Appendix — A. S. Horner, Inc. v. National Labor Relations Board

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NOT FOR ROUTINE PUBLICATION

United States Court of Appeals

Tenth Circuit

A. S. HORNER, INC.,

Petitioner

v. No. 79-2185

NATIONAL LABOR RELATIONS BOARD,

Respondent and

Cross-Petitioner

On Petition for Review and Cross-Application

For Enforcement of an Order of The

National Labor Relations Board

(Case No. 28-RC-3517

Nicholas J. Noeding (Barbara L. Shapiro with him on the brief) of Poole, Tinnin &

Martin, Albuquerque, New Mexico for Petitioner-Appellant.

Bernard P. Jeweler (John H. Fe-guson and Sara M. Green, Attorneys, William A.

Lubbers, General Counsel, Jobn E. Higgins, Jr., Deputy General Counsel, Robert

E. Allen, Acting Associate General Counsel, and Elliott Moore, Deputy Associate

Genera! Counsel, on the brie‘), National Labor Relations Board, Washington, D.C..

for Respondent Appellee

Before MeWILLIAMS ard BARRETT, Circuit Judges. and ANDERSON, District

Judge.*

BARRETT, Cireuit Judge.

*Chief Judge of the United States District Court for the District of Utah, sitting

by designation.

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Petitioner, A. 5. Horner, Inc. (Horner) seeks review of an

order of the National Labor Relations Board (NLRB) directing

Horner to cease and desist from refusing the bargain collec-

tively with the New Mexico District Council of Carpenters,

AFL-CIO (District Council). Respondent, NLRB, cross-petitions

for enforcement of its order.

Horner is a New Mexico corporation engaged in highway

and engineering construction work throughout the State of

New Mexico. On July 21, 1978, the District Council filed a peti-

tion for certification with the Albuquerque, New Mexico office

of the NLRB. The District Council sought to represent all of

Horner's employees employed at one particular project except

heavy equipment operators already represented by another

union.

At the pre-election hearing on the petition, Horner objected

to the designation of a single-project unit because that por-

ticular project was soon to be completed. Horner further ob-

jected to the appropriateness of the proposed muii; cro‘t

bargaining unit as opposed to units drawn along craft lines.

On August 23, 1978 the regional director of the NLRB issued

a Decision and Direction of Election (initial decision) wherein

he found the single-project unit inappropriate and ordered an

election in a state-wide unit. However, the regional director

did sustain the designation of a multi-craft unit, concluding

that there existed a community of interest between the

employees. The regional director also found that those

employees who were employed during the payroll period im-

mediately preceding the date of his decision were eligible to

vote at the election.

The election was held on September 22, 1978. The majority

of the voters cast their ballots in support of the union. On

£- ptember 29, 1978 Horner filed objections to the election

utleging that the election should be set aside because, (1) the

District Council had made misrepresentations to the

employees at pre-election meetings, (2) the District Council

improperly extended a waiver of initiation fees to employees

who would sign authorization cards prior to the election, (3)

the designation of a multi-craft unit was inappropriate, and (4)

certain employees were disenfranchised as a result of the

voter eligibility formula employed by the NLRB. Although no

hearing on the objections was held, Horner was allowed to

submit evidence in support thereof.

On November 14, 1978, the regional director issued o Sup-

plemental Decision on Objections to Conduct Affecting the

Results of the Election and Certificate of Representative (sup-

plemental decision). in this supplemental decision, the

regional dire-tor overruled Horner's first two objections on

their merits. The regional director further concluded that

Horner had waived the last two objections concerning the ap-

propriateness of the bargaining unit and the voter eligibility

formula by failing to make a request for review of the

director's initial decision. Thus the regional director certified

the District Council as the exclusive bargaining representative

of Horner's employees. On December 5, 1978 Horner filed a

request for review of the regional director's supplemental

decision.'

The Board denied the request for review by telegram dated

January 16, 1979. The Board stated that the request failed to

ings which had previously been denied.

On November 8, 1979. the Board issued a decision wherein

it granted the general counsel's motion for summary judg-

ment. The Board found that the issues raised by Horner had

already been litigated in the representation hearing and

adopted the regional director's previous finding that Horner

had waived its objections to the appropriateness of the multi-

craft unit and the voter eligibility formula.

Although the Boord states in its brief that the request for review wos

review wos rr quired to be filed by Novembe 77. |978. It appears that

Horner made a motion for an extension of time within which to file the re-

quest for review. It is not clear what the disposition of that motion was. in

in its petition for review, Horner contends that, (1) the NLRB

denied it due process at all stages of the proceedings, (2) the

regional director's finding that a multi-croft unit wos ap-

propriate was arbitrary, an abuse of discretion and not sup-

ported by substantial evidence, (3) the voter eligibility formula

utilized by the regional director was erroneously applied and

an abuse of discretion, and (4) the Board erred in its treatment

of Horner's objection to the election concerning the District

Council's alleged misrepresentations.

Horner contends that the Board denied it due process by

concluding that Horner had waived its right to object to the

regional director's findings as to the appropriateness of the

multi-craft bargaining unit and the voter eligibility formula.

Specifically, in his supplemental decision, subsequently

adopted by the Board, the regional director concluded that

Horner's failure to request review of the initial decision prior

to the election, as provided for by Reg. 102.67(b), 29 C.F.R. §

102.67(b), amounted to a waiver of those objections. Horner

admits that it failed to request review of the initial decision

but contends that such failure did not amcunt to a waiver.

Horner asserts a right to object to the regional director's fin-

dings by posi-election objections, based on the rationale that

the pre-election hearing, the election and the post-election

Horner contends, it is entitled to object to any time during this

proceeding, and consequently its request for review of the

regional director's supplemental decision preserved the issue

for appeal. Horner's argument ignores thot dictate of Reg.

102.67(b), 29 C.F.R. § 102.67(b) which provides that the

regional director's decision and direction of election is final

unless appealed.

At the onset we note that the Board's procedure allowing

the regional director to determine the appropriate unit is pro-

per. Further, inasmuch as the regional director is required to

follow the same rules as the Board in making that determino-

tion, there is no requirement that the Board make an indepen-

dent determination of the appropriate bargaining unit.

Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971). Conse-

quently, there is nothing offensive in the Board's regulation

establishing the finality of the regional director's decision.

The Board has promulgated regulations providing pro-

cedures for review of the regional director's decisions at each

step of the certification proceedings. If a party fails to allow

the prescribed procedure at the appropriate time he is

deemed to have waived his objections. This waiver policy is

consistent with the Board's legitimate concern as expressed in

NLRB v. A. J. Tower Co., 329 U.S. 324, 330 (1946) that an “elec-

tion could be converted from a definitive resolution of

preference into «a protracted resolution of objections

disregarded or suppressed against the contingency of an

adverse result.” Thus the fallacy in Horner's argument, thot it

should be allowed to object to the preliminary issues of the

appropriate bargaining unit and voter eligibility formula by

way of post-election objections. is apparant.

In addition to failing to ava _— aif of the request for review

procedure provided for by Reg. 102.67(b), 29 C.F.R. § 102.67(b)

on the issue of the voter eligibility formula, Horner also

bypassed the challenge procedure p.ovided for by Reg.

102.69%(a), 29 C.F.R. § 102.69(a). Horner's attempt to raise the

voter eligibility issue by post-election objections ignores the

distinction between challenges and objections as set forth in

NLRB v. A. J. Tower Co., supra, at p. 334: “Objections relate to

the working of the election mechanism and to the process of

counting the ballots accurately and fairly. Challenges, on the

other hand, concern the eligibility of prospective voters.”

Horner's failure to request review by the Boord of the

regional director's initial decision constituted waiver of his

right to a hearing on the merits before the Board, and it also

resulted in a waiver of his right to court review of those

issues. As a general rule, the court will not review issues not

presented to the Board. National Labor Relations Act, Section

10(e), 29 U.S.C.A. § 160(e). This is so inasmuch as the court is

entitled to the benefit of Board expertise. NLRB v. Gold Spot

Dairy, inc., 417 F.2d 761 (10th Cir. 1969); NLRB v. Midwestern

Mfg. Co., 388 F.2d 251 (10th Cir. 1968); NLRB v. Peyton Fritton

Stores, inc., 336 F.2d 769 (10th Cir. 1964); NLRB v. Allied Prod.

