Classic Courts

National Labor Relations Board - Board Decisions

Nov 29, 1979

246 N.L.R.B. 603 (N.L.R.B. 1979)

CI.ASSIC (
Bob G. Lewis, d/b/a Classic Courts, Employer-Peti-
tioner and Carpenter's Floor Workers' Local Union
No. 2144, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Case 21 RM- 1959
November 29, 1979
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JENKINS, MURPHY, AND TRUESI)AI.
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections to an elec-
tion held on May 14, 1979,' and the Regional Direc-
tor's report and his order denying a motion for recon-
sideration recommending disposition of same. The
Board has reviewed the record in light of the excep-
tions and brief, and hereby adopts the Regional Di-
rector's findings and recommendations.
Contrary to our dissenting colleague, we find that
the Regional Office's conduct in this case was entirely
appropriate. The record reveals that on May 16,
1979,2 the Union filed timely objections to the elec-
tion. Pursuant to established practice, the Regional
Director advised the Union of the responsibility to
submit to the Region the evidence relied upon in sup-
port of the objections by the close of business on May
23. The Regional Director also advised the Union
that failure to make such a submission would result in
the objections being overruled without further investi-
gation. Specifically, the Regional Director instructed
the Union's attorney that:
Evidence should be in the form of affidavits,
written statements, or documents. If the evidence
cannot be submitted in written form, but is to be
presented through witnesses with knowledge of
the allegations set out in the objections, a short
statement as to the evidence each witness will be
able to furnish must be submitted by the above
date.
By letter dated May 22, and received by the Region
on May 23, the Union's attorney submitted a re-
sponse to the Regional Director's instructions. The
response, however, merely provided the name and
telephone number of the union business representa-
tive assigned to the election, and stated that the ob-
jections "filed in this matter clearly states [sic] the
basis upon which the objections have been filed."
' The election was conducted pursuant to a Stipulation for (ertification
Upon Consent Election. The tallk was: none for, and three against. the
Petitioner: there were three challenged ballots, an insufficient number to
affect the results.
2 Hereafter all dates refer to 1979.
603
Based on the Union's failure to comply with estab-
lished Board procedures and the specific instructions
of the Regional Director to provide supporting evi-
dence in the form of affidavits, written statements, or
documents, or a description of what each witness
would furnish, the Regional Director recommended
that the Union's objections be overruled.
The Union filed exceptions to the Regional Direc-
tor's recommendation, claiming that prior to the
May 23 deadline set by the Regional Director its
business representative had attempted to contact the
Board agent assigned to the case for the purpose of
making arrangements for witnesses to give state-
ments. In support of its exceptions, the Union at-
tached an affidavit from its business representative
wherein he states that on "May 22 or 23" he called
the Board agent assigned to the case. According to
the affidavit, the Board agent's secretary informed the
business representative that the Board agent was at a
meeting out of the State. The Union's business repre-
sentative then informed the secretary of the purpose
of his call and left a message requesting the Board
agent to return his call.
In view of the need for prompt handling by re-
gional office personnel of matters related to represen-
tation elections, it is clear that regional directors
properly may insist that objecting parties submit writ-
ten statements outlining supporting evidence that
they plan to offer. Our dissenting colleague agrees
with this practice; however, she has taken the posi-
tion in this case that the Union fulfilled its obligation
to supply such evidence when the union business rep-
resentative left a message with the Board agent's sec-
retary. We disagree. We do not find that a telephone
message left with a member of the Board's clerical
stafl constitutes timely submission of evidence in sup-
port of objections. Clearly, once the union business
representative, who was aware that the supporting
evidence was due by the close of business that day,
was informed that the Board agent was not available,
he had an obligation to make arrangements for the
timely receipt of the evidence. We find, therefore, that
the Regional Director acted properly in recommend-
ing that the objections be overruled because of the
Union's failure to timely submit evidence.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of valid ballots
have not been cast for Carpenter's Floor Workers'
Local Union No. 2144, United Brotherhood of Car-
penters and Joiners of America. AFL-CIO, and that
said labor organization is not the exclusive represent-
ative of all the employees, in the unit herein involved.
'The Inion also filed a motliln ior recionsideratlon with the Regional
l)lrector which was denied
246 NLRB No. 100
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
within the meaning of Section 9(a) of the National
Labor Relations Act, as amended.
MEMBER MURPHY, dissenting:
I cannot agree with my colleagues that the Re-
gional Director correctly overruled the Union's objec-
tions to the election on the ground that the Union
failed to comply with his request for evidence in sup-
port of those objections. Indeed, the majority is en-
gaged in an excessively technical application of our
rules by permitting the dismissal of specific, facially
substantive objections without even requiring an in-
vestigation by a Board agent. Accordingly, I would
reverse the Regional Director and order the Region
to proceed with an investigation of the Union's objec-
tions.
In its objections the Union alleged that representa-
tives of the Employer threatened employees by telling
them that they "had better vote 'no union' or they
would not have a job." Also alleged was that just
prior to the election the Employer offered to pay di-
rectly to employees vacation pay that the Employer
