Westbrook Bowl, Valley View Bowl, Verdugo Hills Bowl

National Labor Relations Board - Board Decisions

Mar 19, 1985

274 N.L.R.B. 1009 (N.L.R.B. 1985)

WESTBROOK BOWL
Naftalie Deutsch , Frank Demascio , Kenneth Childs,
a Partnership d/b/a Westbrook Bowl, Valley
View Bowl, Verdugo Hills Bowl and Hospital
and Service Employees Union , Local 399,
SEIU, AFL-CIO. Cases 31-CA-11524-1, 31-
CA-11524-2, and 31-CA-11524-3
19 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 27 March 1984 Administrative Law Judge
Jay H. Pollack issued the attached Order Dismiss-
ing Complaint. The General Counsel filed a request
for review and exceptions, and the Respondent
filed its brief previously submitted to the judge.
The Board has considered the Order and the
record in light of the request for review, excep-
tions, and briefs, and has decided to affirm the
judge's rulings, findings,' and conclusions2 and to
adopt the Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER DENNIS , dissenting.
My colleagues find that the General Counsel
failed to serve the charges on the Respondent,and
they dismissed the complaint. I respectfully dissent.
i The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or
1951), We have carefully examined the record and find no basis for re-
versing the findings,
2 We agree with the judge's conclusion, for the reasons fully set forth
by the judge, that the General Counsel did not prove service of the
charge on the Respondent within the 6 -month limitation period of Sec
10(b) of the Act In response to our colleague 's dissent , we emphasize the
following facts found by the judge the Respondent 's September 1981
"RM" petition had been filed by the Respondent 's attorney who had used
the Respondent ' s former address contained in his files , at the time the
charges were remailed to him, the attorney had not been designated by
the Respondent as its agent for the purposes of service , the attorney had
conveyed doubt as to his representative capacity to the Board agent in-
vestigating the charges , and the attorney testified that he had never re-
ceived copies of the charges (We point out, contrary to our dissenting
colleague, that there has been no finding that the Respondent 's attorney
provided a statement of position to the Board agent Even if there were
such an additional factor , however, it would not in the circumstances
mentioned above affect the results ) Further, the copies of the charges
which were sent by the Region to the Respondent by certified mail did
not generate return receipts , yet the Region took no steps at any time to
perfect service of the charges Based on the foregoing and all of the cir-
cumstances here , we find that proper service was not made on the Re-
spondent and further that the Respondent did not have actual notice of
the charges We therefore conclude, in agreement with the judge, that
the complaint must be dismissed for failure to meet the requirements of
Sec 10(b)
1009
Sometime between 1978 and 1980, the Respond-
ent moved from Suite 580 at 9911 West Pico Bou-
levard. Some of the Respondent's operations relo-
cated to Suite B51 in the same building.
On 3 September 1981, only 2 weeks before the
Union filed the charges at issue, the Respondent
petitioned the Regional Office to conduct an elec-
tion. Although the Respondent had vacated Suite
580, the Respondent listed Suite 580 as its address
on the RM petition. The petition was served on the
Union. The Respondent also listed Suite 580 as its
address on the commerce questionnaire it submitted
during the representation case investigation.
On 17 September 1981 the Union filed the instant
charges, using Suite 580 as the Respondent's ad-
dress. The General Counsel mailed copies of the
charges to the Respondent at Suite 580.
The General Counsel also sent a letter, purport-
edly enclosing copies of the charges, to the Re-
spondent's attorney. The Respondent's attorney
claimed that the letter did not contain copies of the
charges, and asked for copies to be sent "so that
. . . we might consider submitting a position." The
General Counsel sent another letter enclosing the
charges, after which the Respondent's attorney
orally provided a statement of position on the
charges.'
The Union routinely mailed documents to Suite
580. The record establishes that Suite 580's new oc-
cupants forwarded the Union's mail to Suite B51,
where the Respondent received at least some of it.
