The Nestle Co.

National Labor Relations Board - Board Decisions

Mar 12, 1979

240 N.L.R.B. 1310 (N.L.R.B. 1979)

1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Nestle Company and Local #50, Bakery & (Con-
fectionery Workers Union, AFLCIO, Petitioner.
Case I RC- 15833
March 12. 1979
DECISION AND ORDER
BY CHIIAIRMAN F \NNIN(i XNI) IM111Bt. RS JNKINS
ANI) Ml:RI'mII
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties' and ap-
proved by the Regional Director for Region I on
August 15, 1978, an election by secret ballot was con-
ducted on August 31. 1978. among the employees in
the stipulated unit. At the conclusion of the election,
the parties were furnished a tally of ballots which
showed that, of approximately 325 eligible voters,
294 cast ballots, of which 110 were for the Petitioner,
109 were for the Intervenor, 74 were against the par-
ticipating labor organizations, and I ballot was chal-
lenged. As the results of this election were inconclu-
sive, a runoff election was conducted on September
21. 1978. At the conclusion of the runoff election, the
parties were furnished a tally of ballots which
showed that, of approximately 325 eligible voters,
300 cast ballots, of which 154 were for Petitioner and
137 were for Intervenor. There were seven void and
two challenged ballots. The challenged ballots were
insufficient in number to affect the results of the run-
off election. Thereafter, the Intervenor filed objec-
tions to conduct affecting the results of an election,
consistent with its refusal to sign the tally because of
its intent to file objections.
On October 5, 1978, Petitioner filed a motion to
dismiss the Intervenor's objections on the grounds
that they were untimely filed and that service was
defective because neither Petitioner nor the Em-
ployer received copies of the objections. After being
informed by the Regional Office of the Board's ser-
vice requirements, the Intervenor immediately served
copies of its objections on Petitioner on October 6.
1978, and on the Employer on October 7, 1978. It is
alleged and not disputed that the Intervenor had ear-
lier telephoned the Regional Office and inquired
concerning filing requirements but was not advised
of the need for service on all parties. On November
6. 1978, the Acting Regional Director issued his Re-
port on Objections in which he recommended that
the objections be treated as having been timely filed,
but that they be dismissed because of the Interven-
iR W I).S tI. lood I)visiion. >ocal 282. \11 ('10. intelriened in Ihe
proceeding and aippeared n the ballot
240 NLRB No. 182
or's failure to comply with Section 102.69(a) of the
Board's Rules and Regulations. Series 8, as amended,
which require, inter alia, that immediate service of
copies of the objections be served on all other parties
to the election. He recommended that the Board is-
sue a Certification of Representative to the Peti-
tioner, certifying it as the collective-bargaining repre-
sentative of the employees in the unit involved
herein. Thereafter, the Intervenor timely filed an ap-
peal from the Regional l)irector's dismissal of its ob-
jections with a brief in support thereof. The Peti-
tioner and the Employer also filed timely exceptions
and briefs in support thereof.-
Pursuant to the provisions of Section 3(h) of the
National labor Relations Act, as amended, the Na-
tional l.abor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
U pon the entire record in this case, the Board
finds:
I. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. TIhe Petitioner and the Intervenor are labor or-
ganizations claiming to represent certain employees
of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)( ) and Section
2(6) and (7) of the Act.
4. The parties stipulated. and we find. that the fol-
lowing employees constitute a unit appropriate for
the purpose of collective bargaining within the mean-
ing of the Act:
All production and maintenance employees em-
ployed by the Elmployer at its Boardman Road,
New Milford. Connecticut, location, including
warehouse employees, plant clerical employees.
lead operators, line leaders and lead mechanics,
who were employed during the payroll period
ending July 28, 1978; but excluding all office
clerical employees, quality control department
employees, technical services development de-
partment employees, temporary employees; pro-
fessional employees, guards, plant manager,
manufacturing manager, warehouse manager,
I he I'etitioer and the Ltiplioer except to the recommendatiin of the
c.tinig Regional I)lrectolr that the Inlt enir'N ir'objecit ns be treated as hlav-
ilg been till ti filed We find iino Illerit i these exceptionls he ohecli on
verec reclsed hb the Board's Regional Office in Boston (in September 29,
1978. I da after he deadline for the filing of objections. I he Acting Re-
cinal I)lreclir foiund, anid it is undisputed that. the objections ere mailed
on September 2. 1978. I he ctllng Regional Director Ireated the objectlions
as timlei filed hbecause the s ere mailed at a time that ould justi[\ the
Ilntervlenr's easotn ; lhl e epectaltill that he, would be timels received at
the Baird's Regiona;il Office in Bost, . I stl doing lie relied n Kio de Or,
I ranlio.l fn,'e, n , 119 N RB 153 (I 1957): (ruier' Super icr tlar i. In(,
