Metal Sales Mfg.

National Labor Relations Board - Board Decisions

Mar 5, 1993

310 N.L.R.B. 597 (N.L.R.B. 1993)

597
310 NLRB No. 92
METAL SALES MFG.
1 The Board’s contract-bar rules require that, in order to be found
timely, election petitions be filed prior to the ‘‘insulated’’ period—
60 days preceding the extant contract’s expiration—in order to af-
ford the parties to an expiring contract the opportunity to negotiate
and execute a new or amended agreement without the disrupting ef-
fect of rival petitions. Deluxe Metal Furniture Co., 121 NLRB 995
(1958). In applying this rule, it is settled that a collective-bargaining
agreement effective ‘‘to’’ or ‘‘until’’ a certain date does not include
that date, and that such an agreement’s last effective date is the pre-
ceding day, unless there is evidence of the parties’ intent to the con-
trary. See Hemisphere Steel Products, 131 NLRB 56 (1961); Wil-
liams Laundry Co., 97 NLRB 995 (1952).
2 Apparently through oversight, CHM sec. 11028.5 has not yet
been revised. As provided in its introductory statement of purpose,
the CHM was prepared by the General Counsel to provide proce-
dural and operational guidance to Agency employees, and its provi-
sions are not Board rulings or directives, or binding procedural rules.
Nevertheless, we have taken steps to have this oversight corrected.
3 See Sec. 101.17 of the Board’s Statements of Procedure.
Metal Sales Manufacturing and Loren A. Dunbar,
Sr., Petitioner and International Association of
Machinists District Lodge 751, Local Lodge 86,
AFL–CIO, Union. Case 19–RD–3074
March 5, 1993
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 8, 1992, the Regional Director for Re-
gion 19 administratively dismissed the instant decerti-
fication petition on the basis that the signatures consti-
tuting the showing of interest submitted with the peti-
tion were undated; that the showing of interest was,
therefore, defective; and that the window period for
timely filing a petition had expired before the defect
could be corrected. The Petitioner filed a timely re-
quest for review of the dismissal.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has duly considered this matter and has
decided to reverse the Regional Director’s administra-
tive dismissal, to reinstate the petition, and to remand
to the Regional Director for further processing.
The collective-bargaining agreement between the
Employer and the Union was, by its terms, effective
from February 1, 1992, ‘‘until’’ January 31, 1993. The
open period for filing a petition, therefore, was from
November 2 through December 1, 1992.1 On Decem-
ber 1, 1992, the last day of the open period, the Peti-
tioner filed the instant petition, accompanied by a
showing of interest consisting of an undated list of sig-
natures. On December 4, 1992, the Regional Office in-
formed the Petitioner that the petition was defective in
that there were no dates with the signatures, and that
it was too late to correct this defect. By letter dated
December 8, 1992, the Regional Director administra-
tively dismissed the petition for these reasons. The fol-
lowing day the Petitioner sent, and the Regional Office
received, an affidavit from the Petitioner attesting that
he had collected all signatures on the showing of inter-
est on November 30, 1992. The Region rejected the af-
fidavit, relying on the NLRB Casehandling Manual
(Part Two) Representation Proceedings (CHM), section
11028.5, which provides that only signatures that are
dated may be counted toward the requisite showing of
interest, and that ‘‘[n]o independent proof of the date
of signing should be solicited or accepted.’’
This case is governed by Dart Container Corp., 294
NLRB 798 (1989), in which the Board considered the
extent to which the date of a showing of interest may
be supplied by affidavit. The Board noted the tension
between CHM section 11028.5 and prior case law per-
mitting reliance on affidavits. Reversing the Regional
Director’s dismissal of the petition, the Board held that
where a petitioner submits a list of signatures as a
showing of interest in a timely fashion, but omits the
signature dates, the Board’s requirement that the show-
ing of interest be ‘‘dated’’ may be met by affidavit,
‘‘either submitted as part of the showing of interest
itself or timely filed thereafter . . . .’’ Dart Container,
294 NLRB at 798. The Board explained that the date
of filing of the petition and the date of submission of
the showing of interest are more critical in representa-
tion cases than the precise date of signing of the show-
ing of interest, and that the Board has, on occasion,
adopted a liberal interpretation that the showing of in-
terest be ‘‘dated.’’ Id. at 798–799. Further, the Board
observed, to the extent that the precise date of signing
is critical, an affidavit could be even more reliable
than a dated signature. Id. at 799. The Board stated
that CHM section 11028.5 should be revised accord-
ingly.2
Thus, the Petitioner’s submission of an affidavit at-
testing to the date of the signatures on the timely filed
showing of interest meets the Board’s requirement that
the signatures be dated, if the affidavit itself is timely.
In determining what constitutes timeliness under Dart
Container, we have considered that the absence of sig-
nature dates is only a technical defect. Although we re-
quire that failure to provide a numerically sufficient
showing of interest be cured no later than the last day
on which a petition might be timely filed,3 we do not
believe such a strict limitation is necessary in permit-
ting a party to cure a technical defect in the dating of
the signatures. Rather, we conclude that the timeliness
requirement of Dart Container for the filing of an affi-
davit is satisfied if the affidavit is filed within a rea-
sonable time after the timely filed signature list (or au-
thorization cards), without regard to whether the affi-
davit itself is filed during the insulated period pre-
ceding the extant contract’s expiration.
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the instant case, the Petitioner submitted an affi-
davit attesting to the date of the signatures only 8 days
(6 working days) after submitting the timely showing
of interest, and 5 days (3 working days) after the Re-
gional Office orally informed the Petitioner that the
showing of interest was defective for lack of dates. We
hold that this is a reasonable time after the Petitioner’s
filing of the signature list within which to file an affi-
davit, even though the affidavit was filed during the
insulated period.
ORDER
The Regional Director’s administrative dismissal of
the instant petition is reversed, the petition is rein-
stated, and the case is remanded to the Regional Direc-
tor for further processing.