Only the Respondent's refusal to produce evidence
pursuant to a court-enforced subpoena precludes
determining with certainty whether it received all
such mail. The General Counsel mailed the com-
plaint to Suite 580, and it is undisputed that the Re-
spondent received the complaint.
At no time did the Respondent's attorney com-
plain that the General Counsel had failed to serve
the charges on his client. By all outward appear-
ances the General Counsel had every reason to be-
lieve service of the charges had been perfected,2
until almost a year after the charges were filed and
8 months after the Respondent filed the answer to
the complaint, when the issue surfaced.
On the facts described above, I believe it is a
miscarriage of justice to hold that the General
' Counsel for the General Counsel testified to a 2 October 1981 phone
conversation with the Respondent 's attorney in which they discussed in
detail the merits of the charges The Respondent's Exh 8 confirms that
the attorneys discussed the Respondent 's position on the charges
2 The Respondent denied every complaint allegation, thereby techni-
cally denying receipt of the charges Given that the Respondent (through
its attorney) provided and did not correct the erroneous address and
acted on the charges (without alluding to an alleged failure of service)
for almost a year , I do not believe the Respondent 's pro forma general
denial should outweigh its conduct , which demonstrated full awareness
of the charges
274 NLRB No. 145
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel did not perfect service and to dismiss the
complaint. I would find, at a minimum, that the
Respondent had actual notice of the charges
against it, was fully apprised of the complaint alle-
gations, and was not prejudiced by the alleged non-
receipt of the charges.3 Cf. Pasco Packing Co., 115
NLRB 437, 438 (1956) (service on respondent's at-
torney provides respondent adequate notice where
respondent's acts made service on respondent im-
possible): Peterson Construction Co., 106 NLRB 850,
851 (1953) (actual notice equated with legal notice
where error is one of misnomer and respondent not
misled or prejudiced). Accordingly, I would
remand the proceedings to the judge for comple-
tion of the hearing.
5 My colleagues find that the Respondent had no actual notice of the
charges Yet, after the Respondent's attorney asked the General Counsel
to mail him another copy of the charges "so that we might consider sub-
mitting a position," the attorney provided a statement of position
ORDER DISMISSING COMPLAINT
On September 10, 1981,1 the Hospital and Service Em-
ployees Union, Local 399, SEIU, AFL-CIO (the Union)
filed three charges with the National Labor Relations
Board (the Board). The charges identified Frank Di
Massio (sic) as the owner of Westbrook Bowl (Case 31-
CA-11524-1), Valley View Bowl (Case 31-CA-11524-
2), and Verdugo Hills Bowl (Case 31-CA-11524-3).2
Each charge alleged a failure to bargain "within'. the last
two months" and gave the Respondents' address as 9911
West Pico Boulevard, Suite 580, Los Angeles, California
90035 (Suite 580). A complaint issued on November 23.
The Respondents filed an answer on December 3, in
which they denied, inter alia, service of the charges. The
trial was postponed indefinitely on February 9, 1984, for
consideration of Respondents' motion to dismiss the
complaint. The threshold issue is whether the Respond-
ents were properly served with the charges.
Facts
On September 17, 1981, the Board's Regional Office
mailed copies of the charges by certified mail to the re-
spective Respondents The three charges were addressed
to Suite 580 and contained only the name of the respec-
tive bowling alleys, i.e., Westbrook Bowl, Valley View
Bowl, and Verdugo Hills Bowl. Counsel for the General
Counsel was unable to produce returned receipts or
other evidence to show that the Respondents actually re-
ceived the charges. Frank DeMascio, the principal wit-
ness for the Respondents, denied having seen the charges
prior to the trial. Naftalie Deutsch, the managing partner
for all three Respondents, did not recall having seen the
charges.
' All references are to 1981 unless otherwise noted
s The business involved are bowling alleys and will be referred to as
the Respondents or the bowling alleys
The evidence shows that Deutsch is the general part-
ner in a limited partnership known as Lazben Investment
Co. and that Frank DeMascto, Kenneth Childs, and
Lazben Investment Co. are partners in Verdugo Hills
Bowl. Deutsch has a partnership interest in both West-
brook and Valley View Bowl3 Although DeMascio's
ownership interest is limited to Verdugo Hills Bowl, he
nevertheless is the "general supervisor" for all three
bowling alleys. DeMascio's responsibilities are similar to
those of a general manager. DeMascio apparently reports
to Deutsch
Mail addressed to the bowling alleys is routinely di-
rected to DeMascio.
