Kano Trucking Service, Ltd.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 514 (N.L.R.B. 1989)

514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kano Trucking Service , Ltd. and International Long-
shoremen's and Warehousemen 's Union, Local
142, Petitioner . Case 37-RC-2943
June 15, 1989
DECISION AND ORDDER
BY MEMBERS JOHANSEN , CRACRAFT, AND
HIGGINS
The National Labor Relations Board, by a three-
member panel , has considered exceptions to the
Acting Regional Director 's Report on Objections
to an election conducted on September 16, 1988, I
pursuant to a Stipulation upon Consent Election
Agreement. The tally of ballots shows 15 for and 0
against the Petitioner, with 1 challenged ballot, an
insufficient number to affect the results.
The Board has reviewed the record in light of
the exceptions and briefs , and for the reasons that
follow, does not adopt the Acting Regional Direc-
tor's recommendation.
On September 23, the Employer timely filed ob-
jections to conduct affecting the results of the elec-
tion. In a letter dated September 23, the Subre-
gional Office informed the Employer of its obliga-
tion to furnish timely evidence in support of its ob-
jections . The deadline for submission of the evi-
dence was the close of business (4:30 p.m.), Friday,
September 30. No request for additional time to
submit evidence was made . On Monday , October
3, the Employer's evidence in support of its objec-
tions was received in the Subregional Office.
The Employer was given an opportunity to
show circumstances warranting an extension of the
deadline . The Employer did submit information.
Thereafter, on October 28, 1988 , the Acting Re-
gional Director issued his Report on Objections
recommending that , as evidence in support of ob-
jections was not timely received and no special cir-
cumstances warranted extending the deadline, the
objections be dismissed.
The Employer filed three exceptions to the
Report on Objections. The Employer first excepts
to the finding that its evidence was not received
until October 3. Next, the Employer excepts to the
report 's failure to include information regarding
when and under what circumstances the evidence
was received by the Subregional Office. Finally,
the Employer excepts to the application of what it
considers an improper legal standard for determin-
ing if the Employer "made an honest attempt to
substantially comply with . . . the requirements of
the NLRB 's Rules."
1 All dates herein refer to 1988 unless otherwise specified.
The Union filed an answering brief in which it
asserts that "substantial compliance with the rules
does not excuse the late filing by the Employer and
that the Board's rule must be enforced strictly and
uniformly."
The Employer contended that S.O.S. Express, a
messenger service, was to deliver the evidence in
support of objections no later than 4:15 p.m. on
September 30. The Employer submitted a copy of
an invoice from S.O.S. Express that shows that the
order was delivered to the messenger service at
3:14 p.m. on September 30. The order form shows
the correct address of the Subregional Office.
"RUSH" was stamped on the order, but was
crossed out.2 The Employer also submitted a writ-
ten statement from the messenger , Eileen Adams,
dated October 12. The statement said that the des-
tination for the order was "the U.S. Department of
Labor in the Federal Building." According to the
statement Adams arrived at the Federal Building
about 4 :20 p.m ., went upstairs , and found the door
locked. After knocking several times and not re-
ceiving an answer she slipped the package under
the door.3
The Acting Regional Director's report states
that the Subregion's office was staffed until after
the close of business on September 30, and that the
Employer's evidence was not received by the close
of business on that date. The Acting Regional Di-
rector also stated that according to officials at the
U.S. Department of Labor's office that agency did
not receive a package for the National Labor Rela-
tions Board on September 30.
The Acting Regional Director noted that in 1986
revisions were made to the Board's Rules and Reg-
ulations regarding the time periods in which to file
documents with the Board .4 He cited Star Video
Entertainment L.P.5 as holding that the new time
periods would be strictly applied. He then conclud-
ed that the Employer had presented "no special
circumstances . . . which would warrant an exten-
sion of the deadline."
In North Star Steel Co.,6 the Board found a re-
fusal to bargain despite an employer's contention
that the union 's certification was invalid as the Re-
gional Director had improperly rejected the em-
ployer 's objections to the election as untimely.
There the Regional Office was three blocks from
the employer's attorney's office, and the process
2 However, there was still an "X" marked underneath a printed
"Rush" on the form.
