High Standard, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 403 (N.L.R.B. 1980)

HIGH STANDARD. INC.
High Standard, Inc. and International Union, United
Automobile, Aerospace, Agricultural Implement
Workers of America, Petitioner. Case I-RC-
16421
September 26, 1980
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN FANNING AND) MEMBERS
JENKINS ANI) PENEI IO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered determinative chal-
lenges in an election held August 28, 1979,1 and
the Acting Regional Director's report issued on
November 2, 1979, recommending disposition of
same. The Board has reviewed the record in light
of the exceptions and brief, and hereby adopts the
Regional Director's findings2 and recommenda-
tions.
The Acting Regional Director recommended
that the Petitioner's objections be dismissed in their
entirety on grounds that they were not served on
the Employer in compliance with Section 102.69(a)
of the Board's Rules and Regulations, Series 8, as
amended, which requires, inter alia, that immediate
service of copies of the objections be served on all
other parties to the election, and that a statement
of service "shall be made." He further recommend-
ed that the Board issue a Certification of Results of
the Election. Alternatively, should the Board not
adopt this recommendation the Acting Regional
Director recommended that the Petitioner's Objec-
tion 4 should be overruled and that a hearing
should be directed on its Objection 1.3 For the rea-
sons set forth below we adopt his recommendations
that the objections should be dismissed for failure
of proper service.
On August 30, 1979, the Petitioner mailed its ob-
jections to the Regional Office where they were
received on September 4, 1979. No statement of
service or notation that a copy had been sent to the
Employer was included with the objections. Also,
on September 4, the Petitioner filed an unfair labor
practice charge in Case -CA-16540, alleging vio-
l The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was 45 for and 47 against, the Pe-
titioner: there were 4 challenged ballots, a sufficient number to affect the
results.
2 In the absence of exceptions we adopt, proforma, the Acting Region-
al Director's recommendation that the challenges to the ballots of Nicho-
las Frosolone, Ralph Grillo. and Vincent Sinopoli be sustained and that
no disposition be made of the challenge to the ballot cast by Karen Hart-
ley since it is no longer determinative.
I The Petitioner withdrew Objections 2. 3, 5, 6. 7, 8, and 9 with the
approval of the Acting Regional Director.
252 NLRB No. 64
lations of Section 8(a)(l), (3), and (5) of the Act, by
conduct identical to that alleged in its objections.
On September 4, a copy of the charge in Case 1-
CA-16540 was mailed to the Employer by the Re-
gional Office. On September II, the Employer no-
tified the Regional Office that it had not received a
copy of the Petitioner's objections. The Board
agent then informed the Employer's attorney that
the alleged objectionable conduct was identical to
the allegations in the unfair labor practice case, and
on the same day advised the Petitioner's repre-
sentative that the Employer claimed it had not
been served with the objections and that lack of
service could constitute grounds for dismissal of
the objections. By letter dated September 11, the
Employer filed a motion to dismiss the objections
on the ground that it had not been served a copy
of the Petitioner's objections. The Petitioner was
served a copy of this motion by the Employer.
By affidavit dated September 18, the Petitioner's
business agent, Robert Madore, stated that on
August 30, 1979, immediately after sending the Re-
gional Office a certified mail copy of the objec-
tions, he mailed copies of the object ons to the Em-
ployer's president by depositing those copies in the
mailbox located outside a post office building. Also
on September 18, in a conversation with two repre-
sentatives of the Petitioner, a Board agent reiterat-
ed the Board's requirements of service under Sec-
tion 102.69. By letter dated October 3, 1979, the
Employer renewed its motion for dismissal on
grounds that it still had not been served a copy of
the Petitioner's objections. On October 25, 1979,
the Regional Office received the Employer's
memorandum of law in support of the motion to
dismiss the objections, dated October 22, in which
it stated that, as of the latter date, it still had not
been served. A statement of service on the Peti-
tioner appears on that document.