Corp., 548 F.2d 644 (6th Cir. 1977).

We recognize that the waiver rule may produce a harsh

result. Nevertheless, it does not amount to a denial of due

process as Horner contends. Due process requires only that a

party be given notice and an opportunity to be heard. This is

not the situation presented in NLRB v. ideal Laundry and Dry

Cleaning Co., 330 F.2d 712 (10th Cir. 1964) or NLRB v. Howard

Johnson Co., 398 F.2d 435 (3d Cir. 1968) wherein the courts

found the employer had never been granted an opportunity to

be heard on certain issues.

Horner did raise the issue >f the appropriateness of the

bargaining unit at the pre-election hearing and it was “fully

litigated” at that time. Horner also had the opportunity to

litigate the voter eligibility formula at the pre-election hearing

and through the challenge procedure. Horner was specifically

apprised of its right to request review of the regional

director's findings on those issues on the face of the initiol

decision. Horner's case is akin to the situation presen? in NLRB

v. Thompson Transport Company, 406 F.2d 698 (10th Cir. 1969)

wherein we said,

....The fundamental of ideo! is simple and basic —

due process in an administrative hearing requires an op-

portunity to be fully heard upon any issue that is deter-

minative of the rights of the parties and when that oppor-

tunity is denied at the interlocutory level no finality can

be accorded the determination there made. But this prin-

ciple has not been abused by the Board in the case at

bar. Although the Company did seek and obtain review

of the Regional Director's determination of the ap-

propriate unit the Board acted well within its discretion in

holding that the issue of Hodge's sttus could be best

determined through the challenge »rocedure....in any

event the Board procedures provided full opportunity for

review of the Director's decision to count the Hodge vote

and the Company did not seek such review. To continue

the issue as appropriate in the unfair practice hearing

would be but to nullify the effectiveness of § 102.67(b)

and violate the cautionary words of the Supreme Court

that “*** courts should not topple over administrative

decisions unless the administrative body not only has er-

red but has erred against objection made at the time ap-

propriate unde: its practice.” United States v. L. A.

Tucker Truck Lines, inc., 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97

L.Ed. 54.

See also: NLRB v. WEK Drilling Co., 438 F.2d 267 (10th Cir.

1971) (employer who bypassed opportunity for hearing was

foreclosed from raising issue in subsequent proceedings.)

Thus, we hold that the Board did not err in concluding that

Horner had waived his right to object to the appropriateness

of the bargaining unit and the voter eligibility formula. Accor-

dingly, such conclusion did not violate Horner's due process

rights, and we must decline to reach the merits of those

issues.

In a connected due process challenge, Horner contends that

the regional director's failure to make specific findings of fact

concerning the appropriateness of the multi-craft unit violated

its due process righfs.

The Board has an affirmative duty to set forth findings of

fact supporting its conclusions. NLRB v. Metropolitan ins. Co.,

380 U.S. 438 (1965); NLRB v. Groendyke Transport, inc., 372

F.2d 137 (10th Cir. 1967), cert. denied, 387 U.S. 932 (1967);

Paceco v. NLRB, 601 F.2d 180 (Sth Cir. 1979).

We agree with Horner that the regional director failed to set

forth sufficient findings of fact supporting his unit determina-

tion. Although the director did render findings of fact in sup-

port of the designation of a state-wide unit, he did not do so in

support of his designation of a multi-craft unit. The regional

director simply stated that the employees in the proposed unit

had a community of interest, that the District Council sought to

represent all of Horner's employees, and that the employees

were not represented by any other union. The regional direc-

tor's decision fails to apprise us of his reasons for designating

a multi-craft unit as opposed to a single-craft unit. See NLRB v.

Purnell's Pride, inc., 609 F.2d 1153 (Sth Cir. 1980).

Normally, we would remand when we ascertain that the

regional director failed to make sufficient findings of fact.

However, remand in the instant case would serve no purpose.

The purpose of requiring the Board tc make specific findings

of fact is to enable the reviewing court to determine whether

there exists sufficient evidence to support the Board's conclu-

sions. NLRB v. Metropolitan ins. Co., supra, NLRB v. Groen-

dyke Transport, inc., supra. If we should remand the case to

require the regional director to make findings of fact so that

gis

we would be better able to assess whether there was suffi-

cient evidence to support his conclusion that the multi-craft

unit was appropriate, it would be o meaningless requirment,

inasmuch as we have determined that Horner waived his right

to object to the multi-craft unit. A remand under these cir-

cumstances for specific findings of fact would be an exercise

in futility.

mi.

In regard to the issue of alleged misrepresentation nade by

the District Council prior to the election, Horner assigns as er-

ror, (1) the Board's failure to provide a hearing on the issue,

(2) failure to make specific findings of fact, and (3) the Board's

conclusion that Horner's objection was without merit.

Horner alleged in its post-election objections that the

District Council misrepresented to the employees that if the

District Council won the election the employees would be

represented not only by the Council but also by other craft

Horner's employees which stated, inter alia:

The Council wishes to thank all of the people involved for

their cooperation and wants to assure them that if the

voting is favorable the District Council with the

assistance of the other craft unions will do everything in

their power to negotiate a favorable agreement. | would

like to add that the employees have the power to reject

or approve any settlement that the unions might

negotiate.

At the time of the regional director's decision the standard

of review of alleged misrepresentations was that announced

in Shopping Kart Food Markets, inc., 228 NLRB 1311 (1977). in

along with petitioner or that they would be able to join other

craft unions, such statements are neither clearly misrepresen-

tations of the consequences of Board certification nor the type

of misrepresentations contemplated in the Board's exceptions

in Shopping Kort.”

In its subsequent denial of review, the Board stated, “As to

Objection | the Board was satisfied that even under the deci-

sion in General Knit of California, inc. 239 NLRB No. 101, just

issued, no substantial issues are raised warranting review

(member Penello would deny review under Shopping Kort

criteria).*

Subsequent to the regional director's decision, the Board

had announced General Knit of Californ: 1, inc., 239 NLRB No.

101 (1978) wherein it abandoned the Shopping Kort standard

and reinstated the standard set forth in Hollywood Ceramics

Co., 140 NLRB 221 (1962). in Hollywood Ceramics, the Board

held than an election would be set aside due to misrepresen-

tations if the misrepresentations were material to the extent

that they may have had an impact on the election, and if the

employees did not have sufficient knov edge to make their

own determination and the opposing party did not have an op-

portunity for rebuttal.

We hold that the Board did not err in refusing to provide a

hearing on the misrepresentation issue. Under the regulo-

tions, Reg. 102.69(c), 20 C.F.R. § 102.69(c) the regional director

is simply required to hold a hearing on post-election objec-

tions if there exist substantial and material issues of fact. The

regional director stated in his decision that it was not clear

what the employees had been told. However, the regional

director did noi deem the issue of fact material, nor do we.

The regional directzr assumed the truth of Horner's allego-

tions and nevertheless concluded that such misrepresento-

tions did not warrant a new election. Consequently, a hearing

to determine what the employees were in fact told, would not

have added to or changed the result.

Similarly, we hold that the regional director did not fail in

his duty to make adequate findings of fact. The regional direc-

tor set forth on the face of his decision the results of his in-

vestigation.’ Inasmuch as the focts as alleged by Horner were

assumed, no additional specific findings of foct were

necessary. The regional director applied the law to the facts

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as alleged by Horner and concluded that the misrepresento-

tions did not call for a new election.

