Brunswick Bowling Products, LLC

National Labor Relations Board - Board Decisions

Aug 25, 2016

364 NLRB No. 96 (N.L.R.B. 2016)

364 NLRB No. 96
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Brunswick Bowling Products, LLC and Scott A. Coo-
ley and District Lodge 60, International Associa-
tion of Machinists and Aerospace Workers,
AFL–CIO. Case 07–RD–169464
August 25, 2016
DECISION ON REVIEW AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
The issue presented is whether the Regional Director
properly dismissed the Petitioner’s decertification peti-
tion on the ground that the collective-bargaining agree-
ment between the Employer and the Union is a bar to an
election, even though the Union’s statement of position
asserting a contract bar was untimely served on the Em-
ployer and the Petitioner by 3 hours and 20 minutes.
On March 4, 2016, the Regional Director issued a De-
cision and Order dismissing the petition. Thereafter, in
accordance with Section 102.67 of the National Labor
Relations Board’s Rules and Regulations, the Employer
and the Petitioner filed timely requests for review of the
Regional Director’s decision, contending, among other
things, that in consequence of the Union’s service infrac-
tion the Union’s statement of position “and its asser-
tions”—specifically that the collective-bargaining
agreement barred the petition—should have been entirely
“precluded from consideration at the hearing.”
The Requests for Review of the Regional Director’s
Decision and Order are granted as they raise a substantial
issue solely with regard to the preclusive effect of the
Union’s untimely statement of position under the
Board’s Rules and Regulations, as amended.1 On re-
view, for the reasons stated below, we affirm the Re-
gional Director’s dismissal of the petition but modify her
rationale.
I. FACTS
Since 1968, the Union has been the certified collec-
tive-bargaining representative of a unit of storekeepers,
inspectors, assemblers, and related employees employed
at the Employer’s facility in Muskegon, Michigan. The
Employer and the Union have negotiated a series of col-
lective-bargaining agreements, including one in effect
from January 10, 2012, to January 9, 2015, which the
parties agreed to extend to January 8, 2016.2 On January

1 The Requests for Review are denied in all other respects, as they
raise no other substantial issues warranting review.
2 All dates are in 2016 unless otherwise noted.
27, the Union executed a successor collective-bargaining
agreement, and the Employer did the same on January
28. It is undisputed that the current collective-bargaining
agreement is a valid contract.
On February 11, the Petitioner filed the instant decerti-
fication petition. The petition described the unit as “[a]ll
employees covered under current contract.” In response
to the petition, the Employer and the Union each filed a
statement of position pursuant to Section 102.63(b)(3) of
the Board’s Rules and Regulations. The Union’s state-
ment of position asserts that the petition is barred by the
parties’ current collective-bargaining agreement; the
Employer’s statement of position states that there is no
bar to an election.
The Union filed its statement of position with the Re-
gion before 12 noon on Friday, February 19, the business
day immediately preceding the opening of the hearing, as
required by Section 102.63(b)(3). The Union’s service
on the Employer and the Petitioner was not timely, how-
ever, as it was served on them via email at 3:20 p.m.
Before the hearing opened, the parties stipulated that,
on January 27 and 28, respectively, the Union and the
Employer executed a collective-bargaining agreement,
which has a term of January 9, 2016, through January 11,
2019. At the hearing, the stipulation was received into
evidence, with no objection by any party. Later at the
hearing, the Employer objected to the receipt of the Un-
ion’s statement of position into evidence based on its
untimely service. The Employer argued not only that the
Union was precluded from presenting any evidence to
support its position but, in effect, that no evidence with
respect to the contract bar was admissible. The hearing
officer overruled the Employer’s objection, received the
Union’s statement of position into evidence, and allowed
the Union to present its argument regarding the contract-
bar issue.3
II. THE REGIONAL DIRECTOR’S DECISION AND THE
REQUESTS FOR REVIEW
The Regional Director affirmed the hearing officer’s
ruling. She found that the Union’s statement of position
“was filed enough in advance to provide notice to the
other parties and to make clear before the hearing the
issue at hand.” She further found that the “delay [was]
not particularly significant given . . . the very low likeli-
hood that the other parties were harmed by such delay or
unfairly disadvantaged at the hearing.” She concluded
that receiving the Union’s untimely statement of position

