Cargill Nutrena, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 2005

344 N.L.R.B. 1125 (N.L.R.B. 2005)

CARGILL NUTRENA, INC.
344 NLRB No. 139
1125
Cargill Nutrena, Inc. and Ernest Haygood Sr., Peti-
tioner and Retail, Wholesale and Department
Store Union, AFL–CIO. Case 15–UD–26
July 21, 2005
DECISION ON REVIEW AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The Employer’s request for review of the Regional Di-
rector’s dismissal of this “decertification” petition is
granted as it raises substantial issues warranting review
with regard to whether the petition was timely filed.1
Upon careful consideration, we conclude, as explained
below, that if the petition was timely mailed under the
Board’s “Postmark Rule,” it should be processed.
The 60- to 90-day “open” period for filing a petition
ran from May 3 to June 1, 2005.2 The Regional Office
received the petition on June 2, 2005. The Regional Di-
rector dismissed the petition as untimely filed, because it
was not received in the Regional Office during the
“open” period before the contract’s expiration date.
The Employer contends that the Board should accept
the petition as timely filed under the “Postmark Rule,”
Section 102.111(b) of the Board’s Rules and Regula-
tions. That Rule states as follows:
[T]he Board will accept as timely filed any document
which is hand delivered to the Board on or before the
official closing time of the receiving office on the due
date or postmarked on the day before (or earlier than)
the due date; documents which are postmarked on or
after the due date are untimely. “Postmarking” shall
include timely depositing the document with a delivery
service that will provide a record showing that the
document was tendered to the delivery service in suffi-
cient time for delivery by the due date, but in no event
later than the day before the due date.
The Employer, in an affidavit attached to its request
for review, contends that the petition was postmarked on
May 25, 2005, and that, pursuant to Section 102.111(b),
the petition should be considered timely filed because it
was postmarked earlier than the June 1 due date. We

1 Although the Petitioner marked the union deauthorization (UD)
box on the petition, the Regional Director determined that the Petitioner
seeks a decertification (RD) election. Our analysis is premised on its
treatment as an RD petition. Were it an actual UD petition, the follow-
ing analysis would not apply because contract-bar principles are not
applicable to UD petitions. See, e.g., Great Atlantic & Pacific Tea Co.,
100 NLRB 1494, 1495 (1952).
2 Deluxe Metal Furniture Co., 121 NLRB 995 (1998). The 60 days
prior to the expiration of a contract is considered to be an “insulated”
period during which a petition will be dismissed as untimely.
agree that if the petition was postmarked prior to the end
of the open period, it is timely filed.
In Brown Co., 178 NLRB 57 (1969), the Board af-
firmed a Regional Director’s dismissal of two representa-
tion petitions as untimely filed. The petitions were
mailed several days before they were due, within the
“open” period, but were received by the Regional Office
after the due date and within the “insulated” period. The
Board stated: “The date on which a petition is received
by the Regional Office was fixed as controlling for pur-
poses of determining its timeliness in relation to the 60-
day insulated period, and the Board said that all potential
petitioners would be required to have their petitions on
file at least 61 days before the terminal date of the con-
tract. The Board has always strictly construed this 60-
day period.” Brown Co., 178 NLRB at 57, citing Deluxe
Metal Furniture Co., 121 NLRB 995, 1000 (1958).
In Central Supply Co. of Virginia, 217 NLRB 642
(1975), the Board reached a different result under similar
circumstances, where a petition was mailed before the
due date and within the “open period,” but received by
the Regional Office after the due date in the “insulated”
period. The Board stated that it would accept a petition
as timely filed where the petitioner had been able to es-
tablish that the petition was postmarked and mailed un-
der circumstances where it would be reasonable “to as-
sume the petition would be timely received at the
Board’s Regional Office in the due course of the [United
States] mails.” Id. at 643. The Board accepted the peti-
tion in Central Supply as timely filed because it had been
postmarked before the due date.
In John I. Haas, Inc., 301 NLRB 300 (1991), the
Board noted that “postmark” rule principles previously
had been applied to representation petitions, citing Cen-
tral Supply, supra, and unanimously decided that “Sec.
102.111(b) will be further amended to bring representa-
tion petitions within our ‘postmark’ rule.” Id. at 301 fn.
7.3 The Board amended Section 102.111(b) accordingly.

3 In John I. Haas, Inc., the Board, overruling precedent, determined
that election objections would be timely filed if personally served in the
Region by close of business on the due date or if deposited with a de-
livery service prior to the due date—the “postmark” rule.
The Board then revised Sec. 102.111(b) to reflect this change. The
Board indicated it was revising the rule “in order to permit representa-
tion petitions and objections to Board representation elections, previ-
ously required to be actually received by the Board by a specified due
date, to be accepted as timely filed if they are ‘postmarked’ at least one
day prior to the due date. The Board is also defining the phrase ‘post-
marking’ to encompass timely depositing documents with a delivery
service that will provide a record showing that the document was ten-
dered to the delivery service in sufficient time for filing by the due date,
but in no event any later than the day before the due date.” See 56 Fed.
Reg. 49141–49142 (Sept. 27, 1991). The Board deleted the provision
in the previous rule that “Petitions filed pursuant to [S]ection 9(c) of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1126
Thus, the Board in John I. Haas, Inc., as codified in
amended Section 102.111(b), clearly stated its intention
to apply the “postmark” rule to representation petitions,
and no longer to require that the timeliness of representa-
tion petitions be governed by the date on which they are
received in the Regional Office.
Thus, if, as the Employer contends, the petition in this
case was postmarked May 25, 2005, we would find, con-

Act” “must be received on or before the close of business of the last
day for filing.”
trary to the Regional Director, that the petition was
timely filed because it was postmarked earlier than the
June 1 due date, even though it was received by the Re-
gion in the insulated period after the due date. Accord-
ingly, we remand this proceeding to the Regional Direc-
tor for further appropriate action.
ORDER
IT IS ORDERED that the case is remanded to the Re-
gional Director for further appropriate action consistent
with this Decision on Review.