Finaliy, Horner contends that the Board erred in concluding

that the alleged misrepresentations did not wurrant a new

election. The court will give deference to the Board's decision

and will not set aside the Board's conclusions unless it is

determined that the Board acted in an arbitrary and capricious

manner. Burns Intern. Sec. Services, inc. V. NLRB, 567 F.2d 945

(10th Cir. 1977); NLRB v. R. L. Sweet Lumber Company, 515

F.2d 785 (10th Cir. 1975), cert. denied, 423 U.S. 986 (1975). As

the regional director noted in his supplemental decision, there

is nothing in the National Labor Relations Act precluding the

District Council from consulting with other unions in the

bargaining process. Thus, representation by the District Coun-

cil that it would consult with other unions did not substantially

misrepresent Board processes. The regional director's deci-

sion also indicates that he was not convinced that the

employees were misled into believing that they could join

other unions and that even if the employees were so in-

formed, such information would not have been understood by

the employees as having Board sanction.

? It appears from the investigation that final meetings were held by the

Petitioner for employees both in Costilla and Tucumcari, New Mexico,

one week or two weeks before the election. Some employees understood

from the representatives of the Petitioner at these meetings that some

other craft unions had already been contacted and that if the Petitioner

won the election, employees would have an opportunity to join the crait

union of their choice at o reduced rate. These other craft unions would

then take part in negotiations along with the Petitioner. Other employees

understood that if the Petitioner won it would then attempt to secure an

understanding with other craft unions which would allow employees to

be members of those other craft unions. Still other employees understood

that if the Petitioner wos successful in the election, the Petitioner would

represent the employees in the unit.

The investigation does not clearly establish with any precision exactly

whot employees were told in this regard by representatives of the Peti-

tioner. The Petitioner's letter itself is ambiguous, apparently implying

that while other unions may participate with the Petitioner in negotio-

tions with the Employer, that this participation may be active or be

limited merely to consultation.

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in light of our standard of review, and bearing in mind that

the Board did not find that the alleged misrepresentations

warranted a new election under either the Shopping Kart or

the General Knit standards, we cannot hold that the Board's

failure to set aside the election was arbitrary and capricious.

The Board's cross-petition for enforcement of its order is

granted.

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JULY TERM - September 7, 1982

Before Honorable Robert H. McWilliams, Honorable James E.

Barrett, Circuit Judges, and Honorable Aldon J. Anderson,

District Judge*.

A. 8. HORNER, INC.,

Petitioner

Vv No. 79-2185

NATIONAL LABOR RELATIONS BOARD,

Respondent

This matter comes on for consideration of Petitioner's peti-

tion for rehearing, or in the alternative, to recall and stay the

mandate.

Upon consideration whereof, it is ordered that:

1. The petition for rehearing is denied.

2. The mandate of this Court issued July 15, 1982, is hereby

recalled.

It is further ordered that the mandate shall be stayed until

October 7, 1982, pending certiorari, and that if, on or before that

date, there is filed with the Clerk of the Court of Appeals a

notice from the Clerk of the Supreme Court of the United States

that petitioner has timely filed a petition for writ of certiorari in

the Supreme Court, the stay shall continue until final disposition

by the Supreme Court.

HOWARD K. PHILLIPS, Clerk

* Of the United States Distric’ Court for the District of Utah,

sitting by designation.

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A.S. Horner, inc. and New Mexico District Council of

Carpenters, AFL-CIO. Case 28-CA-5255

November 8, 1979

DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS PENELLO

AND TRUESDALE

Upon a charge filed on March 9, 1979, by New Mexico

District Council of Carpenters, AFL-CIO herin called the Union,

and duly served on A. S. Horner, Inc., herein cailed Respon-

dent, the General Counsel of the National Labor Relations

Board, by the Acting Regional Director of Region 28, issued a

complaint and notice of hearing on April 6, 1979, against

Respondent, alleging that Respondent had engaged in and

was engaging in unfair labor practices affecting commerce

within the meaning of Section 8(a)(5) and (1) and Section 2(6)

and (7) of the National Labor Relations Act, as amended.

Copies of the charge, complaint, and notice to hearing before

an administrative law judge were duly served on the parties

to this proceeding.

With respect to the unfair labor practices, the complaint

alleges in substance that on January 16, 1979, following a

Board election in Case 28-RC-3517, the Union was duly cer-

tified as the exclusive in the unit found appropriate;' and

that, commencing on or about January 19, 1979, and at all

times thereafter, Respondent has refused, and continues to

date to refuse, to bargain collectively with the Union as the

exclusive bargaining representative, although the Union has

requested and is requesting it to do so. On April 16, 1979,

Respondent filed its answer to the complaint admitting in

part, and denying in part, the aliegations in the complaint.

‘ Official notice is taken of the record in the representation proceeding,

Coase 28-RC-3517, as the term “record” is defined in Secs. 102.68 and

102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See

LTV Electrosystems, inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.

1968); Golden Age Beverage Co. 167 NLRB 15) (1967), enfd. 415 F.2d 26 (Sth

Cir. 1969); intertype Co., v. Penello, 269 F.Supp. 573 (D.C. Va. 1967); Follett

Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9d) of the

NLRA, as amended.

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On April 25, 1979, counsel for the General Counsel filed

directly with the Board a Motion for Summary Judgment.

Subsequently, on Macy 1, 1979, the Board issued an order

transferring the proceeding to the Board and a Notice To

Show Cause why the General Counsel's Motion for Summary

Judgment should not be granted. Respondent thereafter fil-

ez a “Statement in Reply to the Notice To Show Cause and in

opposition to the General Counsel's Motion for Summary

Judgment.” Respondent additionally filed a motion to re-

mand and reopen the record and the General Counsel filed

an opposition to the motion to remand and to the statement

in reply to the Notice To Show Cause.

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, as amended, the National Labor Rela-

tions Board has delegated its authority in this proceeding to a

three-member panel.

Upon the entire record in this proceeding, the Board makes

the following:

Ruling on the Motion for Summary Judgement

In its statement in reply to the Notice To Show Cause,

Respondent contended that the certification of the Union in

the underlying representation proceeding is invalid for the

following reasons. First, Respondent argued that the Regional

Director's failure to direct a hearing on its objections to the

election was in error because the objections raised substantial

factual issues warranting a hearing. As a corollary to this con-

tention, Respondent also argued thot the statements of

witnesses taken by the Regional Office during the represento-

tion case investigation should now be made part of the current

record as the representation case is now closed and the inclu-

sion of such statements here would insure that the Board has

before it a complete record upon which to determine the ins-

tant matter. Respondent further asserted that the Regional

tion of Representation in lieu of a Report on Objections as the

former limits consideration by the Board to the request for

review procedure, an abbreviated form of review. Finally,

Respondent contends that its initial failure to request review

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of the Regional Director's unit finding and voter eligibility for-

mula set forth in his Decision and Direction of Election did not

constitute a waiver of its right to later contest these findings

as objections to the election.

in its motion to remand, Respondent argues that the record

before the Board in this proceeding is presently incomplete as

it does not contain the statements and affidavits of employees

interviewed by the Regional Director in the investigation of

the objections. Respondent seeks inclusion of these

documents in the record.

in opposition to Respondent's various motions, the General

Counsel argues that the import of Respondent's motion to re-

mand is contrary to the Board's Rules and Regulations and its

statement in opposition to the summary judgment motion is

generally an attempt to relitigate issues already decided

adversely to Respondent. We find merit in the General

Counsel's position and we shall enter summary judgment

against Respondent for reasons described below.

Our review of the record herein, including the record in

Case 28-RC-3517, reveals that on August 23, 1978, the

Regional Director for Region 28 issued a Decision and Direc-

tion of Election in Case 28-RC-3517 in which he found ap-

propriate a unit of all construction employees, including

timekeepers, employed by Respondent in the State of New

Mexico with various exclusions. In his decision, the Regional

Director found, inter alia, that in view of the imminent com-

pletion ~. Respondent's construction activity near Costilla,

New Mexico, no useful purpose would be served by directing

an election in a unit limited to the employees involved therein,

the unit initially sought by the Union. However, as the Union

had indicated a willingness to proceed to an election in a

statewide unit, a unit found appropriate by the Regional

Director, an election in that unit was directed by the Regional

Director provided that the Union submitted an adequate

showing of interest in the broader unit. Respondent did not

seek review of the Regional Director's decision. Thereafter, on

September 22, 1978, pursuant to the Decision and Direction of

Election, a secret-ballot election was conducted. The tally of

ballots revealed that a majority of the valid ballots had been

cast for the Union and that the one challenged ballot was not

determinative. On September 19, 1978, Respondent timely

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filed objections to conduct affecting the results of the election.

