Operator Services West

National Labor Relations Board - Board Decisions

Oct 12, 1990

300 N.L.R.B. 473 (N.L.R.B. 1990)

473
300 NLRB No. 48
OPERATOR SERVICES WEST
1 We agree with the Regional Director that the Petitioner’s objections should
be overruled pursuant to the principles set forth in Star Video Entertainment,
290 NLRB 1010 (1988), because it did not timely submit evidence in support
of its objections. The Petitioner contends in exceptions that the Regional Di-
rector should have granted its request for a brief extension of time to submit
evidence. It argues that a personal family emergency of the attorney handling
the case presented special circumstances warranting such an extension. Al-
though the alleged emergency arose on April 11, 1990, the Petitioner admits
that it did not request an extension of time or submit a position statement and
list of potential witnesses until April 13, 1 day after the April 12 deadline for
submission of evidence. Contrary to our dissenting colleague, we find that Sec.
102.69(a) of the Board’s Rules and Regulations does not require consideration
of a request for an extension of time when the request itself is untimely. More-
over, assuming arguendo that consideration of an untimely request is permitted
under the Rules and Star Video, we disagree with the dissent’s implicit view
that the Petitioner has proved that the Regional Director abused his broad ad-
ministrative discretion by not granting its request.
TA Investment Co., Inc. d/b/a Operator Services
West and International Brotherhood of Elec-
trical Workers, Local Union No. 396, AFL–
CIO, Petitioner. Case 28–RC–4802
October 12, 1990
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held March 30, 1990, and the Regional Director’s re-
port recommending disposition of them. The election
was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 16 for and 72
against the Petitioner, with 4 challenged ballots, an in-
sufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the Regional Direc-
tor’s findings and recommendations,1 and finds that a
certification of results of election should be issued.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for the International Brotherhood of
Electrical Workers, Local Union No. 396, AFL–CIO,
and that it is not the exclusive representative of these
bargaining unit employees:
All full-time and regular part-time operators, cus-
tomer service representatives and accounting em-
ployees employed by TA Investment Co., d/b/a
Operator Services West, 1500 East Tropicana Av-
enue, Las Vegas, Nevada; but excluding all mana-
gerial and professional employees, confidential
employees, guards and supervisors as defined by
the Act.
MEMBER DEVANEY, dissenting.
I do not join my colleagues in adopting the Regional
Director’s recommendation to overrule the Petitioner’s
timely objections. On April 13, 1990, 1 day after the
deadline for the submission of evidence supporting the
objections, the Petitioner forwarded to the Regional
Director a position statement, arguments, and a witness
list, and it also asked for a brief additional period in
which to obtain witness affidavits. The Petitioner indi-
cated that an unexpected family emergency involving
its counsel had caused the delay. Relying on Star
Video Entertainment, 290 NLRB 1010 (1988), the Re-
gional Director refused to consider the Petitioner’s rea-
sons for its tardiness, rejected its evidence, denied its
request for a brief extension, and recommended that its
objections be overruled. In my view, the Regional Di-
rector misconstrued the Board’s decision in Star Video
and consequently failed to properly exercise his discre-
tion to accept the documents, pursuant to Section
102.69(a) of the Board’s Rules and Regulations.
Section 102.69(a) provides in pertinent part that
‘‘[w]ithin 7 days after the filing of objections, or such
additional time as the Regional Director may allow
[emphasis added], the party filing objections shall fur-
nish to the Regional Director the evidence available to
it to support the objections.’’ Thus, as noted in my dis-
sent in Public Storage, 295 NLRB 1034, 1035 (1989),
‘‘Section 102.69(a) expressly leaves to the Regional
Director the discretion to allow a party additional time
to submit its evidence in support of its objections
[footnote omitted].’’ The admonition in Star Video,
supra, to ‘‘strictly appl[y]’’ Section 102.69(a) does not
eliminate or curtail the discretion available to a Re-
gional Director to grant a reasonable extension to the
objecting party under certain appropriate cir-
cumstances.
I find that the Petitioner’s asserted reasons for its
tardiness justify its desire for additional time beyond
the April 12, 1990 deadline to submit its supporting
evidence. Therefore, unlike my colleagues, I would re-
verse the Regional Director’s decision not to consider
the Petitioner’s objections on their merits.