Rhone-Poulenc, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1984

271 N.L.R.B. 1008 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rhone-Poulenc, Inc. and Oil, Chemical & Atomic
Workers International Union, AFL-CIO, Local
8-948, Petitioner. Case 4-RC-15478
15 August 1984
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 21 December 1983 and the Regional
Director's report recommending disposition of
them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 24 for and 20 against the Petitioner, with 1
challenged ballot, an insufficient number to affect
the results.
The Board has reviewed the record in light of
the exceptions ' and briefs, has adopted the Re-
gional Director's findings and recommendations,
and finds that a certification of representative
should be issued.
In its evidence in support of objections, the Em-
ployer raised allegations of misconduct unrelated to
its timely filed objections. The Regional Director
refused to investigate this unalleged misconduct be-
cause the Employer failed to show that the evi-
dence was not only newly discovered but also pre-
viously unavailable. We find that the Regional Di-
rector properly refused to expand the scope of his
investigation to include consideration of the Em-
ployer's allegations. Our dissenting colleague, how-
ever, would remand this case for consideration of
the unalleged misconduct because it was submitted
within the time allowed for submission of support-
ing evidence and because the Regional Director
had not yet begun his investigation.
The Board's Rules and Regulations provide five
working days from the date of the election in
which a party may file objections to the conduct of
and conduct affecting the results of the election.
Board Rules and Regulations, Section 102.69(a).
The filing of objections and submission of support-
ing evidence triggers an investigation by the Re-
gional Director. The Board's time limitation on
filing requires parties to act promptly in unearthing
and reporting to the Region any potentially objec-
tionable conduct. In establishing this 5-day rule, the
Board sought to prevent the piecemeal submission
of objections which necessarily delays the Regional
1 In the absence of exceptions thereto, we adopt, pro forma, the Re-
gional Director's recommendation to overrule the Employer's Objection
2 alleging that the Petitioner misrepresented the amount of union dues
members would be required to pay.
271 NLRB No. 149
Director's investigation. Although mindful of these
concerns, the Board will consider evidence of mis-
conduct unrelated to the timely filed objections,
but only when the objecting party demonstrates by
clear and convincing proof that the evidence is not
only newly discovered but was also previously un-
available.
Our dissenting colleague concedes that, in the in-
stant case, the Employer has failed to meet this
burden. Nonetheless, our colleague argues that the
Regional Director should have considered the mis-
conduct as this case presents a "special circum-
stance" in that the Employer proffered the allega-
tions within the time permitted for submitting sup-
porting evidence and before the Regional Director
started his investigation. Contrary to the dissent,
we are not persuaded by the facts of this case that
any special circumstance exists that would justify
permitting the Employer to file untimely objec-
tions.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Oil, Chemical & Atomic
Workers International Union, AFL-CIO, Local 8-
948 and that it is the exclusive collective-bargain-
ing representative of the employees in the follow-
ing appropriate unit:
INCLUDED: All production, maintenance,
warehouse, shipping and receiving employees
employed by Rhone-Poulenc, Inc. at its 1669
Corporate Road West and 1145 Towbin
Avenue, Lakewood, New Jersey facility.
EXCLUDED: All office clericals, laboratory
technicians, managerial employees, guards and
supervisors as defined in the Act.
MEMBER HUNTER, dissenting in part.
I would remand this proceeding to the Regional
Director to consider the allegations of misconduct
raised for the first time by the Employer in its 3
January 1984 letter to the Regional Director. I
think the Regional Director's refusal to consider
these further allegations in the particular circum-
stances here was in error.
The election here was held 21 December 1983.
The Employer timely filed three separate objec-
tions to the election. On 28 December 1983 the
Acting Regional Director acknowledged receipt of
these objections and gave the Employer until 5
January 1984 to submit the evidence available to it
in support of these objections. The Employer
claims it submitted certain evidence by letter dated
30 December 1983, and additional evidence on the
I(X)
RHONE-POULENC, INC.
objections by letter dated 3 January 1984. In that
later submission, the Employer also included an af-
fidavit alleging that one employee had threatened
other employees, and that another employee was
offered a benefit if the Union won the election.
These two allegations were not covered in the
three previously submitted objections.
The Regional Director did not consider these
latter two allegations. He found the allegations un-
related to any of the three objections previously
filed, and thus found them untimely absent a show-
ing, not made here, that they were newly discov-
ered and previously unavailable. He cited for this
conclusion Burns Security Services, 256 NLRB 959
(1981); Tuf-Flex Glass, 262 NLRB 445 (1982); and
Parks Food Service, 235 NLRB 1410 (1978). I find
all these cases distinguishable from the instant situ-
ation, and I conclude that the Regional Director
was in error in rejecting these further allegations
on the basis he used.
In Burns, the Board refused to consider certain
further allegations of misconduct proferred on two
occasions by the objecting party because those alle-
gations were unrelated to the original timely sub-
mitted objections and were not shown to be previ-
ously unavailable and newly discovered. But, im-
portantly, the first set of additional allegations was
submitted some 40 days, and the second some 70
days, after the objections had been filed; the allega-
tions appear to have been submitted after the time
had expired for the submission of evidence support-
ing the timely objections; and were apparently sub-
mitted after the Region had begun its investigation
of the timely submitted objections. In rejecting var-
ious of these submissions, the Board relevantly
noted that "the period during which the [Region's]
investigation proceeds was never intended to pro-
vide more time for the objecting party to extend its
own investigation in the hope of finding a basis for
objection that lies beyond the matters covered in
the [Region's] investigation." 256 NLRB at 960.
There are two critical differences between this case
and Burns. First, here the Employer submitted its
additional allegations and supporting evidence
within the time allowed for submission of support-
ing evidence on the original objections. Secondly,
no Regional investigation appears to have yet
begun when these additional allegations were sub-
mitted. In this latter regard, the Region noted in its
28 December 1983 letter to the Employer that no
such investigation would begin without the evi-
dence supporting the original objections first being
submitted to the Region. As noted, not all of that
evidence had been submitted when the Employer
raised its additional allegations and thus it appears,
contrary to Burns, that the Region's investigation
had not yet begun. Hence, the concerns raised by
the Board in Burns are not present here.
Likewise, Tuf-Flex Glass and Parks Food Service
are distinguishable. In each, additional allegations
of misconduct were raised for the first time in the
objecting party's exceptions to the Board-in Tuf-
Flex after an initial report by a hearing officer, and
in Parks Food after a report by a regional director.
That is hardly the situation here in which the addi-
tional allegations were submitted before the time
had expired for submitting evidence in support of
the original objections.
In sum, the Employer admittedly did not include
these two other allegations in its original objec-
tions, but nonetheless it submitted these allegations
and the evidence it relied on to support these allega-
tions before the time had expired to submit evi-
dence on the original objections and prior to the
Region's beginning its investigation on those objec-
tions. The Region, under this special circumstance,
was in error in failing to consider them. I would
remand the case to the Regional Director for such
consideration.
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