On November 14, 1978, the Regional Director issued a Sup-

plemental Decision on Objections to Conduct Affecting the

Results of the Election and Certification of Representative

wherein he overruled the Employer's objections in their en-

tirely and issued a Certification of Representative to the

Union. Respondent's four objections alleged that (1) the Union

had mischaracterized and misrepresented Board procedures;

(2) the Union had improperly extended ao waiver of initiation

fees to eligible voters; (3) the unit in which the election was

conducted was inappropriate; and (4) the Regional Director

had used an inappropriate voter eligibility formula in his Deci-

sion and Direction of Election, resulting in the disentranchise-

ment of potential voters. The Regional Director overruled Ob-

jection 1, finding that the Union's statement did not constitute

a misrepresentation under the Board's Decision in Shopping

Kart Food Market, inc.’ The Regional Director also found Ob-

jection 2 without merit, noting that his investigation had failed

to produce any evidence which indicated that the Union's offer

to waive initiation fees was tied to the signing of an authoriza-

tion card or becoming a member of the Union prior to the elec-

tion. With respect to Objections 3 and 4, regarding the unit

issue and voter eligibility formula, the Regional Director found

these objections raised issues which were discussed in his

Decision and Direction of Election and as to which Respondent

had not sought review. Thereafter, he concluded that Respon-

dent was precluded from raising these issues at this stage of

the proceeding.

On December 5, 1978, Respondent filed a request for review

of the Regional Director's Supplemental Decison, alleging that

the Regional Director had erroneously overruled Respondent's

four objections. On January 16, 1979, the Board, by

telegraphic order, denied Respondent's request for review,

but granted Respondent's motion, filed December 29, 1978, to

stay the effective date of the certification and ordered that the

certification would be effective as of January 16, 1979.’

? 228 NLRB 1113 (1977).

* In its telegraphic decison denying Repondent’s request for review, the

Board noted that Objection | did not constitute a misrepresentation under

its recent decision in General Knit of California, inc., 239 NLRB 619 (1978).

Member Penello indicated he would deny review under Shopping Kart,

supra.

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We have reviewed the contentions raised by Respondent in

this proceeding and find that they raise no issues warranting a

stay of a grant of summary judgment. Respondent avers that o

hearing is necessary to resolve key factual issues raised in

Objection | involving allegedly misleading statements concer-

ning the identity of the union or unions that would be par-

ticipating in negotiations on behalf of the employees. Respon-

dent unsuccesfully raised this argument in its request for

review and we again find it without merit inasmuch as the

Regional Director, in making this recommendation, assumed

the facts as alleged by Respondent and nevertheless found the

conduct unobjectionable. Respondent raises the same argu-

ment as previously raised and rejected in the representation

proceeding with respect to Objection 2 involving an allegedly

improper offer to employees to waive initiation fees. With

respect to Respondent's request that statements of witnesses

obtained by the Region during the representation case be in-

corporated into the instant untair labor practice proceeding,

we note that in a recent decision’ the Boord was confronted

with a similar request and denied it. The Board stated there

“such material is not part of record in either an unfair labor

practice case or its underlying representation case ‘within the

meaning of Sections 102.68 and 102.45(b) of the Rules and

Regulations of the Board, nor are such documents [materials

relating to the representation case} encompassed within the

requirements of Section 9d) of the Act.’ “* We reach the same

conclusion here.’

With respect to Respondent's contention that the Regional

Director limited Respondent's right of appeal by the manner in

which he disposed of Respondent's objections, i.e.. by a Sup-

plemental Decision and Certification of Representative, we

. find that in rendering his decision the Regional Director pro-

ceeded in a manne” authorized by Section 102.69%(c) of the

Board's Rules and Regulations, Series 8, as amended. We

therefore find the Regional Director's action appropriate and

* Harvey Engineering & Manufacturing Corporation, 240 NLRB 699 (1979).

* id. at fn. | and cases cited therein.

* As noted, Respondent has also filed motion to remand and reopen the

record to admit these statements into the record. For the reason discussed

immediately above. Respondent's motion is hereby denied.

not subject to collateral attack by Respondent. Furtheii-ore,

we note that Respondent was entitled to appeal the decision

before us.’

it is well settled that in the absence of newly discovered or

’ See, @.g., Walnut Mountoin Core Center, 236 NLRB 284 (1978).

* See Pittsburgh Plote Gloss Co. v. N.L.8.B., 313 U.S. 146, 162 (1941); Rules

and Regulations of the Board, Secs. 102.67 (f) and 102.69%c).

Aa}

FINDINGS OF FACT

1. THE BUSINESS OF RESPONDENT

Respondent is a New Mexico corporation, engaged in the

construction industry, and maintains its principal place of

business in Littleton, Colorado. Respondent has been engaged

in construction business at various locations in New Mexico in-

cluding Costilla, Folsom, Tucumcari, and Mosquero. During

the 12 months preceding the complaint’: issuance, a period

which is representative of its operations at all times material

herein, Respondent, in the course and conduct of its business,

purchased goods ond materials in excess of $50,000 which

were delivered to its place of business in New Mexico directly

from locations outside the State of New Mexico.

ll. THE LABOR ORGANIZATION INVOLVED

New Mexico District Council of Carpenters, AFL-CIO, is a

labor organization within the meaning of Section 2(5) of the

Act.

il. THE UNFAIR LABOR PRACTICES

A. The Representation Proceeding

1. The unit

The following employees of Respondent constitute a unit

All construction employees including timekeepers,

2. The Certification

On September 22, 1978, a majority of the employees of

A-20

Respondent in said unit, in a secret-ballot election conducted

under the supervision of the Regional Director for Region 28

the Union as their representative for the purpose

of collective bargaining with Respondent. The Union was cer-

tified as the collective-borgo’ning representative of the

employees in said unit on January 16, 1979, and the Union

continues to be such exclusive representative within the

meaning of Section 9(a) of the Act.

B. The Request To Bargain and Respondent's Refusal

Commencing on or about January 19, 1979, and at all times

thereafter, the Union has requested Respondent 1o bargain

collectively with it as the exclusive collective-bargaining

representative of all the employees in the above-described

unit. Commencing on or about January 19, 1979, and continu-

ing at all times therecfter to date, Respondent hos refused,

and continues to refuse, to recognize and bargain with the

Union as the exclusive representative for collective bargain-

ing of all employees in said unit.

Accordingly, we find that Respondent has, since January 19,

1979, and at all times thereafter, refused to bargain collective-

ly with the Union as the exclusive representative of the

employees in the appropriate unit, and that, by such refusal,

Respondent has engaged in and is engaging in unfair labor

practices within the meaning of Section 8(a)(5) and (1) of the

Act.

IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES

UPON COMMERCE

The activities of Respondent set forth in section Ill, above,

occuring in connection with its operations described in section

|, above, have a close, intimate, and substantial relationship

to trade, traffic, and commerce among the several States and

tend to lead to labor disputes burdening and obstructing com-

merce and the free flow of commerce.

V. THE REMEDY

Having found that Respondent has engaged in and is engag-

A-21

ing in unfair labor practices within the meaning of Section

8(a)(5) and (1) of the Act, we shall order that it cease and

the Union as the exclusive representative of all employees in

the appropriate unit, and, if an understanding is reached, em-

body such understanding in a signed agreement.

In order to insure that the employees in the appropriate unit

will be accorded the services of their selected bargaining

agent for the period provided by low, we shall construe the in-

itial period of certification as beginning on the date Respon-

dent commences to bargain in good faith with the Union as

the recognized bargaining representative in the appropriate

unit. See Mar-Jac Poultry Company, inc., 136 NLRB 785 (1962);

Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229

(1962), enfd. 328 F.2d 600 (Sth Cir. 1964), cert. denied 379 U.S.

817; Burnett Construction Compony, 149 NLRB 1419, 142)

(1964), enfd. 350 F.2d 57 (10th Cir. 1965).