At no time after being advised that the Employ-
er had yet to be served a copy of the objections,
did the Petitioner attempt to do so. Nor did the Pe-
titioner offer any explanation for its failure to make
another effort at such service or why it did not re-
spond to the Employer's motions or mail the objec-
tions by certified or registered mail, as the Acting
Regional Director found it had done with other
correspondence that it had sent the Employer.
Based on the above facts, the Acting Regional
Director concluded that the Petitioner failed to
show that it had made "an honest attempt to sub-
stantially comply with the requirements of the
Rules, or, alternatively, to show a valid and com-
pelling reason why compliance was not possible
within the time required by the Rules." Alfred
Nickles Bakery, Inc., 209 NLRB 1058 (1974). In
403
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
reaching that conclusion, the Acting Regional Di-
rector noted that the Petitioner's claim that it
served its objections by ordinary mail was unsup-
ported by any evidence other than Business Age, t
Madore's affidavit, that the Petitioner could not
claim unfamiliarity with the Board's procedures for
filing objections as it had filed objections with the
Regional Office on numerous past occasions, and
that, despite having been informed of the Employ-
er's claim that it had not received a copy of the ob-
jections and of the requirement that service be
made, the Petitioner made no further attempt to ef-
fectuate service. Consequently, he recommended
that the objections be dismissed.
In excepting to the Acting Regional Director's
above recommendation, the Petitioner contends
that the Employer's claim of not receiving a copy
of the objections by certified mail should not justi-
fy dismissal of its objections, since its attempt to
serve the objections by regular mail, as verified by
Madore's affidavit, constituted "a good faith, dili-
gent effort to comply with the [B]oard's rules and
regulations regarding services [sic] of objec-
tions."-especially as the Employer allegedly was
not prejudiced because the Board agent advised the
latter's attorney that the objections were identical
to the unfair labor practice allegations made in
Case 1-CA-16540. We disagree.
In Auto Chevrolet, Inc.,4 we reaffirmed the prin-
ciples enumerated in Alfred Nickles Bakery, supra,
here relied upon by the Acting Regional Director,
that in order to support a variance or deviation
from the clear requirements of our rules the object-
ing party must show "an honest attempt to substan-
tially comply" with the rules on service of objec-
tions. In determining in that case that no such at-
tempt was made, we specifically concluded that it
was irrelevant whether the party on whom service
should have been timely made was prejudiced by
the failure to comply with our service require-
ments. Thus, that the Employer's counsel in this
case was informed that the objections paralleled
the charges in a related unfair labor practice case is
of no consequence in determining whether the Pe-
titioner's unsuccessful attempt to effectuate service
on the Employer by regular mail constituted sub-
stantial compliance with our rules for service.5
Section 102.112 of the Board's Rules and Regula-
tions governs the manner in which service of ob-
jections, among other papers, is to be made. That
section provides that "[s]ervice of papers by a
party on other parties shall be made by registered
4 249 NLRB 529 (1980).
s For purposes of this proceeding, we have accepted Madore's aver-
ments that he mailed a copy of the objections by regular mail. We have
also accepted the Employer's claim that the objections were not received
by it or counsel
mail, or by certified mail, or in any other manner
provided for the service of papers in a civil action
by the law of the State in which the hearing is
pending." It also provides that "service on all par-
ties shall be made in the same manner as that uti-
lized in filing the paper with the Board," and that
"[w]hen service is made . . . by certified mail, the
return post office receipt shall be proof of service."
In addition, it provides that "[failure to comply
with the requirements of service on other parties
shall be a basis for either (a) a rejection of the doc-
ument or (b) withholding or reconsidering any
ruling on the subject matter raised by the docu-
ment until after service has been made...."
