Club Demonstration Services

National Labor Relations Board - Board Decisions

May 9, 1995

317 N.L.R.B. 349 (N.L.R.B. 1995)

349
317 NLRB No. 52
CLUB DEMONSTRATION SERVICES
1 In the absence of exceptions, we adopt, pro forma, the hearing
officer’s recommendations overruling Objections 2, 3, and 4.
2 All dates hereafter are in 1992 unless specified otherwise.
3 When the Employer’s attorney advised the Regional Office on
May 19 that the notices had not been received, Regional Office per-
sonnel told the attorney that the notices were not ready and that they
would be mailed on Wednesday, May 20. The notices were, in fact,
mailed by the Regional Office on May 20 and were received by the
Employer on May 22. The Regional Office, however, mailed the no-
tices to the Employer’s headquarters in Sterling, Virginia, and to the
Employer’s attorney’s office in New York City, rather than to the
Edison, New Jersey location where the unit employees are em-
ployed.
Club Demonstration Services and Local 908, Service
and Industrial Employees of North America,
Petitioner. Case 22–RC–10614
May 9, 1995
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, COHEN, AND TRUESDALE
The National Labor Relations Board has considered
objections to an election held by mail ballot from May
27 to June 9, 1992, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 9 for and 4 against
the Petitioner, with 2 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions1 and briefs, and has decided to adopt the
hearing officer’s rulings, findings, and recommenda-
tions only to the extent consistent with this Decision
and Direction of Second Election. Contrary to the
hearing officer, we find merit to the Employer’s Ob-
jection 1, and set the election aside because the elec-
tion notices were not posted for 3 full working days
before the election as required by Section 103.20 of
the Board’s Rules and Regulations.
I. THE FACTS
The facts are not in dispute. In Objection 1, the Em-
ployer contends that the election should be set aside
because the Board’s notices of election were not deliv-
ered to the Employer in a timely manner and, there-
fore, were not posted for 3 full working days prior to
12:01 a.m. on the day of the election as defined in and
required by Section 103.20 of the Board’s Rules.
Section 103.20 provides as follows:
(a) Employers shall post copies of the Board’s of-
ficial Notice of Election in conspicuous places at
least 3 full working days prior to 12:01 a.m. of
the day of the election. In elections involving mail
ballots, the election shall be deemed to have com-
menced the day the ballots are deposited by the
Regional Office in the mail. In all cases, the no-
tices shall remain posted until the end of the elec-
tion.
(b) The term ‘‘working day’’ shall mean an en-
tire 24-hour period excluding Saturdays, Sundays,
and holidays.
(c) A party shall be estopped from objecting to
nonposting of notices if it is responsible for the
nonposting. An employer shall be conclusively
deemed to have received copies of the election
notice for posting unless it notifies the Regional
Office at least 5 working days prior to the com-
mencement of the election that it has not received
copies of the election notice.
(d) Failure to post the election notices as re-
quired herein shall be grounds for setting aside
the election whenever proper and timely objec-
tions are filed under provisions of section
102.69(a).
The parties’ Stipulated Election Agreement provided
that the ballots in the instant mail ballot election were
to be mailed from the Regional Office on Wednesday,
May 27, 1992, thereby commencing the election on
that date.2 As of Tuesday, May 19, the Employer had
not received the notices of election. On that day, the
Employer’s attorney called the Regional Office and in-
formed the Board agent in charge of the election that
no notices had been received. The Employer’s attorney
visited the Regional Office on Thursday, May 21, and
received five notices of election.3 Thus, sometime after
the start of the business day on Thursday, May 21, was
the earliest date notices could possibly have been post-
ed.
II. THE HEARING OFFICER’S REPORT
The hearing officer found that the notices were re-
quired to be posted no later than 12:01 a.m. on Thurs-
day, May 21. Monday, May 25, was the Federal Me-
morial Day holiday. The election commenced at 5:15
p.m. on Wednesday, May 27, when the ballots were
deposited in the mail by the Regional Office. Thus, the
hearing officer reasoned that the 3 working days before
the election included Thursday, May 21; Friday, May
22; and Tuesday, May 26. Accordingly, the election
notices were not posted for 3 full working days prior
to the election.