201 Nl RB I 12 (1973).
THE NESTLE COMPANY 1311
production division managers, general foremen,
foremen, quality control department manager,
plant engineer, maintenance foremen, and all
other supervisors as defined in the Act.
5. After due consideration of the entire record in
this proceeding, including the Acting Regional Di-
rector's Report on Objections, the appeal, excep-
tions, and briefs, the Board has decided to consider
the Intervenor's objections as timely filed, to accept
them for consideration, and to remand this proceed-
ing to the Regional Director for appropriate action
thereon.
The Acting Regional Director's investigation re-
vealed that the Intervenor did not serve its objections
on the Petitioner or the Employer until 7 and 8 days.
respectively, after the deadline for receipt of its ob-
jections in the Regional Office. He found that the
Intervenor had failed to show either that it made an
honest attempt substantially to comply with the re-
quirements of the Board's Rules and Regulations. or
that it had a valid and compelling reason why com-
pliance within the time required for service of the
objections on the other parties was not possible,
which are the two critical exceptions under Alfred
Nickles Bakery, Inc., 209 NLRB 1058 (1974), neces-
sary to support a variance from the requirements of
Section 102.69(a). Therefore, the Acting Regional
Director recommended that the Board dismiss the
Intervenor's objections.
Contrary to the recommendation of the Acting Re-
gional Director, we conclude that the particular facts
herein are sufficient to satisfy a departure from strict
adherence to the Board's Rules. To hold otherwise
would require a "slavish adherence to form rather
than substance" which Alfred Nick/les, supra, specifi-
cally eschews. As we said in Bechtel Incorporated, 218
NLRB 827 (1975):
We maintain a distinction, however, between
enforcement of our filing deadlines that is strict
and enforcement that is draconian. And there
are circumstances here that would put a rejec-
tion of the instant objections somewhere on the
draconian side of the line between the two.
Likewise, the circumstances of this case require a
departure from strict enforcement of our filing dead-
lines. The Intervenor asserts in its exceptions, and it
is undisputed that, its failure timely to serve the other
parties with copies of its objections was due to the
unfamiliarity of its agent, a lay person, with the
Board's procedure as to the filing of objections.3 It
contends that it attempted to comply with the
Board's Rules and Regulations by seeking informa-
tion from the Regional Office as to the proper proce-
dure for filing objections. On October 5, 1978, upon
learning of its failure to comply with the service re-
quirements of Section 102.69(a), the Intervenor im-
mediately sought to rectify its error by serving a copy
of its objections on the Petitioner the next day and
on the Employer within 2 days. Such immediate ser-
vice after discovery of its oversight indicates a mis-
take due to lack of knowledge by a layman rather
than arrogant disregard of the Board's requirements.
We conclude that the Acting Regional Director
applied Alfred Nickles, supra, too rigidly in recom-
mending that the Intervenor's objections be dis-
missed. The Board does not apply its Rules as a strict
code with inflexible meaning irrespective of circum-
stances. Rather, we believe that the circumstances
herein bring this case within the factors mentioned in
Alfred Nickles that support a departure from the
procedural requirements. To hold otherwise, "would
result in a greater injustice than the injustices that the
rules seek to prevent." 4 Therefore, in light of the par-
ticular circumstances of this case, we find that the
Intervenor acted in good faith and substantially com-
plied with the requirements of the Board's Rules as
soon as these requirements were called to its atten-
tion. Accordingly, we hereby remand this proceeding
to the Regional Director for appropriate action con-
sistent with our decision herein.
ORDER
It is hereby ordered that this proceeding be. and it
hereby is, remanded to the Regional Director for Re-
gion I for investigation of the Intervenor's objections
and the issuance of a supplemental report. Upon the
issuance of such report, the provisions of Section
102.69 of the Board's Rules and Regulations, Series
8, as amended, shall be applicable.
It if further noted that the talls of ballots of the runoff election held on
September 21, 1978. specificall shows "RWSDLI refuses to sign as the,
[sicl hase to ohbject to the election: not on agents' conduct." In addition, the
Interxsenor claims that it distributed a letter on the Employer's premises on
September 26. 1978. and hb mail to employees. that read in part "Local
282. RVWSDU has filed objections to the election that was held on Thurs-
da\. September 21 1978 " Relying on the quoted materials above, the In-
ter'enor claims that the Employer and the Petitioner had actual or con-
structlve notice of the Interenor's intention to file and filing of, objections
to the election prior to the deadline for filing objections.
4 V. R R . B ro.n Lumber (Co.. 336 F.2d 641 (6th Cir. 1964).
THE NESTLE COMPANY
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