3 The messenger mistakenly cites the date of these events as Friday,
October 1, instead of Friday, September 30
4 See 51 Fed.Reg. 23744 (July 1, 1986)
s 290 NLRB 1010 (1988).
e 289 NLRB 1188 (1988).
295 NLRB No. 58
KANO TRUCKING SERVICE 515
server had received the objections at 3:10 p.m. on
the due date. The process server went to the Fed-
eral Building in St . Paul, Minnesota , instead of the
one in Minneapolis , Minnesota , where the Regional
Office is located . By the time the process server re-
turned to the correct address the Regional Office
was closed. The objections were received by the
Regional Office at 8:25 a .m. on the following day.
The Board found that the employer should have
highlighted the Minneapolis destination and the
failure to do so fell "short of the requirement that
the objecting party take `every precaution neces-
sary ' to guarantee timely filing."7
A distinction between this case and North Star is
that this case involves the filing of evidence in sup-
port of objections whereas North Star involved the
filing of the objections themselves . This distinction
is vital because the Board 's Rules and Regulations
deal with the timely filing of the two in very dif-
ferent ways . First , the Rules provide that objec-
tions to elections must be received before the close
of business on the last day for filing . However, evi-
dence in support of the objections need only be
postmarked by the date before the due date to be
considered as timely filed .8 Second , a Regional Di-
rector has discretion in determining whether addi-
tional time will be allowed , and if so how much
additional time, to file evidence in support of ob-
jections .9 Thus, the Board 's Rules and Regulations
that clearly state that receipt of objections by the
close of business on the due date is a necessity for
timely filing also indicate that evidence in support
of objections may be timely filed although received
later than the due date under particular circum-
stances.10
7 289 NLRB at 1189
8 Sec 102 . 111(b) of the Board 's Rules and Regulations, which deals
with the service and filing of papers , provides that:
[T]he Board will accept as timely filed any document which is hand
delivered to the Board on or before the due date or postmarked on
the day before (or earlier than) the due date , documents which are
postmarked on or after the due date are untimely : Provided, however,
the following documents must be received on or before the close of
business of the last day for filing-
(1) Charges filed pursuant to section 10(b) of the Act .. .
(2) Applications for awards and fees and other expenses under the
Equal Access to Justice Act.
(3) Objections to elections and revised tallies.
(4) Petitions to revoke subpoenas
(5) Petitions filed pursuant to section 9(c) of the Act.
9 Sec. 102.69(a) of the Board 's Rules and Regulations states that
"[w]ithin 7 days after the filing of objections, or such additional time as
the Regional Director may allow, the party filing objections shall furnish
to the Regional Director the evidence available to it to support the ob-
jections."
10 Member Cracraft dissented in North Star and would have found,
under circumstances similar to those presented in this case, that the re-
spondent 's objections were timely filed. A fortiori, she agrees that the
Employer's evidence in support of objections should be accepted as
timely filed here.
In Star Video, which was cited in the Acting Re-
gional Director 's Report On Objections, the issue
was whether the evidence in support of objections
was timely received . The Board found that it was
not. Star Video , however , is distinguishable from
this case . In Star Video the union failed to submit
evidence in support of objections on the date due.
The union 's attorney stated that the day following
the date due a Board agent granted the union an
additional 48 hours to submit specific evidence.
Even with this extension , however, the union did
not submit the evidence until several days beyond
the extended deadline . Thus, it was clear in Star
Video that the objecting party had not even at-
tempted to comply substantially with the Rules' re-
quirements.
In this case , however , the Employer 's attorney
engaged a messenger service" 1 hour and 15 min-
utes before the Subregional Office was supposed to
close on the date the evidence was due . There is
no dispute regarding the Employer 's contention
that the Subregional 's Office is located approxi-
mately a quarter of a mile from the Employer's at-
torney 's office and that the messenger 's service was
instructed to deliver the evidence by 4:15 p.m. The
Employer justifiably believed that the correctly ad-
dressed evidence would be timely received by the
Subregional Office.12
Given all the circumstances in this case , we will
treat the evidence in support of the Employer's ob-
jections as timely received and we reverse the
Acting Regional Director 's recommendation that
the Employer's objections be dismissed.13
11 In Drum Lithographers, 287 NLRB 22 (1987 ), the Board indicated
that the objecting party should not have relied on the U . S. mail for
timely delivery of objections. The Board suggested that better methods
of assuring timely delivery were through express mail , a telegram, or per-
sonal delivery . Here, the Employer employed a messenger service to de-
liver the evidence , thus doing all it could to assure timely delivery.