3 The hearing officer also allowed the Employer to present argu-
ments and evidence in support of its untimely service argument, and the
Employer noted a continuing objection to any consideration of the
Union’s position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
into evidence would not frustrate the purpose of the
statement-of-position requirement, namely, clarifying the
issue(s) being litigated in order to give the other parties a
chance to prepare a response. The Regional Director
also found that, in any event, it was “prudent to fully
explore that issue upon the record” where, as here, a par-
ty at or before the hearing notified the Region that a re-
cently negotiated collective-bargaining agreement was in
place, which would suggest a contract bar. Finally, the
Regional Director observed that even if the Union’s
statement of position were not received into evidence,
the extant collective-bargaining agreement is material to
this matter and essential in the consideration of pro-
cessing the instant decertification petition, and was ap-
propriately received into evidence and considered.
Having found that the parties’ collective-bargaining
agreement was appropriately received into evidence, the
Regional Director concluded that the Union met its bur-
den of establishing a contract bar because the current
agreement was executed January 28, and the petition was
filed February 11.
In its Request for Review, the Employer renews its ar-
gument, which the Regional Director rejected, that the
Union’s statement of position and all related contract-bar
evidence should be precluded from consideration. The
Petitioner’s Request for Review also cites the Union’s
“late” statement of position.
III. DISCUSSION
Under Section 102.66(d) of the Board’s Rules and
Regulations, as amended, “[a] party shall be precluded
from raising any issue, presenting any evidence relating
to any issue, cross-examining any witness concerning
any issue, and presenting argument concerning any issue
that the party failed to raise in its timely Statement of
Position or to place in dispute in response to another par-
ty’s Statement of Position” (emphasis added). To be
considered timely under Section 102.63(b)(3), the state-
ment of position must be filed with the Region and
served upon the parties by 12 noon on the business day
immediately preceding the opening of the hearing.
Section 102.66(b) further provides: “The hearing of-
ficer shall not receive evidence concerning any issue as
to which parties have not taken adverse positions, except
that this provision shall not preclude the receipt of evi-
dence regarding the Board’s jurisdiction over the em-
ployer or limit the regional director’s discretion to direct
the receipt of evidence concerning any issue, such as the
appropriateness of the proposed unit, as to which the
regional director determines that that record evidence is
necessary.”
The requirement of a statement of position was intro-
duced in the 2014 amendments of the Board’s rules in
order to narrow the scope of the pre-election hearing,
focus the parties’ attention on the issues that are actually
in dispute, permit all parties to prepare for the hearing,
and facilitate the negotiation of an election agreement,
which would make a hearing unnecessary. The require-
ment thus saves time and resources for the parties and the
government by reducing unnecessary litigation and mak-
ing litigation that does occur more efficient. See 79 Fed.
Reg. 74309, 74362–74364 (Dec. 15, 2014). Of course,
the intended savings can be achieved only if the parties
complete the statement in good faith, and file and serve it
within the time frame established to permit the parties to
prepare for the hearing and engage in election-agreement
discussions. The accompanying preclusion provision of
the rules provides an incentive for parties to complete the
form in good faith and serve it on the other parties in a
timely manner. Id. at 74424 & fn. 518.
We find that the Regional Director erred by receiving
into evidence the Union’s statement of position and by
not precluding the Union from raising the contract bar
issue. The hearing in this matter was scheduled to open
on Monday, February 22; accordingly, the parties’ state-
ments of position were due by 12 noon on Friday, Febru-
ary 19. As noted, however, the Union did not serve its
statement of position upon the Employer and the Peti-
tioner until 3:20 p.m. on February 19. The Union did not
file a motion for an extension of time to file and serve its
statement of position, and provided no explanation for
failing to serve its statement of position in a timely man-
ner. Section 102.66(d) does not require that prejudice to
another party be shown to have resulted from a failure to
comply with the statement-of-position requirement in
order for preclusion to be imposed. In these circum-
stances, we find that the Regional Director erred by ex-
cusing the Union’s failure to comply with the service
requirement of the rule based on her finding that no party
had been prejudiced by the delay.
We conclude, however, that the Regional Director’s
error in failing to apply the preclusion provision to the
Union did not affect the validity of her conclusion that
the petition was barred by the collective-bargaining
agreement between the Employer and the Union. Sec-
tion 102.66 governs the conduct of the hearing, and Sec-
tion 102.66(d), the preclusion provision, specifically pre-
cludes a defaulting “party” from raising an issue it was
required to but failed to timely raise. The rule does not,
however, preclude any other party from raising an issue,
nor does it preclude the regional director from addressing
an issue. This is clear from the plain language of Section
102.66(d), which places no limitation on any person oth-
er than the defaulting party. It is also clear from the con-
text of the provision within the structure of the Act and
BRUNSWICK BOWLING PRODUCTS, LLC 3
the Rules, including Section 102.66(b), which authorizes
the regional director to direct the receipt of evidence
concerning any issue as to which she determines that
record evidence is necessary, even if the parties have not
taken adverse positions on the issue.
The statement-of-position requirement that the preclu-
sion provision enforces and the hearing that it affects are
only parts of the larger representation proceeding, which
has historically been investigative in nature. The
amendments to the Board’s Rules did not change this.
Once a petition is filed, the regional director is charged
with the responsibility to investigate the petition and ul-
timately to determine whether a question concerning
representation exists. These are the regional director’s
statutory responsibilities under Section 3(b) of the Act;
the amended rules did not—and could not—change
them.
We conclude that the Regional Director did not abuse
her discretion in receiving evidence regarding the exist-
ence of a contract bar, and did not err in finding that the
petition was barred by the contract. The contract bar
issue was raised by the Petitioner on the face of the peti-
tion, which stated that there was a current collective-
bargaining agreement covering the unit. The Regional
office then obtained a copy of that contract in the course
of its prehearing investigation. The Petitioner and the
Employer further confirmed the existence of the contract
before the opening of the hearing when they signed a
stipulation to that effect. The stipulation was received
into evidence at the hearing, with no objection by any
party, before any mention of the Union’s statement of
position.
In these circumstances, the Union’s failure to timely
serve a statement of position raising the issue of contract
bar did not preclude the Regional Director from finding,
based on her own investigation of the issue raised by the
Petitioner on the face of his petition, that there was no
question concerning representation in light of the exist-
ence of a collective-bargaining agreement sufficient to
bar the petition. The Union’s service infraction did not
require her to ignore the dispositive evidence that she
had obtained in her prehearing investigation.4 The Re-
gional Director’s dismissal of the petition based on the
contract bar was therefore appropriate.5