The hearing officer determined that under Section
103.20(c) an employer must notify the Regional Office
of its failure to receive notices at least 5 working days
prior to 12:01 a.m. of the day of the election. Accord-
ingly, he found that the Employer was required to no-
tify the Regional Office that no notices had been re-
ceived by the close of business on Monday, May 18,
in order to be permitted to raise this objection. The
hearing officer concluded that, by failing to notify the
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The hearing officer’s report also contained the following addi-
tional rationale:
Furthermore, the instant record reveals that the employees in-
volved herein work schedules that include weekend hours on a
regular basis. Accordingly, it cannot be concluded that the em-
ployees were not [sic] exposed to the Notices of Election for
less than three actual working days prior to the election.
5 Terrace Gardens Plaza, 313 NLRB 571 (1993).
6 See also Smith’s Food & Drug, 295 NLRB 983 (1989). (Not-
withstanding a Regional Director’s finding that an employer had
‘‘substantially complied with the Board’s rule,’’ the Board held that
the union’s objection must be sustained and the election set aside be-
cause the election notices were not posted 3 full days before the
election as required by Sec. 103.20.)
Regional Office ‘‘at least five working days prior to
the commencement of the election that it had not re-
ceived copies of the election notice,’’ the Employer
was estopped from raising the fact that notices were
not posted 3 days prior to the election as objectionable
conduct which would warrant setting aside the elec-
tion.4 Therefore, the hearing officer recommended
overruling the objection and certifying the Petitioner as
the collective-bargaining representative of the unit em-
ployees.
III. THE EMPLOYER’S EXCEPTIONS
In its exceptions, the Employer states that it is un-
disputed that the notices of elections were not posted
‘‘at least 3 full working days prior to 12:01 a.m. of the
day of the election,’’ as required by Section 103.20(a)
of the Board’s Rules. Therefore, the Employer argues,
the election must be set aside under Section 103.20(d),
unless the Employer is estopped under Section
103.20(c) from objecting to the late posting.
The Employer further argues that the hearing offi-
cer’s estoppel finding is based on a misreading of Sec-
tion 103.20(c). The Employer points out that, unlike
Section 103.20(a), which requires notice posting at
least 3 working days ‘‘prior to 12:01 a.m. of the day
of the election,’’ Section 103.20(c) merely requires no-
tification to the Regional Office of nonreceipt of the
election notices at least 5 working days ‘‘prior to the
commencement of the election.’’ Therefore, the Em-
ployer reasons, it complied with Section 103.20(c) by
notifying the Regional Office of the nonreceipt of the
election notices on May 19, within ‘‘5 working days
prior to the commencement of the election’’ on May
27. Accordingly, the Employer contends that its objec-
tion should be sustained and the election set aside.
IV. DISCUSSION AND FINDINGS
We find that the Employer is not estopped from
raising Objection 1 because Section 103.20(c) of the
Board’s Rules is ambiguous and the Employer has of-
fered a reasonable interpretation of the rule.
The Employer has at least a tenable argument that
if the Board had intended the rule to be interpreted as
the hearing officer construed it, the Board would have
included the ‘‘prior to 12:01 a.m.’’ language in Section
103.20(c), as it had in Section 103.20(a). Because the
rule is ambiguous, and because the Employer’s reading
of the rule is reasonable, we believe it would be in-
equitable to hold that the Employer is estopped from
objecting to the late posting of the election notices.
The rule, however, must be clarified to prevent this
problem from arising in future cases. We find that the
hearing officer’s reading is the preferable construction.
It is consistent with the Board’s determination, as set
forth in Section 103.20(b), that a ‘‘working day’’ for
purposes of the notice-posting requirement means an
entire 24-hour period, and not merely a portion of a
calendar day. Most significantly, the hearing officer’s
interpretation provides the Regional Office with a
greater amount of time in which to correct the situation
and avoid eventually having to set the election aside.
Thus, unlike the Employer’s position, the hearing offi-
cer’s construction of Section 103.20(c) provides the
Regional Office 2 full ‘‘working days’’ to transmit the
notices to the Employer before the beginning of the 3-
day period during which they must be posted. Given
the vagaries of the United States mail and other deliv-
ery services, it seems impracticable to expect the elec-
tion notices to be sent from the Regional Office and
be received by an employer in less than 2 days. We
hold that the hearing officer’s interpretation best effec-
tuates the purpose of the rule and that it will be the
interpretation that will be applied in future cases.
