Platt Brothers

National Labor Relations Board - Board Decisions

Jun 30, 1980

250 N.L.R.B. 325 (N.L.R.B. 1980)

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