Platt BrothersDownload PDFNational Labor Relations Board - Board DecisionsJun 30, 1980250 N.L.R.B. 325 (N.L.R.B. 1980) Copy Citation PLATT BROTHERS Platt Brothers and International Union, United Automobile, Aerospace & Agricultural Imple- ment Workers of America (UAW), Petitioner. Case l-RC-16320 June 30, 1980 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Pursuant to a Stipulation for Certification Upon Consent Election, a secret-ballot election was con- ducted on June 20, 1979,1 under the direction and supervision of the Regional Director for Region 1 among the employees in the appropriate unit. At the conclusion of the election, the parties were fur- nished a tally of ballots which showed that, of ap- proximately 72 eligible voters, 29 cast ballots for, and 34 cast ballots against, the Petitioner. There were seven challenged ballots, sufficient in number to affect the results of the election. Thereafter, the Petitioner filed objections to conduct affecting the results of the election.2 The Acting Regional Director conducted an in- vestigation of the objections and challenges and thereafter, on September 12, 1979, issued and served on the parties his Report on Objections and Challenged Ballots. In his report, the Acting Re- gional Director recommended to the Board that the Employer's motion to dismiss the Petitioner's objections be denied, that the Petitioner's Objec- tions 1, 2, 3, 4, 5, 7, and 8 be overruled, that Objec- tion 6 be sustained, that the challenges to the bal- lots of Lawrence Berthiaume and Kenneth Creem be sustained pursuant to the stipulation of the par- ties,3 and that the election conducted on June 20 be set aside and a second election be held. On Oc- tober 1, 1979, the Employer filed timely exceptions to the report with respect to the Acting Regional Director's recommendations (1) that the Employ- er's motion to dismiss the Petitioner's objections be denied, and (2) that the Petitioner's Objection 6 be sustained. The Employer also excepted to the Acting Regional Director's alleged failure to con- duct an impartial and thorough investigation. 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 au- thority in this proceeding to a three-member panel. I All dates hereinafter are in 1979 ' On June 27. the Employer filed timel, objections to the conduct of the election However. b) letter dated August 7. the Employer. uilh the approval of the Regional Director, u ithdrew its objection, :' Since the remaining challenged hallots were no longer delerminatise of the outcome of the election. the Acting Regional Director declined to make any recommendation a' to the dispoition of those ballots 250 NLRB No. 49 Upon the entire record in this case, including the exceptions and brief, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes 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 concern- ing the representation of the employees of the Em- ployer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees employed by the Employer at its Waterbury, Connecticut, plant. but excluding office clerical employees, profes- sional employees, managerial employees, guards and supervisors as defined in the Act. 5. The Board has considered the Acting Region- al Director's report and the Employer's exceptions thereto, and finds merit in the Employer's excep- tion to the Acting Regional Director's denial of its motion to dismiss the Petitioner's objections. On June 25, the Petitioner's International repre- sentative mailed to the Regional Office, by regular mail, its objections to the conduct of the election. The Petitioner alleges that it simultaneously mailed a copy of these objections to the Employer's attor- ney, who claims that he never received the Peti- tioner's objections. On June 29, the Employer's attorney telephoned the Regional Office to ascertain whether objections had been filed. Upon learning that they had been filed, at his request a Board agent read the objec- tions verbatim to him.4 On July 9, the Employer filed with the Board and served on the Petitioner a motion to dismiss the Petitioner's objections on the ground that the Petitioner failed to immediately serve its objections on the Employer or its attorney as required by Section 102.69 of the Board's Rules and Regulations, Series 8, as amended.5 Thereafter. ' The Employer allege'. hat, during this consrsatioll. Ilie Eilpl.o,,'. attorney asked whether the objections indicated that a cop) had bhecl sent to either him or the Employer. as required byt Sec 102 ht(:a) I thlie Board's Rules and Regulations. Series X, as amended See tn 5, intfia I l Board agent allegedly informed him that nIo such stalement of '.erslcc had been received " Sec. 102 69(a) of the Board's Ruiles andI Reglaltionll Serice XI, a amended. states in relevant part: Within 5 days after the t ills o(f hallol i ha becil furni, led i.; llm pairt mnay file s ith the regionlid direct or an origina l id three t opie', of obiection% to the conidulct of' the election It C1iididCt Itlecting the re- sulis of the election,. Ahs h1 a I ll :oiitaltl ,I short lt.itenlll t vIf thie tre '(.ti thierefr Suh ilnlllg ri'.t he timtel. sv hex.thCr olr not the L 1.l- (oIlllnltud DI) CISIONS ()F NATIONAL LA()OR RELATIONS BOARD by letter dated July 10, the Petitioner forwarded a copy of its objections to the Employer, which the Employer claims it received on July 12. Based on the above facts, the Acting Regional Director denied the Employer's motion to dismiss the objections. He determined that the Petitioner, who acted without an attorney, "made a good-faith and diligent effort to comply with the Board's Rules and Regulations regarding service of objec- tions." Moreover, he concluded that the possible delay in receipt of these objections did not warrant their dismissal, since the Employer was in no way prejudiced by the delay. We have recently had occasion to reconsider the application of our rule regarding the service of ob- jections on opposing parties in a representation matter. In Auto Chevrolet, Inc.,6 we reaffirmed the principle, first stated in Alfred Nickles Bakery. Inc.,7 that: [I]n order to support a variance or deviation from the clear requirements of the Board's Rules there must be some showing that there has been an honest attempt to substantially comply with the requirements of the Rules, or, alternatively, a valid and compelling reason why compliance was not possible... 