Rodac Corp.

National Labor Relations Board - Board Decisions

Aug 9, 1977

231 N.L.R.B. 261 (N.L.R.B. 1977)

RODAC CORPORATION
Rodac Corporation and Miscellaneous Warehouse-
men, Drivers & Helpers, Local 986, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America. Case 21-RC-
14450
August 9, 1977
DECISION AND DIRECTION OF
SECOND ELECTION'
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to authority granted it under Section 3(b)
of the National Labor Relations Act, as amended, a
three-member panel of the NLRB has considered the
objection to an election held on February 13, 1976,2
and the Hearing Officer's report recommending
disposition of the same. The Board has reviewed the
record in light of the exceptions and brief and hereby
adopts the Hearing Officer's findings and recommen-
dations.
Our dissenting colleague concludes that the Em-
ployer's intrusion into the Peerless Plywood3 24-hour
insulated period was inadvertent and therefore
furnished no basis for setting aside the election. This
conclusion of inadvertence disregards the Hearing
Officer's factual findings with which she does not
disagree. In reliance on the Employer's testimony,
the Hearing Officer found that the Employer knew
that delivery of the speech in English would consume
exactly 15 minutes. This was to be followed by
delivery of the speech in Spanish. There is no
suggestion that its rendition in Spanish was expected
to take less than 15 minutes. Thus the Employer
knew that the full 30 minutes allowed for the meeting
before the 3 p.m. commencement of the 24-hour
insulation period would be exhausted by the speech-
es alone. Nevertheless, prior to the meeting it had
planned several announcements at the meeting in
addition to the speeches. Announcements were to be
made in English at the conclusion of the English
delivery and in Spanish after the Spanish version.
Thus it was a certainty, based on the Employer's
deliberate planning, that the meeting would intrude
into the insulated period. This can hardly be
characterized as inadvertent or accidental. The
Hearing Officer was clearly correct in finding this
The instant Decision supplements an Order issued by the Board on
June 9. 1976 (not published in the printed volumes of Board Decisions), in
which we adopted the Regional Director's findings, conclusions, and
recommendations overruling all of the Petitioner's objections except
Objection 2, as to which we ordered the instant heanng that was held on
July 9, 1976.
2 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: 78 ballots for, and 142 against, the
Petitioner. There were 20 challenged ballots, an insufficient number to affect
the results of the election.
231 NLRB No. 29
deliberate conduct to be in willful disregard of the
Peerless Plywood restrictions. The cases relied on by
our colleague do not support a contrary conclusion.
In Granite State Veneer, Inc., 123 NLRB 1497 (1959),
to ensure compliance the employer had a representa-
tive present to time the speech. Accordingly, the
overrun, if any, was found to be accidental. In
Nebraska Consolidated Mills, Inc., 165 NLRB 639
(1967), and WATE, Inc., 123 NLRB 301 (1959), the
employees' presence during the extended period was
entirely voluntary. In cases involving deliberate
disregard of the 24-hour limitation, strict enforce-
ment is required if the Peerless Plywood rule is to
survive irreparable erosion.
[Direction of Second Election omitted from publi-
cation.]4
MEMBER MURPHY, dissenting in part:
I cannot adopt the Hearing Officer's recommenda-
tion, based on Petitioner's Objection 2, to set aside
the election because the Employer's speech carried
over a few minutes into the Peerless Plywood5 24-
hour period preceding the election.
The election was scheduled to be held from 3 to
3:30 p.m. on February 13, 1976. The day before the
election the Employer, by its president, first gave a
speech to the assembled employees in English and
then, through its general foreman, essentially repeat-
ed it in Spanish. Each language segment of the
speech was designed to take 15 minutes and the
meeting at which the speech was given started at 2:30
p.m., as planned. The English portion was completed
within 15 minutes allotted to it, after which two brief
announcements were made in that language, one of
which advised the employees that they were free to
leave or stay and hear the speech in Spanish. 6 The
Spanish deliverance of the speech and a subsequent
announcement that an employer-sponsored party
would be held ended at 3:07 p.m., or 7 minutes past
the beginning of the 24-hour proscribed period. On
these facts the Hearing Officer concluded that the
speech's intrusion into such period was deliberate
rather than inadvertent, and thus in willful disregard
of the "Peerless Plywood limitations imposed on the
timing of [the Employer's] campaign speech .... "
