Bechtel Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1975

218 N.L.R.B. 827 (N.L.R.B. 1975)

BECHTEL INCORPORATED 827
Bechtel Incorporated and International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Teamsters Local 959 , State of
Alaska, Independent, Petitioner. Case 19-RC-
7151
June 25, 1975
SUPPLEMENTAL DECISION AND
ORDER REMANDING PROCEEDING TO
REGIONAL DIRECTOR
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On December 30, .1974, the National Labor
Relations Board issued a Decision and Direction in
which it directed the Regional Director for Region 19
to open and count certain challenged ballots cast in
an election conducted on August 1, 1974, and to
issue a revised tally of ballots and the appropriate
certification.' Upon counting those challenged bal-
lots the revised tally of ballots showed that 69 valid
ballots were cast for the Petitioner and 71 against.
The Petitioner therefore had not received a majority
of the valid ballots cast. On January 31, 1975, the
Regional Director issued a Report and Recommen-
dations on Objections, in which he concluded that
objections to the conduct of the election previously
filed by the Petitioner were untimely filed, and
recommended that the Board reject them and issue a
certification of results- Thereafter the Petitioner filed
timely exceptions to the Regional Director's report
and a supporting brief, and the Employer filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
After due consideration of the entire record in this
proceeding, including the Regional Director's Report
and Recommendations on Objections, the excep-
tions, and briefs, the Board has decided to consider
the Petitioner's objections as timely filed, to accept
them for consideration, and to remand this proceed-
ing to the Regional Director for appropriate action
thereon.
For purposes of this decision we assume that the
deadline for filing objections in the Regional Office
in Seattle, Washington, was the close of business on
August 8, 1974.2 On that day, Petitioner's attorney in
Anchorage, Alaska, telephoned a Board agent in the
1 215 NLRB No. 126.
2 Since we decide the filing was timely evert if required by this date, we
need not pass upon the Petitioner's alternative contention that the 5 days
allowed by our Rules and Regulations did not expire until the following
day.
2118 NLRB No. 121
Seattle office and told him of the Petitioner's
intention to file objections and the nature of the
objections. This was at 10:30 a.m. Anchorage time
and 12:30 p.m. Seattle time. The attorney then sent
the objections by telegraph, at 11:20 a.m. Anchorage
time, to the Regional Director with copies to the
Employer and its attorneys. He also had the
Employer's attorneys telephoned and the contents of
the telegram read to persons in their offices. One of
the Employer's attorneys called back the same day
and acknowledged receipt either of the contents or
the telegram itself.3
The Board agent who had received the information
by telephone called Petitioner's attorney back at 4:15
p.m., Seattle time, and informed him that the
Regional Office would close in 30 minutes and that
the telegram had not yet been received. The attorney
then contacted a Seattle reporting service and
dictated the objections for delivery to the Regional
Office. Although the Board agent remained in the
office until after 5 p.m., however, the objections were
not received that day. They were delivered at 8:22
the following morning, and the telegraphed objec-
tions arrived at 10:42 a.m.4 Meanwhile, the Employ-
er received a printout of the telegram at 8:15 a.m. via
its Telex connection.
This Petitioner was made to feel the impact of our
timeliness rules, and our insistence on strict compli-
ance therewith, in Sig Wold Storage & Transfer, Inc.,
205 NLRB 378 (1973), where we rejected as untimely
objections it attempted (as in the instant case) to file
by telegram. The telegram was called in to the
Western Union office in Fairbanks, Alaska, approxi-
mately an hour and a half before the Regional Office,
then as now located in Seattle, closed on the last day
for filing. The record in that case showed no other
efforts at timely filing, and the telegram arrived at
the Regional Office at 1;49 p.m. the following day.
We held that not only were the objections not
received on the last permissible day, but that they
could not reasonably have been expected to have
been delivered on that date, and were therefore
untimely.