4 In light of the investigation of the issue that the Regional Director
had already conducted, the hearing officer’s ruling permitting the Un-
ion to state its position regarding the contract-bar issue at the hearing
was harmless error.
5 We find it unnecessary to address our colleague’s characterization
of today’s decision, which speaks for itself.
Dated, Washington, D.C. August 25, 2016
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
This case involves an important issue involving
NLRB-conducted elections, and the Board here is unan-
imous: notwithstanding a party’s failure to comply with
the Statement of Position requirements set forth in the
Board’s Election Rule,1 if any relevant issue exists—
indeed, even if the resolution of the issue is controlling—
then (i) the issue may be fully investigated by the Re-
gion, (ii) it may be the subject of evidence introduced at
the hearing, and (iii) the Regional Director and the Board
may fully consider and resolve the issue in favor of the
non-complying party, even if the issue’s resolution re-
quires dismissal of the election petition itself.
For good reason, the Election Rule makes all this ex-
plicit. Section 102.66(b) of the Board’s Rules and Regu-
lations, as amended, states that the regional director has
“discretion to direct the receipt of evidence concerning
any issue . . . as to which the director determines that
record evidence is necessary” (emphasis added). It is
most important in election cases that Regional Directors
apply their expertise when investigating, considering,
and resolving all relevant election issues. It is equally
important, of course, for the Board’s resolution to turn
on relevant facts and the proper application of legal prin-
ciples. Although the Election Rule can be read to state
otherwise, the Board in today’s decision rightly places
substance over form. We uphold the Regional Director’s
decision to reach and decide an outcome-determinative
issue, even though the party in whose favor the Regional
Director ruled failed to timely serve its Statement of Po-
sition in conformity with the Election Rule.
Many of the Election Rule’s requirements are highly
technical, and during the rulemaking process, significant
attention was devoted to the Election Rule’s Statement of