The Board, upon the basis of the foregoing facts and the en-

tire record, make the following:

CONCLUSIONS OF LAW

1. A. S. Horner, inc., is an employer engaged in commerce

within the meaning of Section 2(6) and (7) of the Act.

2. New Mexico District Council of Carpenters, AFL-CIO, is o

labor organization within the meaning of Section 2(5) of the

Act.

3. All construction employees, including timekeepers,

employed by Respondent in the State of New Mexico; ex-

watchmen end guords and supervisors as defined in the Act,

constitute a unit appropriate for the purposes of collective

bargaining within the meaning of Section 9b) of the Act.

4. Since January 16, 1979, the above-named labor orgenizo-

tion has been and now is the certified and exclusive represen-

tative of all employees in the aforesaid appropriate unit for

the purposes of collective bargaining within the meaning of

Section 9a) of the Act.

5. By refusing on or about January 19, 1979, and at all times

thereafter, to bargain collectively with the above-named labor

A722

organization as the exclusive bargaining representative of all

the employees of Respondent in the appropriate unit, Respon-

dent has engaged in and is engaging in unfair labor practices

within the meaning of Section 8(a)(5) of the Act.

6. By the aforesaid retusa! to bargain, Respondent has in-

tertered with, restrained, and coerced, and is interfering with,

restraining, and coercing, employees in the exercise of the

rights guoranteed them in Section 7 of the Act, and thereby

has engaged in and is engaging in unfair labor practices

within the meaning of Section 8(a)(1) of the Act.

7. The aforesaid untair labor practices are untair labor prac-

tices affecting commerce within the meaning of Section 2(6)

and (7) of the Act.

Pursuant to Section 10(c) of the National Labor Relations

Act, as amended, the National Labor Relations Board hereby

orders that the Respondent, A. S. Horner, inc., Littleton, Col-

orado, its officers, agents, successors, and assigns shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning rates of pay,

wages, hours, and other terms and conditions of employment

with New Mexico District Council of Carpenters, AFL-CIO, as

the exclusive bargaining representative of its employees in

the following appropriate unit:

All construction employees, including timekeepers,

employed by Respondent in the State of New Mexico; ex-

(b) In any like or related manner interfering with, restrain-

ing, or coercing employees in the exercise of the rights

guoranteed them in Section 7 of the Act.

2. Take the following affirmative action which the Board

finds will effectuate the policies of the Act:

(a) Upon request, bargain with the above-named labor

organization as the exclusive representative of all employees

in the aforesaid appropriate unit with respect to rates of pay,

A-23

wages, hours, and other terms and conditions of employment,

and, if an understanding is reached, embody such understan-

ding in a signed agreement.

(b) Post at construction sites in New Mexico where Respon-

dent is engaged in construction, including Costilla, Folsom,

Tucumcari, and Mosquero, copies of the attached notice

marked “Appendix.”’ Copies of said notice, on forms provided

by the Regional Director for Region 28, after being duly signed

by Respondent's representative, shall be posted by Respon-

dent immediately upon receipt thereof, and be maintained by

it for 60 consecutive days thereafter, in conspicuous places, in-

cluding all places where notices to employees ore customarily

posted. Reasonable steps shall be taken by Respondent to in-

sure that said notices are not altered, defaced, or covered by

any other material.

within 20 days from the date of this Order, what steps have

been taken to comply herewith.

* In the event that this Order is enforced by a Judgment of a United States

Court of Appeals, the words in the notice reading “Posted by Order of the

National Labor Relations Board” shall read “Posted Pursuant to o Judgment

of the United States Court of Appeals Entorcing an Order of the National

Labor Relations Board.”

~ . i or ie

A-24

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR REL” “ONS BOARD

An Agency of the United -...es Government

WE WILL NOT refuse to bargain collectively concerning

rates of pay, wages, hours, and other terms and conditions of

employment with New Mexico District Council of Carpenters,

AFL-CIO, as the exclusive representative of the employees in

the bargaining unit described below.

WE WILL NOT in any like or related manner interfere with,

restrain, or coerce our employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

WE WILL, upon request, bargain with the above-named

Union, as the exclusive representative of all employees in the

bargaining unit described below, with respect to rates of pay,

wages, hours, and other terms and conditions of employment,

and, if an understanding is reached, ernbody such understan-

ding in a signed agreement. The bargaining unit is:

All construction employees, including timekeepers,

employed by the Employer in the State of New Mexico;

excluding heavy equipment operators represented by

another labor organization, job superintendents, general

foreman, watchmen, and guards and supervisors within

the meaning of the Act.

A. S. HORNER, INC.

ADB

United States Code

Title 29 - Labor

§ 153, National Labor Relations Board

(b) Delegation of powers to members and regional directors;

review and stay of actions of regional directors; quorum;

seal

The Board is authorized to delegate to any group of three or

more members any or all of the powers which it may itself ex-

ercise. The Board is also authorized to delegate to its regional

directors its powers under section 159 of this title to determine

the unit appropriate for the purpose of collective bargaining,

to investigate and provide for hearings, and determine

whether a question of representation exists, and to direct an

election or take a secret ballot under subsection (c) or (e) of

section 159 of this title and certify the results thereof, except

that upon the filing of a request therefor with the Board by any

interested person, the Board may review any action of a

regional director delegated to him under this paragraph, but

such a review shall not, unless specifically ordered by the

Board, operate as a stay of any action taken by the regional

director. A vacancy in the Board shall not impair the right of

the remaining members to exercise all of the powers of the

Board, and three members of the Board shall, at all times,

constitute a quorum of the Board, except that two members

shall constitute a quorum of any group designated pursuant to

the first sentence hereof. The Board shall have an official seal

which shall be judicially noticed.

§ 158. Untair labor practices

(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 157 of

this title;

(5) to refuse to bargain collectively with the represen-

tatives of his employees, subject to the provisions of

section 159%(a) of this title.

A-26

§ 159. Representatives and elections

(a) Exclusive representatives; employees’ adjustment of

grievances directly with employer

Representatives designated or selected for the purposes of

collective bargaining by the majority of the employees in a

unit appropriate for such purposes, shall be the exclusive

representatives of all the employees in such unit for the pur-

poses of collective bargaining in respect to rates of pay,

wages, hours of employment, or other conditions of employ- —

ment: Provided, That any individual emplovee or a group of

employees shall have the right at any time to present

grievances to their employer and to have such grievances ad-

justed, without the intervention of the bargaining represen-

tative, as long as the adjustment is not inconsistent with the

terms of a collective-bargaining contract or agreement then in

effect: Provided further, That the bargaining representative

has been given opportunity to be present at such adjustment.

§ 160.

(e) Petition to court for enforcersent of order; proceedings;

review of judgment

The Board shall have power to petition any court of appeals

of the United States, or if all the courts of appeals to which ap-

plication may be made are in vacation, any district court of the

United States, within any circuit or district, respectively,

wherein the unfair labor practice in question occurred or

wherein such person resides or transact: business, for the en-

forcement of such order and for appropriate temporary relief

or restraining order, and shall file in the court the record in

the proceedings, as provided in section 2/12 o1 title 28. Upon

the filing uf such petition, the court shall cause notice thereof

to be served upon such person, and thereupon shall have

jurisdiction of the proceeding and of the question determined

therein, and shall have power to grant such temporary relief

or restraining order as it deems just and proper, and to make

and enter a decree enforcing, modifying and enforcing as so

modified, or setting aside in whole or in part the order of the

Board. No objection that has not been urged before the Board,

its member, agent, or agency, shall be considered by the

court, unless the failure or neglect to urge such objection shall

be excused because of the extraordinary circumstances. The

A-277

findings of the Board with respect to questions of fact if sup-

ported by substantial evidence on the record considered as a

whole shall be conclusive. If either party shall apply to the

court for leave to adduce additional evidence and shall show

to the satisfaction of the court that such additional evidence is

material and that there were reasonable grounds for the

failure to adduce such evidence in the hearing before the

Boord, its member, agent, or agency, the court may order

such additional evidence to be taken before the Board, its

member, agent, or agency, and to be made a part of the

record. The Board may modify its findings as to the facts, or

make new findings by reason of additional evidence so taken

and filed, and it shall file such modified or new findings, which

findings with respect to questions of fact if supported by

substantial evidence on the record considered as a whole

shall be conclusive, and shall file its recommendations, if any,

for the modification or setting aside of its original order. Upon

the filing of the record with it the jursidiction of the court shal!

be exclusive and its judgment and decree shall be final, ex-

cept that the same shall be subject to review by the ap- -

propriate United States court of appeals if application was

made to the district court as hereinabove provided, and by the

Supreme Court of the United States upon writ of certiorari or

certification as provided in section 1254 of title 28.