It is clear that the Petitioner's attempted service
by regular mail did not comply with the provisions
of Section 102.112 of our rules since such service
would be acceptable only if provided for by Con-
necticut procedure, the State in which the parties
are situated, and our review of the statutes of that
State reveal no provision for service in such a
manner. It is therefore apparent that the Petition-
er's use of regular mail to serve its objections
amounts, at the very least, to a variance or devi-
ation from the service requirements of Section
102.112 and therefore of Section 102.69(a). Thus,
unless there are compelling reasons for the Peti-
tioner's failure to comply with the service require-
ments of our rules or special circumstances which
would warrant our concluding that the Petitioner
had made "an honest attempt" to achieve compli-
ance with those requirements, the Petitioner's ob-
jections must be rejected as improperly filed and
served. No such reasons or circumstances appear to
exist.
The Petitioner has not proffered any explanation
for its deviation from the requirements of our rules
for service. It has offered no reason for its failure
to use, as required, the same means of service-cer-
tified mail-on the Employer that it used in filing
its obejections with the Board (and, apparently,
other documents it had sent to the Employer) even
though the separate mailings, one to the Board and
the other to the Employer, were done on the same
visit to the post office. It also has failed to explain
why no statement of service was included with the
objections. Finally, the Petitioner does not claim
ignorance of the service requirements at the time it
resorted to regular mail to serve the objections on
the Employer. 6 Consequently, the Petitioner not
I The parenthetical note in its exceptions that the Petitioner was not
represented by an attorney does not show that it was unaware of the
service requirements. In any event, the Petitioner cannot now proclaim
any such ignorance in light of its being advised on at least two occasions
by Board agents of the service requirements, as well as its being put on
notice thereof by the Employer's motions and supporting memorandum.
404
HIGH STANDARD, INC.
only has failed to comply with the requirements of
our rules for effecting service of its objections, but
it also has failed to furnish any good, let alone
compelling, reason for its not doing so. In these
circumstances, we find virtually no support for the
Petitioner's contention that its use of the regular
mails to attempt service constituted a "good-faith,
diligent effort to comply with the [B]oard's rules
and regulations regarding services [sic] of objec-
tions... "7
7 Chairman Fanning also concludes that, in spite of the Petitioner's
failure to follow the service requirements of Secs 102 112 and 102 h
9(a)
or provide an explanation for not following those procedures, there
might still have been a basis for finding that the Petitioner had made "an
honest attempt to substantially comply" with Sec 102 69(a) of the
Board's rules as interpreted in Auto Chevrolet, Inc., and Alfred N'ikkh,
Bakery, Inc., had the Petitioner. once notified that its attempted method
of service had been unsuccessful, taken immediate steps to effectuate
proper service on the Employer. Thus, on September II and again on
September 18 the Petitioner was advised by the Regional Office that the
Employer claimed it had not been served with the objections and that
lack of service could constitute grounds for dismissal of its objections. It
also was advised of the service requirements. Yet, despite being so ad-
vised and notwithstanding receipt as well of the Employer's two motions
to dismiss the objections on this very ground, the Petitioner did nothing
to effect service of its objections on the Employer between September I I
and the issuance of the Acting Regional Director's report on November
2 In the Chairman's iew, by failing to make prompt and proper service
on the Employer of its objections once apprised that its first and only
Accordingly, as the record establishes that the
Petitioner did not comply with the service require-
ments of the Board's rules, did not offer any com-
pelling reasons for its failure to do so, and did not
show an honest attempt to substantially comply
with those rules, we adopt the Acting Regional Di-
rector's recommendation that the Petitioner's ob-
jections be dismissed. We shall therefore 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 International Union,
United Automobile, Aerospace, Agricultural Im-
plement Workers of America and that said labor
organization is not 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.
attempt-and one not in compliance with the prescribed methods for
service-was unsuccessful, the Petitioner removed any possibilit) for
finding merit to its argument that its use of regular mail to serse the oh-
jections constituted a "good faith, diligent effort" and therefore an
"honest attempt to substantially comply" with the Board's rules C Ilh
Niest/ Company, 240) NI. RB 1310 (1979)
405