Bethesda Lutheran Communities, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jun 19, 2013

19-RC-103018 (N.L.R.B. Jun. 19, 2013)

June 19, 2013
Re: Bethesda Lutheran Communities
Case 19-RC-103018
ORDER
The Employer’s Motion for Leave to File Request for Review is denied.
The Employer claims that the Regional Director’s Decision and Direction
of Election dated May 21, 2013 was not actually served on the Employer until
May 22, 2013, and therefore the request for review was due on June 5, 2013, not
June 4 as stated in the decision.1 Section 102.112 of the Board’s Rules and
Regulations defines the date of service as “the day when the matter served is
deposited in the United States mail.” The Region’s affidavit of service for the
Decision and Direction of Election shows that the decision was deposited with
the U.S. mail service on May 21, 2013. Therefore, contrary to the Employer, the
date of service of the Decision and Direction of Election is May 21, 2013, and the
request for review was due 14 days after service, i.e., on June 4, 2013. The
Employer’s counsel of record is listed on the affidavit of service with the correct
address.
Furthermore, contrary to the Employer, Section 102.67(b) of the Board’s
Rules and Regulations does apply to decisions and directions of election, and not
only to a decision dismissing a petition. In its motion, the Employer cites
language from Section 102.67(b) that, in fact, does not appear in that section of
the Board’s current Rules and Regulations,2 but which does appear in that
section of the Board’s pending updates to its representation procedures, the
implementation of which was suspended on May 15, 2012.3 Thus, the
Employer’s argument rests on Board rules that are not presently in effect.

1
It seems likely that any confusion over the due date could have been resolved had the
Employer’s counsel contacted the Regional Office about the perceived inconsistency.
2
See http://www.nlrb.gov/sites/default/files/documents/254/manual-part_102_-2-11-8-12.pdf.
3
See, e.g., http://www.nlrb.gov/news-outreach/news-releases/nlrb-suspends-implementation-
representation-case-amendments-based-court-. The Employer, tracking the language of the
suspended updates, mistakenly quotes Section 102.67(b) as stating “. . . That within 14 days after
service of a decision dismissing a petition any party may file a request for review of such a
dismissal with the Board in Washington, DC; Provided, further, That any party may, after the
election, file a request for review of a regional director’s decision to direct an election within the
time period specified and described in §102.69.”
United States Government
NATIONAL LABOR RELATIONS BOARD
1099 14th STREET NW
WASHINGTON DC 20570

Current Section 102.67(b) states, in full:
A decision by the Regional Director upon the record shall set forth
his findings, conclusions, and order or direction. The decision of
the Regional Director shall be final: Provided, however, That
within 14 days after service thereof any party may file a request
for review with the Board in Washington, D.C. The Regional
Director shall schedule and conduct any election directed by the
decision notwithstanding that a request for review has been filed
with or granted by the Board. The filing of such a request shall not,
unless otherwise ordered by the Board, operate as a stay of the
election or any other action taken or directed by the Regional
Director: Provided, however, That if a pending request for review
has not been ruled upon or has been granted ballots whose
validity might be affected by the final Board decision shall be
segregated in an appropriate manner, and all ballots shall be
impounded and remain unopened pending such decision.
(Emphasis added).
Next, the Employer claims that Section 102.69 sets the time for filing of a request
for review of a decision and direction of election as “within 14 days after the tally of
ballots.” 4 Current Section 102.69 sets no such time limits. Rather, this section pertains
to post-election procedures, specifically the filing of post-election objections, the
issuance of regional directors’ reports on challenged ballots and objections, and the filing
of exceptions. Accordingly, contrary to the Employer, it may not attempt to file this
request for review under the provisions of Section 102.69.
Finally, the electronic filing rules on the Board’s website, which the Employer
attached as Exhibit B, clearly indicate under the section entitled “E-Filings Must Be
Timely” that “[t]he Agency will accept electronic filings up to 11:59 p.m. in the local time
zone of the receiving office on the due date.”
In sum, the Employer failed to file its request for review in a timely manner.
Accordingly, the motion is denied.
By direction of the Board:
Gary Shinners
Executive Secretary
cc: Parties

4
Here, too, the Employer appears to cite the suspended updates to the representation
procedures, rather than the currently applicable Rules and Regulations.