(f) Review of final order of Board on petition to court

Any person aggrieved by a final order of the Board granting

or denying in whole or in part the relief sought may obtain a

review of such order in any United States court of appeals in

the circuit wherein the unfair labor practice in question was

alleged to have been engaged in or wherein such person

resides or transacts business, or in the United Stotes Court of

Appeals for the District of Columbia, by filing in such a court o

written petition praying that the order of the Board be

modified or set aside. A copy of such petition shall be forth-

with transmitted by the clerk of the court to the Board, and

thereupon the aggrieved party shall file in the court the record

in the proceeding, certified by the Boord, as provided in sec-

tion 2112 of title 28. Upon the filing of such petition, the court

shall proceed in the same manner as in the case of an applico-

tion by the Board under subsection (e) of this section, and

A-2B

shall have the same jurisdiction to grant to the Board such

temporary relief or restraining order as it deems just and pro-

per, and in like manner to make and enter a decree enforcing,

modifying, and enforcing as so modified, or setting aside in

whole or in part the order of the Board; the findings of the

Board with respect to questions of fact, if supported by

substantial evidence on the record considered a a whole shall

in like manner be conclusive.

Code of Federal Regulations

Title 29 - Labor

§ 102.60. Petitions

(a) Petition for certification or decertification; who may

file; where to file; withdrawal. A petition for investigation of

a question concerning representation of employees under

paragraphs (1)(A)(i) and (1)(B) of section 9(c) of the Act

(hereinafter called a petition for certification) may be filed by

an employee or group of employees or any individual or

labor organization acting in their behalf or by an employer. A

petition under paragraph (1)(A)(ii) of section 9(c) of the Act,

alleging that the individual or labor organization which has

been certified or is being currently recognized as the

bargaining representative is no longer such representative

(hereinafter called a petition for decertification), may be fil-

ed by any employee or group of employees or any individual

or labor organization acting in their behalf. Petitions under

this section shall be in writing and signed,‘ and either shall

be sworn to before a notary public, Board agent, or other

person duly authorized by law to administer oaths and take

acknowledgments or shall contain a declaration by the per-

son signing it, under the penalties of the Criminal Code, that

its contents are true and correct to the best of his knowledge

and belief. Four copies of the petition shall be filed. Except

as provided in § 102.72, such petitions shall be filed with the

regional director for the regions wherein the bargaining unit

exists. or, if the bargaining unit exists in two or more

regions, with the regional director for any such regions. Prior

to the transfer of the case to the Board, pursuant to § 102.67,

the petition may be withdrawn oiily with the consent of the

regional director with whom such petition was filed. After

A-29

the transfer of the case to the Board, the petition may be

withdrawn only with the consent of the Board. Whenever the

regional director or the Board, as the case may be, approves

the withdrawal of any petition, the case shall be closed.

* Blank forms for filing such petitions will be supplied by the regional office

upon request.

(29 FR 15919, Nov. 28, 1964)

§ 102.63. investigation of petition by regional director; notice

of hearing; serving of notice; withdrawal of notice.

(a) After a petition has been filed under § 102.61 (a), (b), or

(c), if no agreement such as that provided in § 102.62 is

entered into and if it appears to the regional director that

there is reasonable cause to believe that a question of

representation affecting commerce exists, that the policies of

the act will be effectuated, and that an election will reflect the

free choice of employees in the appropriate unit, the Regional

Director shall prepare and cause to be served upon the parties

and upon any known individuals or labor organizations pur-

porting to act as representatives of any employees directly af-

fected by such investigation, a notice of hearing before a

hearing officer at a time ard place fixed therein. A copy of the

petition shall be served with such notice of hearing. Any such

notice of hearing may be amended or withdrawn before the

close of the hearing by the regional director on his own mo-

tion.

(b) After a petition has been filed under § 102.61(d) or (e),

the regional director shall conduct an investigation and, as ap-

propriate, he may issue a decision without a hearing; or

prepare and cause to be served upon the parties and upon any

known individuals or labor organizations purporting to act as

representatives of any employees directly affected by such in-

vestigation, a notice of hearing before a hearing officer at a

time and place fixed therein; or take other appropriate action.

if a notice of hearing is served, it shall be accompanied by a

copy of the petition. Any such notice of hearing may be

amended ur withdrawn before the close of the hearing by the

regional director on his own motion. All hearing and

posthearing procedure under this paragraph (b) shall be in

A-30

conformance with §§ 102.64 through 102.68 whenever ap-

plicable, except where the unit or certification involved arises

out of an agreement as provided in §102.62(a), the regional

director's action shall be final, and the provisions for review of

regional director's decisions by the Board shall »ot apply.

Dismissals of petitions without a hearing shall not be govern-

ed by § 102.71. The regional director's dismissal shall be by

decision, and a request for review therefrom may be obtained

under § 102.67, except where an agreement under § 102.62(a)

is involved.

(29 FR 15919, Nov. 28, 1964)

§ 102.67 Proceedings before the regional director: further

hearing; briefs; action by the regional director; appeals

from action by the regional director; statement in opposi-

tion to appeal; transfer of case to Board; proceedings

before the Board; Board action.

(a) The regional director may proceed, either forthwith

upon the record, or after oral argument or the submission of

briefs, or further hearing, as he may deem proper, to deter-

mine the unit appropriate for the purpose of collective

bargaining, to determine whether a question concerning

representation exists, and to direct an election, dismiss the

petition, or make other disposition of the matter. Any party

desiring to submit a brief to the regional director shall file the

original and one copy thereof, which may be typed carbon

copy, within 7 days after the close of the hearing: Provided,

however, That prior to the close of the hearing and for good

cause, the hearing officer may grant an extension of time not

to exceed an additional 14 days. Requests for additional time

in which to file a brief under authority of this section not ad-

dressed to the hea. 1g officer during the hearing shall be

made to the regional director, in writing, and copies thereof

shall immediately be served on the other parties. Requests for

extension of time shall be received not later than 3 days

before the date such briefs are due in the regional office. No

reply brief may be filed except upon special leave of the

regional director.

A-3)

(b) A decision by the regional director upon the record shall

set forth his findings, conclusions, and order or direction, The

decision of the regional director shall be final: Provided,

however, That within 10 days after service thereof any party

may file eight copies of a request for review with the Board in

Washington, D.C. Such request shall be printed or otherwise

legibly duplicated. Provided, however, That carbon copies shail

not be filed and if submitted will not be accepted.

Simultaneously therewith, copies thereof shall be served on all

other parties to the proceeding and the regional director, and

statement of such service filed with the Board. The regional

director shall schedule and conduct any election directed by the

decision notwithstanding that a request for review has been fil-

ed with or granted by the Board. The filing of such a request

shall not, unless otherwise ordered by the Board, operate as a

stay of the election or any other actien taken or directed by the

regional director: Provided, however, That if a pending request

for review has not been ruled upon or has been granted,

ballots whose validity might be affected by the final Board deci-

sion shall be segregated in on appropriate manner; and all

ballots shall be impounded and remain unopened pending such

decision.

pelling reasons exist therefor. Accordingly, a request for

review may be granted only upon one or more of the following

grounds:

(1) That a substantia: question of law or policy is raised

because of (i) the absence of, or (ii) a departure from, official-

ly reported Board precedent.

(2) That the regional director's decision on a substantial fac-

tual issue is clearly erroneous on the record and such error

prejudicially affects the rights of a party.

(3) That the conduct of the hearing or any ruling made in

connection with the proceeding has resulted in prejudicial er-

ror.