The instant case bears a resemblance to Sig Wold
Storage that makes it understandable for the Region-
al Director to have felt bound, by our decision there,
to reject these objections as untimely. We maintain a
distinction, however, between enforcement of our
filing deadlines that is strict and enforcement that is
draconian.5 And there are circumstances here that
would put a rejection of the instant objections
3 Which of these it was is not clear from the record.
4 The Regional Office opened for business at 8:15a.m. All times stated
in this paragraph are Seattle time.
5 We do not view insistence on reasonably strict application of our
timeliness rules as inconsistent with Sec. 102.121 of our Rules and
(Continued)
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somewhere on the draconian side of the line between
the two.
First, while we do not wish to condone and
certainly not to encourage parties' waiting until the
last possible day to transmit objections, that in itself
need not have been fatal, and need not have placed
the risk of late delivery categorically on the objecting
party.6 And while the Petitioner has not presented
any persuasive evidence that it could not have
completed the investigation necessary to compile its
objections sooner, we recognize that some investiga-
tion was necessary, and that the election took place
at 15 different locations (4 in Fairbanks and 11 in the
other places listed in the caption herein), thereby
complicating the task of conducting any investiga-
tion. We think that whether or not the objections
could have been discovered, compiled, and transmit-
ted sooner, the Petitioner in this instance needed a
very substantial part of the 5 business days Section
102.69 of our Rules and Regulations allows for the
filing of objections.?
Because of the 2-hour time difference between
Alaska and the Regional Office, the Petitioner did
not have 5 full business days to deliver its objections,
and, because of the distance of well over a thousand
miles, delivery by a representative of Petitioner to the
Regional Office was not a practical alternative.
These factors were present in Sig Wold as well. In Sig
Wold, however, the telegram was sent so late in the
day that it seemed that but for the time differential
the telegram would still have arrived late. Here we
cannot be so sure . The telegram was sent almost 3-
1/2 hours before the regular closing time of the
Regional Office. But for the time differential the 3-
1/2 hours would have been 5-1/2 hours. More time
would have been available for delivery of the
telegram had not Petitioner's attorney, before send-
ing it, taken the time to telephone the Board agent
and inform him of the nature of the objections. In
retrospect it might have been better to telegraph first
and telephone later if at all, but we regard what was
done as a good-faith effort to comply with the
"spifit" of the time limitation by informing the Board
in a timely though informal manner that there were
objections.
Not that we regard that effort as sufficient. The
Petitioner also sent the telegrams early in the day and
attempted filing through the reporting service. It also
took steps to inform the Employer in a timely
manner . In these respects the case is poles apart from
cases like Peoples Natural Gas, supra, footnote 5,
Regulations , which provides that the rules and regulations in general "shall
be liberally construed to effectuate the purposes and provisions of the Act."
Cf. Certain-Teed Products Corporation, 173 NLRB 229 ( 1968); Peoples
Natural Gag Division of Northern Natural Gas Company, 191 NLRB 272
(1971).
where we found that the objecting party had
manifested "utter and repeated disregard of the
Rules and Regulations" regarding filing and service
of objections, and where we thought that construing
the rules as liberally as the objecting party wished
would have abandoned "the very purposes for which
the Rules and Regulations exist ...." We think the
instant case is governed rather by what we said in
Alfred Nickles Bakery, Inc., 209 NLRB 1058 (1974):
We do not say that there will be a "slavish"
adherence to form rather than substance. What
we do say, however, is that in 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 substan-
tially comply with the requirements of the Rules,
or, alternatively, a valid and compelling reason
why compliance was not possible within the time
required by the Rules.
This Petitioner's was an honest attempt and, in a
practical sense, was substantial compliance. The
Board and the Employer were informed of the nature
of the objections during the period required for filing,
albeit not in writing. The written objections were
received by the Board within 7 minutes of the
opening of the appropriate office on the following
morning and had already been received by the
Employer by that time. It would be at least arguable
that we were elevating form over substance by
concluding that the rules barred these objections.
