McMullen Leavens Co.

National Labor Relations Board - Board Decisions

May 19, 1950

89 N.L.R.B. 1473 (N.L.R.B. 1950)

In the Matter of MCMULLEN LEAVENS COMPANY and PLAYTHINGS,
JEWELRY AND NOVELTY WORKERS INTERNATIONAL UNION-CIO
Case No. 2-CA-239
AMENDMENT
TO
DECISION AND ORDER
May 19,1950
On May 31, 1949, the Board issued its Decision and Order in the
above-entitled case. Upon further consideration, it appeared to the
Board that said Decision and Order should be amended. Accord-
ingly, on April 13, 1950, the Board issued notice to show cause
returnable on or before April 24, 1950, why the Proposed Amendment
to Decision and Order attached to said Notice should not issue there-
after as an Amendment to Decision and Order. In answer thereto,
the Respondent filed Objection to Proposed Decision and Order,
dated April 24, 1950, stating that it is prejudiced by the proposed
amendment but assigning no reasons in support of its objection other
than the generalization that the amendment was "unwarranted."
Under these circumstances, no good cause to the contrary having been
shown, we perceive no basis for not proceeding with the Proposed
Amendment to Decision and Order and we hereby overrule the Re-
spondent's objection.
IT IS HEREBY ORDERED that the said decision be and it hereby is
amended by deleting the next to the last paragraph in the Board's
decision herein, issued on May 31, 1949, commencing with the words,
"The Respondent maintains further" and ending with the words, "the
contention is without merit" and substituting therefor the following :
As already noted, the second election was held herein on July
22, 1947, and the Respondent and the Union challenged ballots
sufficient in number to affect the results of the election. On
August 22, 1947, the amended Act, including Section '9 (f) and
(h), became effective. The Union concededly did not come into
compliance with the filing requirements of Section 9 (f) and (h)
89 NLRB No. 195.
1473
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until.October 27, 1947. On or about August 27, 1947, a field ex-
aminer of the Board conducted an investigation of the chal-
lenged ballots, interviewed employees and representatives of the
Respondent, and took affidavits. On November 6, 1947, after the
Union had come into compliance with the filing requirements of
the Act, the Regional Director issued a Report on Challenged
Ballots in which he overruled the Respondent's challenges to the
ballots of 11 employees at the July 22 election.' A revised Tally
of Ballots was issued by the Regional Director on November 12,
together with a determination that the Union had received a
majority of the valid votes cast.
The Respondent contends that the consent determination of
representatives, upon which the Union's majority status is predi-
cated, is invalid because the Regional Director investigated the
challenged ballots at a time when the Union was not in compli-
ance with Section 9 (f) and (h) of the Act. The Trial Exam-
iner found that the Respondent was precluded from litigating
the matter of noncompliance for the reason that the determina-
tion thereof is within the exclusive province of the Board 0;
However, the Respondent does not here seek to litigate the
Union's compliance status. On the contrary, the question is
whether the Respondent may assert, as ground for invalidating
the Regional Director's determination of bargaining representa-
tives, the fact that the Regional Director proceeded with the
investigation of the challenged ballots at a time when the Union
concededly was not in compliance. Assuming, without deciding,
that the Respondent may assert a defense based upon the Union's
admitted noncompliance, we find, for the reasons stated herein-
after, that it presents insufficient ground for nullifying the Re-
gional Director's designation of the Union as bargaining
representative.
In the early months of the amended Act, we refrained from:
dismissing petitions filed prior to the effective date of the 19471
amendments so that unions might have additional time within
which to effectuate compliance with Section 9 (f) and (h).
However, it was the policy, of the Board to halt all action on
such petitions during this "period of grace." 3 By proceeding
with the investigation of challenged ballots, the Regional Di-
11 The Regional Director also sustained challenges to the ballots of 14 other employees,
including both respondent and union challenges. .
'The Trial Examiner 's further finding that the Union complied with the filing require-
ments of the Act prior to filing the charge in this proceeding is immaterial to the issue
involved herein.
3 See Rite-Form Corset Company , Inc., 75 NLRB 174.
McMULLEN LEAVENS COMPANY 1475
rector acted without authority of statute or administrative in-
structions. This was error but not, in our view, of such magni-
tude as to be fatal to the conduct of a protracted proceeding, as
to which we have otherwise found the Regional Director's
determinations to be valid.
No report on challenged ballots or designation of bargaining
representatives was made by the Regional Director until after
the Union came into compliance. Nor did the premature in-
vestigation of the challenged ballots in any way affect the proba-
tive value of the Regional Director's determination that the Union
represented a majority of the Respondent's employees in an ap-
propriate unit.' The Respondent does not, nor could it suc-
cessfully contend, that it was in any manner prejudiced by the
ill-timed investigation. Moreover, the lapse in procedure, in
retrospect, is attributable to the difficulties inherent in early at-
tempts to properly acquaint Board personnel with the require-
ments of the amended Act. Accordingly, we find, in the Regional
Director's premature investigation of the challenged ballots, a
departure from the statute which was, under all the circum-
stances, too slight to "paint the whole proceedings with a fatal
blemish." 5 .
• In substance , what took place was that the field examiner conducted interviews and
obtained affidavits in August instead of on or after October 27, 1947. No basis exists for
inferring that the evidence thus obtained, relating to the employment status of the em-
ployees whose ballots were challenged, would differ in any respect if the interviews had
been conducted at a latter date.
6 Bowers v. Snvith, 20 S. W. 101, 105, 111 Mo. 45,; Cf. N. L. R. B. V. Fulton Bag and
Cotton Mills, 175 F. 2d 675 (C. A. 5).
889227-51-vol. 89-94