John I. Haas, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1991

301 N.L.R.B. 300 (N.L.R.B. 1991)

300
301 NLRB No. 45
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 See Secs. 102.69(a) and 102.111(b) of the Boards’s Rules and Regulations.
3 In an affidavit from the owner, the messenger service accepts full responsi-
bility for late delivery of the objections. The affidavit is silent as to why deliv-
ery was not perfected.
4 As explained in the rationale for the 1986 rules revisions, the exclusion
of election objections from the documents that would be considered timely if
deposited in the mails the day before the filing date changed the practice de-
scribed in Rio de Oro Uranium, 119 NLRB 153 (1957). That practice had
been to treat as timely election objections received after the due date when
the objecting party had taken every precaution necessary to assure compliance
with the Board’s Rules. See 51 Fed. Reg. 237, 441 (1986).
5 For example, if an election was held and the tally of ballots furnished on
Tuesday, May 1, objections, under the rule in effect prior to the 1986 rule
changes, would have been due 5 working days later, or May 8, and would
have been accepted as timely if postmarked on or before May 7. After the
1986 rule changes, objections to the same election would be due 7 calendar
days after the tally of ballots was furnished, which again would be May 8,
but the objections would have to be actually received by the Regional Office
no later than that date. Thus, to assure sufficient time for mail delivery, objec-
tions would have to be mailed earlier than May 7 in virtually all instances.
John I. Haas, Inc. and Teamsters, Food Processing
Employees, Public Employees, Warehousemen
and Helpers Union, Local No. 760 IBT, AFL–
CIO,1 Petitioner. Case 19–RC–12216
January 24, 1991
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, OVIATT, AND
RAUDABAUGH
An election was conducted on August 14, 1990, pur-
suant to a Stipulated Election Agreement. Election ob-
jections were due August 21, 1990. The Regional Of-
fice received the Petitioner’s election objections on
August 22, 1990, and rejected them on August 23,
1990, as untimely.2 On September 7, 1990, the Peti-
tioner filed a request for review contending that there
are extenuating circumstances in this case that warrant
the Board’s accepting the objections out of time.
The record shows that on the morning of Friday,
August 17, the Petitioner’s attorney instructed her sec-
retary to have the objections delivered by messenger
service that day. A messenger service employee picked
up the objections at the attorney’s office in Seattle and
assured the attorney’s secretary that delivery would
take place no later than the following Monday, August
20, 1990. For unknown reasons, the messenger service
failed to deliver the objections to the Regional Office
until 4:44 p.m. on August 22.3
In rejecting the Petitioner’s objections, the Regional
Director relied on Section 102.111(b) of the Rules and
Regulations and the Board’s decision in Drum Lithog-
raphers, 287 NLRB 22 (1987). For the reasons that
follow, we have decided to grant review of the Re-
gional Director’s decision, to overrule Drum Lithog-
raphers, and to revise our Rules and Regulations to
provide that election objections will be considered
timely if they are postmarked no later than the day be-
fore the due date.
Effective September 29, 1986, the Board revised its
Rules and Regulations regarding the time periods for
various filings. In general, time limits were expanded.
Among other things, the Rules specifically adopted the
Board’s longstanding practice of accepting as timely
papers that are postmarked at least 1 day before the
date. [The ‘‘postmark’’ rule] Section 102.111(b). Elec-
tion objections was one exception to the ‘‘postmark’’
rule, however. It was among the documents that Sec-
tion 102.111(b) required ‘‘be received on or before the
close of business of the last day for filing.’’4 Further,
Section 102.69(a) of the Rules and Regulations pro-
vided that ‘‘[w]ithin 7 [calendar] days after the tally of
ballots has been prepared, any party may file with the
Regional Director an original and five copies of objec-
tions to the conduct of the election or to conduct af-
fecting the results of the election . . . .’’ Previously,
an objector had 5 working days to file objections. The
change in the Rules for filing election objections from
5 working days to 7 calendar days, coupled with the
exclusion of election objections from the codification
of the Board’s longstanding practice of accepting as
timely documents deposited in the mails on the day be-
fore the due date, served to reduce the actual time
available for parties to file election objections.5
Since revising the Rules in 1986, the Board has con-
strued Section 102.111(b) as requiring that election ob-
jections be received in the Regional Office on or be-
fore the due date. In Drum Lithographers, supra, the
first case to come before the Board under the amended
Rule, the Board (Member Cracraft dissenting) declined
to accept as timely filed objections that were post-
marked 2 days before the due date from a location 15
miles from the Regional Office. The Board observed
that its rule ‘‘is explicit: objections to elections must
be received—not just postmarked or otherwise trans-
mitted—within 7 days.’’ The Board added that the rule
change put objecting parties on notice of the strict
deadline and that the petitioner ‘‘could readily have
met this deadline by sending the objections by express
mail or telegram or by delivering them in person to
the Regional Office [footnote omitted].’’ Id. at 23.
(Emphasis supplied.)
The assumptions underlying the majority’s decision
in Drum Lithographers about an objecting party’s
being able to ensure delivery on the due date have
proved to be too optimistic. Our experience has
shown—as indeed the facts of this case demonstrate—
that an objecting party acting in good faith and with
all due diligence may still find its objections rejected
under Drum Lithographers because they did not arrive
at the Regional Office on the due date. We conclude
301JOHN I. HAAS, INC.
6 By ‘‘postmark’’ we include timely depositing objections with a delivery
service that will provide a record showing that the objections were tendered
to the delivery service in sufficient time for delivery by the due date, but in
no event any later than the day before the due date.
Members Cracraft and Devaney would go further and accept documents
when the objecting party ‘‘takes every precaution necessary to ensure compli-
ance with the Board’s rules.’’ See Member Cracraft’s dissent in North Star
Steel Co., 289 NLRB 1188 (1988), quoting Rio de Oro Uranium Mines, 119
NLRB 153 (1957).
7 In the interest of uniformity, and because the Board had previously applied
the principle of Rio de Oro to representation petitions deposited in the mails
(see Central Supply Co. of Virginia, Inc., 205 NLRB 642 (1970)), Sec.
102.111(b) will be further amended to bring representation petitions within our
‘‘postmark’’ rule.
8 The Board’s remand Order was issued, in unpublished form, on December
23, 1990.
that application of the ‘‘postmark’’ rule6 to election
objections will provide a simple, fair, and effective so-
lution to the problem. We are unaware of any adminis-
trative difficulties that existed during the 19 years that
Rio de Oro was applied to election objections. In addi-
tion to administrative simplicity, the ‘‘postmark’’ rule
affords more uniform access to the Board: the mails
are available to everyone in virtually any place in the
United States.
Accordingly, because we find that application of the
‘‘postmark’’ rule to election objections will satisfy the
need for adminstrative convenience and certainty with-
out sacrificing the corresponding desire of the parties
for finality in representation proceedings, Drum Li-
thographers, supra, is overruled. Section 102.111(b) of
the Rules and Regulations will be revised to remove
election objections from the documents excluded from
the ‘‘postmark’’ rule.7 Because the Petitioner’s objec-
tions were timely filed under the ‘‘postmark’’ rule, we
have remanded this case to the Regional Director to
process them.8