DeMascio was a difficult and uncooperative witness
who delighted in the vague or argumentative response.
Normally, the testimony of a witness who engaged in
such obvious game playing would not be credited. Here,
however, there is evidence that the charges were mailed
to an incorrect address and that the Respondents notified
the Board in a timely manner that the charges had not
been received. This evidence tends to corroborate De-
Mascio's denial. In any event, I refuse to draw the infer-
ence, argued by the General Counsel, that the opposite
of DeMascio's testimony is true.
Deutsch apparently owns the 15 or 20 story office
building located at 9911 West Pico Boulevard. A number
of his businesses, including the business office for the
three bowling alleys, once occupied Suite 580.4 Howev-
er, sometime prior to the mailing of the charges, the
Deutsch operations vacated Suite 580. Some of the oper-
ations, incluidng C. D. Investments and Deutsch's per-
sonal office, moved to Suite B-51 in the basement of the
same building.5 Some of Deutsch's operations, including
the business office for the bowling alleys, moved to
14235 Oxnard, Van Nuys, California (Van Nuys). It ap-
pears that the business office moved to Van Nuys at least
a year prior to September 1981. Deutsch credibly testi-
fied that he did not recall seeing the charges prior to the
instant hearing. As noted above, in the normal course of
Respondent's business, Deutsch would not receive such
mail unless forwarded by DeMascio.
Each month the Union sends to each of the three
bowling alleys three statements under separate cover,
one statement concerns pension fund contributions, one
concerns health and welfare fund contributions, and one
concerns the deduction of union dues Typically, all nine
statements are mailed to the same address, although that
address has changed from time to time. For instance,
from early 1977 through September 1979 the statements
9 The record does not clearly establish the other partners in Westbrook
and Valley View
4 None of the bowling alleys are located at 9911 West Pico Boulevard
At all pertinent times, both the Union and the Regional Office were
aware of the addresses of the respective bowling alleys Copies of the
charges were not mailed or hand-delivered to the bowling alleys
a Counsel for the General Counsel introduced Fictitious Business
Name Statements for all three businesses, a statement for Valley View
Bowl dated 1980, one for Westbrook Bowl dated 1978, and one for Ver-
dugo Hills dated 1979 The statements give 9911 West Pico Boulevard,
Suite B-51 as the Respondents' address As indicated above, copies of the
charges were mailed to Suite 580, not Suite B-51
WESTBROOK BOWL
were usually addressed to Suite 580.6 Beginning in Octo-
ber 1979, all statements were mailed to P.O. Box 67058,
Los Angeles, California In January 1981 the Union
began to send some statements to the Van Nuys address.
In May, an internal memorandum was circulated among
union employees advising them that the Respondents' ad-
dress had changed to 14235 Oxnard, Van Nuys Begin-
ning in June, all statements were sent to Van Nuys.
If the Union was late in updating its mailing list, the
Respondents' attorney was even later. On August 10, Mi-
chael Schmier filed a representation petition with the
Board in Case 31-RM-902 on behalf of "Verdugo
Hills/Valley View/Westbrook Bowl." He gave the "ad-
dress(es) of the establishment(s) involved" as 9911 West
Pico Boulevard, Suite 580, Los Angeles, California.
Schmier's action appears to have been inadvertent, rather
than calculated.7 Shortly thereafter, the Union filed the
instant charges, using Suite 580 as the Respondents' ad-
dress, and the Regional Office mailed copies of the
charges to that address.