owed to a pension and vacation trust fund.
An additional two objections alleged that Em-
ployer representatives offered to share the Employer's
profits with employees and offered to promote certain
employees to journeyman level if the employees voted
against the Union.
The Regional Director, in a letter dated May 16,
requested that the Union sumbit by May 23 further
evidence in support of the objections. The Regional
Director's letter instructed that:
Evidence should be in the form of affidavits,
written statements, or documents. If the evidence
cannot be submitted in written form, but is to be
presented through witnesses with knowledge of
the allegations set out in the objections, a short
statement as to the evidence each witness will be
able to furnish must be submitted by the above
date.
The Union's reply letter of May 22 did not provide
an indication of what evidence might be forthcoming,
but merely stated: "Please be advised that the
Union's Objections filed in this matter clearly states
[sic] the basis upon which the objections have been
filed." In addition, the Union provided the name and
telephone number of its business representative, in-
forming the Region that the business representative
would give an affidavit to the Board agent in support
of the objections and would present additional wit-
nesses who also would submit statements. The
Union's letter to the Board agent concludes by stat-
ing: "If you have any further questions, please do not
hesitate to contact me."
According to the affidavit of the union business
representative, which was submitted with the excep-
tions, on May 22 or 23 he placed a telephone call to
the Board agent assigned to investigate the objections
for the express purpose of making arrangements to
have three witnesses give statements directly to the
Board agent. The agent, however, was out of the of-
fice and, although the secretary was requested to have
him do so, the agent did not return the call. This
occurred despite the fact that the union business rep-
resentative fully informed the Board's agent's secre-
tary regarding the reasons for his call. 4
In his report denying the Union's objections, the
Regional Director concluded that the Union's May
22 letter did not comply with his request that it fur-
nish-in writing-the evidence that it relied upon to
support its objections. The Regional Director stated
that such a submission was a precondition to an in-
vestigation by his office.
I find that, in the circumstances of this case, the
union business representative's telephone call to the
Regional Office constituted substantial compliance
with the Regional Director's demand for evidence,
and thus had the effect of requiring the Region to act
further before dismissing the Union's objections. The
majority's holding puts form over substance and will
only encourage our regional offices to act arrogantly
in dealing with the public.
The Regional Office here had instructed the Union
to supply its supporting evidence to a specific Board
agent. Prior to the deadline set by the Region, the
union business representative telephoned that agent
in order to offer evidence and identify the witnesses
who would submit statements. Through no fault of
his own, the business representative was unable to
speak to the Board agent. The majority states that
"once the union business representative . . . was in-
formed that the Board agent was not available, he
had an obligation to make arrangements for the
timely receipt of the evidence." Although this state-
ment implies that it would have been acceptable for
the business representative to supply the requested
information orally, the majority fails to explain how
he was to do this when the only Board agent whose
name he had been given was out of the office and the
Region did not suggest another agent as a substitute.
Apparently, the majority would require members
of the public who, as here, attempt to cooperate and
comply with a regional office's dictates to chase
around the regional office until they can track down
someone who can assist them when a particular
Board employee is absent. I refuse to put such a bur-
den on those whom this Agency exists to serve.
4 The Board agent was absent from May 21 to 29. This explains why he
did not respond prior to the May 24 dismissal. It does not explain why the
Regional Director chose to dismiss without having someone else do so, or
why the Regional Director did not reassign the casehandling to another
Board agent as of May 21, since the Union still had 2 days left to present
evidence to the Region under the deadline et by the Regional Director.
604
CIASSIC COURTS
Rather. I believe that the burden shifts to the regional
office once a party calls, to get in touch promptly with
that individual in an effort to ascertain what the call
was about.
It is not too onerous to require the Board's field
offices to return telephone calls placed by the public
or to be flexible enough to respond appropriately
when a particular agency employee is unavailable.
The Regional Office here easily could have gotten
someone else in the office to speak to the union busi-
ness representative on the telephone and inform him
on how he should proceed in order to meet the Re-
gional Director's deadline. There is no reason to be-
lieve that, given the opportunity to speak to a Board
agent, the business representative in this case would
not have complied fully with the request for support-
ing evidence. Indeed, he placed the call to make ar-
rangements to do just that.
I fully recognize that the Board's regional offices
must he allowed to establish and enforce rules so that
their ever expanding caseload can be handled expedi-
tiously. Nevertheless, under the circumstances of this
case, the Regional Director has gone beyond the line
that I would draw within which our field offices are
given wide latitude to set operating procedures. It is
not unreasonable to expect the agent of the Board
will respond to communications from objecting par-
ties, whether written or oral, and in other respects do
more than that which is minimally necessary to sat-
isfL the requirements set torth in the Board's Case-
handling Manual. The Board majority's decision here
violates all aspects of due process.
605