(4) That there are compelling reasons for reconsideration of

an important Board rule or policy.

(d) Any request for review must be a self-contained docu-

ment enabling the Board to rule on the basis of its contents

without the necessity or recourse to the record; however, the

Board may, in its discretion, examine the record in evaluating

A-32

the request. With respect to ground (2), and other grounds

where appropriate, said request must contain a summary of

oll evidence or rulings bearing on the issues together with

page citations from the transcript and a summary of argu-

ment. But such request may not raise any issue or allege any

facts not timely presented to the regional director.

(e) Any party may, within 7 days after the last day on which

the request for review must be filed, file with the Board eight

copies of a statement in opposition thereto, which shall be

duplicated and served in accordance with the requirements of

paragraph (b) of this section: except that if personal service of

the request for review is made upon the Board, 10 days will be

allowed. However, 3 days will not be added to either of the

aforesaid prescribed periods as provided in § 102.114. A state-

ment of such service of opposition shall be filed simultaneous-

ly with the Board. The Board may deny the request for review

without awaiting a statement in opposition thereto.

(f) The parties may, at any time, waive their right to request

review. Failure to request review shall preclude such parties

from relitigating, in any related subsequent unfair labor prac-

tice proceeding, any issue which was, or could have been,

raised in the representation proceeding. Denial of a request

for review shall constitute an affirmance of the regional direc-

tor's action which shall also preclude relitigating any such

issues in any related subsequent unfair labor practice pro-

ceeding.

(g) The granting of a request for review shall not stay the

regional director's decision unless otherwise ordered by the

Board. Except where the Board rules upon the issues on

review in the order granting review, the appellants and other

parties may, within 7 days after the issuance of an order gran-

ting review, file eight copies of a brief with the Board, which

shall be duplicated and served in accordance with the re-

quirements of subsection (b) of this section. A statement of

such service shall be filed simultaneously with the Board. Such

briefs may be reproductions of those previously filed with the

regional director and/or other briefs which shall be limited to

the issues raised in the request for review. Where review has

been granted, the Board will consider the entire record in the

light of the grounds relied on for review. Any request for

review may be withdrawn with the permission of the Board at

any time prior to the issuance of the decision of the Board

thereon.

(h) In any case in which it appears to the regional director

that the proceeding raises questions which should be decided

by the Board, he may, at any time, issue an order, to be effec-

tive after the close of the hearing and before decision,

transferring the case to the Board for decision. Such an order

may be served on the parties upon the record of the hearing.

(i) If any case is transferred to the Board for decision after

the parties have filed briefs with the regional director, the

parties may, within such time after service of the order

transferring the case as is fixed by the regional director, file

with the Board eight copies of the brief previously filed with

the regional director. Such copies shall be printed or other-

wise legibly duplicated: Provided, however, That carbon

copies of typewritten matter shall not be filed and if submit-

ted will not be accepted. No further briefs shall be permitted

except by special permission of the Board. lf the case is

trans‘erred to the Board before the time expires for the filing

of briefs with the regional director and before the parties have

filed briefs, such briefs shall be filed as set forth above and

served in accordance with paragraph (b) of this section, within

the time set by the regional director. If the order transferring

the case is served upon the parties during the hearing, the

hearing officer may, prior to the close of the hearing and for

good cause, grant an extension of time within which to file a

brief with the Board for a period not to exceed an additional

14 days. Requests for extension of time in which to file a brief

with the Board under authority of this section not addressed to

the hearing officer during the hearing shall be filed in writing

with the Board and copies thereof shall immediately be served

on the other parties and the regional director. Requests for

extension of time shall be received by the Board not later than

3 days before the date such briefs are due in Washington, D.C.

A copy of any such request shall be served immediately on the

other parties and the regional director and shall contain a

statement that such service has been made. No reply brief

may be field except upon special leave of the Board.

(j) Upon transfer of the case to the Board, the Board shall

proceed, either forthwith upon the record, or after oral argu-

ment or the submission of briefs, or further hearing, as it may

determ:ne, to decide the issues referred to it or to review the

decision ot tne regional director and shall direct a secret ballot

of the employees or the appropriate action to be taken on im-

pounded ballots of an election already conducted, dismiss the

petition, affirm or reverse the regional director's order in

whole or in part, or make such other disposition of the matter

as it deems appropriate.

(26 FR 3889, May 4, 1961, as amended at 29 FR 15920, Nov. 28,

1964; 42 FR 41117, Aug. 15, 1977)

§ 102. 69. Election procedure; tally of ballots, objections; certi-

fication by regional director; report on challenged ballots;

report on objections; exceptions; action of the Board;

hearing.

(a) Unless otherwise directed by the Board, all elections

shall be conducted under the supervision of the regional direc-

tor in whose region the proceedings is pending. All elections

shall be by secret ballot. Whenever two or more labor

organizations are included as choices in an election, either

participant may, upon its prompty request to and approval

thereof by the regional director, whose decision shall be final,

have its name removed from the ballot: Provided, however,

That in a proceeding involving an employer-filed petition of a

petition for decertification the labor organization certified,

currently recognized, or found to be seeking recognition may

not have its name removed from the ballot without giving

timely notice in writing to all parties and the regional director,

disclaiming ar: representation interest among the empioyees

in the unit. Any party may be represented by observers of his

own selection, subject to such limitations as the regional

director may prescribe. Any party and Board agents may

chailenge, for good cause, the eligibility of any person to par-

ticipate in the election. The ballots of such challenged persons

shall be impounded. Upon the conclusion of the election, the

regional director shall cause to be furnished to the parties a

tally of ballots. Within 5 days after the tally of ballots has been

furnished, any party may file with the regional director on

original and three copies of objections to the conduct of the

election or conduct affecting the results of the election, which

shall contain a short statement of the reasons therefor. Such

filing must be timely whether or not the challenged ballots are

sufficient in number to affect the results of the election.

Copies of such objections shall immediately be served on the

other parties by the party filing them, and a statement of ser-

vice shall be made. The party filing objections shall, upon re-

quest, promptly furnish to the regional director the evidence

available to it to support the objections.

(b) If no objections are filed within the time set forth above,

if the challenged ballots are insufficient in number to affect

the results of the election, and if no runoff election is to be

held pursuant to § 102.70, the regional director shall forwith

issue to the parties a certification of the results of the election,

including certification of representative where appropriate,

with the same force and effect as if issued by the Board, and

the proceeding will thereupon be closed.

conduct affecting the results of the election, or if the chal-

lenged ballots are sufficient in number to affect the results of

the election, the regional director shall, consistent with the

provisions of § 102.69(d). investigate such objections or

challenges, or both. If a consent election has been held pur-

suant to § 102.62(b), the regional director shall prepare and

cause to be served on the parties a report on challenged

ballots or objections, or both, including his recommendations,

which report, together with the tally of ballots, he shall for-

ward to the Board in Washington, D.C., within 10 days from

the date of issuance of the report on challenged ballots or ob-

jections, or both, or within such further period as the Board

may allow upon written request to the Board for an extension

received not later than 3 days before such exceptions are due

in Washington, D.C,, with copies of such request served on the

other parties, any party may file with the Boord in

Washingtor., D.C., eight copies of exceptions to such report,

with supporting brief if desired, which shall be printed or

otherwise legibly duplicated, except that carbon copies of

typewritten matter shall not be filed and if submitted will not

be accepted. immediately upon the filing of such exceptions ,

the party filing the same shall serve a copy thereof together

A-%

with a copy of any brief filed on the other parties and shall file

copies with the regional director. A statement of service shall

be made to the Board simultaneously with the filing of excep-

tions. Within 7 days from the last date on which exceptions

and any supporting brief may be filed, or such further period

as the Board may allow, a party opposing the exceptions may

file an answering brief with the Board in Washington, D.C.;

except that if personal service of the exceptions and any sup-

por‘ing brief is made upon the Board, 10 days will be allowed.

