Giffin Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 5, 1974

214 N.L.R.B. 653 (N.L.R.B. 1974)

WALTER E. SELCK & CO.
Walter E. Selck & Co., A Wholly-Owned Subsidiary
of Giffin Industries, Inc. and Warehouse and Mail
Order Employees Union , Local No. 743 , Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Petitioner.
Case 13-RC-13325
November 5, 1974
DECISION AND DIRECTION
By MEMBERS JENKINS, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 13 on April 9, 1974, an election by secret
ballot was conducted on April 26, 1974, under his
direction and supervision among the employees in
the appropriate unit. At the conclusion of the elec-
tion, the parties were furnished with a tally of ballots
which showed that there were approximately 37 eligi-
ble voters and 36 cast ballots, of which 17 were for,
and 15 against, the Petitioner, and 4 were challenged.
The challenged ballots were sufficient in number to
affect 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 conducted an inves-
tigation and, on July 24, 1974, issued and duly served
on the parties his Report on Challenges and
Employer's Conduct. He recommended that the
challenges to the four ballots be overruled. Although
no objections to conduct affecting the result of the
election were filed, the Regional Director considered
four incidents of Employer conduct which he found
might warrant setting aside the election. Two of the
individuals whose ballots were challenged were in-
volved in these incidents. Therefore, the Regional
Director recommended that only the challenged bal-
lots of the other two voters be opened and counted.
In the event the remaining two ballots should be det-
erminative of the outcome of the election, he recom-
mended that a hearing be held to determine whether
the Employer's conduct requires that the election be
set aside. Thereafter, the Employer filed timely ex-
ceptions to the Regional Director's report limited to
the recommendations pertaining to the Employer's
alleged conduct.
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.
Upon the entire record in this case, the Board
finds:
653
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 rep-
resent 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 fol-
lowing 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 office clerical employees employed by the
Employer at 7125 West Gunnison Street, Chica-
go, Illinois, but excluding all professional em-
ployees, guards and supervisors as defined in the
Act and all other employees represented in other
collective bargaining units.
5. The Board has considered the entire record in
this proceeding, including the Regional Director's re-
port and the Employer's exceptions and brief, and
hereby adopts the Regional Director's findings, con-
clusions, and recommendations with the following
modifications:
No exceptions having been filed thereto, we adopt,
pro forma, the Regional Director's recommendation
that the four challenged voters be found eligible.
However, we do not agree with his further recom-
mendation that only two of the ballots be opened
and counted and that a hearing be held concerning
certain conduct of the Employer in the event the re-
maining challenged ballots are determinative of the
outcome of the election.
This latter recommendation is based upon conduct
of the Employer which came to the Regional
Director's attention during his investigation of the
challenged ballots and without any objections having
been filed to the election itself. In a long line of cases
involving Section 102.69(a) of the Board's Rules and
Regulations, the Board has consistently held that in
the absence of exceptional circumstances it is error
for the Regional Director to consider objections to
conduct affecting the result of the election where the
objections have been untimely filed or untimely
served on the other parties.' In this case, no excep-
tional circumstances appear, and adoption of the Re-
gional Director's recommendation would be contrary
'See, eg , Sig Wold Storage & Transfer, Inc, 205 NLRB 378 (1973),
Hughes Tool Company d/b/a KLAS-TV, 197 NLRB 1160 (1972 ), National
Carbon Company, Division of Union Carbide and Carbon Corporation, 99
NLRB 774 (1952)
214 NLRB No. 105
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the clear import of those decisions. Accordingly,
in the absence of timely objections,2 we find that the
Employer's conduct should not have been considered
by the Regional Director and we shall direct that the
four challenged ballots be opened and counted.
2 We deem inapposite cases such as Thomas Products Co, Division of
Thomas Industries, Inc, 169 NLRB 706 (1968), holding that where an inves-
tigation has begun pursuant to timely filed objections a Regional Director is
not required to ignore evidence of conduct not specifically mentioned there-
in
DIRECTION
It is hereby directed that the Regional Director for
Region 13 shall, pursuant to the Rules and Regula-
tions of the Board, within 10 days from the date of
this Decision and Direction, open and count the bal-
lots of Darline Hurst , Timothy Lee Bach , Chester
Schultz , and Michael Soto, and thereafter prepare
and cause to be served on the parties a revised tally
of ballots, including therein the count of said ballots,
upon the basis of which he shall issue the appropriate
certification.