Lindsley Industries of Sarasota, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1972

199 N.L.R.B. 647 (N.L.R.B. 1972)

LINDSLEY INDUSTRIES 647
Lindsley Industries of Sarasota , Inc. and Laborers' Lo-
cal Union No. 1240 , affiliated with Laborers ' Inter-
national Union of North America , AFL-CIO,
Petitioner. Case 12-RC-4013
October 10, 1972
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on April 7, 1972, under the direction and
supervision of the Regional Director for Region 12
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 of approxi-
mately 36 eligible voters 35 ballots were cast, of which
17 were for and 17 were against the Petitioner and 1
was void. Thereafter, the Petitioner filed timely objec-
tions to conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director, on April 21, 1972, issued and
served upon the parties his Report on Objections in
which he recommended that the objections be over-
ruled in their entirety because the Petitioner had
failed to submit any evidence in support of any of its
objections and that the Board certify the election re-
sults . On April 27, 1972, the Petitioner filed exceptions
to the Regional Director's report in which it: (1) re-
quested that the Board remand the matter to the Re-
gional Director for further consideration in light of
oral representations assertedly made to Petitioner's
counsel by named Board agent on April 18, 1972, with
respect to the investigation of the objections; and (2)
represented that the Petitioner would "complete pro-
curing of evidence in support of its objections by May
2, 1972."
On June 16, 1972, the Regional Director, having
concluded that a "response" to the Petitioner's excep-
tions, supra, was "appropriate and warranted" in the
circumstances , issued and served upon the parties a
Supplemental Report on Objections in which the Re-
gional Director: (1) reported on the nature of the oral
conversations held April 18, 1972, between
Petitioner's counsel and the Board agent named in
Petitioner's exceptions ; (2) stated that, although Peti-
tioner had now submitted affidavits in support of ob-
jections the same were "attested to on May 10, 1972,
and were received in this [the Regional] office on May
16, 1972"; and (3) set out his conclusion that no
change in his recommended dismissal of the objec-
tions was warranted in the total circumstances. There-
after Petitioner filed a statement excepting to the Re-
gional Director's supplemental report and requesting
that a hearing be held to resolve any relevant factual
issues relating to the occurrences of April 18, 1972.
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:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses 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 the employees of the Em-
ployer 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 production and maintenance employees, in-
cluding truckdrivers, excluding all office clerical
employees, guards and supervisors as defined in
the Act.
5. The Board has considered the Regional
Director's Report and Supplemental Report on Ob-
jections in light of the Petitioner's exceptions and its
request for a remand of this proceeding to the Region=
al Director.
In our opinion, Petitioner's exceptions assert no
meritorious grounds which would justify either our
reversal of the Regional Director's findings that Peti-
tioner has failed to meet its obligation to supplyprima
facie evidence in support of its objections or his conse-
quent recommendation that the objections be over-
ruled in their entirety, or which would warrant our
remand of this proceeding to the Regional Director
for any further consideration.
The procedural obligations of parties who wish
to file objections to an election and to obtain a deter-
mination of their merits are fixed by the Board's Rules
and Regulations. As noted by the Regional Director's
reports, the parties' obligations in this respect include
the prompt submission of written prima facie evidence
within specified time limits. If evidence is not submit-
ted with the objections when filed, the Regional Di-
rector fixes, as he here did, a deadline date which the
parties are not free to treat as inappropriate for rea-
sons satisfactory to themselves. If, indeed, circum-
stances exist which may warrant the grant of
additional time for the objecting party to perfect its
statement of objections in the manner our rules re-
199 NLRB No. 83
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quire, that party has the obligation to explicate these Accordingly, and as the tally of ballots shows
circumstances to the Regional Director and to request that the Petitioner has not obtained a majority of the
from him the extension of the deadline date in writing. valid votes cast in this election, we shall certify the
Petitioner unquestionably failed to meet that obliga- results of the election.
tion.'
' According to its counsel , Petitioner on April 18 advised a Board agent
orally that it could not meet that deadline without , however, either setting
forth with any specificity , if at all, the reasons for its inability or even
mentioning the amount of additional time it felt would be needed. The
representation made to us in requesting a remand of this case to the Regional
Director on April 27, 1972, was that Petitioner regarded a May 2, 1972,
deadline date as appropriate . This was not of course a proper request for
extension , and in any event Petitioner did not submit evidence until after that
date.
Accepting in toto Petitioner's account of conversations with the Board
agent, it being plain that Petitioner made no timely request for an extention,
and as we agree that no statements attributed to the Board agent furnish a
reasonable basis for assuming that said ex parse conversation resulted in a
waiver of the Regional Director 's clear instructions , we are satisfied that any
relief to Petitioner would be improper as tantamount to the grant of a special
privilege, prejudicial to uniformly applied rules designed to encourage the
timely resolution of a question concerning representation.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of valid votes
has not been cast for Laborers' Local Union No.
1240, affiliated with Laborers' International Union of
North America, AFL-CIO, and that said labor organ-
ization is not the exclusive representative of all the
employees, in the unit herein involved, within the
meaning of Section 9(a) of the National Labor Rela-
tions Act, as amended.