At the time the charges were mailed, Suite 580 was
occupied by Camelot Travel and Ipanema Tours (Cam-
elot). There is no suggestion that Deutsch or the other
parties in the bowling alleys have any interest in Cam-
elot Evelyn Thomson, Camelot's controller, described
Suite 580 as "a small office" and explained Camelot's
procedure for handling the mail. If the mail is certified,
the employees are expected to read the envelope and to
refuse to accept it if it is addressed to another company.
Thomson was unaware of any incident in which certified
mail addressed to another company was accepted by a
Camelot employee. It is inferred that Camelot, in accord-
ance with procedure, refused to accept the charges be-
cause they were addressed to another company.8 There
is no evidence that the charges were forwarded to Suite
B-51 or to the Van Nuys address once they were reject-
ed by Camelot. Accordingly, it cannot be found that
Deutsch, DeMascio, or any other agent for the Respond-
ents received a copy of the charges until after the trial
had opened.
It is noted that the complaint was misaddressed in the
exact same fashion as the charges but, unlike the charges,
the complaint generated a return receipt. Although the
signature on the receipt was not identified, it is clear that
the complaint reached the Respondents. Respondents
filed a timely answer to the complaint and stated at trial
they did not contest service of the complaint.9 However,
the fact that the complaint was received does not neces-
sarily imply that the charges were also received. Indeed,
6 During the spring and summer of 1979, statements were mailed to
Westbrook Bowl and Valley View Bowl at Suite B-51 instead of Suite
580 From December 1977 through September 1979 statements were
mailed to Verdugo Hills Bowl at 9911 West Pico Boulevard, 5580-B51
7 Schmier had represented Respondents in some labor-related manners
in the past and used the old address contained in his files
B Camelot employees were familiar with the names Naftalie Deutsch
and C D Investments and would forward regular mail containing those
names to Suite B-51 The charges, however, did not contain either name
0 The complaint is dated November 23, the answer, December 9 Since
the charges alleged a violation on or after July 17, the answer was filed
within 6 months of the alleged violation and thus gave the Regional
Office and the Union an opportunity to reserve the charges
1011
the fate of the charges, after they were received by the
post office, remains a matter of'speculation
The record further reveals that between April and No-
vember the Union sent six certified letters to the Re-
spondents at Suite 580 and all six letters produced a
signed receipt. One of the receipts shows that Suite 580
was crossed out and Suite B-51 was penciled in. The sig-
nature on the "Suite B-51 receipt" was identified as that
of an employee of C.D Investments. It is thus clear that
some mail addressed to Suite 580 was reaching the Re-
spondents at Suite B-51, but again , such evidence does
not explain what happened to the instant charges.
It is noted that each charge contains a notation of a
"cc" or courtesy copy to Michael Schmier, the Respond-
ents' attorney. At the outset of the trial, Schmier denied
receiving copies of the charges in the mail and, among
other things, objected to their introduction on that basis.
Although the charges were nevertheless admitted as part
of the formal documents, counsel for the General Coun-
sel was warned that he still retained the burden of prov-
ing service of the charges. Counsel subsequently called a
Regional Office employee and succeeded in proving that
the charges were indeed mailed to Respondents at Suite
580. Counsel, however, did not elicit any testimony to
show that courtesy copies were mailed to Schmier.
There is, therefore, no evidence that courtesy copies
were placed in the mail.
Before the complaint issued, Schmier became aware
that charges had been filed. He telephoned Beverly
Ware, a Board attorney, and asked her to send him
copies of the charges. Ware sent Schmier a cover letter
stating that copies of the charges were enclosed; Ware,
however, forgot to enclose the charges with the letter.
Schmier telephoned Ware and explained that he received
the cover letter but not the charges. Ware then mailed
copies of the charges but Schmier denied receiving such
charges. During his conversations with Ware, Schmier
stated that he had been retained for the RM case and did
not believe that his client wished to use his services for
the unfair labor practice case.