8 We specifically noted that the presence or absence of prejudice to the party on whom objections should have been timely served was irrelevant in determining whether the objecting party made "an honest attempt to substantially comply" with the rules on service of objections. In Auto Chevrolet, the petitioner timely filed ob- jections on April 6, 1979, but did not immediately serve them on the Employer's counsel. Five days thereafter, the employer filed a motion to reject the objections. Six days after the employer's motion was filed, the petitioner served employer's counsel. We found, in agreement with the Regional Direc- tor, that the petitioner had failed to comply with the requirements of Section 102.69(a). In so finding, we noted: The Union, in excepting to the Regional Di- rector's recommendations, argues that (I) the Employer was advised by the Regional office via a telegram dated April 9 that the Union was filing objections and, thus, could have called the Union if it had not received a copy, and (2) "when the Union representative knew lenged ballot% are stfficitll in number In affect the results if the lccltlion. Copies of such objections shall immedialtely> be scr'cJd n the other partics by the part) filing them. and a slttlcmenll of ,Tcr ice shall he made 249 NL.RH No. 70 (19K()8 7 20') NL.RH 10)5K (1974) M 249 Nl RH Ni 70, quoting \/a/ ci,. 20)9 Nl RH ilt 105' that the Employer was alleging a copy of the objections were [sic] not sent to them, he per- sonally took a copy to the Employer's secre- tary." Assuming, arguendo, the truth of these allegations, we find that the Petitioner has es- tablished neither "an honest attempt to sub- stantially comply" with the service require- ment nor "a valid and compelling reason why compliance was not possible" and we conclude therefore that the Petitioner has not justified its failure to comply with the requirements of Section 102.69(a).9 In the instant case, the record shows that the Employer's counsel did not receive a copy of the objections until approximately 2 weeks after the filing date. Neither the fact that the Regional Office informed the Employer's counsel, at his re- quest, of the nature of the objections, nor the fact that the Petitioner forwarded the objections to the Employer immediately upon being served with the Employer's motion to reject the objections consti- tutes compliance with our Rules. Nor does the mere assertion by the Petitioner's International rep- resentative that he placed the objections in the mail to the Employer, unconfirmed by a certificate of service, as required by our Rules, or any reference in the letter to the Region setting forth the objec- tions that copies of the objections were to be mailed to the Employer, lend support to the Acting Regional Director's conclusion that the Petitioner made "a good-faith and diligent effort to comply" with our Rules. As the record does not establish either an honest attempt by the Petitioner to substantially comply with our Rules on the service of objections, or a valid and compelling reason why timely compli- ance with those rules was not possible, we con- clude that the Petitioner's objections were not properly filed and served pursuant to Section 102.69(a) of our Rules and Regulations. According- ly, the Employer's motion to dismiss the objections is hereby granted. The Acting Regional Director has recommended acceptance of the parties' stipulation that the chal- lenges to the ballots of Lawrence Berthiaume and Kenneth Creem should be sustained. We accept his recommendations. Since the remaining challenged ballots are no longer determinative of the outcome of the election, we will hereby certify the results of the election. " 24t N RB N. 7() 32h PI.ATT BRO()HERS CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Union, United Automobile, Aerospace & Agricultural Im- plement Workers of America (UAW), and that said labor organization is not the exclusive representa- tive of all the employees, in the unit herein in- volved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER TRUESDAI E, dissenting: I dissent from my colleagues' decision to reverse the Acting Regional Director and to dismiss the Petitioner's election objections because, in their view, the objections were not "immediately . . . served" on the Employer. The facts of this case bear repeating here, since they graphically demon- strate the extent to which the majority has abjured the intent of Section 102.21 of the Rules and Regu- lations requiring that our Rules "be liberally con- strued to effectuate the purposes and provisions of the Act." The election in this case was conducted on June 20, 1979. On June 25, 1979, the Petitioner mailed to the Regional Office objections to conduct affecting the results of the election. The Petitioner's objec- tions were timely received by the Regional Office on June 27, 1979. Although the Petitioner's Inter- national representative testified that he simulta- neously mailed a copy of the objections to the Em- ployer's attorney, by regular mail, the letter setting forth the Petitioner's objections apparently did not indicate that service had been made on the Em- ployer or its attorney. The Employer's attorney denied receiving the Petitioner's objections. It is undisputed, however, that the Employer's attorney was aware that objections had been filed since he called the Regional Office on June 29 and inquired about the