Fay's Drug Company

National Labor Relations Board - Board Decisions

Mar 25, 1981

255 N.L.R.B. 272 (N.L.R.B. 1981)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fay's Drug Company, Inc. and United Food and
Commercial Workers, District Union Local
One, AFL-CIO, Petitioner. Cases 3-RC-7762
and 3-RC-7763
March 25, 1981
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
The National Labor Relations Board has consid-
ered objections to an election held October 30,
1980,1 and the Regional Director's report recom-
mending disposition of same. The Board has re-
viewed the record in light of the exceptions and
brief, and hereby adopts the Regional Director's
findings and recommendations only to the extent
consistent herewith.
The Petitioner's objections were filed by West-
ern Union telegram transmitted from New York
City at 3:43 p.m., Eastern Standard Time, on No-
vember 6, the last day permitted for the filing of
objections under Section 102.69 of the Board's
Rules and Regulations, Series 8, as amended. The
objections were not received in the Regional Office
for Region 3 until 9:04 a.m., Eastern Standard
Time, on November 7.2 Citing Bechtel Incorporat-
ed, 3 the Regional Director observed that the Peti-
tioner had apparently "made a good faith effort to
file the objections in timely fashion" and, therefore,
treated them as having been timely filed. The Em-
ployer filed exceptions, arguing, inter alia, that the
objections were untimely and that the Regional Di-
rector erred in considering them.4
We find merit in the Employer's exception. Al-
though we stated in Bechtel that "[w]e maintain a
distinction . . . between enforcement of our filing
deadlines that is strict and enforcement that is dra-
conian," 5 we did not thereby abandon all timeliness
requirements for the filing of objections to an elec-
tion. Rather, we reaffirmed in the context of tele-
graphic filing the guidelines we had previously es-
tablished for permitting departure from timeliness
requirements when objections are filed by mail:
[I]n order to support a variance or deviation
from the clear requirements of the Board's
Rules, there must be some showing that there
has been an honest attempt to substantially
The election was conducted pursuant to a Decision and Direction of
Second Election issued by the Board on September 26, 1980. The tally
was 33 for and 47 against the Petitioner; there were 2 challenged ballots,
an insufficient number to affect the results.
All dates are in 1980 unless otherwise indicated.
2 The Regional Office is open from 8:30 a.m. until 5 p.m.
3 218 NLRB 827 (1975).
4 The Employer has requested oral argument inter lia, on the issue of
timeliness. The request is hereby denied as the record, the exceptions,
and the brief adequately presented the issue and the positions of the par-
ties.
s Bechtel Incorporated. supra at 827.
255 NLRB No. 42
comply with the requirements of the Rules, or,
alternatively, a valid and compelling reason
why compliance was not possible within the
time required by the Rules.6
In Bechtel several factors supported variance
from the timeliness requirements. The petitioner
was obliged to investigate preelection conduct at
15 locations; a 2-hour time difference existed be-
tween Alaska, where the elections were held, and
Seattle, Washington, where objections were to be
filed, and the petitioner therefore had fewer than 5
full days in which to lodge objections with the
Board; and the telegram was sent almost 3-1/2
hours before closing time at the Regional Office.
Moreover, before sending the telegram, the peti-
tioner's attorney informed the Board agent and the
employer's attorneys by telephone of the nature of
the objections; and, when the petitioner's attorney
learned that the Regional Office was likely to close
before the telegram could be delivered, he called a
Seattle reporting service and dictated the objec-
tions for delivery to the Regional Office. Under
those circumstances, the Board relieved the peti-
tioner of the consequences of its untimely filing,
noting particularly that, in the interim, the Board
had opened a resident office in Alaska in order to
alleviate the inadequacy and inconvenience caused
by serving the Alaska area solely from Seattle.
In the case before us, the Petitioner has ad-
vanced no valid and compelling reason for its late-
ness in filing objections, 7 nor can we on the record
before us interpret its sending a telegram less than
1-1/2 hours before the Regional Office closed as an
honest attempt at substantial compliance with our
filing requirements.8
Accordingly, as objections have not been timely
filed in accordance with Section 102.69 of the
Board's Rules and Regulations, Series 8, as amend-
ed, and, as the tally of ballots shows that the Peti-
tioner has not received a majority of the valid bal-
lots cast, we shall certify the results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for United Food and
Commercial Workers, District Union Local One,
AFL-CIO, and that said labor organization is not
6 Id. at 828, quoting Alfred .Nickles Bakery. Inc., 209 NLRB 1058, 1059
(1974).
' The Petitioner has, in fact, advanced no justification whatsoever.
As we noted in Sig Wold Storage Transfer, Inc.. 205 NLRB 378
(1973), under almost identical circumstances, the Petitioner could not rea-
sonably have expected the telegram to be delivered on time. See Hughes
Tool Company d/b/a KLAS-TV, 17 NLRB 1160 (1972).
FAY'S DRUG COMPANY 273
the exclusive representative of all the employees in
the unit herein involved, within the meaning of
Section 9(a) of the National Labor Relations Act,
as amended.
I
273