Analysis
Section 10(b) of the Act provides that "no complaint
shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof
upon the person against whom such charge is made
Section 11(4) provides that a charge "may be served
either personally or by registered mail or by telegraph or
by leaving a copy thereof at the principal place of busi-
ness of the person required to be served. The verified
return by the individual so serving the same setting forth
the manner of such service shall be proof of the same,
and the return post office receipt or telegraph receipt
thereof when registered and mailed or telegraphed as
aforesaid shall be proof of service of the same."10
10 See also Sec 102 112 of the Rules and Regulations of the National
Labor Relations Board
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the Board's Regional Office, as a matter of
course, causes a copy of the charge to be served, the
Charging Party remains primarily responsible for service
of the charge Section 102.14 of the Rules and Regula-
tions of the National Labor Relations Board. An affidavit
of services on return verification is normally needed to
prove service, but in the absence of such proof, the Gen-
eral Counsel may prove service by other means. General
Marine Transport Corp., 238 NLRB 1372, 1376-77 (1978).
In General Marine Transport, relied on by, the General
Counsel, the charge was mailed to the correct address
but there was no affidavit of service or return verifica-
tion. However, the General Counsel proved that the Re-
gional Office maintained a file in which it routinely made
a notation whenever a verification was returned to the
office, and that the file contained a notation next to the
respondent' s name. Because the charge had been mailed
to the correct address, and there was evidence that a
return verification had been received by the Regional
Office, it was reasonable for the administrative law judge
to infer that the charge had been mailed to and received
by the respondent
The judge found that the inference of receipt was not
rebutted by the assertions of respondent's attorney that
he could find no one who recalled seeing the charge.
Moreover, the respondent called no witness to explain
respondent's procedure with respect to the receipt of
registered mail or to deny that the charge was received.
In the instant case , the charges were mailed to an in-
correct address. No presumption of delivery to Respond-
ents follows. I draw the inference that the charges were
delivered to the occupant of that address The evidence
shows that the charges then would have been rejected as
the addressee was no longer at that address. It is then
possible to draw three inferences concerning the charges-
(1) they were returned to the sender; (2) they were lost
in the mail; or (3) they were forwarded to the Respond-
ents Absent additional evidence, each inference is equal-
ly plausible, and the General Counsel has failed to show
by the preponderance of the evidence that service was
effectuated. Contrary to the General Counsel's argument,
General Marine Transport does not hold that proof of
mailing provides sufficient proof of service.
A case more on points in Seafarers (American Barge
Lines), 244 NLRB 641 (1979). There the charge named
an international union as the party to be charged and in-
dicated that "Mr. Worley" was the "union representative
to contact." Worley participated in the Board' s investiga-
tion and provided two affidavits. In one affidavit Worley
identified himself as the agent of the local union; in the
other, he omitted any reference to the local union.
Worley was in fact an employee of the local and not an
agent of the International The administrative law judge
held, with Board approval, that the affidavits gave the
Regional Office actual notice that the original charge
"possibly erroneously named the international as the
charged party" (244 NLRB at 647) and thus the Region-
al Office was under an "obvious and imperative" duty to
amend the charge. Because it failed to amend within the
10(b) period, a subsequent complaint against the local
was dismissed. In the instant case, the problems with
service were, or should have been, even more obvious to
the 'Regional Office. Not only did the Regional Office
lack a return verification, but Respondents requested a
second mailing of the charges and then filed an answer
denying service when the charges were not received.
The answer was filed within the 10(b) period and thus
the Regional Office could have tried to personally serve
DeMascio (in which case it would have discovered that
DeMasico was no longer at Suite 580), or it could have
left copies of the charges at the respective bowling
alleys. Instead, it ignored its "obvious" duty to act and
did nothing. i i The complaint must therefore be dis-
missed.
The fact that Respondents' attorney provided a wrong
address does not dictate a contrary result. Although the
attorney's mistake may have contributed to the aborted
service, that mistake does excuse the Union and the Re-
gional Office from perfecting service. At the time the
charges were mailed , a confusing mosaic existed; the
Union was sending contributions to one address, the RM
petition revealed a different address, and the fictitious
business name statements contained yet a third. 12 Pru-
dence thus required that some precautions, such as deliv-
ering copies to the respective bowling alleys, be taken. If
precautions were not taken at the time of the initial serv-
ice, then they certainly should have been taken when
complaint issued and return receipts were not received
or when service was denied in the answer. Having failed
to use obvious and available alternatives after service
was denied, neither the Regional Office nor the Union
may claim that it reasonably and detrimentally relied on
Schmier's mistake.