1 See 79 Fed. Reg. 74308 (Dec. 15, 2014) (Election Rule). Former
member Johnson and I dissented from the Election Rule, and I adhere
to the views expressed in our dissenting views. See id. at 74430–74460
(dissenting views of Members Miscimarra and Johnson).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Position requirement and the principle of preclusion (i.e.,
the consequences of a party’s non-compliance). Howev-
er, for the benefit of those who may still find these con-
cepts confusing, I will address in slightly more detail
several matters mentioned by my colleagues.
First, the Board determines in this case that a contract
bar defense warrants dismissal of the election petition.2
We resolve the contract bar issue in favor of the non-
petitioning party (upon whom the Election Rule imposes
the Statement of Position requirement), even though it
did not preserve the contract bar defense in a validly filed
and served Statement of Position, as required by the
Election Rule.3
Second, we uphold the Regional Director’s resolution
of this issue in favor of the non-petitioning party not-
withstanding the Election Rule’s preclusion principle,
referenced above, which states that non-compliance with
the Statement of Position requirement will preclude non-
complying parties “from litigating issues as to which
they have failed to take positions required . . . as part of a
Statement of Position or in response to a Statement of
Position.”4
Third, the Election Rule explicitly indicates that a con-
tract bar defense must be raised in a timely filed and

2 Under the contract bar doctrine, collective-bargaining agreements
of definite duration “for terms up to 3 years will bar an election for
their entire period,” and “contracts having longer fixed terms will be
treated for bar purposes as 3-year agreements and will preclude an
election for only their initial 3 years.” General Cable Corp., 139
NLRB 1123, 1125 (1962). The existence of a contract does not mean it
will bar an election. The contract must satisfy certain basic require-
ments, which the Board set forth in Appalachian Shale Products Co.,
121 NLRB 1160 (1958). In addition, during the term of a contract that
would be a bar, the Board will process any petition filed during the 30-
day period that falls between 60 and 90 days prior to the date the con-
tract expires or its third anniversary date, whichever is sooner. See
General Cable, 139 NLRB at 1128 fn. 16. Also, a contract will not bar
an election if the contract contains an unlawful dues-checkoff or union-
security provision. Four Seasons Solar Products Corp., 332 NLRB 67,
67–70 (2000). A successful contract bar defense will result in dismissal
of the election petition.
3 The Election Rule states that the responsible party must file and
serve a Statement of Position by noon on the business day before the
opening of the hearing. 79 Fed. Reg. at 74393–74394. Under the “pre-
clusion” principle, if a party fails to satisfy this requirement, or if it
fails to raise a relevant issue or defense in a validly filed and served
Statement of Position, the party is precluded from litigating that issue
or defense. See fn. 4, infra.
4 79 Fed. Reg. at 74394. See also id. (“[T]he requirements of the
Statement of Position and responses, permitting identification of the
issues in dispute, together with the preclusion of evidence of issues not
timely raised, substantially improves the Board’s procedures by saving
the parties and the Board the time and expense of wasteful litigation.”);
id. at 74361, 74363 (The Statement of Position has a “binding nature,”
and there are “consequences [for] failing to complete it.”); id. at 74399
(preclusion appropriate even where “significant issues” are inadvertent-
ly omitted from a Statement of Position).
served Statement of Position in order to be preserved.5
And the nonpetitioning party here (the Union) failed to
comply with Statement of Position requirements in mul-
tiple ways: (i) it failed to serve its Statement of Position
by the specified deadline (noon on the day preceding the
hearing); (ii) it did not request an extension of time to
serve the Statement or a postponement of the hearing
itself;6 and (iii) even now, it has not provided any expla-
nation of the reason or reasons the Statement of Position
was not served as required by the Election Rule. In other
words, there can hardly be a clearer case of non-
compliance: the Election Rule mandates that the defense
in question (the existence of a contract bar) must be
raised in a validly filed and served Statement of Position,
and the non-petitioning party—the party required to file
and serve a Statement of Position—failed to satisfy this
requirement. Nonetheless, the Board finds it was per-
missible and appropriate for the Regional Director (i) to
investigate, consider, and rule on the defense, (ii) to re-
solve the defense in favor of the non-complying party,
and (iii) to find that the defense requires dismissal of the
petition.
Fourth, the Election Rule makes clear that the State-
ment of Position requirements and the principle of pre-
clusion—i.e., that the party who fails to comply with
these requirements may not litigate any issue required to
be addressed in the Statement of Position—apply to the
non-petitioning party regardless of whether the non-
petitioning party is a union or an employer.7

