases.
The majority opinion in effect admits that Section 102.61 of the
Board's Rules and Regulations is susceptible to a different construc-
tion than the one.given to it in the decision herein, but in the interest
of having a single uniform policy rather than 48 different interpre-
tations depending on the State wherein transactions arise, it sets forth
for the first time an explicit definition of the term "holidays." In such
v National Foundry Company of New York, Inc., 112 NLRB 1214.
387644-56-vol. 114-12
164 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
circumstances, I think that` sound • administrative., practice requires.
that this Board not penalize a party on the technical grounds that `it_
has not correctly interpreted an -ambiguous ,provision. in -the Board's
regulations. As there has been no showing that Petitioner acted in,
bad faith in interpreting the term "holidays" to include State holidays.
such as Good Friday, I think the Board should follow the practice
pursued in TVestern Wear of California, Inc.,' of applying to future,
cases only, a first construction of a Board regulation. Indeed, such a•
practice seems to be required by Section 102.90 of the Board's Rules
and Regulations, which states :
The Rules and Regulations in this part- shall be liberally con-,
strued to effectuate the purposes and provisions of the Act.,
Accordingly, I would take such action-as might be necessary in order'
to enable this- Board to'consider on the merits the Petitioner's objec-
tions to conduct affecting the results of the election.
s 87 NLRB 1363 -
N. N. Hills Brass Co. and Bakery, Grocery, Laundry Drivers and
Helpers Local- 559, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers -,of America, AFL,:
Petitioner. Case•No.1-RC-3998. September 22,1955•
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVE - • • •
Pursuant to a Decision and Direction of Election dated June 3, 1955
(not reported- in .printed volumes of Board Decisions and Orders),,
an election by secret ballot was conducted in the above-entitled pro-.
ceeding on June 23, 1955, under the direction and supervision of the
Regional Director for the First Region among -the employees in the
unit found appropriate in the aforesaid Decision and Direction of
Election. The tally of ballots issued after the election showed 'that, of
approximately 91 eligible voters; 90 of whom cast ballots, 63• voted for
the Union and 26 voted against the Union. - One of the ballots cast
was void. . • ' • -
On June 30, 1955, the Employer filed timely objections to the con
duct of the election. Thereafter, in accordance with the, Board's Rules
and Regulations, the .Regional Director conducted an investi^atiou
and on July 18, 1955, issued and duly served upon the parties a report
on objections, in which he found the objections to be without merit
and therefore recommended that the Board,dismiss the objections and
certify the. Union as the, exclusive bargaining -representative of the_
employees in the appropriate unit. Thereafter, the Employer filed
114 NLRB No. 35.