The failure to use obvious alternatives distinguishes
this case from NLRB Y. Ashville-Whitney Nursing Home,
468 F.2d 459, 464-465 (5th Cir. 1972), in which it was
held that where, to all appearances, a respondent is still
occupying its former location, substituted service at the
former location is insufficient In that case, Clark was the
owner and Pierce the administrator of a nursing home.
Clark leased the entire enterprise to Pierce, who contin-
ued to operate the home in a similar manner. The state
authorities were not notified of the lease and thus at the
time the charge was served the state license, which was
the sole public record concerning the business, showed
Clark as the owner and Pierce as the administrator. Re-
lying on the public record, the Regional Office served
Pierce at the home with a charge naming Clark as the
owner and Pierce as the administrator. Pierce knew the
descriptions were inaccurate but failed to inform the
Region of its error until after the 10(b) period had run.
The court, expressing concern about respondents who
"becloud" their whereabouts (468 F.2d at 464), held that
service on both Clark and Pierce was adequate. Service
on Clark was held to be valid "because to all possible
outward appearances , the home on [the date of service
of the charge] was still Clark's `principal place of busi-
ness' within the meaning of section 11(4)." In light of
'' An affidavit of service shows that the Union, the party ultimately
responsible for effectuating services, received a copy of the answer and
was thus also on notice that service was being denied
12 Neither the Union nor the Regional Office relied on the fictitious
name statements
WESTBROOK BOWL 1013
Pierce's own , undisclosed knowledge , the charge was
held to have adequately identified Peirce as a "person
against whom the charge is made." Thus, amendment of
the charge after expiration of the 10(b) period was held
to be valid.
In the instant case , unlike Ashville- Whitney, Respond-
ents were not avoiding service or beclouding their
whereabouts . Respondents ' attorney requested a copy of
the charges and Respondents denied service in a timely
manner, thus giving the Region and the Union the op-
portunity to make proper service . The Region and the
Union ignored that opportunity . Accordingly , it is ap-
propriate that the complaint be dismissed.
Finally, assuming arguendo that Schmier received the
charges after Ware remailed them , service on Respond-
ents has still not been proven . Schmier had not been des-
ignated as Respondents ' agent for purposes of service.
Schmier's appearance in the representation case did not
constitute representation in the unfair labor practice case.
Moreover, Schmier told Ware that he did not know if
Respondents would engage his services in the unfair
labor practice case. Pasco Packing Co ., 115 NLRB 437
(1956), relied upon by the General Counsel inapposite. In
the Pasco Packing case , the charges and complaint were
returned to the Regional Office marked "refused." The
Board held that the post office's tender was sufficient to
establish service. Further , the Board held that the re-
spondent could not justly complain if service of the com-
plaint on its attorney was made the equivalent of that
which its acts had made impossible As stated above, in
this case , Respondents did not refuse service , avoid serv-
ice, or otherwise make service impossible Most impor-
tantly, this case involves service of the charges (an issue
of jurisdiction under Sec . 10(b)) as opposed to service of
the complaint . Here, there exists no reason the failure to
serve Respondents within the 10(b) period should be ex-
cused.
Accordingly , for the reasons expressed above, I find
that the General Counsel has not established that Re-
spondents were served properly with a copy of the
charges. Thus,
IT IS ORDERED that the complaint be dismissed in its
entirety. 13
13 All outstanding motions inconsistent with this Order hereby are
denied Any party may obtain review of this action by filing a request
therefrom with the Board in Washington , DC, stating the grounds for
review and immediately on such filing shall serve a copy thereof on the
other parties Unless such request is filed within 20 days from the date of
this Order, the case shall be closed See Sec 102 27 of the Rules and
Regulations of the National Labor Relations Board