5 Id. at 74374 (even if a contract-bar defense did not exist with re-
gard to the bargaining unit identified in the original petition, the non-
petitioning party must “amend” the Statement of Position to raise a
contract bar defense if the petitioner amends the petition in a manner
that gives rise to a potential contract bar). The Board’s Statement of
Position form even has a separate numbered section that asks, “Is there
a bar to conducting an election in this case?” See
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3040/Form%20NLRB-505%20-%20Statement%20of%20Position.pdf.
This question is followed by an additional instruction: “If yes, state the
basis for your position.” Id. The Election Rule contains two exclusions
from the Statement of Position requirements and the preclusive conse-
quences of failing to comply with those requirements. The contract bar
defense is not among these exclusions. See 79 Fed. Reg. at 74362,
74394 (lack of statutory jurisdiction and challenges to eligibility of
particular voters may be litigated notwithstanding failure to raise those
issues in Statement of Position).
6 Id. at 74361 fn. 271 (“[T]he regional director may postpone the due
date for filing and service of the Statement of Position up to 2 business
days upon request of a party showing special circumstances, and for
more than 2 business days upon request of a party showing extraordi-
nary circumstances.”); see also id. at 74374 (“[T]he regional director
may permit parties to amend their Statements of Position in a timely
manner for good cause.”).
7 In this regard, the Election Rule states: “The Statements of Position
to be completed by labor organizations in RM and RD cases are similar
to the Statements of Position that employers must complete in RC
cases. . . . [T]he important point is that the final rule treats
BRUNSWICK BOWLING PRODUCTS, LLC 5
Fifth, my colleagues identify certain reasons that
prompt the Board to consider and resolve the merits of
the contract bar defense at issue here, notwithstanding
noncompliance with the Statement of Position require-
ment. However, it is important to point out that these
reasons do not limit Regional Directors in their investiga-
tion, consideration, and resolution of any and all relevant
issues, even though the resolution of such issues may
favor a nonpetitioning party that has failed to comply
with the Statement of Position requirement. Again, the
Election Rule states that the Regional Director may “di-
rect the receipt of evidence concerning any issue . . . as to
which the director determines that record evidence is
necessary.”8
Sixth, several observations are in order regarding the
reasons that my colleagues and I have reached this out-
come. My colleagues state that the “contract bar issue
was raised . . . on the face of the petition, which stated
that there was a current collective-bargaining agreement
covering the unit,” that the contract was obtained by the
Region “in the course of its prehearing investigation,”
and that the contract was mentioned in a stipulation that
“was received into evidence at the hearing.” A few im-
portant additional points should be kept in mind.
 The only party in this proceeding that stood to
benefit from the contract bar defense reached
and decided here was the non-petitioning par-
ty, which failed to comply with the Statement
of Position requirement and which is there-
fore precluded from litigating a contract bar
defense.
 My colleagues attach significance to the fact
that the Region and the parties may have un-
derstood that a contract existed. However,
regardless of what particular parties may have
understood, noncompliance with the State-
ment of Position requirement meant there was
no valid notice in advance of the hearing that
anyone was invoking a contract bar defense.