But such a ruling would also be an anachronism in
the particular circumstances of this case. Recogniz-
ing the need to more adequately and conveniently
serve the needs of the employees and the representa-
tives of labor and management in Alaska, we have,
since the events related herein, opened a resident
office in Anchorage. Had we done so a few months
sooner it is unlikely that the Petitioner would have
had much of a problem in filing its objections there,
by any one of the methods that are available for
meeting filing deadlines where delivery is to a place
of no great distance. The unusual situation which
existed, and which we have now corrected, contribut-
ed to the Petitioner's inability to comply strictly with
the rules, and we do not choose to have it shoulder
the burden of that situation alone. Since there is
manifestly no prejudice to the parties in our
acceptance of these objections, the only other
consideration is our own administrative interest in
maintaining orderly procedures that are easy to
6 See , e.g., The Lobster House, 186 NLRB 148, 149 (1970).
7 Even if some of the objections could have been discovered earlier than
others, it would not necessarily have been the best practice to file them
piecemeal as each was discovered.
BECHTEL INCORPORATED 829
apply. We conclude that the interests of assuring a
fair election to the employees involved outweighs in
this case any institutional interest we might have in
enshrining our filing rules.
ORDER
It is hereby ordered that this proceeding be, and it
hereby is, remanded to the Regional Director for
Region 19 for investigation of the Petitioner'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.
MEMBER KENNEDY, dissenting:
I agree with the Regional Director that the
Petitioner's objections were not timely filed and
should be rejected. I view the majority's decision as
an unwarranted departure from the long-established
rule that objections must be filed with the Regional
Director by the close of business on the fifth working
day following the service of the tally of ballots.8
The election herein was conducted on August 1,
1974, and the last day for the filing of objections was
August 8, 1974.9 The objections were not received by
the Regional Office until the morning of August 9,
1974. The Petitioner's objections were sent by
telegram . They were phoned to a telegraph office in
Alaska approximately 3 hours before the time for
closing the Seattle Regional Office, and they were
not received by the Western Union Seattle office
until after the closing 'hour (4:45 p.m.) for the
Regional Office. There is no evidence that there was
any delay in the transmittal of the telegram. The
Petitioner does not argue that its objections were
telegraphed at a time that would normally have
permitted the receipt of the objections by the
Regional Office prior to the close of business on
August 8, 1974. Accordingly, we are not here
presented a Rio de Oro Uranium situation 10 in which
the objecting party took "every precaution neces-
sary" to assure that the objections would be received
by the Board's Regional Office and under normal
operations would have been received before the close
of business on the fifth day after the tally of ballots
was furnished.
11 See Smithfield Packing Company, Incorporater4 112 NLRB 940 (1955);
N.L.RB. v. Conlon Bros. Mfg. Co., 187 F.2d 329 (C.A. 7, 1951).
9 The majority suggests that there is some doubt about the last day for
the receipt of objections and states : "For purposes of this decision we
assume the deadline for filing objections in the Regional Office in Seattle,
Washington, was the close of business on August 8, 1974." The ballots were
counted and tallied on August 1, 1974. The tally of ballots was signed,
served, and receipt acknowledged by the attorneys for both parties on
August 1, 1974. It is not disputed that this occurred shortly after 10 p.m. on
August 1, 1974. 1 see no necessity to "assume" the deadline for the filing of
objections but find that a copy of the tally of ballots was furnished to the
Petitioner on August 1, 1974, and the last day for the filing of objections
The majority states that this case bears a
"resemblance" to Sig Wald Storage & Transfer, supra.
Except for case name and number, I view the Sig
Wold case as almost identical.11 The objections were
phoned to a telegraph office in Alaska for transmittal
to Seattle approximately 3 hours before the closing
time of the Seattle Regional Office. In Sig Wold, the
objections were received by the Seattle Western
Union office shortly before this closing time. In the
present case, they were received shortly after. There,
as here, the objections were not received in the
Regional Office until the following day. There is one
difference. In Sig Wold, the Board found that the
union's telegraphic transmission of its objections did
not result in timely filing of objections because
timely delivery could not reasonably have been
expected to have been made on that date. In the
present case, the majority fads that the objections
were timely filed.