However, 3 days as provided in § 102.114 will not be added to

the prescribed time for filing an answering brief. Such brief

shall be submitted in eight copies, printed or otherwise legibly

duplicated, except that carbon copies shall not be filed and if

submitted will not be accepted. Immediately upon the filing of

such brief, the party filing the same shali serve a copy thereof

on the other parties and shall file a copy with the regional

director. A statement of service shall be made to the Boord

simultaneously with the filing of the answering brief. If no ex-

ceptions are filed to such report, the Board, upon the expira-

tion of the period for filing such exceptions, may decide the

matter forthwith upon the record or may make other disposi-

tion of the case. The report on challenged ballots may be con-

solidated with the report on objections in appropriate cases. If

the election has been conducted pursuant to a direction of

election issued following any proceeding under § 102.67, the

regional director may (1) issue au report on objections or

challenged ballots, or both, as in the case of a consent elec-

tion pursuant to § 102.62(b), or (2) exercise his authority to

decide the case and issue a decision disposing of the issues

ed directing appropriate action or certifying the results of the

election.

(d) The action of the regional director in issuing a report on

objections or challenging ballots, or both. following pro-

ceedings under § 102.62(b) or § 102.67, or in issuing a decision

on objections or challenged ballots, or both, following pro-

ceedings under § 102.67, may b= on the basis of an admini-

strative investigation or, if it appears to the regional director

that substantial and material factual issues exists which, in

the exercise of his reasonable discretion, he determines may

more appropriately be resolved after a hearing, he shall issue

and cause to be servad on the parties a notice of hearing on

A-37

said issues before a hearing officer. If the regional director

issues a report on objections and challenges, the parties shall

have the rights set forth in paragraphs (c) and (f) of this sec-

tion; if the regional director issues a decision, the parties shall

have the rights set forth in § 102.67 to the extent consistent

herewith

(e) Any hearing pursuant to this section shall be conducted

in accordance with the provisions of §§ 102.64, 102.65, and

102.66, insofar as applicable, except that upon the close of

such hearing, the hearing officer shall, if directed by the

regional director, prepare and cause to be served on the par-

ties a report resolving questions of credibility and containing

findings of fact and recommendations as to the disposition of

the issues. In any case in which the regional director has

directed that a report be prepared and served, any party may,

within 10 days from the date of issuance of such report, file

with the regional director the original ond one copy, which

may be a carbon copy, of exceptions to such report, with sup-

porting brief, if desired. A copy of such exceptions, together

with a copy of any brief filed, shall immediately be ser ved on

the other parties and a statement of service filed with the

regional director. Within 7 days from the last date or which

exceptions and any supporting brief may be field, or such fur-

ther time as the regional director may allow, a party opposing

the exceptions may file an answering brief with the regional

director; except that if personal service of the exceptions and

any supporting brief is made upon the regional director, 10

days will be allowed. However, 3 days as provided in § 102.114

will not be added to the prescribed time for filing an answer-

ing brief. An original and one copy, which may be oa carbon

copy, shall be submitted. A copy of such answering brief shall

immediately be served on the other parties and a statement of

service filed with the regional director. If no exceptions are fil-

ed to such report, the regional director, upon the expiration of

the period for filing such exceptions, may decide the matter

forthwith upon the record or may make other disposition of

the case.

(f) In a case involving a consent election held pursuant to §

102.62(b), if exceptions are filed, either to the report on

challenged ballots or objections, or both if it be a consolidated

report, and it appears to the Board that such exceptions do not

A-3

raise substantial and material issues with respect to the con-

duct or results of the election, the Board may decide the mat-

ter forthwith upon the record, or may make other disposition

of the case. If it appears to the Board that such exceptions

raise substantial and material factural issues, the Board may

direct the regional director or other agent of the Board to

issue and cause to be served on the parties a notice of hearing

on said exceptions before a hearing officer. The hearing shall

be conducted in accordance with the provisions of §§ 102.64,

102.65, and 102.66, insofar as applicable. Upon the close of

the hearing the agent conducting the hearing, if directed by

the Board, shall prepare and cause to be served on the parties

a report resolving questions of credibility and containing fin-

dings of fact and recommendations to the Board as to the

dispositon of the challenges or objections, or both if it be a

consolidated report. In any case in which the Board has

directed that a report be prepared and served, any party may

within 10 days from the date of issuance of the report on

challenged ballots or objections, or both, or within such fur-

ther period as the Board may allow, upon written request to

the Board for an extension received not later than 3 days

before such excepiions are due in Washington, D.C., with

copies of such request served on the other parties, file with

the Board in Washington, D.C., eight copies of exceptions to

such report, with supporting brief if desired, which shall be

printed or otherwise legibly duplicated, except that carbon

copies of typewritten matter shall not be filed and if submitted

will not be accepted. Immediately upon the filing of such ex-

ceptions, the party filing the same shall serve a copy thereof,

together vw. i: a copy of any brief filed, on the other parties

and shall file copix-s with the regional director. A statement of

service shall be made to the Board simultaneously with the fil-

ing of exceptions. Within 7 days from the last date on which

exceptions and any supporting brief may be field, or such fur-

ther period as the Board may allow, a party opposing the ex-

ceptions may file an answering brief with the Board in

Washington, D.C.; except that if personal service of the ex-

ceptions and any supporting brief is made upon the Board, 10

days will be allowed. However, 3 days as provided in § 102.114

will not be added to the prescribed time for filing an answer-

ing brief. Such brief shall be submitted in eight copies, printed

A-39

or otherwise legibly duplicated, except that carbon copies

shall not be filed and if submitted will not be accepted. im-

mediately upon the filing of such brief, the party filing the

same shall serve a copy thereof on the other parties and shall

file a copy with the regional director. A statement of service

shall be made to the Board simultaneously with the filing of

the answering brief. If no exceptions are filed to such report,

the Board, upon the expiration of the period for filing such ex-

ceptions, may decide the matter forthwith upon the record or

may make other disposition of the case. The Board shall

thereupon proceed pursuant to § 102.67: Provided, however,

That in any proceeding wherein a representation case has

been consolidated with an unfair labor practice case for pur-

poses of hearing, the provisions of § 102.46 shall govern with

respect to the filing of exceptions or an answering brief to the

exceptions to the administrative law judge's decision.

(g) The notice of hearing, motions, rulings, orders,

stenographic report of the hearing, stipulations, exceptions,

documentary evidence, together with the objections to the

conduct of the election or conduct affecting the results of the

election, any report on such objections, any report on

challenged ballots, exceptions to any such report, any briefs

or other legal memoranda submitted by the parties, the deci-

sion of the regional director, if any, and the record previously

made as described in § 102.68, shall constitute the record in

the case. Materials other than those set out above shall not be

a part of the record; except that in a proceeding in which no

hearing is held, a party filing exceptions to a regional

director's report on objections or challenges, a request for

review of a regional director's decision on objections or

challenges, or any opposition thereto, may append to its sub-

mission to the Board copies of documents it has timely submit-

ted to the regional director and which were not included in the

report or decision. Immediately upon issuance of a report on

objections or challenges, or both, upon issuance by the

regional director of an order transferring the case to the

Board, or upon issuance of an order granting a request for

review by the Board, the regional director shall transmit the

record to the Board.

(h) In any such case in which the regional director or the

Board, upon a ruling on challenged ballots, has directed that

A-40

such ballots be opened and counted and a revised tally of

ballots issued, and no objection to such revised tally is filed by

any party within 3 days after the revised tally of ballots has

been furnished, the regional director shall forthwith issue to

the parties certification of the results of the election, including

certification of representative where appropriate, with the

same force and effect as if issued by the Board. The pro-

ceeding shall thereupon be closed.

(i)(1) The action of the regional director in issuing a notice of

hearing on objections or challenged ballots, or both, following

p: ceedings under § 102.62(b) shall constitute a transfer of the

case to the Board, and the provisions of § 102.65(c) shall apply

with respect to special permission to appeal to the Board from

any such direction of hearing.

(2) Exceptions, if any, to the hearing officer's report or to

the administrative law judge's decision, and any answering

brief to such exceptions, shall be filed with the Board in

Washington, D.C., in accordance with paragraph (f) of this

section.

(38 FR 3961. Feb. 8, 1973, as amended at 40 FR 6204, Feb. 10,

1975)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.