Accordingly, in all cases in which the petition is
filed after the date of today’s decision, we will inter-
pret Section 103.20(c) as requiring an employer to no-
tify the Regional Office at least 5 full working days
prior to 12:01 a.m. of the day of the election that it
has not received copies of the election notice. The Re-
gional Offices will refer to this clarification of Section
103.20(c) when providing employers written notifica-
tion of their notice-posting obligations.
Turning to the merits of Objection 1, it is well set-
tled that the provisions of Section 103.20 of the
Board’s Rules are mandatory in nature, and that
‘‘[f]ailure to post the election notices . . . shall be
grounds for setting aside the election.’’5 In addition,
the rule does not provide for any method of compli-
ance other than posting. ‘‘[W]hile notices may be di-
rectly mailed to eligible voters in a mail ballot elec-
tion, as they were here, that practice does not eliminate
a Regional Office’s responsibility to timely furnish
employers with election notices or the employer’s obli-
gation to timely post such notices.’’ Id. at 572. A
‘‘substantial compliance’’ inquiry is impermissible be-
cause ‘‘the Rule’s provisions do not allow for any
analysis as to the actual impact of noncompliance on
a particular election.’’ Id.6 The Rule itself does not
351CLUB DEMONSTRATION SERVICES
In light of Smith’s Food, the hearing officer in the instant case
erred in considering the work schedules of the employees and
whether they were ‘‘exposed’’ to the election notices. Smith’s Food
makes clear that such considerations are not relevant.
Although we do not adopt the ‘‘substantial compliance’’ standard
of our dissenting colleague, we note that, contrary to his recitation
of the facts, the Employer, through counsel, received notices on May
21, and there is no evidence concerning the date when the election
notices were actually posted.
7 The rule thus modified a previously proposed version that simply
implied that a failure to post would constitute objectionable conduct.
See Explanatory Statements in Sec. 103.20 of the Board’s Rules and
Regulations.
If he were writing on a clean slate, Member Cohen would be dis-
inclined to adopt a per se rule that operates irrespective of impact.
He agrees with his colleagues that the extant rule adopts this ap-
proach, however, and he will enforce the rule as written and in-
tended.
1 This delay was in no way attributable to the Employer. Rather,
the Regional Office did not mail the notices to the Employer until
May 20 and then failed to mail them directly to the facility where
the unit employees are employed.
provide for any exceptions or any inquiry into ‘‘sub-
stantial compliance,’’ or into the extent of the effect on
the election results. Instead, it states, at Section
103.20(d), that failure to post the notice for the re-
quired period of time ‘‘shall be grounds for setting
aside the election’’ upon the filing of proper objec-
tions.7
In sum, because the Employer is not estopped from
objecting to the late posting of the election notices and
because it is undisputed that the notices were not post-
ed 3 full days before the election, we sustain the Em-
ployer’s objection and direct a second election.
[Direction of Second Election omitted from publica-
tion.]
CHAIRMAN GOULD, dissenting in part.
I agree with my colleagues’ finding that the Em-
ployer was not estopped from raising its Objection 1
and their clarification of Section 103.20(c) of the
Board’s Rules and Regulations for future cases. I dis-
sent, however, from their sustaining Objection 1.
On the facts of this case, I would not set the elec-
tion aside because the election notices were not posted
by the Employer for 3 full working days prior to the
election. It is undisputed that although the notices
should have been posted on May 21, the Employer did
not receive them from the Regional Office until May
22, at which point the notices were promptly posted.1
Further, each employee received a notice with his mail
ballot.
Under these circumstances, I find that there was
substantial compliance with the 3-day posting require-
ment of Section 103.20(a) of the Board’s Rules and
Regulations. The primary purpose of the posting re-
quirement is to ensure that the employees are fully in-
formed of their rights and the Board’s procedures with
respect to the election. In light of the election notice
having been posted for 2 working days prior to the
mailing of the ballots and having been received by
each employee with his ballot, this purpose has been
satisfied. Further, the Employer, as the objecting party,
has failed to meet its burden of establishing that the
election was affected in any way as a result of the late
posting of the election notices. Finally, my colleagues’
decision to set aside the election in this case has the
effect of penalizing the Petitioner for the failure of the
Regional Office to prepare and mail the election no-
tices in a timely manner. In sum, I subscribe to the
dissenting opinion of former Member Devaney in Ter-
race Gardens Plaza, 313 NLRB 571 (1993), and I ac-
cordingly would certify the Petitioner as the collective-
bargaining representative of the unit employees.