The majority does not overrule the Sig Wold and
Hughes Tool cases but cites the following circum-
stances to justify their contrariety: (1) the Petitioner's
need for additional time to complete its investigation
on the grounds of its objections; (2) the Petitioner
telephoned the Regional Office on August 8, 1974,
and advised of its intent to file objections; and (3) the
Regional Office was located in a different time zone
from that of the objecting party. In my opinion, none
of the cited factors furnish a viable basis for the
result reached by the majority.
The fact that the Petitioner was not able to
complete its investigation or obtain evidence within
the 5-day period established by the Board's Rules
and Regulations has never been used heretofore as a
basis for extending the time for filing objections.12 I
would not find the fact that the Petitioner orally
advised the Regional Office of its "intent" to file
objections in any way "affected the necessity of
proper objections being filed within the 5-day
period." 13
The circumstance that appears to be most heavily
relied on by the majority is that the objecting party
and the Regional Office were located in a different
time zone. In computing time for the filing and
service of documents, the Board's Rules and Regula-
tions do not make any allowance for a difference in
under Secs . 102.69 and 102 .114 of the Board's Rules and Regulations was
the close of business on August 8, 1974.
10 Rio de Oro Uranium Mines, Inc., 119 NLRB 153 (1957).
11 The result reached by the majority is contrary to Hughes Tool
Company d/b/a KLAS-TV, 197 NLRB 1160 (1972). There the petitioner
sent its objections by telegram from Las Vegas, Nevada, approximately 1-
1/2 hours before the closing time of the Los Angeles Regional Office and
were received in the Regional Office on the following morning. The Board
found that the objections were not timely filed.
12 See Eklund Brothers Transport, Inc., 136 NLRB 471 (1962).
13 General Electric Company, 103 NLRB 108 (1953); Wilson-Sinclair Co.,
191 NLRB 341(1971).
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time zone . I am unaware of the Board's having given
any consideration to differences in time zones. I
know of no case in which the Board has held that this
was a relevant factor in determining whether objec-
tions had been timely filed in compliance with the
Board's Rules and Regulations . Consistent with the
majority decision herein, it would appear in future
cases that if an objecting party located on the, west
coast files objections with an east coast Regional
Office of the Board, he will be allowed an additional
day or at least an additional 3 hours the following
day for receipt of his objections. Similarly, an
objecting party located in Denver will be allowed an
additional 2 hours, etc. I do not believe that the
result reached by my colleagues will contribute to the
orderly disposition of our cases.
The majority decision suggests that the test for
determining compliance is dependent upon whether
the objecting party has manifested "utter and
repeated disregard of the Rules and Regulations,"
citing Peoples Natural Gas.14 If it is the majority's
position of this Board that objections are to be
treated as timely filed unless shown to be in "utter
and repeated disregard of the Rules and Regula-
tions," we have taken a giant step backwards in
substituting uncertainty for certainty with respect to
what constitutes timely filing under the Board's
Rules and Regulations. The majority also states
"there is manifestly no prejudice to the parties in our
acceptance of these objections." If acceptance of
untimely objections and failure to issue a certifica-
tion of results is not prejudicial to the Employer, I
am at a loss to understand the meaning of the term
"prejudice."
In summary, I find no justification in this case for
treating the late objections as timely filed under
Section 102.69(a) of the Board's Rules and Regula-
tions. I would adopt the Regional Director's report
and issue a certification of results stating that the
Petitioner has not received a majority of the valid
ballots cast in the election.
14 191 NLRB 272 (1971). However, Peoples Natural Gas did not involve Board has drawn a distinction as to what might constitute timely filing of
the timely filing of objections with the Regional Office. The issue in that objections and what might constitute timely service of the objections on
case related to failure to serve copies of the objections on other parties. The other parties. See Wilson-Sinclair Co, supra, fn. 6.