nonpetitioning employers the same as nonpetitioning labor organiza-
tions.” Id. at 74425 fn. 519 (emphasis added). The Election Rule is
equally explicit when discussing the preclusion principle:
The preclusion provisions do not just apply in RC cases where the
employer is the nonpetitioner and must complete the Statement of Po-
sition form. Rather, . . . the preclusion provisions apply in all cases,
without distinction, including RD (decertification cases) as well as
RM cases, where the individual or labor organization . . . is the
nonpetitioner and is responsible for completing a Statement of Posi-
tion form.
Id. at 74400 (emphasis added).
8 Sec. 102.66(b) of the Board’s Rules and Regulations, as amended
(emphasis added).
 I disagree with my colleagues’ statement that
“the contract bar issue was raised . . . on the
face of the petition.” This is not correct. The
only reference to a contract that appeared on
the face of the petition was contained in the
description of the bargaining unit, as follows:
“All employees covered under current con-
tract.” This statement does not establish ei-
ther that a contract actually existed, or that, if
a contract did exist, it gave rise to a contract
bar warranting dismissal of the petition, or
that any party was invoking a contract bar de-
fense.9
Every election petition “on its face” provides many
types of information, and the information may be true or
untrue, relevant or irrelevant. Also, on the face of every
petition, the bargaining unit will be defined by reference
to the type of work performed; positions sought to be
included or excluded; particular locations or shifts; full-
time, part-time, temporary or supervisory status; and
other variables. Using the same rationale that my col-
leagues and I approve today, many other petitions will
provide a reasonable basis for relevant issues to be inves-
tigated, considered and resolved by Regional Directors
and the Board, notwithstanding a party’s failure to satisfy
the Statement of Position requirement. As the instant
case illustrates, these issues may be resolved in favor of
the noncomplying party, and these principles should ob-

9 The petition here was a decertification petition filed by an hourly
receiving dock employee. An employee might describe the bargaining
unit as the same unit covered by the “current contract,” even if no con-
tract existed. This is especially likely because the unit described in a
decertification petition must be the same as the existing unit, which
many employee-petitioners might describe as employees covered by the
“current contract.” Moreover, there are many circumstances where a
“current contract,” even if in effect, would not constitute a contract bar
to an election—for example, where the petition was filed during the 30-
day “window period” between 60 and 90 days prior to expiration of the
contract, or where the petition was filed during the fourth year of a 4-
year agreement. See, e.g., Arlan’s Department Store of Michigan, Inc.,
131 NLRB 565, 567 (1961) (decertification case where Board directs
an election although unit is described as employees covered by “current
contract” and “supplemental agreement”); Calorator Manufacturing
Corp., 129 NLRB 704, 704 fns. 2 & 3 (1960) (Board notes that the
bargaining unit in a decertification proceeding must conform to the
existing unit, and finds that union’s “current contract” did not bar the
petition); Lindmart Jewelry Mfg. Co., 119 NLRB 651, 651 fn. 2 (1957)
(Board directs decertification election and rejects union’s contention
that “current contract” constitutes a bar); Seaporcel Metals, Inc., 115
NLRB 960, 960–961 (1956) (Board directs decertification election and
rejects union’s argument that “current contract” constitutes a bar to the
election); Fisherman’s Cooperative Association, 128 NLRB 62, 64 fn.
12 (1960) (Board directs election and rejects union’s assertion that
“current contracts” constitute contract bar, where union did not enter
contracts into evidence). See also fn. 2, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
viously be applied the same way regardless of whether
the party is a union or an employer. See fn. 7, supra.
Because today’s decision represents an important clari-
fication and significant improvement regarding the Elec-
tion Rule’s treatment of the Statement of Position re-
quirement and the principle of preclusion, I concur with
my colleagues as to the matters addressed above. How-
ever, I continue to adhere to my dissenting views regard-
ing the Election Rule generally, including my objections
to the Statement of Position requirement and the preclu-
sion principle.10 For these reasons, I respectfully dissent
in part from today’s decision.
Dated, Washington, D.C. August 25, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

10 79 Fed. Reg. at 74430–74460 (dissenting views of Members
Miscimarra and Johnson); id. at 74442–74444 (dissenting views regard-
ing the Statement of Position requirement).