Northern Natural Gas Co.

National Labor Relations Board - Board Decisions

Jun 17, 1971

191 N.L.R.B. 272 (N.L.R.B. 1971)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peoples Natural Gas, Division of Northern Natural
Gas Company and National Industrial Workers
Union, Petitioner . Case 18-RC-8457
June 17, 1971
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted in the above-entitled proceeding on November
24, 1970, under the direction and supervision of the
Regional Director for Region 18, among the employees
in the appropriate unit. At the conclusion of the ballot-
ing, the parties were furnished a tally of ballots which
showed that of 11 eligible voters, 11 case ballots, of
which 0 were for and 11 against the Petitioner. There
were no challenged or void ballots. Thereafter, the Peti-
tioner filed timely objections to conduct affecting the
results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended, the
Regional Director conducted an investigation and on
December 14, 1970, issued and duly served upon the
parties his Report and Recommendations on Objec-
tions in which he recommended that the objections be
overruled and the results of the election be certified, on
the ground that the Petitioner did not serve the Em-
ployer with a copy of the objections pursuant to Section
102.69 of the Board Rules and Regulations. The Peti-
tioner did not file exceptions to the Regional Director's
Report; instead, on December 22, 1970, by letter to the
Executive Secretary of the Board, it requested an exten-
sion of time to serve a copy of its objections on the
Employer. The request was not served upon the Em-
ployer as provided in the Board Rules and Regula-
tions.'
On January 7, 1971, the Employer filed with the
Board a motion that the Petitioner's objections be dis-
missed and urged that the Board accept the report and
recommendations of the Regional Director. On Janu-
ary 11, 1971, the Regional Director issued a With-
drawal of Report and Recommendation in which he
withdrew his Report of December 14, 1970, advised the
parties that the Petitioner's objections had been rein-
stated, and indicated that after an investigation of the
objections a revised report would be issued.
The Regional Director conducted an investigation
and on February 26, 1971, issued and duly served on
the parties his Second Report in which he recom-
mended that Objections 1, 2, and 3 be sustained, that
' See Sec 102.69(c)
the election be set aside, and that a new election be
directed. Thereafter, the Employer filed timely excep-
tions to the Regional Director's Second Report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purpose of
the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
4. The following employees, as stipulated by the par-
ties, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees of Peoples Natural Gas, Division of
Northern Natural Gas Company at its Newton,
Iowa local office, employed at the local office and
warehouse, including servicemen A, servicemen
B, welder, utilitymen, storekeeper and meter
reader; excluding cashiers, office clerical em-
ployees, dispatcher, sales representative, profes-
sional employees, guards and supervisors as
defined in the Act,
5. The Regional Director withdrew his first Report
and reinstated the objections on January 11, 1971, on
the ground that he had been informed the Petitioner
had served a copy of the objections on the Employer.
He relied on the Board's decision in Certain-Teed
Products Corporation, 173 NLRB No. 38. In that case
the union filed timely objections alleging eight in-
stances of employer misconduct and one instance of
misconduct by the petitioner, one Jaynes. The union
served its objections upon the employer immediately
but did not serve Jaynes until 17 days after the objec-
tions had been filed. However, the Regional Director
had notified Jaynes of the objections on the day they
were filed, and on the following day the employer's
personnel manager permitted Jaynes to read the objec-
tion pertaining to him. The Board, in rejecting the
employer's contention that the objections should be
overruled because Jaynes was not served, held that
"where, as here, a party has timely filed election objec-
tions with the Board, such objections should not be
rejected without considering their merits simply be-
cause of a delay by the objecting party in serving other
parties with a copy of the same, unless some prejudice
is shown."2
] In so holding the Board emphasized the Sixth Circuit's decision in
191 NLRB No. 61
PEOPLES NATURAL GAS 273
In our opinion Certain-Teed is distinguishable on its
facts, because there the party to whom most of the
objections were directed was served, and Jaynes, the
petitioner, had knowledge of the objections on the day
they were filed.
On the other hand, in this case, the objections were
not served on the Employer and it had no knowledge
of their content until 36 days after they were filed.
Moreover, when the Regional Director's first Report
issued, the Petitioner did not file exceptions to that
report as required by the Rules and Regulations but
instead belatedly requested an extension of time from
the Executive Secretary to serve the objections on the
Employer. Finally, the Petitioner again neglected the
provisions of the Rules and Regulations by failing to
serve upon the Employer a copy of its request for an
extension of time.'
N.L.R.B. v. Brown Lumber Co., 336 F 2d 641 There the employer had
failed to serve petitioner with a copy of its written protest over a voided
ballot A prior protest had been made orally by both the company president
and company observer in the presence of the union observer at the time the
ballot was voided by the Board agent who conducted the election. The court
held the Board had improperly rejected and refused to investigate the objec-
tion timely filed by the employer simply because the union had not been
served. The court indicated the Board should have considered the following:
(1) the union was not prejudiced by the fact that it was not served; (2) the
injury which a "slavish adherence" to the Board's procedural rules might do
to basic employee rights, and (3) the concurrently operative effect of the
provisions of Sec , 102.121 of the Board Rules and Regulations which states,
"The Rules and Regulations shall be liberally construed to effectuate the
purposes and provisions of the Act."
' In Warrensburg Board & Paper Corp. (143 NLRB 398, enfd 340 F.2d
920 (C.A. 2, 1965), a later case than the Sixth Circuit's decision in Brown
One purpose of the Rules and Regulations is to in-
sure that proceedings before the Board will be fair and
orderly and at the same time fulfill the requisites of due
process, including notice to the parties. We agree that
where possible the Board Rules and Regulations
should be liberally construed; however, it is also appar-
ent to us that the very purposes for which the Rules and
Regulations exist cannot be abandoned in the process.
In our opinion, the Petitioner's utter and repeated
disregard of the Rules and Regulations warrants dis-
missing the objections. We will therefore grant the Em-
ployer's motion, dismiss the objections, and, as the Pe-
titioner has failed to secure a majority of the valid
ballots cast, certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of valid votes
have not been cast for National Industrial Workers
Union and that said labor organization is not the exclu-
sive representative of the employees in the unit found
appropriate within the meaning of Section 9(c) of the
Act.
Lumber), the employer not only neglected to serve copies of its objections
on the union but also , in filing a request for an extension of time to file
exceptions, neglected to file proof of service on the union The Board refused
to investigate the objections , based on the failure to serve. The court , enforc-
ing the Board's order, rejected the employer's contention that it was denied
due process, the court stated, "Only proof of extraordinary circumstances
will cause the reviewing court to find that strict compliance with the Board's
regulations was not required."