Central Supply Co. of Virginia, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1975

217 N.L.R.B. 642 (N.L.R.B. 1975)

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Supply Company of Virginia, Inc., Employer-
Petitioner and International Union, United Mine
Workers of America. Case 5-RM-773
April 30, 1975
DECISION AND DIRECTION OF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon a petition filed under Section 9(c) of the Na-
tional Labor Relations Act, as amended, a hearing was
held before Hearing Officer William M. Ashmore. Pur-
suant to Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, and by direction of the Regional Director for
Region 5, this case was transferred to the National
Labor Relations Board for decision. Thereafter, the
Employer-Petitioner and the Union filed briefs in sup-
port of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. Central Supply Company of Virginia, Inc., herein
called Employer-Petitioner, is engaged in commerce
within the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. International Union, United Mine Workers of
America, herein called the Union, is a labor organiza-
tion claiming to represent certain employees of the Em-
ployer-Petitioner.
3. A question affecting commerce exists concerning
the representation of employees of the Employer-Peti-
tioner within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
The Employer-Petitioner is a Virginia corporation
engaged in the sale of mine and mill supplies, hardware,
and building materials at its Andover, Virginia, facility.
The Employer-Petitioner and the Union entered into a
collective-bargaining agreement on March 1, 1972,
which, by its terms, was to expire on March 1, 1975.
At approximately 10 a.m. on Friday, December 27,
1974, the Employer-Petitioner sent by certified mail
from Big Stone Gap, Virginia, to the Board's Regional
Office in Baltimore, Maryland, a petition requesting
that an election be held among its employees at the
Employer's facility in Andover, Virginia. The petition
was received by Region 5 at its offices in Baltimore,
Maryland, on January 2, 1975. The Union contends
that the petition should be dismissed as untimely. We
disagree.
The Board established in Deluxe Metal Furniture
Company, 121 NLRB 995, 1000 (1958), and reaffirmed
in Leonard Wholesale Meats, Inc., 136 NLRB 1000
(1962), a 60-day "insulated period" immediately
preceding and including the expiration date of an exist-
ing collective-bargaining agreement and said that a pe-
tition filed during this period would be dismissed as
untimely. 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." The Board stated that all
potential petitioners would be required to have their
petitions on file at least 61 days before the terminal date
of the contract.
The petition herein, although mailed 65 days prior to
the March 1, 1975, expiration date of the collective-
bargaining agreement, was not received by the Re-
gional Office until 59 days prior to that date, or during
the "insulated period." The postmaster of Big Stone
Gap, Virginia, testified that, under normal circum-
stances, a letter from Big Stone Gap to Baltimore,
Maryland, should take at the most 2 days to deliver.
Mail that is posted on a given day is placed on an
airplane at a local airport at approximately 5 p.m. It
arrives in Baltimore at 1:30 a.m. the following morning
and is ordinarily delivered that same day. Thus, under
normal circumstances, the petition would have arrived
in Baltimore on Saturday, December 28, 1974, and
since the Board's offices are closed on Saturday and
Sunday, it is reasonable to assume that the petition
would have been received by the Regional Office on
Monday, December 30, or, at the latest, on Tuesday,
December 31, both dates falling outside the "insulated
period."'
In Rio de Oro Uranium Mines, Inc., 119 NLRB 153
(1957), the Board held that, where a party has filed
objections to an election in a manner and at a time in
which it would be reasonable to assume that in the
normal operation of the United States mails the objec-
tions would be timely received at the Board's Regional
Office, and the delay in receiving the objections appears
not to be attributable to the sending party, it would be
inequitable to penalize the sender for the delay.' The
Board therefore considered the objections to be timely
filed and it remanded the case to the Regional Director
for investigation of the issues raised by the objections.
We believe the same considerations and rationale are
applicable under the circumstances of this case. There-
fore, we find that it would be inequitable to penalize the
I The Board's offices were closed on Wednesday, January 1, 1975, due
to the New Year's Day holiday
2 Also see Employers'Association ofBuilding Metal Fabricators, Rhode
Island District, 149 NLRB 382, 383-385 (1964), where the Board used a
similar rationale regarding the mailed notice of intention to terminate a '
collective-bargaining agreement in compliance with the 60-day rule of Sec.
8(d)(1) of the Act
217 NLRB No. 108
CENTRAL SUPPLY COMPANY OF VIRGINIA, INC
Employer-Petitioner here, who mailed the petition un-
der circumstances where it had the right to assume the
petition would be timely received at the Board's Re-
gional Office in the due course of the mails. Under the
circumstances, we find that the petition herein has been
timely filed.'
3 In a letter filed with the Board on March 17, 1975, the Employer-
Petitioner contends that , since the collective-bargaining agreement expired
March 1, 1975, the question of the timeliness of the petition referred to the
Board for decision is now moot and that the case should be remanded to the
Regional Director for Region 5 for appropriate action We find no merit in
this contention Cf Electric Boat Division, General Dynamics Corporation,
158 NLRB 956 (1966)
643
4. The parties stipulated , and we find, that the fol-
lowing employees constitute a unit appropriate for col-
lective bargaining within the meaning of Sec. 9 (b) of the
Act:
All warehousemen-truckdrivers employed by the
Employer at its Andover, Virginia location, but
excluding all other employees, all office clerical
employees, guards and supervisors as defined by
the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]