Member Cracraft adheres to her Drum dissent.
12 The messenger stated that the destination for the package was the
"U S. Department of Labor in the Federal Building " It cannot be ascer-
tained from the record before its whether the messenger in fact delivered
the package to the Department of Labor 's Office , or whether she simply
made a misstatement Further , the messenger asserts that she attempted to
deliver the evidence before the close of business but found the door
locked The Report on Objections lacks sufficient details of the Subre-
gional Office's closing on September 30 and the circumstances under
which the Employer's evidence was received by the Subregional Office
on October 3 (e.g., whether the evidence was under the Subreglonal Of-
fice's door on the morning of October 3, or forwarded to the Subregional
Office by the Department of Labor , or received in some other manner).
Therefore, any doubts that remain due to this lack of detail in the Report
on Objections must be resolved in favor of the Employer.
13 We agree with our dissenting colleague that the Board 's rules must
be strictly applied . However, we also realize that strict application must
be tempered with a recognition that in the process of filing documents a
party may encounter circumstances so outside of its control that it would
be unfair and unjust to apply the rule simply according to form.
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board does not
adopt the Acting Regional Director 's recommenda-
tion that the Employer's objections be dismissed,
and orders this matter be remanded to Region 20
for further action consistent with this decision.
MEMBER JOHANSEN , dissenting.
Effective September 29, 1986, the Board revised
its Rules and Regulations regarding the time period
in which documents are to be filed. As noted in
Drum Lithographers, l before the revisions, the Cir-
cuit Court of Appeals for the District of Columbia
had been critical of the Board. That court had
stated that:
If the Board articulates its reasons for a
strict rule that requires filings to be in hand on
the due date and announces that it will apply
this rule uniformly or with specific stated ex-
ceptions then this court would be obliged to
defer to the Board's discretion and author-
ity. . . . The present sometimes-yes, some-
times-no, sometimes-maybe policy of due dates
cannot, however, be squared with our obliga-
tion to preclude arbitrary and capricious man-
agement of the Board 's mandate.2
The Board revised its Rules regarding the time
period in which documents are to be filed, in part
to address this criticism.3
In Drum Lithographers the Board made clear that
the new Rules would be strictly applied to the re-
ceipt of objections. In Star Video4 the Board made
clear that it intended to apply the new Rules as
strictly to the receipt of evidence in support of ob-
jections as to the receipt of the objections them-
selves.
287 NLRB 22 (1987).
$ NLRB v. Washington Star Ca, 732 F.2d 974 (D.C. Cu-. 1974).
s See Drum Lithographers, supra.
4 290 NLRB 1010 (1988).
In viewing this case in the light most favorable
to the Employer, the Employer's evidence in sup-
port of objections was not timely filed. The mes-
senger 's statement, submitted by the Employer, in-
dicates that the messenter arrived at the Federal
Building only "about" 4:20 p.m., 10 minutes before
the close of business, and further indicates that her
destination was the Department of Labor. This
statement by the messenger does not establish that
the Employer's evidence in support of objections
arrived at the National Labor Relations Board's
office by the deadline.
As the Employer has failed to establish that it
met the deadline for submission of its evidence, the
Board must determine if the Employer's noncom-
pliance should be excused. I find that it should not
be.
Here, the Employer could have easily avoided
missing the deadline. The evidence was given to
the messenger service only a little more than an
hour before the deadline. The Employer could
have either given the evidence to the messenger
earlier in the day and then checked with the Subre-
gional Office to ensure that it had been delivered
or delivered the evidence to the Subregional Office
personally.5 The Employer did not take every pre-
caution necessary to guarantee timely filing.
I realize that my position may be considered
strict, at times even harsh. However, to obtain con-
sistent results , the Rules must be strictly applied.
The purpose is to provide a definitive standard for
determining the timeliness of receipt of documents.
Here, the majority is making an exception not spec-
ified in the Rules and Regulations and is thus set-
ting the stage for returning to the "sometimes-yes,
sometimes -no, sometimes-maybe policy of due
dates" that the revised Rules had eliminated.
I would adopt the findings and recommendations
of the Acting Regional Director.
3 See Drum Lithographers, supra.