The key to whether the Peerless Plywood principle
was violated in this case is, as the Hearing Officer
and my colleagues have recognized, whether the
3 107 NLRB 427 (1953).
' [Excelsior footnote omitted from publication./
5 107 NLRB 427(1953).
6 The Hearing Officer found that this did not remove the mandatory
character of the meeting for the Spanish-speaking employees who did not
understand English and therefore the meaning of this announcement. I have
no quarrel with that finding, although I think the release of about half the
employees constitutes a factor supporting my conclusion that the contraven-
tion of the Peerless Plywood period in this case was inadvertent.
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failure of the Employer to conclude the speech
outside the 24-hour period was inadvertent or not. In
my opinion the extension of the Spanish rendition of
the Employer's speech 7 minutes into the proscribed
period was accidental and inconsequential. 7 The
facts show that the Employer had no intention of
breaching the proscribed period. Indeed, while aimed
as a "last minute" appeal at the employees, the
speech was constructed so as to last no longer than
30 minutes, 15 for each language; it was promptly
started at 2:30 p.m.; there is no evidence of any
interruption in its oration; and, as found by the
Hearing Officer, each segment took the 15 minutes
allotted to it. Hence, it should have been completed,
as planned and intended, by 3 p.m. on February 12,
1976, thereby avoiding intrusion into the Peerless
Plywood period. 8 That what mathematically should
have occurred did not, that the Employer miscalcu-
lated the actual time it would take to deliver the
speech and a few accompanying announcements
does not warrant the majority concluding as it has
the brief intrusion that occurred here was "deliber-
ate" and "willful." To draw that conclusion in the
face of the above facts, which show a considered and
conscientious effort by the Employer to achieve
compliance with Peerless Plywood, is to pervert the
dictionary meaning of the above two words, while
imparting a slavish adherence to the time strictures
imposed by that case.
Absent evidence demonstrating that the intrusion
could only have been intended from the outset or
showed callous or complete disregard of the Peerless
Plywood injunction, I am unwilling to characterize
every minor violation of the proscribed period as
deliberately intended. The test for determining
7 Granite State Veneer, Inc., 123 NLRB 1497 (1959); Nebraska Consoli-
dated Mills, Inc., 165 NLRB 639 (1967).
R Unlike my colleagues, I am unable to perceive how a plan for a small
number of brief announcements establishes that "it was a certainty" that the
meeting would intrude into the insulated period. The announcements at the
end of the English version were that there would be a party, that the speech
whether a contravention of the 24-hour period was
intentional or inadvertent should not be that the
offending party could have avoided the problem by
beginning the speech earlier than it did-notwith-
standing that would have been the safe and prudent
thing to do. Rather, the test should be whether the
party charged with violating the period in question
acted reasonably and in good faith in planning,
scheduling, and delivering the speech. Obviously, the
length of time the intrusion lasted will be a
significant factor in applying the latter test. However,
unlike the approach followed by the Hearing Officer
and my colleagues, its mere existence will not be
dispositive of the issue in question. Under the per se
test they appear to apply, it is hard to imagine the
Board finding as "inadvertent" any trespass of the
proscribed period, no matter how slight or uninten-
tional it might be.
Here, despite the Employer's precautions, there
was but a laspe of 7 minutes which the Employer
failed to anticipate would be needed to achieve its
purpose and avoid any supportable accusation of
objectionable conduct within the meaning of Peerless
Plywood, and only about half of the employees were
involved. I do not believe that the principle enunciat-
ed by that decision was ever meant to be applied so
technically or mechanistically; and the Board's
decisions in Granite State Veneer and Nebraska
Consolidated Mills, Inc., supra, 9 placing that principle
in its proper perspective, convince me of the
soundness of that view.
Accordingly, I would reverse the Hearing Officer's
recommendation concerning Objection 2 and certify
the results of the election.
would be read in Spanish, and that employees were free to leave. At the end
of the Spanish version the party announcement was repeated. These
announcements were of a type which takes so little time that the Employer
had every reason to believe they could be made without any significant
effect on its schedule.
9 See also WA TE, Inc., 123 NLRB 301 (1959).
262