objections. Further, at the request of the Employer's attorney, a Board agent read the elec- tion objections verbatim to him at that time. Al- though he knew that objections had been filed and he knew the precise nature of those objections, the Employer's attorney did not thereafter protest the alleged lack of service until July 9, at which time he sent a letter in which he moved that the Peti- tioner's objections be dismissed for failure to comply with the service requirements of Section 102.69. By certified letter of July 10, received July 12, the Petitioner served a copy of its objections on the Employer's attorney and stated again that it had mailed a copy of its objections to the attorney on June 25. The Acting Regional Director, relying on Cer- tain-Teed Products Corporation, 173 NLRB 229 (1968), and The Nestle Compan y, 240 NLRB 1310 (1979), and noting that the Petitioner was not rep- resented by an attorney, concluded that the Peti- tioner "has made a good-faith and diligent effort to comply with the Board's Rules and Regulations re- garding service of objections, and that the possible delay [emphasis supplied] in receipt of the objec- tions by the Employer does not warrant their dis- missal as untimely .... " In rejecting the Acting Regional Director's con- clusion that the Petitioner made a "good-faith and diligent effort" to comply with the Board's service requirements under Section 102.69, the majority simply dismisses out-of-hand the Petitioner's Inter- national representative's testimony that he mailed a copy of the objections to the Employer's attorney at the same time he timely filed them in the Re- gional Office. The majority chooses to discount this testimony because the Petitioner's assertion is "unconfirmed by a certificate of service . . . or any reference in the letter to the Region setting forth the objections that copies of the objections were to be mailed to the Employer. . ." Be that as it may, the majority also ignores the uncontro- verted evidence that, at least as early as June 29. the Employer's attorney knew not only that objec- tions had been filed but also the precise nature of those objections. Under such circumstances how can one fail to conclude that my colleagues, by their decision here, are intent on exalting form over substance? " It is also instructive to consider the majority's failure to discuss The VNestle Company. supra, relied on by the Acting Regional Director to support his conclusion. There an intervening union did not serve its objections on the petitioner or the em- ployer until 7 and 8 days, respectively, after the deadline for receipt of its objections in the Region- al Office. In excusing the objecting party's depar- ture from the procedural requirements of Section 102.69(a) the Board noted that the intervenor's agent was a lay person and that, upon learning of the defect in service, the intervenor immediately sought to rectify its error by serving a copy of its objections on the other parties. In holding that we should not apply our rules "as a strict code with inflexible meaning irrespective of circumstances" the Board in Nestle observed, Such immediate service after discovery of its oversight indicates a mistake due to lack of " indull tii tli Is, .dclasi cam c t IlilSnilig the 'i sl loii Ili, trtee AltcI r all. ihe putrpoc 1I' retqutrlng % tC . c ,i tr lhlt'c ll.tl , 1N toh Ct Ic patrlitc ktlu\t th i l e. cllt1 1i rcultl .h at ' beie thilcllctiged aild thile aluri of }ilC illegetd o*}hch t, irliblic th la t. it. - ,i rlpl ui hu rtt I!,.it ll tre i tlh JBoitrd algtrlt ' rczdillig JiL thl.Jll i, r/,llitt [IL pi,, I LTIOFIC' 327 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledge by a layman rather than arrogant disregard of the Board's requirements. I applaud this sentiment and its application in Nestle. I am at a loss to understand, however, how my colleagues, one of whom participated in Nestle, can avoid its application in this case which is indis- tinguishable on its facts from Nestle. Certainly they cannot mean to suggest that the conduct of the Pe- titioner in this case evidences "arrogant disregard" of our Rules. Finally, I note that in Auto Chevrolet, 249 NLRB No. 70 (1980), in my dissenting opinion, I expressed the fear that if our "experience thus far is any har- binger of things to come . . . the Board will be in- evitably drawn to return to the inflexible approach of General Time [Corporation, 112 NLRB 86 (1955)]," wherein, for all intents and purposes, the Board defined "immediately" under Section 102.69 as synonymous with simultaneously.""' With the I" As I have pointed out in my dissenting opinions in Auto Chevrolet and in several other recent cases, the difficulties which the Board has ex- majority's decision here today, these fears have been realized, and, without expressly doing so, the Board has overruled precedent holding that timely objections should not be rejected without consider- ing their merits, simply because of the objecting party's delay in serving other parties "unless some prejudice be shown." See Certain-Teed Corporation, supra. In so doing, the Board has also ignored the Sixth Circuit's salutory admonition in N.L.R.B. v. Brown Lumber Co., 336 F.2d 641 (1964), that we should endeavor to avoid possible injury to em- ployee rights by a "slavish adherence" to a proce- dure rule. Accordingly, I am compelled to dissent. perienced in connection with the service requirements of Sec 102.69 could be largely, and perhaps entirely, eliminated simply by having the Regional Offices serve a copy of the objections on all parties. Until such time as the Board adopts this simple practice I shall adhere to the C'er- ruin-reed approach which requires that delay by the objecting party in serving other parties ordinarily does not warrant rejection of timely ob- jections "unless some prejudice be shown " 328 Copy with citationCopy as parenthetical citation